BILL NUMBER: AB 383 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 22, 2013
INTRODUCED BY Assembly Member Wagner
FEBRUARY 14, 2013
An act to amend Sections 1202, 4836.1, 4999.32, 5096.10, 21609.1,
23958.4, 25502.2, and 25600.2 of the Business and Professions Code,
to amend Sections 55.56, 56.16, 1195, 1950.5, 2877, 2923.55, 2924.8,
2924.19, 2950, and 3509 of the Civil Code, to amend Sections 116.940,
425.50, 684.115, and 1282.4 of the Code of Civil Procedure, to amend
Section 7237 of, and to amend and renumber the heading of Chapter
5.5 (commencing with Section 15900) of Title 2 of, the Corporations
Code, to amend Sections 15282, 17193.5, 17250.25, 18720, 22138.5,
33195, 35583, 38000, 41320.1, 41326, 47660, 48853, 48853.5, 48900,
48902, 48911, 49076, 49548, 52052, 60200.8, 60209, 60605.87, 60852.1,
66407, 81378.1, and 88620 of the Education Code, to amend Sections
2162, 2224, 2225, 3111, 13115, and 21000 of the Elections Code, to
amend Sections 3047, 3200.5, and 4055 of the Family Code, to amend
Sections 1587 and 15100 of the Fish and Game Code, to amend Sections
4101.3, 4106, 14611, 19447, 55527.6, and 64101 of the Food and
Agricultural Code, to amend Sections 3513, 3527, 7522.20, 7522.56,
7522.57, 7522.72, 8164.1, 11019, 11020, 11435.15, 11552, 12460,
12838.14, 12926, 14837, 15820.922, 19815, 20391, 20410, 20516,
20677.7, 25060, 25062, 65040.7, 65302.5, and 65915 of, to amend the
heading of Chapter 3.1 (commencing with Section 8240) of Division 1
of Title 2 of, to amend and renumber Sections 15606.5, 15814.25, and
15819.30 of, to repeal Section 7480 of, and to repeal the heading of
Chapter 3 (commencing with Section 15570) of Part 8.5 of Division 3
of Title 2 of, the Government Code, to amend Sections 80.2 and 82 of,
and to amend the heading of Chapter 3 (commencing with Section 80)
of Division 1 of, the Harbors and Navigation Code, to amend Sections
1339.40, 1339.41, 1367.65, 1531.15, 11378, 11755, 25110.11, 34177,
34183.5, 39053, 39510, 39710, 39712, 39716, 39718, 106985, 114365.5,
114380, 116565, 120365, 123327, 123940, 123955, 125286.20, 128570,
129725, and 136000 of the Health and Safety Code, to amend Sections
395, 676.75, 922.41, 1063.1, 1754, 10113.71, 10124, 10271,
11665, and 12694.1 of the Insurance Code, to amend Sections 980,
4709, and 5502 of the Labor Code, to amend Sections 136.2, 166,
171c, 273.6, 289.6, 496a, 626.95, 626.10,
781, 830.41, 830.55, 1001.20, 1170, 1203.097, 1203.4a,
1230, 1370.1, 2602, 3000.08, 3060.7, 4024.2, 4115.55, 5072, 6030,
11165.7, 11166, 12022, and 12022.1 of, and to repeal the heading of
Title 4.5 (commencing with Section 13600) of Part 4 of, the Penal
Code, to amend Sections 10295.6 and 20651.7 of the Public Contracts
Code, to amend Sections 4629.5, 4629.9, 6224.5, 21080.37, 21080.5,
21084, and 72410 of the Public Resources Code, to amend Sections
2827.10, 2862, 5142, 5143, 9506, and 185035 of the Public Utilities
Code, to amend Sections 2188.6, 7285.3, 17276.20, 18152.5, 18738,
23685, 24416.20 of, and to amend and renumber Section 24900 of, the
Revenue and Taxation Code, to amend Sections 1755 and 14211 of the
Unemployment Insurance Code, to amend Sections 11205, 12804.11,
16028, 23612, 34510.5, and 40000.20 of the Vehicle Code, to amend
Section 85057.5 of the Water Code, to amend Sections 366.21, 366.22,
366.25, 4141, 4427.5, 4648, 4684.53, 5008, 5328.03, 6254, 7295,
12306, 14005.27, 14043.25, 14043.7, 14132.275, 14132.276, 14169.32,
14182, 14182.16, 15630, 15650, and 18969 of, and to repeal Section
4792.1 of, the Welfare and Institutions Code, to amend Section 1 of
Chapter 357 of the Statutes of 2012, to amend Section 1 of Chapter
513 of the Statutes of 2012, to amend Section 1 of Chapter 541 of the
Statutes of 2012, and to amend Section 2 of Chapter 719 of the
Statutes of 2012, relating to maintenance of the codes.
LEGISLATIVE COUNSEL'S DIGEST
AB 383, as amended, Wagner. 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 1202 of the Business and Professions Code is
amended to read:
1202. As used in this chapter, "department" means the State
Department of Public Health.
SEC. 2. Section 4836.1 of the Business and Professions Code is
amended to read:
4836.1. (a) Notwithstanding any other law, a registered
veterinary technician or a veterinary assistant may administer a
drug, including, but not limited to, a drug that is a controlled
substance, under the direct or indirect supervision of a licensed
veterinarian when done pursuant to the order, control, and full
professional responsibility of a licensed veterinarian. However, no
person, other than a licensed veterinarian, may induce anesthesia
unless authorized by regulation of the board.
(b) Access to controlled substances by veterinary assistants under
this section is limited to persons who have undergone a background
check and who, to the best of the licensee manager's knowledge, do
not have any drug- or alcohol-related felony convictions.
(c) Notwithstanding subdivision (b), if the Veterinary Medical
Board, in consultation with the Board of Pharmacy, identifies a
dangerous drug, as defined in Section 4022, as a drug which has an
established pattern of being diverted, the Veterinary Medical Board
may restrict access to that drug by veterinary assistants.
(d) For purposes of this section, the following definitions apply:
(1) "Controlled substance" has the same meaning as that term is
defined in Section 11007 of the Health and Safety Code.
(2) "Direct supervision" has the same meaning as that term is
defined in subdivision (e) of Section 2034 of Title 16 of the
California Code of Regulations.
(3) "Drug" has the same meaning as that term is defined in Section
11014 of the Health and Safety Code.
(4) "Indirect supervision" has the same meaning as that term is
defined in subdivision (f) of Section 2034 of Title 16 of the
California Code of Regulations.
(e) This section shall remain in effect only until January 1,
2015, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2015, deletes or extends
that date.
SEC. 3. Section 4999.32 of the Business and Professions Code is
amended to read:
4999.32. (a) This section shall apply to applicants for
examination eligibility or registration who begin graduate study
before August 1, 2012, and complete that study on or before December
31, 2018. Those applicants may alternatively qualify under paragraph
(2) of subdivision (a) of Section 4999.33.
(b) To qualify for examination eligibility or registration,
applicants shall possess a master's or doctoral degree that is
counseling or psychotherapy in content and that meets the
requirements of this section, obtained from an accredited or approved
institution, as defined in Section 4999.12. For purposes of this
subdivision, a degree is "counseling or psychotherapy in content" if
it contains the supervised practicum or field study experience
described in paragraph (3) of subdivision (c) and, except as provided
in subdivision (d), the coursework in the core content areas listed
in subparagraphs (A) to (I), inclusive, of paragraph (1) of
subdivision (c).
(c) The degree described in subdivision (b) shall contain not less
than 48 graduate semester or 72 graduate quarter units of
instruction, which shall, except as provided in subdivision (d),
include all of the following:
(1) The equivalent of at least three semester units or four and
one-half quarter units of graduate study in each of the following
core content areas:
(A) Counseling and psychotherapeutic theories and techniques,
including the counseling process in a multicultural society, an
orientation to wellness and prevention, counseling theories to assist
in selection of appropriate counseling interventions, models of
counseling consistent with current professional research and
practice, development of a personal model of counseling, and
multidisciplinary responses to crises, emergencies, and disasters.
(B) Human growth and development across the lifespan, including
normal and abnormal behavior and an understanding of developmental
crises, disability, psychopathology, and situational and
environmental factors that affect both normal and abnormal behavior.
(C) Career development theories and techniques, including career
development decisionmaking models and interrelationships among and
between work, family, and other life roles and factors, including the
role of multicultural issues in career development.
(D) Group counseling theories and techniques, including principles
of group dynamics, group process components, developmental stage
theories, therapeutic factors of group work, group leadership styles
and approaches, pertinent research and literature, group counseling
methods, and evaluation of effectiveness.
(E) Assessment, appraisal, and testing of individuals, including
basic concepts of standardized and nonstandardized testing and other
assessment techniques, norm-referenced and criterion-referenced
assessment, statistical concepts, social and cultural factors related
to assessment and evaluation of individuals and groups, and ethical
strategies for selecting, administering, and interpreting assessment
instruments and techniques in counseling.
(F) Multicultural counseling theories and techniques, including
counselors' roles in developing cultural self-awareness, identity
development, promoting cultural social justice, individual and
community strategies for working with and advocating for diverse
populations, and counselors' roles in eliminating biases and
prejudices, and processes of intentional and unintentional oppression
and discrimination.
(G) Principles of the diagnostic process, including differential
diagnosis, and the use of current diagnostic tools, such as the
current edition of the Diagnostic and Statistical Manual, the impact
of co-occurring substance use disorders or medical psychological
disorders, established diagnostic criteria for mental or emotional
disorders, and the treatment modalities and placement criteria within
the continuum of care.
(H) Research and evaluation, including studies that provide an
understanding of research methods, statistical analysis, the use of
research to inform evidence-based practice, the importance of
research in advancing the profession of counseling, and statistical
methods used in conducting research, needs assessment, and program
evaluation.
(I) Professional orientation, ethics, and law in counseling,
including professional ethical standards and legal considerations,
licensing law and process, regulatory laws that delineate the
profession's scope of practice, counselor-client privilege,
confidentiality, the client dangerous to self or others, treatment of
minors with or without parental consent, relationship between
practitioner's sense of self and human values, functions and
relationships with other human service providers, strategies for
collaboration, and advocacy processes needed to address institutional
and social barriers that impede access, equity, and success for
clients.
(2) In addition to the course requirements described in paragraph
(1), a minimum of 12 semester units or 18 quarter units of advanced
coursework to develop knowledge of specific treatment issues, special
populations, application of counseling constructs, assessment and
treatment planning, clinical interventions, therapeutic
relationships, psychopathology, or other clinical topics.
(3) Not less than six semester units or nine quarter units of
supervised practicum or field study experience, or the equivalent, in
a clinical setting that provides a range of professional clinical
counseling experience, including the following:
(A) Applied psychotherapeutic techniques.
(B) Assessment.
(C) Diagnosis.
(D) Prognosis.
(E) Treatment.
(F) Issues of development, adjustment, and maladjustment.
(G) Health and wellness promotion.
(H) Other recognized counseling interventions.
(I) A minimum of 150 hours of face-to-face supervised clinical
experience counseling individuals, families, or groups.
(d) (1) An applicant whose degree is deficient in no more than two
of the required areas of study listed in subparagraphs (A) to (I),
inclusive, of paragraph (1) of subdivision (c) may satisfy those
deficiencies by successfully completing post-master's or postdoctoral
degree coursework at an accredited or approved institution, as
defined in Section 4999.12.
(2) Coursework taken to meet deficiencies in the required areas of
study listed in subparagraphs (A) to (I), inclusive, of paragraph
(1) of subdivision (c) shall be the equivalent of three semester
units or four and one-half quarter units of study.
(3) The board shall make the final determination as to whether a
degree meets all requirements, including, but not limited to, course
requirements, regardless of accreditation.
(e) In addition to the degree described in this section, or as
part of that degree, an applicant shall complete the following
coursework or training prior to registration as an intern:
(1) A minimum of 15 contact hours of instruction in alcoholism and
other chemical substance abuse dependency, as specified by
regulation.
(2) A minimum of 10 contact hours of training or coursework in
human sexuality as specified in Section 25, and any regulations
promulgated thereunder.
(3) A two semester unit or three quarter unit survey course in
psychopharmacology.
(4) A minimum of 15 contact hours of instruction in spousal or
partner abuse assessment, detection, and intervention strategies,
including knowledge of community resources, cultural factors, and
same gender abuse dynamics.
(5) A minimum of seven contact hours of training or coursework in
child abuse assessment and reporting as specified in Section 28 and
any regulations adopted thereunder.
(6) A minimum of 18 contact hours of instruction in California law
and professional ethics for professional clinical counselors that
includes, but is not limited to, instruction in advertising, scope of
practice, scope of competence, treatment of minors, confidentiality,
dangerous clients, psychotherapist-client privilege, recordkeeping,
client access to records, dual relationships, child abuse, elder and
dependent adult abuse, online therapy, insurance reimbursement, civil
liability, disciplinary actions and unprofessional conduct, ethics
complaints and ethical standards, termination of therapy, standards
of care, relevant family law, therapist disclosures to clients, and
state and federal laws related to confidentiality of patient health
information. When coursework in a master's or doctoral degree program
is acquired to satisfy this requirement, it shall be considered as
part of the 48 semester unit or 72 quarter unit requirement in
subdivision (c).
(7) A minimum of 10 contact hours of instruction in aging and
long-term care, which may include, but is not limited to, the
biological, social, and psychological aspects of aging. On and after
January 1, 2012, this coursework shall include instruction on the
assessment and reporting of, as well as treatment related to, elder
and dependent adult abuse and neglect.
(8) A minimum of 15 contact hours of instruction in crisis or
trauma counseling, including multidisciplinary responses to crises,
emergencies, or disasters, and brief, intermediate, and long-term
approaches.
(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. 4. Section 5096.10 of the Business and Professions Code, as
amended by Section 32 of Chapter 411 of the Statutes of 2012, is
amended to read:
5096.10. (a) The provisions of this article shall only be
operative if there is an appropriation from the Accountancy Fund in
the annual Budget Act to fund the activities in the article and
sufficient hiring authority is granted pursuant to a budget change
proposal to the board to provide staffing to implement this article.
(b) This section shall become inoperative on July 1, 2013, and, as
of January 1, 2014, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2014, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 5. Section 21609.1 of the Business and Professions Code is
amended to read:
21609.1. (a) No junk dealer or recycler shall possess any
reasonably recognizable, disassembled, or inoperative fire hydrant or
fire department connection, including, but not limited to,
reasonably recognizable brass fittings and parts, or any manhole
cover or lid or reasonably recognizable part of a manhole cover or
lid, or any backflow device or connection to that device or
reasonably recognizable part of that device, that was owned or
previously owned by an agency, in the absence of a written
certification on the letterhead of the agency owning or previously
owning the material described in the certification that the agency
has either sold the material described or is offering the material
for sale, salvage, or recycling, and that the person possessing the
certification and identified in the certification is authorized to
negotiate the sale of that material.
(b) A junk dealer or recycler who unknowingly takes possession of
one or more of the items listed in subdivision (a) as part of a load
of otherwise nonprohibited materials without a written certification
has a duty to notify the appropriate law enforcement agency by the
end of the next business day upon discovery of the prohibited
material. Written certification shall relieve the junk dealer or
recycler from any civil or criminal penalty for possession of the
prohibited material. The prohibited material shall be set aside and
not sold pending a determination made by a law enforcement agency
pursuant to Section 21609.
(c) For purposes of this section, the following definitions apply:
(1) "Agency" means a public agency, city, county, city and county,
special district, or private utility regulated by the Public
Utilities Commission.
(2) "Appropriate law enforcement agency" means either of the
following:
(A) The police chief of the city, or his or her designee, if the
item or items listed in subdivision (a) are located within the
territorial limits of an incorporated city.
(B) The sheriff of the county or his or her designee if the item
or items listed are located within the county but outside the
territorial limits of an incorporated city.
(3) "Written certification" means a certification in written form
by the junk dealer or recycler to a law enforcement agency, including
electronic mail, facsimile, or a letter delivered in person or by
certified mail.
SEC. 6. Section 23958.4 of the Business and Professions Code is
amended to read:
23958.4. (a) For purposes of Section 23958, "undue concentration"
means the case in which the applicant premises for an original or
premises-to-premises transfer of any retail license are located in an
area where any of the following conditions exist:
(1) The applicant premises are located in a crime reporting
district that has a 20 percent greater number of reported crimes, as
defined in subdivision (c), than the average number of reported
crimes as determined from all crime reporting districts within the
jurisdiction of the local law enforcement agency.
(2) As to on-sale retail license applications, the ratio of
on-sale retail licenses to population in the census tract or census
division in which the applicant premises are located exceeds the
ratio of on-sale retail licenses to population in the county in which
the applicant premises are located.
(3) As to off-sale retail license applications, the ratio of
off-sale retail licenses to population in the census tract or census
division in which the applicant premises are located exceeds the
ratio of off-sale retail licenses to population in the county in
which the applicant premises are located.
(b) Notwithstanding Section 23958, the department may issue a
license as follows:
(1) With respect to a nonretail license, a retail on-sale bona
fide eating place license, a retail license issued for a hotel,
motel, or other lodging establishment, as defined in subdivision (b)
of Section 25503.16, a retail license issued in conjunction with a
beer manufacturer's license, or a winegrower's license, if the
applicant shows that public convenience or necessity would be served
by the issuance.
(2) With respect to any other license, if the local governing body
of the area in which the applicant premises are located, or its
designated subordinate officer or body, determines within 90 days of
notification of a completed application that public convenience or
necessity would be served by the issuance. The 90-day period shall
commence upon receipt by the local governing body of (A) notification
by the department of an application for licensure, or (B) a
completed application according to local requirements, if any,
whichever is later.
If the local governing body, or its designated subordinate officer
or body, does not make a determination within the 90-day period,
then the department may issue a license if the applicant shows the
department that public convenience or necessity would be served by
the issuance. In making its determination, the department shall not
attribute any weight to the failure of the local governing body, or
its designated subordinate officer or body, to make a determination
regarding public convenience or necessity within the 90-day period.
(c) For purposes of this section, the following definitions shall
apply:
(1) "Reporting districts" means geographical areas within the
boundaries of a single governmental entity (city or the
unincorporated area of a county) that are identified by the local law
enforcement agency in the compilation and maintenance of statistical
information on reported crimes and arrests.
(2) "Reported crimes" means the most recent yearly compilation by
the local law enforcement agency of reported offenses of criminal
homicide, forcible rape, robbery, aggravated assault, burglary,
larceny , theft, and motor vehicle theft, combined with
all arrests for other crimes, both felonies and misdemeanors, except
traffic citations.
(3) "Population within the census tract or census division" means
the population as determined by the most recent United States
decennial or special census. The population determination shall not
operate to prevent an applicant from establishing that an increase of
resident population has occurred within the census tract or census
division.
(4) "Population in the county" shall be determined by the annual
population estimate for California counties published by the
Population Research Unit of the Department of Finance.
(5) "Retail licenses" shall include the following:
(A) Off-sale retail licenses: Type 20 (off-sale beer and wine) and
Type 21 (off-sale general).
(B) On-sale retail licenses: All retail on-sale licenses, except
Type 43 (on-sale beer and wine for train), Type 44 (on-sale beer and
wine for fishing party boat), Type 45 (on-sale beer and wine for
boat), Type 46 (on-sale beer and wine for airplane), Type 53 (on-sale
general for train and sleeping car), Type 54 (on-sale general for
boat), Type 55 (on-sale general for airplane), Type 56 (on-sale
general for vessels of more than 1,000 tons burden), and Type 62
(on-sale general bona fide public eating place intermittent dockside
license for vessels of more than 15,000 tons displacement).
(6) A "premises-to-premises transfer" refers to each license being
separate and distinct, and transferable upon approval of the
department.
(d) For purposes of this section, the number of retail licenses in
the county shall be established by the department on an annual
basis.
(e) The enactment of this section shall not affect any existing
rights of any holder of a retail license issued before April 29,
1992, whose premises were destroyed or rendered unusable as a result
of the civil disturbances occurring in Los Angeles from April 29 to
May 2, 1992, to reopen and operate those licensed premises.
(f) This section shall not apply if the premises have been
licensed and operated with the same type license within 90 days of
the application.
SEC. 7. Section 25502.2 of the Business and Professions Code is
amended to read:
25502.2. (a) A person employed or engaged by an authorized
licensee may appear at a promotional event at the premises of an
off-sale retail licensee for the purposes of providing autographs to
consumers at the promotional event only under the following
conditions:
(1) A purchase from the off-sale retail licensee is not required.
(2) A fee is not charged to attend the promotional event.
(3) Autographing may only be provided on consumer advertising
specialities given by the authorized licensee to a consumer or on any
item provided by the consumer.
(4) The promotional event does not exceed four hours in duration.
(5) There are no more than two promotional events per calendar
year involving the same authorized licensee at a single premises of
an off-sale retail licensee.
(6) The off-sale retail licensee may advertise the promotional
event to be held at its licensed premises.
(7) An authorized licensee may advertise in advance of the
promotional event only in publications of the authorized licensee,
subject to the following conditions:
(A) The advertising only lists the name and address of the
off-sale retail licensee, the name of the alcoholic beverage product
being featured at the promotional event, and the time, date, and
location of the off-sale retail licensee location where the
promotional event is being held.
(B) The listing of the off-sale retail licensee's name and address
is the only reference to the off-sale retail licensee in the
advertisement and is relatively inconspicuous in relation to the
advertisement as a whole, and the advertisement does not contain any
pictures or illustrations of the off-sale retail licensee's premises
or laudatory references to the off-sale retail licensee.
(8) A wholesaler does not directly or indirectly underwrite, share
in, or contribute to any costs related to the promotional event,
except that a beer and wine wholesaler that holds at least six
distilled spirits wholesaler licenses may directly or indirectly
underwrite, share in, or contribute to any costs related to a
promotional event for which the wholesaler employs or engages the
person providing autographs to consumers at the promotional event.
(9) The authorized licensee notifies the department in writing of
the promotional event at least 30 days in advance of the promotional
event.
(10) The authorized licensee maintains records necessary to
establish its compliance with this section.
(b) For purposes of this section, "authorized licensee" means a
manufacturer, winegrower, manufacturer's agent, California winegrower'
s agent, rectifier, importer, brandy manufacturer, brandy importer,
or wholesaler.
(c) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 8. Section 25600.2 of the Business and Professions Code is
amended to read:
25600.2. (a) An authorized licensee may conduct or sponsor
consumer sweepstakes, subject to the following conditions:
(1) (A) No entry fee may be charged to participate in a
sweepstakes authorized by this subdivision. Entry or extra chances in
a sweepstakes shall not be made available via the purchase of an
alcoholic beverage.
(B) Entry into or participation in a sweepstakes shall be limited
to persons 21 years of age or older.
(C) No sweepstakes shall involve consumption of alcoholic
beverages by a participant.
(D) Subject to subparagraph (B), any sweepstakes offered in
California shall be open to all residents of California.
(E) A sweepstakes may not be conducted for the benefit of any
permanent retail license.
(2) (A) Closures, caps, cap liners, corks, labels, cartons, cases,
packaging, or other similar material shall not be used as an entry
to a sweepstakes or as a means of determining the amount or size of
the prize or the winner in a sweepstakes, except as provided in
subparagraphs (D) and (F).
(B) The authorized licensee shall provide an alternative means of
entry that does not require a visit to a licensed premises.
(C) Except as provided in subparagraph (D), removable entry forms
shall not be used on alcoholic beverage labels, containers,
packaging, cases, or cartons.
(D) Removable entry forms that are neck hangers shall be used only
on bottles of wine or distilled spirits, and shall not require
purchase of the product. Removable neck hangers shall be used only if
other entry forms are available at the point of sale or if an
alternative means of entry is also available.
(E) Entry forms may be provided through electronic or other media,
including point of sale.
(F) Codes that may be scanned or electronically entered by a
consumer where the authorized licensee has permanently affixed the
codes as part of the original alcoholic beverage label, container,
packaging, case, or carton , and where the codes
are not removable and not required to be removed are permitted as a
form of entry.
(G) All permitted means of entry, including the use of electronic
or scanner codes, shall clearly indicate that no purchase is required
to enter.
(H) All sweepstakes entries shall provide the entrant with an
equal odds of winning.
(3) A sweepstakes shall not provide for the instant or immediate
awarding of a prize or prizes. Instant or immediate notification to
the consumer that he or she is a winner is permissible.
(4) Except for providing a means of entry, a sweepstakes
authorized by this section shall not be conducted at the premises of
a retail licensee or the premises of a winegrower or beer
manufacturer operating under a duplicate license for a branch office.
(5) Alcoholic beverages or anything redeemable for alcoholic
beverages shall not be awarded as a sweepstakes prize. This paragraph
shall not prohibit a sweepstakes in which the prize is cash or cash
equivalent or the awarding of cash or cash equivalent.
(6) A retail licensee shall not serve as the agent of an
authorized licensee by collecting or forwarding entries or awarding
prizes to, or redeeming prizes for, a sweepstakes winner. The
matching of entries with numbers or pictures on the point-of-sale
materials at retail licensed
premises is permitted only if entrants are also offered the
opportunity to use an alternative means to determine prize-winning
status. An authorized licensee may furnish and maintain a deposit box
on a retail licensed premises for the collection and forwarding of
sweepstakes entry forms.
(7) A licensee that is not an authorized licensee shall not
directly or indirectly underwrite, share in, or contribute to, the
costs of a sweepstakes authorized by this section or serve as the
agent of an authorized licensee to collect or forward entries or to
furnish any prize to a sweepstakes winner.
(8) (A) Advertising of a sweepstakes shall comply with the signage
and advertising restrictions contained in this chapter, Chapter 15
(commencing with Section 25500), and any regulations issued by the
department.
(B) Advertising or promotion of a sweepstakes shall not identify
or refer to a retail licensee.
(C) A retail licensee shall only advertise or promote a
sweepstakes authorized by this section in the manner specified in
subparagraph (A).
(D) Advertising or promotion of a sweepstakes shall only be
conducted on the premises of a retail licensee when such
advertisement or promotion involves a minimum of three unaffiliated
retail licensees. For purposes of this subparagraph, "unaffiliated
retail licensees" shall not include a retail licensee owned or
controlled in whole or in part by an authorized licensee or any
officer, director, or agent of that licensee.
(E) Placement of signs or other advertising of a sweepstakes in a
licensed retail premises shall not be conditioned upon the following:
(i) The placement of a product within the licensed premises or the
restriction, in any way, of the purchase of a product by a licensee,
the removal of a product from the sales area of a licensed premises,
or the resetting or repositioning of a product within the licensed
premises.
(ii) The purchase or sale of a product produced, imported,
distributed, represented, or promoted by an authorized licensee or
its agent.
(F) An agreement, whether written or oral, entered into, by, and
between a retail licensee and an authorized licensee that precludes
the advertisement or promotion of a sweepstakes on the premises of
the retail licensee by another authorized licensee or its agent is
prohibited.
(9) Sweepstakes prizes shall not be awarded to an authorized
licensee, retail licensee, or wholesale licensee or agent, officer,
employee, or family member of an authorized licensee, retail
licensee, or wholesale licensee. For the purposes of this paragraph,
"family member" means a spouse, parent, sibling, child, son-in-law,
daughter-in-law, and lineal descendants, including those by adoption.
An authorized licensee shall maintain all records pertaining to a
sweepstakes for three years following the completion of a
sweepstakes.
(b) For purposes of this section:
(1) (A) "Authorized licensee" means a winegrower, beer and wine
importer general, beer manufacturer, out-of-state beer manufacturer
certificate holder, distilled spirits manufacturer, distilled spirits
manufacturer's agent, distilled spirits importer general, distilled
spirits general rectifier, rectifier, out-of-state distilled spirits
shipper's certificate holder, brandy manufacturer, and brandy
importer. An authorized licensee may conduct, sponsor, or participate
in a sweepstakes pursuant to this section regardless of whether the
licensee holds an additional license not included in this paragraph.
(B) An "authorized licensee" shall not include a beer and wine
wholesaler, a beer and wine importer general, or distilled spirits
importer general that only holds a wholesaler's or retailer's license
as an additional license.
(2) "Sweepstakes" means a procedure, activity, or event for the
distribution of anything of value by lot, chance, or random selection
where the odds for winning a prize are equal for each entry.
(c) Nothing in this section authorizes conducting sweepstakes
where consumers are entitled to an allotment or accumulation of
points based on purchases made over a period of time that can be
redeemed for prizes, things of value, or additional sweepstakes
entries.
(d) A prize awarded for a sweepstakes conducted pursuant to this
section shall not be subject to the monetary limitation imposed by
Section 25600 or a regulation of the department.
(e) An authorized licensee that violates this section, in addition
to any other penalty imposed by this division, may be prohibited by
the department from offering a sweepstakes to California residents
for a period of 12 months.
SEC. 9. Section 55.56 of the Civil Code is amended to read:
55.56. (a) Statutory damages under either subdivision (a) of
Section 52 or subdivision (a) of Section 54.3 may be recovered in a
construction-related accessibility claim against a place of public
accommodation only if a violation or violations of one or more
construction-related accessibility standards denied the plaintiff
full and equal access to the place of public accommodation on a
particular occasion.
(b) A plaintiff is denied full and equal access only if the
plaintiff personally encountered the violation on a particular
occasion, or the plaintiff was deterred from accessing a place of
public accommodation on a particular occasion.
(c) A violation personally encountered by a plaintiff may be
sufficient to cause a denial of full and equal access if the
plaintiff experienced difficulty, discomfort, or embarrassment
because of the violation.
(d) A plaintiff demonstrates that he or she was deterred from
accessing a place of public accommodation on a particular occasion
only if both of the following apply:
(1) The plaintiff had actual knowledge of a violation or
violations that prevented or reasonably dissuaded the plaintiff from
accessing a place of public accommodation that the plaintiff intended
to use on a particular occasion.
(2) The violation or violations would have actually denied the
plaintiff full and equal access if the plaintiff had accessed the
place of public accommodation on that particular occasion.
(e) Statutory damages may be assessed pursuant to subdivision (a)
based on each particular occasion that the plaintiff was denied full
and equal access, and not upon the number of violations of
construction-related accessibility standards identified at the place
of public accommodation where the denial of full and equal access
occurred. If the place of public accommodation consists of distinct
facilities that offer distinct services, statutory damages may be
assessed based on each denial of full and equal access to the
distinct facility, and not upon the number of violations of
construction-related accessibility standards identified at the place
of public accommodation where the denial of full and equal access
occurred.
(f) (1) Notwithstanding any other law, a defendant's liability for
statutory damages in a construction-related accessibility claim
against a place of public accommodation is reduced to a minimum of
one thousand dollars ($1,000) for each offense if the defendant
demonstrates that it has corrected all construction-related
violations that are the basis of a claim within 60 days of being
served with the complaint, and the defendant demonstrates any of the
following:
(A) The structure or area of the alleged violation was determined
to be "CASp-inspected" or "meets applicable standards" and, to the
best of the defendant's knowledge, there were no modifications or
alterations that impacted compliance with construction-related
accessibility standards with respect to the plaintiff's claim that
were completed or commenced between the date of that determination
and the particular occasion on which the plaintiff was allegedly
denied full and equal access.
(B) The structure or area of the alleged violation was the subject
of an inspection report indicating "CASp determination pending" or
"Inspected by a CASp," and the defendant has either implemented
reasonable measures to correct the alleged violation before the
particular occasion on which the plaintiff was allegedly denied full
and equal access, or the defendant was in the process of correcting
the alleged violation within a reasonable time and manner before the
particular occasion on which the plaintiff was allegedly denied full
and equal access.
(C) For a claim alleging a construction-related accessibility
violation filed before January 1, 2018, the structure or area of the
alleged violation was a new construction or an improvement that was
approved by, and passed inspection by, the local building department
permit and inspection process on or after January 1, 2008, and before
January 1, 2016, and, to the best of the defendant's knowledge,
there were no modifications or alterations that impacted compliance
with respect to the plaintiff's claim that were completed or
commenced between the completion date of the new construction or
improvement and the particular occasion on which the plaintiff was
allegedly denied full and equal access.
(D) The structure or area of the alleged violation was new
construction or an improvement that was approved by, and passed
inspection by, a local building department official who is a
certified access specialist, and, to the best of the defendant's
knowledge, there were no modifications or alterations that affected
compliance with respect to the plaintiff's claim that were completed
or commenced between the completion date of the new construction or
improvement and the particular occasion on which the plaintiff was
allegedly denied full and equal access.
(2) Notwithstanding any other law, a defendant's liability for
statutory damages in a construction-related accessibility claim
against a place of public accommodation is reduced to a minimum of
two thousand dollars ($2,000) for each offense if the defendant
demonstrates both of the following:
(A) The defendant has corrected all construction-related
violations that are the basis of a claim within 30 days of being
served with the complaint.
(B) The defendant is a small business that has employed 25 or
fewer employees on average over the past three years, or for the
years it has been in existence if less than three years, as evidenced
by wage report forms filed with the Economic Development Department,
and has average annual gross receipts of less than three million
five hundred thousand dollars ($3,500,000) over the previous three
years, or for the years it has been in existence if less than three
years, as evidenced by federal or state income tax returns. The
average annual gross receipts dollar amount shall be adjusted
biannually by the Department of General Services for changes in the
California Consumer Price Index for All Urban Consumers, as compiled
by the Department of Industrial Relations. The Department of General
Services shall post that adjusted amount on its Internet Web site.
(3) This subdivision shall not be applicable to intentional
violations.
(4) Nothing in this subdivision affects the awarding of actual
damages, or affects the awarding of treble actual damages.
(5) This subdivision shall apply only to claims filed on or after
the effective date of Senate Bill 1186 of the 2011-12 Regular Session
of the Legislature. Nothing in this subdivision is intended to
affect a complaint filed before that date.
(g) This section does not alter the applicable law for the
awarding of injunctive or other equitable relief for a violation or
violations of one or more construction-related accessibility
standards, nor alter any legal obligation of a party to mitigate
damages.
(h) In assessing liability under subdivision (d), in an action
alleging multiple claims for the same construction-related
accessibility violation on different particular occasions, the court
shall consider the reasonableness of the plaintiff's conduct in light
of the plaintiff's obligation, if any, to mitigate damages.
SEC. 10. Section 56.16 of the Civil Code is amended to read:
56.16. For disclosures not addressed by Section 56.1007, unless
there is a specific written request by the patient to the contrary,
nothing in this part shall be construed to prevent a general acute
care hospital, as defined in subdivision (a) of Section 1250 of the
Health and Safety Code, upon an inquiry concerning a specific
patient, from releasing at its discretion any of the following
information: the patient's name, address, age, and sex; a general
description of the reason for treatment (whether an injury, a burn,
poisoning, or some unrelated condition); the general nature of the
injury, burn, poisoning, or other condition; the general condition of
the patient; and any information that is not medical information as
defined in subdivision (g) of Section 56.05.
SEC. 11. Section 1195 of the Civil Code is amended to read:
1195. (a) Proof of the execution of an instrument, when not
acknowledged, may be made by any of the following:
(1) By the party executing it, or either of them.
(2) By a subscribing witness.
(3) By other witnesses, in cases mentioned in Section 1198.
(b) (1) Proof of the execution of a power of attorney, grant
deed, mortgage, deed of trust, quitclaim deed, security agreement, or
any instrument affecting real property is not permitted pursuant to
Section 27287 of the Government Code, though proof of the execution
of a trustee's deed or deed of reconveyance is permitted.
(2) Proof of the execution for any instrument requiring a notary
public to obtain a thumbprint from the party signing the document in
the notary public's journal is not permitted.
(c) Any certificate for proof of execution taken within this state
may be in the following form, although the use of other,
substantially similar forms is not precluded:
State of California )
ss.
County of __________ )
On ____ (date), before me, the undersigned, a notary public for
the state, personally appeared ____ (name of subscribing witness),
proved to me to be the person whose name is subscribed to the within
instrument, as a witness thereto, on the oath of ____ (name of
credible witness), a credible witness who is known to me and provided
a satisfactory identifying document. ____ (name of subscribing
witness), being by me duly sworn, said that he/she was present and
saw/heard ____ (name s] of principals]), the same person(s)
described in and whose name(s) is/are subscribed to the within or
attached instrument in his/her/their authorized capacity(ies) as (a)
party(ies) thereto, execute or acknowledge executing the same, and
that said affiant subscribed his/her name to the within or attached
instrument as a witness at the request of ____ (names] of
principals]).
WITNESS my hand and official seal.
Signature____________________ (Notary public seal)
SEC. 12. Section 1950.5 of the Civil Code is amended to read:
1950.5. (a) This section applies to security for a rental
agreement for residential property that is used as the dwelling of
the tenant.
(b) As used in this section, "security" means any payment, fee,
deposit, or charge, including, but not limited to, any payment, fee,
deposit, or charge, except as provided in Section 1950.6, that is
imposed at the beginning of the tenancy to be used to reimburse the
landlord for costs associated with processing a new tenant or that is
imposed as an advance payment of rent, used or to be used for any
purpose, including, but not limited to, any of the following:
(1) The compensation of a landlord for a tenant's default in the
payment of rent.
(2) The repair of damages to the premises, exclusive of ordinary
wear and tear, caused by the tenant or by a guest or licensee of the
tenant.
(3) The cleaning of the premises upon termination of the tenancy
necessary to return the unit to the same level of cleanliness it was
in at the inception of the tenancy. The amendments to this paragraph
enacted by the act adding this sentence shall apply only to tenancies
for which the tenant's right to occupy begins after January 1, 2003.
(4) To remedy future defaults by the tenant in any obligation
under the rental agreement to restore, replace, or return personal
property or appurtenances, exclusive of ordinary wear and tear, if
the security deposit is authorized to be applied thereto by the
rental agreement.
(c) A landlord may not demand or receive security, however
denominated, in an amount or value in excess of an amount equal to
two months' rent, in the case of unfurnished residential property,
and an amount equal to three months' rent, in the case of furnished
residential property, in addition to any rent for the first month
paid on or before initial occupancy.
This subdivision does not prohibit an advance payment of not less
than six months' rent if the term of the lease is six months or
longer.
This subdivision does not preclude a landlord and a tenant from
entering into a mutual agreement for the landlord, at the request of
the tenant and for a specified fee or charge, to make structural,
decorative, furnishing, or other similar alterations, if the
alterations are other than cleaning or repairing for which the
landlord may charge the previous tenant as provided by subdivision
(e).
(d) Any security shall be held by the landlord for the tenant who
is party to the lease or agreement. The claim of a tenant to the
security shall be prior to the claim of any creditor of the landlord.
(e) The landlord may claim of the security only those amounts as
are reasonably necessary for the purposes specified in subdivision
(b). The landlord may not assert a claim against the tenant or the
security for damages to the premises or any defective conditions that
preexisted the tenancy, for ordinary wear and tear or the effects
thereof, whether the wear and tear preexisted the tenancy or occurred
during the tenancy, or for the cumulative effects of ordinary wear
and tear occurring during any one or more tenancies.
(f) (1) Within a reasonable time after notification of either
party's intention to terminate the tenancy, or before the end of the
lease term, the landlord shall notify the tenant in writing of his or
her option to request an initial inspection and of his or her right
to be present at the inspection. The requirements of this subdivision
do not apply when the tenancy is terminated pursuant to subdivision
(2), (3), or (4) of Section 1161 of the Code of Civil Procedure. At a
reasonable time, but no earlier than two weeks before the
termination or the end of lease date, the landlord, or an agent of
the landlord, shall, upon the request of the tenant, make an initial
inspection of the premises prior to any final inspection the landlord
makes after the tenant has vacated the premises. The purpose of the
initial inspection shall be to allow the tenant an opportunity to
remedy identified deficiencies, in a manner consistent with the
rights and obligations of the parties under the rental agreement, in
order to avoid deductions from the security. If a tenant chooses not
to request an initial inspection, the duties of the landlord under
this subdivision are discharged. If an inspection is requested, the
parties shall attempt to schedule the inspection at a mutually
acceptable date and time. The landlord shall give at least 48 hours'
prior written notice of the date and time of the inspection if either
a mutual time is agreed upon, or if a mutually agreed time cannot be
scheduled but the tenant still wishes an inspection. The tenant and
landlord may agree to forgo the 48-hour prior written notice by both
signing a written waiver. The landlord shall proceed with the
inspection whether the tenant is present or not, unless the tenant
previously withdrew his or her request for the inspection. Written
notice by the landlord shall contain, in substantially the same form,
the following:
"State law permits former tenants to reclaim abandoned personal
property left at the former address of the tenant, subject to certain
conditions. You may or may not be able to reclaim property without
incurring additional costs, depending on the cost of storing the
property and the length of time before it is reclaimed. In general,
these costs will be lower the sooner you contact your former landlord
after being notified that property belonging to you was left behind
after you moved out."
(2) Based on the inspection, the landlord shall give the tenant an
itemized statement specifying repairs or cleanings that are proposed
to be the basis of any deductions from the security the landlord
intends to make pursuant to paragraphs (1) to (4), inclusive, of
subdivision (b). This statement shall also include the texts of
paragraphs (1) to (4), inclusive, of subdivision (b). The statement
shall be given to the tenant, if the tenant is present for the
inspection, or shall be left inside the premises.
(3) The tenant shall have the opportunity during the period
following the initial inspection until termination of the tenancy to
remedy identified deficiencies, in a manner consistent with the
rights and obligations of the parties under the rental agreement, in
order to avoid deductions from the security.
(4) Nothing in this subdivision shall prevent a landlord from
using the security for deductions itemized in the statement provided
for in paragraph (2) that were not cured by the tenant so long as the
deductions are for damages authorized by this section.
(5) Nothing in this subdivision shall prevent a landlord from
using the security for any purpose specified in paragraphs (1) to
(4), inclusive, of subdivision (b) that occurs between completion of
the initial inspection and termination of the tenancy or was not
identified during the initial inspection due to the presence of a
tenant's possessions.
(g) (1) No later than 21 calendar days after the tenant has
vacated the premises, but not earlier than the time that either the
landlord or the tenant provides a notice to terminate the tenancy
under Section 1946 or 1946.1, Section 1161 of the Code of Civil
Procedure, or not earlier than 60 calendar days prior to the
expiration of a fixed-term lease, the landlord shall furnish the
tenant, by personal delivery or by first-class mail, postage prepaid,
a copy of an itemized statement indicating the basis for, and the
amount of, any security received and the disposition of the security,
and shall return any remaining portion of the security to the
tenant. After either the landlord or the tenant provides notice to
terminate the tenancy, the landlord and tenant may mutually agree to
have the landlord deposit any remaining portion of the security
deposit electronically to a bank account or other financial
institution designated by the tenant. After either the landlord or
the tenant provides notice to terminate the tenancy, the landlord and
the tenant may also agree to have the landlord provide a copy of the
itemized statement along with the copies required by paragraph (2)
to an email account provided by the tenant.
(2) Along with the itemized statement, the landlord shall also
include copies of documents showing charges incurred and deducted by
the landlord to repair or clean the premises, as follows:
(A) If the landlord or landlord's employee did the work, the
itemized statement shall reasonably describe the work performed. The
itemized statement shall include the time spent and the reasonable
hourly rate charged.
(B) If the landlord or landlord's employee did not do the work,
the landlord shall provide the tenant a copy of the bill, invoice, or
receipt supplied by the person or entity performing the work. The
itemized statement shall provide the tenant with the name, address,
and telephone number of the person or entity, if the bill, invoice,
or receipt does not include that information.
(C) If a deduction is made for materials or supplies, the landlord
shall provide a copy of the bill, invoice, or receipt. If a
particular material or supply item is purchased by the landlord on an
ongoing basis, the landlord may document the cost of the item by
providing a copy of a bill, invoice, receipt, vendor price list, or
other vendor document that reasonably documents the cost of the item
used in the repair or cleaning of the unit.
(3) If a repair to be done by the landlord or the landlord's
employee cannot reasonably be completed within 21 calendar days after
the tenant has vacated the premises, or if the documents from a
person or entity providing services, materials, or supplies are not
in the landlord's possession within 21 calendar days after the tenant
has vacated the premises, the landlord may deduct the amount of a
good faith estimate of the charges that will be incurred and provide
that estimate with the itemized statement. If the reason for the
estimate is because the documents from a person or entity providing
services, materials, or supplies are not in the landlord's
possession, the itemized statement shall include the name, address,
and telephone number of the person or entity. Within 14 calendar days
of completing the repair or receiving the documentation, the
landlord shall complete the requirements in paragraphs (1) and (2) in
the manner specified.
(4) The landlord need not comply with paragraph (2) or (3) if
either of the following applies:
(A) The deductions for repairs and cleaning together do not exceed
one hundred twenty-five dollars ($125).
(B) The tenant waived the rights specified in paragraphs (2) and
(3). The waiver shall only be effective if it is signed by the tenant
at the same time or after a notice to terminate a tenancy under
Section 1946 or 1946.1 has been given, a notice under Section 1161 of
the Code of Civil Procedure has been given, or no earlier than 60
calendar days prior to the expiration of a fixed-term lease. The
waiver shall substantially include the text of paragraph (2).
(5) Notwithstanding paragraph (4), the landlord shall comply with
paragraphs (2) and (3) when a tenant makes a request for
documentation within 14 calendar days after receiving the itemized
statement specified in paragraph (1). The landlord shall comply
within 14 calendar days after receiving the request from the tenant.
(6) Any mailings to the tenant pursuant to this subdivision shall
be sent to the address provided by the tenant. If the tenant does not
provide an address, mailings pursuant to this subdivision shall be
sent to the unit that has been vacated.
(h) Upon termination of the landlord's interest in the premises,
whether by sale, assignment, death, appointment of receiver, or
otherwise, the landlord or the landlord's agent shall, within a
reasonable time, do one of the following acts, either of which shall
relieve the landlord of further liability
with respect to the security held:
(1) Transfer the portion of the security remaining after any
lawful deductions made under subdivision (e) to the landlord's
successor in interest. The landlord shall thereafter notify the
tenant by personal delivery or by first-class mail, postage prepaid,
of the transfer, of any claims made against the security, of the
amount of the security deposited, and of the names of the successors
in interest, their addresses, and their telephone numbers. If the
notice to the tenant is made by personal delivery, the tenant shall
acknowledge receipt of the notice and sign his or her name on the
landlord's copy of the notice.
(2) Return the portion of the security remaining after any lawful
deductions made under subdivision (e) to the tenant, together with an
accounting as provided in subdivision (g).
(i) Prior to the voluntary transfer of a landlord's interest in
the premises, the landlord shall deliver to the landlord's successor
in interest a written statement indicating the following:
(1) The security remaining after any lawful deductions are made.
(2) An itemization of any lawful deductions from any security
received.
(3) His or her election under paragraph (1) or (2) of subdivision
(h).
This subdivision does not affect the validity of title to the real
property transferred in violation of this subdivision.
(j) (1) In the event of noncompliance with subdivision (h), the
landlord's successors in interest shall be jointly and severally
liable with the landlord for repayment of the security, or that
portion thereof to which the tenant is entitled, when and as provided
in subdivisions (e) and (g). A successor in interest of a landlord
may not require the tenant to post any security to replace that
amount not transferred to the tenant or successors in interest as
provided in subdivision (h), unless and until the successor in
interest first makes restitution of the initial security as provided
in paragraph (2) of subdivision (h) or provides the tenant with an
accounting as provided in subdivision (g).
(2) This subdivision does not preclude a successor in interest
from recovering from the tenant compensatory damages that are in
excess of the security received from the landlord previously paid by
the tenant to the landlord.
(3) Notwithstanding this subdivision, if, upon inquiry and
reasonable investigation, a landlord's successor in interest has a
good faith belief that the lawfully remaining security deposit is
transferred to him or her or returned to the tenant pursuant to
subdivision (h), he or she is not liable for damages as provided in
subdivision ( l ), or any security not transferred
pursuant to subdivision (h).
(k) Upon receipt of any portion of the security under paragraph
(1) of subdivision (h), the landlord's successors in interest shall
have all of the rights and obligations of a landlord holding the
security with respect to the security.
( l ) The bad faith claim or retention by a landlord or
the landlord's successors in interest of the security or any portion
thereof in violation of this section, or the bad faith demand of
replacement security in violation of subdivision (j), may subject the
landlord or the landlord's successors in interest to statutory
damages of up to twice the amount of the security, in addition to
actual damages. The court may award damages for bad faith whenever
the facts warrant that award, regardless of whether the injured party
has specifically requested relief. In an action under this section,
the landlord or the landlord's successors in interest shall have the
burden of proof as to the reasonableness of the amounts claimed or
the authority pursuant to this section to demand additional security
deposits.
(m) No lease or rental agreement may contain a provision
characterizing any security as "nonrefundable."
(n) An action under this section may be maintained in small claims
court if the damages claimed, whether actual, statutory, or both,
are within the jurisdictional amount allowed by Section 116.220 or
116.221 of the Code of Civil Procedure.
(o) Proof of the existence of and the amount of a security deposit
may be established by any credible evidence, including, but not
limited to, a canceled check, a receipt, a lease indicating the
requirement of a deposit as well as the amount, prior consistent
statements or actions of the landlord or tenant, or a statement under
penalty of perjury that satisfies the credibility requirements set
forth in Section 780 of the Evidence Code.
(p) The amendments to this section made during the 1985 portion of
the 1985-86 Regular Session of the Legislature that are set forth in
subdivision (e) are declaratory of existing law.
(q) The amendments to this section made during the 2003 portion of
the 2003-04 Regular Session of the Legislature that are set forth in
paragraph (1) of subdivision (f) are declaratory of existing law.
SEC. 13. Section 2877 of the Civil Code is amended to read:
2877. Contracts of mortgage, pledge, bottomry, or respondentia
are subject to all of the provisions of this chapter.
SEC. 14. Section 2923.55 of the Civil Code, as added by Section 6
of Chapter 86 of the Statutes of 2012, is amended to read:
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. 15. Section 2923.55 of the Civil Code, as added by Section 6
of Chapter 87 of the Statutes of 2012, is amended to read:
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. 16. Section 2924.8 of the Civil Code is amended to read:
2924.8. (a) (1) Upon posting a notice of sale pursuant to Section
2924f, a trustee or authorized agent shall also post the following
notice, in the manner required for posting the notice of sale on the
property to be sold, and a mortgagee, trustee, beneficiary, or
authorized agent, concurrently with the mailing of the notice of sale
pursuant to Section 2924b, shall send by first-class mail in an
envelope addressed to the "Resident of property subject to
foreclosure sale" the following notice in English and the languages
described in Section 1632:
Foreclosure process has begun on this property, which may affect
your right to continue to live in this property. Twenty days or more
after the date of this notice, this property may be sold at
foreclosure. If you are renting this property, the new property owner
may either give you a new lease or rental agreement or provide you
with a 90-day eviction notice. You may have a right to stay in your
home for longer than 90 days. If you have a fixed-term lease, the new
owner must honor the lease unless the new owner will occupy the
property as a primary residence or in other limited circumstances.
Also, in some cases and in some cities with a "just cause for
eviction" law, you may not have to move at all. All rights and
obligations under your lease or tenancy, including your obligation to
pay rent, will continue after the foreclosure sale. You may wish to
contact a lawyer or your local legal aid office or housing counseling
agency to discuss any rights you may have.
(2) The amendments to the notice in this subdivision made by the
act that added this paragraph shall become operative on March 1,
2013, or 60 days following posting of a dated notice incorporating
those amendments on the Department of Consumer Affairs Internet Web
site, whichever date is later.
(b) It is an infraction to tear down the notice described in
subdivision (a) within 72 hours of posting. Violators shall be
subject to a fine of one hundred dollars ($100).
(c) The Department of Consumer Affairs shall make available
translations of the notice described in subdivision (a) which may be
used by a mortgagee, trustee, beneficiary, or authorized agent to
satisfy the requirements of this section.
(d) This section shall only apply to loans secured by residential
real property, and if the billing address for the mortgage note is
different than the property address.
(e) This section shall remain in effect only until December 31,
2019, and as of that date is repealed, unless a later enacted
statute, that is enacted before December 31, 2019, deletes or extends
that date.
SEC. 17. Section 2924.19 of the Civil Code, as added by Section 22
of Chapter 86 of the Statutes of 2012, is amended to read:
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 Corporations, the Department of
Financial Institutions, or the Department 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. 18. Section 2924.19 of the Civil Code, as added by Section 22
of Chapter 87 of the Statutes of 2012, is amended to read:
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 Corporations, the Department of
Financial Institutions, or the Department
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. 19. Section 2950 of the Civil Code is amended to read:
2950. When a grant of real property purports to be an absolute
conveyance, but is intended to be defeasible on the performance of
certain conditions, such grant is not defeated or affected as against
any person other than the grantee or his or her heirs or
devisees, or persons having actual notice, unless an instrument of
defeasance, duly executed and acknowledged, shall have been recorded
in the office of the county recorder of the county where the property
is situated.
SEC. 20. Section 3509 of the Civil Code is amended to read:
3509. The maxims of jurisprudence hereinafter set forth are
intended not to qualify any of the foregoing provisions of this code,
but to aid in their just application.
SEC. 21. Section 116.940 of the Code of Civil Procedure is amended
to read:
116.940. (a) Except as otherwise provided in this section or in
rules adopted by the Judicial Council, which are consistent with the
requirements of this section, the characteristics of the small claims
advisory service required by Section 116.260 shall be determined by
each county, or by the superior court in a county where the small
claims advisory service is administered by the court, in accordance
with local needs and conditions.
(b) Each advisory service shall provide the following services:
(1) Individual personal advisory services, in person or by
telephone, and by any other means reasonably calculated to provide
timely and appropriate assistance. The topics covered by individual
personal advisory services shall include, but not be limited to,
preparation of small claims court filings, procedures, including
procedures related to the conduct of the hearing, and information on
the collection of small claims court judgments.
(2) Recorded telephone messages may be used to supplement the
individual personal advisory services, but shall not be the sole
means of providing advice available in the county.
(3) Adjacent counties, superior courts in adjacent counties, or
any combination thereof, may provide advisory services jointly.
(c) In a county in which the number of small claims actions filed
annually is 1,000 or less as averaged over the immediately preceding
two fiscal years, the county or the superior court may elect to
exempt itself from the requirements set forth in subdivision (b). If
the small claims advisory service is administered by the county, this
exemption shall be formally noticed through the adoption of a
resolution by the board of supervisors. If the small claims advisory
service is administered by the superior court, this exemption shall
be formally noticed through adoption of a local rule. If a county or
court so exempts itself, the county or court shall nevertheless
provide the following minimum advisory services in accordance with
rules adopted by the Judicial Council:
(1) Recorded telephone messages providing general information
relating to small claims actions filed in the county shall be
provided during regular business hours.
(2) Small claims information booklets shall be provided in the
court clerk's office of each superior court, appropriate county
offices, and in any other location that is convenient to prospective
small claims litigants in the county.
(d) The advisory service shall operate in conjunction and
cooperation with the small claims division, and shall be administered
so as to avoid the existence or appearance of a conflict of interest
between the individuals providing the advisory services and any
party to a particular small claims action or any judicial officer
deciding small claims actions.
(e) Advisers may be volunteers, and shall be members of the State
Bar, law students, paralegals, or persons experienced in resolving
minor disputes, and shall be familiar with small claims court rules
and procedures. Advisers may not appear in court as an advocate for
any party.
(f) Advisers, including independent contractors, other employees,
and volunteers, have the immunity conferred by Section 818.9 of the
Government Code with respect to advice provided as a public service
on behalf of a court or county to small claims litigants and
potential litigants under this chapter.
(g) This section does not preclude a court or county from
contracting with a third party to provide small claims advisory
services as described in this section.
SEC. 22. Section 425.50 of the Code of Civil Procedure is amended
to read:
425.50. (a) An allegation of a construction-related accessibility
claim in a complaint, as defined in subdivision (a) of Section 55.52
of the Civil Code, shall state facts sufficient to allow a
reasonable person to identify the basis of the violation or
violations supporting the claim, including all of the following:
(1) A plain language explanation of the specific access barrier or
barriers the individual encountered, or by which the individual
alleges he or she was deterred, with sufficient information about the
location of the alleged barrier to enable a reasonable person to
identify the access barrier.
(2) The way in which the barrier denied the individual full and
equal use or access, or in which it deterred the individual, on each
particular occasion.
(3) The date or dates of each particular occasion on which the
claimant encountered the specific access barrier, or on which he or
she was deterred.
(b) A complaint alleging a construction-related accessibility
claim, as those terms are defined in subdivision (a) of Section 55.3
of the Civil Code, shall be verified by the plaintiff. A complaint
filed without verification shall be subject to a motion to strike.
(c) Nothing in this section shall limit the right of a plaintiff
to amend a complaint under Section 472, or with leave of the court
under Section 473. However, an amended pleading alleging a
construction-related accessibility claim shall be pled as required by
subdivision (a).
(d) This section shall become operative on January 1, 2013.
SEC. 23. Section 684.115 of the Code of Civil Procedure is amended
to read:
684.115. (a) A financial institution may, and if it has more than
nine branches or offices at which it conducts its business within
this state , shall, designate one or more central
locations for service of legal process within this state. Each
designated location shall be referred to as a "central location." If
a financial institution elects or is required to designate a central
location for service of legal process, the financial institution
shall file a notice of its designation with the Department of
Financial Institutions, which filing shall be effective upon filing
and shall contain all of the following:
(1) The physical address of the central location.
(2) The days and hours during which service will be accepted at
the central location.
(3) If the central location will not accept service of legal
process directed at deposit accounts maintained or property held at
all of the financial institution's branches or offices within this
state, or if the service accepted at the central location will not
apply to safe-deposit boxes or other property of the judgment debtor
held by or for the judgment debtor, the filing shall also contain
sufficient information to permit a determination of the limitation or
limitations, including, in the case of a limitation applicable to
certain branches or offices, an identification of the branches or
offices as to which service at the central location will not apply
and the nature of the limitation applicable to those branches or
offices. If the limitation will apply to all branches or offices of
the financial institution within this state, the filing may indicate
the nature of the limitation and that it applies to all branches or
offices, in lieu of an identification of branches or offices as to
which the limitation applies. To the extent that a financial
institution's designation of a central location for service of legal
process covers the process directed at deposit accounts, safe-deposit
boxes, or other property of the judgment debtor held by or for the
judgment debtor at a particular branch or office located within this
state, the branch or office shall be a branch or office covered by
central process.
(b) Should a financial institution required to designate a central
location fail to do so, each branch of that institution located in
this state shall be deemed to be a central location at which service
of legal process may be made, and all of the institution's branches
or offices located within this state shall be deemed to be a branch
or office covered by central process.
(c) Subject to any limitation noted pursuant to paragraph (3) of
subdivision (a), service of legal process at a central location of a
financial institution shall be effective against all deposit accounts
and all property held for safekeeping, as collateral for an
obligation owed to the financial institution or in a safe-deposit box
if the same is described in the legal process and held by the
financial institution at any branch or office covered by central
process and located within this state. However, while service of
legal process at the central location will establish a lien on all
property, if any property other than deposit accounts is physically
held by the financial institution in a county other than that in
which the designated central location is located, the financial
institution shall include in its garnishee's memorandum the location
or locations of the property, and the judgment creditor shall obtain
a writ of execution covering the property and directed to the levying
officer in that county to accomplish the turnover of the property
and shall forward the writ and related required documentation to the
levying officer in the county in which the property is held.
(d) A financial institution may modify or revoke any designation
made pursuant to subdivision (a) by filing the modification or
revocation with the Department of Financial Institutions. The
modification or revocation shall be effective when the Department of
Financial Institutions' records have been updated to reflect the
modification or revocation, provided that the judgment creditor may
rely upon the superseded designation during the 30-day period
following the effective date of the revocation or modification.
(e) (1) The Department of Financial Institutions shall update its
online records to reflect a filing by a financial institution
pursuant to subdivision (a) or a modification or revocation filed by
a financial institution pursuant to subdivision (d) within 10
business days following the filing by the financial institution. The
Department of Financial Institutions' Internet Web site shall reflect
the date its online records for each financial institution have most
recently been updated.
(2) The Department of Financial Institutions shall provide any
person requesting it with a copy of each current filing made by a
financial institution pursuant to subdivision (a). The Department of
Financial Institutions may satisfy its obligation under this
subdivision by posting all current designations of a financial
institution, or the pertinent information therein, on an Internet Web
site available to the public without charge, and if that information
is made available, the Department of Financial Institutions may
impose a reasonable fee for furnishing that information in any other
manner.
(f) As to deposit accounts maintained or property held for
safekeeping, as collateral for an obligation owed to the financial
institution or in a safe-deposit box at a branch or office covered by
central process, service of legal process at a location other than a
central location designated by the financial institution shall not
be effective unless the financial institution, in its absolute
discretion, elects to act upon the process at that location as if it
were effective. In the absence of an election, the financial
institution may respond to the legal process by mailing or delivery
of the garnishee's memorandum to the levying officer within the time
otherwise provided therefor, with a statement on the garnishee's
memorandum that the legal process was not properly served at the
financial institution's designated location for receiving legal
process, and, therefore, was not processed, and the address at which
the financial institution is to receive legal process.
(g) If any legal process is served at a central location of a
financial institution pursuant to this section, all related papers to
be served on the financial institution shall be served at that
location, unless agreed to the contrary between the serving party and
the financial institution.
(h) This subdivision shall apply whenever a financial institution
operates within this state at least one branch or office in addition
to its head office or main office, as applicable, or a financial
institution headquartered in another state operates more than one
branch or office within this state, and no central location has been
designated or deemed to have been designated by the institution for
service of legal process relating to deposit accounts maintained at
the financial institution's head office or main office, as
applicable, and branches located within this state. If a judgment
creditor reasonably believes that, pursuant to Section 700.140 and,
if applicable, Section 700.160, any act of enforcement would be
effective against a specific deposit account maintained at a
financial institution described in this subdivision, the judgment
creditor may file with the financial institution a written request
that the financial institution identify the branch or office within
this state at which a specified account might be maintained by the
financial institution. The written request shall contain the
following statements or information:
(1) The name of the person reasonably believed by the judgment
creditor to be a person in whose name the specified deposit account
stands.
(2) If the name of the person reasonably believed by the judgment
creditor to be a person in whose name the specified deposit account
stands is not a judgment debtor identified in the writ of execution,
a statement that a person reasonably believed by the judgment
creditor to be a person in whose name the specified deposit account
stands will be appropriately identified in the legal process to be
served pursuant to Section 700.160, including any supplementary
papers, such as a court order or affidavit if the same will be
required by Section 700.160.
(3) The specific identifying number of the account reasonably
believed to be maintained with the financial institution and standing
in the name of the judgment debtor or other person.
(4) The address of the requesting party.
(5) An affidavit by the judgment creditor or the judgment creditor'
s counsel stating substantially the following:
I hereby declare that this deposit account location request
complies with Section 684.115 of the Code of Civil Procedure, that
the account or accounts of the judgment debtor or other person or
persons appropriately identified in the legal process and specified
herein are subject to a valid writ of execution, or court order, that
I have a reasonable belief, formed after an inquiry reasonable under
the circumstances, that the financial institution receiving this
deposit account location request has an account standing in the name
of the judgment debtor or other person or persons appropriately
identified in the legal process, and that information pertaining to
the location of the account will assist the judgment creditor in
enforcing the judgment.
(i) The affidavit contemplated by subdivision (h) shall be signed
by the judgment creditor or the judgment creditor's counsel and filed
at the financial institution's head office located within this state
or, if the financial institution's head office is in another state,
at one of its branches or offices within this state. Failure to
comply with the requirements of subdivision (h) and this subdivision
shall be sufficient basis for the financial institution to refuse to
produce the information that would otherwise be required by
subdivision (j).
(j) Within 10 banking days following receipt by a financial
institution at the applicable location specified in subdivision (i)
of a request contemplated by subdivision (h), as to each specific
deposit account identified in the request contemplated by subdivision
(h), the financial institution shall respond by mailing, by
first-class mail with postage prepaid, to the requester's address as
specified in the request a response indicating the branch or office
location of the financial institution at which the specified deposit
account might be maintained, or, if the specified deposit account, if
it exists, would not be maintained at a specific location, at least
one place within this state at which legal process relating to the
deposit account should or may be served. The response to be furnished
pursuant to this subdivision shall not require the financial
institution to determine whether an account exists or, if an account
does exist, whether it would be reached by the legal process, rather,
the branch or office location shall be determined and reported by
the financial institution based solely upon its determination that an
account with the identifying number provided by the requester would
be maintained at that branch if an account did exist, and the
response shall not contain any information about the name in which
the account stands or any other information concerning the account,
if it exists. If more than one account number is specified in the
request, the financial institution's responses as to some or all of
those account numbers may be combined in a single writing.
(k) A response furnished in good faith by the financial
institution pursuant to subdivision (j) shall not be deemed to
violate the privacy of any person in whose name the specified deposit
account stands nor the privacy of any other person, and shall not
require the consent of the person in whose name the account stands
nor that of any other person.
(l) A financial institution shall not notify the person in whose
name the specified deposit account stands or any other person related
to the specified account of the receipt of any request made pursuant
to subdivision (h) and affecting that person's or persons' accounts
at the financial institution, provided that the financial institution
shall have no liability for its failure to comply with the
provisions of this subdivision.
SEC. 24. Section 1282.4 of the Code of Civil Procedure is amended
to read:
1282.4. (a) A party to the arbitration has the right to be
represented by an attorney at any proceeding or hearing in
arbitration under this title. A waiver of this right may be revoked;
but if a party revokes that waiver, the other party is entitled to a
reasonable continuance for the purpose of procuring an attorney.
(b) Notwithstanding any other law, including Section 6125 of the
Business and Professions Code, an attorney admitted to the bar of any
other state may represent the parties in the course of, or in
connection with, an arbitration proceeding in this state, provided
that the attorney, if not admitted to the State Bar of California,
satisfies all of the following:
(1) He or she timely serves the certificate described in
subdivision (c).
(2) The attorney's appearance is approved in writing on that
certificate by the arbitrator, the arbitrators, or the arbitral
forum.
(3) The certificate bearing approval of the attorney's appearance
is filed with the State Bar of California and served on the parties
as described in this section.
(c) Within a reasonable period of time after the attorney
described in subdivision (b) indicates an intention to appear in the
arbitration, the attorney shall serve a certificate in a form
prescribed by the State Bar of California on the arbitrator,
arbitrators, or arbitral forum, the State Bar of California, and all
other parties and counsel in the arbitration whose addresses are
known to the attorney. The certificate shall state all of the
following:
(1) The case name and number, and the name of the arbitrator,
arbitrators, or arbitral forum assigned to the proceeding in which
the attorney seeks to appear.
(2) The attorney's residence and office address.
(3) The courts before which the attorney has been admitted to
practice and the dates of admission.
(4) That the attorney is currently a member in good standing of,
and eligible to practice law before, the bar of those courts.
(5) That the attorney is not currently on suspension or disbarred
from the practice of law before the bar of any court.
(6) That the attorney is not a resident of the State of
California.
(7) That the attorney is not regularly employed in the State of
California.
(8) That the attorney is not regularly engaged in substantial
business, professional, or other activities in the State of
California.
(9) That the attorney agrees to be subject to the jurisdiction of
the courts of this state with respect to the law of this state
governing the conduct of attorneys to the same extent as a member of
the State Bar of California.
(10) The title of the court and the cause in which the attorney
has filed an application to appear as counsel pro hac vice in this
state or filed a certificate pursuant to this section in the
preceding two years, the date of each application or certificate, and
whether or not it was granted. If the attorney has made repeated
appearances, the certificate shall reflect the special circumstances
that warrant the approval of the attorney's appearance in the
arbitration.
(11) The name, address, and telephone number of the active member
of the State Bar of California who is the attorney of record.
(d) The arbitrator, arbitrators, or arbitral forum may approve the
attorney's appearance if the attorney has complied with subdivision
(c). Failure to timely file and serve the certificate described in
subdivision (c) shall be grounds for disapproval of the appearance
and disqualification from serving as an attorney in the arbitration
in which the certificate was filed. In the absence of special
circumstances, repeated appearances shall be grounds for disapproval
of the appearance and disqualification from serving as an attorney in
the arbitration in which the certificate was filed.
(e) Within a reasonable period of time after the arbitrator,
arbitrators, or arbitral forum approves the certificate, the attorney
shall file the certificate with the State Bar of California and
serve the certificate as described in Section 1013a on all parties
and counsel in the arbitration whose address is known to the
attorney.
(f) An attorney who fails to file or serve the certificate
required by this section or files or serves a certificate containing
false information or who otherwise fails to comply with the standards
of professional conduct required of members of the State Bar of
California shall be subject to the disciplinary jurisdiction of the
State Bar with respect to that certificate or any of his or her acts
occurring in the course of the arbitration.
(g) Notwithstanding any other law, including Section 6125 of the
Business and Professions Code, an attorney who is a member in good
standing of the bar of any state may represent the parties in
connection with rendering legal services in this state in the course
of and in connection with an arbitration pending in another state.
(h) Notwithstanding any other law, including Section 6125 of the
Business and Professions Code, any party to an arbitration arising
under collective bargaining agreements in industries and provisions
subject to either state or federal law may be represented in the
course of, and in connection with, those proceedings by any person,
regardless of whether that person is licensed to practice law in this
state.
(i) Nothing in this section shall apply to Division 4 (commencing
with Section 3201) of the Labor Code.
(j) (1) In enacting the amendments to this section made by
Assembly Bill 2086 of the 1997-98 Regular Session, it is the intent
of the Legislature to respond to the holding in Birbrower v. Superior
Court (1998) 17 Cal.4th 119, as modified at 17 Cal.4th 643a
(hereafter Birbrower), to provide a procedure for nonresident
attorneys who are not licensed in this state to appear in California
arbitration proceedings.
(2) In enacting subdivision (h), it is the intent of the
Legislature to make clear that any party to an arbitration arising
under a collective bargaining agreement governed by the laws of this
state may be represented in the course of and in connection with
those proceedings by any person regardless of whether that person is
licensed to practice law in this state.
(3) Except as otherwise specifically provided in this section, in
enacting the amendments to this section made by Assembly Bill 2086 of
the 1997-98 Regular Session, it is the Legislature's intent that
nothing in this section is intended to expand or restrict the ability
of a party prior to the decision in Birbrower to elect to be
represented by any person in a nonjudicial arbitration proceeding, to
the extent those rights or abilities existed prior to that decision.
To the extent that
Birbrower is interpreted to expand or restrict that right or ability
pursuant to the laws of this state, it is hereby abrogated except as
specifically provided in this section.
(4) In enacting subdivision (i), it is the intent of the
Legislature to make clear that nothing in this section shall affect
those provisions of law governing the right of injured workers to
elect to be represented by any person, regardless of whether that
person is licensed to practice law in this state, as set forth in
Division 4 (commencing with Section 3200) of the Labor Code.
SEC. 25. Section 7237 of the Corporations Code is amended to read:
7237. (a) For purposes of this section, "agent" means a person
who is or was a director, officer, employee , or other
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee , or agent of
another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise, or was a director, officer, employee
, or agent of a foreign or domestic corporation that was a
predecessor corporation of the corporation or of another enterprise
at the request of the predecessor corporation; "proceeding" means any
threatened, pending , or completed action or proceeding,
whether civil, criminal, administrative , or
investigative; and "expenses" includes , without
limitation , attorneys' fees and any expenses of
establishing a right to indemnification under subdivision (d) or
paragraph (3) of subdivision (e).
(b) A corporation shall have power to indemnify a person who was
or is a party or is threatened to be made a party to any proceeding
(other than an action by or in the right of the corporation to
procure a judgment in its favor, an action brought under Section 5233
of Part 2 (commencing with Section 5110) made applicable pursuant to
Section 7238, or an action brought by the Attorney General or a
person granted relator status by the Attorney General for any breach
of duty relating to assets held in charitable trust) by reason of the
fact that the person is or was an agent of the corporation, against
expenses, judgments, fines, settlements , and other
amounts actually and reasonably incurred in connection with the
proceeding if the person acted in good faith and in a manner the
person reasonably believed to be in the best interests of the
corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of the person was unlawful.
The termination of any proceeding by judgment, order, settlement,
conviction , or upon a plea of nolo contendere or its
equivalent shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which the person
reasonably believed to be in the best interests of the corporation or
that the person had reasonable cause to believe that the person's
conduct was unlawful.
(c) A corporation shall have power to indemnify a person who was
or is a party or is threatened to be made a party to any threatened,
pending , or completed action by or in the right of the
corporation, or brought under Section 5233 of Part 2 (commencing with
Section 5110) made applicable pursuant to Section 7238, or brought
by the Attorney General or a person granted relator status by the
Attorney General for breach of duty relating to assets held in
charitable trust, to procure a judgment in its favor by reason of the
fact that the person is or was an agent of the corporation, against
expenses actually and reasonably incurred by the person in connection
with the defense or settlement of the action if the person acted in
good faith, in a manner the person believed to be in the best
interests of the corporation and with such care, including reasonable
inquiry, as an ordinarily prudent person in a like position would
use under similar circumstances. No indemnification shall be made
under this subdivision:
(1) In respect of With respect to
any claim, issue , or matter as to which the person shall
have been adjudged to be liable to the corporation in the performance
of the person's duty to the corporation, unless and only to the
extent that the court in which the proceeding is or was pending shall
determine upon application that, in view of all the circumstances of
the case, the person is fairly and reasonably entitled to indemnity
for the expenses which the court shall determine;
(2) Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval; or
(3) Of expenses incurred in defending a threatened or pending
action that is settled or otherwise disposed of without court
approval unless the action concerns assets held in charitable trust
and is settled with the approval of the Attorney General.
(d) To the extent that an agent of a corporation has been
successful on the merits in defense of any proceeding referred to in
subdivision (b) or (c) or in defense of any claim, issue ,
or matter therein, the agent shall be indemnified against expenses
actually and reasonably incurred by the agent in connection
therewith.
(e) Except as provided in subdivision (d), any indemnification
under this section shall be made by the corporation only if
authorized in the specific case, upon a determination that
indemnification of the agent is proper in the circumstances because
the agent has met the applicable standard of conduct set forth in
subdivision (b) or (c), by:
(1) A majority vote of a quorum consisting of directors who are
not parties to the proceeding;
(2) Approval of the members (Section 5034), with the persons to be
indemnified not being entitled to vote thereon; or
(3) The court in which the proceeding is or was pending upon
application made by the corporation or the agent or the attorney
, or other person rendering services in connection with the
defense, whether or not the application by the agent, attorney or
other person is opposed by the corporation.
(f) Expenses incurred in defending any proceeding may be advanced
by the corporation before the final disposition of the proceeding
upon receipt of an undertaking by or on behalf of the agent to repay
the amount unless it shall be determined ultimately that the agent is
entitled to be indemnified as authorized in this section. The
provisions of subdivision (a) of Section 7235 do not apply to
advances made pursuant to this subdivision.
(g) A provision made by a corporation to indemnify its or its
subsidiary's directors or officers for the defense of any proceeding,
whether contained in the articles, bylaws, a resolution of members
or directors, an agreement , or otherwise, shall not be
valid unless consistent with this section. Nothing contained in this
section shall affect any right to indemnification to which persons
other than the directors and officers may be entitled by contract or
otherwise.
(h) No indemnification or advance shall be made under this
section, except as provided in subdivision (d) or paragraph (3) of
subdivision (e), in any circumstance where it appears:
(1) That it would be inconsistent with a provision of the
articles, bylaws, a resolution of the members , or an
agreement in effect at the time of the accrual of the alleged cause
of action asserted in the proceeding in which the expenses were
incurred or other amounts were paid, which prohibits or otherwise
limits indemnification; or
(2) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
(i) A corporation shall have power to purchase and maintain
insurance on behalf of an agent of the corporation against any
liability asserted against or incurred by the agent in that capacity
or arising out of the agent's status as such whether or not the
corporation would have the power to indemnify the agent against that
liability under the provisions of this section.
(j) This section does not apply to any proceeding against a
trustee, investment manager, or other fiduciary of a pension,
deferred compensation, saving, thrift, or other retirement,
incentive, or benefit plan, trust, or provision for any or all of the
corporation's directors, officers, employees, and persons providing
services to the corporation or any of its subsidiary or related or
affiliated corporations, in that person's capacity as such, even
though the person may also be an agent as defined in subdivision (a)
of the employer corporation. A corporation shall have power to
indemnify the trustee, investment manager , or other
fiduciary to the extent permitted by subdivision (e) of Section 7140.
SEC. 26. The heading of Chapter 5.5 (commencing with Section
15900) of Title 2 of the Corporations Code is amended and renumbered
to read:
CHAPTER 4.5. UNIFORM LIMITED PARTNERSHIP ACT OF 2008
SEC. 27. Section 15282 of the Education Code is amended to read:
15282. (a) The citizens' oversight committee shall consist of at
least seven members who shall serve for a minimum term of two years
without compensation and for no more than three consecutive terms.
While consisting of a minimum of at least seven members, the citizens'
oversight committee shall be comprised, as follows:
(1) One member shall be active in a business organization
representing the business community located within the school
district or community college district.
(2) One member shall be active in a senior citizens' organization.
(3) One member shall be active in a bona fide taxpayers'
organization.
(4) For a school district, one member shall be the parent or
guardian of a child enrolled in the school district. For a community
college district, one member shall be a student who is both currently
enrolled in the community college district and active in a community
college group, such as student government. The community college
student member may, at the discretion of the governing board of the
community college district, serve up to six months after his or her
graduation.
(5) For a school district, one member shall be both a parent or
guardian of a child enrolled in the school district and active in a
parent-teacher organization, such as the Parent Teacher Association
or schoolsite council. For a community college district, one member
shall be active in the support and organization of a community
college or the community colleges of the district, such as a member
of an advisory council or foundation.
(b) An employee or official of the school district or community
college district shall not be appointed to the citizens' oversight
committee. A vendor, contractor, or consultant of the school district
or community college district shall not be appointed to the citizens'
oversight committee. Members of the citizens' oversight committee
shall, pursuant to Sections 35233 and 72533, abide by the
prohibitions contained in Article 4 (commencing with Section 1090)
and Article 4.7 (commencing with Section 1125) of Chapter 1 of
Division 4 of Title 1 of the Government Code.
SEC. 28. Section 17193.5 of the Education Code is amended to read:
17193.5. (a) For purposes of this section, "public credit
provider" means any financial institution or combination of financial
institutions, that consists either solely, or has as a member or
participant, a public retirement system. Notwithstanding any other
law, a public credit provider, in connection with providing credit
enhancement for bonds, notes, certificates of participation, or other
evidences of indebtedness of a participating party, may require the
participating party to agree to the following conditions:
(1) If a participating party adopts a resolution by a majority
vote of its board to participate under this section, it shall provide
notice to the Controller of that election. The notice shall include
a schedule for the repayment of principal and interest on the bonds,
notes, certificates of participation, or other evidence of
indebtedness and identify the public credit provider that provided
credit enhancement. The notice shall be provided not later than the
date of issuance of the bonds.
(2) If, for any reason, a public credit provider is required to
make principal or interest payments, or both, pursuant to a credit
enhancement agreement, the public credit provider shall immediately
notify the Controller of that fact and of the amount paid out by the
public credit provider.
(3) Upon receipt of the notice required by paragraph (2), the
Controller shall make an apportionment to the public credit provider
in the amount of the payments made by the public credit provider for
the purpose of reimbursing the public credit provider for its
expenditures made pursuant to the credit enhancement agreement. The
Controller shall make that apportionment only from moneys designated
for apportionments to a participating party, provided that such
moneys are from one or more of the following:
(A) Any revenue limit apportionments to a school district or
county office of education without regard to the specific funding
source of the apportionment.
(B) Any general apportionments to a community college district
without regard to the specific funding source of the apportionment.
(C) Any charter school block grant apportionments to a charter
school without regard to the specific funding source of the
apportionment.
(D) Any charter school categorical block grant apportionments to a
charter school without regard to the specific funding source of the
apportionment.
(b) 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. The
participating party and its creditors do not have a claim to funds
apportioned or anticipated to be apportioned to the trustee by the
Controller pursuant to paragraph (3) of subdivision (a).
SEC. 29. Section 17250.25 of the Education Code is amended to
read:
17250.25. Design-build projects shall progress as follows:
(a) (1) The school district governing board shall prepare a
request for proposal setting forth the scope of the project that may
include, but is not limited to, the size, type, and desired design
character of the buildings and site, performance specifications
covering the quality of materials, equipment, and workmanship,
preliminary plans or building layouts, or any other information
deemed necessary to describe adequately the school district's needs.
The performance specifications and any plans shall be prepared by a
design professional duly licensed or registered in this state. The
request for proposal shall not include a design-build-operate
contract for educational facilities pursuant to this chapter.
(2) Each request for proposal shall do all of the following:
(A) Identify the basic scope and needs of the project or contract,
the expected cost range, and other information deemed necessary by
the school district to inform interested parties of the contracting
opportunity.
(B) Invite interested parties to submit competitive sealed
proposals in the manner prescribed by the school district.
(C) Include a section identifying and describing the following:
(i) All significant factors and subfactors that the school
district reasonably expects to consider in evaluating proposals,
including cost or price and all nonprice related factors and
subfactors.
(ii) The methodology and rating or weighting scheme that will be
used by the school district governing board in evaluating competitive
proposals and specifically whether proposals will be rated according
to numeric or qualitative values.
(iii) The relative importance or weight assigned to each of the
factors identified in the request for proposal.
(iv) As an alternative to clause (iii), the governing board of a
school district shall specifically disclose whether all evaluation
factors other than cost or price, when combined, are any of the
following:
(I) Significantly more important than cost or price.
(II) Approximately equal in importance to cost or price.
(III) Significantly less important than cost or price.
(v) If the school district governing board wishes to reserve the
right to hold discussions or negotiations with responsive bidders, it
shall so specify in the request for proposal and shall publish
separately or incorporate into the request for proposal applicable
rules and procedures to be observed by the school district to ensure
that any discussions or negotiations are conducted in a fair and
impartial manner.
(3) Notwithstanding Section 4-315 of Title 24 of the California
Code of Regulations, an architect or structural engineer who is party
to a design-build entity may perform the services set forth in
Section 17302.
(b) (1) The school district shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the Director of the Department of Industrial Relations.
In preparing the questionnaire, the director shall consult with the
construction industry, including representatives of the building
trades, surety industry, school districts, and other affected
parties. This questionnaire shall require information including, but
not limited to, all of the following:
(A) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members who will participate as
subcontractors in the design-build contract, including, but not
limited to, electrical and mechanical subcontractors.
(B) Evidence that the members of the design-build entity have
completed, or demonstrated, the experience, competency, capability,
and capacity to complete projects of similar size, scope, or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project.
(C) The licenses, registration, and credentials required to design
and construct the project, including information on the revocation
or suspension of a license, credential, or registration.
(D) Evidence that establishes that the design-build entity has the
capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance, as well as a
financial statement that ensures the school district that the
design-build entity has the capacity to complete the project.
(E) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973 (Part 1 (commencing with
Section 6300) of Division 5 of the Labor Code) or the federal
Occupational Safety and Health Act of 1970 (P.L. 91-596), settled
against a member of the design-build entity, and information
concerning a contractor member's workers' compensation experience
history and worker safety program.
(F) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project.
(G) Any instance where an entity, its owners, officers, or
managing employees, submitted a bid on a public works project and
were found by an awarding body not to be a responsible bidder.
(H) Any instance where the entity, its owners, officers, or
managing employees defaulted on a construction contract.
(I) Any prior violations of the Contractors' State License Law
(Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code), excluding alleged violations of
federal or state law including the payment of wages, benefits,
apprenticeship requirements, or personal income tax withholding, or
of Federal Insurance Contribution Act (FICA) withholding
requirements, settled against a member of the design-build entity.
(J) Information concerning the bankruptcy or receivership of a
member of the entity, including information concerning any work
completed by a surety.
(K) Information concerning all settled adverse claims, disputes,
or lawsuits between the owner of a public works project and a member
of the design-build entity during the five-year period preceding
submission of the bid pursuant to this section, in which the claim,
settlement, or judgment exceeds fifty thousand dollars ($50,000).
Information shall also be provided concerning any work completed by a
surety during this period.
(L) In the case of a partnership or other association that is not
a legal entity, a copy of the agreement creating the partnership or
association.
(2) The information required pursuant to this subdivision shall be
verified under oath by the design-build entity and its members in
the manner in which civil pleadings in civil actions are verified.
Information that is not a public record pursuant to the California
Public Records Act (Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code) shall not be open to
public inspection.
(c) The school district shall establish a procedure for final
selection of the design-build entity. Selection shall be based on
either of the following criteria:
(1) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Award shall be made on the
basis of the lowest responsible bid.
(2) Notwithstanding any other provision of this code or of Section
20110 of the Public Contract Code, a school district may use a
design-build competition based upon performance and other criteria
set forth by the governing board of the school district in the
solicitation of proposals. Criteria used in this evaluation of
proposals may include, but need not be limited to, the proposed
design approach, life-cycle costs, project features, and project
functions. However, competitive proposals shall be evaluated by using
the criteria and source selection procedures specifically identified
in the request for proposal. Once the evaluation is complete, all
responsive bidders shall be ranked from the most advantageous to
least advantageous to the school district.
(A) An architectural or engineering firm or individual retained by
the governing board of the school district to assist in the
development criteria or preparation of the request for proposal shall
not be eligible to participate in the competition with the
design-build entity.
(B) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing by the school
district, to be the best value to the school district.
(C) Proposals shall be evaluated and scored solely on the basis of
the factors and source selection procedures identified in the
request for proposal. However, the following minimum factors shall
collectively represent at least 50 percent of the total weight or
consideration given to all criteria factors: price, technical
expertise, life-cycle costs over 15 years or more, skilled labor
force availability, and acceptable safety record.
(D) The school district governing board shall issue a written
decision supporting its contract award and stating in detail the
basis of the award. The decision and the contract file must be
sufficient to satisfy an external audit.
(E) Notwithstanding any provision of the Public Contract Code,
upon issuance of a contract award, the school district governing
board shall publicly announce its awards identifying the contractor
to whom the award is made, the winning contractor's price proposal
and its overall combined rating on the request for proposal
evaluation factors. The notice of award shall also include the agency'
s ranking in relation to all other responsive bidders and their
respective price proposals and a summary of the school district's
rationale for the contract award.
(F) For purposes of this chapter, "skilled labor force
availability" means that an agreement exists with a registered
apprenticeship program, approved by the California Apprenticeship
Council, which has graduated apprentices in the preceding five years.
This graduation requirement shall not apply to programs providing
apprenticeship training for any craft that has not been deemed by the
United States Department of Labor and the Department of Industrial
Relations to be an apprenticable craft in the two years before
enactment of this act.
(G) For purposes of this chapter, a bidder's "safety record" shall
be deemed "acceptable" if its experience modification rate for the
most recent three-year period is an average of 1.00 or less, and its
average total recordable injury or illness rate and average lost work
rate for the most recent three-year period does
do not exceed the applicable statistical standards for its
business category, or if the bidder is a party to an alternative
dispute resolution system as provided for in Section 3201.5 of the
Labor Code.
SEC. 30. Section 18720 of the Education Code is amended to read:
18720. (a) There is hereby established in the state government
the California Library Services Board, to consist of 13 members. The
Governor shall appoint nine members of the board. Three of the
Governor's appointments shall be representative of laypersons, one of
whom shall represent people with disabilities, one of whom shall
represent limited- and non-English-speaking persons, and one of whom
shall represent economically disadvantaged persons.
(b) The Governor shall also appoint six members of the board, each
of whom shall represent one of the following categories: school
libraries, libraries for institutionalized persons, public library
trustees or commissioners, public libraries, special libraries, and
academic libraries.
(c) The Legislature shall appoint the remaining four public
members from persons who are not representative of categories
mentioned in this section. Two shall be appointed by the Senate
Committee on Rules and two shall be appointed by the Speaker of the
Assembly.
(d) The terms of office of members of the board shall be for four
years and shall begin on January 1 of the year in which the
respective terms are to start.
(e) On January 1, 2013, the members of the board shall be those
persons serving on the former Library of California Board, appointed
pursuant to former Section 18820, as it existed on December 31, 2012,
who shall serve for the duration of their terms.
SEC. 31. Section 22138.5 of the Education Code, as added by
Section 2 of Chapter 829 of the Statutes of 2012, is amended to read:
22138.5. (a) (1) "Full time" means the days or hours of
creditable service the employer requires to be performed by a class
of employees in a school year in order to earn the compensation
earnable as defined in Section 22115 and specified under the terms of
a collective bargaining agreement or employment agreement. For
the purpose of crediting
service under this part, "full time" may not be less than the minimum
standard specified in this section. Each collective bargaining
agreement or employment agreement that applies to a member subject to
the minimum standard specified in either paragraph (5) or (6) of
subdivision (c) shall specify the number of hours of creditable
service that equal equals "full time"
pursuant to this section for each class of employee subject to either
paragraph and make specific reference to this section, and the
district shall submit a copy of the agreement to the system.
(2) The copies of each agreement shall be submitted electronically
in a format determined by the system that ensures the security of
the transmitted member data.
(3) The copies shall be electronically submitted annually to the
system on or before July 1, or on or before the effective date of the
agreement, whichever is later.
(b) The minimum standard for full time in prekindergarten through
grade 12 is as follows:
(1) One hundred seventy-five days per year or 1,050 hours per
year, except as provided in paragraphs (2) and (3).
(2) (A) One hundred ninety days per year or 1,520 hours per year
for all principals and program managers, including advisers,
coordinators, consultants, and developers or planners of curricula,
instructional materials, or programs, and for administrators, except
as provided in subparagraph (B).
(B) Two hundred fifteen days per year or 1,720 hours per year
including school and legal holidays pursuant to the policy adopted by
the employer's governing board for administrators at a county office
of education.
(3) One thousand fifty hours per year for teachers in adult
education programs.
(c) The minimum standard for full time in community colleges is as
follows:
(1) One hundred seventy-five days per year or 1,050 hours per
year, except as provided in paragraphs (2), (3), (4), (5), and (6).
Full time includes time for duties the employer requires to be
performed as part of the full-time assignment for a particular class
of employees.
(2) One hundred ninety days per year or 1,520 hours per year for
all program managers and for administrators, except as provided in
paragraph (3).
(3) Two hundred fifteen days per year or 1,720 hours per year
including school and legal holidays pursuant to the policy adopted by
the employer's governing board for administrators at a district
office.
(4) One hundred seventy-five days per year or 1,050 hours per year
for all counselors and librarians.
(5) Five hundred twenty-five instructional hours per school year
for all instructors employed on a part-time basis, except instructors
specified in paragraph (6). If an instructor receives compensation
for office hours pursuant to Article 10 (commencing with Section
87880) of Chapter 3 of Part 51 of Division 7 of Title 3, the minimum
standard shall be increased appropriately by the number of office
hours required annually for the class of employees.
(6) Eight hundred seventy-five instructional hours per school year
for all instructors employed in adult education programs. If an
instructor receives compensation for office hours pursuant to Article
10 (commencing with Section 87880) of Chapter 3 of Part 51 of
Division 7 of Title 3, the minimum standard shall be increased
appropriately by the number of office hours required annually for the
class of employees.
(d) The board has final authority to determine full time for
purposes of crediting service under this part if full time is not
otherwise specified in this section.
(e) This section shall become operative on July 1, 2013.
SEC. 32. Section 33195 of the Education Code is amended to read:
33195. (a) Every person, firm, association, partnership, or
corporation operating a heritage school as defined in Section 33195.4
shall, between the 1st and 31st day of January of each year,
commencing on January 1, 2011, file with the Superintendent an
electronic registration form, under penalty of perjury, by the owner
or other head setting forth the following information for the current
year:
(1) All names, whether real or fictitious, of the person, firm,
association, partnership, or corporation under which it has done and
is doing business.
(2) The address, including city and street, of the location at
which the heritage school delivers services to pupils.
(3) The names and addresses, including city and street, of the
directors, if any, and principal officers of the person, firm,
association, partnership, or corporation.
(4) The school enrollment, by grade span, number of teachers, and
coeducational or enrollment limited to boys or girls.
(5) That the following records are maintained at the address
stated, and are true and accurate:
(A) The courses of study offered by the institution.
(B) The names and addresses, including city and street, of its
faculty, together with a record of the educational qualifications of
each faculty member.
(6) Criminal record summary information that has been obtained
pursuant to Section 44237.
(7) The heritage school telephone number.
(8) Acknowledgment that the director of the heritage school and
all employees are mandated reporters and subject to the requirements
established by 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) and, consistent with that act, certification that:
(A) The employer is aware that it is encouraged to provide its
employees with training in the duties imposed by the act.
(B) Employees have signed a statement provided by the employer
that the employees have knowledge of the act and will comply with its
provisions.
(C) Employees have been notified by the employer of their
reporting obligations and confidentiality rights, pursuant to Section
11165.9 of the Penal Code.
(b) If two or more heritage schools are under the effective
control or supervision of a single administrative unit, the
administrative unit shall comply with the provisions of this section
by submitting an electronic registration form on behalf of every
heritage school under its effective control or supervision.
(c) Filing pursuant to this section shall not be interpreted to
mean, and it shall be unlawful for a school to expressly or impliedly
represent, that the State of California, the Superintendent, the
state board, the department or a division or bureau of the
department, or an accrediting agency has made an evaluation,
recognition, approval, or endorsement of the school or course, unless
this is an actual fact.
(d) Filing pursuant to this section does not grant a heritage
school a right to receive state funding.
SEC. 33. Section 35583 of the Education Code is amended to read:
35583. For purposes of paragraph (1) of subdivision (a) of
Section 35735.1, the blended revenue limit per unit of average daily
attendance for the Wiseburn Unified School District shall be
calculated as follows:
(a) Multiply the Wiseburn School District revenue limit per unit
of average daily attendance for the 2012-13 fiscal year by nine.
(b) Multiply the Centinela Valley Union High School District
revenue limit per unit of average daily attendance for the 2012-13
fiscal year by four.
(c) Add the products determined pursuant to subdivisions (a) and
(b).
(d) Divide the sum determined pursuant to subdivision (c) by 13.
This amount shall be the blended revenue limit per unit of average
daily attendance for the Wiseburn Unified School District.
SEC. 34. Section 38000 of the Education Code is amended to read:
38000. (a) The governing board of a school district may establish
a security department under the supervision of a chief of security
as designated by, and under the direction of, the superintendent of
the school district. In accordance with Chapter 5 (commencing with
Section 45100) of Part 25, the governing board of a school district
may employ personnel to ensure the safety of school district
personnel and pupils and the security of the real and personal
property of the school district. It is the intent of the Legislature
in enacting this section that a school district security department
is supplementary to city and county law enforcement agencies and is
not vested with general police powers.
(b) The governing board of a school district may establish a
school police department under the supervision of a school chief of
police and, in accordance with Chapter 5 (commencing with Section
45100) of Part 25, may employ peace officers, as defined in
subdivision (b) of Section 830.32 of the Penal Code, to ensure the
safety of school district personnel and pupils, and the security of
the real and personal property of the school district.
(c) The governing board of a school district that establishes a
security department or a police department shall set minimum
qualifications of employment for the chief of security or school
chief of police, respectively, including, but not limited to, prior
employment as a peace officer or completion of a peace officer
training course approved by the Commission on Peace Officer Standards
and Training. A chief of security or school chief of police shall
comply with the prior employment or training requirement set forth in
this subdivision as of January 1, 1993, or a date one year
subsequent to the initial employment of the chief of security or
school chief of police by the school district, whichever occurs
later. This subdivision shall not be construed to require the
employment by a school district of additional personnel.
(d) A school district may assign a school police reserve officer
who is deputized pursuant to Section 35021.5 to a schoolsite to
supplement the duties of school police officers pursuant to this
section.
SEC. 35. Section 41320.1 of the Education Code is amended to read:
41320.1. Acceptance by the school district of the apportionments
made pursuant to Section 41320 constitutes the agreement by the
school district to all of the following conditions:
(a) The Superintendent shall appoint a trustee who has recognized
expertise in management and finance and may employ, on a short-term
basis, staff necessary to assist the trustee, including, but not
limited to, certified public accountants, as follows:
(1) The expenses incurred by the trustee and necessary staff shall
be borne by the school district.
(2) The Superintendent shall establish the terms and conditions of
the employment, including the remuneration of the trustee. The
trustee shall serve at the pleasure of, and report directly to, the
Superintendent.
(3) The trustee, and necessary staff, shall serve until the school
district has adequate fiscal systems and controls in place, the
Superintendent has determined that the school district's future
compliance with the fiscal plan approved for the school district
under Section 41320 is probable, and the Superintendent decides to
terminate the trustee's appointment, but in no event, for less than
three years. The Superintendent shall notify the county
superintendent of schools, the Legislature, the Department of
Finance, and the Controller no less than 60 days before the time that
the Superintendent expects these conditions to be met.
(4) Before the school district repays the loan, including
interest, the recipient of the loan shall select an auditor from a
list established by the Superintendent and the Controller to conduct
an audit of its fiscal systems. If the fiscal systems are deemed to
be inadequate, the Superintendent may retain the trustee until the
deficiencies are corrected. The cost of this audit and any additional
cost of the trustee shall be borne by the school district.
(5) Notwithstanding any other law, all reports submitted to the
trustee are public records.
(6) To facilitate the appointment of the trustee and the
employment of necessary staff, for purposes of this section, the
Superintendent is exempt from the requirements of Article 6
(commencing with Section 999) of Chapter 6 of Division 4 of the
Military and Veterans Code and Part 2 (commencing with Section 10100)
of Division 2 of the Public Contract Code.
(7) Notwithstanding any other law, the Superintendent may appoint
an employee of the department to act as trustee for up to the
duration of the trusteeship. The salary and benefits of that employee
shall be established by the Superintendent and paid by the school
district. During the time of appointment, the employee is an employee
of the school district, but shall remain in the same retirement
system under the same plan as if the employee had remained in the
department. Upon the expiration or termination of the appointment,
the employee shall have the right to return to his or her former
position, or to a position at substantially the same level as that
position, with the department. The time served in the appointment
shall be counted for all purposes as if the employee had served that
time in his or her former position with the department.
(b) (1) The trustee appointed by the Superintendent shall monitor
and review the operation of the school district. During the period of
his or her service, the trustee may stay or rescind an action of the
governing board of the school district that, in the judgment of the
trustee, may affect the financial condition of the school district.
(2) After the trustee's period of service, and until the loan is
repaid, the county superintendent of schools that has jurisdiction
over the school district may stay or rescind an action of the
governing board of the school district that, in his or her judgment,
may affect the financial condition of the school district. The county
superintendent of schools shall notify the Superintendent, within
five business days, if he or she stays or rescinds an action of the
governing board of the school district. The notice shall include, but
not be limited to, both of the following:
(A) A description of the governing board of the school district's
intended action and its financial implications.
(B) The rationale and findings that support the county
superintendent of school's decision to stay or rescind the action of
the governing board of the school district.
(3) If the Superintendent is notified by the county superintendent
of schools pursuant to paragraph (2), the Superintendent shall
report to the Legislature, on or before December 30 of every year,
whether the school district is complying with the fiscal plan
approved for the school district.
(4) The Superintendent may establish timelines and prescribe
formats for reports and other materials to be used by the trustee to
monitor and review the operations of the school district. The trustee
shall approve or reject all reports and other materials required
from the school district as a condition of receiving the
apportionment. The Superintendent, upon the recommendation of the
trustee, may reduce an apportionment to the school district in an
amount up to two hundred dollars ($200) per day for each late or
unacceptable report or other material required under this part, and
shall report to the Legislature a failure of the school district to
comply with the requirements of this section. If the Superintendent
determines, at any time, that the fiscal plan approved for the school
district under Section 41320 is unsatisfactory, he or she may modify
the plan as necessary, and the school district shall comply with the
plan as modified.
(c) At the request of the Superintendent, the Controller shall
transfer to the department, from an apportionment to which the school
district would otherwise have been entitled pursuant to Section
42238, the amount necessary to pay the expenses incurred by the
trustee and associated costs incurred by the county superintendent of
schools.
(d) For the fiscal year in which the apportionments are disbursed
and every year thereafter, the Controller, or his or her designee,
shall cause an audit to be conducted of the books and accounts of the
school district, in lieu of the audit required by Section 41020. At
the Controller's discretion, the audit may be conducted by the
Controller, his or her designee, or an auditor selected by the school
district and approved by the Controller. The costs of these audits
shall be borne by the school district. These audits shall be required
until the Controller determines, in consultation with the
Superintendent, that the school district is financially solvent, but
in no event earlier than one year following the implementation of the
plan or later than the time the apportionment made is repaid,
including interest. In addition, the Controller shall conduct quality
control reviews pursuant to subdivision (c) of Section 14504.2.
(e) For purposes of errors and omissions liability insurance
policies, the trustee appointed pursuant to this section is an
employee of the local educational agency to which he or she is
assigned. For purposes of workers' compensation benefits, the trustee
is an employee of the local educational agency to which he or she is
assigned, except that a trustee appointed pursuant to paragraph (7)
of subdivision (a) is an employee of the department for those
purposes.
(f) Except for an individual appointed by the Superintendent as
trustee pursuant to paragraph (7) of subdivision (a), the
state-appointed trustee is a member of the State Teachers' Retirement
System, if qualified, for the period of service as trustee, unless
the trustee elects in writing not to become a member. A person who is
a member or retirant of the State Teachers' Retirement System at the
time of appointment shall continue to be a member or retirant of the
system for the duration of the appointment. If the trustee chooses
to become a member or is already a member, the trustee shall be
placed on the payroll of the school district for the purpose of
providing appropriate contributions to the system. The Superintendent
may also require that an individual appointed as trustee pursuant to
paragraph (7) of subdivision (a) be placed on the payroll of the
school district for purposes of remuneration, other benefits, and
payroll deductions. For purposes of workers' compensation benefits,
the state-appointed trustee is deemed an employee of the local
educational agency to which he or she is assigned, except that a
trustee who is appointed pursuant to paragraph (7) of subdivision (a)
is an employee of the department for those purposes.
SEC. 36. Section 41326 of the Education Code is amended to read:
41326. (a) Notwithstanding any other provision of this code, the
acceptance by a school district of an apportionment made pursuant to
Section 41320 that exceeds an amount equal to 200 percent of the
amount of the reserve recommended for that school district under the
standards and criteria adopted pursuant to Section 33127 constitutes
the agreement by the school district to the conditions set forth in
this article. Before applying for an emergency apportionment in the
amount identified in this subdivision, the governing board of a
school district shall discuss the need for that apportionment at a
regular or special meeting of the governing board of the school
district and, at that meeting, shall receive testimony regarding the
apportionment from parents, exclusive representatives of employees of
the school district, and other members of the community. For
purposes of this article, "qualifying school district" means a school
district that accepts a loan as described in this subdivision.
(b) The Superintendent shall assume all the legal rights, duties,
and powers of the governing board of a qualifying school district.
The Superintendent, in consultation with the county superintendent of
schools, shall appoint an administrator to act on his or her behalf
in exercising the authority described in this subdivision in
accordance with all of the following:
(1) The administrator shall serve under the direction and
supervision of the Superintendent until terminated by the
Superintendent at his or her discretion. The Superintendent shall
consult with the county superintendent of schools before terminating
the administrator.
(2) The administrator shall have recognized expertise in
management and finance.
(3) To facilitate the appointment of the administrator and the
employment of necessary staff, for purposes of this section, the
Superintendent is exempt from the requirements of Article 6
(commencing with Section 999) of Chapter 6 of Division 4 of the
Military and Veterans Code and Part 2 (commencing with Section 10100)
of Division 2 of the Public Contract Code.
(4) Notwithstanding any other law, the Superintendent may appoint
an employee of the state or the office of the county superintendent
of schools to act as administrator for up to the duration of the
administratorship. During the tenure of his or her appointment, the
administrator, if he or she is an employee of the state or the office
of the county superintendent of schools, is an employee of the
qualifying school district, but shall remain in the same retirement
system under the same plan that has been provided by his or her
employment with the state or the office of the county superintendent
of schools. Upon the expiration or termination of the appointment,
the employee shall have the right to return to his or her former
position, or to a position at substantially the same level as that
position, with the state or the office of the county superintendent
of schools. The time served in the appointment shall be counted for
all purposes as if the administrator had served that time in his or
her former position with the state or the office of the county
superintendent of schools.
(5) Except for an individual appointed as an administrator by the
Superintendent pursuant to paragraph (4), the administrator shall be
a member of the State Teachers' Retirement System, if qualified, for
the period of service as administrator, unless he or she elects in
writing not to become a member. A person who is a member or retirant
of the State Teachers' Retirement System at the time of appointment
shall continue to be a member or retirant of the system for the
duration of the appointment. If the administrator chooses to become a
member or is already a member, the administrator shall be placed on
the payroll of the qualifying school district for purposes of
providing appropriate contributions to the system. The Superintendent
may also require the administrator to be placed on the payroll of
the qualifying school district for purposes of remuneration, other
benefits, and payroll deductions.
(6) For purposes of workers' compensation benefits, the
administrator is an employee of the qualifying school district,
except that an administrator appointed pursuant to paragraph (4) may
be deemed an employee of the state or office of the county
superintendent of schools, as applicable.
(7) The qualifying school district shall add the administrator as
a covered employee of the qualifying school district for all purposes
of errors and omissions liability insurance policies.
(8) The salary and benefits of the administrator shall be
established by the Superintendent and paid by the qualifying school
district.
(9) The Superintendent or the administrator may employ, on a
short-term basis and at the expense of the qualifying school
district, any staff necessary to assist the administrator, including,
but not limited to, a certified public accountant.
(10) The administrator may do all of the following:
(A) Implement substantial changes in the fiscal policies and
practices of the qualifying school district, including, if necessary,
the filing of a petition under Chapter 9 (commencing with Section
901) of Title 11 of the United States Code for the adjustment of
indebtedness.
(B) Revise the educational program of the qualifying school
district to reflect realistic income projections and pupil
performance relative to state standards.
(C) Encourage all members of the school community to accept a fair
share of the burden of the fiscal recovery of the qualifying school
district.
(D) Consult, for the purposes described in this subdivision, with
the governing board of the qualifying school district, the exclusive
representatives of the employees of the qualifying school district,
parents, and the community.
(E) Consult with, and seek recommendations from, the
Superintendent, the county superintendent of schools, and the County
Office Fiscal Crisis and Management Assistance Team authorized
pursuant to subdivision (c) of Section 42127.8 for purposes described
in this article.
(F) With the approval of the Superintendent, enter into agreements
on behalf of the qualifying school district and, subject to any
contractual obligation of the qualifying school district, change
existing school district rules, regulations, policies, or practices
as necessary for the effective implementation of the recovery plans
referred to in Sections 41327 and 41327.1.
(c) (1) Except as provided for in paragraph (2), the period of
time during which the Superintendent exercises the authority
described in subdivision (b), the governing board of the qualifying
school district shall serve as an advisory body reporting to the
state-appointed administrator, and has no rights, duties, or powers,
and is not entitled to any stipend, benefits, or other compensation
from the qualifying school district.
(2) (A) After one complete fiscal year has elapsed following the
qualifying school district's acceptance of an emergency
apportionment, the governing board of the qualifying school district
may conduct an annual advisory evaluation of an administrator for the
duration of the administratorship.
(B) An advisory evaluation of an administrator shall focus on the
administrator's effectiveness in leading the qualifying school
district toward fiscal recovery and improved academic achievement.
Advisory evaluation criteria shall be agreed upon by the governing
board of the qualifying school district and the administrator before
the advisory evaluation. The advisory evaluation shall include, but
not be limited to, all of the following:
(i) Goals and standards consistent with Section 41327.1.
(ii) Commendations in the areas of the administrator's strengths
and achievements.
(iii) Recommendations for improving the administrator's
effectiveness in areas of concern and unsatisfactory performance.
(C) An advisory evaluation of an administrator conducted by the
governing board of a qualifying school district shall be submitted to
the Governor, the Legislature, the Superintendent, and the County
Office Fiscal Crisis and Management Assistance Team.
(3) Upon the appointment of an administrator pursuant to this
section, the district superintendent is no longer an employee of the
qualifying school district.
(4) A determination of the severance compensation for the district
superintendent shall be made pursuant to subdivision (j).
(d) Notwithstanding Section 35031 or any other law, the
administrator, after according the affected employee reasonable
notice and the opportunity for a hearing, may terminate the
employment of a deputy, associate, assistant superintendent, or other
school district level administrator who is employed by a qualifying
school district under a contract of employment signed or renewed
after January 1, 1992, if the employee fails to document, to the
satisfaction of the administrator, that before the date of the
acceptance of the emergency apportionment he or she either advised
the governing board of the qualifying school district, or his or her
superior, that actions contemplated or taken by the governing board
of the qualifying school district could result in the fiscal
insolvency of the qualifying school district, or took other
appropriate action to avert that fiscal insolvency.
(e) The authority of the Superintendent, and the administrator,
under this section shall continue until all of the following occur:
(1) (A) After one complete fiscal year has elapsed following the
qualifying school district's acceptance of an emergency apportionment
as described in subdivision (a), the administrator determines, and
so notifies the Superintendent and the county superintendent of
schools, that future compliance by the qualifying school district
with the recovery plans approved pursuant to paragraph (2) is
probable.
(B) The Superintendent may return power to the governing board of
the qualifying school district for an area listed in subdivision (a)
of Section 41327.1 if performance under the recovery plan for that
area has been demonstrated to the satisfaction of the Superintendent.
(2) The Superintendent has approved all of the recovery plans
referred to in subdivision (a) of Section 41327 and the County Office
Fiscal Crisis and Management Assistance Team completes the
improvement plans specified in Section 41327.1 and has completed a
minimum of two reports identifying the qualifying school district's
progress in implementing the improvement plans.
(3) The administrator certifies that all necessary collective
bargaining agreements have been negotiated and ratified, and that the
agreements are consistent with the terms of the recovery plans.
(4) The qualifying school district has completed all reports
required by the Superintendent and the administrator.
(5) The Superintendent determines that future compliance by the
qualifying school district with the recovery plans approved pursuant
to paragraph (2) is probable.
(f) When the conditions stated in subdivision (e) have been met,
and at least 60 days after the Superintendent has notified the
Legislature, the Department of Finance, the Controller, and the
county superintendent of schools that he or she expects the
conditions prescribed pursuant to this section to be met, the
governing board of the qualifying school district shall regain all of
its legal rights, duties, and powers, except for the powers held by
the trustee provided for pursuant to Article 2 (commencing with
Section 41320). The Superintendent shall appoint a trustee under
Section 41320.1 to monitor and review the operations of the
qualifying school district until the conditions of subdivision (b) of
that section have been met.
(g) Notwithstanding subdivision (f), if the qualifying school
district violates a provision of the recovery plans approved by the
Superintendent pursuant to this article within five years after the
trustee appointed pursuant to Section 41320.1 is removed or after the
emergency apportionment is repaid, whichever occurs later, or the
improvement plans specified in Section 41327.1 during the period of
the trustee's appointment, the Superintendent may reassume, either
directly or through an administrator appointed in accordance with
this section, all of the legal rights, duties, and powers of the
governing board of the qualifying school district. The Superintendent
shall return to the governing board of the qualifying school
district all of its legal rights, duties, and powers reassumed under
this subdivision when he or she determines that future compliance
with the approved recovery plans is probable, or after a period of
one year, whichever occurs later.
(h) Article 2 (commencing with Section 41320) shall apply except
as otherwise specified in this article.
(i) It is the intent of the Legislature that the legislative
budget subcommittees annually conduct a review of each qualifying
school district that includes an evaluation of the financial
condition of the qualifying school district, the impact of the
recovery plans upon the qualifying school district's educational
program, and the efforts made by the state-appointed administrator to
obtain input from the community and the governing board of the
qualifying school district.
(j) (1) The district superintendent is entitled to a due process
hearing for purposes of determining final compensation. The final
compensation of the district superintendent shall be between zero and
six times his or her monthly salary. The outcome of the due process
hearing shall be reported to the Superintendent and the public. The
information provided to the public shall explain the rationale for
the compensation.
(2) This subdivision applies only to a contract for employment
negotiated on or after June 21, 2004.
(k) (1) When the Superintendent assumes control over a qualifying
school district pursuant to subdivision (b), he or she shall, in
consultation with the County Office Fiscal Crisis and Management
Assistance Team, review the fiscal oversight of the qualifying school
district by the county superintendent of schools. The Superintendent
may consult with other fiscal experts, including other county
superintendents of schools and regional fiscal teams, in conducting
this review.
(2) Within three months of assuming control over a qualifying
school district, the Superintendent shall report his or her findings
to the Legislature and shall provide a copy of that report to the
Department of Finance. This report shall include findings as to
fiscal oversight actions that were or were not taken and may include
recommendations as to an appropriate legislative response to improve
fiscal oversight.
(3) If, after performing the duties described in paragraphs (1)
and (2), the Superintendent determines that the county superintendent
of schools failed to carry out his or her responsibilities for
fiscal oversight as required by this code, the Superintendent may
exercise the authority of the county superintendent of schools who
has oversight responsibilities for a qualifying school district. If
the Superintendent finds, based on the report required in paragraph
(2), that the county superintendent of schools failed to
appropriately take into account particular types of indicators of
financial distress, or failed to take appropriate remedial actions in
the qualifying school district, the Superintendent shall further
investigate whether the county superintendent of schools failed to
take into account those indicators, or similarly failed to take
appropriate actions in other school districts with negative or
qualified certifications, and shall provide an additional report on
the fiscal oversight practices of the county superintendent of
schools to the appropriate policy and fiscal committees of each house
of the Legislature and the Department of Finance.
SEC. 37. Section 47660 of the Education Code is amended to read:
47660. (a) For purposes of computing eligibility for, and
entitlements to, general purpose funding and operational funding for
categorical programs, the enrollment and average daily attendance of
a sponsoring local educational agency shall exclude the enrollment
and attendance of pupils in its charter schools funded pursuant to
this chapter.
(b) (1) Notwithstanding subdivision (a), and commencing with the
2005-06 fiscal year, for purposes of computing eligibility for, and
entitlements to, revenue limit funding, the average daily attendance
of a unified school district, other than a unified school district
that has converted all of its schools to charter status pursuant to
Section 47606, shall include all attendance of pupils who reside in
the unified school district and who would otherwise have been
eligible to attend a noncharter school of the school district, if the
school district was a basic aid school district in the prior fiscal
year, or if the pupils reside in the unified school district and
attended a charter school of that school district that converted to
charter status on or after July 1, 2005. Only the attendance of the
pupils described by this paragraph shall be included in the
calculation made pursuant to paragraph (7) of subdivision (h) of
Section 42238.
(2) Notwithstanding subdivision (a), for the 2005-06 fiscal year
only, for purposes of computing eligibility for, and entitlements to,
revenue limit funding, the average daily attendance of a unified
school district, other than a unified school district that has
converted all of its schools to charter status pursuant to Section
47606 and is operating them as charter schools, shall include all
attendance of pupils who reside in the unified school district and
who would otherwise have been eligible to attend a noncharter school
of the unified school district if the pupils attended a charter
school operating in the unified school district prior to July 1,
2005. Only the attendance of pupils described by this paragraph shall
be included in the calculation made pursuant to Section 42241.3. The
attendance of the pupils described by this paragraph shall be
included in the calculation made pursuant to paragraph (7) of
subdivision (h) of Section 42238.
(c) (1) For the attendance of pupils specified in subdivision (b),
the general-purpose entitlement for a charter school that is
established through the conversion of an existing public school
within a unified school district on or after July 1, 2005, but before
January 1, 2010, shall be determined using the following amount of
general-purpose funding per unit of average daily attendance, in lieu
of the amount calculated pursuant to subdivision (a) of Section
47633:
(A) The amount of the actual unrestricted revenues expended per
unit of average daily attendance for that school in the year prior to
its conversion to, and operation as, a charter school, adjusted for
the base revenue limit per pupil inflation increase adjustment set
forth in Section 42238.1, if this adjustment is provided, and also
adjusted for equalization, deficit reduction, and other state
general-purpose increases, if any, provided for the unified school
district in the year of conversion to, and operation as a charter
school.
(B) For a subsequent fiscal year, the general-purpose entitlement
shall be determined based on the amount per unit of average daily
attendance allocated in the prior fiscal year adjusted for the base
revenue limit per pupil inflation increase adjustment set forth in
Section 42238.1, if this adjustment is provided, and also adjusted
for equalization, deficit reduction, and other state general-purpose
increases, if any, provided for the unified school district in that
fiscal year.
(2) This subdivision shall not apply to a charter school that is
established through the conversion of an existing public school
within a unified school district on or after January 1, 2010, which
instead shall receive general-purpose funding pursuant to Section
47633. This paragraph does not preclude a charter school or unified
school district from agreeing to an alternative funding formula.
(d) Commencing with the 2005-06 fiscal year, the general-purpose
funding per unit of average daily attendance specified for a unified
school district for purposes of paragraph (7) of subdivision (h) of
Section 42238 for a school within the unified school district that
converted to charter status on or after July 1, 2005, shall be deemed
to be the amount computed pursuant to subdivision (c).
(e) A unified school district that is the sponsoring local
educational agency, as defined in subdivision (j) of Section 47632,
of a charter school that is subject to paragraphs (1) and (2) of
subdivision (c) shall certify to the Superintendent the amount
specified in paragraph (1) of subdivision (c) prior to the approval
of the charter petition by the governing board of the school
district. This amount may be based on estimates of the unrestricted
revenues expended in the fiscal year prior to the school's conversion
to charter status and the school's operation as a charter school,
provided that the amount is recertified when the actual data becomes
available.
(f) For the purposes of this section, "basic aid school district"
means a school district that does not receive from the state an
apportionment of state funds pursuant to subdivision (h) of Section
42238.
(g) A school district may use the existing Standardized Account
Code Structure and cost allocation methods, if appropriate, for an
accounting of the actual unrestricted revenues expended in support of
a school pursuant to subdivision (c).
(h) For purposes of this section and Section 42241.3, "operating"
means that pupils are attending and receiving instruction at the
charter school.
SEC. 38. Section 48853 of the Education Code is amended to read:
48853. (a) A pupil described in subdivision (a) of Section
48853.5 who is placed in a licensed children's institution or foster
family home shall attend programs operated by the local educational
agency, unless one of the following applies:
(1) The pupil is entitled to remain in his or her school of origin
pursuant to paragraph (1) of subdivision (d) of Section 48853.5.
(2) The pupil has an individualized education program requiring
placement in a nonpublic, nonsectarian school or agency, or in
another local educational agency.
(3) The parent or guardian, or other person holding the right to
make educational decisions for the pupil pursuant to Section 361 or
726 of the Welfare and Institutions Code or Section 56055, determines
that it is in the best interests of the pupil to be placed in
another educational program, in which case the parent or guardian or
other person holding the right to make educational decisions for the
pupil shall provide a written statement that he or she has made that
determination to the local educational agency. This statement shall
include a declaration that the parent, guardian, or other person
holding the right to make educational decisions for the pupil is
aware of all of the following:
(A) The pupil has a right to attend a regular public school in the
least restrictive environment.
(B) The alternate education program is a special education
program, if applicable.
(C) The decision to unilaterally remove the pupil from the regular
public school and to place the pupil in an alternate education
program may not be financed by the local educational agency.
(D) Any attempt to seek reimbursement for the alternate education
program may be at the expense of the parent, guardian, or other
person holding the right to make educational decisions for the pupil.
(b) For purposes of ensuring a parent, guardian, or other person
holding the right to make educational decisions for the pupil is
aware of the information described in subparagraphs (A) to (D),
inclusive, of paragraph (3) of subdivision (a), the local educational
agency may provide him or her with that information in writing.
(c) Before any decision is made to place a pupil in a juvenile
court school as defined by Section 48645.1, a community school as
described in Sections 1981 and 48660, or other alternative
educational setting, the parent or guardian, or person holding the
right to make educational decisions for the pupil pursuant to Section
361 or 726 of the Welfare and Institutions Code or Section 56055,
shall first consider placement in the regular public school.
(d) If any dispute arises as to the school placement of a pupil
subject to this section, the pupil has the right to remain in his or
her school of origin, as defined in subdivision (e) of Section
48853.5, pending resolution of the dispute. The dispute shall be
resolved in accordance with the existing dispute resolution process
available to any pupil served by the local educational agency.
(e) This section does not supersede other laws that govern pupil
expulsion.
(f) This section does not supersede any other law governing the
educational placement in a juvenile court school, as defined by
Section 48645.1, of a pupil detained in a county juvenile hall, or
committed to a county juvenile ranch, camp, forestry camp, or
regional facility.
(g) Foster children living in emergency shelters, as referenced in
the federal McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec.
11301 et seq.), may receive educational services at the emergency
shelter as necessary for short periods of time for either of the
following reasons:
(1) For health and safety emergencies.
(2) To provide temporary, special, and supplementary services to
meet the child's unique needs if a decision regarding whether it is
in the child's best interests to attend the school of origin cannot
be made promptly, it is not practical to transport the child to the
school of origin, and the child would otherwise not receive
educational services.
The educational services may be provided at the shelter pending a
determination by the person holding the right regarding the
educational placement of the child.
(h) All educational and school placement decisions shall be made
to ensure that the child is placed in the least restrictive
educational programs and has access to academic resources, services,
and extracurricular and enrichment activities that are available to
all pupils. In all instances, educational and school placement
decisions shall be based on the best interests of the child.
SEC. 39. Section 48853.5 of the Education Code is amended to read:
48853.5. (a) This section applies to a foster child. "Foster
child" means a child who has been removed from his or her home
pursuant to Section 309 of the Welfare and Institutions Code, is the
subject of a petition filed under Section 300 or 602 of the Welfare
and Institutions Code, or has been removed from his or her home and
is the subject of a petition filed under Section 300 or 602 of the
Welfare and Institutions Code.
(b) Each local educational agency shall designate a staff person
as the educational liaison for foster children. In a school district
that operates a foster children services program pursuant to Chapter
11.3 (commencing with Section 42920) of Part 24 of Division 3, the
educational liaison shall be affiliated with the local foster
children services program. The educational liaison shall do all of
the following:
(1) Ensure and facilitate the proper educational placement,
enrollment in school, and checkout from school of foster children.
(2) Assist foster children when transferring from one school to
another school or from one school district to another school district
in ensuring proper transfer of credits, records, and grades.
(c) If so designated by the superintendent of the local
educational agency, the educational liaison shall notify a foster
child's attorney and the appropriate representative of the county
child welfare agency of pending expulsion proceedings if the decision
to recommend expulsion is a discretionary act, pending proceedings
to extend a suspension until an expulsion decision is rendered if the
decision to recommend expulsion is a discretionary act, and, if the
foster child is an individual with exceptional needs, pending
manifestation determinations pursuant to Section 1415(k) of Title 20
of the United States Code if the local educational agency has
proposed a change in placement due to an act for which the decision
to recommend expulsion is at the discretion of the principal or the
district superintendent of schools.
(d) This section does not grant authority to the educational
liaison that supersedes the authority granted under state and federal
law to a parent or legal guardian retaining educational rights, a
responsible adult appointed by the court to represent the child
pursuant to Section 361 or 726 of the Welfare and Institutions Code,
a surrogate parent, or a foster parent exercising the authority
granted under Section 56055. The role of the educational liaison is
advisory with respect to placement decisions and determination of the
school of origin.
(e) (1) At the initial detention or placement, or any subsequent
change in placement of a foster child, the local educational agency
serving the foster child shall allow the foster child to continue his
or her education in the school of origin for the duration of the
jurisdiction of the court.
(2) If the jurisdiction of the court is terminated before the end
of an academic year, the local educational agency shall allow a
former foster child who is in kindergarten or any of grades 1 to 8,
inclusive, to continue his or her education in the school of origin
through the duration of the academic school year.
(3) (A) If the jurisdiction of the court is terminated while a
foster child is in high school, the local educational agency shall
allow the former foster child to continue his or her education in the
school of origin through graduation.
(B) For purposes of this paragraph, a school district is not
required to provide transportation to a former foster child who has
an individualized education program that does not require
transportation as a related service and who changes residence but
remains in his or her school of origin pursuant to this paragraph,
unless the individualized education program team determines that
transportation is a necessary related service.
(4) To ensure that the foster child has the benefit of
matriculating with his or her peers in accordance with the
established feeder patterns of school districts, if the foster child
is transitioning between school grade levels, the local educational
agency shall allow the foster child to continue in the school
district of origin in the same attendance area, or, if the foster
child is transitioning to a middle school or high school, and the
school designated for matriculation is in another school district, to
the school designated for matriculation in that school district.
(5) Paragraphs (2), (3), and (4) do not require a school district
to provide transportation services to allow a foster child to attend
a school or school district, unless otherwise required under federal
law. This paragraph does not prohibit a school district from, at its
discretion, providing transportation services to allow a foster child
to attend a school or school district.
(6) The educational liaison, in consultation with, and with the
agreement of, the foster child and the person holding the right to
make educational decisions for the foster child, may recommend, in
accordance with the foster child's best interests, that the foster
child's right to attend the school of origin be waived and the foster
child be enrolled in a public school that pupils living in the
attendance area in which the foster child resides are eligible to
attend.
(7) Before making a recommendation to move a foster child from his
or her school of origin, the educational liaison shall provide the
foster child and the person holding the right to make educational
decisions for the foster child with a written explanation stating the
basis for the recommendation and how the recommendation serves the
foster child's best interest.
(8) (A) If the educational liaison, in consultation with the
foster child and the person holding the right to make educational
decisions for the foster child, agrees that the best interests of the
foster child would best be served by his or her transfer to a school
other than the school of origin, the foster child shall immediately
be enrolled in the new school.
(B) The new school shall immediately enroll the foster child even
if the foster child has outstanding fees, fines, textbooks, or other
items or moneys due to the school last attended or is unable to
produce clothing or records normally required for enrollment, such as
previous academic records, medical records, including, but not
limited to, records or other proof of immunization history pursuant
to Chapter 1 (commencing with Section 120325) of Part 2 of Division
105 of the Health and Safety Code, proof of residency, other
documentation, or school uniforms.
(C) Within two business days of the foster child's request for
enrollment, the educational liaison for the new school shall contact
the school last attended by the foster child to obtain all academic
and other records. The last school attended by the foster child shall
provide all required records to the new school regardless of any
outstanding fees, fines, textbooks, or other items or moneys owed to
the school last attended. The educational liaison for the school last
attended shall provide all records to the new school within two
business days of receiving the request.
(9) If a dispute arises regarding the request of a foster child to
remain in the school of origin, the foster child has the right to
remain in the school of origin pending resolution of the dispute. The
dispute shall be resolved in accordance with the existing dispute
resolution process available to a pupil served by the local
educational agency.
(10) The local educational agency and the county placing agency
are encouraged to collaborate to ensure maximum use of available
federal moneys, explore public-private partnerships, and access any
other funding sources to promote the well-being of foster children
through educational stability.
(11) It is the intent of the Legislature that this subdivision
shall not supersede or exceed other laws governing special education
services for eligible foster children.
(f) For purposes of this section, "school of origin" means the
school that the foster child attended when permanently housed or the
school in which the foster child was last enrolled. If the school the
foster child attended when permanently housed is different from the
school in which the foster child was last enrolled, or if there is
some other school that the foster child attended with which the
foster child is connected and that the foster child attended within
the immediately preceding 15 months, the
educational liaison, in consultation with, and
with the agreement of, the foster child and the person holding the
right to make educational decisions for the foster child, shall
determine, in the best interests of the foster child, the school that
shall be deemed the school of origin.
(g) This section does not supersede other law governing the
educational placements in juvenile court schools, as described in
Section 48645.1, by the juvenile court under Section 602 of the
Welfare and Institutions Code.
SEC. 40. Section 48900 of the Education Code is amended to read:
48900. A pupil shall not be suspended from school or recommended
for expulsion, unless the superintendent of the school district or
the principal of the school in which the pupil is enrolled determines
that the pupil has committed an act as defined pursuant to any of
subdivisions (a) to (r), inclusive:
(a) (1) Caused, attempted to cause, or threatened to cause
physical injury to another person.
(2) Willfully used force or violence upon the person of another,
except in self-defense.
(b) Possessed, sold, or otherwise furnished a firearm, knife,
explosive, or other dangerous object, unless, in the case of
possession of an object of this type, the pupil had obtained written
permission to possess the item from a certificated school employee,
which is concurred in by the principal or the designee of the
principal.
(c) Unlawfully possessed, used, sold, or otherwise furnished, or
been under the influence of, a controlled substance listed in Chapter
2 (commencing with Section 11053) of Division 10 of the Health and
Safety Code, an alcoholic beverage, or an intoxicant of any kind.
(d) Unlawfully offered, arranged, or negotiated to sell a
controlled substance listed in Chapter 2 (commencing with Section
11053) of Division 10 of the Health and Safety Code, an alcoholic
beverage, or an intoxicant of any kind, and either sold, delivered,
or otherwise furnished to a person another liquid, substance, or
material and represented the liquid, substance, or material as a
controlled substance, alcoholic beverage, or intoxicant.
(e) Committed or attempted to commit robbery or extortion.
(f) Caused or attempted to cause damage to school property or
private property.
(g) Stole or attempted to steal school property or private
property.
(h) Possessed or used tobacco, or products containing tobacco or
nicotine products, including, but not limited to, cigarettes, cigars,
miniature cigars, clove cigarettes, smokeless tobacco, snuff, chew
packets, and betel. However, this section does not prohibit use or
possession by a pupil of his or her own prescription products.
(i) Committed an obscene act or engaged in habitual profanity or
vulgarity.
(j) Unlawfully possessed or unlawfully offered, arranged, or
negotiated to sell drug paraphernalia, as defined in Section 11014.5
of the Health and Safety Code.
(k) Disrupted school activities or otherwise willfully defied the
valid authority of supervisors, teachers, administrators, school
officials, or other school personnel engaged in the performance of
their duties.
( l ) Knowingly received stolen school property or
private property.
(m) Possessed an imitation firearm. As used in this section,
"imitation firearm" means a replica of a firearm that is so
substantially similar in physical properties to an existing firearm
as to lead a reasonable person to conclude that the replica is a
firearm.
(n) Committed or attempted to commit a sexual assault as defined
in Section 261, 266c, 286, 288, 288a, or 289 of the Penal Code or
committed a sexual battery as defined in Section 243.4 of the Penal
Code.
(o) Harassed, threatened, or intimidated a pupil who is a
complaining witness or a witness in a school disciplinary proceeding
for purposes of either preventing that pupil from being a witness or
retaliating against that pupil for being a witness, or both.
(p) Unlawfully offered, arranged to sell, negotiated to sell, or
sold the prescription drug Soma.
(q) Engaged in, or attempted to engage in, hazing. For purposes of
this subdivision, "hazing" means a method of initiation or
preinitiation into a pupil organization or body, whether or not the
pupil organization or body is officially recognized by an educational
institution, which is likely to cause serious bodily injury or
personal degradation or disgrace resulting in physical or mental harm
to a former, current, or prospective pupil. For purposes of this
subdivision, "hazing" does not include athletic events or
school-sanctioned events.
(r) Engaged in an act of bullying. For purposes of this
subdivision, the following terms have the following meanings:
(1) "Bullying" means any severe or pervasive physical or verbal
act or conduct, including communications made in writing or by means
of an electronic act, and including one or more acts committed by a
pupil or group of pupils as defined in Section 48900.2, 48900.3, or
48900.4, directed toward one or more pupils that have or can be
reasonably predicted to have the effect of one or more of the
following:
(A) Placing a reasonable pupil or pupils in fear of harm to that
pupil's or those pupils' person or property.
(B) Causing a reasonable pupil to experience a substantially
detrimental effect on his or her physical or mental health.
(C) Causing a reasonable pupil to experience substantial
interference with his or her academic performance.
(D) Causing a reasonable pupil to experience substantial
interference with his or her ability to participate in or benefit
from the services, activities, or privileges provided by a school.
(2) (A) "Electronic act" means the transmission, by means of an
electronic device, including, but not limited to, a telephone,
wireless telephone, or other wireless communication device, computer,
or pager, of a communication, including, but not limited to, any of
the following:
(i) A message, text, sound, or image.
(ii) A post on a social network Internet Web site ,
including, but not limited to:
(I) Posting to or creating a burn page. "Burn page" means an
Internet Web site created for the purpose of having one or more of
the effects listed in paragraph (1).
(II) Creating a credible impersonation of another actual pupil for
the purpose of having one or more of the effects listed in paragraph
(1). "Credible impersonation" means to knowingly and without consent
impersonate a pupil for the purpose of bullying the pupil and such
that another pupil would reasonably believe, or has reasonably
believed, that the pupil was or is the pupil who was impersonated.
(III) Creating a false profile for the purpose of having one or
more of the effects listed in paragraph (1). "False profile" means a
profile of a fictitious pupil or a profile using the likeness or
attributes of an actual pupil other than the pupil who created the
false profile.
(B) Notwithstanding paragraph (1) and subparagraph (A), an
electronic act shall not constitute pervasive conduct solely on the
basis that it has been transmitted on the Internet or is currently
posted on the Internet.
(3) "Reasonable pupil" means a pupil, including, but not limited
to, an exceptional needs pupil, who exercises average care, skill,
and judgment in conduct for a person of his or her age, or for a
person of his or her age with his or her exceptional needs.
(s) A pupil shall not be suspended or expelled for any of the acts
enumerated in this section unless the act is related to a school
activity or school attendance occurring within a school under the
jurisdiction of the superintendent of the school district or
principal or occurring within any other school district. A pupil may
be suspended or expelled for acts that are enumerated in this section
and related to a school activity or school attendance that occur at
any time, including, but not limited to, any of the following:
(1) While on school grounds.
(2) While going to or coming from school.
(3) During the lunch period whether on or off the campus.
(4) During, or while going to or coming from, a school-sponsored
activity.
(t) A pupil who aids or abets, as defined in Section 31 of the
Penal Code, the infliction or attempted infliction of physical injury
to another person may be subject to suspension, but not expulsion,
pursuant to this section, except that a pupil who has been adjudged
by a juvenile court to have committed, as an aider and abettor, a
crime of physical violence in which the victim suffered great bodily
injury or serious bodily injury shall be subject to discipline
pursuant to subdivision (a).
(u) As used in this section, "school property" includes, but is
not limited to, electronic files and databases.
(v) For a pupil subject to discipline under this section, a
superintendent of the school district or principal may use his or her
discretion to provide alternatives to suspension or expulsion that
are age appropriate and designed to address and correct the pupil's
specific misbehavior as specified in Section 48900.5.
(w) It is the intent of the Legislature that alternatives to
suspension or expulsion be imposed against a pupil who is truant,
tardy, or otherwise absent from school activities.
SEC. 41. Section 48902 of the Education Code is amended to read:
48902. (a) The principal of a school or the principal's designee
shall, before the suspension or expulsion of any pupil, notify the
appropriate law enforcement authorities of the county or city in
which the school is situated, of any acts of the pupil that may
violate Section 245 of the Penal Code.
(b) The principal of a school or the principal's designee shall,
within one schoolday after suspension or expulsion of any pupil,
notify, by telephone or any other appropriate method chosen by the
school, the appropriate law enforcement authorities of the county or
the school district in which the school is situated of any acts of
the pupil that may violate subdivision (c) or (d) of Section 48900.
(c) Notwithstanding subdivision (b), the principal of a school or
the principal's designee shall notify the appropriate law enforcement
authorities of the county or city in which the school is located of
any acts of a pupil that may involve the possession or sale of
narcotics or of a controlled substance or a violation of Section
626.9 or 626.10 of the Penal Code. The principal of a school or the
principal's designee shall report any act specified in paragraph (1)
or (5) of subdivision (c) of Section 48915 committed by a pupil or
nonpupil on a schoolsite to the city police or county sheriff with
jurisdiction over the school and the school security department or
the school police department, as applicable.
(d) A principal, the principal's designee, or any other person
reporting a known or suspected act described in subdivision (a) or
(b) is not civilly or criminally liable as a result of making any
report authorized by this article unless it can be proven that a
false report was made and that the person knew the report was false
or the report was made with reckless disregard for the truth or
falsity of the report.
(e) The principal of a school or the principal's designee
reporting a criminal act committed by a schoolage individual with
exceptional needs, as defined in Section 56026, shall ensure that
copies of the special education and disciplinary records of the pupil
are transmitted, as described in Section 1415(k)(6) of Title 20 of
the United States Code, for consideration by the appropriate
authorities to whom he or she reports the criminal act. Any copies of
the pupil's special education and disciplinary records may be
transmitted only to the extent permissible under the federal Family
Educational Rights and Privacy Act of 1974 (20 U.S.C. Sec. 1232g et
seq.).
SEC. 42. Section 48911 of the Education Code is amended to read:
48911. (a) The principal of the school, the principal's designee,
or the district superintendent of schools may suspend a pupil from
the school for any of the reasons enumerated in Section 48900, and
pursuant to Section 48900.5, for no more than five consecutive
schooldays.
(b) Suspension by the principal, the principal's designee, or the
district superintendent of schools shall be preceded by an informal
conference conducted by the principal, the principal's designee, or
the district superintendent of schools between the pupil and,
whenever practicable, the teacher, supervisor, or school employee who
referred the pupil to the principal, the principal's designee, or
the district superintendent of schools. At the conference, the pupil
shall be informed of the reason for the disciplinary action and the
evidence against him or her, and shall be given the opportunity to
present his or her version and evidence in his or her defense.
(c) A principal, the principal's designee, or the district
superintendent of schools may suspend a pupil without affording the
pupil an opportunity for a conference only if the principal, the
principal's designee, or the district superintendent of schools
determines that an emergency situation exists. "Emergency situation,"
as used in this article, means a situation determined by the
principal, the principal's designee, or the district superintendent
of schools to constitute a clear and present danger to the life,
safety, or health of pupils or school personnel. If a pupil is
suspended without a conference before suspension, both the parent and
the pupil shall be notified of the pupil's right to a conference and
the pupil's right to return to school for the purpose of a
conference. The conference shall be held within two schooldays,
unless the pupil waives this right or is physically unable to attend
for any reason, including, but not limited to, incarceration or
hospitalization. The conference shall then be held as soon as the
pupil is physically able to return to school for the conference.
(d) At the time of suspension, a school employee shall make a
reasonable effort to contact the pupil's parent or guardian in person
or by telephone. If a pupil is suspended from school, the parent or
guardian shall be notified in writing of the suspension.
(e) A school employee shall report the suspension of the pupil,
including the cause for the suspension, to the governing board of the
school district or to the district superintendent of schools in
accordance with the regulations of the governing board of the school
district.
(f) The parent or guardian of a pupil shall respond without delay
to a request from school officials to attend a conference regarding
his or her child's behavior.
No penalties shall be imposed on a pupil for failure of the pupil'
s parent or guardian to attend a conference with school officials.
Reinstatement of the suspended pupil shall not be contingent upon
attendance by the pupil's parent or guardian at the conference.
(g) In a case where expulsion from a school or suspension for the
balance of the semester from continuation school is being processed
by the governing board of the school district, the district
superintendent of schools or other person designated by the district
superintendent of schools in writing may extend the suspension until
the governing board of the school district has rendered a decision in
the action. However, an extension may be granted only if the
district superintendent of schools or the district superintendent's
designee has determined, following a meeting in which the pupil and
the pupil's parent or guardian are invited to participate, that the
presence of the pupil at the school or in an alternative school
placement would cause a danger to persons or property or a threat of
disrupting the instructional process. If the pupil is a foster child,
as defined in Section 48853.5, the district superintendent of
schools or the district superintendent's designee, including, but not
limited to, the educational liaison for the school district, shall
also invite the pupil's attorney and an appropriate representative of
the county child welfare agency to participate in the meeting. If
the pupil or the pupil's parent or guardian has requested a meeting
to challenge the original suspension pursuant to Section 48914, the
purpose of the meeting shall be to decide upon the extension of the
suspension order under this section and may be held in conjunction
with the initial meeting on the merits of the suspension.
(h) For purposes of this section, a "principal's designee" is one
or more administrators at the schoolsite specifically designated by
the principal, in writing, to assist with disciplinary procedures.
In the event that there is not an administrator in addition to the
principal at the schoolsite, a certificated person at the schoolsite
may be specifically designated by the principal, in writing, as a
"principal's designee," to assist with disciplinary procedures. The
principal may designate only one person at a time as the principal's
primary designee for the school year.
An additional person meeting the requirements of this subdivision
may be designated by the principal, in writing, to act for purposes
of this article when both the principal and the principal's primary
designee are absent from the schoolsite. The name of the person, and
the names of any person or persons designated as "principal's
designee," shall be on file in the principal's office.
This section is not an exception to, nor does it place any
limitation on, Section 48903.
SEC. 43. Section 49076 of the Education Code is amended to read:
49076. (a) A school district shall not permit access to pupil
records to a person without written parental consent or under
judicial order except as set forth in this section and as permitted
by Part 99 (commencing with Section 99.1) of Title 34 of the Code of
Federal Regulations.
(1) Access to those particular records relevant to the legitimate
educational interests of the requester shall be permitted to the
following:
(A) School officials and employees of the school district, members
of a school attendance review board appointed pursuant to Section
48321 who are authorized representatives of the school district, and
any volunteer aide, 18 years of age or older, who has been
investigated, selected, and trained by a school attendance review
board for the purpose of providing followup services to pupils
referred to the school attendance review board, provided that the
person has a legitimate educational interest to inspect a record.
(B) Officials and employees of other public schools or school
systems, including local, county, or state correctional facilities
where educational programs leading to high school graduation are
provided or where the pupil intends to or is directed to enroll,
subject to the rights of parents as provided in Section 49068.
(C) Authorized representatives of the Comptroller General of the
United States, the Secretary of Education, and state and local
educational authorities, or the United States Department of Education'
s Office for Civil Rights, if the information is necessary to audit
or evaluate a state or federally supported education program, or in
connection with the enforcement of, or compliance with, the federal
legal requirements that relate to such a program. Records released
pursuant to this subparagraph shall comply with the requirements of
Section 99.35 of Title 34 of the Code of Federal Regulations.
(D) Other state and local officials to the extent that information
is specifically required to be reported pursuant to state law
adopted before November 19, 1974.
(E) Parents of a pupil 18 years of age or older who is a dependent
as defined in Section 152 of Title 26 of the United States Code.
(F) A pupil 16 years of age or older or having completed the 10th
grade who requests access.
(G) A district attorney who is participating in or conducting a
truancy mediation program pursuant to Section 48263.5, or Section
601.3 of the Welfare and Institutions Code, or participating in the
presentation of evidence in a truancy petition pursuant to Section
681 of the Welfare and Institutions Code.
(H) A district attorney's office for consideration against a
parent or guardian for failure to comply with the Compulsory
Education Law (Chapter 2 (commencing with Section 48200)) or with
Compulsory Continuation Education (Chapter 3 (commencing with Section
48400)).
(I) (i) A probation officer, district attorney, or counsel of
record for a minor for purposes of conducting a criminal
investigation or an investigation in regards to declaring a person a
ward of the court or involving a violation of a condition of
probation.
(ii) For purposes of this subparagraph, a probation officer,
district attorney, and counsel of record for a minor shall be deemed
to be local officials for purposes of Section 99.31(a)(5)(i) of Title
34 of the Code of Federal Regulations.
(iii) Pupil records obtained pursuant to this subparagraph shall
be subject to the evidentiary rules described in Section 701 of the
Welfare and Institutions Code.
(J) A judge or probation officer for the purpose of conducting a
truancy mediation program for a pupil, or for purposes of presenting
evidence in a truancy petition pursuant to Section 681 of the Welfare
and Institutions Code. The judge or probation officer shall certify
in writing to the school district that the information will be used
only for truancy purposes. A school district releasing pupil
information to a judge or probation officer pursuant to this
subparagraph shall inform, or provide written notification to, the
parent or guardian of the pupil within 24 hours of the release of the
information.
(K) A county placing agency when acting as an authorized
representative of a state or local educational agency pursuant to
subparagraph (C). School districts, county offices of education, and
county placing agencies may develop cooperative agreements to
facilitate confidential access to and exchange of the pupil
information by email, facsimile, electronic format, or other secure
means, provided the agreement complies with the requirements set
forth in Section 99.35 of Title 34 of the Code of Federal
Regulations.
(2) School districts may release information from pupil records to
the following:
(A) Appropriate persons in connection with an emergency if the
knowledge of the information is necessary to protect the health or
safety of a pupil or other persons. Schools or school districts
releasing information pursuant to this subparagraph shall comply with
the requirements set forth in Section 99.31(a)(5) of Title 34 of the
Code of Federal Regulations.
(B) Agencies or organizations in connection with the application
of a pupil for, or receipt of, financial aid. However, information
permitting the personal identification of a pupil or his or her
parents may be disclosed only as may be necessary for purposes as to
determine the eligibility of the pupil for financial aid, to
determine the amount of the financial aid, to determine the
conditions which will be imposed regarding the financial aid, or to
enforce the terms or conditions of the financial aid.
(C) Pursuant to Section 99.37 of Title 34 of the Code of Federal
Regulations, a county elections official, for the purpose of
identifying pupils eligible to register to vote, or for conducting
programs to offer pupils an opportunity to register to vote. The
information shall not be used for any other purpose or given or
transferred to any other person or agency.
(D) Accrediting associations in order to carry out their
accrediting functions.
(E) Organizations conducting studies for, or on behalf of,
educational agencies or institutions for the purpose of developing,
validating, or administering predictive tests, administering student
aid programs, and improving instruction, if the studies are conducted
in a manner that will not permit the personal identification of
pupils or their parents by persons other than representatives of the
organizations, the information will be destroyed when no longer
needed for the purpose for which it is obtained, and the organization
enters into a written agreement with the educational agency or
institution that complies with Section 99.31(a)(6) of Title 34 of the
Code of Federal Regulations.
(F) Officials and employees of private schools or school systems
where the pupil is enrolled or intends to enroll, subject to the
rights of parents as provided in Section 49068 and in compliance with
the requirements in Section 99.34 of Title 34 of the Code of Federal
Regulations. This information shall be in addition to the pupil's
permanent record transferred pursuant to Section 49068.
(G) (i) A contractor or consultant with a legitimate educational
interest who has a formal written agreement or contract with the
school district regarding the provision of outsourced institutional
services or functions by the contractor or consultant.
(ii) A Notwithstanding Section
99.31(a)(1)(i)(B) of Title 34 of the Code of Federal Regulations, a
disclosure pursuant to this subparagraph shall not be permitted
to a volunteer or other party.
(3) A person, persons, agency, or organization permitted access to
pupil records pursuant to this section shall not permit access to
any information obtained from those records by another person,
persons, agency, or organization, except for allowable exceptions
contained within the federal Family Educational Rights and Privacy
Act of 2001 (20 U.S.C. Sec. 1232g) and state law, without the written
consent of the pupil's parent. This paragraph does not require prior
parental consent when information obtained pursuant to this section
is shared with other persons within the educational institution,
agency, or organization obtaining access, so long as those persons
have a legitimate educational interest in the information pursuant to
Section 99.31(a)(1) of Title 34 of the Code of Federal Regulations.
(4) Notwithstanding any other provision of law, a school district,
including a county office of education or county superintendent of
schools, may participate in an interagency data information system
that permits access to a computerized database system within and
between governmental agencies or school districts as to information
or records that are nonprivileged, and where release is authorized as
to the requesting agency under state or federal law or regulation,
if each of the following requirements are met:
(A) Each agency and school district shall develop security
procedures or devices by which unauthorized personnel cannot access
data contained in the system.
(B) Each agency and school district shall develop procedures or
devices to secure privileged or confidential data from unauthorized
disclosure.
(C) Each school district shall comply with the access log
requirements of Section 49064.
(D) The right of access granted shall not include the right to
add, delete, or alter data without the written permission of the
agency holding the data.
(E) An agency or school district shall not make public or
otherwise release information on an individual contained in the
database if the information is protected from disclosure or release
as to the requesting agency by state or federal law or regulation.
(b) The officials and authorities to whom pupil records are
disclosed pursuant to subdivision (e) of Section 48902 and
subparagraph (I) of paragraph (1) of subdivision (a) shall certify in
writing to the disclosing school district that the information shall
not be disclosed to another party, except as provided under the
federal Family Educational Rights and Privacy Act of 2001 (20 U.S.C.
Sec. 1232g) and state law, without the prior written consent of the
parent of the pupil or the person identified as the holder of the
pupil's educational rights.
(c) (1) Any person or party who is not permitted access to pupil
records pursuant to subdivision (a) or (b) may request access to
pupil records as provided for in paragraph (2).
(2) A local educational agency or other person or party who has
received pupil records, or information from pupil records, may
release the records or information to a person or party identified in
paragraph (1) without the consent of the pupil's parent or guardian
pursuant to Section 99.31(b) of Title 34 of the Code of Federal
Regulations, if the records or information are deidentified, which
requires the removal of all personally identifiable information,
provided that the disclosing local educational agency or other person
or party has made a reasonable determination that a pupil's identity
is not personally identifiable, whether through single or multiple
releases, and has taken into account other pertinent reasonably
available information.
SEC. 44. Section 49548 of the Education Code is amended to read:
49548. (a) The state board, in order to effect compliance with
legislative findings expressed in Section 49547, shall restrict the
criteria for the issuance of waivers from the requirements of Section
49550 to feed children during a summer school session. A waiver
shall be granted for a period not to exceed one year if either of the
following conditions exists:
(1) (A) A summer school session serving pupils enrolled in
elementary school, as defined in clause (iii), shall be granted a
waiver if a Summer Food Service Program for Children site is
available within one-half mile of the schoolsite and either of the
following conditions exists:
(i) The hours of operation of the Summer Food Service Program for
Children site commence no later than one-half hour after the
completion of the summer school session day.
(ii) The hours of operation of the Summer Food Service Program for
Children site conclude no earlier than one hour after the completion
of the summer school session day.
(iii) For purposes of this subdivision, "elementary school" means
a public school that maintains kindergarten or any of grades 1 to 8,
inclusive.
(B) A summer school session serving pupils enrolled in middle
school, junior high school, or high school shall be granted a waiver
if a Summer Food Service Program for Children site is available
within one mile of the schoolsite and either of the following
conditions exists:
(i) The hours of operation of the Summer Food Service Program for
Children site commence no later than one-half hour after the
completion of the summer school session day.
(ii) The hours of operation of the Summer Food Service Program for
Children site conclude no earlier than one hour after the completion
of the summer school session day.
(2) (A) Serving meals during the summer school session would
result in a financial loss to the school district, documented in a
financial analysis performed by the school district, in an amount
equal to one-third of net cash resources, as defined in Section 210.2
of Part 210 of Title 7 of the Code of Federal Regulations, which,
for purposes of this article, shall exclude funds that are
encumbered. If there are no net cash resources, an amount equal to
the operating costs of one month as averaged over the summer school
sessions.
(B) The financial analysis required by subparagraph (A) shall
include a projection of future meal program participation based on
either of the following:
(i) Commencement of a meal service period after the commencement
of the summer school session day and conclusion of a meal service
period before the completion of the summer school session day.
(ii) Operation of a schoolsite as an open Summer Seamless Option
or a Summer Food Service Program for Children site, and providing
adequate notification thereof, including flyers and banners, in order
to fulfill community needs under the Summer Food Service Program for
Children (7 C.F.R. 225.14(d)(3)).
(3) The entire summer school day is two hours or less in duration.
(b) The state board and the Superintendent shall provide
leadership to encourage and support schools and public agencies to
participate in the Summer Food Service Program for Children,
consistent with the intent of Section 49504.
(c) An application for a waiver shall be submitted no later than
60 days before the last regular meeting of the state board before the
commencement of the summer school session for which the waiver is
sought.
SEC. 45. Section 52052 of the Education Code is amended to read:
52052. (a) (1) The Superintendent, with approval of the state
board, shall develop an Academic Performance Index (API) to measure
the performance of schools, especially the academic performance of
pupils.
(2) A school shall demonstrate comparable improvement in academic
achievement as measured by the API by all numerically significant
pupil subgroups at the school, including:
(A) Ethnic subgroups.
(B) Socioeconomically disadvantaged pupils.
(C) English learners.
(D) Pupils with disabilities.
(3) (A) For purposes of this section, a numerically significant
pupil subgroup is one that meets both of the following criteria:
(i) The subgroup consists of at least 50 pupils, each of whom has
a valid test score.
(ii) The subgroup constitutes at least 15 percent of the total
population of pupils at a school who have valid test scores.
(B) If a subgroup does not constitute 15 percent of the total
population of pupils at a school who have valid test scores, the
subgroup may constitute a numerically significant pupil subgroup if
it has at least 100 valid test scores.
(C) For a school with an API score that is based on no fewer than
11 and no more than 99 pupils with valid test scores, numerically
significant pupil subgroups shall be defined by the Superintendent,
with approval by the state board.
(4) (A) The API shall consist of a variety of indicators currently
reported to the department, including, but not limited to, the
results of the achievement test administered pursuant to Section
60640, attendance rates for pupils in elementary schools, middle
schools, and secondary schools, and the graduation rates for pupils
in secondary schools.
(B) The Superintendent, with the approval of the state board, may
also incorporate into the API the rates at which pupils successfully
promote from one grade to the next in middle school and high school,
and successfully matriculate from middle school to high school.
(C) Graduation rates for pupils in secondary schools shall be
calculated for the API as follows:
(i) Four-year graduation rates shall be calculated by taking the
number of pupils who graduated on time for the current school year,
which is considered to be three school years after the pupils entered
grade 9 for the first time, and dividing that number by the total
calculated in clause (ii).
(ii) The number of pupils entering grade 9 for the first time in
the school year three school years before the current school year,
plus the number of pupils who transferred into the class graduating
at the end of the current school year between the school year that
was three school years before the current school year and the date of
graduation, less the number of pupils who transferred out of the
school between the school year that was three school years before the
current school year and the date of graduation who were members of
the class that is graduating at the end of the current school year.
(iii) Five-year graduation rates shall be calculated by taking the
number of pupils who graduated on time for the current school year,
which is considered to be four school years after the pupils entered
grade 9 for the first time, and dividing that number by the total
calculated in clause (iv).
(iv) The number of pupils entering grade 9 for the first time in
the school year four years before the current school year, plus the
number of pupils who transferred into the class graduating at the end
of the current school year between the school year that was four
school years before the current school year and the date of
graduation, less the number of pupils who transferred out of the
school between the school year that was four years before the current
school year and the date of graduation who were members of the class
that is graduating at the end of the current school year.
(v) Six-year graduation rates shall be calculated by taking the
number of pupils who graduated on time for the current school year,
which is considered to be five school years after the pupils entered
grade 9 for the first time, and dividing that number by the total
calculated in clause (vi).
(vi) The number of pupils entering grade 9 for the first time in
the school year five years before the current school year, plus the
number of pupils who transferred into the class graduating at the end
of the current school year between the school year that was five
school years before the current school year and the date of
graduation, less the number of pupils who transferred out of the
school between the school year that was five years before the current
school year and the date of graduation who were members of the class
that is graduating at the end of the current school year.
(D) The inclusion of five- and six-year graduation rates for
pupils in secondary schools shall meet the following requirements:
(i) Schools shall be granted one-half the credit in their API
scores for graduating pupils in five years that they are granted for
graduating pupils in four years.
(ii) Schools shall be granted one-quarter the credit in their API
scores for graduating pupils in six years that they are granted for
graduating pupils in four years.
(iii) Notwithstanding clauses (i) and (ii), schools shall be
granted full credit in their API scores for graduating in five or six
years a pupil with disabilities who graduates in accordance with his
or her individualized education program.
(E) The pupil data collected for the API that comes from the
achievement test administered pursuant to Section 60640 and the high
school exit examination administered pursuant to Section 60851, when
fully implemented, shall be disaggregated by special education
status, English learners, socioeconomic status, gender, and ethnic
group. Only the test scores of pupils who were counted as part of the
enrollment in the annual data collection of the California Basic
Educational Data System for the current fiscal year and who were
continuously enrolled during that year may be included in the test
result reports in the API score of the school.
(F) (i) Commencing with the baseline API calculation in 2016, and
for each year thereafter, results of the achievement test and other
tests specified in subdivision (b) shall constitute no more than 60
percent of the value of the index for secondary schools.
(ii) In addition to the elements required by this paragraph, the
Superintendent, with approval of the state board, may incorporate
into the index for secondary schools valid, reliable, and stable
measures of pupil preparedness for postsecondary education and
career.
(G) Results of the achievement test and other tests specified in
subdivision (b) shall constitute at least 60 percent of the value of
the index for primary schools and middle schools.
(H) It is the intent of the Legislature that the state's system of
public school accountability be more closely aligned with both the
public's expectations for public education and the workforce needs of
the state's economy. It is therefore necessary that the
accountability system evolve beyond its narrow focus on pupil test
scores to encompass other valuable information about school
performance, including, but not limited to, pupil preparedness for
college and career, as well as the high school graduation rates
already required by law.
(I) The Superintendent shall annually determine the accuracy of
the graduation rate data. Notwithstanding any other law, graduation
rates for pupils in dropout recovery high schools shall not be
included in the API. For purposes of this subparagraph, "dropout
recovery high school" means a high school in which 50 percent or more
of its pupils have been designated as dropouts pursuant to the
exit/withdrawal codes developed by the department or left a school
and were not otherwise enrolled in a school for a period of at least
180 days.
(J) To complement the API, the Superintendent, with the approval
of the state board, may develop and implement a program of school
quality review that features locally convened panels to visit
schools, observe teachers, interview pupils, and examine pupil work,
if an appropriation for this purpose is made in the annual Budget
Act.
(K) The Superintendent shall annually provide to local educational
agencies and the public a transparent and understandable explanation
of the individual components of the API and their relative values
within the API.
(L) An additional element chosen by the Superintendent and the
state board for inclusion in the API pursuant to this paragraph shall
not be incorporated into the API until at least one full school year
after the state board's decision to include the element into the
API.
(b) Pupil scores from the following tests, when available and when
found to be valid and reliable for this purpose, shall be
incorporated into the API:
(1) The standards-based achievement tests provided for in Section
60642.5.
(2) The high school exit examination.
(c) Based on the API, the Superintendent shall develop, and the
state board shall adopt, expected annual percentage growth targets
for all schools based on their API baseline score from the previous
year. Schools are expected to meet these growth targets through
effective allocation of available resources. For schools below the
statewide API performance target adopted by the state board pursuant
to subdivision (d), the minimum annual percentage growth target shall
be 5 percent of the difference between the actual API score of a
school and the statewide API performance target, or one API point,
whichever is greater. Schools at or above the statewide API
performance target shall have, as their growth target, maintenance of
their API score above the statewide API performance target. However,
the state board may set differential growth targets based on grade
level of instruction and may set higher growth targets for the lowest
performing schools because they have the greatest room for
improvement. To meet its growth target, a school shall demonstrate
that the annual growth in its API is equal to or more than its
schoolwide annual percentage growth target and that all numerically
significant pupil subgroups, as defined in subdivision (a), are
making comparable improvement.
(d) Upon adoption of state performance standards by the state
board, the Superintendent shall recommend, and the state board shall
adopt, a statewide API performance target that includes consideration
of performance standards and represents the proficiency level
required to meet the state performance target. When the API is fully
developed, schools, at a minimum, shall meet their annual API growth
targets to be eligible for the Governor's Performance Award Program
as set forth in Section 52057. The state board may establish
additional criteria that schools must meet to be eligible for the
Governor's Performance Award Program.
(e) (1) A school with 11 to 99 pupils with valid test scores shall
receive an API score with an asterisk that indicates less
statistical certainty than API scores based on 100 or more test
scores.
(2) A school annually shall receive an API score, unless the
Superintendent determines that an API score would be an invalid
measure of the performance of the school for one or more of the
following reasons:
(A) Irregularities in testing procedures occurred.
(B) The data used to calculate the API score of the school are not
representative of the pupil population at the school.
(C) Significant demographic changes in the pupil population render
year-to-year comparisons of pupil performance invalid.
(D) The department discovers or receives information indicating
that the integrity of the API score has been compromised.
(E) Insufficient pupil participation in the assessments included
in the API.
(3) If a school has fewer than 100 pupils with valid test scores,
the calculation of the API or adequate yearly progress pursuant to
the federal No Child Left Behind Act of 2001 (20 U.S.C. Sec. 6301 et
seq.) and federal regulations may be calculated over more than one
annual administration of the tests administered pursuant to Section
60640 and the high school exit examination administered pursuant to
Section 60851, consistent with regulations adopted by the state
board.
(f) Only schools with 100 or more test scores contributing to the
API may be included in the API rankings.
(g) The Superintendent, with the approval of the state board,
shall develop an alternative accountability system for schools under
the jurisdiction of a county board of education or a county
superintendent of schools, community day schools, nonpublic,
nonsectarian schools pursuant to Section 56366, and alternative
schools serving high-risk pupils, including continuation high schools
and opportunity schools. Schools in the alternative accountability
system may receive an API score, but shall not be included in the API
rankings.
SEC. 46. Section 60200.8 of the Education Code is amended to read:
60200.8. (a) Notwithstanding Section 60200.7, the state board may
consider the adoption of a revised curriculum framework and
evaluation criteria for instructional materials in history-social
science.
(b) The department shall conduct work necessary to revise the
curriculum framework and evaluation criteria for instructional
materials in history-social science only after it has completed work
related to the development of curriculum frameworks for the common
core academic content standards pursuant to Section 60207.
SEC. 47. Section 60209 of the Education Code is amended to read:
60209. For purposes of conducting an adoption of basic
instructional materials for mathematics pursuant to Section 60207,
all of the following shall apply:
(a) The department shall provide notice, pursuant to subdivision
(b), to all publishers or manufacturers known to produce basic
instructional materials in that subject, post an appropriate notice
on the Internet Web site of the department, and take other reasonable
measures to ensure that appropriate notice is widely circulated to
potentially interested publishers and manufacturers.
(b) The notice shall specify that each publisher or manufacturer
choosing to participate in the adoption shall be assessed a fee based
on the number of programs the publisher or manufacturer indicates
will be submitted for review and the number of grade levels proposed
to be covered by each program.
(c) The fee assessed pursuant to subdivision (d) shall be in an
amount that does not exceed the reasonable costs to the department in
conducting the adoption process. The department shall take
reasonable steps to limit costs of the adoption and to keep the fee
modest.
(d) The department, before incurring substantial costs for the
adoption, shall require that a publisher or manufacturer that wishes
to participate in the adoption first declare the intent to submit one
or more specific programs for adoption and specify the specific
grade levels to be covered by each program.
(1) After a publisher or manufacturer declares the intent to
submit one or more programs and the grade levels to be covered by
each program, the department shall assess a fee that shall be payable
by the publisher or manufacturer even if the publisher or
manufacturer subsequently chooses to withdraw a program or reduce the
number of grade levels covered.
(2) A submission by a publisher or manufacturer shall not be
reviewed for purposes of adoption until the fee assessed has been
paid in full.
(e) (1) Upon the request of a small publisher or small
manufacturer, the state board may reduce the fee for participation in
the adoption.
(2) For purposes of this section, "small publisher" and "small
manufacturer" mean an independently owned or operated publisher or
manufacturer that is not dominant in its field of operation and that,
together with its affiliates, has 100 or fewer employees, and has
average annual gross receipts of ten million dollars ($10,000,000) or
less over the previous three years.
(f) If the department determines that there is little or no
interest in participating in an adoption by publishers and
manufacturers, the department shall recommend to the state board
whether or not the adoption shall be conducted, and the state board
may choose not to conduct the adoption.
(g) Revenue derived from fees assessed pursuant to subdivision (d)
shall be budgeted as reimbursements and subject to review through
the annual budget process, and may be used to pay for costs
associated with any adoption and for any costs associated with the
review of instructional materials, including reimbursement of
substitute costs for teacher reviewers and may be used to cover
stipends for content review experts.
SEC. 48. Section 60605.87 of the Education Code is amended to
read:
60605.87. (a) The department shall recommend, and the state board
shall approve, evaluation criteria to guide the development and
review of supplemental instructional materials for English learners.
(b) Notwithstanding any other law, and on a one-time basis, the
department, on or before March 1, 2014, shall develop a list of
supplemental instructional materials for beginning through advanced
levels of proficiency for use in kindergarten and grades 1 to 8,
inclusive, that are aligned with the revised English language
development standards adopted pursuant to Section 60811.3. The
supplemental instructional materials shall provide a bridge between
the current English language development standards and the revised
English language development standards pursuant to Section 60811.3
with the purpose of ensuring the supplemental instructional materials
address the unique features of the English language development
standards and remain consistent with the relevant elements of the
evaluation criteria for English language arts supplemental
instructional materials adopted pursuant to Section 60605.86.
(c) (1) The department shall recommend, and the state board shall
approve, content review experts to review, in an open and transparent
process, supplemental instructional materials submitted for approval
in the subject area of English language development.
(2) The majority of content review experts approved pursuant to
paragraph (1) shall be elementary and secondary schoolteachers who
are credentialed in English language arts, possess the appropriate
state English learner authorization, and have five years of classroom
experience instructing English learners. The content review experts
also shall include appropriate persons possessing English learner
expertise from postsecondary educational institutions and school and
school district curriculum administrators possessing English learner
expertise, and other persons who are knowledgeable in English
language arts and English language development.
(d) (1) On or before June 30, 2014, the state board shall do the
following:
(A) Approve all, or a portion, of the list of supplemental
instructional materials proposed by the department, taking into
consideration the review of the content review experts and any other
relevant information, as appropriate.
(B) Reject all, or a portion, of the list of supplemental
instructional materials proposed by the department, taking into
consideration the review of the content review experts and any other
relevant information, as appropriate.
(2) If the state board rejects all, or a portion, of the list of
supplemental instructional materials proposed by the department, or
adds an item to the list, the state board, in a public meeting held
pursuant to 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), shall provide written reasons for the
removal or addition of an item on the list. The state board shall not
approve a supplemental instructional material it adds to the list at
the same time it provides its written reason for adding the
material; instead, the state board shall approve the added material
at a subsequent public meeting.
(e) (1) The governing board of a school district and a county
board of education may approve supplemental instructional materials
other than those approved by the state board pursuant to subdivision
(d) if the governing board of a school district or county board of
education determines that other supplemental instructional materials
are aligned with the revised English language development standards
adopted pursuant to Section 60811.3 and meet the needs of pupils of
the district who are English learners. The governing board of a
school district or the county board of education may only approve
supplemental instructional materials that comply with all of the
following:
(A) The evaluation criteria approved pursuant to subdivision (a).
(B) Section 60226.
(C) Subdivision (h).
(D) Article 4 (commencing with Section 60060) of Chapter 1.
(2) (A) A supplemental instructional material approved by a
governing board of a school district or county board of education
pursuant to this subdivision that is in the subject area of English
language development shall
be reviewed by content review experts chosen by the governing board.
(B) The majority of the content review experts chosen pursuant to
subparagraph (A) shall be elementary and secondary schoolteachers who
are credentialed in English language arts, possess the appropriate
state English learner authorization, and have five years of classroom
experience instructing English learners.
(C) The content review experts also shall include appropriate
persons possessing English learner expertise from postsecondary
educational institutions and school and school district curriculum
administrators possessing English learner expertise, and other
persons who are knowledgeable in English language arts and English
language development.
(f) Publishers choosing to submit supplemental instructional
materials for approval by the state board shall submit standards
maps.
(g) (1) Before approving supplemental instructional materials
pursuant to this section, the state board shall review those
instructional materials for academic content, social content, and
instructional support to teachers and pupils. Supplemental
instructional materials approved by the state board pursuant to this
section shall meet required program criteria for grade-level programs
and shall include materials for use by teachers.
(2) Before approving supplemental instructional materials pursuant
to this section, the governing board of a school district or county
board of education shall review those instructional materials for
academic content and instructional support to teachers and pupils who
are English learners. Supplemental instructional materials approved
by the governing board of a school district or county board of
education pursuant to this section shall meet required program
criteria for grade-level programs and shall include materials for use
by teachers.
(h) Supplemental instructional materials approved pursuant to this
section shall comply with the social content review requirements
pursuant to Section 60050.
(i) The department shall maintain on its Internet Web site the
list of supplemental instructional materials approved by the state
board pursuant to subdivision (d).
(j) This section shall become inoperative on July 1, 2014, and, as
of July 1, 2015, is repealed, unless a later enacted statute, that
becomes operative on or before July 1, 2015, deletes or extends the
dates on which it becomes inoperative and is repealed.
SEC. 49. Section 60852.1 of the Education Code is amended to read:
60852.1. (a) The Superintendent shall recommend, and the state
board shall select, members of a panel that shall convene to make
recommendations regarding alternative means for eligible pupils with
disabilities to demonstrate that they have achieved the same level of
academic achievement in the content standards in English language
arts or mathematics, or both, required for passage of the high school
exit examination.
(1) The panel shall be composed of educators and other individuals
who have experience with the population of pupils with disabilities
eligible for alternative means of demonstrating academic achievement,
as defined in Section 60852.2, and educators and other individuals
who have expertise with multiple forms of assessment. The panel shall
consult with experts in other states that offer alternative means
for pupils with disabilities to demonstrate academic achievement. A
majority of the panel shall be classroom teachers.
(2) The panel shall make findings and recommendations regarding
all of the following:
(A) Specific options for alternative assessments, submission of
evidence, or other alternative means by which eligible pupils with
disabilities may demonstrate that they have achieved the same level
of academic achievement in the content standards in English language
arts or mathematics, or both, required for passage of the high school
exit examination.
(B) Scoring or other evaluation systems designed to ensure that
the eligible pupil with a disability has achieved the same competence
in the content standards required for passage of the high school
exit examination.
(C) Processes to ensure that the form, content, and scoring of
assessments, evidence, or other means of demonstrating academic
achievement are applied uniformly across the state.
(D) Estimates of one-time or ongoing costs, and whether each
option should be implemented on a statewide or regional basis, or
both.
(3) The panel shall present its options and make its findings and
recommendations to the Superintendent and to the state board by
October 1, 2009.
(b) For those portions of, or those academic content standards
assessed by, the high school exit examination for which the state
board determines it is feasible to create alternative means by which
eligible pupils with disabilities may demonstrate the same level of
academic achievement required for passage of the high school exit
examination, the state board, taking into consideration the findings
and recommendations of the panel, shall adopt regulations for
alternative means by which eligible pupils with disabilities, as
defined in Section 60852.2, may demonstrate that they have achieved
the same level of academic achievement in the content standards
required for passage of the high school exit examination. The
regulations shall include appropriate timelines and the manner in
which eligible pupils with disabilities and school districts shall be
timely notified of the results.
SEC. 50. Section 66407 of the Education Code is amended to read:
66407. (a) (1) The publisher of a textbook, or an agent or
employee of the publisher, shall provide a prospective purchaser of
the textbook with all of the following:
(A) A list of all the products offered for sale by the publisher
germane to the prospective purchaser's subject area of interest.
(B) For a product listed pursuant to subparagraph (A), the
wholesale or retail price of the product, and the estimated length of
time the publisher intends to keep the product on the market.
(C) For each new edition of a product listed pursuant to
subparagraph (A), a list of the substantial content differences or
changes between the new edition and the previous edition of the
textbook.
(2) The publisher shall make the lists required by paragraph (1)
available to a prospective purchaser at the commencement of a sales
interaction, including, but not necessarily limited to, a sales
interaction conducted in person, by telephone, or electronically. The
publisher shall also post in a prominent position on its Internet
Web site the lists required by paragraph (1).
(b) As used in this section, the following terms have the
following meanings:
(1) "Product" means each version, including, but not necessarily
limited to, a version in a digital format, of a textbook, or set of
textbooks, in a particular subject area, including, but not
necessarily limited to, a supplemental item, whether or not the
supplemental item is sold separately or together with a textbook.
(2) "Publisher" has the same meaning as defined in subdivision (b)
of Section 66406.7.
(3) "Purchaser" means a faculty member of a public or private
postsecondary educational institution who selects the textbooks
assigned to students.
(4) "Textbook" has the same meaning as defined in subdivision (b)
of Section 66406.7.
SEC. 51. Section 81378.1 of the Education Code is amended to read:
81378.1. (a) The governing board of a community college district
may, without complying with any other provision of this article, let,
in the name of the district, any buildings, grounds, or space
therein, together with any personal property located thereon, not
needed for academic activities, upon the terms and conditions agreed
upon by the governing board and the lessee for a period of more than
five days but less than five years, as determined by the governing
board. Before executing the lease, the governing board shall include
in an agenda of a meeting of the board open to the public a
description of the proposed lease and an explanation of the
methodology used to establish the lease rate and for determining the
fair market value of the lease.
(b) The governing board shall give public notice before taking any
action pursuant to subdivision (a). The notice shall include a
description of the governing board's intended action. The notice
shall be printed once a week for three successive weeks prior to the
board meeting described in subdivision (a) in a newspaper of general
circulation that is published at least once a week.
(c) The governing board shall include, as a condition in any
agreement to let any buildings, grounds, or space therein, together
with any personal property located thereon, a provision that the
agreement shall be subject to renegotiation and may be rescinded
after 60 days' notice to the lessee if the governing board determines
at any time during the term of the agreement that the buildings,
grounds, or space therein subject to the agreement are needed for
academic activities. Any revenue derived pursuant to the agreement
shall be retained for the exclusive use of the community college
district whose buildings, grounds, or space therein are the basis of
the agreement and shall be used to supplement, but not supplant, any
state funding. Any buildings, grounds, or space therein let by the
district shall be included as space actually available for use by the
college in any calculations related to any plan for capital
construction submitted to the board of governors pursuant to Chapter
4 (commencing with Section 81800), or any other law.
(d) The authority of a governing board under this section does not
apply to the letting of an entire campus.
(e) The use of any buildings, grounds, or space therein, together
with any personal property located thereon, let by the governing
board pursuant to this section shall be consistent with all
applicable zoning ordinances and regulations.
SEC. 52. Section 88620 of the Education Code is amended to read:
88620. The following definitions govern the construction of this
part:
(a) "Board of governors" means the Board of Governors of the
California Community Colleges.
(b) "Business Resource Assistance and Innovation Network" means
the network of projects and programs that comprise the California
Community Colleges Economic and Workforce Development Program.
(c) "California Community Colleges Economic and Workforce
Development Program" and "economic and workforce development program"
mean the program.
(d) "Career pathways," and "career ladders," or "career lattices"
mean an identified series of positions, work experiences, or
educational benchmarks or credentials that offer occupational and
financial advancement within a specified career field or related
fields over time.
(e) (1) "Center" means a comprehensive program of services offered
by one or more community colleges to an economic region of the state
in accordance with criteria established by the chancellor's office
for designation as an economic and workforce development program
center. Center services shall be designed to respond to the statewide
strategic priorities pursuant to the mission of the community
colleges' economic and workforce development program, and to be
consistent with programmatic priorities, competitive and emerging
industry sectors and industry clusters, identified economic
development, career technical education, business development, and
continuous workforce training needs of a region. Centers shall
provide a foundation for the a
long-term, sustained relationship with businesses, labor, colleges,
and other workforce education and training delivery systems, such as
local workforce investment boards, in the region.
(2) A center shall support, develop, and deliver direct services
to students, businesses, colleges, labor organizations, employees,
and employers. For purposes of this subdivision, direct services
include, but are not necessarily limited to, data analysis both of
labor market information and college performance; intraregion and
multiregion sector coordination and logistics; inventory of community
college and other assets relevant to meeting a labor market need;
curriculum development, curriculum model development, or job task
analysis development; articulation of curriculum in a career pathway
or career lattice or in a system of stackable credentials; faculty
training; calibration to a career readiness or other assessment;
assessment administration; career guidance module development or
counseling; convenings, such as seminars, workshops, conferences, and
training; facilitating collaboration between faculty working in
related disciplines and sectors; upgrading, leveraging, and
developing technology; and other educational services. The
establishment and maintenance of the centers is under the sole
authority of the chancellor's office in order to preserve the
flexibility of the system to adapt to labor market needs and to
integrate resources.
(f) "Chancellor" means the Chancellor of the California Community
Colleges.
(g) "Economic security" means, with respect to a worker, earning a
wage sufficient to adequately support a family and to, over time,
save money for emergency expenses and adequate retirement income, the
sufficiency of which is determined considering a variety of factors
including household size, the cost of living in the worker's
community, and other factors that may vary by region.
(h) "High-priority occupation" means an occupation that has a
significant presence in a targeted industry sector or industry
cluster, is in demand by employers, and pays or leads to payment of
high wages.
(i) "Industry cluster" means a geographic concentration or
emerging concentration of interdependent industries with direct
service, supplier, and research relationships, or independent
industries that share common resources in a given regional economy or
labor market. An industry cluster is a group of employers closely
linked by a common product or services, workforce needs, similar
technologies, and supply chains in a given regional economy or labor
market.
(j) "Industry-driven regional collaborative" means a regional
public, private, or other community organizational structure that
jointly defines priorities, delivers services across programs,
sectors, and in response to, or driven by, industry needs. The
industry-driven regional collaborative projects meet the needs and
fill gaps in services that respond to regional business, employee,
and labor needs. These service-delivery structures offer flexibility
to local communities and partners to meet the identified needs in an
economic development region. Industry-driven regional collaboratives
are broadly defined to allow maximum local autonomy in developing
projects responding to the needs of business, industry, and labor.
(k) "Industry sector" means those firms that produce similar
products or provide similar services using somewhat similar business
processes.
(l) "Initiative" is an identified strategic priority area that is
organized statewide, but is a regionally based effort to develop and
implement innovative solutions designed to facilitate the
development, implementation, and coordination of community college
economic development and related programs and services. Each
initiative shall be workforce and business development driven by a
statewide committee made up of community college faculty and
administrators and practitioners and managers from business, labor,
and industry. Centers, industry-driven regional collaboratives, and
other economic and workforce development programs performing services
as a part of the implementation of an initiative shall coordinate
services statewide and within regions of the state, as appropriate.
(m) "Job development incentive training" means programs that
provide incentives to employers to create entry-level positions in
their businesses, or through their suppliers or prime customers, for
welfare recipients and the working poor.
(n) "Matching resources" means any combination of public or
private resources, either cash or in-kind, derived from sources other
than the economic and workforce development program funds
appropriated by the annual Budget Act, that are determined to be
necessary for the success of the project to which they are applied.
The criteria for in-kind resources shall be developed by the board of
governors, with advice from the chancellor and the California
Community Colleges Economic and Workforce Development Program
Advisory Committee, and shall be consistent with generally accepted
accounting practices for state and federal matching requirements. The
ratio of matching resources to economic and workforce development
program funding shall be determined by the board of governors.
(o) "Performance improvement training" means training delivered by
a community college that includes all of the following:
(1) An initial needs assessment process that identifies both
training and nontraining issues that need to be addressed to improve
individual and organizational performance.
(2) Consultation with employers to develop action plans that
address business or nonprofit performance improvements.
(3) Training programs that link individual performance
requirements with quantifiable business measures, resulting in
demonstrable productivity gains, and, as appropriate, job retention,
job creation, improvement in wages, or attainment of wages that
provide economic security.
(p) "Program" means the California Community Colleges Economic and
Workforce Development Program established under this part.
(q) "Region" means a geographic area of the state defined by
economic and labor market factors containing at least one industry
cluster and the cities, counties, or community college districts, or
all of them, in the industry cluster's geographic area. For the
purposes of this chapter, "California Community College economic
development regions" shall be designated by the board of governors
based on factors, including, but not necessarily limited to, all of
the following:
(1) Regional economic development and training needs of business
and industry.
(2) Regional collaboration, as appropriate, among community
colleges and districts, and existing economic development, continuous
workforce improvement, technology deployment, and business
development.
(3) Other state economic development definitions of regions.
(r) "Sector strategies" means prioritizing investments in
competitive and emerging industry sectors and industry clusters on
the basis of labor market and other economic data that indicate
strategic growth potential, especially with regard to jobs and
income. Sector strategies focus workforce investment in education and
workforce training programs that are likely to lead to high-wage
jobs or to entry-level jobs with well-articulated career pathways
into high-wage jobs. Sector strategies effectively boost labor
productivity or reduce business barriers to growth and expansion
stemming from workforce supply problems, including skills gaps, and
occupational shortages by directing resources and making investments
to plug skills gaps and provide education and training programs for
high-priority occupations. Sector strategies may be implemented using
articulated career pathways or career lattices and a system of
stackable credentials. Sector strategies often target underserved
communities, disconnected youth, incumbent workers, and recently
separated military veterans. Cluster-based sector strategies focus
workforce and economic development on those sectors that have
demonstrated a capacity for economic growth and job creation in a
particular geographic area. Industry clusters are similar to industry
sectors, but the focus is on a geographic concentration of
interdependent industries.
(s) "Skills panel" means a collaboration which brings together
multiple employers from an industry sector or industry cluster with
career technical educators, including, but not limited to, community
college career technical education faculty, and other stakeholders
which may include workers and organized labor to address common
workforce needs. Skills panels assess workforce training and
education needs through the identification of assets relevant to
industry need, produce curricula models, perform job task analysis,
define how curricula articulate into career pathways or career
lattices or a system of stackable credentials, calibrate career
readiness, develop other assessment tools, and produce career
guidance tools.
(t) "Stackable credentials" means a progression of training
modules, credentials, or certificates that build on one another and
are linked to educational and career advancement.
SEC. 53. Section 2162 of the Elections Code is amended to read:
2162. (a) No affidavits of registration other than those provided
by the Secretary of State to the county elections officials or the
national voter registration forms authorized pursuant to the federal
National Voter Registration Act of 1993 (42 U.S.C. Sec. 1973gg et
seq.) shall be used for the registration of voters.
(b) A voter registration card shall not be altered, defaced, or
changed in any way, other than by the insertion of a mailing address
and the affixing of postage, if mailed, or as otherwise specifically
authorized by the Secretary of State, prior to distribution of the
cards.
(c) The affidavit portion of a voter registration card shall not
be marked, stamped, or partially or fully completed by a person other
than an elector attempting to register to vote or by a person
assisting the elector in completing the affidavit at the request of
the elector.
SEC. 54. Section 2224 of the Elections Code is amended to read:
2224. (a) If a voter has not voted in an election within the
preceding four years, and his or her residence address, name, or
party affiliation has not been updated during that time, the county
elections official may send an alternate residency confirmation
postcard. The use of this postcard may be sent subsequent to NCOA or
sample ballot returns, but shall not be used in the residency
confirmation process conducted under Section 2220. The postcard shall
be forwardable, including a postage-paid and preaddressed return
form to enable the voter to verify or correct the address
information, and shall be in substantially the following form:
"If the person named on the postcard is not at this address,
PLEASE help keep the voter rolls current and save taxpayer dollars by
returning this postcard to your mail carrier."
"IMPORTANT NOTICE"
"According to our records you have not voted in any election
during the past four years, which may indicate that you no longer
reside in ____ County. If you continue to reside in this county you
must confirm your residency address in order to remain on the active
voter list and receive election materials in the mail."
"If confirmation has not been received within 15 days, you may be
required to provide proof of your residence address in order to vote
at future elections. If you no longer live in ____ County, you must
reregister at your new residence address in order to vote in the next
election. California residents may obtain a mail registration form
by calling the county elections office or the Secretary of State's
office."
(b) The use of a toll-free number to confirm the old residence
address is optional. Any change to a voter's address shall be
received in writing.
(c) A county using the alternate residency confirmation procedure
shall notify all voters of the procedure in the sample ballot
pamphlet or in a separate mailing.
SEC. 55. Section 2225 of the Elections Code is amended to read:
2225. (a) Based on change-of-address data received from the
United States Postal Service or its licensees, the county elections
official shall send a forwardable notice, including a postage-paid
and preaddressed return form, to enable the voter to verify or
correct address information.
Notification received through NCOA or Operation Mail that a voter
has moved and has given no forwarding address shall not require the
mailing of a forwardable notice to that voter.
(b) If postal service change-of-address data indicates that the
voter has moved to a new residence address in the same county, the
forwardable notice shall be in substantially the following form:
"We have received notification that the voter has moved to a new
residence address in ____ County. You will be registered to vote at
your new address unless you notify our office within 15 days that the
address to which this card was mailed is not a change of your
permanent residence. You must notify our office by either returning
the attached postage-paid postcard, or by calling toll free. If this
is not a permanent residence, and if you do not notify us within 15
days, you may be required to provide proof of your residence address
in order to vote at future elections."
(c) If postal service change-of-address data indicates that the
voter has moved to a new address in another county, the forwardable
notice shall be in substantially the following form:
"We have received notification that you have moved to a new
address not in ____ County. Please use the attached postage-paid
postcard to: (1) advise us if this is or is not a permanent change of
residence address, or (2) to advise us if our information is
incorrect. If you do not return this card within 15 days and continue
to reside in ____ County, you may be required to provide proof of
your residence address in order to vote at future elections and, if
you do not offer to vote at any election in the period between the
date of this notice and the second federal general election following
this notice, your voter registration will be canceled and you will
have to reregister in order to vote. If you no longer live in ____
County, you must reregister at your new residence address in order to
vote in the next election. California residents may obtain a mail
registration form by calling the county elections officer or
1-800-345-VOTE."
(d) If postal service change-of-address data received from a
nonforwardable mailing indicates that a voter has moved and left no
forwarding address, a forwardable notice shall be sent in
substantially the following form:
"We are attempting to verify postal notification that the voter to
whom this card is addressed has moved and left no forwarding
address. If the person receiving this card is the addressed voter,
please confirm your continued residence or provide current residence
information on the attached postage-paid postcard within 15 days. If
you do not return this card and continue
to reside in ____ County, you may be required to
provide proof of your residence address in order to vote at future
elections and, if you do not offer to vote at any election in the
period between the date of this notice and the second federal general
election following this notice, your voter registration will be
cancelled and you will have to reregister in order to vote. If you no
longer live in ____ County, you must reregister at your new
residence address in order to vote in the next election. California
residents may obtain a mail registration form by calling the county
elections office or the Secretary of State's office."
(e) The use of a toll-free number to confirm the old residence
address is optional. Any change to the voter address must be received
in writing.
SEC. 56. Section 3111 of the Elections Code is amended to read:
3111. If a military or overseas voter is unable to appear at his
or her polling place because of being recalled to service after the
final day for making application for a vote by mail ballot, but
before 5 p.m. on the day before the day of election, he or she may
appear before the elections official in the county in which the
military or overseas voter is registered or, if within the state, in
the county in which he or she is recalled to service and make
application for a vote by mail ballot, which may be submitted by
facsimile, or by electronic mail or online transmission if the
elections official makes the transmission option available. The
elections official shall deliver to him or her a vote by mail ballot
which may be voted in the elections official's office or voted
outside the elections official's office on or before the close of the
polls on the day of election and returned as are other vote by mail
ballots. To be counted, the ballot shall be returned to the elections
official's office in person, by facsimile transmission, or by an
authorized person on or before the close of the polls on the day of
the election. If the military or overseas voter appears in the county
in which he or she is recalled to service, rather than the county to
which he or she is registered, the elections official shall
coordinate with the elections official in the county in which the
military or overseas voter is registered to provide the ballot that
contains the appropriate measures and races for the precinct in which
the military or overseas voter is registered.
SEC. 57. Section 13115 of the Elections Code is amended to read:
13115. The order in which all state measures that are to be
submitted to the voters shall appear on the ballot is as follows:
(a) Bond measures, including those proposed by initiative, in the
order in which they qualify.
(b) Constitutional amendments, including those proposed by
initiative, in the order in which they qualify.
(c) Legislative measures, other than those described in
subdivision (a) or (b), in the order in which they are approved by
the Legislature.
(d) Initiative measures, other than those described in subdivision
(a) or (b), in the order in which they qualify.
(e) Referendum measures, in the order in which they qualify.
SEC. 58. Section 21000 of the Elections Code is amended to read:
21000. The county elections official in each county shall compile
and make available to the Legislature or any appropriate committee
of the Legislature any information and statistics that may be
necessary for use in connection with the reapportionment of
legislative districts, including, but not limited to, precinct maps
indicating the boundaries of municipalities, school districts,
judicial districts, Assembly districts, senatorial districts, and
congressional districts, lists showing the election returns for each
precinct, and election returns for each precinct reflecting the vote
total for all ballots cast, including both vote by mail ballots and
ballots cast at polling places, compiled pursuant to Section 15321 in
the county at each statewide election. If the county elections
official stores the information and statistics in data-processing
files, he or she shall make the files available, along with whatever
documentation shall be necessary in order to allow the use of the
files by the appropriate committee of the Legislature and shall
retain these files until the next reapportionment has been completed.
SEC. 59. Section 3047 of the Family Code is amended to read:
3047. (a) A party's absence, relocation, or failure to comply
with custody and visitation orders shall not, by itself, be
sufficient to justify a modification of a custody or visitation order
if the reason for the absence, relocation, or failure to comply is
the party's activation to military duty or temporary duty,
mobilization in support of combat or other military operation, or
military deployment out of state.
(b) (1) If a party with sole or joint physical custody or
visitation receives temporary duty, deployment, or mobilization
orders from the military that require the party to move a substantial
distance from his or her residence or otherwise has a material
effect on the ability of the party to exercise custody or visitation
rights, any necessary modification of the existing custody order
shall be deemed a temporary custody order made without prejudice,
which shall be subject to review and reconsideration upon the return
of the party from military deployment, mobilization, or temporary
duty.
(2) If the temporary order is reviewed upon return of the party
from military deployment, mobilization, or temporary duty, there
shall be a presumption that the custody order shall revert to the
order that was in place before the modification, unless the court
determines that it is not in the best interest of the child. The
court shall not, as part of its review of the temporary order upon
the return of the deploying party, order a child custody evaluation
under Section 3111 of this code or Section 730 of the Evidence Code,
unless the party opposing reversion of the order makes a prima facie
showing that reversion is not in the best interest of the child.
(3) (A) If the court makes a temporary custody order, it shall
consider any appropriate orders to ensure that the relocating party
can maintain frequent and continuing contact with the child by means
that are reasonably available.
(B) Upon a motion by the relocating party, the court may grant
reasonable visitation rights to a stepparent, grandparent, or other
family member if the court does all of the following:
(i) Finds that there is a preexisting relationship between the
family member and the child that has engendered a bond such that
visitation is in the best interest of the child.
(ii) Finds that the visitation will facilitate the child's contact
with the relocating party.
(iii) Balances the interest of the child in having visitation with
the family member against the right of the parents to exercise
parental authority.
(C) Nothing in this paragraph shall increase the authority of the
persons described in subparagraph (B) to seek visitation orders
independently.
(D) The granting of visitation rights to a nonparent pursuant to
subparagraph (B) shall not impact the calculation of child support.
(c) If a party's deployment, mobilization, or temporary duty will
have a material effect on his or her ability, or anticipated ability,
to appear in person at a regularly scheduled hearing, the court
shall do either of the following:
(1) Upon motion of the party, hold an expedited hearing to
determine custody and visitation issues prior to the departure of the
party.
(2) Upon motion of the party, allow the party to present testimony
and evidence and participate in court-ordered child custody
mediation by electronic means, including, but not limited to,
telephone, video teleconferencing, or the Internet, to the extent
that this technology is reasonably available to the court and
protects the due process rights of all parties.
(d) A relocation by a nondeploying parent during a period of a
deployed parent's absence while a temporary modification order for a
parenting plan is in effect shall not, by itself, terminate the
exclusive and continuing jurisdiction of the court for purposes of
later determining custody or parenting time under this chapter.
(e) When a court of this state has issued a custody or visitation
order, the absence of a child from this state during the deployment
of a parent shall be considered a "temporary absence" for purposes of
the Uniform Child Custody Jurisdiction and Enforcement Act (Part 3
(commencing with Section 3400)), and the court shall retain exclusive
continuing jurisdiction under Section 3422.
(f) The deployment of a parent shall not be used as a basis to
assert inconvenience of the forum under Section 3427.
(g) For purposes of this section, the following terms have the
following meanings:
(1) "Deployment" means the temporary transfer of a member of the
Armed Forces in active-duty status in support of combat or some other
military operation.
(2) "Mobilization" means the transfer of a member of the National
Guard or Military Reserve to extended active-duty status, but does
not include National Guard or Military Reserve annual training.
(3) "Temporary duty" means the transfer of a service member from
one military base to a different location, usually another base, for
a limited period of time to accomplish training or to assist in the
performance of a noncombat mission.
(h) It is the intent of the Legislature that this section provide
a fair, efficient, and expeditious process to resolve child custody
and visitation issues when a party receives temporary duty,
deployment, or mobilization orders from the military, as well as at
the time that the party returns from service and files a motion to
revert back to the custody order in place before the deployment. The
Legislature intends that family courts shall, to the extent feasible
within existing resources and court practices, prioritize the
calendaring of these cases, avoid unnecessary delay or continuances,
and ensure that parties who serve in the military are not penalized
for their service by a delay in appropriate access to their children.
SEC. 60. Section 3200.5 of the Family Code is amended to read:
3200.5. (a) Any standards for supervised visitation providers
adopted by the Judicial Council pursuant to Section 3200 shall
conform to this section. A provider, as described in Section 3200,
shall be a professional provider or nonprofessional provider.
(b) In any case in which the court has determined that there is
domestic violence or child abuse or neglect, as defined in Section
11165.6 of the Penal Code, and the court determines supervision is
necessary, the court shall consider whether to use a professional or
nonprofessional provider based upon the child's best interest.
(c) For the purposes of this section, the following definitions
apply:
(1) "Nonprofessional provider" means any person who is not paid
for providing supervised visitation services. Unless otherwise
ordered by the court or stipulated by the parties, the
nonprofessional provider shall:
(A) Have no record of a conviction for child molestation, child
abuse, or other crimes against a person.
(B) Have proof of automobile insurance if transporting the child.
(C) Have no current or past court order in which the provider is
the person being supervised.
(D) Agree to adhere to and enforce the court order regarding
supervised visitation.
(2) "Professional provider" means any person paid for providing
supervised visitation services, or an independent contractor,
employee, intern, or volunteer operating independently or through a
supervised visitation center or agency. The professional provider
shall:
(A) Be at least 21 years of age.
(B) Have no record of a conviction for driving under the influence
(DUI) within the last five years.
(C) Not have been on probation or parole for the last 10 years.
(D) Have no record of a conviction for child molestation, child
abuse, or other crimes against a person.
(E) Have proof of automobile insurance if transporting the child.
(F) Have no civil, criminal, or juvenile restraining orders within
the last 10 years.
(G) Have no current or past court order in which the provider is
the person being supervised.
(H) Be able to speak the language of the party being supervised
and of the child, or the provider must provide a neutral interpreter
over 18 years of age who is able to do so.
(I) Agree to adhere to and enforce the court order regarding
supervised visitation.
(J) Meet the training requirements set forth in subdivision (d).
(d) (1) Professional providers shall have received 24 hours of
training that includes training in the following subjects:
(A) The role of a professional provider.
(B) Child abuse reporting laws.
(C) Recordkeeping procedures.
(D) Screening, monitoring, and termination of visitation.
(E) Developmental needs of children.
(F) Legal responsibilities and obligations of a provider.
(G) Cultural sensitivity.
(H) Conflicts of interest.
(I) Confidentiality.
(J) Issues relating to substance abuse, child abuse, sexual
abuse, and domestic violence.
(K) Basic knowledge of family and juvenile law.
(2) Professional providers shall sign a declaration or any
Judicial Council form that they meet the training and qualifications
of a provider.
(e) The ratio of children to a professional provider shall be
contingent on:
(1) The degree of risk factors present in each case.
(2) The nature of supervision required in each case.
(3) The number and ages of the children to be supervised during a
visit.
(4) The number of people visiting the child during the visit.
(5) The duration and location of the visit.
(6) The experience of the provider.
(f) Professional providers of supervised visitation shall:
(1) Advise the parties before commencement of supervised
visitation that no confidential privilege exists.
(2) Report suspected child abuse to the appropriate agency, as
provided by law, and inform the parties of the provider's obligation
to make those reports.
(3) Suspend or terminate visitation under subdivision (h).
(g) Professional providers shall:
(1) Prepare a written contract to be signed by the parties before
commencement of the supervised visitation. The contract should inform
each party of the terms and conditions of supervised visitation.
(2) Review custody and visitation orders relevant to the
supervised visitation.
(3) Keep a record for each case, including, at least, all of the
following:
(A) A written record of each contact and visit.
(B) Who attended the visit.
(C) Any failure to comply with the terms and conditions of the
visitation.
(D) Any incidence of abuse, as required by law.
(h) (1) Each provider shall make every reasonable effort to
provide a safe visit for the child and the noncustodial party.
(2) If a provider determines that the rules of the visit have been
violated, the child has become acutely distressed, or the safety of
the child or the provider is at risk, the visit may be temporarily
interrupted, rescheduled at a later date, or terminated.
(3) All interruptions or terminations of visits shall be recorded
in the case file.
(4) All providers shall advise both parties of the reasons for the
interruption or termination of a visit.
(i) A professional provider shall state the reasons for temporary
suspension or termination of supervised visitation in writing and
shall provide the written statement to both parties, their attorneys,
the attorney for the child, and the court.
SEC. 61. Section 4055 of the Family Code, as amended by Section 1
of Chapter 646 of the Statutes of 2012, is amended to read:
4055. (a) The statewide uniform guideline for determining child
support orders is as follows: CS = KHN - (H%)(TN)].
(b) (1) The components of the formula are as follows:
(A) CS = child support amount.
(B) K = amount of both parents' income to be allocated for child
support as set forth in paragraph (3).
(C) HN = high earner's net monthly disposable income.
(D) H% = approximate percentage of time that the high earner has
or will have primary physical responsibility for the children
compared to the other parent. In cases in which parents have
different time-sharing arrangements for different children, H% equals
the average of the approximate percentages of time the high earner
parent spends with each child.
(E) TN = total net monthly disposable income of both parties.
(2) To compute net disposable income, see Section 4059.
(3) K (amount of both parents' income allocated for child support)
equals one plus H% (if H% is less than or equal to 50 percent) or
two minus H% (if H% is greater than 50 percent) times the following
fraction:
Total Net
Disposable
Income Per Month K
$0-800 0.20 + TN/16,000
$801-6,666 0.25
$6,667-10,000 0.10 + 1,000/TN
Over $10,000 0.12 + 800/TN
For example, if H% equals 20 percent and the total monthly net
disposable income of the parents is $1,000, K = (1 + 0.20) × 0.25, or
0.30. If H% equals 80 percent and the total monthly net disposable
income of the parents is $1,000, K = (2 - 0.80) × 0.25, or 0.30.
(4) For more than one child, multiply CS by:
2 children 1.6
3 children 2
4 children 2.3
5 children 2.5
6 children 2.625
7 children 2.75
8 children 2.813
9 children 2.844
10 children 2.86
(5) If the amount calculated under the formula results in a
positive number, the higher earner shall pay that amount to the lower
earner. If the amount calculated under the formula results in a
negative number, the lower earner shall pay the absolute value of
that amount to the higher earner.
(6) In any default proceeding where proof is by affidavit pursuant
to Section 2336, or in any proceeding for child support in which a
party fails to appear after being duly noticed, H% shall be set at
zero in the formula if the noncustodial parent is the higher earner
or at 100 if the custodial parent is the higher earner, where there
is no evidence presented demonstrating the percentage of time that
the noncustodial parent has primary physical responsibility for the
children. H% shall not be set as described above if the moving party
in a default proceeding is the noncustodial parent or if the party
who fails to appear after being duly noticed is the custodial parent.
A statement by the party who is not in default as to the percentage
of time that the noncustodial parent has primary physical
responsibility for the children shall be deemed sufficient evidence.
(7) In all cases in which the net disposable income per month of
the obligor is less than one thousand five hundred dollars ($1,500),
adjusted annually for cost-of-living increases, there shall be a
rebuttable presumption that the obligor is entitled to a low-income
adjustment. On March 1, 2013, and annually thereafter, the Judicial
Council shall determine the amount of the net disposable income
adjustment based on the change in the annual California Consumer
Price Index for All Urban Consumers, published by the California
Department of Industrial Relations, Division of Labor Statistics and
Research. The presumption may be rebutted by evidence showing that
the application of the low-income adjustment would be unjust and
inappropriate in the particular case. In determining whether the
presumption is rebutted, the court shall consider the principles
provided in Section 4053, and the impact of the contemplated
adjustment on the respective net incomes of the obligor and the
obligee. The low-income adjustment shall reduce the child support
amount otherwise determined under this section by an amount that is
no greater than the amount calculated by multiplying the child
support amount otherwise determined under this section by a fraction,
the numerator of which is 1,500 minus the obligor's net disposable
income per month, and the denominator of which is 1,500.
(8) Unless the court orders otherwise, the order for child support
shall allocate the support amount so that the amount of support for
the youngest child is the amount of support for one child, and the
amount for the next youngest child is the difference between that
amount and the amount for two children, with similar allocations for
additional children. However, this paragraph does not apply to cases
in which there are different time-sharing arrangements for different
children or where the court determines that the allocation would be
inappropriate in the particular case.
(c) If a court uses a computer to calculate the child support
order, the computer program shall not automatically default
affirmatively or negatively on whether a low-income adjustment is to
be applied. If the low-income adjustment is applied, the computer
program shall not provide the amount of the low-income adjustment.
Instead, the computer program shall ask the user whether or not to
apply the low-income adjustment, and if answered affirmatively, the
computer program shall provide the range of the adjustment permitted
by paragraph (7) of subdivision (b).
(d) 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. 62. Section 4055 of the Family Code, as added by Section 2 of
Chapter 646 of the Statutes of 2012, is amended to read:
4055. (a) The statewide uniform guideline for determining child
support orders is as follows: CS = KHN - (H%)(TN)].
(b) (1) The components of the formula are as follows:
(A) CS = child support amount.
(B) K = amount of both parents' income to be allocated for child
support as set forth in paragraph (3).
(C) HN = high earner's net monthly disposable income.
(D) H% = approximate percentage of time that the high earner has
or will have primary physical responsibility for the children
compared to the other parent. In cases in which parents have
different time-sharing arrangements for different children, H% equals
the average of the approximate percentages of time the high earner
parent spends with each child.
(E) TN = total net monthly disposable income of both parties.
(2) To compute net disposable income, see Section 4059.
(3) K (amount of both parents' income allocated for child support)
equals one plus H% (if H% is less than or equal to 50 percent) or
two minus H% (if H% is greater than 50 percent) times the following
fraction:
Total Net
Disposable
Income Per Month K
$0-800 0.20 + TN/16,000
$801-6,666 0.25
$6,667-10,000 0.10 + 1,000/TN
Over $10,000 0.12 + 800/TN
For example, if H% equals 20 percent and the total monthly net
disposable income of the parents is $1,000, K = (1 + 0.20) × 0.25, or
0.30. If H% equals 80 percent and the total monthly net disposable
income of the parents is $1,000, K =(2 - 0.80) × 0.25, or 0.30.
(4) For more than one child, multiply CS by:
2 children 1.6
3 children 2
4 children 2.3
5 children 2.5
6 children 2.625
7 children 2.75
8 children 2.813
9 children 2.844
10 children 2.86
(5) If the amount calculated under the formula results in a
positive number, the higher earner shall pay that amount to the lower
earner. If the amount calculated under the formula results in a
negative number, the lower earner shall pay the absolute value of
that amount to the higher earner.
(6) In any default proceeding where proof is by affidavit pursuant
to Section 2336, or in any proceeding for child support in which a
party fails to appear after being duly noticed, H% shall be set at
zero in the formula if the noncustodial parent is the higher earner
or at 100 if the custodial parent is the higher earner, where there
is no evidence presented demonstrating the percentage of time that
the noncustodial parent has primary physical responsibility for the
children. H% shall not be set as described above if the moving party
in a default proceeding is the noncustodial parent or if the party
who fails to appear after being duly noticed is the custodial parent.
A statement by the party who is not in default as to the percentage
of time that the noncustodial parent has primary physical
responsibility for the children shall be deemed sufficient evidence.
(7) In all cases in which the net disposable income per month of
the obligor is less than one thousand dollars ($1,000), there shall
be a rebuttable presumption that the obligor is entitled to a
low-income adjustment. The presumption may be rebutted by evidence
showing that the application of the low-income adjustment would be
unjust and inappropriate in the particular case. In determining
whether the presumption is rebutted, the court shall consider the
principles provided in Section 4053, and the impact of the
contemplated adjustment on the respective net incomes of the obligor
and the obligee. The low-income adjustment shall reduce the child
support amount otherwise determined under this section by an amount
that is no greater than the amount calculated by multiplying the
child support amount otherwise determined under this section by a
fraction, the numerator of which is 1,000 minus the obligor's net
disposable income per month, and the denominator of which is 1,000.
(8) Unless the court orders otherwise, the order for child support
shall allocate the support amount so that the amount of support for
the youngest child is the amount of support for one child, and the
amount for the next youngest child is the difference between that
amount and the amount for two children, with similar allocations for
additional children. However, this paragraph does not apply to cases
in which there are different time-sharing arrangements for different
children or where the court determines that the allocation would be
inappropriate in the particular case.
(c) If a court uses a computer to calculate the child support
order, the computer program shall not automatically default
affirmatively or negatively on whether a low-income adjustment is to
be applied. If the low-income adjustment is applied, the computer
program shall not
provide the amount of the low-income adjustment. Instead, the
computer program shall ask the user whether or not to apply the
low-income adjustment, and if answered affirmatively, the computer
program shall provide the range of the adjustment permitted by
paragraph (7) of subdivision (b).
(d) This section shall become operative on January 1, 2018.
SEC. 63. Section 1587 of the Fish and Game Code is amended to
read:
1587. (a) The Mirage Trail within the Magnesia Spring Ecological
Reserve shall be open nine months of the year to recreational hiking
if the commission determines that the following conditions are met:
(1) Local public agencies or other entities will assume complete
financial responsibility for the following as determined to be
necessary by the commission:
(A) Fencing to dissuade hikers from traversing beyond the trail
and into sensitive Peninsular bighorn sheep habitat.
(B) Signage and educational materials to educate hikers about
Peninsular bighorn sheep.
(2) A single entity has been designated to fulfill the financial
arrangements and other terms and conditions determined by the
commission to be necessary pursuant to paragraph (1).
(b) The commission shall determine seasonal openings and closures
of the trail that will not conflict with the use of the area by
Peninsular bighorn sheep, consistent with subdivision (a).
(c) 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. 64. Section 15100 of the Fish and Game Code is amended to
read:
15100. There is within the department an aquaculture coordinator
who shall perform all of the following duties as part of the
department's aquaculture program:
(a) Promote understanding of aquaculture among public agencies and
the general public.
(b) Propose methods of reducing the negative impact of public
regulation at all levels of government on the aquaculture industry.
(c) Provide information on all aspects of regulatory compliance to
the various sectors of the aquaculture industry.
(d) Provide advice to the owner of a registered aquaculture
facility on project siting and facility design, as necessary, to
comply with regulatory requirements.
(e) Coordinate with the Aquaculture Development Committee
regarding the duties described in subdivisions (a) to (d), inclusive.
SEC. 65. Section 4101.3 of the Food and Agricultural Code, as
amended by Section 2 of Chapter 137 of the Statutes of 2012, is
amended to read:
4101.3. (a) Notwithstanding any other provision of law, the
California Science Center is hereby authorized to enter into a site
lease with the California Science Center Foundation, a California
Nonprofit Corporation, with the approval of the Natural Resources
Agency, the Department of Finance, and the Department of General
Services, for the purpose of the foundation developing, constructing,
equipping, furnishing, and funding the project known as Phase II of
the California Science Center. The overall construction cost and
scope shall be consistent with the amount authorized in the Budget
Act of 2002, provided that nothing in this section shall prevent the
foundation from expending additional nonstate funds to complete Phase
II provided that the additional expenditures do not result in
additional state operation and maintenance costs. Any additional
expenditure of nonstate funds by the foundation shall not increase
the state's contribution.
(b) For the purpose of carrying out subdivision (a), all of the
following shall apply:
(1) In connection with the development described in subdivision
(a), above, the foundation may, in its determination, select the most
qualified construction manager/general contractor to oversee and
manage the work and prepare the competitive bid packages for all
major subcontractors to be engaged in the construction of Phase II
Project. Any construction manager/general contractor selected shall
be required to have a California general contractor's license.
(2) Prior to commencement of construction of the Phase II Project,
the California Science Center shall enter into a lease-purchase
agreement upon approval by the Department of Finance with the
foundation on terms that are compatible with the Phase I Project
financing. The term of the lease-purchase agreement shall be a term
not to exceed 25 years. Lease payments on behalf of the state shall
be commensurate with the twenty-two million nine hundred forty-five
thousand two hundred sixty-three dollars ($22,945,263), (nineteen
million one hundred thirty-seven thousand dollars ($19,137,000) plus
19.9 percent augmentation authority) construction cost allocation of
the state. Lease payments may also include any cost of financing that
the foundation may incur related to tax-exempt financing. The
California Science Center shall be authorized to direct the
Controller to send the rental payments under the lease-purchase
agreement directly to the foundation's bond trustee.
(3) The foundation shall ensure that the Phase II Project is
inspected during construction by the state in the manner consistent
with state infrastructure projects. The foundation shall also
indemnify and defend and save harmless the Department of General
Services for any and all claims and losses accruing and resulting
from or arising out of the foundation's use of the state's plans and
specifications. The foundation and the California Science Center,
upon consultation with the Director of General Services and the
Department of Finance shall agree on a reasonable level of state
oversight throughout the construction of the Phase II Project in
order to assist the foundation in the completion of the project
within the intended scope and cost.
(4) At the end of the term of the site lease and the
lease-purchase agreement unencumbered title to the land and
improvements shall return to the state with jurisdiction held by the
California Science Center.
SEC. 66. Section 4106 of the Food and Agricultural Code, as
amended by Section 6 of Chapter 137 of the Statutes of 2012, is
amended to read:
4106. (a) The California Science Center shall work with the Los
Angeles Memorial Coliseum Commission, the City of Los Angeles, and
the County of Los Angeles to develop additional parking facilities in
Exposition Park to the extent necessary to allow for expansion of
the park.
(b) The California Science Center shall manage or operate its
parking facilities in a manner that preserves and protects the
interests of itself and the California African American Museum and
recognizes the cultural and educational character of Exposition Park.
(c) The Exposition Park Improvement Fund is hereby created in the
State Treasury. All revenues received by the California Science
Center from its parking facilities, from rental of museum facilities,
or from other business activities shall be deposited in the
Exposition Park Improvement Fund.
(d) The moneys in the Exposition Park Improvement Fund may only be
used, upon appropriation by the Legislature, for improvements to
Exposition Park, including, but not limited to, maintenance of
existing parking and museum facilities, replacement of museum
equipment, supplies and wages expended to generate revenues from
rental of museum facilities, development of new parking facilities,
and acquisition of land within or adjacent to Exposition Park.
(e) (1) The Legislature hereby finds and declares that there is a
need for development of additional park, recreation, museum, and
parking facilities in Exposition Park. The Legislature recognizes
that the provision of these needed improvements as identified in the
California Science Center Exposition Park Master Plan may require the
use of funds provided by other governmental agencies or private
donors.
(2) The California Science Center may accept funds from other
governmental agencies or private contributions for the purpose of
implementation of the California Science Center Exposition Park
Master Plan. The private contributions and funds from governmental
agencies other than state governmental agencies shall be deposited in
the Exposition Park Improvement Fund in the State Treasury and shall
be available for expenditure without regard to fiscal years by the
California Science Center for implementation of the California
Science Center Exposition Park Master Plan. Funds from other state
governmental agencies shall be deposited in the Exposition Park
Improvement Fund and shall be available for expenditure, upon
appropriation, by the California Science Center for implementation of
the California Science Center Exposition Park Master Plan. However,
any expenditure is not authorized sooner than 30 days after
notification in writing of the necessity therefor to the chairperson
of the committee in each house of the Legislature that
considers appropriations and the Chairperson of the Joint Legislative
Budget Committee, or not sooner than whatever lesser time as the
chairperson of the joint committee, or his or her designee, may in
each instance determine. Neither the City of Los Angeles nor the
County of Los Angeles shall impose any tax upon tickets purchased
authorizing the use of parking facilities owned by the California
Science Center.
SEC. 67. Section 14611 of the Food and Agricultural Code is
amended to read:
14611. (a) A licensee whose name appears on the label who sells
or distributes bulk fertilizing materials, as defined in Sections
14517 and 14533, to unlicensed purchasers, shall pay to the secretary
an assessment not to exceed two mills ($0.002) per dollar of sales
for all fertilizing materials. A licensee whose name appears on the
label of packaged fertilizing materials, as defined in Sections 14533
and 14551, shall pay to the secretary an assessment not to exceed
two mills ($0.002) per dollar of sales. The secretary may, based on
the findings and recommendations of the board, reduce the assessment
rate to a lower rate that provides sufficient revenue to carry out
this chapter.
(b) In addition to the assessment provided in subdivision (a), the
secretary may impose an assessment in an amount not to exceed one
mill ($0.001) per dollar of sales for all sales of fertilizing
materials, to provide funding for research and education regarding
the use and handling of fertilizing material, including, but not
limited to, support for University of California Cooperative
Extension, the California resource conservation districts, other
California institutions of postsecondary education, or other
qualified entities to develop programs in the following areas:
(1) Technical education for users of fertilizer materials in the
development and implementation of nutrient management projects that
result in more agronomically sound uses of fertilizer materials and
minimize the environmental impacts of fertilizer use, including, but
not limited to, nitrates in groundwater and emissions of greenhouse
gases resulting from fertilizer use.
(2) Research to improve nutrient management practices resulting in
more agronomically sound uses of fertilizer materials and to
minimize the environmental impacts of fertilizer use, including, but
not limited to, nitrates in groundwater and emissions of greenhouse
gases resulting from fertilizer use.
(3) Education to increase awareness of more agronomically sound
use of fertilizer materials to reduce the environmental impacts
resulting from the overuse or inefficient use of fertilizing
materials.
SEC. 68. Section 19447 of the Food and Agricultural Code is
amended to read:
19447. (a) In lieu of any civil action pursuant to Section 19445,
and in lieu of seeking prosecution, the secretary may levy a civil
penalty against a person who violates Article 6 (commencing with
Section 19300), Article 6.5 (commencing with Section 19310), or any
regulation adopted pursuant to those articles, in an amount not to
exceed five thousand dollars ($5,000) for each violation.
(b) Before a civil penalty is levied, the person charged with the
violation shall receive notice of the nature of the violation and
shall be granted the opportunity to review the secretary's evidence
and, for up to 30 days following the issuance of the notice, the
opportunity to present written argument and evidence to the secretary
as to why the civil penalty should not be imposed or should be
reduced from the amount specified in the penalty notice.
Notwithstanding Chapter 4.5 (commencing with Section 11400) of, and
Chapter 5 (commencing with Section 11500) of, Part 1 of Division 3 of
Title 2 of the Government Code or any other provision of law, this
section does not require the department to conduct either a formal or
informal hearing. The secretary instead may dispose of the matter
upon review of the documentation presented.
(c) Any person upon whom a civil penalty is levied may appeal to
the secretary within 20 days of the date of receiving notification of
the penalty, as follows:
(1) The appeal shall be in writing and signed by the appellant or
his or her authorized agent and shall state the grounds for the
appeal.
(2) Any party, at the time of filing the appeal, or within 10 days
thereafter, may present written evidence and a written argument to
the secretary.
(3) The secretary may grant oral arguments upon application made
at the time written arguments are made.
(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 prior to the date set therefor. This time
requirement may be altered by an agreement between the secretary and
the person appealing the penalty.
(5) The secretary shall decide the appeal on any oral or written
arguments, briefs, and evidence that he or she has received.
(6) The secretary shall render a written decision within 45 days
of the date of appeal, or within 15 days of the date of oral
arguments. A copy of the secretary's decision shall be delivered or
mailed to the appellant.
(7) The secretary may sustain the decision, modify the decision by
reducing the amount of the penalty levied, or reverse the decision.
(8) A review of the decision of the secretary may be sought by the
appellant pursuant to Section 1094.5 of the Code of Civil Procedure.
(d) (1) If the person upon whom a penalty is levied does not file
a petition for a writ of administrative mandamus, the court, upon
receiving a certified copy of the department's final decision that
directs payment of a civil penalty, shall enter judgment in favor of
the department.
(2) After completion of the appeal procedure provided for in this
section, the secretary may file a certified copy of the department's
final decision that directs payment of a civil penalty and, if
applicable, any order denying a petition for a writ of administrative
mandamus, with the clerk of the superior court of any county that
has jurisdiction over the matter. No fees shall be charged by the
clerk of the superior court for the performance of any official
services required in connection with the entry of judgment pursuant
to this section.
(e) Any penalties levied by the secretary pursuant to this section
shall be deposited in the Department of Food and Agriculture Fund,
and, upon appropriation by the Legislature, shall be used for the
purposes described in Section 221.
SEC. 69. Section 55527.6 of the Food and Agricultural Code is
amended to read:
55527.6. (a) Licensees or applicants for a license shall be
required to furnish and maintain an irrevocable guarantee in a form
and amount satisfactory to the secretary if, within the preceding
four years, the secretary determines that they have done any of the
following:
(1) Engaged in conduct which demonstrates a lack of financial
responsibility , including, but not limited to, delinquent
accounts payable, judgments of liability, insolvency, or bankruptcy.
(2) Failed to assure future financial responsibility unless an
irrevocable guarantee is provided.
(3) Otherwise violated this chapter which resulted in license
revocation.
(b) The irrevocable guarantee may include a personal or corporate
guarantee, a certificate of deposit, a bank letter of credit, or a
surety bond, as determined to be appropriate by the secretary.
(c) The guarantee shall not be less than ten thousand dollars
($10,000) or 20 percent of the annual dollar volume of business based
on farm product value returned to the grower, whichever is greater,
as assurance that the licensee's or applicant's business will be
conducted in accordance with this chapter and that the licensee or
applicant will pay all amounts due farm products creditors.
(d) The secretary, based on changes in the nature and volume of
business conducted by the licensee, may require an increase or
authorize a reduction in the amount of the guarantee, but in no case
shall the guarantee be reduced below ten thousand dollars ($10,000).
A licensee who is notified by the secretary to provide a guarantee in
an increased amount shall do so within a reasonable time as
specified by the secretary. If the licensee fails to do so, the
secretary may, after a notice and opportunity for a hearing, suspend
or revoke the license of the licensee.
SEC. 70. Section 64101 of the Food and Agricultural Code is
amended to read:
64101. There is in the state government the Dairy Council of
California which shall consist of not less than 24, nor more than 25,
members. All members of the council shall be appointed by the
secretary and may hold office at the pleasure of the secretary. The
membership of the council shall be as follows:
(a) There shall be 12 members that are actually engaged in the
production of milk. These 12 members are the producer members of the
council.
(b) There shall be 12 members that are handlers or
producer-handlers of dairy products. These 12 members are the handler
members of the council.
(c) Upon the recommendation of the council, the secretary may
appoint one person who is neither a producer, handler, or
producer-handler, and who shall represent the public generally.
SEC. 71. Section 3513 of the Government Code is amended to read:
3513. As used in this chapter:
(a) "Employee organization" means any organization that includes
employees of the state and that has as one of its primary purposes
representing these employees in their relations with the state.
(b) "Recognized employee organization" means an employee
organization that has been recognized by the state as the exclusive
representative of the employees in an appropriate unit.
(c) "State employee" means any civil service employee of the
state, and the teaching staff of schools under the jurisdiction of
the State Department of Education or the Superintendent of Public
Instruction, except managerial employees, confidential employees,
supervisory employees, employees of the Department of Human
Resources, professional employees of the Department of Finance
engaged in technical or analytical state budget preparation other
than the auditing staff, professional employees in the
Personnel/Payroll Services Division of the Controller's office
engaged in technical or analytical duties in support of the state's
personnel and payroll systems other than the training staff,
employees of the Legislative Counsel Bureau, employees of the Bureau
of State Audits, employees of the office of the Inspector General,
employees of the board, conciliators employed by the California State
Mediation and Conciliation Service, employees of the Office of the
State Chief Information Officer except as otherwise provided in
Section 11546.5, and intermittent athletic inspectors who are
employees of the State Athletic Commission.
(d) "Mediation" means effort by an impartial third party to assist
in reconciling a dispute regarding wages, hours , and
other terms and conditions of employment between representatives of
the public agency and the recognized employee organization or
recognized employee organizations through interpretation, suggestion
, and advice.
(e) "Managerial employee" means any employee having significant
responsibilities for formulating or administering agency or
departmental policies and programs or administering an agency or
department.
(f) "Confidential employee" means any employee who is required to
develop or present management positions with respect to
employer-employee relations or whose duties normally require access
to confidential information contributing significantly to the
development of management positions.
(g) "Supervisory employee" means any individual, regardless of the
job description or title, having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or
responsibility to direct them, or to adjust their grievances, or
effectively to recommend this action, if, in connection with the
foregoing, the exercise of this authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.
Employees whose duties are substantially similar to those of their
subordinates shall not be considered to be supervisory employees.
(h) "Board" means the Public Employment Relations Board. The
Educational Employment Relations Board shall be renamed the Public
Employment Relations Board as provided in Section 3540. The powers
and duties of the board described in Section 3541.3 shall also apply,
as appropriate, to this chapter.
(i) "Maintenance of membership" means that all employees who
voluntarily are, or who voluntarily become, members of a recognized
employee organization shall remain members of that employee
organization in good standing for a period as agreed to by the
parties pursuant to a memorandum of understanding, commencing with
the effective date of the memorandum of understanding. A maintenance
of membership provision shall not apply to any employee who within 30
days prior to the expiration of the memorandum of understanding
withdraws from the employee organization by sending a signed
withdrawal letter to the employee organization and a copy to the
Controller's office.
(j) "State employer," or "employer," for the purposes of
bargaining or meeting and conferring in good faith, means the
Governor or his or her designated representatives.
(k) "Fair share fee" means the fee deducted by the state employer
from the salary or wages of a state employee in an appropriate unit
who does not become a member of and financially support the
recognized employee organization. The fair share fee shall be used to
defray the costs incurred by the recognized employee organization in
fulfilling its duty to represent the employees in their employment
relations with the state, and shall not exceed the standard
initiation fee, membership dues, and general assessments of the
recognized employee organization.
SEC. 72. Section 3527 of the Government Code is amended to read:
3527. As used in this chapter:
(a) "Employee" means a civil service employee of the State of
California. The "State of California" as used in this chapter
includes those state agencies, boards, and commissions as may be
designated by law that employ civil service employees, except the
University of California, Hastings College of the Law, and the
California State University.
(b) "Excluded employee," means all managerial employees, as
defined in subdivision (e) of Section 3513, all confidential
employees, as defined in subdivision (f) of Section 3513, and all
supervisory employees, as defined in subdivision (g) of Section 3513,
and all civil service employees of the Department of Human
Resources, professional employees of the Department of Finance
engaged in technical or analytical state budget preparation other
than the auditing staff, professional employees in the
Personnel/Payroll Services Division of the Controller's office
engaged in technical or analytical duties in support of the state's
personnel and payroll systems other than the training staff,
employees of the Legislative Counsel Bureau, employees of the Bureau
of State Audits, employees of the Public Employment Relations Board,
conciliators employed by the California State Mediation and
Conciliation Service, employees of the office of the State Chief
Information Officer except as provided in Section 11546.5, and
intermittent athletic inspectors who are employees of the State
Athletic Commission.
(c) "Supervisory employee organization" means an organization that
represents members who are supervisory employees under subdivision
(g) of Section 3513.
(d) "Excluded employee organization" means an organization that
includes excluded employees of the state, as defined in subdivision
(b), and that has as one of its primary purposes representing its
members in employer-employee relations. Excluded employee
organization includes supervisory employee organizations.
(e) "State employer" or "employer," for purposes of meeting and
conferring on matters relating to supervisory employer-employee
relations, means the Governor or his or her designated
representatives.
SEC. 73. Section 7480 of the Government Code, as amended by
Section 2 of Chapter 304 of the Statutes of 2011, is repealed.
SEC. 74. Section 7522.20 of the Government Code is amended to
read:
7522.20. (a) Each retirement system that offers a defined benefit
plan for nonsafety members of the system shall use the formula
prescribed by this section. The defined benefit plan shall provide a
pension at retirement for service equal to the percentage of the
member's final compensation set forth opposite the member's age at
retirement, taken to the preceding quarter year, in the following
table, multiplied by the number of years of service in the system as
a nonsafety member. A member may retire for service under this
section after five years of service and upon reaching 52 years of
age.
Age of Retirement Fraction
52 ..................... 1.000
52 1/4.................. 1.025
52 1/2.................. 1.050
52 3/4 ................. 1.075
53 .................... 1.100
53 1/4.................. 1.125
53 1/2.................. 1.150
53 3/4.................. 1.175
54 ..................... 1.200
54 1/4.................. 1.225
54 1/2.................. 1.250
54 3/4.................. 1.275
55 ..................... 1.300
55 1/4.................. 1.325
55 1/2.................. 1.350
55 3/4.................. 1.375
56 ..................... 1.400
56 1/4.................. 1.425
56 1/2.................. 1.450
56 3/4.................. 1.475
57 ..................... 1.500
57 1/4.................. 1.525
57 1/2.................. 1.550
57 3/4.................. 1.575
58 ..................... 1.600
58 1/4.................. 1.625
58 1/2.................. 1.650
58 3/4.................. 1.675
59 ..................... 1.700
59 1/4.................. 1.725
59 1/2.................. 1.750
59 3/4.................. 1.775
60 ..................... 1.800
60 1/4.................. 1.825
60 1/2.................. 1.850
60 3/4.................. 1.875
61 ..................... 1.900
61 1/4.................. 1.925
61 1/2.................. 1.950
61 3/4.................. 1.975
62 ..................... 2.000
62 1/4.................. 2.025
62 1/2.................. 2.050
62 3/4.................. 2.075
63 ..................... 2.100
63 1/4.................. 2.125
63 1/2.................. 2.150
63 3/4.................. 2.175
64 ..................... 2.200
64 1/4.................. 2.225
64 1/2.................. 2.250
64 3/4.................. 2.275
65 ..................... 2.300
65 1/4.................. 2.325
65 1/2.................. 2.350
65 3/4.................. 2.375
66 ..................... 2.400
66 1/4.................. 2.425
66 1/2.................. 2.450
66 3/4.................. 2.475
67 ..................... 2.500
(b) Pensionable compensation used to calculate the defined benefit
shall be limited as described in Section 7522.10.
(c) A new member of the State Teachers' Retirement System shall be
subject to the formula established pursuant to Section 24202.6 of
the Education Code.
SEC. 75. Section 7522.56 of the Government Code is amended to
read:
7522.56. (a) This section shall apply to any person who is
receiving a pension benefit from a public retirement system and shall
supersede any other provision in conflict with this section.
(b) A retired person shall not serve, be employed by, or be
employed through a contract directly by, a public employer in the
same public retirement system from which the retiree receives the
benefit without reinstatement from retirement, except as permitted by
this section.
(c) A person who retires from a public employer may serve without
reinstatement from retirement or loss or interruption of benefits
provided by the retirement system upon appointment by the appointing
power of a public employer either during an emergency to prevent
stoppage of public business or because the retired person has skills
needed to perform work of limited duration.
(d) Appointments of the person authorized under this section shall
not exceed a total for all employers in that public retirement
system of 960 hours or other equivalent limit, in a calendar or
fiscal year, depending on the administrator of the system. The rate
of pay for the employment shall not be less than the minimum, nor
exceed the maximum, paid by the employer to other employees
performing comparable duties, divided by 173.333 to equal an hourly
rate. A retired person whose employment without reinstatement is
authorized by this section shall acquire no service credit or
retirement rights under this section with respect to the employment
unless he or she reinstates from retirement.
(e) (1) Notwithstanding subdivision (c), any retired person shall
not be eligible to serve or be employed by a public employer if,
during the 12-month period prior to an appointment described in this
section, the retired person received any unemployment insurance
compensation arising out of prior employment subject to this section
with a public employer. A retiree shall certify in writing to the
employer upon accepting an offer of employment that he or she is in
compliance with this requirement.
(2) A retired person who accepts an appointment after receiving
unemployment insurance compensation as described in this subdivision
shall terminate that employment on the last day of the current pay
period and shall not be eligible for reappointment subject to this
section for a period of 12 months following the last day of
employment.
(f) A retired person shall not be eligible to be employed pursuant
to this section for a period of 180 days following the date of
retirement unless he or she meets one of the following conditions:
(1) The employer certifies the nature of the employment and that
the appointment is necessary to fill a critically needed position
before 180 days have passed and the appointment has been approved by
the governing body of the employer in a public meeting. The
appointment may not be placed on a consent calendar.
(2) The state employer certifies the nature of the employment and
that the appointment is necessary to fill a critically needed state
employment position before 180 days have passed and the appointment
has been approved by the Department of Human Resources. The
department may establish a process to delegate appointing authority
to individual state agencies, but shall audit the process to
determine if abuses of the system occur. If necessary, the department
may assume an agency's appointing authority for retired workers and
may charge the department an appropriate amount for administering
that authority.
(3) The retiree is eligible to participate in the Faculty Early
Retirement Program pursuant to a collective bargaining agreement with
the California State University that existed prior to January 1,
2013, or has been included in subsequent agreements.
(4) The retiree is a public safety officer or firefighter.
(g) A retired person who accepted a retirement incentive upon
retirement shall not be eligible to be employed pursuant to this
section for a period of 180 days following the date of retirement and
subdivision (f) shall not apply.
(h) This section shall not apply to a person who is retired from
the State Teachers' Retirement System, and who is subject to Section
24214, 24214.5, or 26812 of the Education Code.
(i) This section shall not apply to (1) a subordinate judicial
officer whose position, upon retirement, is converted to a judgeship
pursuant to Section 69615, and he or she returns to work in the
converted position, and the employer is a trial court, or (2) a
retiree who takes office as a judge of a court of record pursuant to
Article VI of the California Constitution or a retiree of the Judges'
Retirement System I or the Judges' Retirement System II who is
appointed to serve as a retired judge.
SEC. 76. Section 7522.57 of the Government Code is amended to
read:
7522.57. (a) This section shall apply to any retired person who
is receiving a pension benefit from a public retirement system and is
first appointed on or after January 1, 2013, to a salaried position
on a state board or commission. This section shall supersede any
other provision in conflict with this section.
(b) A person who is retired from a public retirement system may
serve without reinstatement from retirement or loss or interruption
of benefits provided that appointment is to a part-time state board
or commission. A retired person whose employment without
reinstatement is authorized by this subdivision shall acquire no
benefits, service credit, or retirement rights with respect to the
employment. Unless otherwise defined in statute, for the purpose of
this section, a part-time appointment shall mean an appointment with
a salary of no more than $60,000 annually, which shall be increased
in any fiscal year in which a general salary increase is provided for
state employees. The amount of the increase provided by this section
shall be comparable to, but shall not exceed, the percentage of the
general salary increases provided for state employees during that
fiscal year.
(c) A person who is retired from the Public Employees' Retirement
System shall not serve on a full-time basis on a state board or
commission without reinstatement unless that person serves as a
nonsalaried member of the board or commission and receives only per
diem authorized to all members of the board or commission. A person
who serves as a nonsalaried member of a board or commission shall not
earn any service credit or benefits in the Public Employees'
Retirement System or make contributions with respect to the service
performed.
(d) A person retired from a public retirement system other than
the Public Employees' Retirement System who is appointed on a
full-time basis to a state board or commission shall choose one of
the following options:
(1) The person may serve as a nonsalaried member of the board or
commission and continue to receive his or her retirement allowance,
in addition to any per diem authorized to all members of the board or
commission. The person shall not earn service credit or benefits in
the Public Employees' Retirement System and shall not make
contributions with respect to the service performed.
(2) (A) The person may suspend his or her retirement allowance or
allowances and instate as a new member of the Public Employees'
Retirement System for the service performed on the board or
commission. The pensionable compensation earned pursuant to this
paragraph shall not be eligible for reciprocity with any other
retirement system or plan.
(B) Upon retiring for service after serving on the board or
commission, the appointee shall be entitled to reinstatement of any
suspended benefits, including employer provided retiree health
benefits, that he or she was entitled to at the time of being
appointed to the board or commission.
(e) Notwithstanding subdivisions (c) and (d), a person who retires
from a public employer may serve without reinstatement from
retirement or loss or interruption of benefits provided by the
retirement system upon appointment to a full-time state board
pursuant to Section 5075 of the Penal Code.
SEC. 77. Section 7522.72 of the Government Code is amended to
read:
7522.72. (a) This section shall apply to a public employee first
employed by a public employer or first elected or appointed to an
office before January 1, 2013, and, on and after that date, Section
7522.70 shall not apply.
(b) (1) If a public employee is convicted by a state or federal
trial court of any felony under state or federal law for conduct
arising out of or in the performance of his or her official duties,
in pursuit of the office or appointment, or in connection with
obtaining salary, disability retirement, service retirement, or other
benefits, he or she shall forfeit all accrued rights and benefits in
any public retirement system in which he or she is a member to the
extent provided in subdivision (c) and shall not accrue further
benefits in that public retirement system, effective on the date of
the conviction.
(2) If a public employee who has contact with children as part of
his or her official duties is convicted of a felony that was
committed within the scope of his or her official duties against or
involving a child who he or she has contact with as part of his or
her official duties, he or she shall forfeit all accrued rights and
benefits in any public retirement system in which he or she is a
member to the extent provided in subdivision (c) and shall not accrue
further benefits in that public retirement system, effective on the
date of the conviction.
(c) (1) A public employee shall forfeit all the retirement
benefits earned or accrued from the earliest date of the commission
of any felony described in subdivision (b) to the forfeiture date,
inclusive. The retirement benefits shall remain forfeited
notwithstanding any reduction in sentence or expungement of the
conviction following the date of the public employee's conviction.
Retirement benefits attributable to service performed prior to the
date of the first commission of the felony for which the public
employee was convicted shall not be forfeited as a result of this
section.
(2) For purposes of this subdivision, "forfeiture date" means the
date of the conviction.
(d) (1) Any contributions to the public retirement system made by
the public employee described in subdivision (b) on or after the
earliest date of the commission of any felony described in
subdivision (b) shall be returned, without interest, to the public
employee upon the occurrence of a distribution event unless otherwise
ordered by a court or determined by the pension administrator.
(2) Any funds returned to the public employee pursuant to
subdivision (d) shall be disbursed by electronic funds transfer to an
account of the public employee, in a manner conforming with the
requirements of the Internal Revenue Code, and the public retirement
system shall notify the court and the district attorney at least
three business days before that disbursement of funds.
(3) For the purposes of this subdivision, a "distribution event"
means any of the following:
(A) Separation from employment.
(B) Death of the member.
(C) Retirement of the member.
(e) (1) Upon conviction, a public employee as described in
subdivision (b) and the prosecuting agency shall notify the public
employer who employed the public employee at the time of the
commission of the felony within 60 days of the felony conviction of
all of the following information:
(A) The date of conviction.
(B) The date of the first known commission of the felony.
(2) The operation of this section is not dependent upon the
performance of the notification obligations specified in this
subdivision.
(f) The public employer that employs or employed a public employee
described in subdivision (b) and that public employee shall each
notify the public retirement system in which the public employee is a
member of that public employee's conviction within 90 days of the
conviction. The operation of this section is not dependent upon the
performance of the notification obligations specified in this
subdivision.
(g) A public retirement system may assess a public employer a
reasonable amount to reimburse the cost of audit, adjustment, or
correction, if it determines that the public employer failed to
comply with this section.
(h) If a public employee's conviction is reversed and that
decision is final, the employee shall be entitled to do either of the
following:
(1) Recover the forfeited retirement benefits as adjusted for the
contributions received pursuant to subdivision (d).
(2) Redeposit those contributions and interest, as determined by
the system actuary, and then recover the full amount of the forfeited
benefits.
(i) A public employee first employed by a public employer or first
elected or appointed to an office on or after January 1, 2013, shall
be subject to Section 7522.74.
SEC. 78. Section 8164.1 of the Government Code is amended to read:
8164.1. There is in state government a Capitol Area Committee
consisting of nine members who shall be appointed in the following
manner:
(a) Four members of the committee shall be appointed by the
Governor of which at least one member shall be appointed from a list
of three candidates submitted by the City of Sacramento and at least
one member shall be appointed from a list of three candidates
submitted by the County of Sacramento. Two members shall be appointed
for a term expiring December 31, 1979, and two for a term expiring
December 31, 1981.
(b) Two members shall be appointed by the Speaker of the Assembly,
one of whom may be a Member of the Assembly, and two members shall
be appointed by the Senate Rules Committee, one of whom may be a
Member of the Senate. Legislative members of the committee shall meet
and, except as otherwise provided by the Constitution, advise the
department to the extent that the advisory participation is not
incompatible with their respective positions as Members of the
Legislature. Of the four appointments by the Legislature, two shall
be appointed for a term expiring December 31, 1979, and two for a
term expiring December 31, 1981.
(c) One shall be appointed by and serve at the pleasure of the
director.
Subsequent appointments pursuant to subdivisions (a) and (b) shall
be for terms of four years, ending on December 31 of the fourth year
after the end of the prior term, except that appointments to fill
vacancies occurring for any reason other than the expiration of the
term shall be for the unexpired portion of the term in which they
occur. The members of the board shall hold office until their
successors are appointed and qualify.
The members of the committee shall not receive compensation from
the state for their services under this article but, when called to
attend a meeting of the committee, shall be reimbursed for their
actual and necessary expenses incurred in connection with the meeting
in accordance with the rules of the Department of Human Resources.
(d) 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. 79. The heading of Chapter 3.1 (commencing with Section 8240)
of Division 1 of Title 2 of the Government Code is amended to read:
CHAPTER 3.1. COMMISSION ON THE STATUS OF WOMEN AND GIRLS
SEC. 80. Section 11019 of the Government Code is amended to read:
11019. (a) Any department or authority specified in subdivision
(b) may, upon determining that an advance payment is essential for
the effective implementation of a program within the provisions of
this section, and to the extent funds are available, advance to a
community-based private nonprofit agency with which it has
contracted, pursuant to federal law and related state law, for the
delivery of services, not to exceed 25 percent of the annual
allocation to be made pursuant to the contract and those laws during
the fiscal year to the private nonprofit agency. Advances in excess
of 25 percent may be made on contracts financed by a federal program
when the advances are not prohibited by federal guidelines. Advance
payments may be provided for services to be performed under any
contract with a total annual contract amount of four hundred thousand
dollars ($400,000) or less. This amount shall be increased by 5
percent, as determined by the Department of Finance, for each year
commencing with 1989. Advance payments may also be made with respect
to any contract that the Department of Finance determines has been
entered into with any community-based private nonprofit agency with
modest reserves and potential cashflow problems. No advance payment
shall be granted if the total annual contract exceeds four hundred
thousand dollars ($400,000), without the prior approval of the
Department of Finance.
The specific departments and authority mentioned in subdivision
(b) shall develop a plan to establish control procedures for advance
payments. Each plan shall include a procedure whereby the department
or authority determines whether or not an advance payment is
essential for the effective implementation of a particular program
being funded. Each plan shall be approved by the Department of
Finance.
(b) Subdivision (a) shall apply to the Emergency Medical Services
Authority, the California Department of Aging, the State Department
of Developmental Services, the State Department of Alcohol and Drug
Programs, the Department of Corrections and Rehabilitation, including
the Division of Juvenile Justice, the Department of Community
Services and Development, the Employment Development Department, the
State Department of Health Services, the State Department of State
Hospitals, the Department of Rehabilitation, the State Department of
Social Services, the Department of Child Support Services, the State
Department of Education, the area boards on developmental
disabilities, the State Council on Developmental Disabilities, the
Office of Statewide Health Planning and Development, and the
California Environmental Protection Agency, including all boards and
departments contained therein.
Subdivision (a) shall also apply to the California Health and
Human Services Agency, which may make advance payments, pursuant to
the requirements of that subdivision, to multipurpose senior services
projects as established in Chapter 8 (commencing with Section 9560)
of Division 8.5 of the Welfare and Institutions Code.
Subdivision (a) shall also apply to the Natural Resources Agency,
including all boards and departments contained in that agency, which
may make advance payments pursuant to the requirements of that
subdivision with respect to grants and contracts awarded to certified
local community conservation corps.
(c) A county may, upon determining that an advance payment is
essential for the effective implementation of a program within the
provisions of this section, and to the extent funds are available,
and not more frequently than once each fiscal year, advance to a
community-based private nonprofit agency with which it has
contracted, pursuant to any applicable federal or state law, for the
delivery of services, not to exceed 25 percent of the annual
allocation to be made pursuant to the contract and those laws, during
the fiscal year to the private nonprofit agency.
SEC. 81. Section 11020 of the Government Code is amended to read:
11020. (a) Unless otherwise provided by law, all offices of every
state agency shall be kept open for the transaction of business from
8 a.m. until 5 p.m. of each day from Monday to Friday, inclusive,
other than legal holidays. However, any state agency or division,
branch , or office thereof may be kept open for the
transaction of business on other hours and on other days than those
specified in this subdivision.
(b) If this section is in conflict with 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 the memorandum of understanding requires the expenditure of funds,
the memorandum shall not become effective unless approved by the
Legislature in the annual Budget Act.
(c) Subdivision (a) shall not apply to any fair or association
specified under Division 3 (commencing with Section 3001) of the Food
and Agricultural Code.
SEC. 82. Section 11435.15 of the Government Code is amended to
read:
11435.15. (a) The following state agencies shall provide language
assistance in adjudicative proceedings to the extent provided in
this article:
Agricultural
(1) Agricultural Labor Relations
Board .
State
(2) State Department of Alcohol
and Drug Programs .
State
(3) State Athletic Commission
.
California
(4) California Unemployment
Insurance Appeals Board .
Board
(5) Board of Parole Hearings
.
State
(6) State Board of Barbering and
Cosmetology .
State
(7) State Department of
Developmental Services .
Public
(8) Public Employment Relations
Board .
Franchise
(9) Franchise Tax Board .
State
(10) State Department of Health
Care Services .
Department
(11) Department of Housing and
Community Development .
Department
(12) Department of Industrial
Relations .
State
(13) State Department of State
Hospitals .
Department
(14) Department of Motor Vehicles
.
Notary
(15) Notary Public Section,
Office of the Secretary of State .
Public
(16) Public Utilities Commission
.
Office
(17) Office of Statewide Health
Planning and Development .
State
(18) State Department of Social
Services .
Workers'
(19) Workers' Compensation
Appeals Board .
Division
(20) Division of Juvenile Justice
.
Division
(21) Division of Juvenile Parole
Operations .
Department
(22) Department of Insurance
.
State
(23) State Personnel Board .
California
(24) California Board of
Podiatric Medicine .
Board
(25) Board of Psychology .
(b) Nothing in this section prevents an agency other than an
agency listed in subdivision (a) from electing to adopt any of the
procedures in this article, provided that any selection of an
interpreter is subject to Section 11435.30.
(c) Nothing in this section prohibits an agency from providing an
interpreter during a proceeding to which this chapter does not apply,
including an informal factfinding or informal investigatory hearing.
(d) This article applies to an agency listed in subdivision (a)
notwithstanding a general provision that this chapter does not apply
to some or all of an agency's adjudicative proceedings.
SEC. 83. Section 11552 of the Government Code is amended to read:
11552. (a) Effective January 1, 1988, an annual salary of
eighty-five thousand four hundred two dollars ($85,402) shall be paid
to each of the following:
(1) Commissioner of Business Oversight.
(2) Director of Transportation.
(3) Real Estate Commissioner.
(4) Director of Social Services.
(5) Director of Water Resources.
(6) Director of General Services.
(7) Director of Motor Vehicles.
(8) Executive Officer of the Franchise Tax Board.
(9) Director of Employment Development.
(10) Director of Alcoholic Beverage Control.
(11) Director of Housing and Community Development.
(12) Director of Alcohol and Drug Programs.
(13) Director of Statewide Health Planning and Development.
(14) Director of the Department of Human Resources.
(15) Director of Health Care Services.
(16) Director of State Hospitals.
(17) Director of Developmental Services.
(18) State Public Defender.
(19) Director of the California State Lottery.
(20) Director of Fish and Wildlife.
(21) Director of Parks and Recreation.
(22) Director of Rehabilitation.
(23) Director of the Office of Administrative Law.
(24) Director of Consumer Affairs.
(25) Director of Forestry and Fire Protection.
(26) The Inspector General pursuant to Section 6125 of the Penal
Code.
(27) Director of Child Support Services.
(28) Director of Industrial Relations.
(29) Director of Toxic Substances Control.
(30) Director of Pesticide Regulation.
(31) Director of Managed Health Care.
(32) Director of Environmental Health Hazard Assessment.
(33) Director of Technology.
(34) Director of California Bay-Delta Authority.
(35) Director of California Conservation Corps.
(b) The annual compensation provided by this section shall be
increased in any fiscal year in which a general salary increase is
provided for state employees. The amount of the increase provided by
this section shall be
comparable to, but shall not exceed, the percentage of the general
salary increases provided for state employees during that fiscal
year.
SEC. 84. Section 12460 of the Government Code is amended to read:
12460. The Controller shall submit an annual report to the
Governor containing a statement of the funds of the state, its
revenues, and the public expenditures during the preceding fiscal
year. The annual report shall be known as the budgetary-legal basis
annual report and prepared in a manner that will account for prior
year adjustments, fund balances, encumbrances, deferred payroll,
revenues, expenditures, and other components on the same basis as
that of the applicable Governor's Budget and the applicable Budget
Act, as determined by the Director of Finance in consultation with
the Controller. If the Governor's Budget or the Budget Act does not
provide the applicable information for this purpose, funds shall be
accounted for in the budgetary-legal basis annual report in a manner
prescribed by Section 13344. The requirements of this section shall
apply beginning with the issuance of the budgetary-legal basis annual
report for the 2013-14 fiscal year. The Controller shall confer with
the Department of Finance to propose and develop methods to
facilitate these changes pursuant to Section 13344, including methods
to ensure that information related to encumbrances and deferred
payroll continue to be listed in the state's financial statements, as
deemed appropriate by the Controller.
The Controller shall also issue a comprehensive annual financial
report prepared strictly in accordance with "Generally Accepted
Accounting Principles."
The annual reports referenced in this section shall be compiled
and published by the Controller in the time, form, and manner
prescribed by him or her.
SEC. 85. Section 12838.14 of the Government Code is amended to
read:
12838.14. (a) Notwithstanding any other provision of law, money
recovered by the Department of Corrections and Rehabilitation from a
union paid leave settlement agreement shall be credited to the fiscal
year in which the recovered money is received. An amount not to
exceed the amount of the money received shall be available for
expenditure to the Department of Corrections and Rehabilitation for
the fiscal year in which the recovered money is received, upon
approval of the Department of Finance. If this statute is enacted on
or after July 1, 2012, any money received prior to July 1, 2012, for
purposes of this section, shall be available for expenditure for the
2012-13 fiscal year.
(b) The Department of Corrections and Rehabilitation shall
identify and report the total amount collected annually to the
Department of Finance.
(c) This section shall become inoperative on June 30, 2021, and,
as of January 1, 2022, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2022, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 86. Section 12926 of the Government Code is amended to read:
12926. As used in this part in connection with unlawful
practices, unless a different meaning clearly appears from the
context:
(a) "Affirmative relief" or "prospective relief" includes the
authority to order reinstatement of an employee, awards of backpay,
reimbursement of out-of-pocket expenses, hiring, transfers,
reassignments, grants of tenure, promotions, cease and desist orders,
posting of notices, training of personnel, testing, expunging of
records, reporting of records, and any other similar relief that is
intended to correct unlawful practices under this part.
(b) "Age" refers to the chronological age of any individual who
has reached his or her 40th birthday.
(c) "Employee" does not include any individual employed by his or
her parents, spouse, or child, or any individual employed under a
special license in a nonprofit sheltered workshop or rehabilitation
facility.
(d) "Employer" includes any person regularly employing five or
more persons, or any person acting as an agent of an employer,
directly or indirectly, the state or any political or civil
subdivision of the state, and cities, except as follows:
"Employer" does not include a religious association or corporation
not organized for private profit.
(e) "Employment agency" includes any person undertaking for
compensation to procure employees or opportunities to work.
(f) "Essential functions" means the fundamental job duties of the
employment position the individual with a disability holds or
desires. "Essential functions" does not include the marginal
functions of the position.
(1) A job function may be considered essential for any of several
reasons, including, but not limited to, any one or more of the
following:
(A) The function may be essential because the reason the position
exists is to perform that function.
(B) The function may be essential because of the limited number of
employees available among whom the performance of that job function
can be distributed.
(C) The function may be highly specialized, so that the incumbent
in the position is hired for his or her expertise or ability to
perform the particular function.
(2) Evidence of whether a particular function is essential
includes, but is not limited to, the following:
(A) The employer's judgment as to which functions are essential.
(B) Written job descriptions prepared before advertising or
interviewing applicants for the job.
(C) The amount of time spent on the job performing the function.
(D) The consequences of not requiring the incumbent to perform the
function.
(E) The terms of a collective bargaining agreement.
(F) The work experiences of past incumbents in the job.
(G) The current work experience of incumbents in similar jobs.
(g) (1) "Genetic information" means, with respect to any
individual, information about any of the following:
(A) The individual's genetic tests.
(B) The genetic tests of family members of the individual.
(C) The manifestation of a disease or disorder in family members
of the individual.
(2) "Genetic information" includes any request for, or receipt of,
genetic services, or participation in clinical research that
includes genetic services, by an individual or any family member of
the individual.
(3) "Genetic information" does not include information about the
sex or age of any individual.
(h) "Labor organization" includes any organization that exists and
is constituted for the purpose, in whole or in part, of collective
bargaining or of dealing with employers concerning grievances, terms
or conditions of employment, or of other mutual aid or protection.
(i) "Medical condition" means either of the following:
(1) Any health impairment related to or associated with a
diagnosis of cancer or a record or history of cancer.
(2) Genetic characteristics. For purposes of this section,
"genetic characteristics" means either of the following:
(A) Any scientifically or medically identifiable gene or
chromosome, or combination or alteration thereof, that is known to be
a cause of a disease or disorder in a person or his or her
offspring, or that is determined to be associated with a
statistically increased risk of development of a disease or disorder,
and that is presently not associated with any symptoms of any
disease or disorder.
(B) Inherited characteristics that may derive from the individual
or family member, that are known to be a cause of a disease or
disorder in a person or his or her offspring, or that are determined
to be associated with a statistically increased risk of development
of a disease or disorder, and that are presently not associated with
any symptoms of any disease or disorder.
(j) "Mental disability" includes, but is not limited to, all of
the following:
(1) Having any mental or psychological disorder or condition, such
as intellectual disability, organic brain syndrome, emotional or
mental illness, or specific learning disabilities, that limits a
major life activity. For purposes of this section:
(A) "Limits" shall be determined without regard to mitigating
measures, such as medications, assistive devices, or reasonable
accommodations, unless the mitigating measure itself limits a major
life activity.
(B) A mental or psychological disorder or condition limits a major
life activity if it makes the achievement of the major life activity
difficult.
(C) "Major life activities" shall be broadly construed and shall
include physical, mental, and social activities and working.
(2) Any other mental or psychological disorder or condition not
described in paragraph (1) that requires special education or related
services.
(3) Having a record or history of a mental or psychological
disorder or condition described in paragraph (1) or (2), which is
known to the employer or other entity covered by this part.
(4) Being regarded or treated by the employer or other entity
covered by this part as having, or having had, any mental condition
that makes achievement of a major life activity difficult.
(5) Being regarded or treated by the employer or other entity
covered by this part as having, or having had, a mental or
psychological disorder or condition that has no present disabling
effect, but that may become a mental disability as described in
paragraph (1) or (2).
"Mental disability" does not include sexual behavior disorders,
compulsive gambling, kleptomania, pyromania, or psychoactive
substance use disorders resulting from the current unlawful use of
controlled substances or other drugs.
(k) "On the bases enumerated in this part" means or refers to
discrimination on the basis of one or more of the following: race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic
information, marital status, sex, age, or sexual orientation.
(l) "Physical disability" includes, but is not limited to, all of
the following:
(1) Having any physiological disease, disorder, condition,
cosmetic disfigurement, or anatomical loss that does both of the
following:
(A) Affects one or more of the following body systems:
neurological, immunological, musculoskeletal, special sense organs,
respiratory, including speech organs, cardiovascular, reproductive,
digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
(B) Limits a major life activity. For purposes of this section:
(i) "Limits" shall be determined without regard to mitigating
measures such as medications, assistive devices, prosthetics, or
reasonable accommodations, unless the mitigating measure itself
limits a major life activity.
(ii) A physiological disease, disorder, condition, cosmetic
disfigurement, or anatomical loss limits a major life activity if it
makes the achievement of the major life activity difficult.
(iii) "Major life activities" shall be broadly construed and
includes physical, mental, and social activities and working.
(2) Any other health impairment not described in paragraph (1)
that requires special education or related services.
(3) Having a record or history of a disease, disorder, condition,
cosmetic disfigurement, anatomical loss, or health impairment
described in paragraph (1) or (2), which is known to the employer or
other entity covered by this part.
(4) Being regarded or treated by the employer or other entity
covered by this part as having, or having had, any physical condition
that makes achievement of a major life activity difficult.
(5) Being regarded or treated by the employer or other entity
covered by this part as having, or having had, a disease, disorder,
condition, cosmetic disfigurement, anatomical loss, or health
impairment that has no present disabling effect but may become a
physical disability as described in paragraph (1) or (2).
(6) "Physical disability" does not include sexual behavior
disorders, compulsive gambling, kleptomania, pyromania, or
psychoactive substance use disorders resulting from the current
unlawful use of controlled substances or other drugs.
(m) Notwithstanding subdivisions (j) and (l), if the definition of
"disability" used in the federal Americans with Disabilities Act of
1990 (Public Law 101-336) would result in broader protection of the
civil rights of individuals with a mental disability or physical
disability, as defined in subdivision (j) or (l), or would include
any medical condition not included within those definitions, then
that broader protection or coverage shall be deemed incorporated by
reference into, and shall prevail over conflicting provisions of, the
definitions in subdivisions (j) and (l).
(n) "Race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, genetic
information, marital status, sex, age, or sexual orientation"
includes a perception that the person has any of those
characteristics or that the person is associated with a person who
has, or is perceived to have, any of those characteristics.
(o) "Reasonable accommodation" may include either of the
following:
(1) Making existing facilities used by employees readily
accessible to, and usable by, individuals with disabilities.
(2) Job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification of
equipment or devices, adjustment or modifications of examinations,
training materials or policies, the provision of qualified readers or
interpreters, and other similar accommodations for individuals with
disabilities.
(p) "Religious creed," "religion," "religious observance,"
"religious belief," and "creed" include all aspects of religious
belief, observance, and practice, including religious dress and
grooming practices. "Religious dress practice" shall be construed
broadly to include the wearing or carrying of religious clothing,
head or face coverings, jewelry, artifacts, and any other item that
is part of the observance by an individual of his or her religious
creed. "Religious grooming practice" shall be construed broadly to
include all forms of head, facial, and body hair that are part of the
observance by an individual of his or her religious creed.
(q) (1) "Sex" includes, but is not limited to, the following:
(A) Pregnancy or medical conditions related to pregnancy.
(B) Childbirth or medical conditions related to childbirth.
(C) Breastfeeding or medical conditions related to breastfeeding.
(2) "Sex" also includes, but is not limited to, a person's gender.
"Gender" means sex, and includes a person's gender identity and
gender expression. "Gender expression" means a person's
gender-related appearance and behavior whether or not stereotypically
associated with the person's assigned sex at birth.
(r) "Sexual orientation" means heterosexuality, homosexuality, and
bisexuality.
(s) "Supervisor" means any individual having the authority, in the
interest of the employer, to hire, transfer, suspend, layoff,
recall, promote, discharge, assign, reward, or discipline other
employees, or the responsibility to direct them, or to adjust their
grievances, or effectively to recommend that action, if, in
connection with the foregoing, the exercise of that authority is not
of a merely routine or clerical nature, but requires the use of
independent judgment.
(t) "Undue hardship" means an action requiring significant
difficulty or expense, when considered in light of the following
factors:
(1) The nature and cost of the accommodation needed.
(2) The overall financial resources of the facilities involved in
the provision of the reasonable accommodations, the number of persons
employed at the facility, and the effect on expenses and resources
or the impact otherwise of these accommodations upon the operation of
the facility.
(3) The overall financial resources of the covered entity, the
overall size of the business of a covered entity with respect to the
number of employees, and the number, type, and location of its
facilities.
(4) The type of operations, including the composition, structure,
and functions of the workforce of the entity.
(5) The geographic separateness, administrative, or fiscal
relationship of the facility or facilities.
SEC. 87. Section 14837 of the Government Code is amended to read:
14837. As used in this chapter:
(a) "Department" means the Department of General Services.
(b) "Director" means the Director of General Services.
(c) "Manufacturer" means a business that meets both of the
following requirements:
(1) It is primarily engaged in the chemical or mechanical
transformation of raw materials or processed substances into new
products.
(2) It is classified between Codes 31 to 33, inclusive, of the
North American Industry Classification System.
(d) (1) "Small business" means an independently owned and operated
business that is not dominant in its field of operation, the
principal office of which is located in California, the officers of
which are domiciled in California, and which, together with
affiliates, has 100 or fewer employees, and average annual gross
receipts of ten million dollars ($10,000,000) or less over the
previous three years, or is a manufacturer, as defined in subdivision
(c), with 100 or fewer employees.
(2) "Microbusiness" is a small business which, together with
affiliates, has average annual gross receipts of two million five
hundred thousand dollars ($2,500,000) or less over the previous three
years, or is a manufacturer, as defined in subdivision (c), with 25
or fewer employees.
(3) The director shall conduct a biennial review of the average
annual gross receipt levels specified in this subdivision and may
adjust that level to reflect changes in the California Consumer Price
Index for all items. To reflect unique variations or characteristics
of different industries, the director may establish, to the extent
necessary, either higher or lower qualifying standards than those
specified in this subdivision, or alternative standards based on
other applicable criteria.
(4) Standards applied under this subdivision shall be established
by regulation, in accordance with Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2, and shall preclude
the qualification of businesses that are dominant in their industry.
In addition, the standards shall provide that the certified small
business or microbusiness shall provide goods or services that
contribute to the fulfillment of the contract requirements by
performing a commercially useful function, as defined below:
(A) A certified small business or microbusiness is deemed to
perform a commercially useful function if the business does all of
the following:
(i) Is responsible for the execution of a distinct element of the
work of the contract.
(ii) Carries out its obligation by actually performing, managing,
or supervising the work involved.
(iii) Performs work that is normal for its business services and
functions.
(iv) Is responsible, with respect to products, inventories,
materials, and supplies required for the contract, for negotiating
price, determining quality and quantity, ordering, installing, if
applicable, and making payment.
(v) Is not further subcontracting a portion of the work that is
greater than that expected to be subcontracted by normal industry
practices.
(B) A contractor, subcontractor, or supplier will not be
considered to perform a commercially useful function if the
contractor's, subcontractor's, or supplier's role is limited to that
of an extra participant in a transaction, contract, or project
through which funds are passed in order to obtain the appearance of
small business or microbusiness participation.
(e) "Disabled veteran business enterprise" means an enterprise
that has been certified as meeting the qualifications established by
paragraph (7) of subdivision (b) of Section 999 of the Military and
Veterans Code.
SEC. 88. The heading of Chapter 3 (commencing with Section 15570)
of Part 8.5 of Division 3 of Title 2 of the Government Code is
repealed.
SEC. 89. Section 15606.5 of the Government Code, as added by
Chapter 1167 of the Statutes of 1967, is amended and renumbered to
read:
15606.7 Training of assessors and their staffs under Sections
15606 and 15608 shall be provided by the board on a nonreimbursable
basis.
SEC. 90. Section 15814.25 of the Government Code, as added by
Section 1 of Chapter 234 of the Statutes of 1997, is amended and
renumbered to read:
15814.29 Notwithstanding subdivision (f) of Section 15814.11, for
the purposes of this chapter "state agency" also shall include any
local government as defined in subdivision (b) of Section 5921.
SEC. 91. Section 15819.30 of the Government Code, as added by
Section 8 of Chapter 585 of the Statutes of 1993, is amended and
renumbered to read:
15819.17 (a) The necessary funding for the construction of the
Secure Substance Abuse Treatment Facility authorized by Section 5 of
Chapter 585 of the Statutes of 1993 may be obtained through
lease-purchase financing arrangements. Sections 15819.1 to 15819.13,
inclusive, and Section 15819.15 shall apply for this purpose provided
that the following apply:
(1) "Prison facility" as used in Section 15819.1 includes the
Secure Substance Abuse Treatment Facility.
(2) Notwithstanding the limitation imposed by Section 15819.3
regarding the amount of bonds to be issued for construction,
acquisition, and financing of prison facilities, the State Public
Works Board may issue additional bonds in order to pay the costs of
acquiring and constructing or refinancing the Secure Substance Abuse
Treatment Facility.
(b) Notwithstanding Section 13340, funds derived from the
lease-purchase financing methods for the Secure Substance Abuse
Treatment Facility deposited in the State Treasury, are hereby
continuously appropriated to the State Public Works Board on behalf
of the Department of Corrections and Rehabilitation for the purpose
of acquiring and constructing or refinancing the prison facility so
financed.
The sum of ninety-three million five hundred thousand dollars
($93,500,000) shall be available for capital outlay for the Secure
Substance Abuse Treatment Facility from funds derived from
lease-purchase financing methods.
Funds so appropriated shall be available as necessary for the
purposes of site acquisition, site studies and suitability reports,
environmental studies, master planning, architectural programming,
schematics, preliminary plans, working drawings, construction,
and long lead and equipment items. A maximum of two million
dollars ($2,000,000) of the funds may be available for mitigation
costs of local government and school districts.
(c) The State Public Works Board may authorize the augmentation of
the cost of construction of the project set forth in this section
pursuant to the board's authority under Section 13332.11. In
addition, the State Public Works Board may authorize any additional
amounts necessary to establish a reasonable construction reserve and
to pay the costs of financing, including the payment of interest
during acquisition or construction of the project, the cost of
financing a debt service reserve fund, and the cost of issuance of
permanent financing for the project. This additional amount may
include interest payable on any interim loan for the facility from
the General Fund or the Pooled Money Investment Account pursuant to
Section 16312.
SEC. 92. Section 15820.922 of the Government Code is amended to
read:
15820.922. (a) The board may issue up to five hundred million
dollars ($500,000,000) in revenue bonds, notes, or bond anticipation
notes, pursuant to Chapter 5 (commencing with Section 15830) to
finance the acquisition, design, and construction, including, without
limitation, renovation, and a reasonable construction reserve, of
approved adult local criminal justice facilities described in Section
15820.92, and any additional amount authorized under Section 15849.6
to pay for the cost of financing.
(b) Proceeds from the revenue bonds, notes, or bond anticipation
notes may be used to reimburse a participating county for the costs
of acquisition, design, and construction, including, without
limitation, renovation, for approved adult local criminal justice
facilities.
(c) Notwithstanding Section 13340, funds derived pursuant to this
section and Section 15820.921 are continuously appropriated for
purposes of this chapter.
SEC. 93. Section 19815 of the Government Code is amended to read:
19815. As used in this part:
(a) "Department" means the Department of Human Resources.
(b) "Director" means the Director of the Department of Human
Resources.
(c) "Division" means the Division of Labor Relations.
(d) "Employee" or "state employee," except where otherwise
indicated, means employees subject to the Ralph C. Dills Act (Chapter
10.3 (commencing with Section 3512), Division 4, Title 1),
supervisory employees as defined in subdivision (g) of Section 3513,
managerial employees as defined in subdivision (e) of Section 3513,
confidential employees as defined in subdivision (f) of Section 3513,
employees of the Legislative Counsel Bureau, employees of the Bureau
of State Audits, employees of the office of the Inspector General,
employees of the Public Employment Relations Board, conciliators
employed by the California State Mediation and Conciliation Service,
employees of the Department of Human Resources, professional
employees of the Department of Finance engaged in technical or
analytical state budget preparation other than audit staff,
intermittent athletic inspectors who are employees of the State
Athletic Commission, professional employees in the Personnel/Payroll
Services Division of the Controller's office and all employees of the
executive branch of government who are not elected to office.
SEC. 94. Section 20391 of the Government Code is amended to read:
20391. "State peace officer/firefighter member" means:
(a) All persons in the Board of Parole Hearings, the Department of
Consumer Affairs, the Department of Developmental Services, the
Department of Health Care Services, the Department of Toxic
Substances Control, the California Horse Racing Board, the Department
of Industrial Relations, the Department of Insurance, the State
Department of State Hospitals, the Department of Motor Vehicles, the
Department of Social Services employed with the class title of
Special Investigator (Class Code 8553), Senior Special Investigator
(Class Code 8550), and Investigator Assistant (Class Code 8554) who
have been designated as peace officers as defined in Sections
830.2 and 830.3 of the Penal
Code.
(b) All persons in the Department of Alcoholic Beverage Control
employed with the class title Investigator Trainee, Alcoholic
Beverage Control (Class Code 7553), Investigator I, Alcoholic
Beverage Control, Range A and B (Class Code 7554), and Investigator
II, Alcoholic Beverage Control (Class Code 7555) who have been
designated as peace officers as defined in Sections 830.2 and 830.3
of the Penal Code.
(c) All persons within the Department of Justice who are state
employees as defined in subdivision (c) of Section 3513 and who have
been designated as peace officers and performing investigative
duties.
(d) All persons in the Department of Parks and Recreation employed
with the class title of Park Ranger (Intermittent) (Class Code 0984)
who have been designated as peace officers as defined in Sections
830.2 and 830.3 of the Penal Code.
(e) All persons in the Franchise Tax Board who have been
designated as peace officers in subdivision (s) of Section 830.3 of
the Penal Code.
(f) A member who is employed in a position that is reclassified to
state peace officer/firefighter pursuant to this section may make an
irrevocable election in writing to remain subject to the service
retirement benefit and the normal rate of contribution applicable
prior to reclassification by filing a notice of election with the
board within 90 days of notification by the board. A member who so
elects shall be subject to the reduced benefit factors specified in
Section 21353 or 21354.1, as applicable, only for service included in
the federal system.
SEC. 95. Section 20410 of the Government Code is amended to read:
20410. "State safety member" also includes all persons in the
Department of Alcoholic Beverage Control, the Board of Parole
Hearings, the Department of Consumer Affairs, the Department of
Developmental Services, the Department of Health Care Services, the
Department of Toxic Substances Control, the California Horse Racing
Board, the Department of Industrial Relations, the Department of
Insurance, the State Department of State Hospitals, the Department of
Motor Vehicles, and the Department of Social Services employed with
the class title of Special Investigator (Class Code 8553), Senior
Special Investigator (Class Code 8550), Investigator Trainee (Class
Code 8555) and Investigator Assistant (Class Code 8554), Supervising
Special Investigator I (Class Code 8548), Special Investigator II
(Class Code 8547), and persons in the class of State Park Ranger
(Intermittent) (Class Code 0984) in the Department of Parks and
Recreation, who have been designated as peace officers as defined in
Sections 830.2 and 830.3 of the Penal Code.
SEC. 96. Section 20516 of the Government Code is amended to read:
20516. (a) Notwithstanding any other provision of this part, with
or without a change in benefits, a contracting agency and its
employees may agree, in writing, to share the costs of the employer
contribution. The cost sharing pursuant to this section shall also
apply for related nonrepresented employees as approved in a
resolution passed by the contracting agency.
(b) The collective bargaining agreement shall specify the exact
percentage of member compensation that shall be paid toward the
current service cost of the benefits by members. The member
contributions shall be contributions over and above normal
contributions otherwise required by this part and shall be treated as
normal contributions for all purposes of this part. The
contributions shall be uniform, except as described in subdivision
(c), with respect to all members within each of the following
classifications: local miscellaneous members, local police officers,
local firefighters, county peace officers, and all local safety
members other than local police officers, local firefighters, and
county peace officers. The balance of any costs shall be paid by the
contracting agency and shall be credited to the employer's account.
An employer shall not use impasse procedures to impose member cost
sharing on any contribution amount above that which is authorized by
law.
(c) Member cost sharing may differ by classification for groups of
employees subject to different levels of benefits pursuant to
Sections 7522.20, 7522.25, and 20475, or by a recognized collective
bargaining unit if agreed to in a memorandum of understanding reached
pursuant to the applicable collective bargaining laws.
(d) This section shall not apply to any contracting agency nor to
the employees of a contracting agency until the agency elects to be
subject to this section by contract or by amendment to its contract
made in the manner prescribed for approval of contracts.
Contributions provided by this section shall be withheld from member
compensation or otherwise collected when the contract amendment
becomes effective.
(e) For the purposes of this section, all contributions,
liabilities, actuarial interest rates, and other valuation factors
shall be determined on the basis of actuarial assumptions and methods
that, in the aggregate, are reasonable and that, in combination,
offer the actuary's best estimate of anticipated experience under
this system.
(f) Nothing in this section shall preclude a contracting agency
and its employees from independently agreeing in a memorandum of
understanding to share the costs of any benefit, in a manner
inconsistent with this section. However, any agreement in a
memorandum of understanding that is inconsistent with this section
shall not be part of the contract between this system and the
contracting agency.
(g) If, and to the extent that, the board determines that a
cost-sharing agreement under this section would conflict with Title
26 of the United States Code, the board may refuse to approve the
agreement.
(h) Nothing in this section shall require a contracting agency to
enter into a memorandum of understanding or collective bargaining
agreement with a bargaining representative in order to increase the
amount of member contributions when such a member contribution
increase is authorized by other provisions under this part.
SEC. 97. Section 20677.7 of the Government Code is amended to
read:
20677.7. (a) Notwithstanding Section 20677.4, effective with the
beginning of the September 2010 pay period, the normal rate of
contribution for state miscellaneous or state industrial members who
are represented by State Bargaining Unit 8, shall be:
(1) Eleven percent of the compensation in excess of three hundred
seventeen dollars ($317) per month paid to a member whose service is
not included in the federal system.
(2) Ten percent of compensation in excess of five hundred thirteen
dollars ($513) per month paid to a member whose service has been
included in the federal system.
(b) Notwithstanding Section 20677.4, effective with the beginning
of the September 2010 pay period, the normal rate of contribution for
state miscellaneous or state industrial members who are represented
by State Bargaining Unit 5 shall be:
(1) Eight percent of the compensation in excess of three hundred
seventeen dollars ($317) per month paid to a member whose service is
not included in the federal system.
(2) Seven percent of compensation in excess of five hundred
thirteen dollars ($513) per month paid to a member whose service has
been included in the federal system.
(c) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if the provisions of
a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless and until approved by
the Legislature in the annual Budget Act.
(d) Consistent with the normal rate of contribution for all
members identified in this subdivision, the Director of the
Department of Personnel Administration may exercise his or her
discretion to establish the normal rate of contribution for a related
state employee who is excepted from the definition of "state
employee" in subdivision (c) of Section 3513, and an officer or
employee of the executive branch of state government who is not a
member of the civil service.
SEC. 98. Section 25060 of the Government Code is amended to read:
25060. Whenever a vacancy occurs in a board of supervisors, the
Governor shall fill the vacancy. The appointee shall hold office
until the election and qualification of his or her successor.
SEC. 99. Section 25062 of the Government Code is amended to read:
25062. When a vacancy occurs from the failure of the person
elected to file his or her oath or bond as provided by law, and the
person elected is appointed to fill the vacancy, he or she shall hold
office for the unexpired term.
SEC. 100. Section 65040.7 of the Government Code is amended to
read:
65040.7. (a) For purposes of this section, the following terms
have the following meanings:
(1) "Energy security and military mission goals" means federal
laws, regulations, or executive orders, related to alternative fuel
and vehicle technology, clean energy, energy efficiency, water and
waste conservation, greenhouse gas emissions reductions, and related
infrastructure, including, but not limited to, the federal laws,
regulations, and executive orders, and the goals set forth therein,
of the National Energy Conservation Policy Act (42 U.S.C. Sec. 8201
et seq.), the Energy Independence and Security Act of 2007 (42 U.S.C.
Sec. 17001 et seq.), the Energy Policy Act of 2005 (42 U.S.C. Sec.
15801 et seq.), and the Energy Policy Act of 1992 (42 U.S.C. Sec.
13201 et seq.), and the goals set forth in Executive Order No. 13514,
Executive Order No. 13423, and Executive Order No. 13221.
(2) "State energy and environmental policies" includes, but is not
limited to, policies involving alternative fuels and vehicle
technology and related fueling infrastructure, renewable electricity
generation and related transmission infrastructure, energy efficiency
and demand response, waste management, recycling, water
conservation, water quality, water supply, greenhouse gas emissions
reductions, and green chemistry.
(b) A state agency that is identified by the Office of Planning
and Research pursuant to paragraph (1) of subdivision (c) shall, when
developing and implementing state energy and environmental policies,
consider the direct impacts of those policies upon the United States
Department of Defense's energy security and military mission goals.
(c) The Office of Planning and Research shall do both of the
following:
(1) Identify state agencies that develop and implement state
energy and environmental policies that directly impact the United
States Department of Defense's energy security and military mission
goals in the state.
(2) Serve as a liaison to coordinate effective inclusion of the
United States Department of Defense in the development and
implementation of state energy and environmental policy.
(d) This section shall not do any of the following:
(1) Interfere with the existing authority of, or prevent, an
agency or department from carrying out of its programs, projects, or
responsibilities.
(2) Limit compliance with requirements imposed under any other
law.
(3) Authorize or require the United States Department of Defense
to operate differently from any other self-generating ratepayer, or
alter an existing rate structure.
SEC. 101. Section 65302.5 of the Government Code is amended to
read:
65302.5. (a) At least 45 days prior to adoption or amendment of
the safety element, each county and city shall submit to the
California Geological Survey of the Department of Conservation one
copy of a draft of the safety element or amendment and any technical
studies used for developing the safety element. The division may
review drafts submitted to it to determine whether they incorporate
known seismic and other geologic hazard information, and report its
findings to the planning agency within 30 days of receipt of the
draft of the safety element or amendment pursuant to this
subdivision. The legislative body shall consider the division's
findings prior to final adoption of the safety element or amendment
unless the division's findings are not available within the above
prescribed time limits or unless the division has indicated to the
city or county that the division will not review the safety element.
If the division's findings are not available within those prescribed
time limits, the legislative body may take the division's findings
into consideration at the time it considers future amendments to the
safety element. Each county and city shall provide the division with
a copy of its adopted safety element or amendments. The division may
review adopted safety elements or amendments and report its findings.
All findings made by the division shall be advisory to the planning
agency and legislative body.
(b) (1) The draft element of or draft amendment to the safety
element of a county or a city's general plan shall be submitted to
the State Board of Forestry and Fire Protection and to every local
agency that provides fire protection to territory in the city or
county at least 90 days prior to either of the following:
(A) The adoption or amendment to the safety element of its general
plan for each county that contains state responsibility areas.
(B) The adoption or amendment to the safety element of its general
plan for each city or county that contains a very high fire hazard
severity zone as defined pursuant to subdivision (i) of Section
51177.
(2) A county that contains state responsibility areas and a city
or county that contains a very high fire hazard severity zone as
defined pursuant to subdivision (i) of Section 51177 shall submit for
review the safety element of its general plan to the State Board of
Forestry and Fire Protection and every local agency that provides
fire protection to territory in the city or county in accordance with
the following dates, as specified, unless the local government
submitted the element within five years prior to that date:
(A) Local governments within the regional jurisdiction of the San
Diego Association of Governments: December 31, 2010.
(B) Local governments within the regional jurisdiction of the
Southern California Association of Governments: December 31, 2011.
(C) Local governments within the regional jurisdiction of the
Association of Bay Area Governments: December 31, 2012.
(D) Local governments within the regional jurisdiction of the
Council of Fresno County Governments, the Kern County Council of
Governments, and the Sacramento Area Council of Governments: June 30,
2013.
(E) Local governments within the regional jurisdiction of the
Association of Monterey Bay Area Governments: December 31, 2014.
(F) All other local governments: December 31, 2015.
(3) The State Board of Forestry and Fire Protection shall, and a
local agency may, review the draft or an existing safety element and
recommend changes to the planning agency within 60 days of its
receipt regarding both of the following:
(A) Uses of land and policies in state responsibility areas and
very high fire hazard severity zones that will protect life,
property, and natural resources from unreasonable risks associated
with wildland fires.
(B) Methods and strategies for wildland fire risk reduction and
prevention within state responsibility areas and very high fire
hazard severity zones.
(4) Prior to the adoption of its draft element or draft amendment,
the board of supervisors of the county or the city council of a city
shall consider the recommendations, if any, made by the State Board
of Forestry and Fire Protection and any local agency that provides
fire protection to territory in the city or county. If the board of
supervisors or city council determines not to accept all or some of
the recommendations, if any, made by the State Board of Forestry and
Fire Protection or local agency, the board of supervisors or city
council shall communicate in writing to the State Board of Forestry
and Fire Protection or the local agency, its reasons for not
accepting the recommendations.
(5) If the State Board of Forestry and Fire Protection's or local
agency's recommendations are not available within the time limits
required by this section, the board of supervisors or city council
may act without those recommendations. The board of supervisors or
city council shall take the recommendations into consideration the
next time it considers amendments to the safety element.
SEC. 102. Section 65915 of the Government Code, as amended by
Section 53 of Chapter 181 of the Statutes of 2012, is amended to
read:
65915. (a) When an applicant seeks a density bonus for a housing
development within, or for the donation of land for housing within,
the jurisdiction of a city, county, or city and county, that local
government shall provide the applicant with incentives or concessions
for the production of housing units and child care facilities as
prescribed in this section. All cities, counties, or cities and
counties shall adopt an ordinance that specifies how compliance with
this section will be implemented. Failure to adopt an ordinance shall
not relieve a city, county, or city and county from complying with
this section.
(b) (1) A city, county, or city and county shall grant one density
bonus, the amount of which shall be as specified in subdivision (f),
and incentives or concessions, as described in subdivision (d), when
an applicant for a housing development seeks and agrees to construct
a housing development, excluding any units permitted by the density
bonus awarded pursuant to this section, that will contain at least
any one of the following:
(A) Ten percent of the total units of a housing development for
lower income households, as defined in Section 50079.5 of the Health
and Safety Code.
(B) Five percent of the total units of a housing development for
very low income households, as defined in Section 50105 of the Health
and Safety Code.
(C) A senior citizen housing development, as defined in Sections
51.3 and 51.12 of the Civil Code, or mobilehome park that limits
residency based on age requirements for housing for older persons
pursuant to Section 798.76 or 799.5 of the Civil Code.
(D) Ten percent of the total dwelling units in a common interest
development as defined in Section 4100 of the Civil Code for persons
and families of moderate income, as defined in Section 50093 of the
Health and Safety Code, provided that all units in the development
are offered to the public for purchase.
(2) For purposes of calculating the amount of the density bonus
pursuant to subdivision (f), the applicant who requests a density
bonus pursuant to this subdivision shall elect whether the bonus
shall be awarded on the basis of subparagraph (A), (B), (C), or (D)
of paragraph (1).
(3) For the purposes of this section, "total units" or "total
dwelling units" does not include units added by a density bonus
awarded pursuant to this section or any local law granting a greater
density bonus.
(c) (1) An applicant shall agree to, and the city, county, or city
and county shall ensure, continued affordability of all low- and
very low income units that qualified the applicant for the award of
the density bonus for 30 years or a longer period of time if required
by the construction or mortgage financing assistance program,
mortgage insurance program, or rental subsidy program. Rents for the
lower income density bonus units shall be set at an affordable rent
as defined in Section 50053 of the Health and Safety Code.
Owner-occupied units shall be available at an affordable housing cost
as defined in Section 50052.5 of the Health and Safety Code.
(2) An applicant shall agree to, and the city, county, or city and
county shall ensure that, the initial occupant of the
moderate-income units that are directly related to the receipt of the
density bonus in the common interest development, as defined in
Section 4100 of the Civil Code, are persons and families of moderate
income, as defined in Section 50093 of the Health and Safety Code,
and that the units are offered at an affordable housing cost, as that
cost is defined in Section 50052.5 of the Health and Safety Code.
The local government shall enforce an equity sharing agreement,
unless it is in conflict with the requirements of another public
funding source or law. The following apply to the equity sharing
agreement:
(A) Upon resale, the seller of the unit shall retain the value of
any improvements, the downpayment, and the seller's proportionate
share of appreciation. The local government shall recapture any
initial subsidy, as defined in subparagraph (B), and its
proportionate share of appreciation, as defined in subparagraph (C),
which amount shall be used within five years for any of the purposes
described in subdivision (e) of Section 33334.2 of the Health and
Safety Code that promote home ownership.
(B) For purposes of this subdivision, the local government's
initial subsidy shall be equal to the fair market value of the home
at the time of initial sale minus the initial sale price to the
moderate-income household, plus the amount of any downpayment
assistance or mortgage assistance. If upon resale the market value is
lower than the initial market value, then the value at the time of
the resale shall be used as the initial market value.
(C) For purposes of this subdivision, the local government's
proportionate share of appreciation shall be equal to the ratio of
the local government's initial subsidy to the fair market value of
the home at the time of initial sale.
(d) (1) An applicant for a density bonus pursuant to subdivision
(b) may submit to a city, county, or city and county a proposal for
the specific incentives or concessions that the applicant requests
pursuant to this section, and may request a meeting with the city,
county, or city and county. The city, county, or city and county
shall grant the concession or incentive requested by the applicant
unless the city, county, or city and county makes a written finding,
based upon substantial evidence, of any of the following:
(A) The concession or incentive is not required in order to
provide for affordable housing costs, as defined in Section 50052.5
of the Health and Safety Code, or for rents for the targeted units to
be set as specified in subdivision (c).
(B) The concession or incentive would have a specific adverse
impact, as defined in paragraph (2) of subdivision (d) of Section
65589.5, upon public health and safety or the physical environment or
on any real property that is listed in the California Register of
Historical Resources and for which there is no feasible method to
satisfactorily mitigate or avoid the specific adverse impact without
rendering the development unaffordable to low- and moderate-income
households.
(C) The concession or incentive would be contrary to state or
federal law.
(2) The applicant shall receive the following number of incentives
or concessions:
(A) One incentive or concession for projects that include at least
10 percent of the total units for lower income households, at least
5 percent for very low income households, or at least 10 percent for
persons and families of moderate income in a common interest
development.
(B) Two incentives or concessions for projects that include at
least 20 percent of the total units for lower income households, at
least 10 percent for very low income households, or at least 20
percent for persons and families of moderate income in a common
interest development.
(C) Three incentives or concessions for projects that include at
least 30 percent of the total units for lower income households, at
least 15 percent for very low income households, or at least 30
percent for persons and families of moderate income in a common
interest development.
(3) The applicant may initiate judicial proceedings if the city,
county, or city and county refuses to grant a requested density
bonus, incentive, or concession. If a court finds that the refusal to
grant a requested density bonus, incentive, or concession is in
violation of this section, the court shall award the plaintiff
reasonable attorney's fees and costs of suit. Nothing in this
subdivision shall be interpreted to require a local government to
grant an incentive or concession that has a specific, adverse impact,
as defined in paragraph (2) of subdivision (d) of Section 65589.5,
upon health, safety, or the physical environment, and for which there
is no feasible method to satisfactorily mitigate or avoid the
specific adverse impact. Nothing in this subdivision shall be
interpreted to require a local government to grant an incentive or
concession that would have an adverse impact on any real property
that is listed in the California Register of Historical Resources.
The city, county, or city and county shall establish procedures for
carrying out this section, that shall include legislative body
approval of the means of compliance with this section.
(e) (1) In no case may a city, county, or city and county apply
any development standard that will have the effect of physically
precluding the construction of a development meeting the criteria of
subdivision (b) at the densities or with the concessions or
incentives permitted by this section. An applicant may submit to a
city, county, or city and county a proposal for the waiver or
reduction of development standards that will have the effect of
physically precluding the construction of a development meeting the
criteria of subdivision (b) at the densities or with the concessions
or incentives permitted under this section, and may request a meeting
with the city, county, or city and county. If a court finds that the
refusal to grant a waiver or reduction of development standards is
in violation of this section, the court shall award the plaintiff
reasonable attorney's fees and costs of suit. Nothing in this
subdivision shall be interpreted to require a local government to
waive or reduce development standards if the waiver or reduction
would have a specific, adverse impact, as defined in paragraph (2) of
subdivision (d) of Section 65589.5, upon health, safety, or the
physical environment, and for which there is no feasible method to
satisfactorily mitigate or avoid the specific adverse impact. Nothing
in this subdivision shall be interpreted to require a local
government to waive or reduce development standards that would have
an adverse impact on any real property that is listed in the
California Register of Historical Resources, or to grant any waiver
or reduction that would
be contrary to state or federal law.
(2) A proposal for the waiver or reduction of development
standards pursuant to this subdivision shall neither reduce nor
increase the number of incentives or concessions to which the
applicant is entitled pursuant to subdivision (d).
(f) For the purposes of this chapter, "density bonus" means a
density increase over the otherwise maximum allowable residential
density as of the date of application by the applicant to the city,
county, or city and county. The applicant may elect to accept a
lesser percentage of density bonus. The amount of density bonus to
which the applicant is entitled shall vary according to the amount by
which the percentage of affordable housing units exceeds the
percentage established in subdivision (b).
(1) For housing developments meeting the criteria of subparagraph
(A) of paragraph (1) of subdivision (b), the density bonus shall be
calculated as follows:
Percentage Low-Income Units Percentage
Density Bonus
10 20
11 21.5
12 23
13 24.5
14 26
15 27.5
17 30.5
18 32
19 33.5
20 35
(2) For housing developments meeting the criteria of subparagraph
(B) of paragraph (1) of subdivision (b), the density bonus shall be
calculated as follows:
Percentage Very Low Percentage Density Bonus
Income Units
5 20
6 22.5
7 25
8 27.5
9 30
10 32.5
11 35
(3) For housing developments meeting the criteria of subparagraph
(C) of paragraph (1) of subdivision (b), the density bonus shall be
20 percent of the number of senior housing units.
(4) For housing developments meeting the criteria of subparagraph
(D) of paragraph (1) of subdivision (b), the density bonus shall be
calculated as follows:
Percentage Moderate- Percentage Density Bonus
Income Units
10 5
11 6
12 7
13 8
14 9
15 10
16 11
17 12
18 13
19 14
20 15
21 16
22 17
23 18
24 19
25 20
26 21
27 22
28 23
29 24
30 25
31 26
32 27
33 28
34 29
35 30
36 31
37 32
38 33
39 34
40 35
(5) All density calculations resulting in fractional units shall
be rounded up to the next whole number. The granting of a density
bonus shall not be interpreted, in and of itself, to require a
general plan amendment, local coastal plan amendment, zoning change,
or other discretionary approval.
(g) (1) When an applicant for a tentative subdivision map, parcel
map, or other residential development approval donates land to a
city, county, or city and county in accordance with this subdivision,
the applicant shall be entitled to a 15-percent increase above the
otherwise maximum allowable residential density for the entire
development, as follows:
Percentage Very Low Percentage Density Bonus
Income
10 15
11 16
12 17
13 18
14 19
15 20
16 21
17 22
18 23
19 24
20 25
21 26
22 27
23 28
24 29
25 30
26 31
27 32
28 33
29 34
30 35
(2) This increase shall be in addition to any increase in density
mandated by subdivision (b), up to a maximum combined mandated
density increase of 35 percent if an applicant seeks an increase
pursuant to both this subdivision and subdivision (b). All density
calculations resulting in fractional units shall be rounded up to the
next whole number. Nothing in this subdivision shall be construed to
enlarge or diminish the authority of a city, county, or city and
county to require a developer to donate land as a condition of
development. An applicant shall be eligible for the increased density
bonus described in this subdivision if all of the following
conditions are met:
(A) The applicant donates and transfers the land no later than the
date of approval of the final subdivision map, parcel map, or
residential development application.
(B) The developable acreage and zoning classification of the land
being transferred are sufficient to permit construction of units
affordable to very low income households in an amount not less than
10 percent of the number of residential units of the proposed
development.
(C) The transferred land is at least one acre in size or of
sufficient size to permit development of at least 40 units, has the
appropriate general plan designation, is appropriately zoned with
appropriate development standards for development at the density
described in paragraph (3) of subdivision (c) of Section 65583.2, and
is or will be served by adequate public facilities and
infrastructure.
(D) The transferred land shall have all of the permits and
approvals, other than building permits, necessary for the development
of the very low income housing units on the transferred land, not
later than the date of approval of the final subdivision map, parcel
map, or residential development application, except that the local
government may subject the proposed development to subsequent design
review to the extent authorized by subdivision (i) of Section 65583.2
if the design is not reviewed by the local government prior to the
time of transfer.
(E) The transferred land and the affordable units shall be subject
to a deed restriction ensuring continued affordability of the units
consistent with paragraphs (1) and (2) of subdivision (c), which
shall be recorded on the property at the time of the transfer.
(F) The land is transferred to the local agency or to a housing
developer approved by the local agency. The local agency may require
the applicant to identify and transfer the land to the developer.
(G) The transferred land shall be within the boundary of the
proposed development or, if the local agency agrees, within
one-quarter mile of the boundary of the proposed development.
(H) A proposed source of funding for the very low income units
shall be identified not later than the date of approval of the final
subdivision map, parcel map, or residential development application.
(h) (1) When an applicant proposes to construct a housing
development that conforms to the requirements of subdivision (b) and
includes a child care facility that will be located on the premises
of, as part of, or adjacent to, the project, the city, county, or
city and county shall grant either of the following:
(A) An additional density bonus that is an amount of square feet
of residential space that is equal to or greater than the amount of
square feet in the child care facility.
(B) An additional concession or incentive that contributes
significantly to the economic feasibility of the construction of the
child care facility.
(2) The city, county, or city and county shall require, as a
condition of approving the housing development, that the following
occur:
(A) The child care facility shall remain in operation for a period
of time that is as long as or longer than the period of time during
which the density bonus units are required to remain affordable
pursuant to subdivision (c).
(B) Of the children who attend the child care facility, the
children of very low income households, lower income households, or
families of moderate income shall equal a percentage that is equal to
or greater than the percentage of dwelling units that are required
for very low income households, lower income households, or families
of moderate income pursuant to subdivision (b).
(3) Notwithstanding any requirement of this subdivision, a city,
county, or city and county shall not be required to provide a density
bonus or concession for a child care facility if it finds, based
upon substantial evidence, that the community has adequate child care
facilities.
(4) "Child care facility," as used in this section, means a child
day care facility other than a family day care home, including, but
not limited to, infant centers, preschools, extended day care
facilities, and schoolage child care centers.
(i) "Housing development," as used in this section, means a
development project for five or more residential units. For the
purposes of this section, "housing development" also includes a
subdivision or common interest development, as defined in Section
4100 of the Civil Code, approved by a city, county, or city and
county and consists of residential units or unimproved residential
lots and either a project to substantially rehabilitate and convert
an existing commercial building to residential use or the substantial
rehabilitation of an existing multifamily dwelling, as defined in
subdivision (d) of Section 65863.4, where the result of the
rehabilitation would be a net increase in available residential
units. For the purpose of calculating a density bonus, the
residential units shall be on contiguous sites that are the subject
of one development application, but do not have to be based upon
individual subdivision maps or parcels. The density bonus shall be
permitted in geographic areas of the housing development other than
the areas where the units for the lower income households are
located.
(j) The granting of a concession or incentive shall not be
interpreted, in and of itself, to require a general plan amendment,
local coastal plan amendment, zoning change, or other discretionary
approval. This provision is declaratory of existing law.
(k) For the purposes of this chapter, concession or incentive
means any of the following:
(1) A reduction in site development standards or a modification of
zoning code requirements or architectural design requirements that
exceed the minimum building standards approved by the California
Building Standards Commission as provided in Part 2.5 (commencing
with Section 18901) of Division 13 of the Health and Safety Code,
including, but not limited to, a reduction in setback and square
footage requirements and in the ratio of vehicular parking spaces
that would otherwise be required that results in identifiable,
financially sufficient, and actual cost reductions.
(2) Approval of mixed-use zoning in conjunction with the housing
project if commercial, office, industrial, or other land uses will
reduce the cost of the housing development and if the commercial,
office, industrial, or other land uses are compatible with the
housing project and the existing or planned development in the area
where the proposed housing project will be located.
(3) Other regulatory incentives or concessions proposed by the
developer or the city, county, or city and county that result in
identifiable, financially sufficient, and actual cost reductions.
(l) Subdivision (k) does not limit or require the provision of
direct financial incentives for the housing development, including
the provision of publicly owned land, by the city, county, or city
and county, or the waiver of fees or dedication requirements.
(m) This section shall not be construed to supersede or in any
way alter or lessen the effect or application of the California
Coastal Act of 1976 (Division 20 (commencing with Section
30000) of the Public Resources Code).
(n) If permitted by local ordinance, nothing in this section shall
be construed to prohibit a city, county, or city and county from
granting a density bonus greater than what is described in this
section for a development that meets the requirements of this section
or from granting a proportionately lower density bonus than what is
required by this section for developments that do not meet the
requirements of this section.
(o) For purposes of this section, the following definitions shall
apply:
(1) "Development standard" includes a site or construction
condition, including, but not limited to, a height limitation, a
setback requirement, a floor area ratio, an onsite open-space
requirement, or a parking ratio that applies to a residential
development pursuant to any ordinance, general plan element, specific
plan, charter, or other local condition, law, policy, resolution, or
regulation.
(2) "Maximum allowable residential density" means the density
allowed under the zoning ordinance and land use element of the
general plan, or if a range of density is permitted, means the
maximum allowable density for the specific zoning range and land use
element of the general plan applicable to the project. Where the
density allowed under the zoning ordinance is inconsistent with the
density allowed under the land use element of the general plan, the
general plan density shall prevail.
(p) (1) Upon the request of the developer, no city, county, or
city and county shall require a vehicular parking ratio, inclusive of
handicapped and guest parking, of a development meeting the criteria
of subdivision (b), that exceeds the following ratios:
(A) Zero to one bedroom: one onsite parking space.
(B) Two to three bedrooms: two onsite parking spaces.
(C) Four and more bedrooms: two and one-half parking spaces.
(2) If the total number of parking spaces required for a
development is other than a whole number, the number shall be rounded
up to the next whole number. For purposes of this subdivision, a
development may provide "onsite parking" through tandem parking or
uncovered parking, but not through onstreet parking.
(3) This subdivision shall apply to a development that meets the
requirements of subdivision (b) but only at the request of the
applicant. An applicant may request parking incentives or concessions
beyond those provided in this subdivision pursuant to subdivision
(d).
SEC. 103. The heading of Chapter 3 (commencing with Section 80) of
Division 1 of the Harbors and Navigation Code, as added by Section 2
of Chapter 136 of the Statutes of 2012, is amended to read:
CHAPTER 3. BOATING AND WATERWAYS COMMISSION
BOATING AND WATERWAYS COMMISSION
SEC. 104. Section 80.2 of the Harbors and Navigation Code, as
added by Section 2 of Chapter 136 of the Statutes of 2012, is amended
to read:
80.2. The commission shall be composed of seven members appointed
by the Governor, with the advice and consent of the Senate. The
members shall have experience and background consistent with the
functions of the commission. In making appointments to the
commission, the Governor shall give primary consideration to
geographical location of the residence of members as related to
boating activities and harbors. In addition to the geographical
considerations, the members of the commission shall be appointed with
regard to their special interests in recreational boating. At least
one of the members shall be a member of a recognized statewide
organization representing recreational boaters. One member of the
commission shall be a private small craft harbor owner and operator.
One member of the commission shall be an officer or employee of a law
enforcement agency responsible for enforcing boating laws.
The Governor shall appoint the first seven members of the
commission for the following terms to expire on January 15: one
member for one year, two members for two years, two members for three
years, and two members for four years. Thereafter, appointments
shall be for a four-year term. Vacancies occurring prior to the
expiration of the term shall be filled by appointment for the
unexpired term.
SEC. 105. Section 82 of the Harbors and Navigation Code, as added
by Section 2 of Chapter 136 of the Statutes of 2012, is amended to
read:
82. The division, consistent with Section 82.3, and in
furtherance of the public interest and in accordance therewith, shall
have only the following duties with respect to the commission:
(a) To submit any proposed changes in regulations pertaining to
boating functions and responsibilities of the division to the
commission for its advice and comment prior to enactment of changes.
(b) To submit proposals for transfers pursuant to Section 70,
loans pursuant to Section 71.4 or 76.3, and grants pursuant to
Section 72.5 to the commission for its advice and comment.
(c) To submit any proposed project it is considering approving to
the commission if that project could have a potentially significant
impact on either public health or safety, public access, or the
environment for the commission's advice and comment prior to approval
by the division.
(d) To annually submit a report on its budget and expenditures to
the commission for its advice and comment.
(e) To cause studies and surveys to be made of the need for small
craft harbors and connecting waterways throughout the state and the
most suitable sites therefor, and submit those studies and surveys to
the commission for advice and comment.
SEC. 106. Section 1339.40 of the Health and Safety Code is amended
to read:
1339.40. For purposes of this article, the following definitions
apply:
(a) "Bereavement services" has the same meaning as defined in
subdivision (a) of Section 1746.
(b) "Hospice care" means a specialized form of interdisciplinary
health care that is designed to provide palliative care, alleviate
the physical, emotional, social, and spiritual discomforts of an
individual who is experiencing the last phases of life due to the
existence of a terminal disease, and provide supportive care to the
primary caregiver and the family of the hospice patient, and that
meets all of the following criteria:
(1) Considers the patient and the patient's family, in addition to
the patient, as the unit of care.
(2) Utilizes an interdisciplinary team to assess the physical,
medical, psychological, social, and spiritual needs of the patient
and the patient's family.
(3) Requires the interdisciplinary team to develop an overall plan
of care and to provide coordinated care that emphasizes supportive
services, including, but not limited to, home care, pain control, and
limited inpatient services. Limited inpatient services are intended
to ensure both continuity of care and appropriateness of services for
those patients who cannot be managed at home because of acute
complications or the temporary absence of a capable primary
caregiver.
(4) Provides for the palliative medical treatment of pain and
other symptoms associated with a terminal disease, but does not
provide for efforts to cure the disease.
(5) Provides for bereavement services following death to assist
the family in coping with social and emotional needs associated with
the death of the patient.
(6) Actively utilizes volunteers in the delivery of hospice
services.
(7) To the extent appropriate, based on the medical needs of the
patient, provides services in the patient's home or primary place of
residence.
(c) "Hospice facility" means a health facility as defined in
subdivision (n) of Section 1250.
(d) "Inpatient hospice care" means hospice care that is provided
to patients in a hospice facility, including routine, continuous
, and inpatient care directly as specified in Section 418.110
of Title 42 of the Code of Federal Regulations, and may include
short-term inpatient respite care as specified in Section 418.108 of
Title 42 of the Code of Federal Regulations.
(e) "Interdisciplinary team" has the same meaning as defined in
subdivision (g) of Section 1746.
(f) "Medical direction" has the same meaning as defined in
subdivision (h) of Section 1746.
(g) "Palliative care" has the same meaning as defined in
subdivision (j) of Section 1746.
(h) "Plan of care" has the same meaning as defined in subdivision
(l) of Section 1746.
(i) "Skilled nursing services" has the same meaning as defined in
subdivision (n) of Section 1746.
(j) "Social services/counseling services" has the same meaning as
defined in subdivision (o) of Section 1746.
(k) "Terminal disease" or "terminal illness" has the same meaning
as defined in subdivision (p) of Section 1746.
(l) "Volunteer services" has the same meaning as defined in
subdivision (q) of Section 1746.
SEC. 107. Section 1339.41 of the Health and Safety Code is amended
to read:
1339.41. (a) A person, governmental agency, or political
subdivision of the state shall not be licensed as a hospice facility
under this chapter unless the person or entity is a provider of
hospice services licensed pursuant to Section 1751 and is certified
as a hospice facility under Part 418 of Title 42 of the Code of
Federal Regulations.
(b) A hospice provider that intends to provide inpatient hospice
care in the hospice provider's own facility shall submit an
application and fee for licensure as a hospice facility under this
chapter. Notwithstanding the maximum period for a provisional license
under subdivision (b) of Section 1268.5, the department may issue a
provisional license to a hospice facility for a period of up to one
year.
(c) A verified application for a new license completed on forms
furnished by the department shall be submitted to the department upon
the occurrence of either of the following:
(1) Establishment of a hospice facility.
(2) Change of ownership.
(d) The licensee shall submit to the department a verified
application for a corrected license completed on forms furnished by
the department upon the occurrence of any of the following:
(1) Construction of new or replacement hospice facility.
(2) Increase in licensed bed capacity.
(3) Change of name of facility.
(4) Change of licensed category.
(5) Change of location of facility.
(6) Change in bed classification.
(e) (1) A hospice facility that participates in the Medicare and
Medicaid programs may obtain initial certification from a federal
Centers for Medicare and Medicaid Services (CMS) approved
accreditation organization.
(2) If the CMS-approved accreditation organization conducts
certification inspections, the hospice facility shall transmit to the
department, within 30 days of receipt, a copy of the final
accreditation report of the accreditation organization.
(f) A hospice facility shall be separately licensed, irrespective
of the location of the facility.
(g) (1) The licensee shall notify the department in writing of any
changes in the information provided pursuant to subdivision (d)
within 10 days of these changes. This notice shall include
information and documentation regarding the changes.
(2) Each licensee shall notify the department within 10 days in
writing of any change of the mailing address of the licensee. This
notice shall include the new mailing address of the licensee.
(3) When a change in the principal officer of a corporate
licensee, including the chairman, president, or general manager
occurs, the licensee shall notify the department of this change
within 10 days in writing. This notice shall include the name and
business address of the officer.
(4) Any decrease in licensed bed capacity of the facility shall
require notification by letter to the department and shall result in
the issuance of a corrected license.
SEC. 108. Section 1367.65 of the Health and Safety Code is amended
to read:
1367.65. (a) On or after January 1, 2000, each health care
service plan contract, except a specialized health care service plan
contract, that is issued, amended, delivered, or renewed shall be
deemed to provide coverage for mammography for screening or
diagnostic purposes upon referral by a participating nurse
practitioner, participating certified nurse-midwife, participating
physician assistant, or participating physician, providing care to
the patient and operating within the scope of practice provided under
existing law.
(b) This section does not prevent application of copayment or
deductible provisions in a plan, nor shall this section be construed
to require that a plan be extended to cover any other procedures
under an individual or a group health care service plan contract.
This section does not authorize a plan enrollee to receive the
services required to be covered by this section if those services are
furnished by a nonparticipating provider, unless the plan enrollee
is referred to that provider by a participating physician, nurse
practitioner, or certified nurse-midwife providing care.
SEC. 109. Section 1531.15 of the Health and Safety Code is amended
to read:
1531.15. (a) A licensee of an adult residential facility or group
home for no more than 15 residents, that is eligible for and serving
clients eligible for federal Medicaid funding and utilizing delayed
egress devices pursuant to Section 1531.1, may install and utilize
secured perimeters in accordance with the provisions of this section.
(b) As used in this section, "secured perimeters" means fences
that meet the requirements prescribed by this section.
(c) Only individuals meeting all of the following conditions
may be admitted to or reside in a facility described in subdivision
(a) utilizing secured perimeters:
(1) The person shall have a developmental disability as defined in
Section 4512 of the Welfare and Institutions Code.
(2) The person shall be receiving services and case management
from a regional center under the Lanterman Developmental Disabilities
Services Act (Division 4.5 (commencing with Section 4500) of the
Welfare and Institutions Code).
(3) (A) The person shall be 14 years of age or older, except as
specified in subparagraph (B).
(B) Notwithstanding subparagraph (A), a child who is at least 10
years of age and less than 14 years of age may be placed in a
licensed group home described in subdivision (a) using secured
perimeters only if both of the following occur:
(i) A comprehensive assessment is conducted and an individual
program plan meeting is convened to determine the services and
supports needed for the child to receive services in a less
restrictive, unlocked residential setting in California, and the
regional center requests assistance from the State Department of
Developmental Services' statewide specialized resource service to
identify options to serve the child in a less restrictive, unlocked
residential setting in California.
(ii) The regional center requests placement of the child in a
licensed group home described in subdivision (a) using secured
perimeters on the basis that the placement is necessary to prevent
out-of-state placement or placement in a more restrictive, locked
residential setting and the State Department of Developmental
Services approves the request.
(4) The person is not a foster child under the jurisdiction of the
juvenile court pursuant to Section 300, 450, 601, or 602 of the
Welfare and Institutions Code.
(5) An interdisciplinary team, through the individual program plan
(IPP) process pursuant to Section 4646.5 of the Welfare and
Institutions Code, shall have determined the person lacks hazard
awareness or impulse control and, for his or her safety and security,
requires the level of supervision afforded by a facility equipped
with secured perimeters, and, but for this placement, the person
would be at risk of admission to, or would have no option but to
remain in, a more restrictive placement. The individual program
planning team shall determine the continued appropriateness of the
placement at least annually.
(d) The licensee shall be subject to all applicable fire and
building codes, regulations, and standards, and shall receive
approval by the county or city fire department, the local fire
prevention district, or the State Fire Marshal for the installed
secured perimeters.
(e) The licensee shall provide staff training regarding the use
and operation of the secured perimeters, protection of residents'
personal rights, lack of hazard awareness and impulse control
behavior, and emergency evacuation procedures.
(f) The licensee shall revise its facility plan of operation.
These revisions shall first be approved by the State Department of
Developmental Services. The plan of operation shall not be approved
by the State Department of Social Services unless the licensee
provides certification that the plan was approved by the State
Department of Developmental Services. The plan shall include, but not
be limited to, all of the following:
(1) A description of how the facility is to be equipped with
secured perimeters that are consistent with regulations adopted by
the State Fire Marshal pursuant to Section 13143.6.
(2) A description of how the facility will provide training for
staff.
(3) A description of how the facility will ensure the protection
of the residents' personal rights consistent with Sections 4502,
4503, and 4504 of the Welfare and Institutions Code, and any
applicable personal rights provided in Title 22 of the California
Code of Regulations.
(4) A description of how the facility will manage residents' lack
of hazard awareness and impulse control behavior.
(5) A description of the facility's emergency evacuation
procedures.
(g) Secured perimeters shall not substitute for adequate staff.
(h) Emergency fire and earthquake drills shall be conducted on
each shift in accordance with existing licensing requirements, and
shall include all facility staff providing resident care and
supervision on each shift.
(i) Interior and exterior space shall be available on the facility
premises to permit clients to move freely and safely.
(j) For the purpose of using secured perimeters, the licensee
shall not be required to obtain a waiver or exception to a regulation
that would otherwise prohibit the locking of a perimeter fence or
gate.
(k) This section shall become operative only upon the publication
in Title 17 of the California Code of Regulations of emergency
regulations filed by the State Department of Developmental Services.
These regulations shall be developed with stakeholders, including the
State Department of Social Services, consumer advocates, and
regional centers. The regulations shall establish program standards
for homes that include secured perimeters, including requirements and
timelines for the completion and updating of a comprehensive
assessment of each consumer's needs, including the identification
through the individual program plan process of the services and
supports needed to transition the consumer to a less restrictive
living arrangement, and a timeline for identifying or developing
those services and supports. The regulations shall establish a
statewide limit on the total number of beds in homes with secured
perimeters. 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.
SEC. 110. Section 11378 of the Health and Safety Code is amended
to read:
11378. Except as otherwise provided in Article 7 (commencing with
Section 4110) of Chapter 9 of Division 2 of the Business and
Professions Code, a person who possesses for sale a controlled
substance that meets any of the following criteria shall be punished
by imprisonment pursuant to subdivision (h) of Section 1170 of the
Penal Code:
(1) The substance is classified in Schedule III, IV, or V and is
not a narcotic drug, except the substance specified in subdivision
(g) of Section 11056.
(2) The substance is specified in subdivision (d) of Section
11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23)
of subdivision (d).
(3) The substance is specified in paragraph (11) of subdivision
(c) of Section 11056.
(4) The substance is specified in paragraph (2) or (3) of
subdivision (f) of Section 11054.
(5) The substance is specified in subdivision (d), (e), or (f),
except paragraph (3) of subdivision (e) and subparagraphs (A) and (B)
of paragraph (2) of subdivision (f), of Section 11055.
SEC. 111. Section 11755 of the Health and Safety Code is amended
to read:
11755. The department shall do all of the following:
(a) Adopt regulations pursuant to Section 11152 of the Government
Code.
(b) Employ administrative, technical, and other personnel as may
be necessary for the performance of its powers and duties.
(c) Do or perform any of the acts that may be necessary,
desirable, or proper to carry out the purpose of this division.
(d) Provide funds to counties for the planning and implementation
of local programs to alleviate problems related to alcohol and other
drug use.
(e) Review and execute contracts for drug and alcohol services
submitted for funds allocated or administered by the department.
(f) Provide for technical assistance and training to local alcohol
and other drug programs to assist in the planning and implementation
of quality services.
(g) Review research in, and serve as a resource to provide
information relating to, alcohol and other drug programs.
(h) In cooperation with the Department of Human Resources,
encourage training in other state agencies to assist the agencies to
recognize employee problems relating to alcohol and other drug use
that affects job performance and encourage the employees to seek
appropriate services.
(i) Assist and cooperate with the Office of Statewide Health
Planning and Development in the drafting and adoption of the state
health plan to ensure inclusion of appropriate provisions relating to
alcohol and other drug problems.
(j) In the same manner and subject to the same conditions as other
state agencies, develop and submit annually to the Department of
Finance a program budget for the alcohol and other drug
program programs , which budget shall include
expenditures proposed to be made under this division, and may include
expenditures proposed to be made by any other state agency relating
to alcohol and other drug problems, pursuant to an interagency
agreement with the department.
(k) Review and certify alcohol and other drug programs meeting
state standards pursuant to Chapter 7 (commencing with Section 11830)
and Chapter 13 (commencing with Section 11847) of Part 2.
(l) Develop standards for ensuring minimal statewide levels of
service quality provided by alcohol and other drug programs.
(m) Review and license narcotic treatment programs.
(n) Develop and implement, in partnership with the counties,
alcohol and other drug prevention strategies especially designed for
youth.
(o) Develop and maintain a centralized alcohol and drug abuse
indicator data collection system that shall gather and obtain
information on the status of the alcohol and other drug abuse
problems in the state. This information shall include, but not be
limited to, all of the following:
(1) The number and characteristics of persons receiving recovery
or treatment services from alcohol and other drug programs providing
publicly funded services or services licensed by the state.
(2) The location and types of services offered by these programs.
(3) The number of admissions to hospitals on both an emergency
room and inpatient basis for treatment related to alcohol and other
drugs.
(4) The number of arrests for alcohol and other drug violations.
(5) The number of Department of Corrections and Rehabilitation,
Division of Juvenile Facilities , commitments for drug
violations.
(6) The number of Department of Corrections and Rehabilitation
commitments for drug violations.
(7) The number or percentage of persons having alcohol or other
drug problems as determined by survey information.
(8) The amounts of illicit drugs confiscated by law enforcement in
the state.
(9) The statewide alcohol and other drug program distribution and
the fiscal impact of alcohol and other drug problems upon the state.
Providers of publicly funded services or services licensed by the
department to clients-participants shall report data in a manner, in
a format, and under a schedule prescribed by the department.
(p) Issue an annual report that portrays the drugs abused,
populations affected, user characteristics, crime-related costs,
socioeconomic costs, and other related information deemed necessary
in providing a problem profile of alcohol and other drug abuse in the
state.
(q) (1) Require any individual, public or private organization, or
government agency, receiving federal grant funds, to comply with all
federal statutes, regulations, guidelines, and terms and conditions
of the grants. The failure of the individual, public or private
organization, or government agency, to comply with the statutes,
regulations, guidelines, and terms and conditions of grants received
may result in the department's disallowing noncompliant costs, or the
suspension or termination of the contract or grant award allocating
the grant funds.
(2) Adopt regulations implementing this subdivision in accordance
with Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code. For the purposes of the
Administrative Procedure Act, the adoption of the regulations shall
be deemed necessary for the preservation of the public peace, health
and safety, or general welfare. Subsequent amendments to the adoption
of emergency regulations shall be deemed an emergency only if those
amendments are adopted in direct response to a change in federal
statutes, regulations, guidelines, or the terms and conditions of
federal grants. Nothing in this paragraph shall be interpreted as
prohibiting the department from adopting subsequent amendments on a
nonemergency basis or as emergency regulations in accordance with the
standards set forth in Section 11346.1 of the Government Code.
SEC. 112. Section 25110.11 of the Health and Safety Code is
amended to read:
25110.11. (a) "Contained gaseous material," for purposes of
subdivision (a) of Section 25124 or any other provision of this
chapter, means any gas that is contained in an enclosed cylinder or
other enclosed container.
(b) Notwithstanding subdivision (a), "contained gaseous material"
does not include any exhaust or flue gas, or other vapor stream, or
any air or exhaust gas stream that is filtered or otherwise processed
to remove particulates, dusts, or other air pollutants, regardless
of the source.
SEC. 113. 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.
(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 act adding this part is to 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 authority and is hereby prohibited from accelerating
payment or making any lump-sum payments that are intended to prepay
loans unless such 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 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
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 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 and both the Controller'
s office and the Department of Finance and be 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 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.
(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. 114. Section 34183.5 of the Health and Safety Code is amended
to read:
34183.5. (a) The Legislature hereby finds and declares that due
to the delayed implementation of this part due to the California
Supreme Court's ruling in the case California Redevelopment
Association v. Matosantos (2011) 53 Cal.4th 231, some disruption to
the intended application of this part and other law with respect to
passthrough payments may have occurred.
(1) If a redevelopment agency or successor agency did not pay any
portion of an amount owed for the 2011-12 fiscal year to an affected
taxing entity pursuant to Section 33401, 33492.140, 33607, 33607.5,
33607.7, or 33676, or pursuant to any passthrough agreement entered
into before January 1, 1994, between a redevelopment agency and an
affected taxing entity, and to the extent the county
auditor-controller did not remit the amounts owed for passthrough
payments during the 2011-12 fiscal year, the county
auditor-controller shall make the required payments to the taxing
entities owed passthrough payments and shall reduce the amounts to
which the successor agency would otherwise be entitled pursuant to
paragraph (2) of subdivision (a) of Section 34183 at the next
allocation of property tax under this part, subject to subdivision
(b) of Section 34183. If the amount of available property tax
allocation to the successor agency is not sufficient to make the
required payment, the county auditor-controller shall continue to
reduce allocations to the successor agency under paragraph (2) of
subdivision (a) of Section 34183 until the time that the owed amount
is fully paid. Alternatively, the county auditor-controller may
accept payment from the successor agency's reserve funds for payments
of passthrough payments owed as defined in this subdivision.
(2) If a redevelopment agency did not pay any portion of the
amount owed for the 2011-12 fiscal year to an affected taxing entity
pursuant to Section 33401, 33492.140, 33607, 33607.5, 33607.7, or
33676, or pursuant to any passthrough agreement entered into before
January 1, 1994, between a redevelopment agency and an affected
taxing entity, but the county auditor-controller did pay the
difference that was owing, the county auditor-controller shall deduct
from the next allocation of property tax to the successor agency
under paragraph (2) of subdivision (a) of Section 34183, the amount
of the payment made on behalf of the successor agency by the county
auditor-controller, not to exceed one-half the amount of passthrough
payments owed for the 2011-12 fiscal year. If the amount of available
property tax allocation to the successor agency is not sufficient to
make the required deduction, the county auditor-controller shall
continue to reduce allocations to the successor agency under
paragraph (2) of subdivision (a) of Section 34183 until the time that
the amount is fully deducted. Alternatively, the auditor-controller
may accept payment from the successor agency's reserve funds for
deductions of passthrough payments owed as defined in this
subdivision. Amounts reduced from successor agency payments under
this paragraph are available for the purposes of paragraphs (2) to
(4), inclusive, of subdivision (a) of Section 34183 for the six-month
period for which the property tax revenues are being allocated.
(b) In recognition of the fact that county auditor-controllers
were unable to make the payments required by paragraph (4) of
subdivision (a) of Section 34183 for the period January 1, 2012,
through June 30, 2012, on January 16, 2012, due to the California
Supreme Court's ruling in the case of California Redevelopment
Association v. Matosantos (2011) 53 Cal.4th 231, in addition to
taking the actions specified in Section 34183 with respect to the
June 1 property tax allocations, county auditor-controllers should
have made allocations as provided in paragraph (1).
(1) From the allocations made on June 1, 2012, for the Recognized
Obligation Payment Schedule covering the period July 1, 2012, through
December 31, 2012, deduct from the amount that otherwise would be
deposited in the Redevelopment Property Tax Trust Fund on behalf of
the successor agency an amount equivalent to the amount that each
affected taxing entity was entitled to pursuant to paragraph (4) of
subdivision (a) of Section 34183 for the period January 1, 2012,
through June 30, 2012. The amount to be retained by taxing entities
pursuant to paragraph (4) of subdivision (a) of Section 34183 for the
January 1, 2012, through June 30, 2012, period is determined based
on the Recognized Obligation Payment Schedule approved by the
Department of Finance pursuant to subdivision (h) of Section 34179
and any amount determined to be owed pursuant to this subdivision.
Any amounts so computed shall not be offset by any shortages in
funding for recognized obligations for the period covering July 1,
2012, through December 31, 2012.
(2) (A) If an affected taxing entity has not received the full
amount to which it was entitled pursuant to paragraph (4) of
subdivision (a) of Section 34183 of the property tax distributed for
the period January 1, 2012, through June 30, 2012, and paragraph (1),
no later than July 9, 2012, the county auditor-controller shall
determine the amount, if any, that is owed by each successor agency
to taxing entities and send a demand for payment from the funds of
the successor agency for the amount owed to taxing entities if it has
distributed the June 1, 2012, allocation to the successor agencies.
No later than July 12, 2012, successor agencies shall make payment of
the amounts demanded to the county auditor-controller for deposit
into the Redevelopment Property Tax Trust Fund and subsequent
distribution to taxing entities. No later than July 16, 2012, the
county auditor-controller shall make allocations of all money
received by that date from successor agencies in amounts owed to
taxing entities under this paragraph to taxing entities in accordance
with Section 34183. The county auditor-controller shall make
allocations of any money received after that date under this
paragraph within five business days of receipt. These duties are not
discretionary and shall be carried out with due diligence.
(B) If a county auditor-controller fails to determine the amounts
owed to taxing entities and present a demand for payment by July 9,
2012, to the successor agencies, the Department of Finance or any
affected taxing entity may request a writ of mandate to require the
county auditor-controller to immediately perform this duty. Such
actions may be filed only in the County of Sacramento and shall have
priority over other civil matters. Any county in which the county
auditor-controller fails to perform the duties under this paragraph
shall be subject to a civil penalty of 10 percent of the amount owed
to taxing entities plus 1.5 percent of the amount owed to taxing
entities for each month that the duties are not performed. The civil
penalties shall be payable to the taxing entities under Section
34183. Additionally, any county in which the county
auditor-controller fails to make the required determinations and
demands for payment under this paragraph by July 9, 2012, or fails to
distribute the full amount of funds received from successor agencies
as required by this paragraph shall not receive the distribution of
sales and use tax scheduled for July 18, 2012, or any subsequent
payment, up to the amount owed to taxing entities, until the county
auditor-controller performs the duties required by this paragraph.
(C) If a successor agency fails to make the payment demanded under
subparagraph (A) by July 12, 2012, the Department of Finance or any
affected taxing entity may file for a writ of mandate to require the
successor agency to immediately make this payment. Such actions may
be filed only in the County of Sacramento and shall have priority
over other civil matters. Any successor agency that fails to make
payment by July 12, 2012, under this paragraph shall be subject to a
civil penalty of 10 percent of the amount owed to taxing entities
plus one and one-half percent of the amount owed to taxing entities
for each month that the payments are not made. Additionally, the city
or county or city and county that created the redevelopment agency
shall also be subject to a civil penalty of 10 percent of the amount
owed to taxing entities plus 1.5 percent of the amount owed to taxing
entities for each month the payment is late. The civil penalties
shall be payable to the taxing entities under Section 34183. If the
Department of Finance finds that the imposition of penalties will
jeopardize the payment of enforceable obligations it may request the
court to waive some or all of the penalties. A successor agency that
does not pay the amount required under this subparagraph by July 12,
2012, shall not pay any obligations other than bond debt service
until full payment is made to the county auditor-controller.
Additionally, any city, county or city and county that created the
redevelopment agency that fails to make the required payment under
this paragraph by July 12, 2012, shall not receive the distribution
of sales and use tax scheduled for July 18, 2012, or any subsequent
payment, up to the amount owed to taxing entities, until the payment
required by this paragraph is made.
(D) The Legislature hereby finds and declares that time is of the
essence. Funds that should have been received and were expected and
spent in anticipation of receipt by community colleges, schools,
counties, cities, and special districts have not been received
resulting in significant fiscal impact to the state and taxing
entities. Continued delay and uncertainty whether funds will be
received warrants the availability of extraordinary relief as
authorized herein.
(3) If an affected taxing entity has not received the full amount
to which it was entitled pursuant to paragraph (4) of subdivision (a)
of Section 34183 for the period January 1, 2012, through June 30,
2012, and paragraph (1), the county auditor-controller shall reapply
paragraph (1) to each subsequent property tax allocation until such
time as the affected taxing entity has received the full amount to
which it was entitled pursuant to paragraph (4) of subdivision (a) of
Section 34183 for the period January 1, 2012, through June 30, 2012.
SEC. 115. Section 39053 of the Health and Safety Code is amended
to read:
39053. "State board" means the State Air Resources Board.
SEC. 116. Section 39510 of the Health and Safety Code is amended
to read:
39510. (a) The State Air Resources Board is continued in
existence in the California Environmental Protection Agency. The
state board shall consist of 12 members.
(b) The members shall be appointed by the Governor, with the
consent of the Senate, on the basis of their demonstrated interest
and proven ability in the field of air pollution control and their
understanding of the needs of the general public in connection with
air pollution problems.
(c) Six members shall have the following qualifications:
(1) One member shall have training and experience in automotive
engineering or closely related fields.
(2) One member shall have training and experience in chemistry,
meteorology, or related scientific fields, including agriculture or
law.
(3) One member shall be a physician and surgeon or an authority on
health effects of air pollution.
(4) Two members shall be public members.
(5) One member shall have the qualifications specified in
paragraph (1), (2), or (3) or shall have experience in the field of
air pollution control.
(d) Six members shall be board members from districts who shall
reflect the qualitative requirements of subdivision (c) to the extent
practicable. Of these members:
(1) One shall be a board member from the south coast district.
(2) One shall be a board member from the bay district.
(3) One shall be a board member from the San Joaquin Valley
Unified Air Pollution Control District.
(4) One shall be a board member from the San Diego County Air
Pollution Control District.
(5) One shall be a board member from the Sacramento district, the
Placer County Air Pollution Control District, the Yolo-Solano Air
Quality Management District, the Feather River Air Quality Management
District, or the El Dorado County Air Pollution Control District.
(6) One shall be a board member of any other district.
(e) Any vacancy shall be filled by the Governor within 30 days of
the date on which it occurs. If the Governor fails to make an
appointment for any vacancy within the 30-day period, the Senate
Committee on Rules may make the appointment to fill the vacancy in
accordance with this section.
(f) While serving on the state board, all members shall exercise
their independent judgment as officers of the state on behalf of the
interests of the entire state in furthering the purposes of this
division. A member of the state board shall not be precluded from
voting or otherwise acting upon any matter solely because that member
has voted or acted upon the matter in his or her capacity as a
member of a district board, except that a member of the state board
who is also a member of a district board shall not participate in any
action regarding his or her district taken by the state board
pursuant to Sections 41503 to 41505, inclusive.
SEC. 117. Section 39710 of the Health and Safety Code is amended
to read:
39710. For purposes of this chapter, "fund" means the Greenhouse
Gas Reduction Fund, created pursuant to Section 16428.8 of the
Government Code.
SEC. 118. Section 39712 of the Health and Safety Code is amended
to read:
39712. (a) (1) It is the intent of the Legislature that moneys
shall be appropriated from the fund only in a manner consistent with
the requirements of this chapter and Article 9.7 (commencing with
Section 16428.8) of Chapter 2 of Part 2 of Division 4 of Title 2 of
the Government Code.
(2) The state shall not approve allocations for a measure or
program using moneys appropriated from the fund except after
determining, based on the available evidence, that the use of those
moneys furthers the regulatory purposes of Division 25.5 (commencing
with Section 38500) and is consistent with law. If any expenditure of
moneys from the fund for any measure or project is determined by a
court to be inconsistent with law, the allocations for the remaining
measures or projects shall be severable and shall not be affected.
(b) Moneys shall be used to facilitate the achievement of
reductions of greenhouse gas emissions in this state consistent with
Division 25.5 (commencing with Section 38500) and, where applicable
and to the extent feasible:
(1) Maximize economic, environmental, and public health benefits
to the state.
(2) Foster job creation by promoting in-state greenhouse gas
emissions reduction projects carried out by California workers and
businesses.
(3) Complement efforts to improve air quality.
(4) Direct investment toward the most disadvantaged communities
and households in the state.
(5) Provide opportunities for businesses, public agencies,
nonprofits, and other community institutions to participate in and
benefit from statewide efforts to reduce greenhouse gas emissions.
(6) Lessen the impacts and effects of climate change on the state'
s communities, economy, and environment.
(c) Moneys appropriated from the fund may be allocated, consistent
with subdivision (a), for the purpose of reducing greenhouse gas
emissions in this state through investments that may include, but are
not limited to, any of the following:
(1) Funding to reduce greenhouse gas emissions through energy
efficiency, clean and renewable energy generation, distributed
renewable energy generation, transmission and storage, and other
related actions, including, but not limited to, at public
universities, state and local public buildings, and industrial and
manufacturing facilities.
(2) Funding to reduce greenhouse gas emissions through the
development of state-of-the-art systems to move goods and freight,
advanced technology vehicles and vehicle infrastructure, advanced
biofuels, and low-carbon and efficient public transportation.
(3) Funding to reduce greenhouse gas emissions associated with
water use and supply, land and natural resource conservation and
management, forestry, and sustainable agriculture.
(4) Funding to reduce greenhouse gas emissions through strategic
planning and development of sustainable infrastructure projects,
including, but not limited to, transportation and housing.
(5) Funding to reduce greenhouse gas emissions through increased
in-state diversion of municipal solid waste from disposal through
waste reduction, diversion, and reuse.
(6) Funding to reduce greenhouse gas emissions through investments
in programs implemented by local and regional agencies, local and
regional collaboratives, and nonprofit organizations coordinating
with local governments.
(7) Funding research, development, and deployment of innovative
technologies, measures, and practices related to programs and
projects funded pursuant to this chapter.
SEC. 119. Section 39716 of the Health and Safety Code is amended
to read:
39716. (a) The Department of Finance, on behalf of the Governor,
and in consultation with the state board and any other relevant state
entity, shall develop and submit to the Legislature at the time of
the department's adjustments to the proposed 2013-14 fiscal year
budget pursuant to subdivision (e) of Section 13308 of the Government
Code a three-year investment plan. Commencing with the 2016-17
fiscal year budget and every three years thereafter, with the release
of the Governor's budget proposal, the Department of Finance shall
include updates to the investment plan following the public process
described in subdivisions (b) and (c). The investment plan,
consistent with the requirements of Section 39712, shall do all of
the following:
(1) Identify the state's near-term and long-term greenhouse gas
emissions reduction goals and targets by sector.
(2) Analyze gaps, where applicable, in current state strategies to
meeting the state's greenhouse gas emissions reduction goals and
targets by sector.
(3) Identify priority programmatic investments of moneys that will
facilitate the achievement of feasible and cost-effective greenhouse
gas emissions reductions toward achievement of greenhouse gas
reduction goals and targets by sector, consistent with subdivision
(c) of Section 39712.
(b) (1) The state board shall hold at least two public workshops
in different regions of the state and one public hearing prior to the
Department of Finance submitting the investment plan.
(2) The state board shall, prior to the submission of each
investment plan, consult with the Public Utilities Commission to
ensure the investment plan is coordinated with, and does not conflict
with or unduly overlap with, activities under the oversight or
administration of the Public Utilities Commission undertaken pursuant
to Part 5 (commencing with Section 38570) of Division 25.5 or other
activities under the oversight or administration of the Public
Utilities Commission that facilitate greenhouse gas emissions
reductions consistent with this division. The investment plan shall
include a description of the use of any moneys generated by the sale
of allowances received at no cost by the investor-owned utilities
pursuant to a market-based compliance mechanism.
(c) The Climate Action Team, established under Executive Order
S-3-05, shall provide information to the Department of Finance and
the state board to assist in the development of each investment plan.
The Climate Action Team shall participate in each public workshop
held on an investment plan and provide testimony to the state board
on each investment plan. For purposes of this section, the Secretary
of Labor and Workforce Development shall assist the Climate Action
Team in its efforts.
SEC. 120. Section 39718 of the Health and Safety Code is amended
to read:
39718. (a) Moneys in the fund shall be appropriated through the
annual Budget Act consistent with the investment plan developed and
submitted pursuant to Section 39716.
(b) Upon appropriation, moneys in the fund shall be available to
the state board and to administering agencies for administrative
purposes in carrying out this chapter.
(c) Any repayment of loans, including interest payments and all
interest earnings on or accruing to any moneys, resulting from
implementation of this chapter shall be deposited in the fund for
purposes of this chapter.
SEC. 121. Section 106985 of the Health and Safety Code is amended
to read:
106985. (a) (1) Notwithstanding Section 2052 of the Business and
Professions Code or any other law, a radiologic technologist
certified pursuant to the Radiologic Technology Act (Section 27) may,
under the direct supervision of a licensed physician and surgeon,
and in accordance with the facility's protocol that meets, at a
minimum, the requirements described in paragraph (2), perform
venipuncture in an upper extremity to administer contrast materials,
manually or by utilizing a mechanical injector, if the radiologic
technologist has been deemed competent to perform that venipuncture,
in accordance with paragraph (3), and issued a certificate, as
described in subdivision (b).
(2) (A) In administering contrast materials, a radiologic
technologist may, to ensure the security and integrity of the needle'
s placement or of an existing intravenous cannula, use a saline-based
solution that conforms with the facility's protocol and
that has been approved by a licensed physician and surgeon. The
protocol shall specify that only contrast materials or
pharmaceuticals approved by the United States Food and Drug
Administration may be used and shall also specify that the use shall
be in accordance with the labeling.
(B) A person who is currently certified as meeting the standards
of competence in nuclear medicine technology pursuant to Article 6
(commencing with Section 107150) and who is authorized to perform a
computerized tomography scanner only on a dual-mode machine, as
described in Section 106976, may perform the conduct described in
this subdivision.
(3) Prior to performing venipuncture pursuant to paragraph (1), a
radiologic technologist shall have performed at least 10
venipunctures on live humans under the personal supervision of a
licensed physician and surgeon, a registered nurse, or a person the
physician or nurse has previously deemed qualified to provide
personal supervision to the technologist for purposes of performing
venipuncture pursuant to this paragraph. Only after completion of a
minimum of 10 venipunctures may the supervising individual evaluate
whether the technologist is competent to perform venipuncture under
direct supervision. The number of venipunctures required in this
paragraph are in addition to those performed for meeting the
requirements of paragraph (2) of subdivision (d). The facility shall
document compliance with this subdivision.
(b) The radiologic technologist shall be issued a certificate as
specified in subdivision (e) or by an instructor indicating
satisfactory completion of the training and education described in
subdivision (d). This certificate documents completion of the
required education and training and may not, by itself, be construed
to authorize a person to perform venipuncture or to administer
contrast materials.
(c) (1) "Direct supervision," for purposes of this section, means
the direction of procedures authorized by this section by a licensed
physician and surgeon who shall be physically present within the
facility and available within the facility where the procedures are
performed, in order to provide immediate medical intervention to
prevent or mitigate injury to the patient in the event of adverse
reaction.
(2) "Personal supervision," for purposes of this section, means
the oversight of the procedures authorized by this section by a
supervising individual identified in paragraph (3) of subdivision (a)
who is physically present to observe, and correct, as needed, the
performance of the individual who is performing the procedure.
(d) The radiologic technologist shall have completed both of the
following:
(1) Received a total of 10 hours of instruction, including all of
the following:
(A) Anatomy and physiology of venipuncture sites.
(B) Venipuncture instruments, intravenous solutions, and related
equipment.
(C) Puncture techniques.
(D) Techniques of intravenous line establishment.
(E) Hazards and complications of venipuncture.
(F) Postpuncture care.
(G) Composition and purpose of antianaphylaxis tray.
(H) First aid and basic cardiopulmonary resuscitation.
(2) Performed 10 venipunctures on a human or training mannequin
upper extremity (for example, an infusion arm or a mannequin arm)
under personal supervision. If performance is on a human, only an
upper extremity may be used.
(e) Schools for radiologic technologists shall include the
training and education specified in subdivision (d). Upon
satisfactory completion of the training and education, the school
shall issue to the student a completion document. This document may
not be construed to authorize a person to perform venipuncture or to
administer contrast materials.
(f) Nothing in this section shall be construed to authorize a
radiologic technologist to perform arterial puncture, any central
venous access procedures including repositioning of previously placed
central venous catheter except as specified in paragraph (1) of
subdivision (a), or cutdowns, or establish an intravenous line.
(g) This section shall not be construed to apply to a person who
is currently certified as meeting the standards of competence in
nuclear medicine technology pursuant to Article 6 (commencing with
Section 107150), except as provided in subparagraph (B) of paragraph
(2) of subdivision (a).
(h) Radiologic technologists who met the training and education
requirements of subdivision (d) prior to January 1, 2013, need not
repeat those requirements, or perform the venipunctures specified in
paragraph (3) of subdivision
(a), provided the facility documents that the radiologic
technologist is competent to perform the tasks specified in paragraph
(1) of subdivision (a).
SEC. 122. Section 114365.5 of the Health and Safety Code is
amended to read:
114365.5. (a) The department shall adopt and post on its Internet
Web site a list of nonpotentially hazardous foods and their ethnic
variations that are approved for sale by a cottage food operation. A
cottage food product shall not be potentially hazardous food, as
defined in Section 113871.
(b) This list of nonpotentially hazardous foods shall include, but
not be limited to, all of the following:
(1) Baked goods without cream, custard, or meat fillings, such as
breads, biscuits, churros, cookies, pastries, and tortillas.
(2) Candy, such as brittle and toffee.
(3) Chocolate-covered nonperishable foods, such as nuts and dried
fruit.
(4) Dried fruit.
(5) Dried pasta.
(6) Dry baking mixes.
(7) Fruit pies, fruit empanadas, and fruit tamales.
(8) Granola, cereals, and trail mixes.
(9) Herb blends and dried mole paste.
(10) Honey and sweet sorghum syrup.
(11) Jams, jellies, preserves, and fruit butter that comply with
the standard described in Part 150 of Title 21 of the Code of Federal
Regulations.
(12) Nut mixes and nut butters.
(13) Popcorn.
(14) Vinegar and mustard.
(15) Roasted coffee and dried tea.
(16) Waffle cones and pizelles.
(c) (1) The State Public Health Officer may add or delete food
products to or from the list described in subdivision (b), which
shall be known as the approved food products list. Notice of any
change to the approved food products list shall be posted on the
department's cottage food program Internet Web site, to also be known
as the program Internet Web site for purposes of this chapter. Any
change to the approved food products list shall become effective 30
days after the notice is posted. The notice shall state the reason
for the change, the authority for the change, and the nature of the
change. The notice will provide an opportunity for written comment by
indicating the address to which to submit the comment and the
deadline by which the comment is required to be received by the
department. The address to which the comment is to be submitted may
be an electronic site. The notice shall allow at least 20 calendar
days for comments to be submitted. The department shall consider all
comments submitted before the due date. The department may withdraw
the proposed change at any time by notification on the program
Internet Web site or through notification by other electronic means.
The approved food products list described in subdivision (b), and any
updates to the list, shall not be subject to the administrative
rulemaking requirements of Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2) The State Public Health Officer shall not remove any items
from the approved food products list unless the State Public Health
Officer also posts information on the program Internet Web site
explaining the basis upon which the removed food item has been
determined to be potentially hazardous.
SEC. 123. Section 114380 of the Health and Safety Code is amended
to read:
114380. (a) A person proposing to build or remodel a food
facility shall submit complete, easily readable plans drawn to scale,
and specifications to the enforcement agency for review, and shall
receive plan approval before starting any new construction or
remodeling of a facility for use as a retail food facility.
(b) Plans and specifications may also be required by the
enforcement agency if the agency determines that they are necessary
to ensure compliance with the requirements of this part, including,
but not limited to, a menu change or change in the facility's method
of operation.
(c) (1) All new school food facilities or school food facilities
that undergo modernization or remodeling shall comply with all
structural requirements of this part. Upon submission of plans by a
public school authority, the Division of the State Architect and the
local enforcement agency shall review and approve all new and
remodeled school facilities for compliance with all applicable
requirements.
(2) Notwithstanding subdivision (a), the Office of Statewide
Health Planning and Development (OSHPD) shall maintain its primary
jurisdiction over licensed skilled nursing facilities, and when new
construction, modernization, or remodeling must be undertaken to
repair existing systems or to keep up the course of normal or routine
maintenance, the facility shall complete a building application and
plan check process as required by OSHPD. Approval of the plans by
OSHPD shall be deemed compliance with the plan approval process
required by the local county enforcement agency described in this
section.
(3) Except when a determination is made by the enforcement agency
that the nonconforming structural conditions pose a public health
hazard, existing public and private school cafeterias and licensed
health care facilities shall be deemed to be in compliance with this
part pending replacement or renovation.
(d) Except when a determination is made by the enforcement agency
that the nonconforming structural conditions pose a public health
hazard, existing food facilities that were in compliance with the law
in effect on June 30, 2007, shall be deemed to be in compliance with
the law pending replacement or renovation. If a determination is
made by the enforcement agency that a structural condition poses a
public health hazard, the food facility shall remedy the deficiency
to the satisfaction of the enforcement agency.
(e) The plans shall be approved or rejected within 20 working days
after receipt by the enforcement agency and the applicant shall be
notified of the decision. Unless the plans are approved or rejected
within 20 working days, they shall be deemed approved. The building
department shall not issue a building permit for a food facility
until after it has received plan approval by the enforcement agency.
Nothing in this section shall require that plans or specifications be
prepared by someone other than the applicant.
SEC. 124. Section 116565 of the Health and Safety Code is amended
to read:
116565. (a) Each public water system serving 1,000 or more
service connections, and any public water system that treats water on
behalf of one or more public water systems for the purpose of
rendering it safe for human consumption, shall reimburse the
department for the actual cost incurred by the department for
conducting those activities mandated by this chapter relating to the
issuance of domestic water supply permits, inspections, monitoring,
surveillance, and water quality evaluation that relate to that
specific public water system. The amount of reimbursement shall be
sufficient to pay, but in no event shall exceed, the department's
actual cost in conducting these activities.
(b) Each public water system serving fewer than 1,000 service
connections shall pay an annual drinking water operating fee to the
department as set forth in this subdivision for costs incurred by the
department for conducting those activities mandated by this chapter
relating to inspections, monitoring, surveillance, and water quality
evaluation relating to public water systems. The total amount of fees
shall be sufficient to pay, but in no event shall exceed, the
department's actual cost in conducting these activities.
Notwithstanding adjustment of actual fees collected pursuant to
Section 100425 as authorized pursuant to subdivision (d) of Section
116590, the amount that shall be paid annually by a public water
system pursuant to this section shall be as follows:
(1) Community water systems, six dollars ($6) per service
connection, but not less than two hundred fifty dollars ($250) per
water system, which may be increased by the department, as provided
for in subdivision (f), to ten dollars ($10) per service connection,
but not less than two hundred fifty dollars ($250) per water system.
(2) Nontransient noncommunity water systems pursuant to
subdivision (k) of Section 116275, two dollars ($2) per person
served, but not less than four hundred fifty-six dollars ($456) per
water system, which may be increased by the department, as provided
for in subdivision (f), to three dollars ($3) per person served, but
not less than four hundred fifty-six dollars ($456) per water system.
(3) Transient noncommunity water systems pursuant to subdivision
(o) of Section 116275, eight hundred dollars ($800) per water system,
which may be increased by the department, as provided for in
subdivision (f), to one thousand three hundred thirty-five dollars
($1,335) per water system.
(4) Noncommunity water systems in possession of a current
exemption pursuant to former Section 116282 on January 1, 2012, one
hundred two dollars ($102) per water system.
(c) For purposes of determining the fees provided for in
subdivision (a), the department shall maintain a record of its actual
costs for pursuing the activities specified in subdivision (a)
relative to each system required to pay the fees. The fee charged
each system shall reflect the department's actual cost, or in the
case of a local primacy agency the local primacy agency's actual
cost, of conducting the specified activities.
(d) The department shall submit an invoice for cost reimbursement
for the activities specified in subdivision (a) to the public water
systems no more than twice a year.
(1) The department shall submit one estimated cost invoice to
public water systems serving 1,000 or more service connections and
any public water system that treats water on behalf of one or more
public water systems for the purpose of rendering it safe for human
consumption. This invoice shall include the actual hours expended
during the first six months of the fiscal year. The hourly cost rate
used to determine the amount of the estimated cost invoice shall be
the rate for the previous fiscal year.
(2) The department shall submit a final invoice to the public
water system before October 1 following the fiscal year that the
costs were incurred. The invoice shall indicate the total hours
expended during the fiscal year, the reasons for the expenditure, the
hourly cost rate of the department for the fiscal year, the
estimated cost invoice, and payments received. The amount of the
final invoice shall be determined using the total hours expended
during the fiscal year and the actual hourly cost rate of the
department for the fiscal year. The payment of the estimated invoice,
exclusive of late penalty, if any, shall be credited toward the
final invoice amount.
(3) Payment of the invoice issued pursuant to paragraphs (1) and
(2) shall be made within 90 days of the date of the invoice. Failure
to pay the amount of the invoice within 90 days shall result in a
10-percent late penalty that shall be paid in addition to the
invoiced amount.
(e) Any public water system under the jurisdiction of a local
primacy agency shall pay the fees specified in this section to the
local primacy agency in lieu of the department. This section shall
not preclude a local health officer from imposing additional fees
pursuant to Section 101325.
(f) The department may increase the fees established in
subdivision (b) as follows:
(1) By February 1 of the fiscal year prior to the fiscal year for
which fees are proposed to be increased, the department shall publish
a list of fees for the following fiscal year and a report showing
the calculation of the amount of the fees.
(2) The department shall make the report and the list of fees
available to the public by submitting them to the Legislature and
posting them on the department's Internet Web site.
(3) The department shall establish the amount of fee increases
subject to the approval and appropriation by the Legislature.
SEC. 125. Section 120365 of the Health and Safety Code is amended
to read:
120365. (a) Immunization of a person shall not be required for
admission to a school or other institution listed in Section 120335
if the parent or guardian or adult who has assumed responsibility for
his or her care and custody in the case of a minor, or the person
seeking admission if an emancipated minor, files with the governing
authority a letter or affidavit that documents which immunizations
required by Section 120355 have been given and which immunizations
have not been given on the basis that they are contrary to his or her
beliefs.
(b) On and after January 1, 2014, a form prescribed by the State
Department of Public Health shall accompany the letter or affidavit
filed pursuant to subdivision (a). The form shall include both of the
following:
(1) A signed attestation from the health care practitioner that
indicates that the health care practitioner provided the parent or
guardian of the person who is subject to the immunization
requirements of this chapter, the adult who has assumed
responsibility for the care and custody of the person, or the person
if an emancipated minor, with information regarding the benefits and
risks of the immunization and the health risks of the communicable
diseases listed in Section 120335 to the person and to the community.
This attestation shall be signed not more than six months before the
date when the person first becomes subject to the immunization
requirement for which exemption is being sought.
(2) A written statement signed by the parent or guardian of the
person who is subject to the immunization requirements of this
chapter, the adult who has assumed responsibility for the care and
custody of the person, or the person if an emancipated minor, that
indicates that the signer has received the information provided by
the health care practitioner pursuant to paragraph (1). This
statement shall be signed not more than six months before the date
when the person first becomes subject to the immunization
requirements as a condition of admittance to a school or institution
pursuant to Section 120335.
(c) The following shall be accepted in lieu of the original form:
(1) A photocopy of the signed form.
(2) A letter signed by a health care practitioner that includes
all information and attestations included on the form.
(d) Issuance and revision of the form shall be exempt from 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).
(e) When there is good cause to believe that the person has been
exposed to one of the communicable diseases listed in subdivision (a)
of Section 120325, that person may be temporarily excluded from the
school or institution until the local health officer is satisfied
that the person is no longer at risk of developing the disease.
(f) For purposes of this section, "health care practitioner" means
any of the following:
(1) A physician and surgeon, licensed pursuant to Section 2050 of
the Business and Professions Code.
(2) A nurse practitioner who is authorized to furnish drugs
pursuant to Section 2836.1 of the Business and Professions Code.
(3) A physician assistant who is authorized to administer or
provide medication pursuant to Section 3502.1 of the Business and
Professions Code.
(4) An osteopathic physician and surgeon, as defined in the
Osteopathic Initiative Act.
(5) A naturopathic doctor who is authorized to furnish or order
drugs under a physician and surgeon's supervision pursuant to Section
3640.5 of the Business and Professions Code.
(6) A credentialed school nurse, as described in Section 49426 of
the Education Code.
SEC. 126. Section 123327 of the Health and Safety Code is amended
to read:
123327. (a) The department shall provide written notice to a
retail food vendor if the department determines that the vendor has
committed an initial violation for which a pattern of the violation
must be established to impose a sanction. Notice shall be provided no
later than 30 days after the department determines the first
investigation that identified the violation is complete.
(b) The written notice shall be delivered to the vendor 30 days
before the department conducts a second investigation for purposes of
establishing a pattern of the violation to the vendor's most recent
business ownership address on file with the department or to the
vendor location upon identification of a violation during vendor
monitoring, as defined by Section 40743 of Title 22 of the California
Code of Regulations.
(c) The written notice shall include a description of the initial
violation and may include information to assist the vendor to take
corrective action, including, but not limited to, a 60-day window
that includes the date of the violation.
(d) For purposes of this section, "violation" means a violation
set forth in Section 246.2 of Title 7 of the Code of Federal
Regulations.
(e) It is the intent of the Legislature in enacting this section
to clarify existing law.
SEC. 127. Section 123940 of the Health and Safety Code is amended
to read:
123940. (a) (1) Annually, the board of supervisors shall
appropriate a sum of money for services for handicapped children of
the county, including diagnosis, treatment, and therapy services for
physically handicapped children in public schools, equal to 25
percent of the actual expenditures for the county program under this
article for the 1990-91 fiscal year, except as specified in paragraph
(2).
(2) If the state certifies that a smaller amount is needed in
order for the county to pay 25 percent of costs of the county's
program from this source. The smaller amount certified by the state
shall be the amount that the county shall appropriate.
(b) In addition to the amount required by subdivision (a), the
county shall allocate an amount equal to the amount determined
pursuant to subdivision (a) for purposes of this article from
revenues allocated to the county pursuant to Chapter 6 (commencing
with Section 17600) of Division 9 of the Welfare and Institutions
Code.
(c) (1) The state shall match county expenditures for this article
from funding provided pursuant to subdivisions (a) and (b).
(2) County expenditures shall be waived for payment of services
for children who are eligible pursuant to paragraph (2) of
subdivision (a) of Section 123870.
(d) The county may appropriate and expend moneys in addition to
those set forth in subdivisions (a) and (b) and the state shall match
the expenditures, on a dollar-for-dollar basis, to the extent that
state funds are available for this article.
(e) County appropriations under subdivisions (a) and (b) shall
include county financial participation in the nonfederal share of
expenditures for services for children who are enrolled in the
Medi-Cal program pursuant to Section 14005.26 of the Welfare and
Institutions Code, and who are eligible for services under this
article pursuant to paragraph (1) of subdivision (a) of Section
123870, to the extent that federal financial participation is
available at the enhanced federal reimbursement rate under Title XXI
of the federal Social Security Act (42 U.S.C. Sec. 1397aa et seq.)
and funds are appropriated for the California Children's Services
Program in the State Budget.
(f) Nothing in this section shall require the county to expend
more than the amount set forth in subdivision (a) plus the amount set
forth in subdivision (b) nor shall it require the state to expend
more than the amount of the match set forth in subdivision (c).
(g) 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 further regulatory action, shall implement
this section by means of California Children's Services numbered
letters.
SEC. 128. Section 123955 of the Health and Safety Code is amended
to read:
123955. (a) The state and the counties shall share in the cost of
administration of the California Children's Services Program at the
local level.
(b) (1) The director shall adopt regulations establishing minimum
standards for the administration, staffing, and local implementation
of this article subject to reimbursement by the state.
(2) The standards shall allow necessary flexibility in the
administration of county programs, taking into account the
variability of county needs and resources, and shall be developed and
revised jointly with state and county representatives.
(c) The director shall establish minimum standards for
administration, staffing , and local operation of the
program subject to reimbursement by the state.
(d) Until July 1, 1992, reimbursable administrative costs, to be
paid by the state to counties, shall not exceed 4.1 percent of the
gross total expenditures for diagnosis, treatment, and therapy by
counties as specified in Section 123940.
(e) Beginning July 1, 1992, this subdivision shall apply with
respect to all of the following:
(1) Counties shall be reimbursed by the state for 50 percent of
the amount required to meet state administrative standards for that
portion of the county caseload under this article that is ineligible
for Medi-Cal to the extent funds are available in the State Budget
for the California Children's Services Program.
(2) Counties shall be reimbursed by the state for 50 percent of
the nonfederal share of the amount required to meet state
administrative standards for that portion of the county caseload
under this article that is enrolled in the Medi-Cal program pursuant
to Section 14005.26 of the Welfare and Institutions Code and who are
eligible for services under this article pursuant to subdivision (a)
of Section 123870, to the extent that federal financial participation
is available at the enhanced federal reimbursement rate under Title
XXI of the federal Social Security Act (42 U.S.C. Sec. 1397aa et
seq.) and funds are appropriated for the California Children's
Services Program in the State Budget.
(3) On or before September 15 of each year, each county program
implementing this article shall submit an application for the
subsequent fiscal year that provides information as required by the
state to determine if the county administrative staff and budget meet
state standards.
(4) The state shall determine the maximum amount of state funds
available for each county from state funds appropriated for CCS
county administration. If the amount appropriated for any fiscal year
in the Budget Act for county administration under this article
differs from the amounts approved by the department, each county
shall submit a revised application in a form and at the time
specified by the department.
(f) The department and counties shall maximize the use of federal
funds for administration of the programs implemented pursuant to this
article, including using state and county funds to match funds
claimable under Title XIX or Title XXI of the federal Social Security
Act (42 U.S.C. Sec. 1396 et seq.; 42 U.S.C. Sec. 1397aa et seq.).
SEC. 129. Section 125286.20 of the Health and Safety Code is
amended to read:
125286.20. Unless the context otherwise requires, the following
definitions shall apply for purposes of this article:
(a) "Assay" means the amount of a particular constituent of a
mixture or of the biological or pharmacological potency of a drug.
(b) "Ancillary infusion equipment and supplies" means the
equipment and supplies required to infuse a blood clotting product
into a human vein, including, but not limited to, syringes, needles,
sterile gauze, field pads, gloves, alcohol swabs, numbing creams,
tourniquets, medical tape, sharps or equivalent biohazard waste
containers, and cold compression packs.
(c) "Bleeding disorder" means a medical condition characterized by
a deficiency or absence of one or more essential blood clotting
proteins in the human blood, often called "factors," including all
forms of hemophilia and other bleeding disorders that, without
treatment, result in uncontrollable bleeding or abnormal blood
clotting.
(d) "Blood clotting product" means an intravenously administered
medicine manufactured from human plasma or recombinant biotechnology
techniques, approved for distribution by the federal Food and Drug
Administration, that is used for the treatment and prevention of
symptoms associated with bleeding disorders. Blood clotting products
include, but are not limited to, factor VII, factor VIIa, factor
VIII, and factor IX products, von Willebrand factor products, bypass
products for patients with inhibitors, and activated prothrombin
complex concentrates.
(e) "Emergency" means care as defined in Section 1317.1.
(f) "Hemophilia" means a human bleeding disorder caused by a
hereditary deficiency of the factor I, II, V, VIII, IX, XI, XII, or
XIII blood clotting protein in human blood.
(g) "Hemophilia treatment center" means a facility for the
treatment of bleeding disorders, including, but not limited to,
hemophilia, that receives funding specifically for the treatment of
patients with bleeding disorders from federal government sources,
including, but not limited to, the federal Centers for Disease
Control and Prevention and the federal Health Resources and Services
Administration (HRSA) of the United States Department of Health and
Human Services.
(h) "Home use" means infusion or other use of a blood clotting
product in a place other than a state-recognized hemophilia treatment
center or other clinical setting. Places where home use occurs
include, without limitation, a home or other nonclinical setting.
(i) "Patient" means a person needing a blood clotting product for
home use.
(j) (1) "Provider of blood clotting products for home use" means
all the following pharmacies, except as described in Section
125286.35, that dispense blood clotting factors for home use:
(A) Hospital pharmacies.
(B) Health system pharmacies.
(C) Pharmacies affiliated with hemophilia treatment centers.
(D) Specialty home care pharmacies.
(E) Retail pharmacies.
(2) The providers described in this subdivision shall include a
health care service plan and all its affiliated providers if the
health care service plan exclusively contracts with a single medical
group in a specified geographic area to provide professional services
to its enrollees.
SEC. 130. Section 128570 of the Health and Safety Code is amended
to read:
128570. (a) Persons participating in the program shall be persons
who agree in writing prior to completing an accredited medical or
osteopathic school based in the United States to serve in an eligible
practice setting, pursuant to subdivision (g)
of Section 128565, for at least three
years. The program shall be used only for the purpose of promoting
the education of medical doctors and doctors of osteopathy and
related administrative costs.
(b) A program participant shall commit to three years of full-time
professional practice once the participant has achieved full
licensure pursuant to Article 4 (commencing with Section 2080) of
Chapter 5 of Division 2 of, or Section 2099.5 of, the Business and
Professions Code and after completing an accredited residency
program. The obligated professional service shall be in direct
patient care in an eligible practice setting pursuant to subdivision
(g) of Section 128565.
(1) Leaves of absence either during medical school or service
obligation shall be permitted for serious illness, pregnancy, or
other natural causes. The selection committee shall develop the
process for determining the maximum permissible length of an absence,
the maximum permissible leaves of absences, and the process for
reinstatement. Awarding of scholarship funds shall be deferred until
the participant is back to full-time status.
(2) Full-time status shall be defined by the selection committee.
The selection committee may establish exemptions from this
requirement on a case-by-case basis.
(c) The maximum allowable amount per total scholarship shall be
one hundred five thousand dollars ($105,000). These moneys shall be
distributed over the course of a standard medical school curriculum.
The distribution of funds shall increase over the course of medical
school, increasing to ensure that at least 45 percent of the total
scholarship award is distributed upon matriculation in the final year
of school.
(d) In the event the program participant does not complete medical
school and the minimum three years of professional service pursuant
to the contractual agreement between the foundation and the
participant, the office shall recover the funds awarded plus the
maximum allowable interest for failure to begin or complete the
service obligation.
SEC. 131. Section 129725 of the Health and Safety Code is amended
to read:
129725. (a) (1) "Hospital building" includes any building not
specified in subdivision (b) that is used, or designed to be used,
for a health facility of a type required to be licensed pursuant to
Chapter 2 (commencing with Section 1250) of Division 2.
(2) Except as provided in paragraph (7) of subdivision (b),
hospital building includes a correctional treatment center, as
defined in subdivision (j) of Section 1250, the construction of which
was completed on or after March 7, 1973.
(b) "Hospital building" does not include any of the following:
(1) Any building where outpatient clinical services of a health
facility licensed pursuant to Section 1250 are provided that is
separated from a building in which hospital services are provided. If
any one or more outpatient clinical services in the building
provides services to inpatients, the building shall not be included
as a "hospital building" if those services provided to inpatients
represent no more than 25 percent of the total outpatient services
provided at the building. Hospitals shall maintain on an ongoing
basis, data on the patients receiving services in these buildings,
including the number of patients seen, categorized by their inpatient
or outpatient status. Hospitals shall submit this data annually to
the State Department of Public Health.
(2) A building used, or designed to be used, for a skilled
nursing facility or intermediate care facility if the building is of
single-story, wood-frame or light steel frame construction.
(3) A building of single-story, wood-frame or light steel frame
construction where only skilled nursing or intermediate care services
are provided if the building is separated from a building housing
other patients of the health facility receiving higher levels of
care.
(4) A freestanding structure of a chemical dependency recovery
hospital exempted under subdivision (c) of Section 1275.2.
(5) A building licensed to be used as an intermediate care
facility/developmentally disabled habilitative with six beds or less
and an intermediate care facility/developmentally disabled
habilitative of 7 to 15 beds that is a single-story, wood-frame or
light steel frame building.
(6) A building subject to licensure as a correctional treatment
center, as defined in subdivision (j) of Section 1250, the
construction of which was completed before March 7, 1973.
(7) (A) A building that meets the definition of a correctional
treatment center, pursuant to subdivision (j) of Section 1250, for
which the final design documents were completed or the construction
of which was initiated before January 1, 1994, operated by or to be
operated by the Department of Corrections and Rehabilitation, or by a
law enforcement agency of a city, county, or a city and county.
(B) In the case of reconstruction, alteration, or addition to,
the facilities identified in this paragraph, and paragraph (6) or any
other building subject to licensure as a general acute care
hospital, acute psychiatric hospital, correctional treatment center,
or nursing facility, as defined in subdivisions (a), (b), (j), and
(k) of Section 1250, operated or to be operated by the Department of
Corrections and Rehabilitation, or by a law enforcement agency of a
city, county, or city and county, only the reconstruction,
alteration, or addition, itself, and not the building as a whole, nor
any other aspect thereof, shall be required to comply with this
chapter or the regulations adopted pursuant thereto.
(8) A freestanding building used, or designed to be used, as a
congregate living health facility, as defined in subdivision (i) of
Section 1250.
(9) A freestanding building used, or designed to be used, as a
hospice facility, as defined in subdivision (n) of Section 1250.
SEC. 132. Section 136000 of the Health and Safety Code is amended
to read:
136000. (a) (1) Effective July 1, 2012, there is hereby
transferred from the Department of Managed Health Care the Office of
Patient Advocate to be established within the California Health and
Human Services Agency, to provide assistance to, and advocate on
behalf of, individuals served by health care service plans regulated
by the Department of Managed Health Care, insureds covered by health
insurers regulated by the Department of Insurance, and individuals
who receive or are eligible for other health care coverage in
California, including coverage available through the Medi-Cal
program, the California Health Benefit Exchange, the Healthy Families
Program, or any other county or state health care program. The goal
of the office shall be to help those individuals secure the health
care services to which they are entitled or for which they are
eligible under the law. 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.
(3) The provisions of this division affecting insureds covered by
health insurers regulated by the Department of Insurance and
individuals who receive or are eligible for coverage available
through the Medi-Cal program, the California Health Benefit Exchange,
the Healthy Families Program, or any other county or state health
care program shall commence on January 1, 2013, except that for the
period July 1, 2012, to January 1, 2013, the office shall continue
with any duties, responsibilities, or activities of the office
authorized as of July 1, 2011, which shall continue to be authorized.
(b) (1) The duties of the office shall include, but not be limited
to, all of the following:
(A) Developing, in consultation with the Managed Risk Medical
Insurance Board, the State Department of Health Care Services, the
California Health Benefit Exchange, the Department of Managed Health
Care, and the Department of Insurance, educational and informational
guides for consumers describing their rights and responsibilities,
and informing them on effective ways to exercise their rights to
secure health care coverage. The guides shall be easy to read and
understand and shall be made available in English and other threshold
languages, using an appropriate literacy level, and in a culturally
competent manner. The informational guides shall be made available to
the public by the office, including being made accessible on the
office's Internet Web site and through public outreach and
educational programs.
(B) Compiling an annual publication, to be made available on the
office's Internet Web site, of a quality of care report card,
including, but not limited to, health care service plans.
(C) Rendering assistance to consumers regarding procedures,
rights, and responsibilities related to the filing of complaints,
grievances, and appeals, including appeals of coverage denials and
information about any external appeal process.
(D) Making referrals to the appropriate state agency regarding
studies, investigations, audits, or enforcement that may be
appropriate to protect the interests of consumers.
(E) Coordinating and working with other government and
nongovernment patient assistance programs and health care
ombudsperson programs.
(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 which shall be identified in the annual Budget
Act.
(3) Until January 1, 2013, the office shall have access to records
of the Department of Managed Health Care, including, but not limited
to, information related to health care service plan or health
insurer audits, surveys, and enrollee or insured grievances.
(4) 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.
(5) 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 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) In enacting this act, 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, it
is appropriate to transfer the Office of Patient Advocate and to
confer new responsibilities on the Office of Patient Advocate,
including assisting consumers in obtaining health care coverage and
obtaining health care through health coverage that is regulated by
multiple regulators, both state and federal. The new responsibilities
include assisting consumers in navigating both public and private
health care coverage and assisting consumers in determining which
regulator regulates the health care coverage of a particular
consumer. In order to assist in implementing federal health care
reform in California, commencing January 1, 2013, the office, in
addition to the duties set forth in subdivision (b), shall also do
all of the following:
(1) Receive and respond to all inquiries, complaints, and requests
for assistance from individuals concerning health care coverage
available in California.
(2) Provide, and assist in the provision of, outreach and
education about health care coverage options as set forth in
subparagraph (A) of paragraph (1) of subdivision (b), including, but
not limited to:
(A) Information regarding applying for coverage; the cost of
coverage; and renewal in, and transitions between, health coverage
programs.
(B) Information and assistance regarding public programs, such as
Medi-Cal, the Healthy Families Program, federal veterans health
benefits, and Medicare; and private coverage, including
employer-sponsored coverage, Exchange coverage; and other sources of
care if the consumer is not eligible for coverage, such as county
services, community clinics, discounted hospital care, or charity
care.
(3) Coordinate with other state and federal agencies engaged in
outreach and education regarding the implementation of federal health
care reform.
(4) Render assistance to, and advocate on behalf of, consumers
with problems related to health care services, including care and
service problems and claims or payment problems.
(5) Refer consumers to the appropriate regulator of their health
coverage programs for filing complaints, grievances, or claims, or
for payment problems.
(d) (1) Commencing January 1, 2013, the office shall 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, and
resolution of complaints, including timeliness of resolution.
(2) The Department of Managed Health Care, the State Department of
Health Care Services, the Department of Insurance, the Managed Risk
Medical Insurance Board, the California Health Benefit Exchange, and
other public coverage programs shall provide to the office data in
the aggregate concerning consumer complaints and grievances. For the
purpose of publicly reporting information about the problems faced by
consumers in obtaining care and coverage, the office shall analyze
data on consumer complaints and grievances resolved by these
agencies, including demographic data, source of coverage, insurer or
plan, resolution of complaints and other information intended to
improve health care and coverage for consumers. The office shall
develop and provide comprehensive and timely data and analysis based
on the information provided by other agencies.
(3) The office shall collect and report data to the United States
Secretary of Health and Human Services on complaints and consumer
assistance as required to comply with requirements of the federal
Patient Protection and Affordable Care Act (Public Law 111-148).
(e) Commencing January 1, 2013, in order to assist consumers in
understanding the impact of federal health care reform as well as
navigating and resolving questions and problems with health care
coverage and programs, the office shall ensure that either the office
or a state agency contracting with the office shall do the
following:
(1) Operate a toll-free telephone hotline number that can route
callers to the proper regulating body or public program for their
question, their health plan, or the consumer assistance program in
their area.
(2) Operate an Internet Web site, other social media, and
up-to-date communication systems to give information regarding the
consumer assistance programs.
(f) (1) The office may contract with community-based consumer
assistance organizations to assist in any or all of the duties of
subdivision (c) in accordance with Section 19130 of the Government
Code or provide grants to community-based consumer assistance
organizations for portions of these purposes.
(2) Commencing January 1, 2013, any local community-based
nonprofit consumer assistance program with which the office contracts
shall include in its mission the assistance of, and duty to, health
care consumers. Contracting consumer assistance programs shall have
experience in the following areas:
(A) Assisting consumers in navigating the local health care
system.
(B) Advising consumers regarding their health care coverage
options and helping consumers enroll in and retain health care
coverage.
(C) Assisting consumers with problems in accessing health care
services.
(D) 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.
(E) Collecting and reporting data, including demographic data,
source of coverage, regulator, and resolution of complaints,
including timeliness of resolution.
(3) Commencing January 1, 2013, the office shall develop
protocols, procedures, and training modules for organizations with
which it contracts.
(4) Commencing January 1, 2013, the office shall adopt standards
for organizations with which it contracts regarding confidentiality
and conduct.
(5) Commencing January 1, 2013, the office may contract with
consumer assistance programs to develop a series of appropriate
literacy level and culturally and linguistically appropriate
educational materials in all threshold languages for consumers
regarding health care coverage options and how to resolve problems.
(g) Commencing January 1, 2013, the office shall develop protocols
and procedures for assisting in the resolution of consumer
complaints, including both of the following:
(1) A procedure for referral of complaints and grievances to the
appropriate regulator or health coverage program for resolution by
the relevant regulator or public program.
(2) A protocol or procedure for reporting to the appropriate
regulator and health coverage program regarding complaints and
grievances relevant to that agency that the office received and was
able to resolve without further action or referral.
(h) 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 behavioral health, including both
mental health and substance abuse treatment.
(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" shall have the same meaning as for
Medi-Cal managed care.
SEC. 132.5. Section 395 of the
Insurance Code is amended to read:
395. After a covered loss, an insurer shall provide, free of
charge, a complete copy of the insured's current insurance policy or
certificate within 30 calendar days of receipt of a request from the
insured. The time period for providing the insurance policy or
certificate may be extended by the commissioner. An insured who does
not experience a covered loss shall, upon request, be entitled to one
free copy of his or her current insurance policy or certificate
annually. The insurance policy or certificate provided to the insured
shall include, where applicable, the policy declarations page. This
section shall not apply to commercial policies issued pursuant to
Sections 675.5 and 675.6 676.6 , and
policies of workers' compensation insurance, as defined in Section
109.
SEC. 133. Section 676.75 of the Insurance Code is amended to read:
676.75. (a) No admitted insurer, licensed to issue and issuing
homeowner's or tenant's policies, as described in Section 122, shall
(1) fail or refuse to accept an application for that insurance or to
issue that insurance to an applicant or (2) cancel that insurance,
solely on the basis that the applicant or policyholder is engaged in
foster home activities in a certified family home, as defined in
Section 1506 of the Health and Safety Code.
(b) Coverage under policies described in subdivision (a) with
respect to a foster child shall be the same as that provided for a
natural child. However, unless specifically provided in the policy,
there shall be no coverage expressly provided in the policy for any
bodily injury arising out of the operation or use of any motor
vehicle, aircraft, or watercraft owned or operated by, or rented or
loaned to, any foster parent.
(c) It is against public policy for a policy of homeowner's or
tenant's insurance subject to this section to provide liability
coverage for any of the following losses:
(1) An insurer shall not be liable, under a policy of insurance
subject to this section, to any governmental agency for damage
arising from occurrences peculiar to the foster care relationship and
the provision of foster care services.
(2) Alienation of affection of a foster child.
(3) Any loss arising out of licentious, immoral, or sexual
behavior on the part of a foster parent intended to lead to, or
culminating in, any sexual act.
(4) Any loss arising out of a dishonest, fraudulent, criminal, or
intentional act.
(d) There shall be no penalty for violations of this section prior
to January 1, 2013.
(e) Insurers may provide a special endorsement to a homeowner's or
tenant's policy covering claims related to foster care that are not
excluded by subdivision (c).
(f) Insurers may provide by a separate policy for some or all of
the claims related to foster care that are excluded by subdivision
(c).
SEC. 134. Section 922.41 of the Insurance Code is amended to read:
922.41. (a) Credit shall be allowed a domestic insurer when the
reinsurance is ceded to an assuming insurer that has been certified
by the commissioner as a reinsurer in this state and secures its
obligations in accordance with the requirements of this section.
Credit shall be allowed at all times for which statutory financial
statement credit for reinsurance is claimed under this section. The
credit allowed shall be based upon the security held by or on behalf
of the ceding insurer in accordance with a rating assigned to the
certified reinsurer by the commissioner. The security shall be in a
form consistent with this section, any regulations promulgated by the
commissioner, and Section 922.5.
(b) In order to be eligible for certification, the assuming
insurer shall meet the following requirements:
(1) The assuming insurer shall be domiciled and licensed to
transact insurance or reinsurance in a qualified jurisdiction, as
determined by the commissioner pursuant to subdivisions (f) and (g).
(2) The assuming insurer shall maintain minimum capital and
surplus, or its equivalent, in an amount to be determined by the
commissioner, but no less than two hundred fifty million dollars
($250,000,000) calculated in accordance with paragraph (4) of
subdivision (f) of this section or Section 922.5. This requirement
may also be satisfied by an association including incorporated and
individual unincorporated underwriters having minimum capital and
surplus equivalents (net of liabilities) of at least two hundred
fifty million dollars ($250,000,000) and a central fund containing a
balance of at least two hundred fifty million dollars ($250,000,000).
(3) The assuming insurer shall maintain financial strength ratings
from two or more rating agencies deemed acceptable by the
commissioner. These ratings shall be based on interactive
communication between the rating agency and the assuming insurer and
shall not be based solely on publicly available information. These
financial strength ratings will be one factor used by the
commissioner in determining the rating that is assigned to the
assuming insurer. Acceptable rating agencies include the following:
(A) Standard & Poor's.
(B) Moody's Investors Service.
(C) Fitch Ratings.
(D) A.M. Best Company.
(E) Any other nationally recognized statistical rating
organization.
(4) The assuming insurer shall agree to submit to the jurisdiction
of this state, appoint the commissioner or a designated attorney in
this state as its agent for service of process in this state, and
agree to provide security for 100 percent of the assuming insurer's
liabilities attributable to reinsurance ceded by United States ceding
insurers if it resists enforcement of a final United States
judgment.
(5) The assuming insurer shall agree to meet applicable
information filing requirements as determined by the commissioner,
both with respect to an initial application for certification and on
an ongoing basis.
(6) The certified reinsurer shall comply with any other
requirements deemed relevant by the commissioner.
(c) (1) If an applicant for certification has been certified as a
reinsurer in a National Association of Insurance Commissioners (NAIC)
accredited jurisdiction, the commissioner may defer to that
jurisdiction's certification, and has the discretion to defer to the
rating assigned by that jurisdiction if the assuming insurer submits
a properly executed Form CR-1 (as published on the department's
Internet Web site), and such additional information as the
commissioner requires. The commissioner, however, may perform an
independent review and determination of any applicant. The assuming
insurer shall then be considered to be a certified reinsurer in this
state.
(2) If the commissioner defers to a certification determination by
another state, any change in the certified reinsurer's status or
rating in the other jurisdiction shall apply automatically in this
state as of the date it takes effect in the other jurisdiction unless
the commissioner otherwise determines. The certified reinsurer shall
notify the commissioner of any change in its status or rating within
10 days after receiving notice of the change.
(3) The commissioner may withdraw recognition of the other
jurisdiction's rating at any time and assign a new rating in
accordance with subdivision (h).
(4) The commissioner may withdraw recognition of the other
jurisdiction's certification at any time, with written notice to the
certified reinsurer. Unless the commissioner suspends or revokes
the certified reinsurer's
certification in accordance with this section and Section 922.42,
the certified reinsurer's certification shall remain in good standing
in this state for a period of three months, which shall be extended
if additional time is necessary to consider the assuming insurer's
application for certification in this state.
(d) An association, including incorporated and individual
unincorporated underwriters, may be a certified reinsurer. In order
to be eligible for certification, in addition to satisfying
requirements of subdivision (b), the reinsurer shall meet all of the
following requirements:
(1) The association shall satisfy its minimum capital and surplus
requirements through the capital and surplus equivalents (net of
liabilities) of the association and its members, which shall include
a joint central fund that may be applied to any unsatisfied
obligation of the association or any of its members, in an amount
determined by the commissioner to provide adequate protection.
(2) The incorporated members of the association shall not be
engaged in any business other than underwriting as a member of the
association and shall be subject to the same level of regulation and
solvency control by the association's domiciliary regulator as are
the unincorporated members.
(3) Within 90 days after its financial statements are due to be
filed with the association's domiciliary regulator, the association
shall provide to the commissioner an annual certification by the
association's domiciliary regulator of the solvency of each
underwriter member or, if a certification is unavailable, financial
statements, prepared by independent public accountants, of each
underwriter member of the association.
(e) (1) The commissioner shall post notice on the department's
Internet Web site promptly upon receipt of any application for
certification, including instructions on how members of the public
may respond to the application. The commissioner shall not take final
action on the application until at least 90 days after posting the
notice required by this subdivision.
(2) The commissioner shall issue written notice to an assuming
insurer that has made application and has been approved as a
certified reinsurer. Included in that notice shall be the rating
assigned the certified reinsurer in accordance with subdivision (h).
The commissioner shall publish a list of all certified reinsurers and
their ratings.
(f) The certified reinsurer shall agree to meet applicable
information filing requirements as determined by the commissioner,
both with respect to an initial application for certification and on
an ongoing basis. All information submitted by certified reinsurers
that is not otherwise public information subject to disclosure shall
be exempted from disclosure under Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code, and
shall be withheld from public disclosure. The applicable information
filing requirements are as follows:
(1) Notification within 10 days of any regulatory actions taken
against the certified reinsurer, any change in the provisions of its
domiciliary license or any change in rating by an approved rating
agency, including a statement describing those changes and the
reasons for those changes.
(2) Annually, Form CR-F or CR-S, as applicable pursuant to the
instructions published on the department's Internet Web site.
(3) Annually, the report of the independent auditor on the
financial statements of the insurance enterprise, on the basis
described in paragraph (4).
(4) Annually, audited financial statements, (audited United States
Generally Accepted Accounting Principles basis, if available,
audited International Financial Reporting Standards basis statements
are allowed, but must include an audited footnote reconciling equity
and net income to a United States Generally Accepted Accounting
Principles basis, or, with the written permission of the
commissioner, audited International Financial Reporting Standards
statements with reconciliation to United States Generally Accepted
Accounting Principles certified by an officer of the company),
regulatory filings, and actuarial opinion (as filed with the
certified reinsurer's supervisor). Upon the initial certification,
audited financial statements for the last three years filed with the
certified reinsurer's supervisor.
(5) At least annually, an updated list of all disputed and overdue
reinsurance claims regarding reinsurance assumed from United States
domestic ceding insurers.
(6) A certification from the certified reinsurer's domestic
regulator that the certified reinsurer is in good standing and
maintains capital in excess of the jurisdiction's highest regulatory
action level.
(7) Any other information that the commissioner may reasonably
require.
(g) If the commissioner certifies a non-United States domiciled
insurer, the commissioner shall create and publish a list of
qualified jurisdictions, under which an assuming insurer licensed and
domiciled in that jurisdiction is eligible to be considered for
certification by the commissioner as a certified reinsurer.
(1) In order to determine whether the domiciliary jurisdiction of
a non-United States assuming insurer is eligible to be recognized as
a qualified jurisdiction, the commissioner shall evaluate the
appropriateness and effectiveness of the reinsurance supervisory
system of the jurisdiction, both initially and on an ongoing basis,
and consider the rights, benefits, and the extent of reciprocal
recognition afforded by the non-United States jurisdiction to
reinsurers licensed and domiciled in the United States. The
commissioner shall determine the appropriate process for evaluating
the qualifications of those jurisdictions. Prior to its listing, a
qualified jurisdiction shall agree in writing to share information
and cooperate with the commissioner with respect to all certified
reinsurers domiciled within that jurisdiction. A jurisdiction may not
be recognized as a qualified jurisdiction if the commissioner has
determined that the jurisdiction does not adequately and promptly
enforce final United States judgments and arbitration awards.
Additional factors may be considered in the discretion of the
commissioner, including, but not limited to, the following:
(A) The framework under which the assuming insurer is regulated.
(B) The structure and authority of the domiciliary regulator with
regard to solvency regulation requirements and financial
surveillance.
(C) The substance of financial and operating standards for
assuming insurers in the domiciliary jurisdiction.
(D) The form and substance of financial reports required to be
filed or made publicly available by reinsurers in the domiciliary
jurisdiction and the accounting principles used.
(E) The domiciliary regulator's willingness to cooperate with
United States regulators in general and the commissioner in
particular.
(F) The history of performance by assuming insurers in the
domiciliary jurisdiction.
(G) Any documented evidence of substantial problems with the
enforcement of final United States judgments in the domiciliary
jurisdiction.
(H) Any relevant international standards or guidance with respect
to mutual recognition of reinsurance supervision adopted by the
International Association of Insurance Supervisors or a successor
organization.
(I) Any other matters deemed relevant by the commissioner.
(2) The commissioner shall consider the list of qualified
jurisdictions published through the NAIC committee process in
determining qualified jurisdictions. The commissioner may include on
the list published pursuant to this section, any jurisdiction on the
NAIC list of qualified jurisdictions, or on any equivalent list of
the United States Treasury.
(3) If the commissioner approves a jurisdiction as qualified that
does not appear on either the NAIC list of qualified jurisdictions,
or the United States Treasury list, the commissioner shall provide
thoroughly documented justification in accordance with criteria to be
developed under this section.
(4) United States jurisdictions that meet the requirements for
accreditation under the NAIC financial standards and accreditation
program shall be recognized as qualified jurisdictions.
(5) If a certified reinsurer's domiciliary jurisdiction ceases to
be a qualified jurisdiction, the commissioner has the discretion to
suspend the reinsurer's certification indefinitely, in lieu of
revocation.
(h) The commissioner shall assign a rating to each certified
reinsurer, giving due consideration to the financial strength ratings
that have been assigned by rating agencies deemed acceptable to the
commissioner pursuant to this section. The commissioner shall publish
a list of all certified reinsurers and their ratings.
(1) Each certified reinsurer shall be rated on a legal entity
basis, with due consideration being given to the group rating where
appropriate, except that an association including incorporated and
individual unincorporated underwriters that has been approved to do
business as a single certified reinsurer may be evaluated on the
basis of its group rating. Factors that may be considered as part of
the evaluation process include, but are not limited to, the
following:
(A) The certified reinsurer's financial strength rating from an
acceptable rating agency. The maximum rating that a certified
reinsurer may be assigned shall correspond to its financial strength
rating as set forth in clauses (i) to (vi), inclusive. The
commissioner shall use the lowest financial strength rating received
from an approved rating agency in establishing the maximum rating of
a certified reinsurer. A failure to obtain or maintain at least two
financial strength ratings from acceptable rating agencies shall
result in loss of eligibility for certification.
(i) Ratings category "Secure - 1" corresponds to A.M. Best Company
rating A++; Standard & Poor's rating AAA; Moody's Investors Service
rating Aaa; and Fitch Ratings rating AAA.
(ii) Ratings category "Secure - 2" corresponds to A.M. Best
Company rating A+; Standard & Poor's rating AA+, AA, or AA-; Moody's
Investors Service rating Aa1, Aa2, or Aa3; and Fitch Ratings rating
AA+, AA, or AA-.
(iii) Ratings category "Secure - 3" corresponds to A.M. Best
Company rating A; Standard & Poor's rating A+ or A; Moody's Investors
Service rating A1 or A2; and Fitch Ratings rating A+ or A.
(iv) Ratings category "Secure - 4" corresponds to A.M. Best
Company rating A-; Standard & Poor's rating A-; Moody's Investors
Service rating A3; and Fitch Ratings rating A-.
(v) Ratings category "Secure - 5" corresponds to A.M. Best Company
rating B++ or B+; Standard & Poor's rating BBB+, BBB, or BBB-; Moody'
s Investors Service rating Baa1, Baa2, or Baa3; and Fitch Ratings
rating BBB+, BBB, or BBB-.
(vi) Ratings category "Vulnerable - 6" corresponds to A.M. Best
Company rating B, B-, C++, C+, C, C-, D, E, or F; Standard & Poor's
rating BB+, BB, BB-, B+, B, B-, CCC, CC, C, D, or R; Moody's
Investors Service rating Ba1, Ba2, Ba3, B1, B2, B3, Caa, Ca, or C;
and Fitch Ratings rating BB+, BB, BB-, B+, B, B-, CCC+, CC, CCC-, or
DD.
(B) The business practices of the certified reinsurer in dealing
with its ceding insurers, including its record of compliance with
reinsurance contractual terms and obligations.
(C) For certified reinsurers domiciled in the United States, a
review of the most recent applicable NAIC Annual Statement Blank,
either Schedule F (for property/casualty reinsurers) or Schedule S
(for life and health reinsurers).
(D) For certified reinsurers not domiciled in the United States, a
review annually of Form CR-F (for property/casualty reinsurers) or
Form CR-S (for life and health reinsurers) (as published on the
department's Internet Web site).
(E) The reputation of the certified reinsurer for prompt payment
of claims under reinsurance agreements, based on an analysis of
ceding insurers' Schedule F reporting of overdue reinsurance
recoverables, including the proportion of obligations that are more
than 90 days past due or are in dispute, with specific attention
given to obligations payable to companies that are in administrative
supervision or receivership.
(F) Regulatory actions against the certified reinsurer.
(G) The report of the independent auditor on the financial
statements of the insurance enterprise, on the basis described in
subparagraph (H).
(H) For certified reinsurers not domiciled in the United States,
audited financial statements, (audited United States Generally
Accepted Accounting Principles basis, if available, audited
International Financial Reporting Standards basis statements are
allowed, but must include an audited footnote reconciling equity and
net income to a United States Generally Accepted Accounting
Principles basis, or, with the written permission of the
commissioner, audited International Financial Reporting Standards
statements with reconciliation to United States Generally Accepted
Accounting Principles certified by an officer of the company),
regulatory filings, and actuarial opinion (as filed with the
non-United States jurisdiction supervisor). Upon the initial
application for certification, the commissioner shall consider
audited financial statements for the last three years filed with its
non-United States jurisdiction supervisor.
(I) The liquidation priority of obligations to a ceding insurer in
the certified reinsurer's domiciliary jurisdiction in the context of
an insolvency proceeding.
(J) A certified reinsurer's participation in any solvent scheme of
arrangement, or similar procedure, which involves United States
ceding insurers. The commissioner shall receive prior notice from a
certified reinsurer that proposes participation by the certified
reinsurer in a solvent scheme of arrangement.
(K) Any other information deemed relevant by the commissioner.
(2) Based on the analysis conducted under subparagraph (E) of
paragraph (1) of a certified reinsurer's reputation for prompt
payment of claims, the commissioner may make appropriate adjustments
in the security the certified reinsurer is required to post to
protect its liabilities to United States ceding insurers, provided
that the commissioner shall, at a minimum, increase the security the
certified reinsurer is required to post by one rating level under
regulations promulgated by the commissioner, if the commissioner
finds either of the following:
(A) More than 15 percent of the certified reinsurer's ceding
insurance clients have overdue reinsurance recoverables on paid
losses of 90 days or more that are not in dispute and that exceed one
hundred thousand dollars ($100,000) for each ceding insurer.
(B) The aggregate amount of reinsurance recoverables on paid
losses that are not in dispute and that are overdue by 90 days or
more exceeds fifty million dollars ($50,000,000).
(3) The assuming insurer shall submit a properly executed Form
CR-1 (as published on the department's Internet Web site) as evidence
of its submission to the jurisdiction of this state, appointment of
the commissioner as an agent for service of process in this state,
and agreement to provide security for 100 percent of the assuming
insurer's liabilities attributable to reinsurance ceded by United
States ceding insurers if it resists enforcement of a final United
States judgment. The commissioner shall not certify any assuming
insurer that is domiciled in a jurisdiction that the commissioner has
determined does not adequately and promptly enforce final United
States judgments or arbitration awards.
(4) (A) In the case of a downgrade by a rating agency or other
disqualifying circumstance, the commissioner shall, upon written
notice, assign a new rating to the certified reinsurer in accordance
with the requirements of this subdivision.
(B) The commissioner shall have the authority to suspend, revoke,
or otherwise modify a certified reinsurer's certification at any time
if the certified reinsurer fails to meet its obligations or security
requirements under this section, or if other financial or operating
results of the certified reinsurer, or documented significant delays
in payment by the certified reinsurer, lead the commissioner to
reconsider the certified reinsurer's ability or willingness to meet
its contractual obligations.
(C) If the rating of a certified reinsurer is upgraded by the
commissioner, the certified reinsurer may meet the security
requirements applicable to its new rating on a prospective basis, but
the commissioner shall require the certified reinsurer to post
security under the previously applicable security requirements as to
all contracts in force on or before the effective date of the
upgraded rating. If the rating of a certified reinsurer is downgraded
by the commissioner, the commissioner shall require the certified
reinsurer to meet the security requirements applicable to its new
rating for all business it has assumed as a certified reinsurer.
(D) Upon revocation of the certification of a certified reinsurer
by the commissioner, the assuming insurer shall be required to post
security in accordance with Section 922.5 in order for the ceding
insurer to continue to take credit for reinsurance ceded to the
assuming insurer. If funds continue to be held in trust in accordance
with subdivision (d) of Section 922.4, the commissioner may allow
additional credit equal to the ceding insurer's pro rata share of
those funds, discounted to reflect the risk of uncollectibility and
anticipated expenses of trust administration. Notwithstanding the
change of a certified reinsurer's rating or revocation of its
certification, a domestic insurer that has ceded reinsurance to that
certified reinsurer shall not be denied credit for reinsurance for a
period of three months for all reinsurance ceded to that certified
reinsurer, unless the reinsurance is found by the commissioner to be
at high risk of uncollectibility.
(i) A certified reinsurer shall secure obligations assumed from
United States ceding insurers under this subdivision at a level
consistent with its rating. The amount of security required in order
for full credit to be allowed shall correspond with the following
requirements:
Ratings security required
Secure - 1: 0%
Secure - 2: 10%
Secure - 3: 20%
Secure - 4: 50%
Secure - 5: 75%
Vulnerable - 6: 100%
(1) In order for a domestic ceding insurer to qualify for full
financial statement credit for reinsurance ceded to a certified
reinsurer, the certified reinsurer shall maintain security in a form
acceptable to the commissioner and consistent with Section 922.5, or
in a multibeneficiary trust in accordance with subdivision (d) of
Section 922.4, except as otherwise provided in this subdivision. In
order for a domestic insurer to qualify for full financial statement
credit, reinsurance contracts entered into or renewed under this
section shall include a proper funding clause that requires the
certified reinsurer to provide and maintain security in an amount
sufficient to avoid the imposition of any financial statement penalty
on the ceding insurer under this section for reinsurance ceded to
the certified reinsurer.
(2) If a certified reinsurer maintains a trust to fully secure its
obligations subject to subdivision (d) of Section 922.4, and chooses
to secure its obligations incurred as a certified reinsurer in the
form of a multibeneficiary trust, the certified reinsurer shall
maintain separate trust accounts for its obligations incurred under
reinsurance agreements issued or renewed as a certified reinsurer
with reduced security as permitted by this subdivision or comparable
laws of other United States jurisdictions and for its obligations
subject to subdivision (d) of Section 922.4. It shall be a condition
to the grant of certification under this section that the certified
reinsurer shall have bound itself, by the language of the trust and
agreement with the commissioner with principal regulatory oversight
of each of those trust accounts, to fund, upon termination of any of
those trust accounts, out of the remaining surplus of those trusts
any deficiency of any other of those trust accounts.
(3) The minimum trusteed surplus requirements provided in
subdivision (d) of Section 922.4 are not applicable with respect to a
multibeneficiary trust maintained by a certified reinsurer for the
purpose of securing obligations incurred under this subdivision,
except that the trust shall maintain a minimum trusteed surplus of
ten million dollars ($10,000,000).
(4) With respect to obligations incurred by a certified reinsurer
under this subdivision, if the security is insufficient, the
commissioner shall reduce the allowable credit by an amount
proportionate to the deficiency, and have the discretion to impose
further reductions in allowable credit upon finding that there is a
material risk that the certified reinsurer's obligations will not be
paid in full when due.
(5) For purposes of this subdivision, a certified reinsurer whose
certification has been terminated for any reason shall be treated as
a certified reinsurer required to secure 100 percent of its
obligations.
(A) As used in this subdivision, the term "terminated" means
revocation, suspension, voluntary surrender, and inactive status.
(B) If the commissioner continues to assign a higher rating as
permitted by other provisions of this section, this requirement shall
not apply to a certified reinsurer in inactive status or to a
reinsurer whose certification has been suspended.
(6) The commissioner shall require the certified reinsurer to post
100-percent security in accordance with Section 922.5, for the
benefit of the ceding insurer or its estate, upon the entry of an
order of rehabilitation, liquidation, or conservation against the
ceding insurer.
(7) Affiliated reinsurance transactions shall receive the same
opportunity for reduced security requirements as all other
reinsurance transactions.
(8) In order to facilitate the prompt payment of claims, a
certified reinsurer shall not be required to post security for
catastrophe recoverables for a period of one year from the date of
the first instance of a liability reserve entry by the ceding company
as a result of a loss from a catastrophic occurrence that is likely
to result in significant insured losses, as recognized by the
commissioner. The one-year deferral period is contingent upon the
certified reinsurer continuing to pay claims in a timely manner, as
determined by the commissioner, in writing. Reinsurance recoverables
for only the following lines of business as reported on the NAIC
annual financial statement related specifically to the catastrophic
occurrence shall be included in the deferral:
(A) Line 1: Fire.
(B) Line 2: Allied lines.
(C) Line 3: Farmowners' multiple peril.
(D) Line 4: Homeowners' multiple peril.
(E) Line 5: Commercial multiple peril.
(F) Line 9: Inland marine.
(G) Line 12: Earthquake.
(H) Line 21: Auto physical damage.
(9) Credit for reinsurance under this section shall apply only to
reinsurance contracts entered into or renewed on or after the
effective date of the certification of the assuming insurer. Any
reinsurance contract entered into prior to the effective date of the
certification of the assuming insurer that is subsequently amended by
mutual agreement of the parties to the reinsurance contract after
the effective date of the certification of the assuming insurer, or a
new reinsurance contract, covering any risk for which collateral was
provided previously, shall only be subject to this section with
respect to losses incurred and reserves reported from and after the
effective date of the amendment or new contract.
(10) Nothing in this section shall be construed to prohibit the
parties to a reinsurance agreement from agreeing to provisions
establishing security requirements that exceed the minimum security
requirements established for certified reinsurers under this section.
(j) A certified reinsurer that ceases to assume new business in
this state may request to maintain its certification in inactive
status in order to continue to qualify for a reduction in security
for its in-force business. An inactive certified reinsurer shall
continue to comply with all applicable requirements of this section,
and the commissioner shall assign a rating that takes into account,
if relevant, the reasons why the reinsurer is not assuming new
business.
(k) Notwithstanding this section, credit for reinsurance or
deduction from liability by a domestic ceding insurer for cessions to
a certified reinsurer may be disallowed upon a finding by the
commissioner that the application of the literal provisions of this
section does not accomplish its intent, or either the financial
condition of the reinsurer or the collateral or other security
provided by the reinsurer does not, in substance, satisfy the credit
for reinsurance requirements in Section 922.4.
(l) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 135. Section 1063.1 of the Insurance Code is amended to read:
1063.1. As used in this article:
(a) "Member insurer" means an insurer required to be a member of
the association in accordance with subdivision (a) of Section 1063,
except and to the extent that the insurer is participating in an
insolvency program adopted by the United States government.
(b) "Insolvent insurer" means an insurer that was a member insurer
of the association, consistent with paragraph (11) of subdivision
(c), either at the time the policy was issued or when the insured
event occurred, and against which an order of liquidation with a
finding of insolvency has been entered by a court of competent
jurisdiction, or, in the case of the State Compensation Insurance
Fund, if a finding of insolvency is made by a duly enacted
legislative measure.
(c) (1) "Covered claims" means the obligations of an insolvent
insurer, including the obligation for unearned premiums, that satisfy
all of the following requirements:
(A) Imposed by law and within the coverage of an insurance policy
of the insolvent insurer.
(B) Which were unpaid by the insolvent insurer.
(C) Which are presented as a claim to the liquidator in the state
of domicile of the insolvent insurer or to the association on or
before the last date fixed for the filing of claims in the
domiciliary liquidating proceedings.
(D) Which were incurred prior to the date coverage under the
policy terminated and prior to, on, or within 30 days after the date
the liquidator was appointed.
(E) For which the assets of the insolvent insurer are insufficient
to discharge in full.
(F) In the case of a policy of workers' compensation insurance, to
provide workers' compensation benefits under the workers'
compensation law of this state.
(G) In the case of other classes of insurance if the claimant or
insured is a resident of this state at the time of the insured
occurrence, or the property from which the claim arises is
permanently located in this state.
(2) "Covered claims" also includes the obligations assumed by an
assuming insurer from a ceding insurer where the assuming insurer
subsequently becomes an insolvent insurer if, at the time of the
insolvency of the assuming insurer, the ceding insurer is no longer
admitted to transact business in this state. Both the assuming
insurer and the ceding insurer shall have been member insurers at the
time the assumption was made. "Covered claims" under this paragraph
shall be required to satisfy the requirements of subparagraphs (A) to
(G), inclusive, of paragraph (1), except for the requirement that
the claims be against policies of the insolvent insurer. The
association shall have a right to recover any deposit, bond, or other
assets that may have been required to be posted by the ceding
company to the extent of covered claim payments and shall be
subrogated to any rights the policyholders may have against the
ceding insurer.
(3) "Covered claims" does not include obligations arising from the
following:
(A) Life, annuity, health, or disability insurance.
(B) Mortgage guaranty, financial guaranty, or other forms of
insurance offering protection against investment risks.
(C) Fidelity or surety insurance including fidelity or surety
bonds, or any other bonding obligations.
(D) Credit insurance.
(E) Title insurance.
(F) Ocean marine insurance or ocean marine coverage under an
insurance policy including claims arising from the following: the
Jones Act (46 U.S.C. Secs. 30104 and 30105), the Longshore and Harbor
Workers' Compensation Act (33 U.S.C. Sec. 901 et seq.), or any other
similar federal statutory enactment, or an endorsement or policy
affording protection and indemnity coverage.
(G) Any claims servicing agreement or insurance policy providing
retroactive insurance of a known loss or losses, except a special
excess workers' compensation policy issued pursuant to subdivision
(c) of Section 3702.8 of the Labor Code that covers all or any part
of workers' compensation liabilities of an employer that is issued,
or was previously issued, a certificate of consent to self-insure
pursuant to subdivision (b) of Section 3700 of the Labor Code.
(4) "Covered claims" does not include any obligations of the
insolvent insurer arising out of any reinsurance contracts, nor any
obligations incurred after the expiration date of the insurance
policy or after the insurance policy has been replaced by the insured
or canceled at the insured's request, or after the insurance policy
has been canceled by the liquidator, nor any obligations to a state
or to the federal government.
(5) "Covered claims" does not include any obligations to insurers,
insurance pools, or underwriting associations, nor their claims for
contribution, indemnity, or subrogation, equitable or otherwise,
except as otherwise provided in this chapter.
An insurer, insurance pool, or underwriting association may not
maintain, in its own name or in the name of its insured, a claim or
legal action against the insured of the insolvent insurer for
contribution, indemnity, or by way of subrogation, except insofar as,
and to the extent only, that the claim exceeds the policy limits of
the insolvent insurer's policy. In those claims or legal actions, the
insured of the insolvent insurer is entitled to a credit or setoff
in the amount of the policy limits of the insolvent insurer's policy,
or in the amount of the limits remaining, where those limits have
been diminished by the payment of other claims.
(6) "Covered claims," except in cases involving a claim for
workers' compensation benefits or for unearned premiums, does not
include a claim in an amount of one hundred dollars ($100) or less,
nor that portion of a claim that is in excess of any applicable
limits provided in the insurance policy issued by the insolvent
insurer.
(7) "Covered claims" does not include that portion of a claim,
other than a claim for workers' compensation benefits, that is in
excess of five hundred thousand dollars ($500,000).
(8) "Covered claims" does not include any amount awarded as
punitive or exemplary damages, nor any amount awarded by the Workers'
Compensation Appeals Board pursuant to Section 5814 or 5814.5 of the
Labor Code because payment of compensation was unreasonably delayed
or refused by the insolvent insurer.
(9) "Covered claims" does not include (A) a claim to the extent it
is covered by any other insurance of a class covered by this article
available to the claimant or insured or (B) a claim by a person
other than the original claimant under the insurance policy in his or
her own name, his or her assignee as the person entitled thereto
under a premium finance agreement as defined in Section 673 and
entered into prior to insolvency, his or her executor, administrator,
guardian, or other personal representative or trustee in bankruptcy,
and does not include a claim asserted by an assignee or one claiming
by right of subrogation, except as otherwise provided in this
chapter.
(10) "Covered claims" does not include any obligations arising out
of the issuance of an insurance policy written by the separate
division of the State Compensation Insurance Fund pursuant to
Sections 11802 and 11803.
(11) "Covered claims" does not include any obligations of the
insolvent insurer arising from a policy or contract of insurance
issued or renewed prior to the insolvent insurer's admission to
transact insurance in the State of California.
(12) "Covered claims" does not include surplus deposits of
subscribers as defined in Section 1374.1.
(13) "Covered claims" shall also include obligations arising under
an insurance policy written to indemnify a permissibly self-insured
employer pursuant to subdivision (b) or (c) of Section 3700 of the
Labor Code for its liability to pay workers' compensation benefits in
excess of a specific or aggregate retention. However, for purposes
of this article, those claims shall not be considered workers'
compensation claims and therefore are subject to the per-claim limit
in paragraph (7), and any payments and expenses related thereto shall
be allocated to category (c) for claims other than workers'
compensation, homeowners, and automobile, as provided in Section
1063.5.
These provisions shall apply to obligations arising under a policy
as described herein issued to a permissibly self-insured employer or
group of self-insured employers pursuant to Section 3700 of the
Labor Code and notwithstanding any other provision of this code,
those obligations shall be governed by this provision in the event
that the Self-Insurers' Security Fund is ordered to assume the
liabilities of a permissibly self-insured employer or group of
self-insured employers pursuant to Section 3701.5 of the Labor Code.
The provisions of this paragraph apply only to insurance policies
written to indemnify a permissibly self-insured employer or group of
self-insured employers under subdivision (b) or (c) of Section 3700
of the Labor Code, for its liability to pay workers' compensation
benefits in excess of a specific or aggregate retention, and this
paragraph does not apply to special excess workers' compensation
insurance policies unless issued pursuant to authority granted in
subdivision (c) of Section 3702.8 of the Labor Code, and as provided
for in subparagraph (G) of paragraph (3). In addition, this paragraph
does not apply to any claims servicing agreement or insurance policy
providing retroactive insurance of a known loss or losses as are
excluded in subparagraph (G) of paragraph (3).
Each permissibly self-insured employer or group of self-insured
employers, or the Self-Insurers' Security Fund, shall, to the extent
required by the Labor Code, be responsible for paying, adjusting, and
defending each claim arising under policies of insurance covered
under this section, unless the benefits paid on a claim exceed the
specific or aggregate retention, in which case:
(A) If the benefits paid on the claim exceed the specific or
aggregate retention, and the policy requires the insurer to defend
and adjust the claim, the California Insurance Guarantee Association
(CIGA) shall be solely responsible for adjusting and defending the
claim, and shall make all payments due under the claim, subject to
the limitations and exclusions of this article with regard to covered
claims. As to each claim subject to this paragraph, notwithstanding
any other provisions of this code or the Labor Code, and regardless
of whether the amount paid by CIGA is adequate to discharge a claim
obligation, neither the self-insured employer, group of self-insured
employers, nor the Self-Insurers' Security Fund ,
shall have any obligation to pay benefits over and above the specific
or aggregate retention, except as provided in this subdivision.
(B) If the benefits paid on the claim exceed the specific or
aggregate retention, and the policy does not require the insurer to
defend and adjust the claim, the permissibly self-insured employer or
group of self-insured employers, or the Self-Insurers' Security
Fund, shall not have any further payment obligations with respect to
the claim, but shall continue defending and adjusting the claim, and
shall have the right, but not the obligation, in any proceeding to
assert all applicable statutory limitations and exclusions as
contained in this article with regard to the covered claim. CIGA
shall have the right, but not the obligation, to intervene in any
proceeding where the self-insured employer, group of self-insured
employers, or the Self-Insurers' Security Fund is defending a claim
and shall be permitted to raise the appropriate statutory limitations
and exclusions as contained in this article with respect to covered
claims. Regardless of whether the self-insured employer or group of
self-insured employers, or the Self-Insurers' Security Fund, asserts
the applicable statutory limitations and exclusions, or whether CIGA
intervenes in a proceeding, CIGA shall be solely responsible for
paying all benefits due on the claim, subject to the exclusions and
limitations of this article with respect to covered claims. As to
each claim subject to this paragraph, notwithstanding any other
provision of the Insurance Code or the Labor Code and regardless of
whether the amount paid by CIGA is adequate to discharge a claim
obligation, neither the self-insured employer, group of self-insured
employers, nor the Self-Insurers' Security Fund, shall have an
obligation to pay benefits over and above the specific or aggregate
retention, except as provided in this subdivision.
(C) In the event that the benefits paid on the covered claim
exceed the per-claim limit in paragraph (7), the responsibility for
paying, adjusting, and defending the claim shall be returned to the
permissibly self-insured employer or group of employers, or the
Self-Insurers' Security Fund.
These provisions shall apply to all pending and future
insolvencies. For purposes of this paragraph, a pending insolvency is
one involving a company that is currently receiving benefits from
the guarantee association.
(d) "Admitted to transact insurance in this state" means an
insurer possessing a valid certificate of authority issued by the
department.
(e) "Affiliate" means a person who directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under
common control with an insolvent insurer on December 31 of the year
next preceding the date the insurer becomes an insolvent insurer.
(f) "Control" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies
of a person, whether through the ownership of voting securities, by
contract other than a commercial contract for goods or nonmanagement
services, or otherwise, unless the power is the result of an official
position with or corporate office held by the person. Control is
presumed to exist if a person, directly or indirectly, owns,
controls, holds with the power to vote, or holds proxies
representing, 10 percent or more of the voting securities of any
other person. This presumption may be rebutted by showing that
control does not in fact exist.
(g) "Claimant" means an insured making a first party claim or a
person instituting a liability claim. However, no person who is an
affiliate of the insolvent insurer may be a claimant.
(h) "Ocean marine insurance" includes marine insurance as defined
in Section 103, except for inland marine insurance, as well as any
other form of insurance, regardless of the name, label, or marketing
designation of the insurance policy, that insures against maritime
perils or risks and other related perils or risks, that are usually
insured against by traditional marine insurance such as hull and
machinery, marine builders' risks, and marine protection and
indemnity. Those perils and risks insured against include, without
limitation, loss, damage, or expense or legal liability of the
insured arising out of or incident to ownership, operation,
chartering, maintenance, use, repair, or construction of a vessel,
craft, or instrumentality in use in ocean or inland waterways,
including liability of the insured for personal injury, illness, or
death for loss or damage to the property of the insured or another
person.
(i) "Unearned premium" means that portion of a premium as
calculated by the liquidator that had not been earned because of the
cancellation of the insolvent insurer's policy and is that premium
remaining for the unexpired term of the insolvent insurer's policy.
"Unearned premium" does not include any amount sought as return of a
premium under a policy providing retroactive insurance of a known
loss or return of a premium under a retrospectively rated policy or a
policy subject to a contingent surcharge or a policy in which the
final determination of the premium cost is computed after expiration
of the policy and is calculated on the basis of actual loss
experience experienced during the policy period.
SEC. 136. Section 1754 of the Insurance Code is amended to read:
1754. Transaction of travel insurance under the license of an
organization holding a limited lines travel insurance agent license
shall be subject to the following conditions:
(a) A limited lines travel insurance agent may authorize a travel
retailer to transact travel insurance on behalf of and under its
authority under the following conditions:
(1) The limited lines travel insurance agent is clearly identified
on marketing materials and fulfillment packages distributed by the
travel retailers to customers. The marketing materials and
fulfillment packages shall include the agent's name, business
address, email address, telephone number, license number, and the
availability of the department's toll-free consumer hotline.
(2) The limited lines travel insurance agent, at the time of
licensure and thereafter, maintains a register noting each travel
retailer that transacts travel insurance on the licensee's behalf.
The register shall be maintained and updated annually by the licensee
in a form prescribed by, or format acceptable to, the commissioner
and shall include the name and contact information of the travel
retailer and an officer or person who directs or controls the travel
retailer's operations, and the travel retailer's federal employer
identification number (FEIN). The licensee shall also certify that
the registered travel retailer complies with Section 1033 of Title 18
of the United States Code. The licensee shall submit the register
for review and inspection upon request by the department.
(3) The limited lines travel insurance agent has designated one of
its employees to be responsible for its compliance with the
insurance laws, rules, and regulations of the state. The limited
lines travel insurance agent and its designated responsible employees
shall hold property, casualty, life-only, and accident and health
agent licenses, to the extent required by this chapter, based upon
the types of insurance transacted by the licensee.
(4) The employee designated by the limited lines travel insurance
agent, pursuant to paragraph (3), and any of the organization's
partners, members, controlling persons, officers, directors, and
managers comply with the background check requirements as required by
the commissioner.
(5) The limited lines travel insurance agent has paid all
applicable licensing fees required under California law.
(6) The limited lines travel insurance agent uses all reasonable
means at its disposal to ensure compliance by the travel retailer and
the travel retailer's employees with their obligations under this
article. This includes requiring each employee of the travel retailer
whose duties include transacting travel insurance to receive
training. The training shall be provided whenever there is a material
change that requires a modification to the training materials, but
in no event less frequently than every three years. Training
materials used by or on behalf of the limited lines travel insurance
agent to train the employees of a travel retailer shall be submitted
to the department at the time the travel insurance agent applies for
a license under this article, and whenever modified thereafter. The
training materials, at a minimum, should contain instruction on the
types of insurance offered, ethical sales practices, and disclosures
to prospective insurance customers. Any changes to previously
submitted training materials shall be submitted to the department
with the changes highlighted 30 days prior to their use by the
limited lines travel insurance agent. Training materials and changes
to those materials submitted to the department pursuant to this
subdivision shall be deemed approved for use by the limited lines
travel insurance agent unless it is notified by the department to the
contrary. Failure by a limited lines travel insurance agent to
submit training materials or changes for departmental review or use
of unapproved or disapproved training materials shall constitute
grounds for denial of an application for a license, nonrenewal of a
license, or suspension of a license, or other action as deemed
appropriate by the commissioner.
(7) The limited lines travel insurance agent or the travel
retailer provides disclosure to the consumer, in either the marketing
materials or fulfillment packages, that is substantively similar to
the following:
This plan provides insurance coverage that only applies during the
covered trip. You may have coverage from other sources that provides
you with similar benefits but may be subject to different
restrictions depending upon your other coverages. You may wish to
compare the terms of this policy with your existing life, health,
home, and automobile insurance policies. If you have any questions
about your current coverage, call your insurer or insurance agent or
broker.
(8) The limited lines travel insurance agent or the travel
retailer makes all of the following disclosures to the prospective
insured, which shall be acknowledged in writing by the purchaser or
displayed by clear and conspicuous signs that are posted at every
location where contracts are executed, including, but not limited to,
the counter where the purchaser signs the service agreement, or
provided in writing to the purchaser:
(A) That purchasing travel insurance is not required in order to
purchase any other product or service offered by the travel retailer.
(B) If not individually licensed, that the travel retailer's
employee is not qualified or authorized to:
(i) Answer technical questions about the benefits, exclusions, and
conditions of any of the insurance offered by the travel retailer.
(ii) Evaluate the adequacy of the prospective insured's existing
insurance coverage.
(b) A travel retailer that meets the requirements set forth in
this section and whose activities are limited to offering and selling
travel insurance on behalf of a licensed limited lines travel
insurance agent is authorized to receive compensation.
(c) (1) If the commissioner determines that a travel retailer, or
a travel retailer's employee, has violated any provision of this
article or any other provision of this code, the commissioner may:
(A) Direct the limited lines travel insurance agent to implement a
corrective action plan with the travel retailer.
(B) Direct the limited lines travel insurance agent to revoke the
authorization of the travel retailer to transact travel insurance on
its behalf and under its license and to remove the travel retailer's
name from its register.
(2) If the commissioner determines that a travel retailer, or a
travel retailer's employee, has violated any provision in this
article or any other provision of this code, the commissioner, after
notice and hearing, may:
(A) Suspend or revoke the license of the limited lines travel
insurance agent as authorized under this code.
(B) Impose a monetary fine on the limited lines travel insurance
agent.
(3) A limited lines travel insurance agent who aids and abets a
travel retailer in the transaction of travel insurance, as defined in
this code, or aids and abets a travel retailer in any activity
concerning travel insurance after being directed to revoke the travel
retailer's authorization, in addition to any other action authorized
under this code, shall be subject to a monetary penalty pursuant to
paragraph (3) of subdivision (a) of Section 12921.8.
(d) The conduct of employees of the travel retailer who have been
designated to transact travel insurance on behalf of the licensed
limited lines travel insurance agent shall be deemed the conduct of
the licensed limited lines travel insurance agent for purposes of
this article.
SEC. 137. Section 10113.71 of the Insurance Code is amended to
read:
10113.71. (a) Each life insurance policy issued or delivered in
this state shall contain a provision for a grace period of not less
than 60 days from the premium due date. The 60-day grace period shall
not run concurrently with the period of paid coverage. The provision
shall provide that the policy shall remain in force during the grace
period.
(b) (1) A notice of pending lapse and termination of a life
insurance policy shall not be effective unless mailed by the insurer
to the named policy owner, a designee named pursuant to Section
10113.72 for an individual life insurance policy, and a known
assignee or other person having an interest in the individual life
insurance policy, at least 30 days prior to the effective date of
termination if termination is for nonpayment of premium.
(2) This subdivision shall not apply to nonrenewal.
(3) Notice shall be given to the policy owner and to the designee
by first-class United States mail within 30 days after a premium is
due and unpaid. However, notices made to assignees pursuant to this
section may be done electronically with the consent of the assignee.
(c) For purposes of this section, a life insurance policy
includes, but is not limited to, an individual life insurance policy
and a group life insurance policy, except where otherwise provided.
SEC. 138. Section 10124 of the Insurance Code is amended to read:
10124. (a) A self-insured employee welfare benefit plan delivered
or issued for delivery in this state more than 120 days after the
effective date of this section, which provides that coverage of a
dependent child of an employee shall terminate upon attainment of the
limiting age for dependent children specified in the policy or
contract, shall also provide in substance that attainment of the
limiting age shall not operate to terminate the coverage of the child
while the child is and continues to be both (1) incapable of
self-sustaining employment by reason of an intellectual disability or
physical handicap and (2) chiefly dependent upon the employee for
support and maintenance, provided proof of the incapacity and
dependency is furnished to the employer or employee organization
providing the plan or program of benefits by the employee within 31
days of the child's attainment of the limiting age and subsequently
as may be required by the employer or employee organization, but not
more frequently than annually after the two-year period following the
child's attainment of the limiting age.
(b) As used in this section, "self-insured employee welfare
benefit plan" means a plan or program of benefits provided by an
employer or an employee organization, or both, for the purpose of
providing hospital, medical, surgical, nursing, or dental services,
or indemnification for the costs incurred for these services, to the
employer's employees or their dependents.
SEC. 139. Section 10271 of the Insurance Code is amended to read:
10271. (a) Except as set forth in this section, this chapter
shall not apply to, or in any way affect, provisions in life
insurance, endowment, or annuity contracts, or contracts supplemental
thereto, that provide additional benefits in case of death or
dismemberment or loss of sight by accident, or that operate to
safeguard those contracts against lapse, as described in subdivision
(a) of Section 10271.1, or give a special surrender benefit, as
defined in subdivision (b) of Section 10271.1, or a special benefit,
in the event that the owner, insured, or annuitant, as applicable,
meets the benefit triggers specified in the life insurance or annuity
contract or supplemental contract.
(b) (1) A provision or supplemental contract described in
subdivision (a) shall contain all of the provisions set forth in
paragraph (2). However, an insurer, at its option, may substitute for
one or more of the provisions a corresponding provision of different
wording approved by the commissioner that is not less favorable in
any respect to the owner, insured, or annuitant, as applicable. The
provisions required by paragraph (2) shall be preceded individually
by the appropriate caption, or, at the option of the insurer, by the
appropriate individual or group captions or subcaptions as the
commissioner may approve.
(2) With respect
to the benefit standards described in subdivisions (a) and (b) of
Section 10271.1, the following requirements apply to the supplemental
contracts with these benefits:
(A) Either the contract or supplemental contract shall provide
that the contract and the supplemental contract constitute the entire
insurance or annuity contract consistent with paragraph (7) of
subdivision (c) of Section 2534.3 of Title 10 of the California Code
of Regulations, and shall also provide that no agent has the
authority to change the contract or to waive any of its provisions.
This requirement applies without regard to whether the contract is a
variable or nonvariable contract, or a group or individual contract.
This provision shall be preceded individually by a caption stating
"ENTIRE CONTRACT: CHANGES:" or other appropriate caption as the
commissioner may approve.
(B) Either the contract or supplemental contract shall provide for
reinstatement consistent with paragraph (3) of subdivision (c) of
Section 2534.3 of Title 10 of the California Code of Regulations.
This requirement applies without regard to whether the contract is a
variable or nonvariable contract, or a group or individual contract.
This provision shall be preceded individually by a caption stating
"REINSTATEMENT:" or other appropriate caption as the commissioner may
approve.
(C) Supplemental contracts subject to underwriting shall include
an incontestability statement that provides that the insurer shall
not contest the supplemental contract after it has been in force
during the lifetime of the insured for two years from its date of
issue, and may only be contested based on a statement made in the
application for the supplemental contract, if the statement is
attached to the contract. The statement upon which the contest is
made shall be material to the risk accepted or the hazard assumed by
the insurer. This provision shall be preceded individually by a
caption stating "INCONTESTABLE:" or other appropriate caption as the
commissioner may approve.
(D) A provision or supplemental contract described in subdivision
(a) shall also include:
(i) NOTICE OF CLAIM: The insurer may require written notice of
claim no less than 20 days after an occurrence covered by the
provision or supplemental contract, or commencement of any loss
covered by the provision or supplemental contract. Notice given by or
on behalf of the insured or the beneficiary, as applicable to the
insurer at the insurer's address or telephone number, or to any
authorized agent of the insurer, with information sufficient to
identify the insured, shall be deemed notice to the insurer.
(ii) CLAIM FORMS: The insurer, upon receipt of a notice of claim,
shall furnish to the claimant such forms as are usually furnished by
it for filing a proof of occurrence or a proof of loss. If the forms
are not furnished within 15 days after giving notice, the claimant
shall be deemed to have complied with the requirements of the
provision or supplemental contract as to proof of occurrence or proof
of loss upon submitting, within the time fixed in the provision or
supplemental contract for filing proof of occurrence or proof of
loss, written proof covering the character and the extent of the
occurrence or loss.
(iii) PROOF OF LOSS: The insurer may require that the insured
provide written proof of occurrence or proof of loss no less than 90
days after the termination of the period for which the insurer is
liable, and, in the case of claim for any other occurrence or loss,
within 90 days after the date of the occurrence or loss. Failure to
furnish proof within the time required shall not invalidate or reduce
the claim if it was not reasonably possible to give proof within the
time, provided proof is furnished as soon as reasonably possible
and, except in the absence of legal capacity, no later than one year
from the time proof is otherwise required.
(iv) PHYSICAL EXAMINATIONS: The insurer, at its own expense, shall
have the right and opportunity to examine the person of the insured
when and as often as the insurer may reasonably require during the
pendency of a claim.
(c) The commissioner shall review contracts and supplemental
contracts to ensure that the language can be readily understood and
interpreted, and shall not approve any contract or supplemental
contract for insurance or delivery in this state if the commissioner
finds that the contract or supplemental contract does any of the
following:
(1) Contains any provision, label, description of its contents,
title, heading, backing, or other indication of its provisions that
is unintelligible, uncertain, ambiguous, or abstruse, or likely to
mislead a person to whom the contract or supplemental contract is
offered, delivered, or issued.
(2) Constitutes fraud, unfair trade practices, and insurance
economically unsound to the owner, insured, or annuitant, as
applicable.
(d) A provision or supplemental contract described in subdivision
(a) shall not contain any title, description, or any other indication
that would describe or imply that the policy or supplemental
contract provides long-term care coverage.
(e) Commencing two years from the date of the issuance of the
provision or supplemental contract, no claim for loss incurred or
disability, as defined in the provision or supplemental contract, may
be reduced or denied on the grounds that a disease or physical
condition not excluded from coverage by name or specific description
effective on the date of loss had existed prior to the effective date
on the coverage of the provision or supplemental contract.
(f) With regard to benefits set forth in Section 10271.1, the
provisions and supplemental contracts shall specify any applicable
exclusions, which shall be limited to the following:
(1) Total disability caused or substantially contributed to by any
attempt at suicide or intentionally self-inflicted injury, while
sane or insane.
(2) Total disability caused or substantially contributed to by war
or an act of war, as defined in the exclusion provisions of the
contract.
(3) Total disability caused or substantially contributed to by
active participation in a riot, insurrection, or terrorist activity.
(4) Total disability caused or substantially contributed to by
committing or attempting to commit a felony.
(5) Total disability caused or substantially contributed to by
voluntary intake of either:
(A) Any drug, unless prescribed or administered by a physician and
taken in accordance with the physician's instructions.
(B) Poison, gas, or fumes, unless they are the direct result of an
occupational accident.
(6) Total disability occurring after the policy anniversary or
supplemental contract anniversary, as applicable and as defined in
the policy or supplemental contract, on which the insured attains a
specified age of no less than 65 years.
(7) Total disability in consequence of the insured being
intoxicated, as defined by the jurisdiction where the total
disability occurred.
(8) Total disability caused or materially contributed to by
engaging in an illegal occupation.
(g) If the commissioner notifies the insurer, in writing, that the
filed form does not comply with the requirements of law and
specifies the reasons for his or her opinion, it is unlawful for an
insurer to issue any policy in that form.
SEC. 140. Section 11665 of the Insurance Code is amended to read:
11665. (a) An insurer who issues a workers' compensation
insurance policy to a roofing contractor holding a C-39 license from
the Contractors' State License Board shall perform an annual payroll
audit for the contractor. This audit shall include an in-person visit
to the place of business of the roofing contractor to verify whether
the number of employees reported by the contractor is accurate. The
insurer may impose a surcharge on each policyholder audited under
this subdivision in an amount necessary to recoup the reasonable
costs of conducting the annual payroll audits.
(b) The commissioner shall direct the rating organization
designated as his or her statistical agent to compile pertinent
statistical data on those holding C-39 licenses, as reported by the
appropriate state entity, on an annual basis and provide a report to
him or her each year. The data shall track the total annual payroll
and loss data reported on those holding C-39 licenses in accordance
with the standard workers' compensation insurance classifications
applicable to roofing operations. The data shall include the number
of employers, total payroll, total losses, and the losses per one
hundred dollars ($100) of payroll by the employers' annual payroll
intervals as follows:
1 to 4,999
5,000 to 9,999
10,000 to 14,999
15,000 to 19,999
20,000 to 24,999
25,000 to 29,999
30,000 to 39,999
40,000 to 49,999
50,000 to 74,999
75,000 to 99,999
100,000 to 199,999
200,000 to 299,999
300,000 to 399,999
400,000 to 499,999
500,000 to 599,999
600,000 to 699,999
700,000 to 799,999
800,000 to 899,999
900,000 to 999,999
1,000,000 to 1,099,999
1,100,000 to 1,199,999
1,200,000 to 1,299,999
1,300,000 to 1,399,999
1,400,000 to 1,499,999
1,500,000 or more
The report shall also be provided to the Legislature by the
commissioner, in compliance with Section 9795 of the Government Code.
SEC. 141. Section 12694.1 of the Insurance Code is amended to
read:
12694.1. (a) Pursuant to Sections 14005.26 and 14005.27 of the
Welfare and Institutions Code, subscribers enrolled in the Healthy
Families Program pursuant to this part shall, no sooner than January
1, 2013, transition to the Medi-Cal program pursuant to Sections
14005.26 and 14005.27 of the Welfare and Institutions Code to the
extent they are otherwise eligible. AIM-linked infants, as defined in
Section 12695.03, with incomes above 250 percent of the federal
poverty level are exempt from this transition.
(b) The board shall coordinate with the State Department of Health
Care Services to implement Sections 14005.26 and 14005.27 of the
Welfare and Institutions Code.
(c) The board's actions to coordinate with the State Department of
Health Care Services to implement Sections 14005.26 and 14005.27 of
the Welfare and Institutions Code, as specified in subdivision (b),
shall include, but not be limited to, all of the following:
(1) Notwithstanding Section 12693.74, disenrollment of subscribers
in the manner, and at the times, specified in Section 14005.27 of
the Welfare and Institutions Code. The board may retain a subscriber
in the program for longer than 12 months if needed to ensure a smooth
transition to the Medi-Cal program.
(2) In coordination with the State Department of Health Care
Services, provision of reasonable notice to applicants concerning
disenrollment of subscribers consistent with Section 14005.27 of the
Welfare and Institutions Code.
(3) Notwithstanding Section 12693.51, transfers of subscribers
from one participating plan to another at the times and under the
conditions prescribed by the board, without the obligation that the
board provide an annual opportunity for subscribers to transfer from
one participating plan to another.
(d) Nothing in subdivision (e) of Section 12693.43 shall be
construed to require any refund or adjustment of family contributions
if an applicant has paid for three months of required family
contributions in advance and the subscriber for whom the applicant
has paid these family contributions is disenrolled pursuant to this
section, or for any other reason, without receiving a fourth
consecutive month of coverage.
(e) (1) Notwithstanding Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code, the
board shall, without taking any further regulatory action,
implement, interpret, or make specific this section by means of
business rules, program bulletins, program correspondence to
subscribers and contractors, letters, or similar instructions.
(2) The board may adopt and readopt emergency regulations
implementing this section. The adoption and readoption, by the board,
of regulations implementing this section shall be deemed an
emergency and necessary to avoid serious harm to the public peace,
health, safety, or general welfare for purposes of Sections 11346.1
and 11349.6 of the Government Code, and the board is hereby exempted
from the requirement that it describe facts showing the need for
immediate action and from review by the Office of Administrative Law.
(f) The Healthy Families Program, pursuant to this part, shall
cease to enroll new subscribers no sooner than the date transition
begins pursuant to subdivision (a), and any transition of children
shall be in compliance with the implementation plan or plans as
contained in Section 14005.27 of the Welfare and Institutions Code.
SEC. 142. Section 980 of the Labor Code is amended to read:
980. (a) As used in this chapter, "social media" means an
electronic service or account, or electronic content, including, but
not limited to, videos, still photographs, blogs, video blogs,
podcasts, instant and text messages, email, online services or
accounts, or Internet Web site profiles or locations.
(b) An employer shall not require or request an employee or
applicant for employment to do any of the following:
(1) Disclose a username or password for the purpose of accessing
personal social media.
(2) Access personal social media in the presence of the employer.
(3) Divulge any personal social media, except as provided in
subdivision (c).
(c) Nothing in this section shall affect an employer's existing
rights and obligations to request an employee to divulge personal
social media reasonably believed to be relevant to an investigation
of allegations of employee misconduct or employee violation of
applicable laws and regulations, provided that the social media is
used solely for purposes of that investigation or a related
proceeding.
(d) Nothing in this section precludes an employer from requiring
or requesting an employee to disclose a username, password, or other
method for the purpose of accessing an employer-issued electronic
device.
(e) An employer shall not discharge, discipline, threaten to
discharge or discipline, or otherwise retaliate against an employee
or applicant for not complying with a request or demand by the
employer that violates this section. However, this section does not
prohibit an employer from terminating or otherwise taking an adverse
action against an employee or applicant if otherwise permitted by
law.
SEC. 143. Section 4709 of the Labor Code is amended to read:
4709. (a) Notwithstanding any other law, a dependent of a peace
officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32,
830.33, 830.34, 830.35, 830.36, 830.37, 830.38, 830.39, 830.4, 830.5,
or 830.6 of the Penal Code, or a Sheriff's Special Officer of the
County of Orange, who is killed in the performance of duty or who
dies or is totally disabled as a result of an accident or an injury
caused by external violence or physical force, incurred in the
performance of duty, when the death, accident, or injury is
compensable under this division or Division 4.5 (commencing with
Section 6100) shall be entitled to a scholarship at any qualifying
institution described in subdivision (l) of Section 69432.7 of the
Education Code. The scholarship shall be in an amount equal to the
amount provided a student who has been awarded a Cal Grant
scholarship as specified in Chapter 1.7 (commencing with Section
69430) of Part 42 of Division 5 of Title 3 of the Education Code.
(b) A dependent of an officer or employee of the Department of
Corrections and Rehabilitation or the Department of Corrections and
Rehabilitation, Division of Juvenile Justice, described in Section
20403 of the Government Code, who is killed in the performance of
duty, or who dies or is totally disabled as a result of an accident
or an injury incurred in the performance of duty, when the death,
accident, or injury is caused by the direct action of an inmate, and
is compensable under this division or Division 4.5 (commencing with
Section 6100), shall also be entitled to a scholarship specified in
this section.
(c) Notwithstanding any other law, a dependent of a firefighter
employed by a county, city, city and county, district, or other
political subdivision of the state, who is killed in the performance
of duty or who dies or is totally disabled as a result of an accident
or injury incurred in the performance of duty, when the death,
accident, or injury is compensable under this division or Division
4.5 (commencing with Section 6100), shall also be entitled to a
scholarship specified in this section.
(d) Nothing in this section shall be interpreted to allow the
admittance of the dependent into a college or university unless the
dependent is otherwise qualified to gain admittance to the college or
university.
(e) The scholarship provided for by this section shall be paid out
of funds annually appropriated in the Budget Act to the Student Aid
Commission established by Article 2 (commencing with Section 69510)
of Chapter 2 of Part 42 of Division 5 of Title 3 of the Education
Code.
(f) The receipt of a scholarship provided for by this section
shall not preclude a dependent from receiving a Cal Grant award
pursuant to Chapter 1.7 (commencing with Section 69430) of Part 42 of
Division 5 of Title 3 of the Education Code, any other grant, or any
fee waivers that may be provided by an institution of higher
education. The receipt of a Cal Grant award pursuant to Chapter 1.7
(commencing with Section 69430) of Part 42 of Division 5 of Title 3
of the Education Code, any other grant, or any fee waivers that may
be provided by an institution of higher education shall not preclude
a dependent from receiving a scholarship provided for by this
section.
(g) As used in this section, "dependent" means the children
(natural or adopted) or spouse, at the time of the death or injury,
of the peace officer, law enforcement officer, or firefighter.
(h) Eligibility for a scholarship under this section shall be
limited to a person who demonstrates financial need as determined by
the Student Aid Commission pursuant to Article 1.5 (commencing with
Section 69503) of Chapter 2 of Part 42 of Division 5 of Title 3 of
the Education Code. For purposes of determining financial need, the
proceeds of death benefits received by the dependent, including, but
not limited to, a continuation of income received from the Public
Employees' Retirement System, the proceeds from the federal Public
Safety Officers' Benefits Act, life insurance policies, proceeds from
Sections 4702 and 4703.5, any private scholarship where receipt is
predicated upon the recipient being the survivor of a deceased public
safety officer, the scholarship awarded pursuant to Section 68120 of
the Education Code, and any interest received from these benefits,
shall not be considered.
SEC. 144. Section 5502 of the Labor Code is amended to read:
5502. (a) Except as provided in subdivisions (b) and (d), the
hearing shall be held not less than 10 days, and not more than 60
days, after the date a declaration of readiness to proceed, on a form
prescribed by the appeals board, is filed. If a claim form has been
filed for an injury occurring on or after January 1, 1990, and before
January 1, 1994, an application for adjudication shall accompany the
declaration of readiness to proceed.
(b) The administrative director shall establish a priority
calendar for issues requiring an expedited hearing and decision. A
hearing shall be held and a determination as to the rights of the
parties shall be made and filed within 30 days after the declaration
of readiness to proceed is filed if the issues in dispute are any of
the following, provided that if an expedited hearing is requested, no
other issue may be heard until the medical provider network dispute
is resolved:
(1) The employee's entitlement to medical treatment pursuant to
Section 4600, except for treatment issues determined pursuant to
Sections 4610 and 4610.5.
(2) Whether the injured employee is required to obtain treatment
within a medical provider network.
(3) A medical treatment appointment or medical-legal examination.
(4) The employee's entitlement to, or the amount of, temporary
disability indemnity payments.
(5) The employee's entitlement to compensation from one or more
responsible employers when two or more employers dispute liability as
among themselves.
(6) Any other issues requiring an expedited hearing and
determination as prescribed in rules and regulations of the
administrative director.
(c) The administrative director shall establish a priority
conference calendar for cases in which the employee is represented by
an attorney and the issues in dispute are employment or injury
arising out of employment or in the course of employment. The
conference shall be conducted by a workers' compensation
administrative law judge within 30 days after the declaration of
readiness to proceed. If the dispute cannot be resolved at the
conference, a trial shall be set as expeditiously as possible, unless
good cause is shown why discovery is not complete, in which case
status conferences shall be held at regular intervals. The case shall
be set for trial when discovery is complete, or when the workers'
compensation administrative law judge determines that the parties
have had sufficient time in which to complete reasonable discovery. A
determination as to the rights of the parties shall be made and
filed within 30 days after the trial.
(d) (1) In all cases, a mandatory settlement conference, except a
lien conference or a mandatory settlement lien conference, shall be
conducted not less than 10 days, and not more than 30 days, after the
filing of a declaration of readiness to proceed. If the dispute is
not resolved, the regular hearing, except a lien trial, shall be held
within 75 days after the declaration of readiness to proceed is
filed.
(2) The settlement conference shall be conducted by a workers'
compensation administrative law judge or by a referee who is eligible
to be a workers' compensation administrative law judge or eligible
to be an arbitrator under Section 5270.5. At the mandatory settlement
conference, the referee or workers' compensation administrative law
judge shall have the authority to resolve the dispute, including the
authority to approve a compromise and release or issue a stipulated
finding and award, and if the dispute cannot be resolved, to frame
the issues and stipulations for trial. The appeals board shall adopt
any regulations needed to implement this subdivision. The presiding
workers' compensation administrative law judge shall supervise
settlement conference referees in the performance of their judicial
functions under this subdivision.
(3) If the claim is not resolved at the mandatory settlement
conference, the parties shall file a pretrial conference statement
noting the specific issues in dispute, each party's proposed
permanent disability rating, and listing the exhibits, and disclosing
witnesses. Discovery shall close on the date of the mandatory
settlement conference. Evidence not disclosed or obtained thereafter
shall not be admissible unless the proponent of the evidence can
demonstrate that it was not available or could not have been
discovered by the exercise of due diligence prior to the settlement
conference.
(e) In cases involving the Director of Industrial Relations in his
or her capacity as administrator of the Uninsured Employers Fund,
this section shall not apply unless proof of service, as specified in
paragraph (1) of subdivision (d) of Section 3716, has been filed
with the appeals board and provided to the Director of Industrial
Relations, valid jurisdiction has been established over the employer,
and the fund has been joined.
(f) Except as provided in subdivision (a) and in Section 4065, the
provisions of this section shall apply irrespective of the date of
injury.
SEC. 145. Section 136.2 of the Penal Code is amended to read:
136.2. (a) Except as provided in subdivision (c), upon a good
cause belief that harm to, or intimidation or dissuasion of, a victim
or witness has occurred or is reasonably likely to occur, a court
with jurisdiction over a criminal matter may issue orders, including,
but not limited to, the following:
(1) An order issued pursuant to Section 6320 of the Family Code.
(2) An order that a defendant shall not violate any provision of
Section 136.1.
(3) An order that a person before the court other than a
defendant, including, but not limited to, a subpoenaed witness or
other person entering the courtroom of the court, shall not violate
any provisions of Section 136.1.
(4) An order that a person described in this section shall have no
communication whatsoever with a specified witness or a victim,
except through an attorney under reasonable restrictions that the
court may impose.
(5) An order calling for a hearing to determine if an order as
described in paragraphs (1) to (4), inclusive, should be issued.
(6) (A) An order that a particular law enforcement agency within
the jurisdiction of the court provide protection for a victim or a
witness, or both, or for immediate family members of a victim or a
witness who reside in the same household as the victim or witness or
within reasonable proximity of the victim's or witness' household, as
determined by the court. The order shall not be made without the
consent of the law enforcement agency except for limited and
specified periods of time and upon an express finding by the court of
a clear and present danger of harm to the victim or witness or
immediate family members of the victim or witness.
(B) For purposes of this paragraph, "immediate family members"
include the spouse, children, or parents of the victim or witness.
(7) (A) An order protecting victims of violent crime from all
contact by the defendant, or contact, with the intent to annoy,
harass, threaten, or commit acts of violence, by the defendant. The
court or its designee shall transmit orders made under this paragraph
to law enforcement personnel within one business day of the
issuance, modification,
extension, or termination of the order, pursuant to subdivision (a)
of Section 6380 of the Family Code. It is the responsibility of the
court to transmit the modification, extension, or termination orders
made under this paragraph to the same agency that entered the
original protective order into the Domestic Violence Restraining
Order System.
(B) (i) If a court does not issue an order pursuant to
subparagraph (A) in a case in which the defendant is charged with a
crime of domestic violence as defined in Section 13700, the court on
its own motion shall consider issuing a protective order upon a good
cause belief that harm to, or intimidation or dissuasion of, a victim
or witness has occurred or is reasonably likely to occur, that
provides as follows:
(I) The defendant shall not own, possess, purchase, receive, or
attempt to purchase or receive, a firearm while the protective order
is in effect.
(II) The defendant shall relinquish any firearms that he or she
owns or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(ii) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive, a firearm while this protective
order is in effect is punishable pursuant to Section 29825.
(C) An order issued, modified, extended, or terminated by a court
pursuant to this paragraph shall be issued on forms adopted by the
Judicial Council 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.
(D) A protective order under this paragraph may require the
defendant to be placed on electronic monitoring if the local
government, with the concurrence of the county sheriff or the chief
probation officer with jurisdiction, adopts a policy to authorize
electronic monitoring of defendants and specifies the agency with
jurisdiction for this purpose. If the court determines that the
defendant has the ability to pay for the monitoring program, the
court shall order the defendant to pay for the monitoring. If the
court determines that the defendant does not have the ability to pay
for the electronic monitoring, the court may order electronic
monitoring to be paid for by the local government that adopted the
policy to authorize electronic monitoring. The duration of electronic
monitoring shall not exceed one year from the date the order is
issued. At no time shall the electronic monitoring be in place if the
protective order is not in place.
(b) A person violating an order made pursuant to paragraphs (1) to
(7), inclusive, of subdivision (a) may be punished for any
substantive offense described in Section 136.1, or for a contempt of
the court making the order. A finding of contempt shall not be a bar
to prosecution for a violation of Section 136.1. However, a person so
held in contempt shall be entitled to credit for punishment imposed
therein against a sentence imposed upon conviction of an offense
described in Section 136.1. A conviction or acquittal for a
substantive offense under Section 136.1 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
(c) (1) Notwithstanding subdivisions (a) and (e), an emergency
protective order issued pursuant to Chapter 2 (commencing with
Section 6250) of Part 3 of Division 10 of the Family Code or Section
646.91 of this code shall have precedence in enforcement over any
other restraining or protective order, provided that the emergency
protective order meets all of the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).
(C) The provisions of the emergency protective order are more
restrictive in relation to the restrained person than are the
provisions of the other restraining or protective order specified in
subparagraph (A).
(2) An emergency protective order that meets the requirements of
paragraph (1) shall have precedence in enforcement over the
provisions of any other restraining or protective order only with
respect to those provisions of the emergency protective order that
are more restrictive in relation to the restrained person.
(d) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm while the protective order is in
effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(3) A person who owns, possesses, purchases , or
receives, or attempts to purchase or receive , a firearm
while the protective order is in effect is punishable pursuant to
Section 29825.
(e) (1) In all cases where the defendant is charged with a crime
of domestic violence, as defined in Section 13700, the court shall
consider issuing the above-described orders on its own motion. All
interested parties shall receive a copy of those orders. In order to
facilitate this, the court's records of all criminal cases involving
domestic violence shall be marked to clearly alert the court to this
issue.
(2) In those cases in which a complaint, information, or
indictment charging a crime of domestic violence, as defined in
Section 13700, has been issued, a restraining order or protective
order against the defendant issued by the criminal court in that case
has precedence in enforcement over a civil court order against the
defendant, unless a court issues an emergency protective order
pursuant to Chapter 2 (commencing with Section 6250) of Part 3 of
Division 10 of the Family Code or Section 646.91 of this code, in
which case the emergency protective order shall have precedence in
enforcement over any other restraining or protective order, provided
that the emergency protective order meets the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who is
the restrained person in the other restraining or protective order
specified in subparagraph (A).
(C) The provisions of the emergency protective order are more
restrictive in relation to the restrained person than are the
provisions of the other restraining or protective order specified in
subparagraph (A).
(3) Custody and visitation with respect to the defendant and his
or her minor children may be ordered by a family or juvenile court
consistent with the protocol established pursuant to subdivision (f),
but if ordered after a criminal protective order has been issued
pursuant to this section, the custody and visitation order shall make
reference to, and acknowledge the precedence of enforcement of, an
appropriate criminal protective order. On or before July 1, 2006, the
Judicial Council shall modify the criminal and civil court forms
consistent with this subdivision.
(f) On or before January 1, 2003, the Judicial Council shall
promulgate a protocol, for adoption by each local court in
substantially similar terms, to provide for the timely coordination
of all orders against the same defendant and in favor of the same
named victim or victims. The protocol shall include, but shall not be
limited to, mechanisms for assuring appropriate communication and
information sharing between criminal, family, and juvenile courts
concerning orders and cases that involve the same parties, and shall
permit a family or juvenile court order to coexist with a criminal
court protective order subject to the following conditions:
(1) An order that permits contact between the restrained person
and his or her children shall provide for the safe exchange of the
children and shall not contain language either printed or handwritten
that violates a "no contact order" issued by a criminal court.
(2) Safety of all parties shall be the courts' paramount concern.
The family or juvenile court shall specify the time, day, place, and
manner of transfer of the child, as provided in Section 3100 of the
Family Code.
(g) On or before January 1, 2003, the Judicial Council shall
modify the criminal and civil court protective order forms consistent
with this section.
(h) In any case in which a complaint, information, or indictment
charging a crime of domestic violence, as defined in Section 13700,
has been filed, the court may consider, in determining whether good
cause exists to issue an order under paragraph (1) of subdivision
(a), the underlying nature of the offense charged, and the
information provided to the court pursuant to Section 273.75.
(i) (1) In all cases in which a criminal defendant has been
convicted of a crime of domestic violence as defined in Section
13700, the court, at the time of sentencing, shall consider issuing
an order restraining the defendant from any contact with the victim.
The order may be valid for up to 10 years, as determined by the
court. This protective order may be issued by the court regardless of
whether the defendant is sentenced to the state prison or a county
jail, or whether imposition of sentence is suspended and the
defendant is placed on probation. It is the intent of the Legislature
in enacting this subdivision that the duration of any restraining
order issued by the court be based upon the seriousness of the facts
before the court, the probability of future violations, and the
safety of the victim and his or her immediate family.
(2) An order under this subdivision may include provisions for
electronic monitoring if the local government, upon receiving the
concurrence of the county sheriff or the chief probation officer with
jurisdiction, adopts a policy authorizing electronic monitoring of
defendants and specifies the agency with jurisdiction for this
purpose. If the court determines that the defendant has the ability
to pay for the monitoring program, the court shall order the
defendant to pay for the monitoring. If the court determines that the
defendant does not have the ability to pay for the electronic
monitoring, the court may order the electronic monitoring to be paid
for by the local government that adopted the policy authorizing
electronic monitoring. The duration of the electronic monitoring
shall not exceed one year from the date the order is issued.
(j) For purposes of this section, "local government" means the
county that has jurisdiction over the protective order.
SEC. 145.3. Section 166 of the Penal
Code is amended to read:
166. (a) Except as provided in subdivisions (b), (c), and (d), a
person guilty of any of the following contempts of court is guilty of
a misdemeanor:
(1) Disorderly, contemptuous, or insolent behavior committed
during the sitting of a court of justice, in the immediate view and
presence of the court, and directly tending to interrupt its
proceedings or to impair the respect due to its authority.
(2) Behavior specified in paragraph (1) that is committed in the
presence of a referee, while actually engaged in a trial or hearing,
pursuant to the order of a court, or in the presence of any jury
while actually sitting for the trial of a cause, or upon an inquest
or other proceeding authorized by law.
(3) A breach of the peace, noise, or other disturbance directly
tending to interrupt the proceedings of the court.
(4) Willful disobedience of the terms as written of any process or
court order or out-of-state court order, lawfully issued by a court,
including orders pending trial.
(5) Resistance willfully offered by any person to the lawful order
or process of a court.
(6) Willful disobedience by a juror of a court admonishment
related to the prohibition on any form of communication or research
about the case, including all forms of electronic or wireless
communication or research.
(7) The contumacious and unlawful refusal of a person to be sworn
as a witness or, when so sworn, the like refusal to answer a material
question.
(8) The publication of a false or grossly inaccurate report of the
proceedings of a court.
(9) Presenting to a court having power to pass sentence upon a
prisoner under conviction, or to a member of the court, an affidavit,
testimony, or representation of any kind, verbal or written, in
aggravation or mitigation of the punishment to be imposed upon the
prisoner, except as provided in this code.
(10) Willful disobedience of the terms of an injunction that
restrains the activities of a criminal street gang or any of its
members, lawfully issued by a court, including an order pending
trial.
(b) (1) A person who is guilty of contempt of court under
paragraph (4) of subdivision (a) by willfully contacting a victim by
telephone or mail, or directly, and who has been previously convicted
of a violation of Section 646.9 shall be punished by imprisonment in
a county jail for not more than one year, by a fine of five thousand
dollars ($5,000), or by both that fine and imprisonment.
(2) For the purposes of sentencing under this subdivision, each
contact shall constitute a separate violation of this subdivision.
(3) The present incarceration of a person who makes contact with a
victim in violation of paragraph (1) is not a defense to a violation
of this subdivision.
(c) (1) Notwithstanding paragraph (4) of subdivision (a), a
willful and knowing violation of a protective order or stay-away
court order issued pursuant to Section 136.2, in a pending criminal
proceeding involving domestic violence, as defined in Section 13700,
or issued as a condition of probation after a conviction in a
criminal proceeding involving domestic violence, as defined in
Section 13700, or elder or dependent adult abuse, as defined in
Section 368, or that is an order described in paragraph (3), shall
constitute contempt of court, a misdemeanor, punishable by
imprisonment in a county jail for not more than one year, by a fine
of not more than one thousand dollars ($1,000), or by both that
imprisonment and fine.
(2) If a violation of paragraph (1) results in a physical injury,
the person shall be imprisoned in a county jail for at least 48
hours, whether a fine or imprisonment is imposed, or the sentence is
suspended.
(3) Paragraphs (1) and (2) apply to the following court orders:
(A) An order issued pursuant to Section 6320 or 6389 of the Family
Code.
(B) An order excluding one party from the family dwelling or from
the dwelling of the other.
(C) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the orders described in
paragraph (1).
(4) A second or subsequent conviction for a violation of an order
described in paragraph (1) occurring within seven years of a prior
conviction for a violation of any of those orders and involving an
act of violence or "a credible threat" of violence, as provided in
subdivisions (b) and (c) and (d) of
Section 139, is punishable by imprisonment in a county jail not to
exceed one year, or in the state prison for 16 months or two or three
years.
(5) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of the orders described in
paragraph (1).
(d) (1) A person who owns, possesses, purchases, or receives a
firearm knowing he or she is prohibited from doing so by the
provisions of a protective order , as defined in Section
136.2 of this code, Section 6218 of the Family Code, or Section 527.6
or 527.8 of the Code of Civil Procedure, shall be punished under
subdivision (g) of Section 12021 Section
29825 .
(2) A person subject to a protective order described in paragraph
(1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (h) of
Section 6389 of the Family Code.
(e) (1) If probation is granted upon conviction of a violation of
subdivision (c), the court shall impose probation consistent with
Section 1203.097.
(2) If probation is granted upon conviction of a violation of
subdivision (c), the conditions of probation may include, in lieu of
a fine, one or both of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of one thousand dollars ($1,000).
(B) That the defendant provide restitution to reimburse the victim
for reasonable costs of counseling and other reasonable expenses
that the court finds are the direct result of the defendant's
offense.
(3) For an order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under this
subdivision or subdivision (c), the court shall make a determination
of the defendant's ability to pay. In no event shall an order to make
payments to a battered women's shelter be made if it would impair
the ability of the defendant to pay direct restitution to the victim
or court-ordered child support.
(4) If the injury to a married person is caused in whole, or in
part, by the criminal acts of his or her spouse in violation of
subdivision (c), the community property shall not be used to
discharge the liability of the offending spouse for restitution to
the injured spouse required by Section 1203.04, as operative on or
before August 2, 1995, or Section 1202.4, or to a shelter for costs
with regard to the injured spouse and dependents required by this
subdivision, until all separate property of the offending spouse is
exhausted.
(5) A person violating an order described in subdivision (c) may
be punished for any substantive offenses described under Section
136.1 or 646.9. A finding of contempt shall not be a bar to
prosecution for a violation of Section 136.1 or 646.9. However, a
person held in contempt for a violation of subdivision (c) shall be
entitled to credit for any punishment imposed as a result of that
violation against any sentence imposed upon conviction of an offense
described in Section 136.1 or 646.9. A conviction or acquittal for a
substantive offense under Section 136.1 or 646.9 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
SEC. 145.5. Section 171c of the Penal
Code is amended to read:
171c. (a) (1) Any person who brings a loaded firearm into, or
possesses a loaded firearm within, the State Capitol, any legislative
office, any office of the Governor or other constitutional officer,
or any hearing room in which any committee of the Senate or Assembly
is conducting a hearing, or upon the grounds of the State Capitol,
which is bounded by 10th, L, 15th, and N Streets in the City of
Sacramento, shall be punished by imprisonment in a county jail for a
period of not more than one year, a fine of not more than one
thousand dollars ($1,000), or both such imprisonment and fine, or by
imprisonment pursuant to subdivision (h) of Section 1170.
(2) Any person who brings or possesses, within the State Capitol,
any legislative office, any hearing room in which any committee of
the Senate or Assembly is conducting a hearing, the Legislative
Office Building at 1020 N Street in the City of Sacramento, or upon
the grounds of the State Capitol, which is bounded by 10th, L, 15th,
and N Streets in the City of Sacramento, any of the following, is
guilty of a misdemeanor punishable by imprisonment in a county jail
for a period not to exceed one year, or by a fine not exceeding one
thousand dollars ($1,000), or by both that fine and imprisonment, if
the area is posted with a statement providing reasonable notice that
prosecution may result from possession of any of these items:
(A) Any firearm.
(B) Any deadly weapon described in Section 653k or 12020
21510 or in any provision listed in Section
16590 .
(C) Any knife with a blade length in excess of four inches, the
blade of which is fixed or is capable of being fixed in an unguarded
position by the use of one or two hands.
(D) Any unauthorized tear gas weapon.
(E) Any stun gun, as defined in Section 244.5.
(F) Any instrument that expels a metallic projectile, such as a BB
or pellet, through the force of air pressure, CO2 pressure, or
spring action, or any spot marker gun or paint gun.
(G) Any ammunition as defined in Section 12316
Sections 16150 and 16650 .
(H) Any explosive as defined in Section 12000 of the Health and
Safety Code.
(b) Subdivision (a) shall not apply to, or affect, any of the
following:
(1) A duly appointed peace officer as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, a retired peace
officer with authorization to carry concealed weapons as described in
subdivision (a) of Section 12027 Article 2
(commencing with Section 25450) of Chapter 2 of Division 5 of Title 4
of Part 6 , a full-time paid peace officer of another state or
the federal government who is carrying out official duties while in
California, or 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.
(2) A person holding a valid license to carry the firearm pursuant
to Article 3 (commencing with Section 12050) of
Chapter 1 4 (commencing with Section 26150)
of Division 5 of Title 2 4 of
Part 4 6 , and who has permission
granted by the Chief Sergeants at Arms of the State Assembly and the
State Senate to possess a concealed weapon upon the premises
described in subdivision (a).
(3) A person who has permission granted by the Chief Sergeants at
Arms of the State Assembly and the State Senate to possess a weapon
upon the premises described in subdivision (a).
(c) (1) Nothing in this section shall preclude prosecution under
Sections 12021 and 12021.1 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 ,
Section 8100 or 8103 of the Welfare and Institutions Code, or any
other law with a penalty greater than is set forth in this section.
(2) The provisions of this section are cumulative, and shall not
be construed as restricting the application of any other law.
However, an act or omission punishable in different ways by different
provisions of law shall not be punished under more than one
provision.
SEC. 145.7. Section 273.6 of the Penal
Code is amended to read:
273.6. (a) Any intentional and knowing violation of a protective
order, as defined in Section 6218 of the Family Code, or of an order
issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of
Civil Procedure, or Section 15657.03 of the Welfare and Institutions
Code, is a misdemeanor punishable by a fine of not more than one
thousand dollars ($1,000), or by imprisonment in a county jail for
not more than one year, or by both that fine and imprisonment.
(b) In the event of a violation of subdivision (a) that results in
physical injury, the person shall be punished by a fine of not more
than two thousand dollars ($2,000), or by imprisonment in a county
jail for not less than 30 days nor more than one year, or by both
that fine and imprisonment. However, if the person is imprisoned in a
county jail for at least 48 hours, the court may, in the interest of
justice and for reasons stated on the record, reduce or eliminate
the 30-day minimum imprisonment required by this subdivision. In
determining whether to reduce or eliminate the minimum imprisonment
pursuant to this subdivision, the court shall consider the
seriousness of the facts before the court, whether there are
additional allegations of a violation of the order during the
pendency of the case before the court, the probability of future
violations, the safety of the victim, and whether the defendant has
successfully completed or is making progress with counseling.
(c) Subdivisions (a) and (b) shall apply to the following court
orders:
(1) Any order issued pursuant to Section 6320 or 6389 of the
Family Code.
(2) An order excluding one party from the family dwelling or from
the dwelling of the other.
(3) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the order described in
subdivision (a).
(4) Any order issued by another state that is recognized under
Part 5 (commencing with Section 6400) of Division 10 of the Family
Code.
(d) A subsequent conviction for a violation of an order described
in subdivision (a), occurring within seven years of a prior
conviction for a violation of an order described in subdivision (a)
and involving an act of violence or "a credible threat" of violence,
as defined in subdivision (c) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or pursuant to
subdivision (h) of Section 1170.
(e) In the event of a subsequent conviction for a violation of an
order described in subdivision (a) for an act occurring within one
year of a prior conviction for a violation of an order described in
subdivision (a) that results in physical injury to a victim, the
person shall be punished by a fine of not more than two thousand
dollars ($2,000), or by imprisonment in a county jail for not less
than six months nor more than one year, by both that fine and
imprisonment, or by imprisonment pursuant to subdivision (h) of
Section 1170. However, if the person is imprisoned in a county jail
for at least 30 days, the court may, in the interest of justice and
for reasons stated in the record, reduce or eliminate the six-month
minimum imprisonment required by this subdivision. In determining
whether to reduce or eliminate the minimum imprisonment pursuant to
this subdivision, the court shall consider the seriousness of the
facts before the court, whether there are additional allegations of a
violation of the order during the pendency of the case before the
court, the probability of future violations, the safety of the
victim, and whether the defendant has successfully completed or is
making progress with counseling.
(f) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of orders described
in subdivisions (a), (b), (d),
and (e).
(g) (1) Every person who owns, possesses, purchases, or receives a
firearm knowing he or she is prohibited from doing so by the
provisions of a protective order as defined in Section 136.2 of this
code, Section 6218 of the Family Code, or Section 527.6 or
, 527.8 , or 527.85 of the Code of
Civil Procedure, or Section 15657.03 of the Welfare and Institutions
Code, shall be punished under Section 29825.
(2) Every person subject to a protective order described in
paragraph (1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (f) of
Section 527.9 of the Code of Civil Procedure, or subdivision (h) of
Section 6389 of the Family Code.
(h) If probation is granted upon conviction of a violation of
subdivision (a), (b), (c), (d), or (e), the court shall impose
probation consistent with Section 1203.097, and the conditions of
probation may include, in lieu of a fine, one or both of the
following requirements:
(1) That the defendant make payments to a battered women's shelter
or to a shelter for abused elder persons or dependent adults, up to
a maximum of five thousand dollars ($5,000), pursuant to Section
1203.097.
(2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds are
the direct result of the defendant's offense.
(i) For any order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under
subdivision (e), the court shall make a determination of the
defendant's ability to pay. In no event shall any order to make
payments to a battered women's shelter be made if it would impair the
ability of the defendant to pay direct restitution to the victim or
court-ordered child support. Where the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be used
to discharge the liability of the offending spouse for restitution to
the injured spouse, required by Section 1203.04, as operative on or
before August 2, 1995, or Section 1202.4, or to a shelter for costs
with regard to the injured spouse and dependents, required by this
section, until all separate property of the offending spouse is
exhausted.
SEC. 146. Section 289.6 of the Penal Code is amended to read:
289.6. (a) (1) An employee or officer of a public entity health
facility, or an employee, officer, or agent of a private person or
entity that provides a health facility or staff for a health facility
under contract with a public entity, who engages in sexual activity
with a consenting adult who is confined in a health facility is
guilty of a public offense. As used in this paragraph, "health
facility" means a health facility as defined in subdivisions (b),
(e), (g), (h), and (j) of, and subparagraph (C) of paragraph (2) of
subdivision (i) of, Section 1250 of the Health and Safety Code, in
which the victim has been confined involuntarily.
(2) An employee or officer of a public entity detention facility,
or an employee, officer, or agent of a private person or entity that
provides a detention facility or staff for a detention facility, a
person or agent of a public or private entity under contract with a
detention facility, a volunteer of a private or public entity
detention facility, or a peace officer who engages in sexual activity
with a consenting adult who is confined in a detention facility is
guilty of a public offense.
(3) An employee with a department, board, or authority under the
Department of Corrections and Rehabilitation or a facility under
contract with a department, board, or authority under the Department
of Corrections and Rehabilitation, who, during the course of his or
her employment directly provides treatment, care, control, or
supervision of inmates, wards, or parolees, and who engages in sexual
activity with a consenting adult who is an inmate, ward, or parolee,
is guilty of a public offense.
(b) As used in this section, the term "public entity" means the
state, the federal government, a city, a county, a city and county, a
joint county jail district, or any entity created as a result of a
joint powers agreement between two or more public entities.
(c) As used in this section, the term "detention facility" means:
(1) A prison, jail, camp, or other correctional facility used for
the confinement of adults or both adults and minors.
(2) A building or facility used for the confinement of adults or
adults and minors pursuant to a contract with a public entity.
(3) A room that is used for holding persons for interviews,
interrogations, or investigations and that is separate from a jail or
located in the administrative area of a law enforcement facility.
(4) A vehicle used to transport confined persons during their
period of confinement, including transporting a person after he or
she has been arrested but has not been booked.
(5) A court holding facility located within or adjacent to a court
building that is used for the confinement of persons for the purpose
of court appearances.
(d) As used in this section, "sexual activity" means:
(1) Sexual intercourse.
(2) Sodomy, as defined in subdivision (a) of Section 286.
(3) Oral copulation, as defined in subdivision (a) of Section
288a.
(4) Sexual penetration, as defined in subdivision (k) of Section
289.
(5) The rubbing or touching of the breasts or sexual organs of
another, or of oneself in the presence of and with knowledge of
another, with the intent of arousing, appealing to, or gratifying the
lust, passions, or sexual desires of oneself or another.
(e) Consent by a confined person or parolee to sexual activity
proscribed by this section is not a defense to a criminal prosecution
for violation of this section.
(f) This section does not apply to sexual activity between
consenting adults that occurs during an overnight conjugal visit that
takes place pursuant to a court order or with the written approval
of an authorized representative of the public entity that operates or
contracts for the operation of the detention facility where the
conjugal visit takes place, to physical contact or penetration made
pursuant to a lawful search, or bona fide medical examinations or
treatments, including clinical treatments.
(g) Any violation of paragraph (1) of subdivision (a), or a
violation of paragraph (2) or (3) of subdivision (a) as described in
paragraph (5) of subdivision (d), is a misdemeanor.
(h) Any violation of paragraph (2) or (3) of subdivision (a), as
described in paragraph (1), (2), (3), or (4) of subdivision (d),
shall be punished by imprisonment in a county jail not exceeding one
year, or in the state prison, or by a fine of not more than ten
thousand dollars ($10,000) , or by both that fine and
imprisonment.
(i) Any person previously convicted of a violation of this section
shall, upon a subsequent violation, be guilty of a felony.
(j) Anyone who is convicted of a felony violation of this section
who is employed by a department, board, or authority within the
Department of Corrections and Rehabilitation shall be terminated in
accordance with the State Civil Service Act (Part 2 (commencing with
Section 18500) of Division 5 of Title 2 of the Government Code).
Anyone who has been convicted of a felony violation of this section
shall not be eligible to be hired or reinstated by a department,
board, or authority within the Department of Corrections and
Rehabilitation.
SEC. 147. Section 496a of the Penal Code is amended to read:
496a. (a) Every person who is a dealer in or collector of junk,
metals , or secondhand materials, or the agent, employee,
or representative of such dealer or collector, and who buys or
receives any wire, cable, copper, lead, solder, mercury, iron ,
or brass which he or she knows or reasonably should know is
ordinarily used by or ordinarily belongs to a railroad or other
transportation, telephone, telegraph, gas, water , or
electric light company, or a county, city, city and county ,
or other political subdivision of this state engaged in
furnishing public utility service, without using due diligence to
ascertain that the person selling or delivering the same has a legal
right to do so, is guilty of criminally receiving that property, and
shall be punished by imprisonment in a county jail for not more than
one year, or by imprisonment pursuant to subdivision (h) of Section
1170, or by a fine of not more than one thousand dollars ($1,000), or
by both that fine and imprisonment.
(b) Any person who buys or receives material pursuant to
subdivision (a) shall obtain evidence of his or her identity from the
seller , including, but not limited to, that person's
full name, signature, address, driver's license number, and vehicle
license number, and the license number of the vehicle delivering the
material.
(c) The record of the transaction shall include an appropriate
description of the material purchased and the record shall be
maintained pursuant to Section 21607 of the Business and Professions
Code.
SEC. 147.3. Section 626.95 of the Penal
Code is amended to read:
626.95. (a) Any person who is in violation of paragraph (2) of
subdivision (a), or subdivision (b), of Section 417, or Section
25400 or 25850, upon the grounds of or within a playground, or
a public or private youth center during hours in which the facility
is open for business, classes, or school-related programs, or at any
time when minors are using the facility, knowing that he or she is on
or within those grounds, shall be punished by imprisonment pursuant
to subdivision (h) of Section 1170 for one, two, or three years, or
in a county jail not exceeding one year.
(b) State and local authorities are encouraged to cause signs to
be posted around playgrounds and youth centers giving warning of
prohibition of the possession of firearms upon the grounds of or
within playgrounds or youth centers.
(c) For purposes of this section, the following definitions shall
apply:
(1) "Playground" means any park or recreational area specifically
designed to be used by children that has play equipment installed,
including public grounds designed for athletic activities such as
baseball, football, soccer, or basketball, or any similar facility
located on public or private school grounds, or on city or county
parks.
(2) "Youth center" means any public or private facility that is
used to host recreational or social activities for minors while
minors are present.
(d) It is the Legislature's intent that only an actual conviction
of a felony of one of the offenses specified in this section would
subject the person to firearms disabilities under the federal Gun
Control Act of 1968 (P.L. 90-618; 18 U.S.C. Sec. 921 et seq.
).
SEC. 147.5. Section 626.10 of the Penal
Code is amended to read:
626.10. (a) (1) Any person, except 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 this
state, a person summoned by any officer to assist in making arrests
or preserving the peace while the person is actually engaged in
assisting any officer, or a member of the military forces of this
state or the United States who is engaged in the performance of his
or her duties, who brings or possesses any dirk, dagger, ice pick,
knife having a blade longer than 21/2 inches, folding knife with a
blade that locks into place, razor with an unguarded blade, taser, or
stun gun, as defined in subdivision (a) of Section 244.5, any
instrument that expels a metallic projectile , such as a
BB or a pellet, through the force of air pressure, CO2 pressure, or
spring action, or any spot marker gun, upon the grounds of, or
within, any public or private school providing instruction in
kindergarten or any of grades 1 to 12, inclusive, is guilty of a
public offense, punishable by imprisonment in a county jail not
exceeding one year, or by imprisonment pursuant to subdivision (h) of
Section 1170.
(2) Any person, except 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 this state, a
person summoned by any officer to assist in making arrests or
preserving the peace while the person is actually engaged in
assisting any officer, or a member of the military forces of this
state or the United States who is engaged in the performance of his
or her duties, who brings or possesses a razor blade or a box cutter
upon the grounds of, or within, any public or private school
providing instruction in kindergarten or any of grades 1 to 12,
inclusive, is guilty of a public offense, punishable by imprisonment
in a county jail not exceeding one year.
(b) Any person, except 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 this state, a
person summoned by any officer to assist in making arrests or
preserving the peace while the person is actually engaged in
assisting any officer, or a member of the military forces of this
state or the United States who is engaged in the performance of his
or her duties, who brings or possesses any dirk, dagger, ice pick, or
knife having a fixed blade longer than 21/2 inches upon the grounds
of, or within, any private university, the University of California,
the California State University, or the California Community Colleges
is guilty of a public offense, punishable by imprisonment in a
county jail not exceeding one year, or by imprisonment pursuant to
subdivision (h) of Section 1170.
(c) Subdivisions (a) and (b) do not apply to any person who brings
or possesses a knife having a blade longer than 21/2 inches, a razor
with an unguarded blade, a razor blade, or a box cutter upon the
grounds of, or within, a public or private school providing
instruction in kindergarten or any of grades 1 to 12, inclusive, or
any private university, state university, or community college at the
direction of a faculty member of the private university, state
university, or community college, or a certificated or classified
employee of the school for use in a private university, state
university, community college, or school-sponsored activity or class.
(d) Subdivisions (a) and (b) do not apply to any person who brings
or possesses an ice pick, a knife having a blade longer than 21/2
inches, a razor with an unguarded blade, a razor blade, or a box
cutter upon the grounds of, or within, a public or private school
providing instruction in kindergarten or any of grades 1 to 12,
inclusive, or any private university, state university, or community
college for a lawful purpose within the scope of the person's
employment.
(e) Subdivision (b) does not apply to any person who brings or
possesses an ice pick or a knife having a fixed blade longer than
21/2 inches upon the grounds of, or within, any private university,
state university, or community college for lawful use in or around a
residence or residential facility located upon those grounds or for
lawful use in food preparation or consumption.
(f) Subdivision (a) does not apply to any person who brings an
instrument that expels a metallic projectile , such as a
BB or a pellet, through the force of air pressure, CO2 pressure, or
spring action, or any spot marker gun, or any razor blade or box
cutter upon the grounds of, or within, a public or private school
providing instruction in kindergarten or any of grades 1 to 12,
inclusive, if the person has the written permission of the school
principal or his or her designee.
(g) Any certificated or classified employee or school peace
officer of a public or private school providing instruction in
kindergarten or any of grades 1 to 12, inclusive, may seize any of
the weapons described in subdivision (a), and any certificated or
classified employee or school peace officer of any private
university, state university, or community college may seize any of
the weapons described in subdivision (b), from the possession of any
person upon the grounds of, or within, the school if he or she knows,
or has reasonable cause to know, the person is prohibited from
bringing or possessing the weapon upon the grounds of, or within, the
school.
(h) As used in this section, "dirk" or "dagger" means a knife or
other instrument with or without a handguard that is capable of ready
use as a stabbing weapon that may inflict great bodily injury or
death.
(i) Any person who, without the written permission of the college
or university president or chancellor or his or her designee, brings
or possesses a less lethal weapon, as defined in Section 16780, or a
stun gun, as defined in Section 17230, upon the grounds of ,
or within, a public or private college or university campus is
guilty of a misdemeanor.
SEC. 148. Section 781 of the Penal Code is amended to read:
781. Except as provided in Section 923, when a public offense is
committed in part in one jurisdictional territory and in part in
another jurisdictional territory, or the acts or effects thereof
constituting or requisite to the consummation of the offense occur in
two or more jurisdictional territories, the jurisdiction for the
offense is in any competent court within either jurisdictional
territory.
SEC. 149. Section 830.41 of the Penal Code is amended to read:
830.41. Notwithstanding any other provision of law, the City of
Tulelake, California, is authorized to enter into a mutual aid
agreement with the City of Malin, Oregon, for the purpose of
permitting their police departments to provide mutual aid to each
other when necessary. Before the effective date of the agreement, the
agreement shall be reviewed and approved by the Commissioner of the
California Highway Patrol.
SEC. 150. Section 830.55 of the Penal Code is amended to read:
830.55. (a) (1) As used in this section, a correctional officer
is a peace officer, employed by a city, county, or city and county
that operates a facility described in Section 2910.5 of this code or
Section 1753.3 of the Welfare and Institutions Code or facilities
operated by counties pursuant to Section 6241 or 6242 of this code
under contract with the Department of Corrections and Rehabilitation
or the Division of Juvenile Justice within the department, who has
the authority and responsibility for maintaining custody of specified
state prison inmates or wards, and who performs tasks related to the
operation of a detention facility used for the detention of persons
who have violated parole or are awaiting parole back into the
community or, upon court order, either for their own safekeeping or
for the specific purpose of serving a sentence therein.
(2) As used in this section, a correctional officer is also a
peace officer, employed by a city, county, or city and county that
operates a facility described in Section 4115.55, who has the
authority and responsibility for maintaining custody of inmates
sentenced to or housed in that facility, and who performs tasks
related to the operation of that facility.
(b) A correctional officer shall have no right to carry or possess
firearms in the performance of his or her prescribed duties, except,
under the direction of the superintendent of the facility, while
engaged in transporting prisoners, guarding hospitalized prisoners,
or suppressing riots, lynchings, escapes, or rescues in or about a
detention facility established pursuant to Section 2910.5 or 4115.55
of this code or Section 1753.3 of the Welfare and Institutions Code.
(c) Each person described in this section as a correctional
officer, within 90 days following the date of the initial assignment
to that position, shall satisfactorily complete the training course
specified in Section 832. In addition, each person designated as a
correctional officer, within one year following the date of the
initial assignment as an officer, shall have satisfactorily met the
minimum selection and training standards prescribed by the Board of
State and Community Corrections pursuant to Section 6035. Persons
designated as correctional officers, before the expiration of the
90-day and one-year periods described in this subdivision, who have
not yet completed the required training, may perform the duties of a
correctional officer only while under the direct supervision of a
correctional officer who has completed the training required in this
section, and shall not carry or possess firearms in the performance
of their prescribed duties.
(d) This section shall not be construed to confer any authority
upon a correctional officer except while on duty.
(e) A correctional officer may use reasonable force in
establishing and maintaining custody of persons delivered to him or
her by a law enforcement officer, may make arrests for misdemeanors
and felonies within the local detention facility pursuant to a duly
issued warrant, and may make warrantless arrests pursuant to Section
836.5 only during the duration of his or her job.
SEC. 151. Section 1001.20 of the Penal Code is amended to read:
1001.20. As used in this chapter:
(a) "Cognitive Developmental Disability" means any of the
following:
(1) "Intellectual disability" means a condition of significantly
subaverage general intellectual functioning existing concurrently
with deficits in adaptive behavior and manifested during the
developmental period.
(2) "Autism" means a diagnosed condition of markedly abnormal or
impaired development in social interaction, in communication, or in
both, with a markedly restricted repertoire of activity and
interests.
(3) Disabling conditions found to be closely related to
intellectual disability or autism, or that require treatment similar
to that required for individuals with intellectual disability or
autism, and that would qualify an individual for services provided
under the Lanterman Developmental Disabilities Services Act.
(b) "Diversion-related treatment and habilitation" means, but is
not limited to, specialized services or special adaptations of
generic services, directed toward the alleviation of cognitive
developmental disability or toward social, personal, physical, or
economic habilitation or rehabilitation of an individual with a
cognitive developmental disability, and includes, but is not limited
to, diagnosis, evaluation, treatment, personal care, day care,
domiciliary care, special living arrangements, physical,
occupational, and speech therapy, training, education, sheltered
employment, mental health services, recreation, counseling of the
individual with this disability and of his or her family, protective
and other social and sociolegal services, information and referral
services, follow-along services, and transportation services
necessary to ensure delivery of services to persons with cognitive
developmental disabilities.
(c) "Regional center" means a regional center for the
developmentally disabled established under the Lanterman
Developmental Disabilities Services Act that is organized as a
private nonprofit community agency to plan, purchase, and coordinate
the delivery of services that cannot be provided by state agencies to
developmentally disabled persons residing in a particular geographic
catchment area, and that is licensed and funded by the State
Department of Developmental Services.
(d) "Director of a regional center" means the executive director
of a regional center for the developmentally disabled or his or her
designee.
(e) "Agency" means the prosecutor, the probation department, and
the regional center involved in a particular defendant's case.
(f) "Dual agency diversion" means a treatment and habilitation
program developed with court approval by the regional center,
administered jointly by the regional center and by the probation
department, that is individually tailored to the needs of the
defendant as derived from the defendant's individual program plan
pursuant to Section 4646 of the Welfare and Institutions Code, and
that includes, but is not limited to, treatment specifically
addressed to the criminal offense charged, for a specified period of
time as prescribed in Section 1001.28.
(g) "Single agency diversion" means a treatment and habilitation
program developed with court approval by the regional center,
administered solely by the regional center without involvement by the
probation department, that is individually tailored to the needs of
the defendant as derived from the defendant's individual program plan
pursuant to Section 4646 of the Welfare and Institutions Code, and
that includes, but is not limited to, treatment specifically
addressed to the criminal offense charged, for a specified period of
time as prescribed in Section 1001.28.
SEC. 152. Section 1170 of the Penal Code, as amended by Section 2
of Chapter 828 of the Statutes of 2012, is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute
for a person convicted of a public offense is a term of imprisonment
in the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing in this article shall affect any provision
of law that imposes the death penalty, that authorizes or restricts
the granting of probation or suspending the execution or imposition
of sentence, or expressly provides for imprisonment in the state
prison for life, except as provided in paragraph (2) of subdivision
(d). In any case in which the amount of preimprisonment credit under
Section 2900.5 or any other provision of law is equal to or exceeds
any sentence imposed pursuant to this chapter, the entire sentence
shall be deemed to have been served and the defendant shall not be
actually delivered to the custody of the secretary. The court shall
advise the defendant that he or she shall serve a period of parole
and order the defendant to report to the parole office closest to the
defendant's last legal residence, unless the in-custody credits
equal the total sentence, including both confinement time and the
period of parole. The sentence shall be deemed a separate prior
prison term under Section 667.5, and a copy of the judgment and other
necessary documentation shall be forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall order
imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime. At least four days prior to
the time set for imposition of judgment, either party or the victim,
or the family of the victim if the victim is deceased, may submit a
statement in aggravation or mitigation to dispute facts in the record
or the probation officer's report, or to present additional facts.
In determining whether there are circumstances that justify
imposition of the upper or lower term, the court may consider the
record in the case, the probation officer's report, other reports,
including reports received pursuant to Section 1203.03, and
statements in aggravation or mitigation submitted by the prosecution,
the defendant, or the victim, or the family of the victim if the
victim is deceased, and any further evidence introduced at the
sentencing hearing. The court shall set forth on the record the facts
and reasons for imposing the upper or lower term. The court may not
impose an upper term by using the fact of any enhancement upon which
sentence is imposed under any provision of law. A term of
imprisonment shall not be specified if imposition of sentence is
suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.
(d) (1) When a defendant subject to this section or subdivision
(b) of Section 1168 has been sentenced to be imprisoned in the state
prison and has been committed to the custody of the secretary, the
court may, within 120 days of the date of commitment on its own
motion, or at any time upon the recommendation of the secretary or
the Board of Parole Hearings, recall the sentence and commitment
previously ordered and resentence the defendant in the same manner as
if he or she had not previously been sentenced, provided the new
sentence, if any, is no greater than the initial sentence. The court
resentencing under this subdivision shall apply the sentencing rules
of the Judicial Council so as to eliminate disparity of sentences and
to promote uniformity of sentencing. Credit shall be given for time
served.
(2) (A) (i) When a defendant who was under 18 years of age at the
time of the commission of the offense for which the defendant was
sentenced to imprisonment for life without the possibility of parole
has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing.
(ii) Notwithstanding clause (i), this paragraph shall not apply to
defendants sentenced to life without parole for an offense where the
defendant tortured, as described in Section 206, his or her victim
or the victim was a public safety official, including any law
enforcement personnel mentioned in Chapter 4.5 (commencing with
Section 830) of Title 3, or any firefighter as described in Section
245.1, as well as any other officer in any segment of law enforcement
who is employed by the federal government, the state, or any of its
political subdivisions.
(B) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant's statement that he or she was under 18 years of age at the
time of the crime and was sentenced to life in prison without the
possibility of parole, the defendant's statement describing his or
her remorse and work towards rehabilitation, and the defendant's
statement that one of the following is true:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
(C) If any of the information required in subparagraph (B) is
missing from the petition, or if proof of service on the prosecuting
agency is not provided, the court shall return the petition to the
defendant and advise the defendant that the matter cannot be
considered without the missing information.
(D) A reply to the petition, if any, shall be filed with the court
within 60 days of the date on which the prosecuting agency was
served with the petition, unless a continuance is granted for good
cause.
(E) If the court finds by a preponderance of the evidence that the
statements in the petition are true, the court shall hold a hearing
to consider whether to recall the sentence and commitment previously
ordered and to resentence the defendant in the same manner as if the
defendant had not previously been sentenced, provided that the new
sentence, if any, is not greater than the initial sentence. Victims,
or victim family members if the victim is deceased, shall retain the
rights to participate in the hearing.
(F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) Prior to the offense for which the sentence is being
considered for recall, the defendant had insufficient adult support
or supervision and had suffered from psychological or physical
trauma, or significant stress.
(v) The defendant suffers from cognitive limitations due to mental
illness, developmental disabilities, or other factors that did not
constitute a defense, but influenced the defendant's involvement in
the offense.
(vi) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
(vii) The defendant has maintained family ties or connections with
others through letter writing, calls, or visits, or has eliminated
contact with individuals outside of prison who are currently involved
with crime.
(viii) The defendant has had no disciplinary actions for violent
activities in the last five years in which the defendant was
determined to be the aggressor.
(G) The court shall have the discretion to recall the sentence and
commitment previously ordered and to resentence the defendant in the
same manner as if the defendant had not previously been sentenced,
provided that the new sentence, if any, is not greater than the
initial sentence. The discretion of the court shall be exercised in
consideration of the criteria in subparagraph (B). Victims, or victim
family members if the victim is deceased, shall be notified of the
resentencing hearing and shall retain their rights to participate in
the hearing.
(H) If the sentence is not recalled, the defendant may submit
another petition for recall and resentencing to the sentencing court
when the defendant has been committed to the custody of the
department for at least 20 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition
after having served 24 years. The final petition may be submitted,
and the response to that petition shall be determined, during the
25th year of the defendant's sentence.
(I) In addition to the criteria in subparagraph (F), the court may
consider any other criteria that the court deems relevant to its
decision, so long as the court identifies them on the record,
provides a statement of reasons for adopting them, and states why the
defendant does or does not satisfy the criteria.
(J) This subdivision shall have retroactive application.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious felony
described in subdivision (c) of Section 1192.7 or a prior or current
conviction for a violent felony described in subdivision (c) of
Section 667.5, (B) has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a serious
felony described in subdivision (c) of Section 1192.7 or a violent
felony described in subdivision (c) of Section 667.5, (C) is required
to register as a sex offender pursuant to Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1, or (D) is convicted of a
crime and as part of the sentence an enhancement pursuant to Section
186.11 is imposed, an executed sentence for a felony punishable
pursuant to this subdivision shall be served in state prison.
(4) This subdivision does not prevent other dispositions
authorized by law, including pretrial diversion, deferred entry of
judgment, or an order granting probation pursuant to Section 1203.1.
(5) The court, when imposing a sentence pursuant to paragraph (1)
or (2) of this subdivision, may commit the defendant to county jail
as follows:
(A) For a full term in custody as determined in accordance with
the applicable sentencing law.
(B) (i) For a term as determined in accordance with the applicable
sentencing law, but suspend execution of a concluding portion of the
term selected in the court's discretion, during which time the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. Any proceeding to revoke or modify mandatory
supervision under this subparagraph shall be conducted pursuant to
either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3.
During the period when the defendant is under such supervision,
unless in actual custody related to the sentence imposed by the
court, the defendant shall be entitled to only actual time credit
against the term of imprisonment imposed by the court. Any time
period that is suspended because a person has absconded shall not be
credited toward the period of supervision.
(ii) The portion of a defendant's sentenced term during which time
he or she is supervised by the county probation officer pursuant to
this subparagraph shall be known as mandatory supervision.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(i) This section shall become operative on January 1, 2014.
SEC. 153. Section 1203.097 of the Penal Code is amended to read:
1203.097. (a) If a person is granted probation for a crime in
which the victim is a person defined in Section 6211 of the Family
Code, the terms of probation shall include all of the following:
(1) A minimum period of probation of 36 months, which may include
a period of summary probation as appropriate.
(2) A criminal court protective order protecting the victim from
further acts of violence, threats, stalking, sexual abuse, and
harassment, and, if appropriate, containing residence exclusion or
stay-away conditions.
(3) Notice to the victim of the disposition of the case.
(4) Booking the defendant within one week of sentencing if the
defendant has not already been booked.
(5) (A) A minimum payment by the defendant of five hundred dollars
($500) to be disbursed as specified in this paragraph. If, after a
hearing in open court, the court finds that the defendant does not
have the ability to pay, the court may reduce or waive this fee. If
the court exercises its discretion to reduce or waive the fee, it
shall state the reason on the record.
(B) Two-thirds of the moneys deposited with the county treasurer
pursuant to this section shall be retained by counties and deposited
in the domestic violence programs special fund created pursuant to
Section 18305 of the Welfare and Institutions Code, to be expended
for the purposes of Chapter 5 (commencing with Section 18290) of Part
6 of Division 9 of the Welfare and Institutions Code. The remainder
shall be transferred, once a month, to the Controller for deposit in
equal amounts in the Domestic Violence Restraining Order
Reimbursement Fund and in the Domestic Violence Training and
Education Fund, which are hereby created, in an amount equal to
one-third of funds collected during the preceding month. Moneys
deposited into these funds pursuant to this section shall be
available upon appropriation by the Legislature and shall be
distributed each fiscal year as follows:
(i) Funds from the Domestic Violence Restraining Order
Reimbursement Fund shall be distributed to local law enforcement or
other criminal justice agencies for state-mandated local costs
resulting from the notification requirements set forth in subdivision
(b) of Section 6380 of the Family Code, based on the annual
notification from the Department of Justice of the number of
restraining orders issued and registered in the state domestic
violence restraining order registry maintained by the Department of
Justice, for the development and maintenance of the domestic violence
restraining order databank system.
(ii) Funds from the Domestic Violence Training and Education Fund
shall support a statewide training and education program to increase
public awareness of domestic violence and to improve the scope and
quality of services provided to the victims of domestic violence.
Grants to support this program shall be awarded on a competitive
basis and be administered by the State Department of Public Health,
in consultation with the statewide domestic violence coalition, which
is eligible to receive funding under this section.
(6) Successful completion of a batterer's program, as defined in
subdivision (c), or if none is available, another appropriate
counseling program designated by the court, for a period not less
than one year with periodic progress reports by the program to the
court every three months or less and weekly sessions of a minimum of
two hours class time duration. The defendant shall attend consecutive
weekly sessions, unless granted an excused absence for good cause by
the program for no more than three individual sessions during the
entire program, and shall complete the program within 18 months,
unless, after a hearing, the court finds good cause to modify the
requirements of consecutive attendance or completion within 18
months.
(7) (A) (i) The court shall order the defendant to comply with all
probation requirements, including the requirements to attend
counseling, keep all program appointments, and pay program fees based
upon the ability to pay.
(ii) The terms of probation for offenders shall not be lifted
until all reasonable fees due to the counseling program have been
paid in full, but in no case shall probation be extended beyond the
term provided in subdivision (a) of Section 1203.1. If the court
finds that the defendant does not have the ability to pay the fees
based on the defendant's changed circumstances, the court may reduce
or waive the fees.
(B) Upon request by the batterer's program, the court shall
provide the defendant's arrest report, prior incidents of violence,
and treatment history to the program.
(8) The court also shall order the defendant to perform a
specified amount of appropriate community service, as designated by
the court. The defendant shall present the court with proof of
completion of community service and the court shall determine if the
community service has been satisfactorily completed. If sufficient
staff and resources are available, the community service shall be
performed under the jurisdiction of the local agency overseeing a
community service program.
(9) If the program finds that the defendant is unsuitable, the
program shall immediately contact the probation department or the
court. The probation department or court shall either recalendar the
case for hearing or refer the defendant to an appropriate alternative
batterer's program.
(10) (A) Upon recommendation of the program, a court shall require
a defendant to participate in additional sessions throughout the
probationary period, unless it finds that it is not in the interests
of justice to do so, states its reasons on the record, and enters
them into the minutes. In deciding whether the defendant would
benefit from more sessions, the court shall consider whether any of
the following conditions exists:
(i) The defendant has been violence free for a minimum of six
months.
(ii) The defendant has cooperated and participated in the batterer'
s program.
(iii) The defendant demonstrates an understanding of and practices
positive conflict resolution skills.
(iv) The defendant blames, degrades, or has committed acts that
dehumanize the victim or puts at risk the victim's safety, including,
but not limited to, molesting, stalking, striking, attacking,
threatening, sexually assaulting, or battering the victim.
(v) The defendant demonstrates an understanding that the use of
coercion or violent behavior to maintain dominance is unacceptable in
an intimate relationship.
(vi) The defendant has made threats to harm anyone in any manner.
(vii)
The defendant has complied with applicable requirements under
paragraph (6) of subdivision (c) or subparagraph (C) to receive
alcohol counseling, drug counseling, or both.
(viii) The defendant demonstrates acceptance of responsibility for
the abusive behavior perpetrated against the victim.
(B) The program shall immediately report any violation of the
terms of the protective order, including any new acts of violence or
failure to comply with the program requirements, to the court, the
prosecutor, and, if formal probation has been ordered, to the
probation department. The probationer shall file proof of enrollment
in a batterer's program with the court within 30 days of conviction.
(C) Concurrent with other requirements under this section, in
addition to, and not in lieu of, the batterer's program, and unless
prohibited by the referring court, the probation department or the
court may make provisions for a defendant to use his or her resources
to enroll in a chemical dependency program or to enter voluntarily a
licensed chemical dependency recovery hospital or residential
treatment program that has a valid license issued by the state to
provide alcohol or drug services to receive program participation
credit, as determined by the court. The probation department shall
document evidence of this hospital or residential treatment
participation in the defendant's program file.
(11) The conditions of probation may include, in lieu of a fine,
but not in lieu of the fund payment required under paragraph (5), one
or more of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of five thousand dollars ($5,000).
(B) That the defendant reimburse the victim for reasonable
expenses that the court finds are the direct result of the defendant'
s offense.
For any order to pay a fine, to make payments to a battered women'
s shelter, or to pay restitution as a condition of probation under
this subdivision, the court shall make a determination of the
defendant's ability to pay. Determination of a defendant's ability to
pay may include his or her future earning capacity. A defendant
shall bear the burden of demonstrating lack of his or her ability to
pay. Express findings by the court as to the factors bearing on the
amount of the fine shall not be required. In no event shall any order
to make payments to a battered women's shelter be made if it would
impair the ability of the defendant to pay direct restitution to the
victim or court-ordered child support. When the injury to a married
person is caused, in whole or in part, by the criminal acts of his or
her spouse in violation of this section, the community property
shall not be used to discharge the liability of the offending spouse
for restitution to the injured spouse, as required by Section
1203.04, as operative on or before August 2, 1995, or Section 1202.4,
or to a shelter for costs with regard to the injured spouse, until
all separate property of the offending spouse is exhausted.
(12) If it appears to the prosecuting attorney, the court, or the
probation department that the defendant is performing
unsatisfactorily in the assigned program, is not benefiting from
counseling, or has engaged in criminal conduct, upon request of the
probation officer, the prosecuting attorney, or on its own motion,
the court, as a priority calendar item, shall hold a hearing to
determine whether further sentencing should proceed. The court may
consider factors, including, but not limited to, any violence by the
defendant against the former or a new victim while on probation and
noncompliance with any other specific condition of probation. If the
court finds that the defendant is not performing satisfactorily in
the assigned program, is not benefiting from the program, has not
complied with a condition of probation, or has engaged in criminal
conduct, the court shall terminate the defendant's participation in
the program and shall proceed with further sentencing.
(b) If a person is granted formal probation for a crime in which
the victim is a person defined in Section 6211 of the Family Code, in
addition to the terms specified in subdivision (a), all of the
following shall apply:
(1) The probation department shall make an investigation and take
into consideration the defendant's age, medical history, employment
and service records, educational background, community and family
ties, prior incidents of violence, police report, treatment history,
if any, demonstrable motivation, and other mitigating factors in
determining which batterer's program would be appropriate for the
defendant. This information shall be provided to the batterer's
program if it is requested. The probation department shall also
determine which community programs the defendant would benefit from
and which of those programs would accept the defendant. The probation
department shall report its findings and recommendations to the
court.
(2) The court shall advise the defendant that the failure to
report to the probation department for the initial investigation, as
directed by the court, or the failure to enroll in a specified
program, as directed by the court or the probation department, shall
result in possible further incarceration. The court, in the interests
of justice, may relieve the defendant from the prohibition set forth
in this subdivision based upon the defendant's mistake or excusable
neglect. Application for this relief shall be filed within 20 court
days of the missed deadline. This time limitation may not be
extended. A copy of any application for relief shall be served on the
office of the prosecuting attorney.
(3) After the court orders the defendant to a batterer's program,
the probation department shall conduct an initial assessment of the
defendant, including, but not limited to, all of the following:
(A) Social, economic, and family background.
(B) Education.
(C) Vocational achievements.
(D) Criminal history.
(E) Medical history.
(F) Substance abuse history.
(G) Consultation with the probation officer.
(H) Verbal consultation with the victim, only if the victim
desires to participate.
(I) Assessment of the future probability of the defendant
committing murder.
(4) The probation department shall attempt to notify the victim
regarding the requirements for the defendant's participation in the
batterer's program, as well as regarding available victim resources.
The victim also shall be informed that attendance in any program does
not guarantee that an abuser will not be violent.
(c) The court or the probation department shall refer defendants
only to batterer's programs that follow standards outlined in
paragraph (1), which may include, but are not limited to, lectures,
classes, group discussions, and counseling. The probation department
shall design and implement an approval and renewal process for
batterer's programs and shall solicit input from criminal justice
agencies and domestic violence victim advocacy programs.
(1) The goal of a batterer's program under this section shall be
to stop domestic violence. A batterer's program shall consist of the
following components:
(A) Strategies to hold the defendant accountable for the violence
in a relationship, including, but not limited to, providing the
defendant with a written statement that the defendant shall be held
accountable for acts or threats of domestic violence.
(B) A requirement that the defendant participate in ongoing
same-gender group sessions.
(C) An initial intake that provides written definitions to the
defendant of physical, emotional, sexual, economic, and verbal abuse,
and the techniques for stopping these types of abuse.
(D) Procedures to inform the victim regarding the requirements for
the defendant's participation in the intervention program as well as
regarding available victim resources. The victim also shall be
informed that attendance in any program does not guarantee that an
abuser will not be violent.
(E) A requirement that the defendant attend group sessions free of
chemical influence.
(F) Educational programming that examines, at a minimum, gender
roles, socialization, the nature of violence, the dynamics of power
and control, and the effects of abuse on children and others.
(G) A requirement that excludes any couple counseling or family
counseling, or both.
(H) Procedures that give the program the right to assess whether
or not the defendant would benefit from the program and to refuse to
enroll the defendant if it is determined that the defendant would not
benefit from the program, so long as the refusal is not because of
the defendant's inability to pay. If possible, the program shall
suggest an appropriate alternative program.
(I) Program staff who, to the extent possible, have specific
knowledge regarding, but not limited to, spousal abuse, child abuse,
sexual abuse, substance abuse, the dynamics of violence and abuse,
the law, and procedures of the legal system.
(J) Program staff who are encouraged to utilize the expertise,
training, and assistance of local domestic violence centers.
(K) A requirement that the defendant enter into a written
agreement with the program, which shall include an outline of the
contents of the program, the attendance requirements, the requirement
to attend group sessions free of chemical influence, and a statement
that the defendant may be removed from the program if it is
determined that the defendant is not benefiting from the program or
is disruptive to the program.
(L) A requirement that the defendant sign a confidentiality
statement prohibiting disclosure of any information obtained through
participating in the program or during group sessions regarding other
participants in the program.
(M) Program content that provides cultural and ethnic sensitivity.
(N) A requirement of a written referral from the court or
probation department prior to permitting the defendant to enroll in
the program. The written referral shall state the number of minimum
sessions required by the court.
(O) Procedures for submitting to the probation department all of
the following uniform written responses:
(i) Proof of enrollment, to be submitted to the court and the
probation department and to include the fee determined to be charged
to the defendant, based upon the ability to pay, for each session.
(ii) Periodic progress reports that include attendance, fee
payment history, and program compliance.
(iii) Final evaluation that includes the program's evaluation of
the defendant's progress, using the criteria set forth in
subparagraph (A) of paragraph (10) of subdivision (a) and
recommendation for either successful or unsuccessful termination or
continuation in the program.
(P) A sliding fee schedule based on the defendant's ability to
pay. The batterer's program shall develop and utilize a sliding fee
scale that recognizes both the defendant's ability to pay and the
necessity of programs to meet overhead expenses. An indigent
defendant may negotiate a deferred payment schedule, but shall pay a
nominal fee, if the defendant has the ability to pay the nominal fee.
Upon a hearing and a finding by the court that the defendant does
not have the financial ability to pay the nominal fee, the court
shall waive this fee. The payment of the fee shall be made a
condition of probation if the court determines the defendant has the
present ability to pay the fee. The fee shall be paid during the term
of probation unless the program sets other conditions. The
acceptance policies shall be in accordance with the scaled fee
system.
(2) The court shall refer persons only to batterer's programs that
have been approved by the probation department pursuant to paragraph
(5). The probation department shall do both of the following:
(A) Provide for the issuance of a provisional approval, provided
that the applicant is in substantial compliance with applicable laws
and regulations and an urgent need for approval exists. A provisional
approval shall be considered an authorization to provide services
and shall not be considered a vested right.
(B) If the probation department determines that a program is not
in compliance with standards set by the department, the department
shall provide written notice of the noncompliant areas to the
program. The program shall submit a written plan of corrections
within 14 days from the date of the written notice on noncompliance.
A plan of correction shall include, but not be limited to, a
description of each corrective action and timeframe for
implementation. The department shall review and approve all or any
part of the plan of correction and notify the program of approval or
disapproval in writing. If the program fails to submit a plan of
correction or fails to implement the approved plan of correction, the
department shall consider whether to revoke or suspend approval and,
upon revoking or suspending approval, shall have the option to cease
referrals of defendants under this section.
(3) No program, regardless of its source of funding, shall be
approved unless it meets all of the following standards:
(A) The establishment of guidelines and criteria for education
services, including standards of services that may include lectures,
classes, and group discussions.
(B) Supervision of the defendant for the purpose of evaluating the
person's progress in the program.
(C) Adequate reporting requirements to ensure that all persons
who, after being ordered to attend and complete a program, may be
identified for either failure to enroll in, or failure to
successfully complete, the program or for the successful completion
of the program as ordered. The program shall notify the court and the
probation department, in writing, within the period of time and in
the manner specified by the court of any person who fails to complete
the program. Notification shall be given if the program determines
that the defendant is performing unsatisfactorily or if the defendant
is not benefiting from the education, treatment, or counseling.
(D) No victim shall be compelled to participate in a program or
counseling, and no program may condition a defendant's enrollment on
participation by the victim.
(4) In making referrals of indigent defendants to approved
batterer's programs, the probation department shall apportion these
referrals evenly among the approved programs.
(5) The probation department shall have the sole authority to
approve a batterer's program for probation. The program shall be
required to obtain only one approval but shall renew that approval
annually.
(A) The procedure for the approval of a new or existing program
shall include all of the following:
(i) The completion of a written application containing necessary
and pertinent information describing the applicant program.
(ii) The demonstration by the program that it possesses adequate
administrative and operational capability to operate a batterer's
treatment program. The program shall provide documentation to prove
that the program has conducted batterer's programs for at least one
year prior to application. This requirement may be waived under
subparagraph (A) of paragraph (2) if there is no existing batterer's
program in the city, county, or city and county.
(iii) The onsite review of the program, including monitoring of a
session to determine that the program adheres to applicable statutes
and regulations.
(iv) The payment of the approval fee.
(B) The probation department shall fix a fee for approval not to
exceed two hundred fifty dollars ($250) and for approval renewal not
to exceed two hundred fifty dollars ($250) every year in an amount
sufficient to cover its costs in administering the approval process
under this section. No fee shall be charged for the approval of local
governmental entities.
(C) The probation department has the sole authority to approve the
issuance, denial, suspension, or revocation of approval and to cease
new enrollments or referrals to a batterer's program under this
section. The probation department shall review information relative
to a program's performance or failure to adhere to standards, or
both. The probation department may suspend or revoke an approval
issued under this subdivision or deny an application to renew an
approval or to modify the terms and conditions of approval, based on
grounds established by probation, including, but not limited to,
either of the following:
(i) Violation of this section by any person holding approval or by
a program employee in a program under this section.
(ii) Misrepresentation of any material fact in obtaining the
approval.
(6) For defendants who are chronic users or serious abusers of
drugs or alcohol, standard components in the program shall include
concurrent counseling for substance abuse and violent behavior, and
in appropriate cases, detoxification and abstinence from the abused
substance.
(7) The program shall conduct an exit conference that assesses the
defendant's progress during his or her participation in the batterer'
s program.
(d) An act or omission relating to the approval of a batterer's
treatment program under paragraph (5) of subdivision (c) is a
discretionary act pursuant to Section 820.2 of the Government Code.
SEC. 153.5. Section 1203.4a of the
Penal Code is amended to read:
1203.4a. (a) Every defendant convicted of a misdemeanor and not
granted probation, and every defendant convicted of an infraction
shall, at any time after the lapse of one year from the date of
pronouncement of judgment, if he or she has fully complied with and
performed the sentence of the court, is not then serving a sentence
for any offense and is not under charge of commission of any crime,
and has, since the pronouncement of judgment, lived an honest and
upright life and has conformed to and obeyed the laws of the land, be
permitted by the court to withdraw his or her plea of guilty or nolo
contendere and enter a plea of not guilty; or if he or she has been
convicted after a plea of not guilty, the court shall set aside the
verdict of guilty; and in either case the court shall thereupon
dismiss the accusatory pleading against the defendant, who shall
thereafter be released from all penalties and disabilities resulting
from the offense of which he or she has been convicted, except as
provided in Section 12021.1 Chapter 3
(commencing with Section 29900) of Division 9 of Title 4 of Part 6
of this code or Section 13555 of the Vehicle Code.
(b) If a defendant does not satisfy all the requirements of
subdivision (a), after a lapse of one year from the date of
pronouncement of judgment, a court, in its discretion and in the
interests of justice, may grant the relief available pursuant to
subdivision (a) to a defendant convicted of an infraction, or of a
misdemeanor and not granted probation, or both, if he or she has
fully complied with and performed the sentence of the court, is not
then serving a sentence for any offense, and is not under charge of
commission of any crime.
(c) (1) The defendant shall be informed of the provisions of this
section, either orally or in writing, at the time he or she is
sentenced. The defendant may make an application and change of plea
in person or by attorney, or by the probation officer authorized in
writing, provided that, in any subsequent prosecution of the
defendant for any other offense, the prior conviction may be pleaded
and proved and shall have the same effect as if relief had not been
granted pursuant to this section.
(2) Dismissal of an accusatory pleading pursuant to this section
does not permit a person to own, possess, or have in his or her
custody or control any firearm or prevent his or her conviction under
Chapter 2 (commencing with Section 29800) of Division 9 of Title 4
of Part 6.
(3) Dismissal of an accusatory pleading underlying a conviction
pursuant to this section does not permit a person prohibited from
holding public office as a result of that conviction to hold public
office.
(d) This section applies to any conviction specified in
subdivision (a) or (b) that occurred before, as well as those
occurring after, the effective date of this section, except that this
section does not apply to the following:
(1) A misdemeanor violation of subdivision (c) of Section 288.
(2) Any misdemeanor falling within the provisions of Section
42002.1 of the Vehicle Code.
(3) Any infraction falling within the provisions of Section 42001
of the Vehicle Code.
(e) A person who petitions for a dismissal of a charge under this
section may be required to reimburse the county and the court for the
cost of services rendered at a rate to be determined by the county
board of supervisors for the county and by the court for the court,
not to exceed sixty dollars ($60), and to reimburse any city for the
cost of services rendered at a rate to be determined by the city
council not to exceed sixty dollars ($60). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. The court may order reimbursement in any case in which the
petitioner appears to have the ability to pay, without undue
hardship, all or any portion of the cost for services established
pursuant to this subdivision.
(f) A petition for dismissal of an infraction pursuant to this
section shall be by written declaration, except upon a showing of
compelling need. Dismissal of an infraction shall not be granted
under this section unless the prosecuting attorney has been given at
least 15 days' notice of the petition for dismissal. It shall be
presumed that the prosecuting attorney has received notice if proof
of service is filed with the court.
(g) Any determination of amount made by a court under this section
shall be valid only if either (1) made under procedures adopted by
the Judicial Council or (2) approved by the Judicial Council.
SEC. 154. Section 1230 of the Penal Code is amended to read:
1230. (a) Each county is hereby authorized to establish in each
county treasury a Community Corrections Performance Incentives Fund
(CCPIF), to receive all amounts allocated to that county for purposes
of implementing this chapter.
(b) In any fiscal year for which a county receives moneys to be
expended for the implementation of this chapter, the moneys,
including any interest, shall be made available to the CPO of that
county, within 30 days of the deposit of those moneys into the fund,
for the implementation of the community corrections program
authorized by this chapter.
(1) The community corrections program shall be developed and
implemented by probation and advised by a local Community Corrections
Partnership.
(2) The local Community Corrections Partnership shall be chaired
by the CPO and comprised of the following membership:
(A) The presiding judge of the superior court, or his or her
designee.
(B) A county supervisor or the chief administrative officer for
the county or a designee of the board of supervisors.
(C) The district attorney.
(D) The public defender.
(E) The sheriff.
(F) A chief of police.
(G) The head of the county department of social services.
(H) The head of the county department of mental health.
(I) The head of the county department of employment.
(J) The head of the county alcohol and substance abuse program.
(K) The head of the county office of education.
(L) A representative from a community-based organization with
experience in successfully providing rehabilitative services to
persons who have been convicted of a criminal offense.
(M) An individual who represents the interests of victims.
(3) Funds allocated to probation pursuant to this act shall be
used to provide supervision and rehabilitative services for adult
felony offenders subject to probation, and shall be spent on
evidence-based community corrections practices and programs, as
defined in subdivision (d) of Section 1229, which may include, but
are not limited to, the following:
(A) Implementing and expanding evidence-based risk and needs
assessments.
(B) Implementing and expanding intermediate sanctions that
include, but are not limited to, electronic monitoring, mandatory
community service, home detention, day reporting, restorative justice
programs, work furlough programs, and incarceration in a
county jail for up to 90 days.
(C) Providing more intensive probation supervision.
(D) Expanding the availability of evidence-based rehabilitation
programs , including, but not limited to, drug and alcohol
treatment, mental health treatment, anger management, cognitive
behavior programs, and job training and employment services.
(E) Evaluating the effectiveness of rehabilitation and supervision
programs and ensuring program fidelity.
(4) The CPO shall have discretion to spend funds on any of the
above practices and programs consistent with this act but, at a
minimum, shall devote at least 5 percent of all funding received to
evaluate the effectiveness of those programs and practices
implemented with the funds provided pursuant to this chapter. A CPO
may petition the Administrative Office of the Courts to have this
restriction waived, and the Administrative Office of the Courts shall
have the authority to grant such a petition, if the CPO can
demonstrate that the department is already devoting sufficient funds
to the evaluation of these programs and practices.
(5) Each probation department receiving funds under this chapter
shall maintain a complete and accurate accounting of all funds
received pursuant to this chapter.
SEC. 155. The heading of Title 4.5 (commencing with Section 13600)
of Part 4 of the Penal Code, as amended by Section 7 of Chapter 136
of the Statutes of 2011, is repealed.
SEC. 156. Section 1370.1 of the Penal Code is amended to read:
1370.1. (a) (1) (A) If the defendant is found mentally competent,
the criminal process shall resume, the trial on the offense charged
shall proceed, and judgment may be pronounced.
(B) If the defendant is found mentally incompetent and is
developmentally disabled, the trial or judgment shall be suspended
until the defendant becomes mentally competent.
(i) Except as provided in clause (ii) or (iii), the court shall
consider a recommendation for placement, which recommendation shall
be made to the court by the director of a regional center or
designee. In the meantime, the court shall order that the mentally
incompetent defendant be delivered by the sheriff or other
person designated by the court to
a state hospital or developmental center for the care and treatment
of the developmentally disabled or any other available residential
facility approved by the director of a regional center for the
developmentally disabled established under Division 4.5 (commencing
with Section 4500) of the Welfare and Institutions Code as will
promote the defendant's speedy attainment of mental competence, or be
placed on outpatient status pursuant to the provisions of Section
1370.4 and Title 15 (commencing with Section 1600).
(ii) However, if the action against the defendant who has been
found mentally incompetent is on a complaint charging a felony
offense specified in Section 290, the prosecutor shall determine
whether the defendant previously has been found mentally incompetent
to stand trial pursuant to this chapter on a charge of a Section 290
offense, or whether the defendant is currently the subject of a
pending Section 1368 proceeding arising out of a charge of a Section
290 offense. If either determination is made, the prosecutor shall so
notify the court and defendant in writing. After this notification,
and opportunity for hearing, the court shall order that the defendant
be delivered by the sheriff to a state hospital or other secure
treatment facility for the care and treatment of the developmentally
disabled unless the court makes specific findings on the record that
an alternative placement would provide more appropriate treatment for
the defendant and would not pose a danger to the health and safety
of others.
(iii) If the action against the defendant who has been found
mentally incompetent is on a complaint charging a felony offense
specified in Section 290 and the defendant has been denied bail
pursuant to subdivision (b) of Section 12 of Article I of the
California Constitution because the court has found, based upon clear
and convincing evidence, a substantial likelihood that the person's
release would result in great bodily harm to others, the court shall
order that the defendant be delivered by the sheriff to a state
hospital for the care and treatment of the developmentally disabled
unless the court makes specific findings on the record that an
alternative placement would provide more appropriate treatment for
the defendant and would not pose a danger to the health and safety of
others.
(iv) The clerk of the court shall notify the Department of Justice
in writing of any finding of mental incompetence with respect to a
defendant who is subject to clause (ii) or (iii) for inclusion in his
or her state summary criminal history information.
(C) Upon becoming competent, the court shall order that the
defendant be returned to the committing court pursuant to the
procedures set forth in paragraph (2) of subdivision (a) of Section
1372 or by another person designated by the court. The court shall
further determine conditions under which the person may be absent
from the placement for medical treatment, social visits, and other
similar activities. Required levels of supervision and security for
these activities shall be specified.
(D) The court shall transmit a copy of its order to the regional
center director or designee and to the Director of Developmental
Services.
(E) A defendant charged with a violent felony may not be placed in
a facility or delivered to a state hospital, developmental center,
or residential facility pursuant to this subdivision unless the
facility, state hospital, developmental center, or residential
facility has a secured perimeter or a locked and controlled treatment
facility, and the judge determines that the public safety will be
protected.
(F) For purposes of this paragraph, "violent felony" means an
offense specified in subdivision (c) of Section 667.5.
(G) A defendant charged with a violent felony may be placed on
outpatient status, as specified in Section 1370.4 or 1600, only if
the court finds that the placement will not pose a danger to the
health or safety of others.
(H) As used in this section, "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 handicap for the individual, and shall not
include other handicapping conditions that are solely physical in
nature. 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 handicapping 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.
(2) Prior to making the order directing that the defendant be
confined in a state hospital, developmental center, or other
residential facility, or be placed on outpatient status, the court
shall order the regional center director or designee to evaluate the
defendant and to submit to the court within 15 judicial days of the
order a written recommendation as to whether the defendant should be
committed to a state hospital or developmental center or to any other
available residential facility approved by the regional center
director. A person shall not be admitted to a state hospital,
developmental center, or other residential facility or accepted for
outpatient status under Section 1370.4 without having been evaluated
by the regional center director or designee.
(3) When the court orders that the defendant be confined in a
state hospital or other secure treatment facility pursuant to clause
(ii) or (iii) of subparagraph (B) of paragraph (1), the court shall
provide copies of the following documents which shall be taken with
the defendant to the state hospital or other secure treatment
facility where the defendant is to be confined:
(A) State summary criminal history information.
(B) Any arrest reports prepared by the police department or other
law enforcement agency.
(C) Records of a finding of mental incompetence pursuant to this
chapter arising out of a complaint charging a felony offense
specified in Section 290 or a pending Section 1368 proceeding arising
out of a charge of a Section 290 offense.
(4) When the defendant is committed to a residential facility
pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
court makes the findings specified in clause (ii) or (iii) of
subparagraph (B) of paragraph (1) to assign the defendant to a
facility other than a state hospital or other secure treatment
facility, the court shall order that notice be given to the
appropriate law enforcement agency or agencies having local
jurisdiction at the site of the placement facility of a finding of
mental incompetence pursuant to this chapter arising out of a charge
of a Section 290 offense.
(5) (A) If the defendant is committed or transferred to a state
hospital or developmental center pursuant to this section, the court
may, upon receiving the written recommendation of the executive
director of the state hospital or developmental center and the
regional center director that the defendant be transferred to a
residential facility approved by the regional center director, order
the defendant transferred to that facility. If the defendant is
committed or transferred to a residential facility approved by the
regional center director, the court may, upon receiving the written
recommendation of the regional center director, transfer the
defendant to a state hospital or developmental center or to another
residential facility approved by the regional center director.
In the event of dismissal of the criminal charges before the
defendant recovers competence, the person shall be subject to the
applicable provisions of the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code) or to commitment or detention pursuant to a
petition filed pursuant to Section 6502 of the Welfare and
Institutions Code.
The defendant or prosecuting attorney may contest either kind of
order of transfer by filing a petition with the court for a hearing,
which shall be held if the court determines that sufficient grounds
exist. At the hearing, the prosecuting attorney or the defendant may
present evidence bearing on the order of transfer. The court shall
use the same standards as used in conducting probation revocation
hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the
court shall notify the defendant, the attorney of record for the
defendant, the prosecuting attorney, and the regional center director
or designee.
(B) If the defendant is committed to a state hospital or secure
treatment facility pursuant to clause (ii) or (iii) of subparagraph
(B) of paragraph (1) and is subsequently transferred to another
facility, copies of the documents specified in paragraph (3) shall be
taken with the defendant to the new facility. The transferring
facility shall also notify the appropriate law enforcement agency or
agencies having local jurisdiction at the site of the new facility
that the defendant is a person subject to clause (ii) or (iii) of
subparagraph (B) of paragraph (1).
(b) (1) Within 90 days of admission of a person committed pursuant
to subdivision (a), the executive director or designee of the state
hospital, developmental center, or other facility to which the
defendant is committed, or the outpatient supervisor where the
defendant is placed on outpatient status, shall make a written report
to the committing court and the regional center director or a
designee concerning the defendant's progress toward becoming mentally
competent. If the defendant has not become mentally competent, but
the report discloses a substantial likelihood the defendant will
become mentally competent within the next 90 days, the court may
order that the defendant shall remain in the state hospital,
developmental center, or other facility or on outpatient status for
that period of time. Within 150 days of an admission made pursuant to
subdivision (a) or if the defendant becomes mentally competent, the
executive director or designee of the hospital or developmental
center or person in charge of the facility or the outpatient
supervisor shall report to the court and the regional center director
or his or her designee regarding the defendant's progress toward
becoming mentally competent. The court shall provide to the
prosecutor and defense counsel copies of all reports under this
section. If the report indicates that there is no substantial
likelihood that the defendant has become mentally competent, the
committing court shall order the defendant to be returned to the
court for proceedings pursuant to paragraph (2) of subdivision (c).
The court shall transmit a copy of its order to the regional center
director or designee and to the executive director of the
developmental center.
(2) A defendant who has been committed or has been on outpatient
status for 18 months, and is still hospitalized or on outpatient
status, shall be returned to the committing court where a hearing
shall be held pursuant to the procedures set forth in Section 1369.
The court shall transmit a copy of its order to the regional center
director or designee and the executive director of the developmental
center.
(3) If it is determined by the court that no treatment for the
defendant's mental impairment is being conducted, the defendant shall
be returned to the committing court. A copy of this order shall be
sent to the regional center director or designee and to the executive
director of the developmental center.
(4) At each review by the court specified in this subdivision, the
court shall determine if the security level of housing and treatment
is appropriate and may make an order in accordance with its
determination.
(c) (1) (A) At the end of three years from the date of commitment
or a period of commitment equal to the maximum term of imprisonment
provided by law for the most serious offense charged in the
information, indictment, or misdemeanor complaint, whichever is
shorter, a defendant who has not become mentally competent shall be
returned to the committing court.
(B) The court shall notify the regional center director or
designee and the executive director of the developmental center of
that return and of any resulting court orders.
(2) In the event of dismissal of the criminal charges before the
defendant becomes mentally competent, the defendant shall be subject
to the applicable provisions of the Lanterman-Petris-Short Act (Part
1 (commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), or to commitment and detention pursuant to a
petition filed pursuant to Section 6502 of the Welfare and
Institutions Code. If it is found that the person is not subject to
commitment or detention pursuant to the applicable provision of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code) or to commitment or
detention pursuant to a petition filed pursuant to Section 6502 of
the Welfare and Institutions Code, the individual shall not be
subject to further confinement pursuant to this article and the
criminal action remains subject to dismissal pursuant to Section
1385. The court shall notify the regional center director and the
executive director of the developmental center of any dismissal.
(d) Notwithstanding any other provision of this section, the
criminal action remains subject to dismissal pursuant to Section
1385. If at any time prior to the maximum period of time allowed for
proceedings under this article, the regional center director
concludes that the behavior of the defendant related to the defendant'
s criminal offense has been eliminated during time spent in
court-ordered programs, the court may, upon recommendation of the
regional center director, dismiss the criminal charges. The court
shall transmit a copy of any order of dismissal to the regional
center director and to the executive director of the developmental
center.
(e) For the purpose of this section, "secure treatment facility"
shall not include, except for state mental hospitals, state
developmental centers, and correctional treatment facilities, a
facility licensed pursuant to Chapter 2 (commencing with Section
1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2
(commencing with Section 1569) of, Division 2 of the Health and
Safety Code, or a community board and care facility.
SEC. 157. Section 2602 of the Penal Code is amended to read:
2602. (a) Except as provided in subdivision (b), no person
sentenced to imprisonment or housed in a state prison shall be
administered any psychiatric medication without his or her prior
informed consent.
(b) If a psychiatrist determines that an inmate should be treated
with psychiatric medication, but the inmate does not consent, the
inmate may be involuntarily treated with the medication. Treatment
may be given on either a nonemergency basis as provided in
subdivision (c), or on an emergency or interim basis as provided in
subdivision (d).
(c) The Department of Corrections and Rehabilitation may seek to
initiate involuntary medication on a nonemergency basis only if all
of the following conditions have been met:
(1) A psychiatrist has determined that the inmate has a serious
mental disorder.
(2) A psychiatrist has determined that, as a result of that mental
disorder, the inmate is gravely disabled and does not have the
capacity to refuse treatment with psychiatric medications or is a
danger to self or others.
(3) A psychiatrist has prescribed one or more psychiatric
medications for the treatment of the inmate's disorder, has
considered the risks, benefits, and treatment alternatives to
involuntary medication, and has determined that the treatment
alternatives to involuntary medication are unlikely to meet the needs
of the patient.
(4) The inmate has been advised of the risks and benefits of, and
treatment alternatives to, the psychiatric medication and refuses or
is unable to consent to the administration of the medication.
(5) The inmate is provided a hearing before an administrative law
judge.
(6) The inmate is provided counsel at least 21 days prior to the
hearing, unless emergency or interim medication is being administered
pursuant to subdivision (d), in which case the inmate would receive
expedited access to counsel. The hearing shall be held not more than
30 days after the filing of the notice with the Office of
Administrative Hearings, unless counsel for the inmate agrees to
extend the date of the hearing.
(7) The inmate and counsel are provided with written notice of the
hearing at least 21 days prior to the hearing, unless emergency or
interim medication is being administered pursuant to subdivision (d),
in which case the inmate would receive an expedited hearing. The
written notice shall do all of the following:
(A) Set forth the diagnosis, the factual basis for the diagnosis,
the basis upon which psychiatric medication is recommended, the
expected benefits of the medication, any potential side effects and
risks to the inmate from the medication, and any alternatives to
treatment with the medication.
(B) Advise the inmate of the right to be present at the hearing,
the right to be represented by counsel at all stages of the
proceedings, the right to present evidence, and the right to
cross-examine witnesses. Counsel for the inmate shall have access to
all medical records and files of the inmate, but shall not have
access to the confidential section of the inmate's central file which
contains materials unrelated to medical treatment.
(C) Inform the inmate of his or her right to contest the finding
of an administrative law judge authorizing treatment with involuntary
medication by filing a petition for writ of administrative mandamus
pursuant to Section 1094.5 of the Code of Civil Procedure, and his or
her right to file a petition for writ of habeas corpus with respect
to any decision of the Department of Corrections and Rehabilitation
to continue treatment with involuntary medication after the
administrative law judge has authorized treatment with involuntary
medication.
(8) An administrative law judge determines by clear and convincing
evidence that the inmate has a mental illness or disorder, that as a
result of that illness the inmate is gravely disabled and lacks the
capacity to consent to or refuse treatment with psychiatric
medications or is a danger to self or others if not medicated, that
there is no less intrusive alternative to involuntary medication, and
that the medication is in the inmate's best medical interest.
Failure of the department to provide timely or adequate notice
pursuant to this section shall be excused only upon a showing of good
cause and the absence of prejudice to the inmate. In making this
determination, the administrative law judge may consider factors,
including, but not limited to, the ability of the inmate's counsel to
adequately prepare the case and to confer with the inmate, the
continuity of care, and, if applicable, the need for protection of
the inmate or institutional staff that would be compromised by a
procedural default.
(9) The historical course of the inmate's mental disorder, as
determined by available relevant information about the course of the
inmate's mental disorder, shall be considered when it has direct
bearing on the determination of whether the inmate is a danger to
self or others, or is gravely disabled and incompetent to refuse
medication as the result of a mental disorder.
(10) An inmate is entitled to file one motion for reconsideration
following a determination that he or she may receive involuntary
medication, and may seek a hearing to present new evidence, upon good
cause shown.
(d) This section does not prohibit a physician from taking
appropriate action in an emergency. An emergency exists when there is
a sudden and marked change in an inmate's mental condition so that
action is immediately necessary for the preservation of life or the
prevention of serious bodily harm to the inmate or others, and it is
impractical, due to the seriousness of the emergency, to first obtain
informed consent. If psychiatric medication is administered during
an emergency, the medication shall only be that which is required to
treat the emergency condition and shall be administered for only so
long as the emergency continues to exist. If the Department of
Corrections and Rehabilitation's clinicians identify a situation that
jeopardizes the inmate's health or well-being as the result of a
serious mental illness, and necessitates the continuation of
medication beyond the initial 72 hours pending the full mental health
hearing, the department shall give notice to the inmate and his or
her counsel of the department's intention to seek an ex parte order
to allow the continuance of medication pending the full hearing. The
notice shall be served upon the inmate and counsel at the same time
the inmate is given the written notice that the involuntary
medication proceedings are being initiated and is appointed counsel
as provided in subdivision (c). The order may be issued ex parte upon
a showing that in the absence of the medication the emergency
conditions are likely to recur. The request for an ex parte order
shall be supported by an affidavit from the psychiatrist showing
specific facts. The inmate and the inmate's appointed counsel shall
have two business days to respond to the department's ex parte
request to continue interim medication, and may present facts
supported by an affidavit in opposition to the department's request.
An administrative law judge shall review the ex parte request and
shall have three business days to determine the merits of the
department's request for an ex parte order. If an order is issued,
the psychiatrist may continue the administration of the medication
until the hearing described in paragraph (5) of subdivision (c) is
held.
(1) The Department of Corrections and Rehabilitation shall file
with the Office of Administrative Hearings, and serve on the inmate
and his or her counsel, the written notice described in paragraph (7)
of subdivision (c) within 72 hours of commencing medication pursuant
to this subdivision, unless either of the following occurs:
(A) The inmate gives informed consent to continue the medication.
(B) A psychiatrist determines that the psychiatric medication is
not necessary and administration of the medication is discontinued.
(2) If medication is being administered pursuant to this
subdivision, the hearing described in paragraph (5) of subdivision
(c) shall commence within 21 days of the filing and service of the
notice, unless counsel for an inmate agrees to a different period of
time.
(3) With the exception of the timeline provisions specified in
paragraphs (1) and (2) for providing notice and commencement of the
hearing pursuant to the conditions specified in this subdivision, the
inmate shall be entitled to and be given the same due process
protections as specified in subdivision (c). The department shall
prove the same elements supporting the involuntary administration of
psychiatric medication and the administrative law judge shall be
required to make the same findings described in subdivision (c).
(e) The determination that an inmate may receive involuntary
medication shall be valid for one year from the date of the
determination, regardless of whether the inmate subsequently gives
his or her informed consent.
(f) If a determination has been made to involuntarily medicate an
inmate pursuant to subdivision (c) or (d), the medication shall be
discontinued one year after the date of that determination, unless
the inmate gives his or her informed consent to the administration of
the medication, or unless a new determination is made pursuant to
the procedures set forth in subdivision (g).
(g) To renew an existing order allowing involuntary medication,
the department shall file with the Office of Administrative Hearings,
and shall serve on the inmate and his or her counsel, a written
notice indicating the department's intent to renew the existing
involuntary medication order.
(1) The request to renew the order shall be filed and served no
later than 21 days prior to the expiration of the current order
authorizing involuntary medication.
(2) The inmate shall be entitled to, and shall be given, the same
due process protections as specified in subdivision (c).
(3) Renewal orders shall be valid for one year from the date of
the hearing.
(4) An order renewing an existing order shall be granted based on
clear and convincing evidence that the inmate has a serious mental
disorder that requires treatment with psychiatric medication, and
that, but for the medication, the inmate would revert to the behavior
that was the basis for the prior order authorizing involuntary
medication, coupled with evidence that the inmate lacks insight
regarding his or her need for the medication, such that it is
unlikely that the inmate would be able to manage his or her own
medication and treatment regimen. No new acts need be alleged or
proven.
(5) If the department wishes to add a basis to an existing order,
the department shall give the inmate and the inmate's counsel notice
in advance of the hearing via a renewal notice or supplemental
petition. Within the renewal notice or supplemental petition, the
department shall specify what additional basis is being alleged and
what qualifying conduct within the past year supports that additional
basis. The department shall prove the additional basis and conduct
by clear and convincing evidence at a hearing as specified in
subdivision (c).
(6) The hearing on any petition to renew an order for involuntary
medication shall be conducted prior to the expiration of the current
order.
(h) Pursuant to Section 5058, the Department of Corrections and
Rehabilitation shall adopt regulations to fully implement this
section.
(i) In the event of a conflict between the provisions of this
section and the Administrative Procedure Act (Chapter 4.5 (commencing
with Section 11400) of Part 1 of Division 3 of the Government Code),
this section shall control.
SEC. 158. Section 3000.08 of the Penal Code, as amended by Section
35 of Chapter 43 of the Statutes of 2012, is amended to read:
3000.08. (a) Persons released from state prison prior to or on or
after July 1, 2013, after serving a prison term or, whose sentence
has been deemed served pursuant
to Section 2900.5, for any of the following crimes shall be
subject to parole supervision by the Department of Corrections and
Rehabilitation and the jurisdiction of the court in the county where
the parolee is released or resides for the purpose of hearing
petitions to revoke parole and impose a term of custody:
(1) A serious felony as described in subdivision (c) of Section
1192.7.
(2) A violent felony as described in subdivision (c) of Section
667.5.
(3) A crime for which the person was sentenced pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12.
(4) Any crime where the person eligible for release from prison is
classified as a High Risk Sex Offender.
(5) Any crime where the person is required, as a condition of
parole, to undergo treatment by the State Department of State
Hospitals pursuant to Section 2962.
(b) Notwithstanding any other provision of law, all other
offenders released from prison shall be placed on postrelease
supervision pursuant to Title 2.05 (commencing with Section 3450).
(c) At any time during the period of parole of a person subject to
this section, if any parole agent or peace officer has probable
cause to believe that the parolee is violating any term or condition
of his or her parole, the agent or officer may, without warrant or
other process and at any time until the final disposition of the
case, arrest the person and bring him or her before the court, or the
court may, in its discretion, issue a warrant for that person's
arrest pursuant to Section 1203.2.
(d) Upon review of the alleged violation and a finding of good
cause that the parolee has committed a violation of law or violated
his or her conditions of parole, the supervising parole agency may
impose additional and appropriate conditions of supervision,
including rehabilitation and treatment services and appropriate
incentives for compliance, and impose immediate, structured, and
intermediate sanctions for parole violations, including flash
incarceration in a county jail. Periods of "flash incarceration," as
defined in subdivision (e), are encouraged as one method of
punishment for violations of a parolee's conditions of parole.
Nothing in this section is intended to preclude referrals to a
reentry court pursuant to Section 3015.
(e) "Flash incarceration" is a period of detention in a
county jail due to a violation of a parolee's conditions of parole.
The length of the detention period can range between one and 10
consecutive days. Shorter, but if necessary more frequent, periods of
detention for violations of a parolee's conditions of parole shall
appropriately punish a parolee while preventing the disruption in a
work or home establishment that typically arises from longer periods
of detention.
(f) If the supervising parole agency has determined, following
application of its assessment processes, that intermediate sanctions
up to and including flash incarceration are not appropriate, the
supervising parole agency shall, pursuant to Section 1203.2, petition
the court in the county in which the parolee is being supervised to
revoke parole. At any point during the process initiated pursuant to
this section, a parolee may waive, in writing, his or her right to
counsel, admit the parole violation, waive a court hearing, and
accept the proposed parole modification or revocation. The petition
shall include a written report that contains additional information
regarding the petition, including the relevant terms and conditions
of parole, the circumstances of the alleged underlying violation, the
history and background of the parolee, and any recommendations. The
Judicial Council shall adopt forms and rules of court to establish
uniform statewide procedures to implement this subdivision, including
the minimum contents of supervision agency reports. Upon a finding
that the person has violated the conditions of parole, the court
shall have authority to do any of the following:
(1) Return the person to parole supervision with modifications of
conditions, if appropriate, including a period of incarceration in a
county jail.
(2) Revoke parole and order the person to confinement in a county
jail.
(3) Refer the person to a reentry court pursuant to Section 3015
or other evidence-based program in the court's discretion.
(g) Confinement pursuant to paragraphs (1) and (2) of subdivision
(f) shall not exceed a period of 180 days in a county jail.
(h) Notwithstanding any other provision of law, in any case where
Section 3000.1 or paragraph (4) of subdivision (b) of Section 3000
applies to a person who is on parole and the court determines that
the person has committed a violation of law or violated his or her
conditions of parole, the person on parole shall be remanded to the
custody of the Department of Corrections and Rehabilitation and the
jurisdiction of the Board of Parole Hearings for the purpose of
future parole consideration.
(i) Notwithstanding subdivision (a), any of the following persons
released from state prison shall be subject to the jurisdiction of,
and parole supervision by, the Department of Corrections and
Rehabilitation for a period of parole up to three years or the parole
term the person was subject to at the time of the commission of the
offense, whichever is greater:
(1) The person is required to register as a sex offender pursuant
to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1,
and was subject to a period of parole exceeding three years at the
time he or she committed a felony for which he or she was convicted
and subsequently sentenced to state prison.
(2) The person was subject to parole for life pursuant to Section
3000.1 at the time of the commission of the offense that resulted in
a conviction and state prison sentence.
(j) Parolees subject to this section who have a pending
adjudication for a parole violation on July 1, 2013, shall be subject
to the jurisdiction of the Board of Parole Hearings. Parole
revocation proceedings conducted by the Board of Parole Hearings
prior to July 1, 2013, if reopened on or after July 1, 2013, shall be
subject to the jurisdiction of the Board of Parole Hearings.
(k) Except as described in subdivision (c), any person who is
convicted of a felony that requires community supervision and who
still has a period of state parole to serve shall discharge from
state parole at the time of release to community supervision.
( l ) This section shall become operative on July 1,
2013.
SEC. 159. Section 3060.7 of the Penal Code, as added by Section 48
of Chapter 43 of the Statutes of 2012, is amended to read:
3060.7. (a) (1) Notwithstanding any other law, the supervising
parole agency shall notify any person released on parole or
postrelease community supervision pursuant to Title 2.05 (commencing
with Section 3450) of Part 3 who has been classified by the
Department of Corrections and Rehabilitation as included within the
highest control or risk classification that he or she shall be
required to report to his or her assigned parole officer or
designated local supervising agency within two days of release from
the state prison.
(2) This section shall not prohibit the supervising parole agency
or local supervising agency from requiring any person released on
parole or postrelease community supervision to report to his or her
assigned parole officer within a time period that is less than two
days from the time of release.
(b) The supervising parole agency, within 24 hours of a parolee's
failure to report as required by this section, shall issue a written
order suspending the parole of that parolee, pending a hearing before
the Board of Parole Hearings or the court, as applicable, and shall
request that a warrant be issued for the parolee's arrest pursuant to
subdivision (c) of Section 3000.08.
(c) Upon the issuance of an arrest warrant for a parolee who has
been classified within the highest control or risk classification,
the assigned parole officer shall continue to carry the parolee on
his or her regular caseload and shall continue to search for the
parolee's whereabouts.
(d) With regard to any inmate subject to this section, the
Department of Corrections and Rehabilitation shall release an inmate
sentenced prior to June 27, 2012, one or two days before his or her
scheduled release date if the inmate's release date falls on the day
before a holiday or weekend.
(e) With regard to any inmate subject to this section, the
Department of Corrections and Rehabilitation shall release an inmate
one or two days after his or her scheduled release date if the
release date falls on the day before a holiday or weekend.
(f) This section shall become operative on July 1, 2013.
SEC. 160. Section 4024.2 of the Penal Code is amended to read:
4024.2. (a) Notwithstanding any other law, the board of
supervisors of any county may authorize the sheriff or other official
in charge of county correctional facilities to offer a voluntary
program under which any person committed to the facility may
participate in a work release program pursuant to criteria described
in subdivision (b), in which one day of participation will be in lieu
of one day of confinement.
(b) The criteria for a work release program are the following:
(1) The work release program shall consist of any of the
following:
(A) Manual labor to improve or maintain levees or public
facilities, including, but not limited to, streets, parks, and
schools.
(B) Manual labor in support of nonprofit organizations, as
approved by the sheriff or other official in charge of the
correctional facilities. As a condition of assigning participants of
a work release program to perform manual labor in support of
nonprofit organizations pursuant to this section, the board of
supervisors shall obtain workers' compensation insurance which shall
be adequate to cover work-related injuries incurred by those
participants, in accordance with Section 3363.5 of the Labor Code.
(C) Performance of graffiti cleanup for local governmental
entities, including participation in a graffiti abatement program as
defined in subdivision (f) of Section 594, as approved by the sheriff
or other official in charge of the correctional facilities.
(D) Performance of weed and rubbish abatement on public and
private property pursuant to Chapter 13 (commencing with Section
39501) of Part 2 of Division 3 of Title 4 of the Government Code, or
Part 5 (commencing with Section 14875) or Part 6 (commencing with
Section 14930) of Division 12 of the Health and Safety Code, as
approved by the sheriff or other official in charge of the
correctional facilities.
(E) Performance of house repairs or yard services for senior
citizens and the performance of repairs to senior centers through
contact with local senior service organizations, as approved by the
sheriff or other official in charge of the correctional facilities.
Where a work release participant has been assigned to this task, the
sheriff or other official shall agree upon in advance with the senior
service organization about the type of services to be rendered by
the participant and the extent of contact permitted between the
recipients of these services and the participant.
(F) Any person who is not able to perform manual labor as
specified in this paragraph because of a medical condition, physical
disability, or age, may participate in a work release program
involving any other type of public sector work that is designated and
approved by the sheriff or other official in charge of county
correctional facilities.
(2) The sheriff or other official may permit a participant in a
work release program to receive work release credit for documented
participation in educational programs, vocational programs, substance
abuse programs, life skills programs, or parenting programs.
Participation in these programs shall be considered in lieu of
performing labor in a work release program, with eight work-related
hours to equal one day of custody credit.
(3) The work release program shall be under the direction of a
responsible person appointed by the sheriff or other official in
charge.
(4) The hours of labor to be performed pursuant to this section
shall be uniform for all persons committed to a facility in a county
and may be determined by the sheriff or other official in charge of
county correctional facilities, and each day shall be a minimum of 8
and a maximum of 10 hours, in accordance with the normal working
hours of county employees assigned to supervise the programs.
However, reasonable accommodation may be made for participation in a
program under paragraph (2).
As used in this section, "nonprofit organizations" means
organizations established or operated for the benefit of the public
or in support of a significant public interest, as set forth in
Section 501(c)(3) of the Internal Revenue Code. Organizations
established or operated for the primary purpose of benefiting their
own memberships are excluded.
(c) The board of supervisors may prescribe reasonable rules and
regulations under which a work release program is operated and may
provide that participants wear clothing of a distinctive character
while performing the work. As a condition of participating in a work
release program, a person shall give his or her promise to appear for
work or assigned activity by signing a notice to appear before the
sheriff or at the education, vocational, or substance abuse program
at a time and place specified in the notice and shall sign an
agreement that the sheriff may immediately retake the person into
custody to serve the balance of his or her sentence if the person
fails to appear for the program at the time and place agreed to, does
not perform the work or activity assigned, or for any other reason
is no longer a fit subject for release under this section. A copy of
the notice shall be delivered to the person and a copy shall be
retained by the sheriff. Any person who willfully violates his or her
written promise to appear at the time and place specified in the
notice is guilty of a misdemeanor.
Whenever a peace officer has reasonable cause to believe the
person has failed to appear at the time and place specified in the
notice or fails to appear or work at the time and place agreed to or
has failed to perform the work assigned, the peace officer may,
without a warrant, retake the person into custody, or the court may
issue an arrest warrant for the retaking of the person into custody,
to complete the remainder of the original sentence. A peace officer
may not retake a person into custody under this subdivision, without
a warrant for arrest, unless the officer has a written order to do
so, signed by the sheriff or other person in charge of the program,
that describes with particularity the person to be retaken.
(d) This section does not require the sheriff or other official in
charge to assign a person to a program pursuant to this section if
it appears from the record that the person has refused to
satisfactorily perform as assigned or has not satisfactorily complied
with the reasonable rules and regulations governing the assignment
or any other order of the court.
A person shall be eligible for work release under this section
only if the sheriff or other official in charge concludes that the
person is a fit subject therefor.
(e) The board of supervisors may prescribe a program
administrative fee, not to exceed the pro rata cost of
administration, to be paid by each person according to his or her
ability to pay.
SEC. 161. Section 4115.55 of the Penal Code is amended to read:
4115.55. (a) Upon agreement with the sheriff or director of the
county department of corrections, a board of supervisors may enter
into a contract with other public agencies to provide housing for
inmates sentenced to a county jail in community
correctional facilities created pursuant to Article 1.5 (commencing
with Section 2910) of Chapter 7 of Title 1 or Chapter 9.5 (commencing
with Section 6250) of Title 7.
(b) Facilities operated pursuant to agreements entered into under
subdivision (a) shall comply with the minimum standards for local
detention facilities as provided by Chapter 1 (commencing with
Section 3000) of Division 3 of Title 15 of the California Code of
Regulations.
SEC. 162. Section 5072 of the Penal Code is amended to read:
5072. (a) Notwithstanding any other provision of law, the
Department of Corrections and Rehabilitation and the State Department
of Health Care Services may develop a process to maximize federal
financial participation for the provision of acute inpatient hospital
services rendered to individuals who, but for their institutional
status as inmates, are otherwise eligible for Medi-Cal pursuant to
Chapter 7 (commencing with Section 14000) of Part 3 of Division 9 of
the Welfare and Institutions Code or a Low Income Health Program
(LIHP) pursuant to Part 3.6 (commencing with Section 15909) of
Division 9 of the Welfare and Institutions Code.
(b) Federal reimbursement for acute inpatient hospital services
for inmates enrolled in Medi-Cal shall occur through the State
Department of Health Care Services and federal reimbursement for
acute inpatient hospital services for inmates not enrolled in
Medi-Cal but who are eligible for a LIHP shall occur through a county
LIHP.
(c) (1) The Secretary of the Department of Corrections and
Rehabilitation, in conjunction with the State Department of Health
Care Services, shall develop a process to claim federal financial
participation and to reimburse the Department of Corrections and
Rehabilitation for the federal share of the allowable Medicaid cost
provision of acute inpatient hospital services rendered to inmates
according to this section and for any administrative costs incurred
in support of those services.
(2) Public or community hospitals shall invoice the Department of
Corrections and Rehabilitation to obtain reimbursement for acute
inpatient hospital services in accordance with contracted rates of
reimbursement, or if no contract is in place, the rates pursuant to
Section 5023.5. The Department of Corrections and Rehabilitation
shall reimburse a public or community hospital for the delivery of
acute inpatient hospital services rendered to an inmate pursuant to
this section. For individuals eligible for Medi-Cal pursuant to this
section, the Department of Corrections and Rehabilitation shall
submit a quarterly invoice to the State Department of Health Care
Services for claiming federal participation at the Medi-Cal rate for
acute inpatient hospital services. For enrollees in the LIHP, the
Department of Corrections and Rehabilitation shall submit a quarterly
invoice to the county of last legal residence pursuant to Section
14053.7 of the Welfare and Institutions Code. The county shall submit
the invoice to the State Department of Health Care Services for
claiming federal financial participation for acute inpatient hospital
services for individuals made eligible pursuant to this section,
pursuant to Section 14053.7 of the Welfare and Institutions Code, and
pursuant to the process developed in subdivision (b). The State
Department of Health Care Services shall claim federal participation
for eligible services for LIHP enrolled inmates at the rate paid by
the Department of Corrections and Rehabilitation. The State
Department of Health Care Services and counties shall remit funds
received for federal participation to the Department of Corrections
and Rehabilitation for allowable costs incurred as a result of
delivering acute inpatient hospital services allowable under this
section.
(3) The county LIHPs shall not experience any additional net
expenditures of county funds due to the provision of services under
this section.
(4) The Department of Corrections and Rehabilitation shall
reimburse the State Department of Health Care Services and counties
for administrative costs that are not reimbursed by the federal
government.
(5) The Department of Corrections and Rehabilitation shall
reimburse the State Department of Health Care Services for any
disallowance that is required to be returned to the Centers for
Medicare and Medicaid Services for any litigation costs incurred due
to the implementation of this section.
(d) (1) The state shall indemnify and hold harmless participating
entities that operate a LIHP, including all counties, and all
counties that operate in a consortium that participates as a LIHP,
against any and all losses, including, but not limited to, claims,
demands, liabilities, court costs, judgments, or obligations, due to
the implementation of this section as directed by the secretary and
the State Department of Health Care Services.
(2) The State Department of Health Care Services may at its
discretion require a county, as a condition of participation as a
LIHP, to enroll an eligible inmate into its LIHP if the county is the
inmate's county of last legal residence.
(3) The county LIHPs shall be held harmless by the state for any
disallowance or deferral if federal action is taken due to the
implementation of this section in accord with the state's policies,
directions, and requirements.
(e) (1) The Department of Corrections and Rehabilitation, in
conjunction with the State Department of Health Care Services, shall
develop a process to facilitate eligibility determinations for
individuals who may be eligible for Medi-Cal or a LIHP pursuant to
this section and Section 14053.7 of the Welfare and Institutions
Code.
(2) The Department of Corrections and Rehabilitation shall assist
inmates in completing either the Medi-Cal or LIHP application as
appropriate and shall forward that application to the State
Department of Health Care Services for processing.
(3) Notwithstanding any other state law, and only to the extent
that federal law allows and federal financial participation is
available, for the limited purpose of implementing this section, the
department or its designee is authorized to act on behalf of an
inmate for purposes of applying for or determinations of Medi-Cal or
LIHP eligibility.
(f) (1) This section does not restrict or limit the eligibility or
alter county responsibility for payment of any service delivered to
a parolee who has been released from detention or incarceration and
now resides in a county that participates in the LIHP. If otherwise
eligible for the county's LIHP, the LIHP shall enroll the parolee.
(2) Notwithstanding paragraph (1), at the option of the state, for
enrolled parolees who have been released from detention or
incarceration and now reside in a county that participates in a LIHP,
the LIHP shall reimburse providers for the delivery of services
which are otherwise the responsibility of the state to provide.
Payment for these medical services, including both the state and
federal shares of reimbursement, shall be included as part of the
reimbursement process described in paragraph (1) of subdivision (c).
(3) Enrollment of individuals in a LIHP under this subdivision
shall be subject to any enrollment limitations described in
subdivision (h) of Section 15910 of the Welfare and Institutions
Code.
(g) The department shall be responsible to the LIHP for the
nonfederal share of any reimbursement made for the provision of acute
inpatient hospital services rendered to inmates pursuant to this
section.
(h) Reimbursement pursuant to this section shall be limited to
those acute inpatient hospital services for which federal financial
participation pursuant to Title XIX of the federal Social Security
Act is allowed.
(i) This section shall have no force or effect if there is a final
judicial determination made by any state or federal court that is
not appealed, or by a court of appellate jurisdiction that is not
further appealed, in any action by any party, or a final
determination by the administrator of the federal Centers for
Medicare and Medicaid Services, that limits or affects the department'
s authority to select the hospitals used to provide inpatient
hospital services to inmates.
(j) It is the intent of the Legislature that the implementation of
this section will result in state General Fund savings for the
funding of acute inpatient hospital services provided to inmates
along with any related administrative costs.
(k) Any agreements entered into under this section for Medi-Cal or
a LIHP to provide for reimbursement of acute inpatient hospital
services and administrative expenditures as described in subdivision
(c) shall not be subject to Part 2 (commencing with Section 10100) of
Division 2 of the Public Contract Code.
(l) This section shall be implemented in a manner that is
consistent with federal Medicaid law and regulations. The Director of
the State Department of Health Care Services shall seek any federal
approvals necessary for the implementation of this section. This
section shall be implemented only when and to the extent that any
necessary federal approval is obtained, and only to the extent that
existing levels of federal financial participation are not otherwise
jeopardized.
(m) To the extent that the Director of the State Department of
Health Care Services determines that existing levels of federal
financial participation are jeopardized, this section shall no longer
be implemented.
(n) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the State
Department of Health Care Services may, without taking any further
regulatory action, implement this section by means of all-county
letters, provider bulletins, facility letters, or similar
instructions.
(o) For purposes of this section, the following terms have the
following meanings:
(1) The term "county of last legal residence" means the county in
which the inmate resided at the time of arrest that resulted in
conviction and incarceration in a state prison facility.
(2) The term "inmate" means an adult who is involuntarily residing
in a state prison facility operated, administered, or regulated,
directly or indirectly, by the department.
(3) During the existence of the receivership established in United
States District Court for the Northern District of California, Case
No. CO1-1351 C01-1351 TEH, Plata v.
Schwarzenegger, references in this section to the "secretary" shall
mean the receiver appointed in that action, who shall implement
portions of this section that would otherwise be within the secretary'
s responsibility.
SEC. 163. Section 6030 of the Penal Code is amended to read:
6030. (a) The Board of State and Community Corrections shall
establish minimum standards for local correctional facilities. The
board shall review
those standards biennially and make any appropriate revisions.
(b) The standards shall include, but not be limited to, the
following areas: health and sanitary conditions, fire and life
safety, security, rehabilitation programs, recreation, treatment of
persons confined in local correctional facilities, and personnel
training.
(c) The standards shall require that at least one person on duty
at the facility is knowledgeable in the area of fire and life safety
procedures.
(d) The standards shall also include requirements relating to the
acquisition, storage, labeling, packaging, and dispensing of drugs.
(e) The standards shall require that inmates who are received by
the facility while they are pregnant be notified, orally or in
writing, of and provided all of the following:
(1) A balanced, nutritious diet approved by a doctor.
(2) Prenatal and post partum information and health care,
including, but not limited to, access to necessary vitamins as
recommended by a doctor.
(3) Information pertaining to childbirth education and infant
care.
(4) A dental cleaning while in a state facility.
(f) The standards shall provide that a woman known to be pregnant
or in recovery after delivery shall not be restrained, except as
provided in Section 3407. The board shall develop standards regarding
the restraint of pregnant women at the next biennial review of the
standards after the enactment of the act amending this subdivision
and shall review the individual facility's compliance with the
standards.
(g) In establishing minimum standards, the board shall seek the
advice of the following:
(1) For health and sanitary conditions:
The State Department of Public Health, physicians, psychiatrists,
local public health officials, and other interested persons.
(2) For fire and life safety:
The State Fire Marshal, local fire officials, and other interested
persons.
(3) For security, rehabilitation programs, recreation, and
treatment of persons confined in correctional facilities:
The Department of Corrections and Rehabilitation, state and local
juvenile justice commissions, state and local correctional officials,
experts in criminology and penology, and other interested persons.
(4) For personnel training:
The Commission on Peace Officer Standards and Training,
psychiatrists, experts in criminology and penology, the Department of
Corrections and Rehabilitation, state and local correctional
officials, and other interested persons.
(5) For female inmates and pregnant inmates in local adult and
juvenile facilities:
The California State Sheriffs' Association and Chief Probation
Officers' Association of California, and other interested persons.
SEC. 164. Section 11165.7 of the Penal Code is amended to read:
11165.7. (a) As used in this article, "mandated reporter" is
defined as any of the following:
(1) A teacher.
(2) An instructional aide.
(3) A teacher's aide or teacher's assistant employed by a public
or private school.
(4) A classified employee of a public school.
(5) An administrative officer or supervisor of child welfare and
attendance, or a certificated pupil personnel employee of a public or
private school.
(6) An administrator of a public or private day camp.
(7) An administrator or employee of a public or private youth
center, youth recreation program, or youth organization.
(8) An administrator or employee of a public or private
organization whose duties require direct contact and supervision of
children.
(9) An employee of a county office of education or the State
Department of Education whose duties bring the employee into contact
with children on a regular basis.
(10) A licensee, an administrator, or an employee of a licensed
community care or child day care facility.
(11) A Head Start program teacher.
(12) A licensing worker or licensing evaluator employed by a
licensing agency, as defined in Section 11165.11.
(13) A public assistance worker.
(14) An employee of a child care institution, including, but not
limited to, foster parents, group home personnel, and personnel of
residential care facilities.
(15) A social worker, probation officer, or parole officer.
(16) An employee of a school district police or security
department.
(17) A person who is an administrator or presenter of, or a
counselor in, a child abuse prevention program in a public or private
school.
(18) A district attorney investigator, inspector, or local child
support agency caseworker, unless the investigator, inspector, or
caseworker is working with an attorney appointed pursuant to Section
317 of the Welfare and Institutions Code to represent a minor.
(19) A peace officer, as defined in Chapter 4.5 (commencing with
Section 830) of Title 3 of Part 2, who is not otherwise described in
this section.
(20) A firefighter, except for volunteer firefighters.
(21) A physician and surgeon, psychiatrist, psychologist, dentist,
resident, intern, podiatrist, chiropractor, licensed nurse, dental
hygienist, optometrist, marriage and family therapist, clinical
social worker, professional clinical counselor, or any other person
who is currently licensed under Division 2 (commencing with Section
500) of the Business and Professions Code.
(22) An emergency medical technician I or II, paramedic, or other
person certified pursuant to Division 2.5 (commencing with Section
1797) of the Health and Safety Code.
(23) A psychological assistant registered pursuant to Section 2913
of the Business and Professions Code.
(24) A marriage and family therapist trainee, as defined in
subdivision (c) of Section 4980.03 of the Business and Professions
Code.
(25) An unlicensed marriage and family therapist intern registered
under Section 4980.44 of the Business and Professions Code.
(26) A state or county public health employee who treats a minor
for venereal disease or any other condition.
(27) A coroner.
(28) A medical examiner or other person who performs autopsies.
(29) A commercial film and photographic print or image processor
as specified in subdivision (e) of Section 11166. As used in this
article, "commercial film and photographic print or image processor"
means a person who develops exposed photographic film into negatives,
slides, or prints, or who makes prints from negatives or slides, or
who prepares, publishes, produces, develops, duplicates, or prints
any representation of information, data, or an image, including, but
not limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware, computer
software, computer floppy disk, data storage medium, CD-ROM,
computer-generated equipment, or computer-generated image, for
compensation. The term includes any employee of that person; it does
not include a person who develops film or makes prints or images for
a public agency.
(30) A child visitation monitor. As used in this article, "child
visitation monitor" means a person who, for financial compensation,
acts as a monitor of a visit between a child and another person when
the monitoring of that visit has been ordered by a court of law.
(31) An animal control officer or humane society officer. For the
purposes of this article, the following terms have the following
meanings:
(A) "Animal control officer" means a person employed by a city,
county, or city and county for the purpose of enforcing animal
control laws or regulations.
(B) "Humane society officer" means a person appointed or employed
by a public or private entity as a humane officer who is qualified
pursuant to Section 14502 or 14503 of the Corporations Code.
(32) A clergy member, as specified in subdivision (d) of Section
11166. As used in this article, "clergy member" means a priest,
minister, rabbi, religious practitioner, or similar functionary of a
church, temple, or recognized denomination or organization.
(33) Any custodian of records of a clergy member, as specified in
this section and subdivision (d) of Section 11166.
(34) An employee of any police department, county sheriff's
department, county probation department, or county welfare
department.
(35) An employee or volunteer of a Court Appointed Special
Advocate program, as defined in Rule 5.655 of the California Rules of
Court.
(36) A custodial officer, as defined in Section 831.5.
(37) A person providing services to a minor child under Section
12300 or 12300.1 of the Welfare and Institutions Code.
(38) An alcohol and drug counselor. As used in this article, an
"alcohol and drug counselor" is a person providing counseling,
therapy, or other clinical services for a state licensed or certified
drug, alcohol, or drug and alcohol treatment program. However,
alcohol or drug abuse, or both alcohol and drug abuse, is not, in and
of itself, a sufficient basis for reporting child abuse or neglect.
(39) A clinical counselor trainee, as defined in subdivision (g)
of Section 4999.12 of the Business and Professions Code.
(40) A clinical counselor intern registered under Section 4999.42
of the Business and Professions Code.
(41) An employee or administrator of a public or private
postsecondary institution, whose duties bring the administrator or
employee into contact with children on a regular basis, or who
supervises those whose duties bring the administrator or employee
into contact with children on a regular basis, as to child abuse or
neglect occurring on that institution's premises or at an official
activity of, or program conducted by, the institution. Nothing in
this paragraph shall be construed as altering the lawyer-client
privilege as set forth in Article 3 (commencing with Section 950) of
Chapter 4 of Division 8 of the Evidence Code.
(42) An athletic coach, athletic administrator, or athletic
director employed by any public or private school that provides any
combination of instruction for kindergarten, or grades 1 to 12,
inclusive.
(43) (A) A commercial computer technician as specified in
subdivision (e) of Section 11166. As used in this article,
"commercial computer technician" means a person who works for a
company that is in the business of repairing, installing, or
otherwise servicing a computer or computer component, including, but
not limited to, a computer part, device, memory storage or recording
mechanism, auxiliary storage recording or memory capacity, or any
other material relating to the operation and maintenance of a
computer or computer network system, for a fee. An employer who
provides an electronic communications service or a remote computing
service to the public shall be deemed to comply with this article if
that employer complies with Section 2258A of Title 18 of the United
States Code.
(B) An employer of a commercial computer technician may implement
internal procedures for facilitating reporting consistent with this
article. These procedures may direct employees who are mandated
reporters under this paragraph to report materials described in
subdivision (e) of Section 11166 to an employee who is designated by
the employer to receive the reports. An employee who is designated to
receive reports under this subparagraph shall be a commercial
computer technician for purposes of this article. A commercial
computer technician who makes a report to the designated employee
pursuant to this subparagraph shall be deemed to have complied with
the requirements of this article and shall be subject to the
protections afforded to mandated reporters, including, but not
limited to, those protections afforded by Section 11172.
(44) Any athletic coach, including, but not limited to, an
assistant coach or a graduate assistant involved in coaching, at
public or private postsecondary institutions.
(b) Except as provided in paragraph (35) of subdivision (a),
volunteers of public or private organizations whose duties require
direct contact with and supervision of children are not mandated
reporters but are encouraged to obtain training in the identification
and reporting of child abuse and neglect and are further encouraged
to report known or suspected instances of child abuse or neglect to
an agency specified in Section 11165.9.
(c) Employers are strongly encouraged to provide their employees
who are mandated reporters with training in the duties imposed by
this article. This training shall include training in child abuse and
neglect identification and training in child abuse and neglect
reporting. Whether or not employers provide their employees with
training in child abuse and neglect identification and reporting, the
employers shall provide their employees who are mandated reporters
with the statement required pursuant to subdivision (a) of Section
11166.5.
(d) School districts that do not train their employees specified
in subdivision (a) in the duties of mandated reporters under the
child abuse reporting laws shall report to the State Department of
Education the reasons why this training is not provided.
(e) Unless otherwise specifically provided, the absence of
training shall not excuse a mandated reporter from the duties imposed
by this article.
(f) Public and private organizations are encouraged to provide
their volunteers whose duties require direct contact with and
supervision of children with training in the identification and
reporting of child abuse and neglect.
SEC. 165. Section 11166 of the Penal Code is amended to read:
11166. (a) Except as provided in subdivision (d), and in Section
11166.05, a mandated reporter shall make a report to an agency
specified in Section 11165.9 whenever the mandated reporter, in his
or her professional capacity or within the scope of his or her
employment, has knowledge of or observes a child whom the mandated
reporter knows or reasonably suspects has been the victim of child
abuse or neglect. The mandated reporter shall make an initial report
by telephone to the agency immediately or as soon as is practicably
possible, and shall prepare and send, fax, or electronically transmit
a written followup report within 36 hours of receiving the
information concerning the incident. The mandated reporter may
include with the report any nonprivileged documentary evidence the
mandated reporter possesses relating to the incident.
(1) For purposes of this article, "reasonable suspicion" means
that it is objectively reasonable for a person to entertain a
suspicion, based upon facts that could cause a reasonable person in a
like position, drawing, when appropriate, on his or her training and
experience, to suspect child abuse or neglect. "Reasonable suspicion"
does not require certainty that child abuse or neglect has occurred
nor does it require a specific medical indication of child abuse or
neglect; any "reasonable suspicion" is sufficient. For purposes of
this article, the pregnancy of a minor does not, in and of itself,
constitute a basis for a reasonable suspicion of sexual abuse.
(2) The agency shall be notified and a report shall be prepared
and sent, faxed, or electronically transmitted even if the child has
expired, regardless of whether or not the possible abuse was a factor
contributing to the death, and even if suspected child abuse was
discovered during an autopsy.
(3) A report made by a mandated reporter pursuant to this section
shall be known as a mandated report.
(b) If, after reasonable efforts, a mandated reporter is unable to
submit an initial report by telephone, he or she shall immediately
or as soon as is practicably possible, by fax or electronic
transmission, make a one-time automated written report on the form
prescribed by the Department of Justice, and shall also be available
to respond to a telephone followup call by the agency with which he
or she filed the report. A mandated reporter who files a one-time
automated written report because he or she was unable to submit an
initial report by telephone is not required to submit a written
followup report.
(1) The one-time automated written report form prescribed by the
Department of Justice shall be clearly identifiable so that it is not
mistaken for a standard written followup report. In addition, the
automated one-time report shall contain a section that allows the
mandated reporter to state the reason the initial telephone call was
not able to be completed. The reason for the submission of the
one-time automated written report in lieu of the procedure prescribed
in subdivision (a) shall be captured in the Child Welfare
Services/Case Management System (CWS/CMS). The department shall work
with stakeholders to modify reporting forms and the CWS/CMS as is
necessary to accommodate the changes enacted by these provisions.
(2) This subdivision shall not become operative until the CWS/CMS
is updated to capture the information prescribed in this subdivision.
(3) This subdivision shall become inoperative three years after
this subdivision becomes operative or on January 1, 2009, whichever
occurs first.
(4) On the inoperative date of these provisions, a report shall be
submitted to the counties and the Legislature by the State
Department of Social Services that reflects the data collected from
automated one-time reports indicating the reasons stated as to why
the automated one-time report was filed in lieu of the initial
telephone report.
(5) Nothing in this section shall supersede the requirement that a
mandated reporter first attempt to make a report via telephone, or
that agencies specified in Section 11165.9 accept reports from
mandated reporters and other persons as required.
(c) A mandated reporter who fails to report an incident of known
or reasonably suspected child abuse or neglect as required by this
section is guilty of a misdemeanor punishable by up to six months
confinement in a county jail or by a fine of one thousand dollars
($1,000) or by both that imprisonment and fine. If a mandated
reporter intentionally conceals his or her failure to report an
incident known by the mandated reporter to be abuse or severe neglect
under this section, the failure to report is a continuing offense
until an agency specified in Section 11165.9 discovers the offense.
(d) (1) A clergy member who acquires knowledge or a reasonable
suspicion of child abuse or neglect during a penitential
communication is not subject to subdivision (a). For the purposes of
this subdivision, "penitential communication" means a communication,
intended to be in confidence, including, but not limited to, a
sacramental confession, made to a clergy member who, in the course of
the discipline or practice of his or her church, denomination, or
organization, is authorized or accustomed to hear those
communications, and under the discipline, tenets, customs, or
practices of his or her church, denomination, or organization, has a
duty to keep those communications secret.
(2) Nothing in this subdivision shall be construed to modify or
limit a clergy member's duty to report known or suspected child abuse
or neglect when the clergy member is acting in some other capacity
that would otherwise make the clergy member a mandated reporter.
(3) (A) On or before January 1, 2004, a clergy member or any
custodian of records for the clergy member may report to an agency
specified in Section 11165.9 that the clergy member or any custodian
of records for the clergy member, prior to January 1, 1997, in his or
her professional capacity or within the scope of his or her
employment, other than during a penitential communication, acquired
knowledge or had a reasonable suspicion that a child had been the
victim of sexual abuse and that the clergy member or any
custodian of records for the clergy member did not previously report
the abuse to an agency specified in Section 11165.9. The provisions
of Section 11172 shall apply to all reports made pursuant to this
paragraph.
(B) This paragraph shall apply even if the victim of the known or
suspected abuse has reached the age of majority by the time the
required report is made.
(C) The local law enforcement agency shall have jurisdiction to
investigate any report of child abuse made pursuant to this paragraph
even if the report is made after the victim has reached the age of
majority.
(e) (1) A commercial film, photographic print, or image processor
who has knowledge of or observes, within the scope of his or her
professional capacity or employment, any film, photograph, videotape,
negative, slide, or any representation of information, data, or an
image, including, but not limited to, any film, filmstrip,
photograph, negative, slide, photocopy, videotape, video laser disc,
computer hardware, computer software, computer floppy disk, data
storage medium, CD-ROM, computer-generated equipment, or
computer-generated image depicting a child under 16 years of age
engaged in an act of sexual conduct, shall, immediately or as soon as
practicably possible, telephonically report the instance of
suspected abuse to the law enforcement agency located in the county
in which the images are seen. Within 36 hours of receiving the
information concerning the incident, the reporter shall prepare and
send, fax, or electronically transmit a written followup report of
the incident with a copy of the image or material attached.
(2) A commercial computer technician who has knowledge of or
observes, within the scope of his or her professional capacity or
employment, any representation of information, data, or an image,
including, but not limited to, any computer hardware, computer
software, computer file, computer floppy disk, data storage medium,
CD-ROM, computer-generated equipment, or computer-generated image
that is retrievable in perceivable form and that is intentionally
saved, transmitted, or organized on an electronic medium, depicting a
child under 16 years of age engaged in an act of sexual conduct,
shall immediately, or as soon as practicably possible, telephonically
report the instance of suspected abuse to the law enforcement agency
located in the county in which the images or material are seen. As
soon as practicably possible after receiving the information
concerning the incident, the reporter shall prepare and send, fax, or
electronically transmit a written followup report of the incident
with a brief description of the images or materials.
(3) For purposes of this article, "commercial computer technician"
includes an employee designated by an employer to receive reports
pursuant to an established reporting process authorized by
subparagraph (B) of paragraph (43) of subdivision (a) of Section
11165.7.
(4) As used in this subdivision, "electronic medium" includes, but
is not limited to, a recording, CD-ROM, magnetic disk memory,
magnetic tape memory, CD, DVD, thumbdrive, or any other computer
hardware or media.
(5) As used in this subdivision, "sexual conduct" means any of the
following:
(A) Sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex or between humans and animals.
(B) Penetration of the vagina or rectum by any object.
(C) Masturbation for the purpose of sexual stimulation of the
viewer.
(D) Sadomasochistic abuse for the purpose of sexual stimulation of
the viewer.
(E) Exhibition of the genitals, pubic, or rectal areas of a person
for the purpose of sexual stimulation of the viewer.
(f) Any mandated reporter who knows or reasonably suspects that
the home or institution in which a child resides is unsuitable for
the child because of abuse or neglect of the child shall bring the
condition to the attention of the agency to which, and at the same
time as, he or she makes a report of the abuse or neglect pursuant to
subdivision (a).
(g) A other person who has knowledge of or observes a child whom
he or she knows or reasonably suspects has been a victim of child
abuse or neglect may report the known or suspected instance of child
abuse or neglect to an agency specified in Section 11165.9. For
purposes of this section, "any other person" includes a mandated
reporter who acts in his or her private capacity and not in his or
her professional capacity or within the scope of his or her
employment.
(h) When two or more persons, who are required to report, jointly
have knowledge of a known or suspected instance of child abuse or
neglect, and when there is agreement among them, the telephone report
may be made by a member of the team selected by mutual agreement and
a single report may be made and signed by the selected member of the
reporting team. Any member who has knowledge that the member
designated to report has failed to do so shall thereafter make the
report.
(i) (1) The reporting duties under this section are individual,
and no supervisor or administrator may impede or inhibit the
reporting duties, and no person making a report shall be subject to
any sanction for making the report. However, internal procedures to
facilitate reporting and apprise supervisors and administrators of
reports may be established provided that they are not inconsistent
with this article.
(2) The internal procedures shall not require any employee
required to make reports pursuant to this article to disclose his or
her identity to the employer.
(3) Reporting the information regarding a case of possible child
abuse or neglect to an employer, supervisor, school principal, school
counselor, coworker, or other person shall not be a substitute for
making a mandated report to an agency specified in Section 11165.9.
(j) A county probation or welfare department shall immediately, or
as soon as practicably possible, report by telephone, fax, or
electronic transmission to the law enforcement agency having
jurisdiction over the case, to the agency given the responsibility
for investigation of cases under Section 300 of the Welfare and
Institutions Code, and to the district attorney's office every known
or suspected instance of child abuse or neglect, as defined in
Section 11165.6, except acts or omissions coming within subdivision
(b) of Section 11165.2, or reports made pursuant to Section 11165.13
based on risk to a child which relates solely to the inability of the
parent to provide the child with regular care due to the parent's
substance abuse, which shall be reported only to the county welfare
or probation department. A county probation or welfare department
also shall send, fax, or electronically transmit a written report
thereof within 36 hours of receiving the information concerning the
incident to any agency to which it makes a telephone report under
this subdivision.
(k) A law enforcement agency shall immediately, or as soon as
practicably possible, report by telephone, fax, or electronic
transmission to the agency
given responsibility for investigation of cases under Section 300 of
the Welfare and Institutions Code and to the district attorney's
office every known or suspected instance of child abuse or neglect
reported to it, except acts or omissions coming within subdivision
(b) of Section 11165.2, which shall be reported only to the county
welfare or probation department. A law enforcement agency shall
report to the county welfare or probation department every known or
suspected instance of child abuse or neglect reported to it which is
alleged to have occurred as a result of the action of a person
responsible for the child's welfare, or as the result of the failure
of a person responsible for the child's welfare to adequately protect
the minor from abuse when the person responsible for the child's
welfare knew or reasonably should have known that the minor was in
danger of abuse. A law enforcement agency also shall send, fax, or
electronically transmit a written report thereof within 36 hours of
receiving the information concerning the incident to any agency to
which it makes a telephone report under this subdivision.
SEC. 166. Section 12022 of the Penal Code is amended to read:
12022. (a) (1) Except as provided in subdivisions (c) and (d), a
person who is armed with a firearm in the commission of a felony or
attempted felony shall be punished by an additional and consecutive
term of imprisonment pursuant to subdivision (h) of Section 1170 for
one year, unless the arming is an element of that offense. This
additional term shall apply to a person who is a principal in the
commission of a felony or attempted felony if one or more of the
principals is armed with a firearm, whether or not the person is
personally armed with a firearm.
(2) Except as provided in subdivision (c), and notwithstanding
subdivision (d), if the firearm is an assault weapon, as defined in
Section 30510 or Section 30515, or a machinegun,
as defined in Section 16880, or a .50 BMG rifle, as defined in
Section 30530, the additional and consecutive term described in this
subdivision shall be three years imprisonment pursuant to subdivision
(h) of Section 1170 whether or not the arming is an element of the
offense of which the person was convicted. The additional term
provided in this paragraph shall apply to any person who is a
principal in the commission of a felony or attempted felony if one or
more of the principals is armed with an assault weapon, machinegun,
or a .50 BMG rifle, whether or not the person is personally armed
with an assault weapon, machinegun, or a .50 BMG rifle.
(b) (1) A person who personally uses a deadly or dangerous weapon
in the commission of a felony or attempted felony shall be punished
by an additional and consecutive term of imprisonment in the state
prison for one year, unless use of a deadly or dangerous weapon is an
element of that offense.
(2) If the person described in paragraph (1) has been convicted of
carjacking or attempted carjacking, the additional term shall be in
the state prison for one, two, or three years.
(3) When a person is found to have personally used a deadly or
dangerous weapon in the commission of a felony or attempted felony as
provided in this subdivision and the weapon is owned by that person,
the court shall order that the weapon be deemed a nuisance and
disposed of in the manner provided in Sections 18000 and 18005.
(c) Notwithstanding the enhancement set forth in subdivision (a),
a person who is personally armed with a firearm in the commission of
a violation or attempted violation of Section 11351, 11351.5, 11352,
11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the
Health and Safety Code shall be punished by an additional and
consecutive term of imprisonment pursuant to subdivision (h) of
Section 1170 for three, four, or five years.
(d) Notwithstanding the enhancement set forth in subdivision (a),
a person who is not personally armed with a firearm who, knowing that
another principal is personally armed with a firearm, is a principal
in the commission of an offense or attempted offense specified in
subdivision (c), shall be punished by an additional and consecutive
term of imprisonment pursuant to subdivision (h) of Section 1170 for
one, two, or three years.
(e) For purposes of imposing an enhancement under Section 1170.1,
the enhancements under this section shall count as a single
enhancement.
(f) Notwithstanding any other provision of law, the court may
strike the additional punishment for the enhancements provided in
subdivision (c) or (d) in an unusual case where the interests of
justice would best be served, if the court specifies on the record
and enters into the minutes the circumstances indicating that the
interests of justice would best be served by that disposition.
SEC. 167. Section 12022.1 of the Penal Code is amended to read:
12022.1. (a) For the purposes of this section only:
(1) "Primary offense" means a felony offense for which a person
has been released from custody on bail or on his or her own
recognizance prior to the judgment becoming final, including the
disposition of any appeal, or for which release on bail or his or her
own recognizance has been revoked. In cases where the court has
granted a stay of execution of a county jail commitment or state
prison commitment, "primary offense" also means a felony offense for
which a person is out of custody during the period of time between
the pronouncement of judgment and the time the person actually
surrenders into custody or is otherwise returned to custody.
(2) "Secondary offense" means a felony offense alleged to have
been committed while the person is released from custody for a
primary offense.
(b) Any person arrested for a secondary offense that was alleged
to have been committed while that person was released from custody on
a primary offense shall be subject to a penalty enhancement of an
additional two years, which shall be served consecutive to any other
term imposed by the court.
(c) The enhancement allegation provided in subdivision (b) shall
be pleaded in the information or indictment which alleges the
secondary offense, or in the information or indictment of the primary
offense if a conviction has already occurred in the secondary
offense, and shall be proved as provided by law. The enhancement
allegation may be pleaded in a complaint but need not be proved at
the preliminary hearing or grand jury hearing.
(d) Whenever there is a conviction for the secondary offense and
the enhancement is proved, and the person is sentenced on the
secondary offense prior to the conviction of the primary offense, the
imposition of the enhancement shall be stayed pending imposition of
the sentence for the primary offense. The stay shall be lifted by the
court hearing the primary offense at the time of sentencing for that
offense and shall be recorded in the abstract of judgment. If the
person is acquitted of the primary offense the stay shall be
permanent.
(e) If the person is convicted of a felony for the primary
offense, is sentenced to state prison for the primary offense, and is
convicted of a felony for the secondary offense, any sentence for
the secondary offense shall be consecutive to the primary sentence
and the aggregate term shall be served in the state prison, even if
the term for the secondary offense specifies imprisonment in county
jail pursuant to subdivision (h) of Section 1170.
(f) If the person is convicted of a felony for the primary
offense, is granted probation for the primary offense, and is
convicted of a felony for the secondary offense, any sentence for the
secondary offense shall be enhanced as provided in subdivision (b).
(g) If the primary offense conviction is reversed on appeal, the
enhancement shall be suspended pending retrial of that felony. Upon
retrial and reconviction, the enhancement shall be reimposed. If the
person is no longer in custody for the secondary offense upon
reconviction of the primary offense, the court may, at its
discretion, reimpose the enhancement and order him or her recommitted
to custody.
SEC. 168. Section 10295.6 of the Public Contract Code is amended
to read:
10295.6. Sections 10295 and 10297 do not apply to any contract
entered into by the Department of Water Resources under Part 3
(commencing with Section 11100) of Division 6 or Chapter 8
(commencing with Section 12930) of Part 6 of Division 6 of the Water
Code for the acquisition, sale, or transmission of power, or for
services to facilitate those activities.
SEC. 169. Section 20651.7 of the Public Contract Code is amended
to read:
20651.7. (a) For the purposes of bid evaluation and selection
pursuant to subdivision (a) of Section 20651, when a community
college district determines that it can expect long-term savings
through the use of life-cycle cost methodology, the use of more
sustainable goods and materials, and reduced administrative costs,
the community college district may provide for the selection of the
lowest responsible bidder on the basis of best value pursuant to
policies and procedures adopted by the governing board in accordance
with this section.
(b) For purposes of this section, "best value" means the most
advantageous balance of price, quality, service, performance, and
other elements, as defined by the governing board, achieved through
methods in accordance with this section and determined by objective
performance criteria that may include price, features, long-term
functionality, life-cycle costs, overall sustainability, and required
services.
(c) A community college district shall consider all of the
following when adopting best value policies pursuant to subdivision
(a):
(1) Price and service level proposals that reduce the district's
overall operating costs, including end-of-life expenditures and
impact.
(2) Equipment, services, supplies, and materials standards that
support the community college district's strategic acquisition and
management program direction.
(3) A procedure for protest and resolution.
(d) A community college district may consider any of the following
factors if adopting policies and procedures pursuant to subdivision
(c):
(1) The total cost to the community college district of its
purchase, use, and consumption of equipment, supplies, and materials.
(2) The operational cost or benefit incurred by the community
college district as a result of a contract award.
(3) The added value to the community college district, as defined
in the request for proposal, of vendor-added services.
(4) The quality and effectiveness of equipment, supplies,
materials, and services.
(5) The reliability of delivery and installation schedules.
(6) The terms and conditions of product warranties and vendor
guarantees.
(7) The financial stability of the vendor.
(8) The vendor's quality assurance program.
(9) The vendor's experience with the provisions of equipment,
supplies, materials, and services within the institutional
marketplace.
(10) The consistency of the vendor's proposed equipment, supplies,
materials, and services with the district's overall supplies and
materials procurement program.
(11) The economic benefits to the local community, including, but
not limited to, job creation and retention.
(12) The environmental benefits to the local community.
(e) A community college district awarding a contract under this
section shall award a contract to the lowest responsible bidder whose
proposal is determined, in writing by the community college
district, to be the best value to the community college district
based solely on the criteria set forth in the request for proposal.
(f) The governing board of a community college district shall
issue a written notice of intent to award supporting its contract
award and stating in detail the basis of the award. The notice of the
intent to award and the contract file must be sufficient to satisfy
an external audit.
(g) The governing board of a community college district shall
publicly announce its award, identifying the bidder to which the
award is made, the price proposal of the contractor awarded the
contract, and the overall combined rating on the request for proposal
evaluation factors. The announcement shall also include the ranking
of the contractor awarded the contract in relation to all other
responsive bidders and their respective price proposals and summary
of the rationale for the contract award.
(h) The community college district shall ensure that all
businesses have a fair and equitable opportunity to compete for, and
participate in, district contracts and shall also ensure that
discrimination, as described in subdivision (e) of Section 12751.3 of
the Public Utilities Code, in the award and performance of contracts
does not occur.
(i) (1) If a community college district elects to purchase
equipment, materials, supplies, and services by contract, let in
accordance with this section, the community college district shall
submit the following information to the Chancellor of the California
Community Colleges on or before January 1, 2016:
(A) The community college district's policies adopted pursuant to
subdivision (a).
(B) An annual list of district procurements for contracts with a
brief description of the contract, the winning bid, the cost, and if
the contract was done under best value acquisition policies.
(C) For a contract awarded under the best value acquisition
policies, the bid announcement announcing the bidder to which the
award was made, including that bidder's scoring rating compared to
other bidders, the winning contractor's price proposal, the overall
combined rating on the request for proposal evaluation factors, a
description of the products, commodities, or services sought, and a
summary of the rationale for the contract award.
(D) For each contract awarded using the best value acquisition
policies at least one bid award announcement for a comparably priced
contract using the traditional lowest responsible bidder process that
specifies the bidder to which the contract was awarded, the amount
of the award, and the request for bid for that contract that includes
a description of the products, commodities, or services sought for
at least one comparably sized contract, to the best value contract
being let, awarded pursuant to the traditional lowest responsible
bidder process including contracts awarded by the district in the
three years prior to the adoption of best value acquisition policies
by the district.
(E) For contracts awarded using best value, a summary of any
additional economic benefit other than the price of the contract
obtained, including an explanation of whether these benefits were
realized as expected.
(F) The total number of bid protests or protests concerning an
aspect of the solicitation, bid, or award of the agreement since the
district adopted policies pursuant to subdivision (a) and the number
of those protests that occurred under best value.
(G) A description of any written bid protest or protests
concerning an aspect of the solicitation, bid, or award of the
agreement including the resolution of the protest for any contract
submitted pursuant to this section.
(2) The Legislative Analyst shall request the chancellor to
provide the information specified in paragraph (1) to the Legislative
Analyst on or before July 1, 2016. On or before February 1, 2017,
the Legislative Analyst shall report to the Legislature on the use of
competitive means for obtaining best value procurement by community
college districts. The Legislative Analyst shall use the information
provided by the chancellor to report all of the following:
(A) A summary of the overall benefits of best value acquisition.
(B) A comparison of the overall cost of contracts let under best
value acquisition pursuant to this section to similar contracts let
under traditional low bid procurement practices.
(C) An assessment of any benefits or disadvantages of best value
procurement practices as compared to bids awarded to the lowest
responsible bidder.
(D) An assessment of whether the use of best value procurement has
led to a difference in the number of disputes as compared to
contracts awarded using the traditional lowest responsible bidder
method.
(E) An assessment of the policies adopted by the community college
districts pursuant to subdivision (a) as well as an assessment of
the overall performance criteria used to evaluate the bids and the
effectiveness of the methodology.
(F) Recommendations as to whether the best value at lowest cost
acquisition procurement authority should be continued.
(j) This section shall remain in effect only until January 1,
2018, and as of that date is repealed.
SEC. 170. Section 4629.5 of the Public Resources Code is amended
to read:
4629.5. (a) (1) On and after January 1, 2013, there is hereby
imposed an assessment on a person who purchases a lumber product or
an engineered wood product for the storage, use, or other consumption
in this state, at the rate of 1 percent of the sales price.
(2) A retailer shall charge the person the amount of the
assessment as a charge that is separate from, and not included in,
any other fee, charge, or other amount paid by the purchaser.
(3) The retailer shall collect the assessment from the person at
the time of sale, and may retain an amount equal to the amount of
reimbursement, as determined by the State Board of Equalization
pursuant to regulations, for any costs associated with the collection
of the assessment, to be taken on the first return or next
consecutive returns until the entire reimbursement amount is
retained. For purposes of this paragraph, the State Board of
Equalization may adopt emergency regulations pursuant to Section
11346.1 of the Government Code. The adoption of any regulation
pursuant to this paragraph shall be deemed to be an emergency and
necessary for the immediate preservation of the public peace, health,
and safety, and general welfare.
(b) The retailer shall separately state the amount of the
assessment imposed under this section on the sales receipt given by
the retailer to the person at the time of sale.
(c) The State Board of Equalization shall administer and collect
the assessment imposed by this section pursuant to the Fee Collection
Procedures Law (Part 30 (commencing with Section 55001) of Division
2 of the Revenue and Taxation Code) with those changes as may be
necessary to conform to the provisions of this article. For purposes
of this section, the references in the Fee Collection Procedures Law
to "fee" shall include the assessment imposed by this section.
(d) (1) The assessment is required to be collected by a retailer
and any amount unreturned to the person who paid an amount in excess
of the assessment, but was collected from the person under the
representation by the retailer that it was owed as an assessment,
constitutes debts owed by the retailer to this state.
(2) Every person who purchases a lumber product or an engineered
wood product for storage, use, or other consumption in this state is
liable for the assessment until it has been paid to this state,
except that payment to a retailer relieves the person from further
liability for the assessment. Any assessment collected from a person
that has not been remitted to the State Board of Equalization shall
be a debt owed to the state by the retailer required to collect and
remit the assessment. Nothing in this part shall impose any
obligation upon a retailer to take any legal action to enforce the
collection of the assessment imposed by this section.
(e) Except as provided in paragraph (3) of subdivision (a), the
State Board of Equalization may prescribe, adopt, and enforce
regulations relating to the administration and enforcement of this
section, including, but not limited to, collections, reporting,
refunds, and appeals.
(f) (1) The assessment imposed by this section is due and payable
to the State Board of Equalization quarterly on or before the last
day of the month next succeeding each quarterly period.
(2) On or before the last day of the month following each
quarterly period, a return for the preceding quarterly period shall
be filed with the State Board of Equalization using electronic media,
in the form prescribed by the State Board of Equalization. Returns
shall be authenticated in a form or pursuant to methods, as
prescribed by the State Board of Equalization.
(g) For purposes of this section, all of the following shall
apply:
(1) "Purchase" has the same meaning as that term is defined in
Section 6010 of the Revenue and Taxation Code.
(2) "Retailer" has the same meaning as that term is defined in
Section 6015 of the Revenue and Taxation Code.
(3) "Sales price" has the same meaning as that term is defined in
Section 6011 of the Revenue and Taxation Code.
(4) "Storage" has the same meaning as that term is defined in
Section 6008 of the Revenue and Taxation Code.
(5) "Use" has the same meaning as that term is defined in Section
6009 of the Revenue and Taxation Code.
(h) (1) Every person required to pay the assessment imposed under
this article shall register with the State Board of Equalization.
Every application for registration shall be made in a form prescribed
by the State Board of Equalization and shall set forth the name
under which the applicant transacts or intends to transact business,
the location of his or her place or places of business, and such
other information as the State Board of Equalization may require. An
application for registration shall be authenticated in a form or
pursuant to methods as may be prescribed by the State Board of
Equalization.
(2) An application for registration filed pursuant to this section
may be filed using electronic media as prescribed by the State Board
of Equalization.
(3) Electronic media includes, but is not limited to, computer
modem, magnetic media, optical disc, facsimile machine, or telephone.
SEC. 171. Section 4629.9 of the Public Resources Code is amended
to read:
4629.9. (a) On or before January 10, 2013, and on each January 10
thereafter in conjunction with the 2014-15 Governor's Budget and
each Governor's Budget thereafter, the Secretary of the Natural
Resources Agency, in consultation with the Secretary for
Environmental Protection, shall submit to the Joint Legislative
Budget Committee a report on the activities of all state departments,
agencies, and boards relating to forest and timberland regulation.
This report shall include, at a minimum, all of the following:
(1) A listing, by organization, of the proposed total costs
associated with the review, approval, and inspection of timber
harvest plans and associated permits.
(2) The number of timber harvest plans, and acreage covered by the
plans, reviewed in the 2011-12 fiscal year, or the most recent
fiscal year.
(3) To the extent feasible, a listing of activities, personnel,
and funding, by department, for the forest practice program for
2012-13, or the most recent fiscal year, and the preceding 10 fiscal
years.
(4) The number of staff in each organization dedicated fully or
partially to (A) review of timber harvest plans, and (B) other
forestry-related activities, by geographical location in the state.
(5) The costs of other forestry-related activities undertaken.
(6) A summary of any process improvements identified by the
administration as part of ongoing review of the timber harvest
process, including data and technology improvement needs.
(7) Workload analysis for the forest practice program in each
organization.
(8) In order to assess efficiencies in the program and the
effectiveness of spending, a set of measures for, and a plan for
collection of data on, the program, including, but not limited to:
(A) The number of timber harvest plans reviewed.
(B) Average time for plan review.
(C) Number of field inspections per inspector.
(D) Number of acres under active plans.
(E) Number of violations.
(F) Evaluating ecological performance.
(b) A report required to be submitted pursuant to subdivision (a)
shall be submitted in compliance with Section 9795 of the Government
Code.
SEC. 172. Section 6224.5 of the Public Resources Code is amended
to read:
6224.5. (a) If, as of January 1, 2013, a person is in violation
of subdivision (a) of Section 6224.3, that person shall not be
subject to a penalty pursuant to that section, if the person, on or
before July 1, 2013, remedies the violation or submits to the
commission a completed lease application, including the payment of
all fees and costs. The remedy may include, but is not limited to,
entering into an appropriate lease with the commission or adequately
removing the structure or facility.
(b) A person shall not be subject to a penalty or order pursuant
to Section 6224.3, if the person submits a notice to the commission
that a structure or facility owned by that person is potentially in
violation of subdivision (a) of Section 6224.3 and the person, within
six months from the date the notice is received by the commission,
remedies the violation or submits to the commission a completed lease
application, including the payment of all fees and costs. This
subdivision shall apply only if the potential violator submits a
notice to the commission before the commission otherwise receives
notice or information regarding the potential violation, or takes
action against the violator.
(c) If any pole, conduit, cable, wire, pipeline, or associated
appurtenance that is owned by an electrical corporation, as defined
in Section 218 of the Public Utilities Code, or a gas corporation, as
defined in Section 222 of the Public Utilities Code, violates
subdivision (a) of Section 6224.3, and the electrical or gas
corporation can demonstrate that it has not received actual notice
that it does not have adequate existing land rights for its structure
or facility located on land under the commission's jurisdiction, the
electrical or gas corporation shall not be subject to a penalty or
order pursuant to Section 6224.3 if the electrical or gas corporation
remedies the violation or submits to the commission a completed
lease application, including the payment of all fees and costs, or
files with a court of competent jurisdiction a motion to perfect a
prescriptive easement within six months from the date the violation
is reported or the mistake is discovered.
(d) The commission may adopt regulations necessary or useful to
carry out this section and Sections 6224.3 and 6224.4.
SEC.
173. Section 21080.37 of the Public Resources Code is amended to
read:
21080.37. (a) This division does not apply to a project or an
activity to repair, maintain, or make minor alterations to an
existing roadway if all of the following conditions are met:
(1) The project is carried out by a city or county with a
population of less than 100,000 persons to improve public safety.
(2) (A) The project does not cross a waterway.
(B) For purposes of the this
paragraph, "waterway" means a bay, estuary, lake, pond, river,
slough, or a perennial, intermittent, or ephemeral stream, lake, or
estuarine-marine shoreline.
(3) The project involves negligible or no expansion of an existing
use beyond that existing at the time of the lead agency's
determination.
(4) The roadway is not a state roadway.
(5) (A) The site of the project does not contain wetlands or
riparian areas and does not have significant value as a wildlife
habitat, and the project does not harm any species protected by the
federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.),
the Native Plant Protection Act (Chapter 10 (commencing with Section
1900) of Division 2 of the Fish and Game Code), or the California
Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of
Division 3 of the Fish and Game Code), and the project does not
cause the destruction or removal of any species protected by a local
ordinance.
(B) For the purposes of this paragraph:
(i) "Riparian areas" mean those areas transitional between
terrestrial and aquatic ecosystems and that are distinguished by
gradients in biophysical conditions, ecological processes, and biota.
A riparian area is an area through which surface and subsurface
hydrology connect waterbodies with their adjacent uplands. A riparian
area includes those portions of terrestrial ecosystems that
significantly influence exchanges of energy and matter with aquatic
ecosystems. A riparian area is adjacent to perennial, intermittent,
and ephemeral streams, lakes, and estuarine-marine shorelines.
(ii) "Significant value as a wildlife habitat" includes wildlife
habitat of national, statewide, regional, or local importance;
habitat for species protected by the federal Endangered Species Act
of 1973 (16 U.S.C. Sec. 1531, et seq.), the California Endangered
Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3
of the Fish and Game Code), or the Native Plant Protection Act
(Chapter 10 (commencing with Section 1900) of Division 2 of the Fish
and Game Code); habitat identified as candidate, fully protected,
sensitive, or species of special status by local, state, or federal
agencies; or habitat essential to the movement of resident or
migratory wildlife.
(iii) "Wetlands" has the same meaning as in the United States Fish
and Wildlife Service Manual, Part 660 FW 2 (June 21, 1993).
(iv) "Wildlife habitat" means the ecological communities upon
which wild animals, birds, plants, fish, amphibians, and
invertebrates depend for their conservation and protection.
(6) The project does not impact cultural resources.
(7) The roadway does not affect scenic resources, as provided
pursuant to subdivision (c) of Section 21084.
(b) Prior to determining that a project is exempt pursuant to this
section, the lead agency shall do both of the following:
(1) Include measures in the project to mitigate potential
vehicular traffic and safety impacts and bicycle and pedestrian
safety impacts.
(2) Hold a noticed public hearing on the project to hear and
respond to public comments. The hearing on the project may be
conducted with another noticed lead agency public hearing.
Publication of the notice shall be no fewer times than required by
Section 6061 of the Government Code, by the public agency in a
newspaper of general circulation in the area.
(c) For purposes of this section, "roadway" means a roadway as
defined pursuant to Section 530 of the Vehicle Code and the
previously graded and maintained shoulder that is within a roadway
right-of-way of no more than five feet from the edge of the roadway.
(d) Whenever a local agency determines that a project is not
subject to this division pursuant to this section, and it approves or
determines to carry out that project, the local agency shall file a
notice with the Office of Planning and Research, and with the county
clerk in the county in which the project will be located in the
manner specified in subdivisions (b) and (c) of Section 21152.
(e) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 174. Section 21080.5 of the Public Resources Code is amended
to read:
21080.5. (a) Except as provided in Section 21158.1, when the
regulatory program of a state agency requires a plan or other written
documentation containing environmental information and complying
with paragraph (3) of subdivision (d) to be submitted in support of
an activity listed in subdivision (b), the plan or other written
documentation may be submitted in lieu of the environmental impact
report required by this division if the Secretary of the Resources
Agency has certified the regulatory program pursuant to this section.
(b) This section applies only to regulatory programs or portions
thereof that involve either of the following:
(1) The issuance to a person of a lease, permit, license,
certificate, or other entitlement for use.
(2) The adoption or approval of standards, rules, regulations, or
plans for use in the regulatory program.
(c) A regulatory program certified pursuant to this section is
exempt from Chapter 3 (commencing with Section 21100), Chapter 4
(commencing with Section 21150), and Section 21167, except as
provided in Article 2 (commencing with Section 21157) of Chapter 4.5.
(d) To qualify for certification pursuant to this section, a
regulatory program shall require the utilization of an
interdisciplinary approach that will ensure the integrated use of the
natural and social sciences in decisionmaking and that shall meet
all of the following criteria:
(1) The enabling legislation of the regulatory program does both
of the following:
(A) Includes protection of the environment among its principal
purposes.
(B) Contains authority for the administering agency to adopt rules
and regulations for the protection of the environment, guided by
standards set forth in the enabling legislation.
(2) The rules and regulations adopted by the administering agency
for the regulatory program do all of the following:
(A) Require that an activity will not be approved or adopted as
proposed if there are feasible alternatives or feasible mitigation
measures available that would substantially lessen a significant
adverse effect that the activity may have on the environment.
(B) Include guidelines for the orderly evaluation of proposed
activities and the preparation of the plan or other written
documentation in a manner consistent with the environmental
protection purposes of the regulatory program.
(C) Require the administering agency to consult with all public
agencies that have jurisdiction, by law, with respect to the proposed
activity.
(D) Require that final action on the proposed activity include the
written responses of the issuing authority to significant
environmental points raised during the evaluation process.
(E) Require the filing of a notice of the decision by the
administering agency on the proposed activity with the Secretary of
the Resources Agency. Those notices shall be available for public
inspection, and a list of the notices shall be posted on a weekly
basis in the Office of the Resources Agency. Each list shall remain
posted for a period of 30 days.
(F) Require notice of the filing of the plan or other written
documentation to be made to the public and to a person who requests,
in writing, notification. The notification shall be made in a manner
that will provide the public or a person requesting notification with
sufficient time to review and comment on the filing.
(3) The plan or other written documentation required by the
regulatory program does both of the following:
(A) Includes a description of the proposed activity with
alternatives to the activity, and mitigation measures to minimize any
significant adverse effect on the environment of the activity.
(B) Is available for a reasonable time for review and comment by
other public agencies and the general public.
(e) (1) The Secretary of the Resources Agency shall certify a
regulatory program that the secretary determines meets all the
qualifications for certification set forth in this section, and
withdraw certification on determination that the regulatory program
has been altered so that it no longer meets those qualifications.
Certification and withdrawal of certification shall occur only after
compliance with Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code.
(2) In determining whether or not a regulatory program meets the
qualifications for certification set forth in this section, the
inquiry of the secretary shall extend only to the question of whether
the regulatory program meets the generic requirements of subdivision
(d). The inquiry may not extend to individual decisions to be
reached under the regulatory program, including the nature of
specific alternatives or mitigation measures that might be proposed
to lessen any significant adverse effect on the environment of the
activity.
(3) If the secretary determines that the regulatory program
submitted for certification does not meet the qualifications for
certification set forth in this section, the secretary shall adopt
findings setting forth the reasons for the determination.
(f) After a regulatory program has been certified pursuant to this
section, a proposed change in the program that could affect
compliance with the qualifications for certification specified in
subdivision (d) may be submitted to the Secretary of the Resources
Agency for review and comment. The scope of the secretary's review
shall extend only to the question of whether the regulatory program
meets the generic requirements of subdivision (d). The review may not
extend to individual decisions to be reached under the regulatory
program, including specific alternatives or mitigation measures that
might be proposed to lessen any significant adverse effect on the
environment of the activity. The secretary shall have 30 days from
the date of receipt of the proposed change to notify the state agency
whether the proposed change will alter the regulatory program so
that it no longer meets the qualification for certification
established in this section and will result in a withdrawal of
certification as provided in this section.
(g) An action or proceeding to attack, review, set aside, void, or
annul a determination or decision of a state agency approving or
adopting a proposed activity under a regulatory program that has been
certified pursuant to this section on the basis that the plan or
other written documentation prepared pursuant to paragraph (3) of
subdivision (d) does not comply with this section shall be commenced
not later than 30 days from the date of the filing of notice of the
approval or adoption of the activity.
(h) (1) An action or proceeding to attack, review, set aside,
void, or annul a determination of the Secretary of the Resources
Agency to certify a regulatory program pursuant to this section on
the basis that the regulatory program does not comply with this
section shall be commenced within 30 days from the date of
certification by the secretary.
(2) In an action brought pursuant to paragraph (1), the inquiry
shall extend only to whether there was a prejudicial abuse of
discretion by the secretary. Abuse of discretion is established if
the secretary has not proceeded in a manner required by law or if the
determination is not supported by substantial evidence.
(i) For purposes of this section, a county agricultural
commissioner is a state agency.
(j) For purposes of this section, an air quality management
district or air pollution control district is a state agency, except
that the approval, if any, by a district of a nonattainment area plan
is subject to this section only if, and to the extent that, the
approval adopts or amends rules or regulations.
(k) (1) The secretary, by July 1, 2004, shall develop a protocol
for reviewing the prospective application of certified regulatory
programs to evaluate the consistency of those programs with the
requirements of this division. Following the completion of the
development of the protocol, the secretary shall provide a report to
the Senate Committee on Environmental Quality and the Assembly
Committee on Natural Resources regarding the need for a grant of
additional statutory authority authorizing the secretary to undertake
a review of the certified regulatory programs.
(2) The secretary may update the protocol, and may update the
report provided to the legislative committees pursuant to paragraph
(1) and provide, in compliance with Section 9795 of the Government
Code, the updated report to those committees if additional statutory
authority is needed.
(3) The secretary shall provide a significant opportunity for
public participation in developing or updating the protocol described
in paragraph (1) or (2), including, but not limited to, at least two
public meetings with interested parties. A notice of each meeting
shall be provided at least 10 days prior to the meeting to a person
who files a written request for a notice with the agency and to the
Senate Committee on Environmental Quality and the Assembly Committee
on Natural Resources.
SEC. 175. Section 21084 of the Public Resources Code is amended to
read:
21084. (a) The guidelines prepared and adopted pursuant to
Section 21083 shall include a list of classes of projects that have
been determined not to have a significant effect on the environment
and that shall be exempt from this division. In adopting the
guidelines, the Secretary of the Natural Resources Agency shall make
a finding that the listed classes of projects referred to in this
section do not have a significant effect on the environment.
(b) A project's greenhouse gas emissions shall not, in and of
themselves, be deemed to cause an exemption adopted pursuant to
subdivision (a) to be inapplicable if the project complies with all
applicable regulations or requirements adopted to implement
statewide, regional, or local plans consistent with Section 15183.5
of Title 14 of the California Code of Regulations.
(c) A project that may result in damage to scenic resources,
including, but not limited to, trees, historic buildings, rock
outcroppings, or similar resources, within a highway designated as an
official state scenic highway, pursuant to Article 2.5 (commencing
with Section 260) of Chapter 2 of Division 1 of the Streets and
Highways Code, shall not be exempted from this division pursuant to
subdivision (a). This subdivision does not apply to improvements as
mitigation for a project for which a negative declaration has been
approved or an environmental impact report has been certified.
(d) A project located on a site that is included on any list
compiled pursuant to Section 65962.5 of the Government Code shall not
be exempted from this division pursuant to subdivision (a).
(e) A project that may cause a substantial adverse change in the
significance of a historical resource, as specified in Section
21084.1, shall not be exempted from this division pursuant to
subdivision (a).
SEC. 176. Section 72410 of the Public Resources Code is amended to
read:
72410. (a) Unless the context otherwise requires, the definitions
set forth in this section govern this division.
(b) "Board" means the State Water Resources Control Board.
(c) "Commission" means the State Lands Commission.
(d) "Graywater" means drainage from dishwasher, shower, laundry,
bath, and washbasin drains, but does not include drainage from
toilets, urinals, hospitals, or cargo spaces.
(e) "Hazardous waste" has the meaning set forth in Section 25117
of the Health and Safety Code, but does not include sewage.
(f) "Large passenger vessel" or "vessel" means a vessel of 300
gross registered tons or greater that is engaged in the carrying of
passengers for hire, excluding all of the following vessels:
(1) Vessels without berths or overnight accommodations for
passengers.
(2) Noncommercial vessels, warships, vessels operated by nonprofit
entities as determined by the Internal Revenue Service, and vessels
operated by the state, the United States, or a foreign government.
(3) Oceangoing ships, as defined in subdivision (j).
(g) "Marine waters of the state" means waters within the area
bounded by the mean high tide line to the three-mile state waters
limit, from the Oregon border to the Mexican border.
(h) "Marine sanctuary" means marine waters of the state in the
Channel Islands National Marine Sanctuary, Cordell Bank National
Marine Sanctuary, Gulf of the Farallones National Marine Sanctuary,
or Monterey Bay National Marine Sanctuary.
(i) "Medical waste" means medical waste subject to regulation
pursuant to Part 14 (commencing with Section 117600) of Division 104
of the Health and Safety Code.
(j) "Oceangoing ship" means a private, commercial, government, or
military vessel of 300 gross registered tons or more calling on
California ports or places.
(k) "Oil" has the meaning set forth in Section 8750.
(l) "Oily bilgewater" includes bilgewater that contains used
lubrication oils, oil sludge and slops, fuel and oil sludge, used
oil, used fuel and fuel filters, and oily waste.
(m) "Operator" has the meaning set forth in Section 651 of the
Harbors and Navigation Code.
(n) "Other waste" means photography laboratory chemicals, dry
cleaning chemicals, or medical waste.
(o) "Owner" has the meaning set forth in Section 651 of the
Harbors and Navigation Code.
(p) "Release" means discharging or disposing of wastes into the
environment.
(q) "Sewage" has the meaning set forth in Section 775.5 of the
Harbors and Navigation Code, including material that has been
collected or treated through a marine sanitation device as that term
is used in Section 312 of the federal Clean Water Act (33 U.S.C. Sec.
1322) or material that is a byproduct of sewage treatment.
(r) "Sewage sludge" has the meaning set forth in Section 122.2 of
Title 40 of the Code of Federal Regulations.
(s) "Sufficient holding tank capacity" means a holding tank of
sufficient capacity to contain sewage and graywater while the
oceangoing ship is within the marine waters of the state.
(t) "Waste" means hazardous waste and other waste.
SEC. 177. Section 2827.10 of the Public Utilities Code is amended
to read:
2827.10. (a) As used in this section, the following terms have
the following meanings:
(1) "Electrical corporation" means an electrical corporation, as
defined in Section 218.
(2) "Eligible fuel cell electrical generating facility" means a
facility that includes the following:
(A) Integrated powerplant systems containing a stack, tubular
array, or other functionally similar configuration used to
electrochemically convert fuel to electric energy.
(B) An inverter and fuel processing system where necessary.
(C) Other plant equipment, including heat recovery equipment,
necessary to support the plant's operation or its energy conversion.
(3) (A) "Eligible fuel cell customer-generator" means a customer
of an electrical corporation that meets all the following criteria:
(i) Uses a fuel cell electrical generating facility with a
capacity of not more than one megawatt that is located on or adjacent
to the customer's owned, leased, or rented premises, is
interconnected and operates in parallel with the electrical grid
while the grid is operational or in a grid independent mode when the
grid is nonoperational, and is sized to offset part or all of the
eligible fuel cell customer-generator's own electrical requirements.
(ii) Is the recipient of local, state, or federal funds, or who
self-finances projects designed to encourage the development of
eligible fuel cell electrical generating facilities.
(iii) Uses technology the commission has determined will achieve
reductions in emissions of greenhouse gases pursuant to subdivision
(b), and meets the emission requirements for eligibility for funding
set forth in subdivision (c), of Section 379.6.
(B) For purposes of this paragraph, a person or entity is a
customer of the electrical corporation if the customer is physically
located within the service territory of the electrical corporation
and receives bundled service, distribution service, or transmission
service from the electrical corporation.
(4) "Net energy metering" means measuring the difference between
the electricity supplied through the electrical grid and the
difference between the electricity generated by an eligible fuel cell
electrical generating facility and fed back to the electrical grid
over a 12-month period as described in subdivision (e). Net energy
metering shall be accomplished using a time-of-use meter capable of
registering the flow of electricity in two directions. If the
existing electrical meter of an eligible fuel cell customer-generator
is not capable of measuring the flow of electricity in two
directions, the eligible fuel cell customer-generator shall be
responsible for all expenses involved in purchasing and installing a
meter that is able to measure electricity flow in two directions. If
an additional meter or meters are installed, the net energy metering
calculation shall yield a result identical to that of a time-of-use
meter.
(b) (1) Every electrical corporation, not later than March 1,
2004, shall file with the commission a standard tariff providing for
net energy metering for eligible fuel cell customer-generators,
consistent with this section. Subject to the limitation in
subdivision (f), every electrical corporation shall make this tariff
available to eligible fuel cell customer-generators upon request, on
a first-come-first-served basis, until the total cumulative rated
generating capacity of the eligible fuel cell electrical generating
facilities receiving service pursuant to the tariff reaches a level
equal to its proportionate share of a statewide limitation of 500
megawatts cumulative rated generation capacity served under this
section. The proportionate share shall be calculated based on the
ratio of the electrical corporation's peak demand compared to the
total statewide peak demand.
(2) To continue the growth of the market for onsite electrical
generation using fuel cells, the commission may review and
incrementally raise the limitation established in paragraph (1) on
the total cumulative rated generating capacity of the eligible fuel
cell electrical generating facilities receiving service pursuant to
the tariff in paragraph (1).
(c) In determining the eligibility for the cumulative rated
generating capacity within an electrical corporation's service
territory, preference shall be given to facilities that, at the time
of installation, are located in a community with significant exposure
to air contaminants or localized air contaminants, or both,
including, but not limited to, communities of minority populations or
low-income populations, or both, based on the ambient air quality
standards established pursuant to Section 39607 of the Health and
Safety Code.
(d) (1) Each net energy metering contract or tariff shall be
identical, with respect to rate structure, all retail rate
components, and any monthly charges, to the contract or tariff to
which the customer would be assigned if the customer was not an
eligible fuel cell customer-generator. Any new or additional demand
charge, standby charge, customer charge, minimum monthly charge,
interconnection charge, or other charge that would increase an
eligible fuel cell customer-generator's costs beyond those of other
customers in the rate class to which the eligible fuel cell
customer-generator would otherwise be assigned are contrary to the
intent of the Legislature in enacting this section, and may not form
a part of net energy metering tariffs.
(2) The commission shall authorize an electrical corporation to
charge a fuel cell customer-generator a fee based on the cost to the
utility associated with providing interconnection inspection services
for that fuel cell customer-generator.
(e) The net metering calculation shall be made by measuring the
difference between the electricity supplied to the eligible fuel cell
customer-generator and the electricity generated by the eligible
fuel cell customer-generator and fed back to the electrical grid over
a 12-month period. The following rules shall apply to the annualized
metering calculation:
(1) The eligible fuel cell customer-generator shall, at the end of
each 12-month period following the date of final interconnection of
the eligible fuel cell electrical generating facility with an
electrical corporation, and at each anniversary date thereafter, be
billed for electricity used during that period. The electrical
corporation shall determine if the eligible fuel cell
customer-generator was a net consumer or a net producer of
electricity during that period. For purposes of determining if the
eligible fuel cell customer-generator was a net consumer or a net
producer of electricity during that period, the electrical
corporation shall aggregate the electrical load of the meters located
on the property where the eligible fuel cell electrical generating
facility is located and on all property adjacent or contiguous to the
property on which the facility is located, if those properties are
solely owned, leased, or rented by the eligible fuel cell
customer-generator. Each aggregated account shall be billed and
measured according to a time-of-use rate schedule.
(2) At the end of each 12-month period, where the electricity
supplied during the period by the electrical corporation exceeds the
electricity generated by the eligible fuel cell customer-generator
during that same period, the eligible fuel cell customer-generator is
a net electricity consumer and the electrical corporation shall be
owed compensation for the eligible fuel cell customer-generator's net
kilowatthour consumption over that same period. The compensation
owed for the eligible fuel cell customer-generator's consumption
shall be calculated as follows:
(A) The generation charges
for any net monthly consumption of electricity shall be calculated
according to the terms of the tariff to which the same customer would
be assigned to or be eligible for if the customer was not an
eligible fuel cell customer-generator. When the eligible fuel cell
customer-generator is a net generator during any discrete time-of-use
period, the net kilowatthours produced shall be valued at the same
price per kilowatthour as the electrical corporation would charge for
retail kilowatthour sales for generation, exclusive of any
surcharges, during that same time-of-use period. If the eligible fuel
cell customer-generator's time-of-use electrical meter is unable to
measure the flow of electricity in two directions, paragraph (4) of
subdivision (a) shall apply. All other charges, other than generation
charges, shall be calculated in accordance with the eligible fuel
cell customer-generator's applicable tariff and based on the total
kilowatthours delivered by the electrical corporation to the eligible
fuel cell customer-generator. To the extent that charges for
transmission and distribution services are recovered through demand
charges in any particular month, no standby reservation charges shall
apply in that monthly billing cycle.
(B) The net balance of moneys owed shall be paid in accordance
with the electrical corporation's normal billing cycle.
(3) At the end of each 12-month period, where the electricity
generated by the eligible fuel cell customer-generator during the
12-month period exceeds the electricity supplied by the electrical
corporation during that same period, the eligible fuel cell
customer-generator is a net electricity producer and the electrical
corporation shall retain any excess kilowatthours generated during
the prior 12-month period. The eligible fuel cell customer-generator
shall not be owed any compensation for those excess kilowatthours.
(4) If an eligible fuel cell customer-generator terminates service
with the electrical corporation, the electrical corporation shall
reconcile the eligible fuel cell customer-generator's consumption and
production of electricity during any 12-month period.
(f) No fuel cell electrical generating facility shall be eligible
for the tariff unless it commences operation prior to January 1,
2015, unless a later enacted statute, that is chaptered before
January 1, 2015, extends this eligibility commencement date. The
tariff shall remain in effect for an eligible fuel cell electrical
generating facility that commences operation pursuant to the tariff
prior to January 1, 2015. A fuel cell customer-generator shall be
eligible for the tariff established pursuant to this section only for
the operating life of the eligible fuel cell electrical generating
facility.
SEC. 178. Section 2862 of the Public Utilities Code is amended to
read:
2862. The Legislature finds and declares all of the following:
(a) California is heavily dependent on natural gas, importing more
than 80 percent of the natural gas it consumes.
(b) Rising worldwide demand for natural gas and a shrinking supply
create rising and unstable prices that can harm California consumers
and the economy.
(c) Natural gas is a fossil fuel and a major source of global
warming pollution and the pollutants that cause air pollution,
including smog.
(d) California's growing population and economy will put a strain
on energy supplies and threaten the ability of the state to meet its
global warming goals unless specific steps are taken to reduce demand
and generate energy cleanly and efficiently.
(e) Water heating for domestic and industrial use relies almost
entirely on natural gas and accounts for a significant percentage of
the state's natural gas consumption.
(f) Solar water heating systems represent the largest untapped
natural gas saving potential remaining in California.
(g) In addition to financial and energy savings, solar water
heating systems can help protect against future gas and electricity
shortages and reduce our dependence on foreign sources of energy.
(h) Solar water heating systems can also help preserve the
environment and protect public health by reducing air pollution,
including carbon dioxide, a leading global warming gas, and nitrogen
oxide, a precursor to smog.
(i) Growing demand for these technologies will create jobs in
California as well as promote greater energy independence, protect
consumers from rising energy costs, and result in cleaner air.
(j) It is in the interest of the State of California to promote
solar water heating systems and other technologies that directly
reduce demand for natural gas in homes and businesses.
(k) It is the intent of the Legislature to build a mainstream
market for solar water heating systems that directly reduces demand
for natural gas in homes, businesses, schools, nonprofit, and
government buildings. Toward that end, it is the goal of this article
to install at least 200,000 solar water heating systems on homes,
businesses, and other buildings or facilities of eligible customer
classes throughout the state by 2017, thereby lowering prices and
creating a self-sufficient market that will sustain itself beyond the
life of this program.
(l) It is the intent of the Legislature that the solar water
heating system incentives created by this article should be a
cost-effective investment by gas customers. Gas customers will recoup
the cost of their investment through lower prices as a result of
avoiding purchases of natural gas.
(m) It is the intent of the Legislature that this article will
encourage the cost-effective deployment of solar heating systems in
both residential and commercial markets and in each end-use
application sector in a balanced manner. It is the intent of the
Legislature that the commission monitor and adjust incentives created
by this article so that they are cost-effective investments
sufficient to significantly increase markets and promote market
transformation. It is the intent of the Legislature that the
commission ensure that increased, uniform growth in each market
sector is achieved through program incentives or structure
adjustments that prevent overutilization of program resources by any
single sector.
SEC. 179. Section 5142 of the Public Utilities Code is amended to
read:
5142. (a) Except as provided in Section 5133, a household goods
carrier in compliance with this chapter has a lien on used household
goods and personal effects to secure payment of the amount specified
in subdivision (b) for transportation and additional services ordered
by the consignor. A lien does not attach to food, medicine, or
medical devices, items used to treat or assist an individual with a
disability, or items used for the care of a minor child.
(b) (1) The amount secured by the lien is the maximum total dollar
amount for the transportation of the household goods and personal
effects and any additional services (including any bona fide change
order permitted under the commission's tariffs) that is set forth
clearly and conspicuously in writing adjacent to the space reserved
for the signature of the consignor and that is agreed to by the
consignor before any goods or personal effects are moved from their
location or any additional services are performed.
(2) The dollar amount for the transportation of household goods
and personal effects and additional services may not be preprinted on
any form, shall be just and reasonable, and shall be established in
good faith by the household goods carrier based on the specific
circumstances of the services to be performed.
(c) Upon tender to the household goods carrier of the amount
specified in subdivision (b), the lien is extinguished, and the
household goods carrier shall release all household goods and
personal effects to the consignee.
(d) A household goods carrier may enforce the lien on household
goods and personal effects provided in this section except as to any
goods that the carrier voluntarily delivers or unjustifiably refuses
to deliver. The lien shall be enforced in the manner provided in this
section and Chapter 6 (commencing with Section 9601) of Division 9
of the Commercial Code for the enforcement of a security interest in
consumer goods in a consumer transaction. To the extent of any
conflict between this section and that Chapter 6, this section shall
prevail. Every act required in connection with enforcing the lien
shall be performed in good faith and in a commercially reasonable
manner.
(e) The household goods carrier shall provide a notification of
disposition at least 30 days prior to any disposition to each
consignor and consignee by personal delivery, or in the alternative,
by first-class and certified mail, postage prepaid and return receipt
requested, at the address last known by the carrier and at the
destination address, and by electronic mail if an electronic mail
address is known to the carrier. If any of the required recipients of
notice are married to each other, and according to the carrier's
records, reside at the same address, one notice addressed to both
shall be sufficient. Within 14 days after a disposition, the carrier
shall provide to the consignors any surplus funds from the
disposition and an accounting, without charge, of the proceeds of the
disposition.
(f) Any person having possession or control of household goods or
personal effects, who knows, or through the exercise of reasonable
care should know, that the household goods carrier has been tendered
the amount specified in subdivision (b), shall release the household
goods and personal effects to the consignor or consignee, upon the
request of the consignor or consignee. If the person fails to release
the household goods and personal effects to the consignor or
consignee, any peace officer, as defined in subdivision (c) of
Section 5133, may take custody of the household goods and personal
effects and release them to the consignor or consignee.
(g) This section shall not affect any rights, if any, of a
household goods carrier to claim additional amounts, on an unsecured
basis, or of a consignor or consignee to make or contest any claim,
and tender of payment of the amount specified in subdivision (b) is
not a waiver of claims by the consignor or consignee.
(h) Any person injured by a violation of this section may bring an
action for the recovery of the greater of one thousand dollars
($1,000) or actual damages, injunctive or other equitable relief,
reasonable attorney's fees and costs, and exemplary damages of not
less than three times the amount of actual damages for a willful
violation.
(i) Any waiver of this section shall be void and unenforceable.
(j) Notwithstanding any other law, this section exclusively
establishes and provides for a household goods carrier's lien on used
household goods and personal effects to secure payment for
transportation and additional services ordered by the consignor.
(k) For purposes of this section, the following terms have the
following meanings:
(1) "Consignor" means the person named in the bill of lading as
the person from whom the household goods and personal effects have
been received for shipment and that person's agent.
(2) "Consignee" means the person named in the bill of lading to
whom or to whose order the household goods carrier is required to
make delivery as provided in the bill of lading and that person's
agent.
(l) Any document required by this section may be in an electronic
form, if agreed upon by the carrier and the customer.
SEC. 180. Section 5143 of the Public Utilities Code is amended to
read:
5143. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Consignor" means the person named in the bill of lading as
the person from whom the household goods and personal effects have
been received for shipment and that person's agent.
(2) "Consignee" means the person named in the bill of lading to
whom or to whose order the household goods carrier is required to
make delivery as provided in the bill of lading and that person's
agent.
(b) Any household goods carrier engaged in the business of
transportation of used household goods and personal effects by motor
vehicle over any public highway in this state shall provide each
consignor with a completed copy of the notice set forth in this
section. The notice shall be printed in at least 12-point type,
except the title and first two paragraphs which shall be printed in
boldface type, and provided to each consignor at least three days
prior to the date scheduled for the transportation of household goods
or personal effects. If the consignor requests services on a date
that is less than three days before the scheduled date for
transportation of the household goods or personal effects, the
carrier shall provide the notice as soon as practicable, but in no
event may the carrier commence any services until the consignor has
signed and received a signed copy of the notice. The carrier shall
obtain sufficient information from the consignor to fill out the form
and shall include the correct maximum amount and a sufficient
description of services that will be performed. The carrier shall
retain a copy of the notice, signed by the cosignor
consignor , for at least three years from the
date the notice was signed by the cosignor
consignor .
(c) Any waiver of the requirements of this section is void and
unenforceable.
(d) The "Not To Exceed" amount set forth in the notice and the
agreement between the household goods carrier and the consignor shall
be the maximum total dollar amount for which the consignor may be
liable for the transportation of household goods and personal effects
and any additional services ordered by the consignor (including any
bona fide change order permitted under the commission's rules and
tariffs) and agreed to by the consignor before any goods or personal
effects are moved from their location or any other services are
performed.
(e) A household goods carrier may provide the notice set forth in
this section either as a separate document or by including it as the
centerfold of the informational booklet that the household goods
carrier is required to provide the consignor under the commission's
tariffs. If the household goods carrier provides the notice as part
of the informational booklet, the booklet shall contain a tab that
extends beyond the edge of the booklet at the place where the notice
is included. The statement "Important Notice" shall be printed on the
tab in at least 12-point boldface type. In addition, the statement
"Customer Must Read And Sign The Important Notice In The Middle Of
This Booklet Before A Move Can Begin" shall be set forth in 14-point
boldface type on the front cover of the booklet.
(f) The notice provided the consignor shall be in the following
form:
"IMPORTANT NOTICE ABOUT YOUR MOVE
"IT IS VERY IMPORTANT THAT YOU ONLY AGREE TO A "NOT TO EXCEED" AMOUNT
THAT YOU THINK IS A PROPER AND REASONABLE FEE FOR THE SERVICES YOU
ARE REQUESTING. THE "NOT TO EXCEED" AMOUNT THIS MOVER IS REQUESTING
IS $______________________ to perform the following services:
_____________________________________________________________________
______________________________________________________________________
_
______________________________________________________________________
_.
"IF YOU DO NOT AGREE TO THE "NOT TO EXCEED" AMOUNT LISTED OR THE
DESCRIPTION OF SERVICES, YOU HAVE THE RIGHT TO REFUSE THE MOVER'S
SERVICE AT NO CHARGE TO YOU.
"If you request additional or different services at the time of the
move, you may be asked to complete a Change Order which will set
forth your agreement to pay for additional fees for those newly
requested services. If you agree to the additional charges on that
Change Order, those charges may be added to the "NOT TO EXCEED"
amount set forth above. If you do not agree to the amounts listed in
the Change Order, you should not sign it and may refuse the mover's
services.
"A mover cannot refuse to release your goods once you have paid the
"NOT TO EXCEED" amount for the transportation of your goods and
personal effects and any additional services that you have agreed to
in writing. The "NOT TO EXCEED" amount must be reasonable.
"A mover cannot, under any circumstances, withhold food, medicine,
medical devices, items to treat or assist a disabled person, or items
used for care of a minor child. An unlicensed mover has no right to
withhold your goods for any reason including claims that you have not
adequately paid for services rendered.
"For additional information or to confirm whether a mover is licensed
by the California Public Utilities Commission, please call the
Public Utilities Commission toll free at:
___________________________.
insert toll-free number
""I have completed this form and provided the
consumer (shipper) with a copy of this
notice.
""Signed
___________________________Dated_________________
___
""I have been provided with a copy of this
form.
""Signed
___________________________Dated_________________
__''
(g) Any document required by this section may be in an electronic
form, if agreed upon by the carrier and the customer.
SEC. 181. Section 9506 of the Public Utilities Code is amended to
read:
9506. (a) A local publicly owned electric utility shall report to
the Energy Commission regarding the energy storage system
procurement targets and policies adopted by the governing board
pursuant to paragraph (2) of, and report any modifications made to
those targets as a result of a reevaluation undertaken pursuant to
paragraph (3) of subdivision (b) of Section 2836.
(b) By January 1, 2017, a local publicly owned electric utility
shall submit a report to the Energy Commission demonstrating that it
has complied with the energy storage system procurement targets and
policies adopted by the governing board pursuant to subdivision (b)
of Section 2836.
(c) By January 1, 2021, a local publicly owned electric utility
shall submit a report to the Energy Commission demonstrating that it
has complied with the energy storage system procurement targets and
policies adopted by the governing board pursuant to subdivision (b)
of Section 2836.
(d) The Energy Commission shall ensure that a copy of each report
or plan required by subdivisions (b) and (c), with any confidential
information redacted, is available on the Energy Commission's
Internet Web site, or on an Internet Web site maintained by the local
publicly owned electric utility that can be accessed from the Energy
Commission's Internet Web site.
(e) A summary of the reports required by this section shall be
included as part of each integrated energy policy report required
pursuant to Section 25302 of the Public Resources Code.
SEC. 182. Section 185035 of the Public Utilities Code is amended
to read:
185035. (a) The authority shall establish an independent peer
review group for the purpose of reviewing the planning, engineering,
financing, and other elements of the authority's plans and issuing an
analysis of the appropriateness and accuracy of the
authority's assumptions and an analysis of the viability of the
authority's financing plan, including the funding plan for each
corridor required pursuant to subdivision (c) of Section 2704.08 of
the Streets and Highways Code.
(b) The peer review group shall include all of the following:
(1) Two individuals with experience in the construction or
operation of high-speed trains in Europe, Asia, or both, designated
by the Treasurer.
(2) Two individuals, one with experience in engineering and
construction of high-speed trains and one with experience in project
finance, designated by the Controller.
(3) One representative from a financial services or financial
consulting firm who shall not have been a contractor or subcontractor
of the authority for the previous three years, designated by the
Director of Finance.
(4) One representative with experience in environmental planning,
designated by the Secretary of Business, Transportation and Housing.
(5) Two expert representatives from agencies providing intercity
or commuter passenger train services in California, designated by the
Secretary of Business, Transportation and Housing.
(c) The peer review group shall evaluate the authority's funding
plans and prepare its independent judgment as to the feasibility and
reasonableness of the plans, appropriateness of assumptions,
analyses, and estimates, and any other observations or evaluations it
deems necessary.
(d) The authority shall provide the peer review group any and all
information that the peer review group may request to carry out its
responsibilities.
(e) The peer review group shall report its findings and
conclusions to the Legislature no later than 60 days after receiving
the plans.
SEC. 183. Section 2188.6 of the Revenue and Taxation Code, as
amended by Section 79 of Chapter 181 of the Statutes of 2012, is
amended to read:
2188.6. (a) Unless a request for exemption has been recorded
pursuant to subdivision (d), prior to the creation of a condominium
as defined in Section 783 of the Civil Code, the county assessor may
separately assess each individual unit which is shown on the
condominium plan of a proposed condominium project when all of the
following documents have been recorded as required by law:
(1) A subdivision final map or parcel map, as described in
Sections 66434 and 66445, respectively, of the Government Code.
(2) A condominium plan, as defined in Section 4120 of the Civil
Code.
(3) A declaration, as defined in Section 4135 of the Civil Code.
(b) The tax due on each individual unit shall constitute a lien
solely on that unit.
(c) The lien created pursuant to this section shall be a lien on
an undivided interest in a portion of real property coupled with a
separate interest in space called a unit as described in Section 4125
of the Civil Code.
(d) The record owner of the real property may record with the
condominium plan a request that the real property be exempt from
separate assessment pursuant to this section. If a request for
exemption is recorded, separate assessment of a condominium unit
shall be made only in accordance with Section 2188.3.
(e) This section shall become operative on January 1, 1990, and
shall apply to condominium projects for which a condominium plan is
recorded after that date.
SEC. 184. Section 7285.3 of the Revenue and Taxation Code is
amended to read:
7285.3. The combined rate of all taxes imposed in any county
pursuant to this chapter and pursuant to Part 1.6 (commencing with
Section 7251) shall not exceed the rate specified in Section 7251.1.
SEC. 185. Section 17276.20 of the Revenue and Taxation Code is
amended to read:
17276.20. 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 assets that constituted property described in
Section 1221(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) 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 case where 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 case where 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. 186. Section 18152.5 of the Revenue and Taxation Code is
amended to read:
18152.5. (a) For purposes of this part, gross income shall not
include 50 percent of any gain from the sale or exchange of qualified
small business stock held for more than five years.
(b) (1) If the taxpayer has eligible gain for the taxable year
from one or more dispositions of stock issued by any corporation, the
aggregate amount of the gain from dispositions of stock issued by
the corporation which may be taken into account under subdivision (a)
for the taxable year shall not exceed the greater of either of the
following:
(A) Ten million dollars ($10,000,000) reduced by the aggregate
amount of eligible gain taken into account by the taxpayer under
subdivision (a) for prior taxable years and attributable to
dispositions of stock issued by the corporation.
(B) Ten times the aggregate adjusted bases of qualified small
business stock issued by the corporation and disposed of by the
taxpayer during the taxable year. For purposes of this subparagraph,
the adjusted basis of any stock shall be determined without regard to
any addition to the basis after the date on which the
stock was originally issued.
(2) For purposes of this subdivision, the term "eligible gain"
means any gain from the sale or exchange of qualified small business
stock held for more than five years.
(3) (A) In the case of a married individual filing a separate
return, subparagraph (A) of paragraph (1) shall be applied by
substituting five million dollars ($5,000,000) for ten million
dollars ($10,000,000).
(B) In the case of a married taxpayer filing a joint return, the
amount of gain taken into account under subdivision (a) shall be
allocated equally between the spouses for purposes of applying this
subdivision to subsequent taxable years.
(C) For purposes of this subdivision, marital status shall be
determined under Section 7703 of the Internal Revenue Code.
(c) For purposes of this section:
(1) Except as otherwise provided in this section, the term
"qualified small business stock" means any stock in a C corporation
which is originally issued after August 10, 1993, if both of the
following apply:
(A) As of the date of issuance, the corporation is a qualified
small business.
(B) Except as provided in subdivisions (f) and (h), the stock is
acquired by the taxpayer at its original issue (directly or through
an underwriter) in either of the following manners:
(i) In exchange for money or other property (not including stock).
(ii) As compensation for services provided to the corporation
(other than services performed as an underwriter of the stock).
(2) (A) Stock in a corporation shall not be treated as qualified
small business stock unless, during substantially all of the taxpayer'
s holding period for the stock, the corporation meets the active
business requirements of subdivision (e) and the corporation is a C
corporation.
(B) (i) Notwithstanding subdivision (e), a corporation shall be
treated as meeting the active business requirements of subdivision
(e) for any period during which the corporation qualifies as a
specialized small business investment company.
(ii) For purposes of clause (i), the term "specialized small
business investment company" means any eligible corporation (as
defined in paragraph (4) of subdivision (e)) that is licensed to
operate under former Section 301(d) of the federal Small Business
Investment Act of 1958 (as in effect on May 13, 1993).
(3) (A) Stock acquired by the taxpayer shall not be treated as
qualified small business stock if, at any time during the four-year
period beginning on the date two years before the issuance of the
stock, the corporation issuing the stock purchased (directly or
indirectly) any of its stock from the taxpayer or from a related
person (within the meaning of Section 267(b) or 707(b)) to the
taxpayer.
(B) Stock issued by a corporation shall not be treated as
qualified small business stock if, during the two-year period
beginning on the date one year before the issuance of the stock, the
corporation made one or more purchases of its stock with an aggregate
value (as of the time of the respective purchases) exceeding 5
percent of the aggregate value of all of its stock as of the
beginning of the two-year period.
(C) If any transaction is treated under Section 304(a) of the
Internal Revenue Code as a distribution in redemption of the stock of
any corporation, for purposes of subparagraphs (A) and (B), the
corporation shall be treated as purchasing an amount of its stock
equal to the amount treated as a distribution in redemption of the
stock of the corporation under Section 304(a) of the Internal Revenue
Code.
(d) For purposes of this section:
(1) The term "qualified small business" means any domestic
corporation (as defined in Section 7701(a)(4) of the Internal Revenue
Code) which is a C corporation if all of the following apply:
(A) The aggregate gross assets of the corporation (or any
predecessor thereof) at all times on or after July 1, 1993, and
before the issuance did not exceed fifty million dollars
($50,000,000).
(B) The aggregate gross assets of the corporation immediately
after the issuance (determined by taking into account amounts
received in the issuance) do not exceed fifty million dollars
($50,000,000).
(C) At least 80 percent of the corporation's payroll, as measured
by total dollar value, is attributable to employment located within
California.
(D) The corporation agrees to submit those reports to the
Franchise Tax Board and to shareholders as the Franchise Tax Board
may require to carry out the purposes of this section.
(2) (A) For purposes of paragraph (1), the term "aggregate gross
assets" means the amount of cash and the aggregate adjusted basis of
other property held by the corporation.
(B) For purposes of subparagraph (A), the adjusted basis of any
property contributed to the corporation (or other property with a
basis determined in whole or in part by reference to the adjusted
basis of property so contributed) shall be determined as if the basis
of the property contributed to the corporation immediately after the
contribution was equal to its fair market value as of the time of
the contribution.
(3) (A) All corporations which are members of the same
parent-subsidiary controlled group shall be treated as one
corporation for purposes of this subdivision.
(B) For purposes of subparagraph (A), the term "parent-subsidiary
controlled group" means any controlled group of corporations as
defined in Section 1563(a)(1) of the Internal Revenue Code, except
that both of the following shall apply:
(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) Section 1563(a)(4) of the Internal Revenue Code shall not
apply.
(e) (1) For purposes of paragraph (2) of subdivision (c), the
requirements of this subdivision are met by a corporation for any
period if during that period both of the following apply:
(A) At least 80 percent (by value) of the assets of the
corporation are used by the corporation in the active conduct of one
or more qualified trades or businesses in California.
(B) The corporation is an eligible corporation.
(2) For purposes of paragraph (1), if, in connection with any
future qualified trade or business, a corporation is engaged in:
(A) Startup activities described in Section 195(c)(1)(A) of the
Internal Revenue Code,
(B) Activities resulting in the payment or incurring of
expenditures which may be treated as research and experimental
expenditures under Section 174 of the Internal Revenue Code, or
(C) Activities with respect to in-house research expenses
described in Section 41(b)(2) of the Internal Revenue Code, then
assets used in those activities shall be treated as used in the
active conduct of a qualified trade or business. Any determination
under this paragraph shall be made without regard to whether a
corporation has any gross income from those activities at the time of
the determination.
(3) For purposes of this subdivision, the term "qualified trade or
business" means any trade or business other than any of the
following:
(A) Any trade or business involving the performance of services in
the fields of health, law, engineering, architecture, accounting,
actuarial science, performing arts, consulting, athletics, financial
services, brokerage services, or any trade or business where the
principal asset of the trade or business is the reputation or skill
of one or more of its employees.
(B) Any banking, insurance, financing, leasing, investing, or
similar business.
(C) Any farming business (including the business of raising or
harvesting trees).
(D) Any business involving the production or extraction of
products of a character with respect to which a deduction is
allowable under Section 613 or 613A of the Internal Revenue Code.
(E) Any business of operating a hotel, motel, restaurant, or
similar business.
(4) For purposes of this subdivision, the term "eligible
corporation" means any domestic corporation, except that the term
shall not include any of the following:
(A) A DISC or former DISC.
(B) A corporation with respect to which an election under Section
936 of the Internal Revenue Code is in effect or which has a direct
or indirect subsidiary with respect to which the election is in
effect.
(C) A regulated investment company, real estate investment trust
(REIT), or real estate mortgage investment conduit (REMIC).
(D) A cooperative.
(5) (A) For purposes of this subdivision, stock and debt in any
subsidiary corporation shall be disregarded and the parent
corporation shall be deemed to own its ratable share of the
subsidiary's assets, and to conduct its ratable share of the
subsidiary's activities.
(B) A corporation shall be treated as failing to meet the
requirements of paragraph (1) for any period during which more than
10 percent of the value of its assets (in excess of liabilities)
consists of stock or securities in other corporations which are not
subsidiaries of the corporation (other than assets described in
paragraph (6)).
(C) For purposes of this paragraph, a corporation shall be
considered a subsidiary if the parent owns more than 50 percent of
the combined voting power of all classes of stock entitled to vote,
or more than 50 percent in value of all outstanding stock, of the
corporation.
(6) For purposes of subparagraph (A) of paragraph (1), the
following assets shall be treated as used in the active conduct of a
qualified trade or business:
(A) Assets that are held as a part of the reasonably required
working capital needs of a qualified trade or business of the
corporation.
(B) Assets that are held for investment and are reasonably
expected to be used within two years to finance research and
experimentation in a qualified trade or business or increases in
working capital needs of a qualified trade or business. For periods
after the corporation has been in existence for at least two years,
in no event may more than 50 percent of the assets of the corporation
qualify as used in the active conduct of a qualified trade or
business by reason of this paragraph.
(7) A corporation shall not be treated as meeting the requirements
of paragraph (1) for any period during which more than 10 percent of
the total value of its assets consists of real property that is not
used in the active conduct of a qualified trade or business. For
purposes of the preceding sentence, the ownership of, dealing in, or
renting of, real property shall not be treated as the active conduct
of a qualified trade or business.
(8) For purposes of paragraph (1), rights to computer software
that produces active business computer software royalties (within the
meaning of Section 543(d)(1) of the Internal Revenue Code) shall be
treated as an asset used in the active conduct of a trade or
business.
(9) A corporation shall not be treated as meeting the requirements
of paragraph (1) for any period during which more than 20 percent of
the corporation's total payroll expense is attributable to
employment located outside of California.
(f) If any stock in a corporation is acquired solely through the
conversion of other stock in the corporation that is qualified small
business stock in the hands of the taxpayer, both of the following
shall apply:
(1) The stock so acquired shall be treated as qualified small
business stock in the hands of the taxpayer.
(2) The stock so acquired shall be treated as having been held
during the period during which the converted stock was held.
(g) (1) If any amount included in gross income by reason of
holding an interest in a pass-thru entity meets the requirements of
paragraph (2), then both of the following shall apply:
(A) The amount shall be treated as gain described in subdivision
(a).
(B) For purposes of applying subdivision (b), the amount shall be
treated as gain from a disposition of stock in the corporation
issuing the stock disposed of by the pass-thru entity and the
taxpayer's proportionate share of the adjusted basis of the pass-thru
entity in the stock shall be taken into account.
(2) An amount meets the requirements of this paragraph if both of
the following apply:
(A) The amount is attributable to gain on the sale or exchange by
the pass-thru entity of stock that is qualified small business stock
in the hands of the entity (determined by treating the entity as an
individual) and that was held by that entity for more than five
years.
(B) The amount is includable in the gross income of the taxpayer
by reason of the holding of an interest in the entity that was held
by the taxpayer on the date on which the pass-thru entity acquired
the stock and at all times thereafter before the disposition of the
stock by the pass-thru entity.
(3) Paragraph (1) shall not apply to any amount to the extent the
amount exceeds the amount to which paragraph (1) would have applied
if the amount was determined by reference to the interest the
taxpayer held in the pass-thru entity on the date the qualified small
business stock was acquired.
(4) For purposes of this subdivision, the term "pass-through
entity" means any of the following:
(A) Any partnership.
(B) Any S corporation.
(C) Any regulated investment company.
(D) Any common trust fund.
(h) For purposes of this section:
(1) In the case of a transfer described in paragraph (2), the
transferee shall be treated as meeting both of the following:
(A) Having acquired the stock in the same manner as the
transferor.
(B) Having held the stock during any continuous period immediately
preceding the transfer during which it was held (or treated as held
under this subdivision) by the transferor.
(2) A transfer is described in this subdivision if the transfer is
any of the following:
(A) By gift.
(B) At death.
(C) From a partnership to a partner of stock with respect to which
requirements similar to the requirements of subdivision (g) are met
at the time of the transfer (without regard to the five-year holding
period requirement).
(3) Rules similar to the rules of Section 1244(d)(2) of the Internal
Revenue Code shall apply for purposes of this section.
(4) (A) In the case of a transaction described in Section 351 of
the Internal Revenue Code or a reorganization described in Section
368 of the Internal Revenue Code, if qualified small business stock
is exchanged for other stock that would not qualify as qualified
small business stock but for this subparagraph, the other stock shall
be treated as qualified small business stock acquired on the date on
which the exchanged stock was acquired.
(B) This section shall apply to gain from the sale or exchange of
stock treated as qualified small business stock by reason of
subparagraph (A) only to the extent of the gain that would have been
recognized at the time of the transfer described in subparagraph (A)
if Section 351 or 368 of the Internal Revenue Code had not applied at
that time. The preceding sentence shall not apply if the stock that
is treated as qualified small business stock by reason of
subparagraph (A) is issued by a corporation that (as of the time of
the transfer described in subparagraph (A)) is a qualified small
business.
(C) For purposes of this paragraph, stock treated as qualified
small business stock under subparagraph (A) shall be so treated for
subsequent transactions or reorganizations, except that the
limitation of subparagraph (B) shall be applied as of the time of the
first transfer to which the limitation applied (determined after the
application of the second sentence of subparagraph (B)).
(D) In the case of a transaction described in Section 351 of the
Internal Revenue Code, this paragraph shall apply only if immediately
after the transaction the corporation issuing the stock owns
directly or indirectly stock representing control (within the meaning
of Section 368(c) of the Internal Revenue Code) of the corporation
whose stock was exchanged.
(i) For purposes of this section:
(1) In the case where the taxpayer transfers property (other than
money or stock) to a corporation in exchange for stock in the
corporation, both of the following shall apply:
(A) The stock shall be treated as having been acquired by the
taxpayer on the date of the exchange.
(B) The basis of the stock in the hands of the taxpayer shall in
no event be less than the fair market value of the property
exchanged.
(2) If the adjusted basis of any qualified small business stock is
adjusted by reason of any contribution to capital after the date on
which the stock was originally issued, in determining the amount of
the adjustment by reason of the contribution, the basis of the
contributed property shall in no event be treated as less than its
fair market value on the date of the contribution.
(j) (1) If the taxpayer has an offsetting short position with
respect to any qualified small business stock, subdivision (a) shall
not apply to any gain from the sale or exchange of the stock unless
both of the following apply:
(A) The stock was held by the taxpayer for more than five years as
of the first day on which there was such a short position.
(B) The taxpayer elects to recognize gain as if the stock was sold
on that first day for its fair market value.
(2) For purposes of paragraph (1), the taxpayer shall be treated
as having an offsetting short position with respect to any qualified
small business stock if any of the following apply:
(A) The taxpayer has made a short sale of substantially identical
property.
(B) The taxpayer has acquired an option to sell substantially
identical property at a fixed price.
(C) To the extent provided in regulations, the taxpayer has
entered into any other transaction that substantially reduces the
risk of loss from holding the qualified small business stock. For
purposes of the preceding sentence, any reference to the taxpayer
shall be treated as including a reference to any person who is
related (within the meaning of Section 267(b) or 707(b) of the
Internal Revenue Code) to the taxpayer.
(k) The Franchise Tax Board may prescribe those regulations as may
be appropriate to carry out the purposes of this section, including
regulations to prevent the avoidance of the purposes of this section
through splitups, shell corporations, partnerships, or otherwise.
( l ) It is the intent of the Legislature that, in
construing this section, any regulations that may be promulgated by
the Secretary of the Treasury under Section 1202(k) of the Internal
Revenue Code shall apply to the extent that those regulations do not
conflict with this section or with any regulations that may be
promulgated by the Franchise Tax Board.
SEC. 187. Section 18738 of the Revenue and Taxation Code, as added
by Section 1 of Chapter 228 of the Statutes of 2012, is amended to
read:
18738. (a) All moneys transferred to the California YMCA Youth
and Government Fund pursuant to Section 18736, upon appropriation by
the Legislature, shall be allocated as follows:
(1) To the Franchise Tax Board, the Controller, and the State
Department of Education for reimbursement of all costs incurred by
the Franchise Tax Board, the Controller, and the State Department of
Education in connection with their duties under this article.
(2) The balance to the State Department of Education for
distribution as follows:
(A) If the California YMCA Youth and Government Fund collects
contributions of less than three hundred thousand dollars ($300,000),
all funds shall be distributed to the California YMCA Youth and
Government Program.
(B) If the California YMCA Youth and Government Fund collects
contributions in excess of three hundred thousand dollars ($300,000),
the balance of the fund shall be distributed as follows:
(i) To provide an annual grant of ten thousand dollars ($10,000)
to each of the following nonprofit civic youth organizations in order
to operate civic education and mock legislative programs:
(I) African American Leaders for Tomorrow Program.
(II) Asian Pacific Youth Leadership Project.
(III) Chicano Latino Youth Leadership Project.
(ii) (I) All remaining funds shall be distributed to the
California YMCA Youth and Government Program.
(II) The California YMCA Youth and Government Board of Directors
may award additional nonprofit civic youth organizations a grant of
up to ten thousand dollars ($10,000) each in order to operate civic
education and mock legislative programs. Grants shall be administered
by the California YMCA Youth and Government Board of Directors, who
shall be responsible for developing criteria, evaluating
applications, and awarding grants to eligible organizations.
(b) All moneys allocated pursuant to subdivision (a) may be
carried over from the year in which they were received.
(c) Funds distributed to the California YMCA Youth and Government
Program, the African American Leaders for Tomorrow Program, the Asian
Pacific Youth Leadership Project, the Chicano Latino Youth
Leadership Project, and any other nonprofit civic youth organizations
awarded a grant pursuant to clause (i) of subparagraph (B) of
paragraph (2) of subdivision (a) shall be used to support program
participation by underserved students and for direct program-related
expenses.
(d) The funds distributed to the California YMCA Youth and
Government Program by the State Department of Education shall be used
exclusively for program-related expenses.
SEC. 188. Section 23685 of the Revenue and Taxation Code is
amended to read:
23685. (a) (1) For taxable years beginning on or after January 1,
2011, there shall be allowed to a qualified taxpayer a credit
against the "tax," as defined in Section 23036, in an amount equal to
the applicable percentage, as specified in paragraph (4), of the
qualified expenditures for the production of a qualified motion
picture in California.
(2) The credit shall be allowed for the taxable year in which the
California Film Commission issues the credit certificate pursuant to
subdivision (g) for the qualified motion picture, and shall be for
the applicable percentage of all qualified expenditures paid or
incurred by the qualified taxpayer in all taxable years for that
qualified motion picture.
(3) The amount of the credit allowed to a qualified taxpayer shall
be limited to the amount specified in the credit certificate issued
to the qualified taxpayer by the California Film Commission pursuant
to subdivision (g).
(4) For purposes of paragraphs (1) and (2), the applicable
percentage shall be:
(A) Twenty percent of the qualified expenditures attributable to
the production of a qualified motion picture in California.
(B) Twenty-five percent of the qualified expenditures attributable
to the production of a qualified motion picture in California where
the qualified motion picture is a television series that relocated to
California or an independent film.
(b) For purposes of this section:
(1) "Ancillary product" means any article for sale to the public
that contains a portion of, or any element of, the qualified motion
picture.
(2) "Budget" means an estimate of all expenses paid or incurred
during the production period of a qualified motion picture. It shall
be the same budget used by the qualified taxpayer and production
company for all qualified motion picture purposes.
(3) "Clip use" means a use of any portion of a motion picture,
other than the qualified motion picture, used in the qualified motion
picture.
(4) "Credit certificate" means the certificate issued by the
California Film Commission pursuant to subparagraph (C) of paragraph
(2) of subdivision (g).
(5) (A) "Employee fringe benefits" means the amount allowable as a
deduction under this part to the qualified taxpayer involved in the
production of the qualified motion picture, exclusive of any amounts
contributed by employees, for any year during the production period
with respect to any of the following:
(i) Employer contributions under any pension, profit-sharing,
annuity, or similar plan.
(ii) Employer-provided coverage under any accident or health plan
for employees.
(iii) The employer's cost of life or disability insurance provided
to employees.
(B) Any amount treated as wages under clause (i) of subparagraph
(A) of paragraph (18) shall not be taken into account under this
paragraph.
(6) "Independent film" means a motion picture with a minimum
budget of one million dollars ($1,000,000) and a maximum budget of
ten million dollars ($10,000,000) that is produced by a company that
is not publicly traded and publicly traded companies do not own,
directly or indirectly, more than 25 percent of the producing
company.
(7) "Licensing" means any grant of rights to distribute the
qualified motion picture, in whole or in part.
(8) "New use" means any use of a motion picture in a medium other
than the medium for which it was initially created.
(9) (A) "Postproduction" means the final activities in a qualified
motion picture's production, including editing, foley recording,
automatic dialogue replacement, sound editing, scoring and music
editing, beginning and end credits, negative cutting, negative
processing and duplication, the addition of sound and visual effects,
soundmixing, film-to-tape transfers, encoding, and color correction.
(B) "Postproduction" does not include the manufacture or shipping
of release prints.
(10) "Preproduction" means the process of preparation for actual
physical production which begins after a qualified motion picture has
received a firm agreement of financial commitment, or is greenlit,
with, for example, the establishment of a dedicated production
office, the hiring of key crew members, and includes, but is not
limited to, activities that include location scouting and execution
of contracts with vendors of equipment and stage space.
(11) "Principal photography" means the phase of production during
which the motion picture is actually shot, as distinguished from
preproduction and postproduction.
(12) "Production period" means the period beginning with
preproduction and ending upon completion of postproduction.
(13) "Qualified entity" means a personal service corporation as
defined in Section 269A(b)(1) of the Internal Revenue Code, a payroll
services corporation, or any entity receiving qualified wages with
respect to services performed by a qualified individual.
(14) (A) "Qualified individual" means any individual who performs
services during the production period in an activity related to the
production of a qualified motion picture.
(B) "Qualified individual" shall not include either of the
following:
(i) Any individual related to the qualified taxpayer as described
in subparagraph (A), (B), or (C) of Section 51(i)(1) of the Internal
Revenue Code.
(ii) Any 5-percent owner, as defined in Section 416(i)(1)(B) of
the Internal Revenue Code, of the qualified taxpayer.
(15) (A) "Qualified motion picture" means a motion picture that is
produced for distribution to the general public, regardless of
medium, that is one of the following:
(i) A feature with a minimum production budget of one million
dollars ($1,000,000) and a maximum production budget of seventy-five
million dollars ($75,000,000).
(ii) A movie of the week or miniseries with a minimum production
budget of five hundred thousand dollars ($500,000).
(iii) A new television series produced in California with a
minimum production budget of one million dollars ($1,000,000)
licensed for original distribution on basic cable.
(iv) An independent film.
(v) A television series that relocated to California.
(B) To qualify as a "qualified motion picture," all of the
following conditions shall be satisfied:
(i) At least 75 percent of the production days occur wholly in
California or 75 percent of the production budget is incurred for
payment for services performed within the state and the purchase or
rental of property used within the state.
(ii) Production of the qualified motion picture is completed
within 30 months from the date on which the qualified taxpayer's
application is approved by the California Film Commission. For
purposes of this section, a qualified motion picture is "completed"
when the process of postproduction has been finished.
(iii) The copyright for the motion picture is registered with the
United States Copyright Office pursuant to Title 17 of the United
States Code.
(iv) Principal photography of the qualified motion picture
commences after the date on which the application is approved by the
California Film Commission, but no later than 180 days after the date
of that approval.
(C) For the purposes of subparagraph (A), in computing the total
wages paid or incurred for the production of a qualified motion
picture, all amounts paid or incurred by all persons or entities that
share in the costs of the qualified motion picture shall be
aggregated.
(D) "Qualified motion picture" shall not include commercial
advertising, music videos, a motion picture produced for private
noncommercial use, such as weddings, graduations, or as part of an
educational course and made by students, a news program, current
events or public events program, talk show, game show, sporting event
or activity, awards show, telethon or other production that solicits
funds, reality television program, clip-based programming if more
than 50 percent of the content is comprised of licensed footage,
documentaries, variety programs, daytime dramas, strip shows,
one-half hour (air time) episodic television shows, or any production
that falls within the recordkeeping requirements of Section 2257 of
Title 18 of the United States Code.
(16) "Qualified expenditures" means amounts paid or incurred to
purchase or lease tangible personal property used within this state
in the production of a qualified motion picture and payments,
including qualified wages, for services performed within this state
in the production of a qualified motion picture.
(17) (A) "Qualified taxpayer" means a taxpayer who has paid or
incurred qualified expenditures and has been issued a credit
certificate by the California Film Commission pursuant to subdivision
(g).
(B) (i) 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 is not
allowed to the pass-thru entity, but shall be passed through to the
partners or shareholders in accordance with applicable provisions of
Part 10 (commencing with Section 17001) or Part 11 (commencing with
Section 23001). For purposes of this paragraph, "pass-thru entity"
means any entity taxed as a partnership or "S" corporation.
(ii) In the case of an "S" corporation, the credit allowed under
this section shall not be used by an "S" corporation as a credit
against a tax imposed under Chapter 4.5 (commencing with Section
23800) of Part 11 of Division 2.
(18) (A) "Qualified wages" means all of the following:
(i) Any wages subject to withholding under Division 6 (commencing
with Section 13000) of the Unemployment Insurance Code that were paid
or incurred by any taxpayer involved in the production of a
qualified motion picture with respect to a qualified individual for
services performed on the qualified motion picture production within
this state.
(ii) The portion of any employee fringe benefits paid or incurred
by any taxpayer involved in the production of the qualified motion
picture that are properly allocable to qualified wage amounts
described in clause (i).
(iii) Any payments made to a qualified entity for services
performed in this state by qualified individuals within the meaning
of paragraph (14).
(iv) Remuneration paid to an independent contractor who is a
qualified individual for services performed within this state by that
qualified individual.
(B) "Qualified wages" shall not include any of the following:
(i) Expenses, including wages, related to new use, reuse, clip
use, licensing, secondary markets, or residual compensation, or the
creation of any ancillary product, including, but not limited to, a
soundtrack album, toy, game, trailer, or teaser.
(ii) Expenses, including wages, paid or incurred with respect to
acquisition, development, turnaround, or any rights thereto.
(iii) Expenses, including wages, related to financing, overhead,
marketing, promotion, or distribution of a qualified motion picture.
(iv) Expenses, including wages, paid per person per qualified
motion picture for writers, directors, music directors, music
composers, music supervisors, producers, and performers, other than
background actors with no scripted lines.
(19) "Residual compensation" means supplemental compensation paid
at the time that a motion picture is exhibited through new use,
reuse, clip use, or in secondary markets, as distinguished from
payments made during production.
(20) "Reuse" means any use of a qualified motion picture in the
same medium for which it was created, following the initial use in
that medium.
(21) "Secondary markets" means media in which a qualified motion
picture is exhibited following the initial media in which it is
exhibited.
(22) "Television series that relocated to California" means a
television series, without regard to episode length or initial media
exhibition, that filmed all of its prior season or seasons outside of
California and for which the taxpayer certifies that the credit
provided pursuant to this section is the primary reason for
relocating to California.
(c) (1) Notwithstanding subdivision (i) of Section 23036, in the
case where the credit allowed by this section exceeds the taxpayer's
tax liability computed under this part, a qualified taxpayer may
elect to assign any portion of the 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, and "voting common stock"
is substituted for "voting stock" wherever it appears in the
section.
(2) The election provided in paragraph (1):
(A) May be based on any method selected by the qualified taxpayer
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 qualified taxpayer and the qualified taxpayer's affiliated
corporations that assign and receive the credits.
(D) Shall be reported to the Franchise Tax Board, in the form and
manner specified by the Franchise Tax Board, along with all required
information regarding the assignment of the credit, including the
corporation number, the federal employer identification number, or
other taxpayer identification number of the assignee, and the amount
of the credit assigned.
(3) (A) Notwithstanding any other law, a qualified taxpayer may
sell any credit allowed under this section that is attributable to an
independent film, as defined in paragraph (6) of subdivision (b), to
an unrelated party.
(B) The qualified taxpayer shall report to the Franchise Tax Board
prior to the sale of the credit, in the form and manner specified by
the Franchise Tax Board, all required information regarding the
purchase and sale of the credit, including the social security or
other taxpayer identification number of the unrelated party to whom
the credit has been sold, the face amount of the credit sold, and the
amount of consideration received by the qualified taxpayer for the
sale of the credit.
(4) In the case where the credit allowed under this section
exceeds the "tax," the excess credit may be carried over to reduce
the "tax" in the following taxable year, and succeeding five taxable
years, if necessary, until the credit has been exhausted.
(5) A credit shall not be sold pursuant to this subdivision to
more than one taxpayer, nor may the credit be resold by the unrelated
party to another taxpayer or other party.
(6) A party that has been assigned or acquired tax credits under
this paragraph shall be subject to the requirements of this section.
(7) In no event may a qualified taxpayer assign or sell any tax
credit to the extent the tax credit allowed by this section is
claimed on any tax return of the qualified taxpayer.
(8) In the event that both the taxpayer originally allocated a
credit under this section by the California Film Commission and a
taxpayer to whom the credit has been sold both claim the same amount
of credit on their tax returns, the Franchise Tax Board may disallow
the credit of either taxpayer, so long as the statute of limitations
upon assessment remains open.
(9) 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 this subdivision.
(10) Subdivision (i) of Section 23036 shall not apply to any
credit sold pursuant to this subdivision.
(11) For purposes of this subdivision:
(A) An affiliated corporation or corporations that are assigned a
credit pursuant to paragraph (1) shall be treated as a qualified
taxpayer pursuant to paragraph (1) of subdivision (a).
(B) The unrelated party or parties that purchase a credit pursuant
to paragraph (3) shall be treated as a qualified taxpayer pursuant
to paragraph (1) of subdivision (a).
(d) No credit shall be allowed pursuant to this section unless the
qualified taxpayer provides the following to the California Film
Commission:
(1) Identification of each qualified individual.
(2) The specific start and end dates of production.
(3) The total wages paid.
(4) The amount of qualified wages paid to each qualified
individual.
(5) The copyright registration number, as reflected on the
certificate of registration issued under the authority of Section 410
of Title 17 of the United States Code, relating to registration of
claim and issuance of certificate. The registration number shall be
provided on the return claiming the credit.
(6) The total amounts paid or incurred to purchase or lease
tangible personal property used in the production of a qualified
motion picture.
(7) Information to substantiate its qualified expenditures.
(8) Information required by the California Film Commission under
regulations promulgated pursuant to subdivision (g) necessary to
verify the amount of credit claimed.
(e) The California Film Commission may prescribe rules and
regulations to carry out the purposes of this section including any
rules and regulations necessary to establish procedures, processes,
requirements, and rules identified in or required to implement this
section. The regulations shall include provisions to set aside a
percentage of annual credit allocations for independent films.
(f) If the qualified taxpayer fails to provide the copyright
registration number as required in paragraph (5) of subdivision (d),
the credit shall be disallowed and assessed and collected under
Section 19051 until the procedures are satisfied.
(g) For purposes of this section, the California Film Commission
shall do the following:
(1) On or after July 1, 2009, and before July 1, 2017, allocate
tax credits to applicants.
(A) Establish a procedure for applicants to file with the
California Film Commission a written application, on a form jointly
prescribed by the California Film Commission and the Franchise Tax
Board for the allocation of the tax credit. The application shall
include, but not be limited to, the following information:
(i) The budget for the motion picture production.
(ii) The number of production days.
(iii) A financing plan for the production.
(iv) The diversity of the workforce employed by the applicant,
including, but not limited to, the ethnic and racial makeup of the
individuals employed by the applicant during the production of the
qualified motion picture, to the extent possible.
(v) All members of a combined reporting group, if known at the
time of the application.
(vi) Financial information, if available, including, but not
limited to, the most recently produced balance sheets, annual
statements of profits and losses, audited or unaudited financial
statements, summary budget
projections or results, or the functional equivalent of these
documents of a partnership or owner of a single member limited
liability company that is disregarded pursuant to Section 23038. The
information provided pursuant to this clause shall be confidential
and shall not be subject to public disclosure.
(vii) The names of all partners in a partnership not publicly
traded or the names of all members of a limited liability company
classified as a partnership not publicly traded for California income
tax purposes that have a financial interest in the applicant's
qualified motion picture. The information provided pursuant to this
clause shall be confidential and shall not be subject to public
disclosure.
(viii) Detailed narratives, for use only by the Legislative
Analyst's Office in conducting a study of the effectiveness of this
credit, that describe the extent to which the credit is expected to
influence or affect filming and other business location decisions,
hiring decisions, salary decisions, and any other financial matters
of the applicant.
(ix) Any other information deemed relevant by the California Film
Commission or the Franchise Tax Board.
(B) Establish criteria, consistent with the requirements of this
section, for allocating tax credits.
(C) Determine and designate applicants who meet the requirements
of this section.
(D) Process and approve, or reject, all applications on a
first-come-first-served basis.
(E) Subject to the annual cap established as provided in
subdivision (i), allocate an aggregate amount of credits under this
section and Section 17053.85, and allocate any carryover of
unallocated credits from prior years.
(2) Certify tax credits allocated to qualified taxpayers.
(A) Establish a verification procedure for the amount of qualified
expenditures paid or incurred by the applicant, including, but not
limited to, updates to the information in subparagraph (A) of
paragraph (1) of subdivision (g).
(B) Establish audit requirements that must be satisfied before a
credit certificate may be issued by the California Film Commission.
(C) (i) Establish a procedure for a qualified taxpayer to report
to the California Film Commission, prior to the issuance of a credit
certificate, the following information:
(I) If readily available, a list of the states, provinces, or
other jurisdictions in which any member of the applicant's combined
reporting group in the same business unit as the qualified taxpayer
that, in the preceding calendar year, has produced a qualified motion
picture intended for release in the United States market. For
purposes of this clause, "qualified motion picture" shall not include
any episodes of a television series that were complete or in
production prior to July 1, 2009.
(II) Whether a qualified motion picture described in subclause (I)
was awarded any financial incentive by the state, province, or other
jurisdiction that was predicated on the performance of primary
principal photography or postproduction in that location.
(ii) The California Film Commission may provide that the report
required by this subparagraph be filed in a single report provided on
a calendar year basis for those qualified taxpayers that receive
multiple credit certificates in a calendar year.
(D) Issue a credit certificate to a qualified taxpayer upon
completion of the qualified motion picture reflecting the credit
amount allocated after qualified expenditures have been verified
under this section. The amount of credit shown in the credit
certificate shall not exceed the amount of credit allocated to that
qualified taxpayer pursuant to this section.
(3) Obtain, when possible, the following information from
applicants that do not receive an allocation of credit:
(A) Whether the qualified motion picture that was the subject of
the application was completed.
(B) If completed, in which state or foreign jurisdiction was the
primary principal photography completed.
(C) Whether the applicant received any financial incentives from
the state or foreign jurisdiction to make the qualified motion
picture in that location.
(4) Provide the Legislative Analyst's Office, upon request, any or
all application materials or any other materials received from, or
submitted by, the applicants, in electronic format when available,
including, but not limited to, information provided pursuant to
clauses (i) to (ix), inclusive, of subparagraph (A) of paragraph (1).
(5) The information provided to the California Film Commission
pursuant to this section shall constitute confidential tax
information for purposes of Article 2 (commencing with Section 19542)
of Chapter 7 of Part 10.2.
(h) (1) The California Film Commission shall annually provide the
Legislative Analyst's Office, the Franchise Tax Board, and the board
with a list of qualified taxpayers and the tax credit amounts
allocated to each qualified taxpayer by the California Film
Commission. The list shall include the names and taxpayer
identification numbers, including taxpayer identification numbers of
each partner or shareholder, as applicable, of the qualified
taxpayer.
(2) (A) Notwithstanding paragraph (5) of subdivision (g), the
California Film Commission shall annually post on its Internet Web
site and make available for public release the following:
(i) A table which includes all of the following information: a
list of qualified taxpayers and the tax credit amounts allocated to
each qualified taxpayer by the California Film Commission, the number
of production days in California the qualified taxpayer represented
in its application would occur, the number of California jobs that
the qualified taxpayer represented in its application would be
directly created by the production, and the total amount of qualified
expenditures expected to be spent by the production.
(ii) A narrative staff summary describing the production of the
qualified taxpayer as well as background information regarding the
qualified taxpayer contained in the qualified taxpayer's application
for the credit.
(B) Nothing in this subdivision shall be construed to make the
information submitted by an applicant for a tax credit under this
section a public record.
(i) (1) The aggregate amount of credits that may be allocated in
any fiscal year pursuant to this section and Section 17053.85 shall
be an amount equal to the sum of all of the following:
(A) One hundred million dollars ($100,000,000) in credits for the
2009-10 fiscal year and each fiscal year thereafter, through and
including the 2016-17 fiscal year.
(B) The unused allocation credit amount, if any, for the preceding
fiscal year.
(C) The amount of previously allocated credits not certified.
(2) If the amount of credits applied for in any particular fiscal
year exceeds the aggregate amount of tax credits authorized to be
allocated under this section, such excess shall be treated as having
been applied for on the first day of the subsequent fiscal year.
However, credits may not be allocated from a fiscal year other than
the fiscal year in which the credit was originally applied for or the
immediately succeeding fiscal year.
(3) Notwithstanding the foregoing, the California Film Commission
shall set aside up to ten million dollars ($10,000,000) of tax
credits each fiscal year for independent films allocated in
accordance with rules and regulations developed pursuant to
subdivision (e).
(4) Any act that reduces the amount that may be allocated pursuant
to paragraph (1) constitutes a change in state taxes for the purpose
of increasing revenues within the meaning of Section 3 of Article
XIII A of the California Constitution and may be passed by not less
than two-thirds of all Members elected to each of the two houses of
the Legislature.
(j) The California Film Commission shall have the authority to
allocate tax credits in accordance with this section and in
accordance with any regulations prescribed pursuant to subdivision
(e) upon adoption.
SEC. 189. Section 24416.20 of the Revenue and Taxation Code is
amended to read:
24416.20. 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) 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) 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 case where 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 case where 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 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 not be
applicable.
(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. 190. Section 24900 of the Revenue and Taxation Code is
amended and renumbered to read:
24452. (a) The Franchise Tax Board may include in the gross
income of the taxpayer (or a member of the taxpayer's combined
reporting group) in that taxable year the taxpayer's pro rata share
(or the pro rata share of a member of the taxpayer's combined
reporting group) of any of those insurers' current earnings and
profits in that taxable year, but not to exceed an amount equal to
the specific insurer's net income attributable to investment income
for that year minus that insurer's net written premiums received in
that same taxable year, if all of the following apply:
(1) For any taxable year an insurer is a member of a taxpayer's
commonly controlled group.
(2) The ratio of the five-year average net written premiums to the
five-year average total income of all insurers in the commonly
controlled group is equal to or less than 0.10 (or, for taxable years
beginning on or after January 1, 2008, 0.15).
(3) The accumulation of earnings and profits of the insurers in
the commonly controlled group had a substantial purpose of avoidance
of taxes on, according to, or measured by income, of this state or
any other state.
The amount so included shall be treated as a dividend received
from an insurance company during the taxable year, and to the extent
applicable, Section 24410 shall apply to that amount.
(b) If the insurer members of the commonly controlled group
constitute a predominantly captive insurance group (as defined in
paragraph (6) of subdivision (e)), then the ratio described in
subdivision (a) shall be 0.40.
(c) To the extent that amounts are included in the gross income of
a taxpayer (or a member of the taxpayer's combined reporting group)
pursuant to subdivision (a), those amounts shall not again be
considered as investment income in the application of the ratio
described in paragraph (2) of subdivision (a).
(d) The amounts included in gross income under subdivision (a)
shall not again be included in gross income when subsequent
distributions are made to the taxpayer (or a member of the taxpayer's
combined reporting group), or another taxpayer that acquires an
interest in the stock of the taxpayer (or a member of the taxpayer's
combined reporting group with respect to which subdivision (a) was
applied), or any successor or assign of the respective taxpayers (or
a member of the taxpayer's combined reporting group) described in
this subdivision. For
purposes of applying this subdivision, distributions from an insurer
shall be considered first made from amounts included under
subdivision (a).
(e) For purposes of this section, the following definitions shall
apply:
(1) Except as otherwise provided, the phrases "net written
premiums," "five-year average net written premiums" and the
"five-year average total income" shall each have the same meaning,
respectively, as applicable for purposes of subdivision (c) of
Section 24410, whether or not a dividend is actually received from
any insurer member of the taxpayer's commonly controlled group in
that taxable year.
(2) "Net income attributable to investment income" means net
income of the insurer multiplied by a ratio, the numerator of which
is the insurer's gross investment income from interest, dividends
(other than dividends from members of the taxpayer's commonly
controlled group), rent, and realized gains or losses, and the
denominator of which is the insurer's gross income (other than
dividends from members of the taxpayer's commonly controlled group)
from all sources. In the application of the preceding sentence, if an
insurer is required to file a Statutory Annual Statement pursuant to
the Annual Statement Instructions and Accounting Practices and
Procedures Manual promulgated by the National Association of
Insurance Commissioners, "net income" means net income required to be
reported in the insurer's Statutory Annual Statement.
(3) An insurer is any insurer within the meaning of Section 28 of
Article XIII of the California Constitution, whether or not the
insurer is engaged in business in California.
(4) The phrase "commonly controlled group" shall have the same
meaning as that phrase has under Section 25105.
(5) The phrase "combined reporting group" means those corporations
whose income is required to be included in the same combined report
pursuant to Section 25101 or 25110.
(6) A "predominantly captive insurance group" means the insurer
members of a commonly controlled group where the insurers receive
more than 50 percent of their net written premiums (without regard to
the weighting factors in paragraph (1) of subdivision (e) of Section
24410) from members of the commonly controlled group or the ratios
in clause (i) or clause (ii) of subparagraph (B) of paragraph (1) of
subdivision (d) of Section 24410 is greater than 50 percent. The
provisions of paragraph (4) of subdivision (d) of Section 24410 shall
apply for purposes of this paragraph.
(7) (A) The taxpayer's "pro rata share" of the current earnings
and profits of an insurer member of a commonly controlled group is
the amount that would have been received as a dividend by the
taxpayer (or a member of the taxpayer's combined reporting group) if
both of the following apply:
(i) The insurer had directly distributed its current earnings and
profits with respect to its stock held by the taxpayer (or member of
the taxpayer's combined reporting group).
(ii) In the case of an insurer holding the stock of another
insurer, all other insurer members of the taxpayer's commonly
controlled group had distributed the same current earnings and
profits with respect to their stock, in the same taxable year, until
amounts were received as a dividend by the taxpayer (or a member of
the taxpayer's combined reporting group) from an insurer member of
the commonly controlled group.
(B) In the application of this section, amounts treated as a
dividend received by a partnership shall be considered a dividend
received by each partner that is a member of the commonly controlled
group, either directly or through a series of tiered partnerships.
(f) The Franchise Tax Board may prescribe those regulations that
are appropriate to describe conditions under which the accumulation
of earnings and profits of those insurers described in paragraph (2)
of subdivision (a) do not have the substantial purpose of avoidance
of taxes on, according to, or measured by income, of this state or
any other state.
(g) If this section or any portion of this section is held
invalid, or the application of this section to any person or
circumstance is held invalid, that invalidity shall not affect other
provisions of the act adding this section, or the provisions of this
section that are severable.
SEC. 191. Section 1755 of the Unemployment Insurance Code is
amended to read:
1755. (a) If any person or employing unit is delinquent in the
payment of any contributions, penalties, or interest provided for in
this division, the director may, not later than three years after the
payment became delinquent or within 10 years after the last entry of
a judgment under Article 5 (commencing with Section 1815) or within
10 years after the last recording or filing of a notice of state tax
lien under Section 7171 of the Government Code, collect the
delinquency or enforce any liens by levy served either personally or
by first-class mail, to all persons having in their possession or
under their control any credits or personal property belonging to the
delinquent person or employing unit, or owing any debts to the
person or employing unit at the time of the receipt of the notice of
levy or coming into their possession or under their control for the
period of one year from the time of receipt of the notice of levy.
Any person upon whom a levy has been served having in his or her
possession or under his or her control any credits or personal
property belonging to the delinquent person or employing unit or
owing any debts to the person or employing unit at the time of the
receipt of the levy or coming into his or her possession or under his
or her control for the period of one year from the time of receipt
of the notice of levy, shall surrender the credits or personal
property to the director or pay to the director the amount of any
debt owing the delinquent employer within five days of service of the
levy, and shall surrender the credits or personal property, or the
amount of any debt owing to the delinquent employer coming into his
or her possession or under his or her control within one year of
receipt of the notice of levy within five days of the date of coming
into possession or control of the credits or personal property, or
the amount of any debt owing to the delinquent employer is incurred.
Any person in possession of any credits or personal property or owing
any debts to the delinquent person or employing unit who surrenders
the credits or personal property or pays the debts owing the
delinquent person or employing unit shall be discharged from any
obligation or liability to the delinquent person or employing unit
with respect to the credits or personal property surrendered or debts
paid to the director.
(b) (1) If the levy is made on a deposit or credits or personal
property in the possession or under the control of a financial
institution, the notice of levy shall be served on that financial
institution at the same location as legal process is required to be
served pursuant to Section 684.115 of the Code of Civil Procedure,
and the levy will apply to all credits or personal property in the
deposit account only at the time that notice of levy is received by
the financial institution.
(2) For purposes of this section:
(A) "Deposit account" has the same meaning as in paragraph (29) of
subdivision (a) of Section 9102 of the Commercial Code.
(B) "Financial institution" has the same meaning as in Section
481.113 of the Code of Civil Procedure.
(C) "Legal process" has the same meaning as in Section 482.070 of
the Code of Civil Procedure.
SEC. 192. Section 14211 of the Unemployment Insurance Code is
amended to read:
14211. (a) (1) Beginning program year 2012, an amount equal to at
least 25 percent of funds available under Title I of the federal
Workforce Investment Act of 1998 (Public Law 105-220) provided to
local workforce investment boards for adults and dislocated workers
shall be spent on workforce training programs. This minimum may be
met either by spending 25 percent of those base formula funds on
training or by combining a portion of those base formula funds with
leveraged funds as specified in subdivision (b).
(2) Beginning program year 2016, an amount equal to at least 30
percent of funds available under Title I of the federal Workforce
Investment Act of 1998 (Public Law 105-220) provided to local
workforce investment boards for adults and dislocated workers shall
be spent on workforce training programs. This minimum may be met
either by spending 30 percent of those base formula funds on training
or by combining a portion of those base formula funds with leveraged
funds as specified in subdivision (b).
(3) Expenditures that shall count toward the minimum percentage of
funds shall include only training services as defined in Section
2864(d)(4)(D) of Title 29 of the United States Code and Sections
663.300 and 663.508 of Title 20 of the Code of Federal Regulations,
including all 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 services described in any of subparagraphs (A) to
(G), inclusive.
(I) Customized training conducted with a commitment by an employer
or group of employers to employ an individual upon successful
completion of the training.
(b) (1) Local workforce investment boards may receive a credit of
up to 10 percent of their adult and dislocated worker formula fund
base allocations for public education and training funds and private
resources from industry and from joint labor-management trusts that
are leveraged by a local workforce investment board for training
services described in paragraph (3) of subdivision (a). This credit
may be applied toward the minimum training requirements in paragraphs
(1) and (2) of subdivision (a).
(A) Leveraged funds that may be applied toward the credit allowed
by this subdivision shall only include the following:
(i) Federal Pell Grants established under Title IV of the federal
Higher Education Act of 1965 (20 U.S.C. Sec. 1070 et seq.).
(ii) Programs authorized by the federal Workforce Investment Act
of 1998 (Public Law 105-220).
(iii) Trade adjustment assistance.
(iv) Department of Labor National Emergency Grants.
(v) Match funds from employers, industry, and industry
associations.
(vi) Match funds from joint labor-management trusts.
(vii) Employment training panel grants.
(B) Credit for leveraged funds shall only be given if the local
workforce investment board keeps records of all training expenditures
it chooses to apply to the credit. Training expenditures may only be
applied to the credit if the relevant training costs can be
independently verified by the Employment Development Department and
training participants must be coenrolled in the federal Workforce
Investment Act of 1998 performance monitoring system.
(2) The use of leveraged funds to partially meet the training
requirements specified in paragraphs (1) and (2) of subdivision (a)
is the prerogative of a local workforce investment board. Costs
arising from the recordkeeping required to demonstrate compliance
with the leveraging requirements of this subdivision are the
responsibility of the board.
(c) Beginning program year 2012, the Employment Development
Department shall calculate for each local workforce investment board,
within six months after the end of the second program year of the
two-year period of availability for expenditure of federal Workforce
Investment Act of 1998 funds, whether the local workforce investment
board met the requirements of subdivision (a). The Employment
Development Department shall provide to each local workforce
investment board its individual calculations with respect to the
expenditure requirements of subdivision (a).
(d) A local workforce investment area that does not meet the
requirements of subdivision (a) shall submit a corrective action plan
to the Employment Development Department that provides reasons for
not meeting the requirements and describes actions taken to address
the identified expenditure deficiencies. A local workforce investment
area shall provide a corrective action plan to the Employment
Development Department pursuant to this section within 90 days of
receiving the calculations described in subdivision (c).
(e) For the purpose of this section, "program year" has the same
meaning as provided in Section 667.100 of Title 20 of the Code of
Federal Regulations.
SEC. 193. Section 11205 of the Vehicle Code, as amended by Section
456 of Chapter 931 of the Statutes of 1998, is amended to read:
11205. (a) The department shall publish semiannually, or more
often as necessary to serve the purposes of this act, a list of all
traffic violator schools which are licensed pursuant to this section.
The list shall identify classroom facilities within a judicial
district that are at a different location from a licensed school's
principal facility. The department shall transmit the list to each
municipal court and to each superior court in a county in which there
is no municipal court, with a sufficient number of copies to allow
the courts to provide one copy to each person referred to a licensed
traffic violator school. The department shall, at least semiannually,
revise the list to ensure that each court has a current list of all
licensed traffic violator schools.
(b) Each licensed traffic violator school owner shall be permitted
one school name per judicial district.
(c) The referral list shall be organized alphabetically, in
sections for each county, and contain subsections for each judicial
district within the county. The order of the names within each
judicial district shall be random pursuant to a drawing or lottery
conducted by the department.
(d) Except as otherwise provided in subdivision (d) of Section
42005, the court shall use either the current referral list of
traffic violator schools published by the department when it orders a
person to complete a traffic violator school pursuant to subdivision
(a) or (b) of Section 42005 or, when a court utilizing a nonprofit
agency for traffic violator school administration and monitoring
services in which all traffic violator schools licensed by the
department are allowed the opportunity to participate, a statewide
referral list may be published by the nonprofit agency and
distributed by the court. The agency shall monitor each classroom
location situated within the judicial districts in which that agency
provides services to the courts and is represented on its referral
list. The monitoring shall occur at least once every 90 days with
reports forwarded to the department and the respective courts on a
monthly basis.
(e) The court may charge a traffic violator a fee to defray the
costs incurred by the agency for the monitoring reports and services
provided to the court. The court may delegate collection of the fee
to the agency. Fees shall be approved and regulated by the court.
Until December 31, 1996, the fee shall not exceed the actual cost
incurred by the agency or five dollars ($5), whichever is less.
SEC. 194. Section 12804.11 of the Vehicle Code is amended to read:
12804.11. (a) To operate firefighting equipment, a driver,
including a tiller operator, is required to do either of the
following:
(1) Obtain and maintain a firefighter endorsement issued by the
department and obtain and maintain a class C license as described in
Section 12804.9, a restricted class A license as described in Section
12804.12, or a noncommercial class B license as described in Section
12804.10.
(2) Obtain and maintain a class A or B license as described in
Section 12804.9 and, as appropriate, for the size and configuration
of the firefighting equipment operated.
(b) To qualify for a firefighter endorsement the driver shall do
all of the following:
(1) (A) Provide to the department proof of current employment as a
firefighter or registration as a volunteer firefighter with a fire
department and evidence of fire equipment operation training by
providing a letter or other indication from the chief of the fire
department or his or her designee.
(B) For purposes of this section, evidence of fire equipment
operation training means the applicant has successfully completed
Fire Apparatus Driver/Operator 1A taught by an instructor registered
with the Office of the State Fire Marshal or fire department driver
training that meets all of the following requirements:
(i) Meets or exceeds the standards outlined in NFPA 1002, Chapter
4 (2008 version) or the Fire Apparatus Driver/Operator 1A course
adopted by the Office of the State Fire Marshal.
(ii) Prepares the applicant to safely operate the department's
fire equipment that the applicant will be authorized to operate.
(iii) Includes a classroom (cognitive) portion of at least 16
hours.
(iv) Includes a manipulative portion of at least 14 hours, which
includes directly supervised behind-the-wheel driver training.
(C) Driver training shall be conducted by a person who is
registered with the Office of the State Fire Marshal to instruct a
Fire Apparatus Driver/Operator 1A course or a person who meets all of
the following criteria:
(i) Possesses a minimum of five years of fire service experience
as an emergency vehicle operator, three of which must be at the rank
of engineer or higher.
(ii) Possesses a valid California class A or B license or a class
A or B license restricted to the operation of firefighting equipment.
(iii) Is certified as a qualified training instructor or training
officer by the State of California, the federal government, or a
county training officers' association.
(2) Pass the written firefighter examination developed by the
department with the cooperation of the Office of the State Fire
Marshal.
(3) Upon application and every two years thereafter, submit
medical information on a form approved by the department.
(c) There shall be no additional charge for adding a firefighter
endorsement to an original license or when renewing a license. To add
a firefighter endorsement to an existing license when not renewing
the license, the applicant shall pay the fee for a duplicate license
pursuant to Section 14901.
(d) (1) A driver of firefighting equipment is subject to the
requirements of subdivision (a) if both of the following conditions
exist:
(A) The equipment is operated by a person employed as a
firefighter by a federal or state agency, by a regularly organized
fire department of a city, county, city and county, or district, or
by a tribal fire department or registered as a volunteer member of a
regularly organized fire department having official recognition of
the city, county, city and county, or district in which the
department is located, or of a tribal fire department.
(B) The motor vehicle is used to travel to and from the scene of
an emergency situation, or to transport equipment used in the control
of an emergency situation, and which is owned, leased, or rented by,
or under the exclusive control of, a federal or state agency, a
regularly organized fire department of a city, county, city and
county, or district, a volunteer fire department having official
recognition of the city, county, city and county, or district in
which the department is located, or a tribal fire department.
(2) A driver of firefighting equipment is not required to obtain
and maintain a firefighter endorsement pursuant to paragraph (1) of
subdivision (a) if the driver is operating the firefighting equipment
for training purposes, during a nonemergency, while under the direct
supervision of a fire department employee who is properly licensed
to operate the equipment and is authorized by the fire department to
provide training.
(e) For purposes of this section, a tiller operator is the driver
of the rear free-axle portion of a ladder truck.
(f) For purposes of this section, "firefighting equipment" means a
motor vehicle, that meets the definition of a class A or class B
vehicle described in subdivision (b) of Section 12804.9, that is used
to travel to and from the scene of an emergency situation, or to
transport equipment used in the control of an emergency situation,
and that is owned, leased, or rented by, or under the exclusive
control of, a federal or state agency, a regularly organized fire
department of a city, county, city and county, or district, or a
volunteer fire department having official recognition of the city,
county, city and county, or district in which the department is
located.
(g) Notwithstanding paragraph (1) of subdivision (a), a regularly
organized fire department, having official recognition of the city,
county, city and county, or district in which the department is
located, may require an employee or a volunteer of the fire
department who is a driver or operator of firefighting equipment to
hold a class A or B license.
(h) This section applies to a person hired by a fire department,
or to a person renewing a driver's license, on or after January 1,
2011.
SEC. 195. Section 16028 of the Vehicle Code is amended to read:
16028. (a) Upon the demand of a peace officer pursuant to
subdivision (b) or upon the demand of a peace officer or traffic
collision investigator pursuant to subdivision (c), every person who
drives a motor vehicle upon a highway shall provide evidence of
financial responsibility for the vehicle that is in effect at the
time the demand is made. The evidence of financial responsibility may
be provided using a mobile electronic device. However, a peace
officer shall not stop a vehicle for the sole purpose of determining
whether the vehicle is being driven in violation of this subdivision.
(b) If a notice to appear is issued for any alleged violation of
this code, except a violation specified in Chapter 9 (commencing with
Section 22500) of Division 11 or any local ordinance adopted
pursuant to that chapter, the cited driver shall furnish written
evidence of financial responsibility or may provide electronic
verification of evidence of financial responsibility using a mobile
electronic device upon request of the peace officer issuing the
citation. The peace officer shall request and write the driver's
evidence of financial responsibility on the notice to appear, except
when the peace officer is unable to write the driver's evidence of
financial responsibility on the notice to appear due to an emergency
that requires his or her presence elsewhere. If the cited driver
fails to provide evidence of financial responsibility at the time the
notice to appear is issued, the peace officer may issue the driver a
notice to appear for violation of subdivision (a). The notice to
appear for violation of subdivision (a) shall be written on the same
citation form as the original violation.
(c) If a peace officer, or a regularly employed and salaried
employee of a city or county who has been trained as a traffic
collision investigator, is summoned to the scene of an accident
described in Section 16000, the driver of a motor vehicle that is in
any manner involved in the accident shall furnish written evidence of
financial responsibility or may provide electronic verification of
evidence of financial responsibility using a mobile electronic device
upon the request of the peace officer or traffic collision
investigator. If the driver fails to provide evidence of financial
responsibility when requested, the peace officer may issue the driver
a notice to appear for violation of this subdivision. A traffic
collision investigator may cause a notice to appear to be issued for
a violation of this subdivision, upon review of that citation by a
peace officer.
(d) (1) If, at the time a notice to appear for a violation of
subdivision (a) is issued, the person is driving a motor vehicle
owned or leased by the driver's employer, and the vehicle is being
driven with the permission of the employer, this section shall apply
to the employer rather than the driver. In that case, a notice to
appear shall be issued to the employer rather than the driver, and
the driver may sign the notice on behalf of the employer.
(2) The driver shall notify the employer of the receipt of the
notice issued pursuant to paragraph (1) not later than five days
after receipt.
(e) A person issued a notice to appear for a violation of
subdivision (a) may personally appear before the clerk of the court,
as designated in the notice to appear, and provide written evidence
of financial responsibility in a form consistent with Section 16020,
showing that the driver was in compliance with that section at the
time the notice to appear for violating subdivision (a) was issued.
In lieu of the personal appearance, the person may submit by mail to
the court written evidence of having had financial responsibility at
the time the notice to appear was issued. Upon receipt by the clerk
of that written evidence of financial responsibility in a form
consistent with Section 16020, further proceedings on the notice to
appear for the violation of subdivision (a) shall be dismissed.
(f) For the purposes of this section, "mobile electronic device"
means a portable computing and communication device that has a
display screen with touch input or a miniature keyboard.
(g) For the purposes of this section, when a person provides
evidence of financial responsibility using a mobile electronic device
to a peace officer, the peace officer shall only view the evidence
of financial responsibility and is prohibited from viewing any other
content on the mobile electronic device.
(h) If a person presents a mobile electronic device pursuant to
this section, that person assumes all liability for any damage to the
mobile electronic device.
SEC. 196. Section 23612 of the Vehicle Code is amended to read:
23612. (a) (1) (A) A person who drives a motor vehicle is deemed
to have given his or her consent to chemical testing of his or her
blood or breath for the purpose of determining the alcoholic content
of his or her blood, if lawfully arrested for an offense allegedly
committed in violation of Section 23140, 23152, or 23153. If a blood
or breath test, or both, are unavailable, then paragraph (2) of
subdivision (d) applies.
(B) A person who drives a motor vehicle is deemed to have
given his or her consent to chemical testing of his or her blood for
the purpose of determining the drug content of his or her blood, if
lawfully arrested for an offense allegedly committed in violation of
Section 23140, 23152, or 23153. If a blood test is unavailable, the
person shall be deemed to have given his or her consent to chemical
testing of his or her urine and shall submit to a urine test.
(C) The testing shall be incidental to a lawful arrest and
administered at the direction of a peace officer having reasonable
cause to believe the person was driving a motor vehicle in violation
of Section 23140, 23152, or 23153.
(D) The person shall be told that his or her failure to submit to,
or the failure to complete, the required chemical testing will
result in a fine, mandatory imprisonment if the person is convicted
of a violation of Section 23152 or 23153, and (i) the suspension of
the person's privilege to operate a motor vehicle for a period of one
year, (ii) the revocation of the person's privilege to operate a
motor vehicle for a period of two years if the refusal occurs within
10 years of a separate violation of Section 23103 as specified in
Section 23103.5, or of Section 23140, 23152, or 23153 of this code,
or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal
Code that resulted in a conviction, or if the person's privilege to
operate a motor vehicle has been suspended or revoked pursuant to
Section 13353, 13353.1, or 13353.2 for an offense that occurred on a
separate occasion, or (iii) the revocation of the person's privilege
to operate a motor vehicle for a period of three years if the refusal
occurs within 10 years of two or more separate violations of Section
23103 as specified in Section 23103.5, or of Section 23140, 23152,
or 23153 of this code, or of Section 191.5 or subdivision (a) of
Section 192.5 of the Penal Code, or any combination thereof, that
resulted in convictions, or if the person's privilege to operate a
motor vehicle has been suspended or revoked two or more times
pursuant to Section 13353, 13353.1, or 13353.2 for offenses that
occurred on separate occasions, or if there is any combination of
those convictions, administrative suspensions, or revocations.
(2) (A) If the person is lawfully arrested for driving under the
influence of an alcoholic beverage, the person has the choice of
whether the test shall be of his or her blood or breath and the
officer shall advise the person that he or she has that choice. If
the person arrested either is incapable, or states that he or she is
incapable, of completing the chosen test, the person shall submit to
the remaining test. If a blood or breath test, or both, are
unavailable, then paragraph (2) of subdivision (d) applies.
(B) If the person is lawfully arrested for driving under the
influence of any drug or the combined influence of an alcoholic
beverage and any drug, the person has the choice of whether the test
shall be of his or her blood or breath, and the officer shall advise
the person that he or she has that choice.
(C) A person who chooses to submit to a breath test may also be
requested to submit to a blood test if the officer has reasonable
cause to believe that the person was driving under the influence of a
drug or the combined influence of an alcoholic beverage and a drug
and if the officer has a clear indication that a blood test will
reveal evidence of the person being under the influence. The officer
shall state in his or her report the facts upon which that belief and
that clear indication are based. The officer shall advise the person
that he or she is required to submit to an additional test. The
person shall submit to and complete a blood test. If the person
arrested is incapable of completing the blood test, the person shall
submit to and complete a urine test.
(3) If the person is lawfully arrested for an offense allegedly
committed in violation of Section 23140, 23152, or 23153, and,
because of the need for medical treatment, the person is first
transported to a medical facility where it is not feasible to
administer a particular test of, or to obtain a particular sample of,
the person's blood or breath, the person has the choice of those
tests, including a urine test, that are available at the facility to
which that person has been transported. In that case, the officer
shall advise the person of those tests that are available at the
medical facility and that the person's choice is limited to those
tests that are available.
(4) The officer shall also advise the person that he or she does
not have the right to have an attorney present before stating whether
he or she will submit to a test or tests, before deciding which test
or tests to take, or during administration of the test or tests
chosen, and that, in the event of refusal to submit to a test or
tests, the refusal may be used against him or her in a court of law.
(5) A person who is unconscious or otherwise in a condition
rendering him or her incapable of refusal is deemed not to have
withdrawn his or her consent and a test or tests may be administered
whether or not the person is told that his or her failure to submit
to, or the noncompletion of, the test or tests will result in the
suspension or revocation of his or her privilege to operate a motor
vehicle. A person who is dead is deemed not to have withdrawn his or
her consent and a test or tests may be administered at the direction
of a peace officer.
(b) A person who is afflicted with hemophilia is exempt from the
blood test required by this section, but shall submit to, and
complete, a urine test.
(c) A person who is afflicted with a heart condition and is using
an anticoagulant under the direction of a licensed physician and
surgeon is exempt from the blood test required by this section, but
shall submit to, and complete, a urine test.
(d) (1) A person lawfully arrested for an offense allegedly
committed while the person was driving a motor vehicle in violation
of Section 23140, 23152, or 23153 may request the arresting officer
to have a chemical test made of the arrested person's blood or breath
for the purpose of determining the alcoholic content of that person'
s blood, and, if so requested, the arresting officer shall have the
test performed.
(2) If a blood or breath test is not available under subparagraph
(A) of paragraph (1) of subdivision (a), or under subparagraph (A) of
paragraph (2) of subdivision (a), or under paragraph (1) of this
subdivision, the person shall submit to the remaining test in order
to determine the percent, by weight, of alcohol in the person's
blood. If both the blood and breath tests are unavailable, the person
shall be deemed to have given his or her consent to chemical testing
of his or her urine and shall submit to a urine test.
(e) If the person, who has been arrested for a violation of
Section 23140, 23152, or 23153, refuses or fails to complete a
chemical test or tests, or requests that a blood or urine test be
taken, the peace officer, acting on behalf of the department, shall
serve the notice of the order of suspension or revocation of the
person's privilege to operate a motor vehicle personally on the
arrested person. The notice shall be on a form provided by the
department.
(f) If the peace officer serves the notice of the order of
suspension or revocation of the person's privilege to operate a motor
vehicle, the peace officer shall take possession of all driver's
licenses issued by this state that are held by the person. The
temporary driver's license shall be an endorsement on the notice of
the order of suspension and shall be valid for 30 days from the date
of arrest.
(g) (1) The peace officer shall immediately forward a copy of the
completed notice of suspension or revocation form and any driver's
license taken into possession under subdivision (f), with the report
required by Section 13380, to the department. If the person submitted
to a blood or urine test, the peace officer shall forward the
results immediately to the appropriate forensic laboratory. The
forensic laboratory shall forward the results of the chemical tests
to the department within 15 calendar days of the date of the arrest.
(2) (A) Notwithstanding any other law, a document containing data
prepared and maintained in the governmental forensic laboratory
computerized database system that is electronically transmitted or
retrieved through public or private computer networks to or by the
department is the best available evidence of the chemical test
results in all administrative proceedings conducted by the
department. In addition, any other official record that is maintained
in the governmental forensic laboratory, relates to a chemical test
analysis prepared and maintained in the governmental forensic
laboratory computerized database system, and is electronically
transmitted and retrieved through a public or private computer
network to or by the department is admissible as evidence in the
department's administrative proceedings. In order to be admissible as
evidence in administrative proceedings, a document described in this
subparagraph shall bear a certification by the employee of the
department who retrieved the document certifying that the information
was received or retrieved directly from the computerized database
system of a governmental forensic laboratory and that the document
accurately reflects the data received or retrieved.
(B) Notwithstanding any other law, the failure of an employee of
the department to certify under subparagraph (A) is not a public
offense.
(h) A preliminary alcohol screening test that indicates the
presence or concentration of alcohol based on a breath sample in
order to establish reasonable cause to believe the person was driving
a vehicle in violation of Section 23140, 23152, or 23153 is a field
sobriety test and may be used by an officer as a further
investigative tool.
(i) If the officer decides to use a preliminary alcohol screening
test, the officer shall advise the person that he or she is
requesting that person to take a preliminary alcohol screening test
to assist the officer in determining if that person is under the
influence of alcohol or drugs, or a combination of alcohol and drugs.
The person's obligation to submit to a blood, breath, or urine test,
as required by this section, for the purpose of determining the
alcohol or drug content of that person's blood, is not satisfied by
the person submitting to a preliminary alcohol screening test. The
officer shall advise the person of that fact and of the person's
right to refuse to take the preliminary alcohol screening test.
SEC. 197. Section 34510.5 of the Vehicle Code is amended to read:
34510.5. (a) (1) A broker of construction trucking services, as
defined in Section 3322 of the Civil Code, shall not furnish
construction transportation services to any construction project
unless it has secured a surety bond of not less than fifteen thousand
dollars ($15,000) executed by an admitted surety insurer. The surety
bond shall ensure the payment of the claims of a contracted motor
carrier of property in dump truck equipment if the broker fails to
pay the contracted motor carrier within the time period specified in
paragraph (1) of subdivision (a) of Section 3322 of the Civil Code.
(2) (A) A broker of construction trucking services annually shall
provide written evidence of the broker's valid surety bond to a
third-party nonprofit organization that is related to the industry
and regularly maintains a published database of bonded brokers or
post a current copy of the surety bond on the broker's Internet Web
site.
(B) When a copy of a surety bond is provided to a third-party
nonprofit organization, the broker shall notify the third-party
nonprofit organization if at any time the surety bond is cancelled or
expired. When a copy of the surety bond is posted on the broker's
Internet Web site, the broker shall remove the copy of the surety
bond from his or her Internet Web site if at any time the surety bond
is cancelled or expired.
(C) A third-party nonprofit organization shall not charge a broker
for posting evidence of a valid surety bond or limit the posting of
the bond only to the organization's members.
(D) A third-party nonprofit organization shall not be liable for
any damages caused by the publication of any information provided
pursuant to this paragraph that is erroneous or outdated.
(b) A broker of construction trucking services shall not hire, or
otherwise engage the services of, a motor carrier of property to
furnish construction transportation services unless the broker
provides, prior to the commencement of work each calendar year,
written evidence of the broker's valid surety bond to any person that
hires, or otherwise engages the services of, the broker to furnish
construction transportation services and also to the hired motor
carrier of property.
(c) A broker of construction trucking services who furnishes
construction transportation services in violation of this section is
guilty of a misdemeanor and subject to a fine of up to five thousand
dollars ($5,000).
(d) In any civil action brought against a broker of construction
trucking services by a motor carrier of property in dump truck
equipment with whom the broker contracted during any period of time
in which the broker did not have a surety bond in violation of this
section, the failure to have the bond shall create a rebuttable
presumption that the broker failed to pay to the motor carrier the
amount due and owing.
(e) For purposes of this section, "a broker of construction
trucking services" does not include a facility that meets all the
following requirements:
(1) Arranges for transportation services of its product.
(2) Primarily handles raw materials to produce a new product.
(3) Is a rock product operation (such as an "aggregate"
operation), a hot mixing asphalt plant, or a concrete, concrete
product, or Portland cement product manufacturing facility.
(4) Does not accept a fee for the arrangement.
(f) For the purposes of this section, "written evidence of the
broker's valid surety bond" includes a copy of the surety bond, a
certificate of insurance, a continuation certificate, or other
similar documentation originally issued from the surety that includes
the surety's and broker's name, the bond number, and the effective
and expiration dates of the bond.
SEC. 198. Section 40000.20 of the Vehicle Code is amended to read:
40000.20. A third or subsequent violation of Section 23225,
relating to the storage of an opened container of an alcoholic
beverage, or Section 23223, relating to the possession of an open
container of an alcoholic beverage, by a driver of a vehicle used to
provide transportation services on a prearranged basis, operating
under a valid certificate or permit pursuant to the Passenger
Charter-party Carriers' Act (Chapter 8 (commencing with Section 5351)
of Division 2 of the Public Utilities Code), is a misdemeanor.
SEC. 199. Section 85057.5 of the Water Code is amended to read:
85057.5. (a) "Covered action" means a plan, program, or project
as defined pursuant to Section 21065 of the Public Resources Code
that meets all of the following conditions:
(1) Will occur, in whole or in part, within the boundaries of the
Delta or Suisun Marsh.
(2) Will be carried out, approved, or funded by the state or a
local public agency.
(3) Is covered by one or more provisions of the Delta Plan.
(4) Will have a significant impact on achievement of one or both
of the coequal goals or the implementation of government-sponsored
flood control programs to reduce risks to people, property, and state
interests in the Delta.
(b) "Covered action" does not include any of the following:
(1) A regulatory action of a state agency.
(2) Routine maintenance and operation of the State Water Project
or the federal Central Valley Project.
(3) Regional transportation plans prepared pursuant to Section
65080 of the Government Code.
(4) A plan, program, project, or activity within the secondary
zone of the Delta that the applicable metropolitan planning
organization pursuant to Section 65080 of the Government Code has
determined is consistent with either a sustainable communities
strategy or an alternative planning strategy that the State Air
Resources Board has determined would, if implemented, achieve the
greenhouse gas emission reduction targets established by that board
pursuant to subparagraph (A) of paragraph (2) of subdivision (b) of
Section 65080 of the Government Code. For purposes of this paragraph,
"consistent with" means consistent with the use designation,
density, building intensity, transportation plan, and applicable
policies specified for the area in the sustainable communities
strategy or the alternative planning strategy, as applicable, and any
infrastructure necessary to support the plan, program, project, or
activity.
(5) Routine maintenance and operation of a facility located, in
whole or in part, in the Delta, that is owned or operated by a local
public agency.
(6) A plan, program, project, or activity that occurs, in whole or
in part, in the Delta, if both of the following conditions are met:
(A) The plan, program, project, or activity is undertaken by a
local public agency that is located, in whole or in part, in the
Delta.
(B) Either a notice of determination is filed, pursuant to Section
21152 of the Public Resources Code, for the plan, program, project,
or activity by, or the plan, program, project, or activity is fully
permitted by, September 30, 2009.
(7) (A) A project within the secondary zone, as defined pursuant
to Section 29731 of the Public Resources Code as of January 1, 2009,
for which a notice of approval or determination pursuant to Section
21152 of the Public Resources Code has been filed before the date on
which the Delta Plan becomes effective.
(B) A project for which a notice of approval or determination is
filed on or after the date on which the final Bay Delta Conservation
Plan becomes effective, and before the date on which the Delta Plan
becomes effective, is not a covered action but shall be consistent
with the Bay Delta Conservation Plan.
(C) Subparagraphs (A) and (B) do not apply to either of the
following:
(i) A project that is within a Restoration Opportunity Area as
shown in Figure 3.1 of Chapter 3: Draft Conservation Strategy of the
Bay Delta Conservation Plan, August 3, 2009, or as shown in a final
Bay Delta Conservation Plan.
(ii) A project that is within the alignment of a conveyance
facility as shown in Figures 1 to 5, inclusive, of the Final Draft
Initial Assessment of Dual Delta Water Conveyance Report, April 23,
2008, and in future revisions of this document by the department.
(8) Leases approved by a special district if all of the following
apply:
(A) The uses proposed by the lease are authorized by the
applicable general plan and zoning ordinances of the city where the
special district is located.
(B) The uses proposed by the lease are approved by the city where
the special district is located and the city complies with Chapter 3
(commencing with Section 85225) of Part 3, if applicable, prior to
approval of the lease by the special district.
(C) The special district complies with the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code) prior to approving the lease.
(9) (A) Routine dredging activities that are necessary for
maintenance of facilities operated by a special district.
(B) For purposes of this paragraph, "routine dredging activities"
are limited to the following:
(i) Dredging to maintain the Stockton Deep Water Ship Channel at a
depth of 40 feet in the sediment trap at the confluence of the San
Joaquin River, between river mile 39.3 to river mile 40.2, and to
maintain the remaining Stockton Deep Water Ship Channel at a depth of
35 feet plus two feet of overdredge from river mile 35 to river mile
43.
(ii) Dredging designed to maintain the Sacramento Deep Water Ship
Channel at a depth of 30 feet plus two feet of overdredge from river
mile 0.0 to river mile 30, and at a depth of 35 feet from river mile
35 to river mile 43.
(C) Except as provided by this subdivision, it is the intent of
the Legislature that this exemption shall not be interpreted or
treated as changing or modifying current substantive and procedural
regulations applicable to the decision to approve dredging
operations.
(c) For purposes of this section, "special district" means the
Port of Stockton or the Port of West Sacramento.
(d) This section shall not be interpreted to authorize the
abrogation of a vested right whether created by statute or by common
law.
SEC. 200. Section 366.21 of the Welfare and Institutions Code is
amended to read:
366.21. (a) Every hearing conducted by the juvenile court
reviewing the status of a dependent child shall be placed on the
appearance calendar. The court shall advise all persons present at
the hearing of the date of the future hearing and of their right to
be present and represented by counsel.
(b) Except as provided in Sections 294 and 295, notice of the
hearing shall be provided pursuant to Section 293.
(c) At least 10 calendar days prior to the hearing, the social
worker shall file a supplemental report with the court regarding the
services provided or offered to the parent or legal guardian to
enable him or her to assume custody and the efforts made to achieve
legal permanence for the child if efforts to reunify fail, including,
but not limited to, efforts to maintain relationships between a
child who is 10 years of age or older and has been in out-of-home
placement for six months or longer and individuals who are important
to the child, consistent with the child's best interests; the
progress made; and, where relevant, the prognosis for return of the
child to the physical custody of his or her parent or legal guardian;
and shall make his or her recommendation for disposition. If the
child is a member of a sibling group described in subparagraph (C) of
paragraph (1) of subdivision (a) of Section 361.5, the report and
recommendation may also take into account those factors described in
subdivision (e) relating to the child's sibling group. If the
recommendation is not to return the child to a parent or legal
guardian, the report shall specify why the return of the child would
be detrimental to the child. The social worker shall provide the
parent or legal guardian, counsel for the child, and any
court-appointed child advocate with a copy of the report, including
his or her recommendation for disposition, at least 10 calendar days
prior to the hearing. In the case of a child removed from the
physical custody of his or her parent or legal guardian, the social
worker shall, at least 10 calendar days prior to the hearing, provide
a summary of his or her recommendation for disposition to any foster
parents, relative caregivers, and certified foster parents who have
been approved for adoption by the State Department of Social Services
when it is acting as an adoption agency or by a county adoption
agency, community care facility, or foster family agency having the
physical custody of the child. The social worker shall include a copy
of the Judicial Council Caregiver Information Form (JV-290) with the
summary of recommendations to the child's foster parents, relative
caregivers, or foster parents approved for adoption, in the caregiver'
s primary language when available, along with information on how to
file the form with the court.
(d) Prior to any hearing involving a child in the physical custody
of a community care facility or a foster family agency that may
result in the return of the child to the physical custody of his or
her parent or legal guardian, or in adoption or the creation of a
legal guardianship, or in the case of an Indian child, in
consultation with the child's tribe, tribal customary adoption, the
facility or agency shall file with the court a report, or a Judicial
Council Caregiver Information Form (JV-290), containing its
recommendation for disposition. Prior to the hearing involving a
child in the physical custody of a foster parent, a relative
caregiver, or a certified foster parent who has been approved for
adoption by the State Department of Social Services when it is acting
as an adoption agency or by a county adoption agency, the foster
parent, relative caregiver, or the certified foster parent who has
been approved for adoption by the State Department of Social Services
when it is acting as an adoption agency or by a county adoption
agency, may file with the court a report containing his or her
recommendation for disposition. The court shall consider the report
and recommendation filed pursuant to this subdivision prior to
determining any disposition.
(e) At the review hearing held six months after the initial
dispositional hearing, but no later than 12 months after the date the
child entered foster care as determined in Section 361.49, whichever
occurs earlier, after considering the admissible and relevant
evidence, the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment. At the hearing, the court
shall consider the criminal history, obtained pursuant to paragraph
(1) of subdivision (f) of Section 16504.5, of the parent or legal
guardian subsequent to the child's removal to the extent that the
criminal record is substantially related to the welfare of the child
or the parent's or guardian's ability to exercise custody and control
regarding his or her child, provided the parent or legal guardian
agreed to submit fingerprint images to obtain criminal history
information as part of the case plan. The failure of the parent or
legal guardian to participate regularly and make substantive progress
in court-ordered treatment programs shall be prima facie evidence
that return would be detrimental. In making its determination, the
court shall review and consider the social worker's report and
recommendations and the report and recommendations of any child
advocate appointed pursuant to Section 356.5; and shall consider the
efforts or progress, or both, demonstrated by the parent or legal
guardian and the extent to which he or she availed himself or
herself to services provided,
taking into account the particular barriers to an incarcerated,
institutionalized, detained, or deported parent's or legal guardian's
access to those court-mandated services and ability to maintain
contact with his or her child.
Regardless of whether the child is returned to a parent or legal
guardian, the court shall specify the factual basis for its
conclusion that the return would be detrimental or would not be
detrimental. The court also shall make appropriate findings pursuant
to subdivision (a) of Section 366; and, where relevant, shall order
any additional services reasonably believed to facilitate the return
of the child to the custody of his or her parent or legal guardian.
The court shall also inform the parent or legal guardian that if the
child cannot be returned home by the 12-month permanency hearing, a
proceeding pursuant to Section 366.26 may be instituted. This section
does not apply in a case where, pursuant to Section 361.5, the court
has ordered that reunification services shall not be provided.
If the child was under three years of age on the date of the
initial removal, or is a member of a sibling group described in
subparagraph (C) of paragraph (1) of subdivision (a) of Section
361.5, and the court finds by clear and convincing evidence that the
parent failed to participate regularly and make substantive progress
in a court-ordered treatment plan, the court may schedule a hearing
pursuant to Section 366.26 within 120 days. If, however, the court
finds there is a substantial probability that the child, who was
under three years of age on the date of initial removal or is a
member of a sibling group described in subparagraph (C) of paragraph
(1) of subdivision (a) of Section 361.5, may be returned to his or
her parent or legal guardian within six months or that reasonable
services have not been provided, the court shall continue the case to
the 12-month permanency hearing.
For the purpose of placing and maintaining a sibling group
together in a permanent home, the court, in making its determination
to schedule a hearing pursuant to Section 366.26 for some or all
members of a sibling group, as described in subparagraph (C) of
paragraph (1) of subdivision (a) of Section 361.5, shall review and
consider the social worker's report and recommendations. Factors the
report shall address, and the court shall consider, may include, but
need not be limited to, whether the sibling group was removed from
parental care as a group, the closeness and strength of the sibling
bond, the ages of the siblings, the appropriateness of maintaining
the sibling group together, the detriment to the child if sibling
ties are not maintained, the likelihood of finding a permanent home
for the sibling group, whether the sibling group is currently placed
together in a preadoptive home or has a concurrent plan goal of legal
permanency in the same home, the wishes of each child whose age and
physical and emotional condition permits a meaningful response, and
the best interests of each child in the sibling group. The court
shall specify the factual basis for its finding that it is in the
best interests of each child to schedule a hearing pursuant to
Section 366.26 within 120 days for some or all of the members of the
sibling group.
If the child was removed initially under subdivision (g) of
Section 300 and the court finds by clear and convincing evidence that
the whereabouts of the parent are still unknown, or the parent has
failed to contact and visit the child, the court may schedule a
hearing pursuant to Section 366.26 within 120 days. The court shall
take into account any particular barriers to a parent's ability to
maintain contact with his or her child due to the parent's
incarceration, institutionalization, detention by the United States
Department of Homeland Security, or deportation. If the court finds
by clear and convincing evidence that the parent has been convicted
of a felony indicating parental unfitness, the court may schedule a
hearing pursuant to Section 366.26 within 120 days.
If the child had been placed under court supervision with a
previously noncustodial parent pursuant to Section 361.2, the court
shall determine whether supervision is still necessary. The court may
terminate supervision and transfer permanent custody to that parent,
as provided for by paragraph (1) of subdivision (b) of Section
361.2.
In all other cases, the court shall direct that any reunification
services previously ordered shall continue to be offered to the
parent or legal guardian pursuant to the time periods set forth in
subdivision (a) of Section 361.5, provided that the court may modify
the terms and conditions of those services.
If the child is not returned to his or her parent or legal
guardian, the court shall determine whether reasonable services that
were designed to aid the parent or legal guardian in overcoming the
problems that led to the initial removal and the continued custody of
the child have been provided or offered to the parent or legal
guardian. The court shall order that those services be initiated,
continued, or terminated.
(f) The permanency hearing shall be held no later than 12 months
after the date the child entered foster care, as that date is
determined pursuant to Section 361.49. At the permanency hearing, the
court shall determine the permanent plan for the child, which shall
include a determination of whether the child will be returned to the
child's home and, if so, when, within the time limits of subdivision
(a) of Section 361.5. After considering the relevant and admissible
evidence, the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment. At the permanency hearing,
the court shall consider the criminal history, obtained pursuant to
paragraph (1) of subdivision (f) of Section 16504.5, of the parent or
legal guardian subsequent to the child's removal to the extent that
the criminal record is substantially related to the welfare of the
child or the parent's or legal guardian's ability to exercise custody
and control regarding his or her child, provided that the parent or
legal guardian agreed to submit fingerprint images to obtain criminal
history information as part of the case plan. The court shall also
determine whether reasonable services that were designed to aid the
parent or legal guardian to overcome the problems that led to the
initial removal and continued custody of the child have been provided
or offered to the parent or legal guardian. For each youth 16 years
of age and older, the court shall also determine whether services
have been made available to assist him or her in making the
transition from foster care to independent living. The failure of the
parent or legal guardian to participate regularly and make
substantive progress in court-ordered treatment programs shall be
prima facie evidence that return would be detrimental. In making its
determination, the court shall review and consider the social worker'
s report and recommendations and the report and recommendations of
any child advocate appointed pursuant to Section 356.5, shall
consider the efforts or progress, or both, demonstrated by the parent
or legal guardian and the extent to which he or she availed himself
or herself of services provided, taking into account the particular
barriers to an incarcerated, institutionalized, detained, or deported
parent's or legal guardian's access to those court-mandated services
and ability to maintain contact with his or her child, and shall
make appropriate findings pursuant to subdivision (a) of Section 366.
Regardless of whether the child is returned to his or her parent
or legal guardian, the court shall specify the factual basis for its
decision. If the child is not returned to a parent or legal guardian,
the court shall specify the factual basis for its conclusion that
the return would be detrimental. The court also shall make a finding
pursuant to subdivision (a) of Section 366. If the child is not
returned to his or her parent or legal guardian, the court shall
consider, and state for the record, in-state and out-of-state
placement options. If the child is placed out of the state, the court
shall make a determination whether the out-of-state placement
continues to be appropriate and in the best interests of the child.
(g) If the time period in which the court-ordered services were
provided has met or exceeded the time period set forth in
subparagraph (A), (B), or (C) of paragraph (1) of subdivision (a) of
Section 361.5, as appropriate, and a child is not returned to the
custody of a parent or legal guardian at the permanency hearing held
pursuant to subdivision (f), the court shall do one of the following:
(1) Continue the case for up to six months for a permanency review
hearing, provided that the hearing shall occur within 18 months of
the date the child was originally taken from the physical custody of
his or her parent or legal guardian. The court shall continue the
case only if it finds that there is a substantial probability that
the child will be returned to the physical custody of his or her
parent or legal guardian and safely maintained in the home within the
extended period of time or that reasonable services have not been
provided to the parent or legal guardian. For the purposes of this
section, in order to find a substantial probability that the child
will be returned to the physical custody of his or her parent or
legal guardian and safely maintained in the home within the extended
period of time, the court shall be required to find all of the
following:
(A) That the parent or legal guardian has consistently and
regularly contacted and visited with the child.
(B) That the parent or legal guardian has made significant
progress in resolving problems that led to the child's removal from
the home.
(C) The parent or legal guardian has demonstrated the capacity and
ability both to complete the objectives of his or her treatment plan
and to provide for the child's safety, protection, physical and
emotional well-being, and special needs.
For purposes of this subdivision, the court's decision to continue
the case based on a finding or substantial probability that the
child will be returned to the physical custody of his or her parent
or legal guardian is a compelling reason for determining that a
hearing held pursuant to Section 366.26 is not in the best interests
of the child.
The court shall inform the parent or legal guardian that if the
child cannot be returned home by the next permanency review hearing,
a proceeding pursuant to Section 366.26 may be instituted. The court
may not order that a hearing pursuant to Section 366.26 be held
unless there is clear and convincing evidence that reasonable
services have been provided or offered to the parent or legal
guardian.
(2) Continue the case for up to six months for a permanency review
hearing, provided that the hearing shall occur within 18 months of
the date the child was originally taken from the physical custody of
his or her parent or legal guardian, if the parent has been arrested
and issued an immigration hold, detained by the United States
Department of Homeland Security, or deported to his or her country of
origin, and the court determines either that there is a substantial
probability that the child will be returned to the physical custody
of his or her parent or legal guardian and safely maintained in the
home within the extended period of time or that reasonable services
have not been provided to the parent or legal guardian.
(3) For purposes of paragraph (2), in order to find a substantial
probability that the child will be returned to the physical custody
of his or her parent or legal guardian and safely maintained in the
home within the extended period of time, the court must find all of
the following:
(A) The parent or legal guardian has consistently and regularly
contacted and visited with the child, taking into account any
particular barriers to a parent's ability to maintain contact with
his or her child due to the parent's arrest and receipt of an
immigration hold, detention by the United States Department of
Homeland Security, or deportation.
(B) The parent or legal guardian has made significant progress in
resolving the problems that led to the child's removal from the home.
(C) The parent or legal guardian has demonstrated the capacity or
ability both to complete the objectives of his or her treatment plan
and to provide for the child's safety, protection, physical and
emotional well-being, and special needs.
(4) Order that a hearing be held within 120 days, pursuant to
Section 366.26, but only if the court does not continue the case to
the permanency planning review hearing and there is clear and
convincing evidence that reasonable services have been provided or
offered to the parents or legal guardians. On and after January 1,
2012, a hearing pursuant to Section 366.26 shall not be ordered if
the child is a nonminor dependent, unless the nonminor dependent is
an Indian child and tribal customary adoption is recommended as the
permanent plan.
(5) Order that the child remain in long-term foster care, but only
if the court finds by clear and convincing evidence, based upon the
evidence already presented to it, including a recommendation by the
State Department of Social Services when it is acting as an adoption
agency or by a county adoption agency, that there is a compelling
reason for determining that a hearing held pursuant to Section 366.26
is not in the best interests of the child because the child is not a
proper subject for adoption and has no one willing to accept legal
guardianship. For purposes of this section, a recommendation by the
State Department of Social Services when it is acting as an adoption
agency or by a county adoption agency that adoption is not in the
best interests of the child shall constitute a compelling reason for
the court's determination. That recommendation shall be based on the
present circumstances of the child and shall not preclude a different
recommendation at a later date if the child's circumstances change.
On and after January 1, 2012, the nonminor dependent's legal status
as an adult is in and of itself a compelling reason not to hold a
hearing pursuant to Section 366.26. The court may order that a
nonminor dependent who otherwise is eligible pursuant to Section
11403 remain in a planned, permanent living arrangement.
If the court orders that a child who is 10 years of age or older
remain in long-term foster care, the court shall determine whether
the agency has made reasonable efforts to maintain the child's
relationships with individuals other than the child's siblings who
are important to the child, consistent with the child's best
interests, and may make any appropriate order to ensure that those
relationships are maintained.
If the child is not returned to his or her parent or legal
guardian, the court shall consider, and state for the record,
in-state and out-of-state options for permanent placement. If the
child is placed out of the state, the court shall make a
determination whether the out-of-state placement continues to be
appropriate and in the best interests of the child.
(h) In any case in which the court orders that a hearing pursuant
to Section 366.26 shall be held, it shall also order the termination
of reunification services to the parent or legal guardian. The court
shall continue to permit the parent or legal guardian to visit the
child pending the hearing unless it finds that visitation would be
detrimental to the child. The court shall make any other appropriate
orders to enable the child to maintain relationships with
individuals, other than the child's siblings, who are important to
the child, consistent with the child's best interests. When the court
orders a termination of reunification services to the parent or
legal guardian, it shall also order that the child's caregiver
receive the child's birth certificate in accordance with Sections
16010.4 and 16010.5. Additionally, when the court orders a
termination of reunification services to the parent or legal
guardian, it shall order, when appropriate, that a child who is 16
years of age or older receive his or her birth certificate.
(i) (1) Whenever a court orders that a hearing pursuant to Section
366.26, including, when, in consultation with the child's tribe,
tribal customary adoption is recommended, shall be held, it shall
direct the agency supervising the child and the county adoption
agency, or the State Department of Social Services when it is acting
as an adoption agency, to prepare an assessment that shall include:
(A) Current search efforts for an absent parent or parents or
legal guardians.
(B) A review of the amount of and nature of any contact between
the child and his or her parents or legal guardians and other members
of his or her extended family since the time of placement. Although
the extended family of each child shall be reviewed on a case-by-case
basis, "extended family" for the purpose of this subparagraph shall
include, but not be limited to, the child's siblings, grandparents,
aunts, and uncles.
(C) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or legal guardian,
including the prospective tribal customary adoptive parent,
particularly the caretaker, to include a social history including
screening for criminal records and prior referrals for child abuse or
neglect, the capability to meet the child's needs, and the
understanding of the legal and financial rights and responsibilities
of adoption and guardianship. If a proposed guardian is a relative of
the minor, the assessment shall also consider, but need not be
limited to, all of the factors specified in subdivision (a) of
Section 361.3 and in Section 361.4.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, the duration and character of the
relationship, the degree of attachment of the child to the
prospective relative guardian or adoptive parent, the relative's or
adoptive parent's strong commitment to caring permanently for the
child, the motivation for seeking adoption or guardianship, a
statement from the child concerning placement and the adoption or
guardianship, and whether the child, if over 12 years of age, has
been consulted about the proposed relative guardianship arrangements,
unless the child's age or physical, emotional, or other condition
precludes his or her meaningful response, and if so, a description of
the condition.
(F) A description of efforts to be made to identify a prospective
adoptive parent or legal guardian, including, but not limited to,
child-specific recruitment and listing on an adoption exchange within
the state or out of the state.
(G) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(H) In the case of an Indian child, in addition to subparagraphs
(A) to (G), inclusive, an assessment of the likelihood that the child
will be adopted, when, in consultation with the child's tribe, a
tribal customary adoption, as defined in Section 366.24, is
recommended. If tribal customary adoption is recommended, the
assessment shall include an analysis of both of the following:
(i) Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that
conclusion.
(ii) Whether the Indian child cannot or should not be returned to
the home of the Indian parent or Indian custodian and the reasons for
reaching that conclusion.
(2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
(B) Regardless of his or her immigration status, a relative
caregiver shall be given information regarding the permanency options
of guardianship and adoption, including the long-term benefits and
consequences of each option, prior to establishing legal guardianship
or pursuing adoption. If the proposed permanent plan is guardianship
with an approved relative caregiver for a minor eligible for aid
under the Kin-GAP Program, as provided for in Article 4.7 (commencing
with Section 11385) of Chapter 2 of Part 3 of Division 9, the
relative caregiver shall be informed about the terms and conditions
of the negotiated agreement pursuant to Section 11387 and shall agree
to its execution prior to the hearing held pursuant to Section
366.26. A copy of the executed negotiated agreement shall be attached
to the assessment.
(j) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with an approved relative
caregiver, and juvenile court dependency is subsequently dismissed,
the minor shall be eligible for aid under the Kin-GAP Program, as
provided for in Article 4.5 (commencing with Section 11360) or
Article 4.7 (commencing with Section 11385), as applicable, of
Chapter 2 of Part 3 of Division 9.
(k) As used in this section, "relative" means an adult who is
related to the minor 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 those persons even
if the marriage was terminated by death or dissolution. If the
proposed permanent plan is guardianship with an approved relative
caregiver for a minor eligible for aid under the Kin-GAP Program, as
provided for in Article 4.7 (commencing with Section 11385) of
Chapter 2 of Part 3 of Division 9, "relative" as used in this section
has the same meaning as "relative" as defined in subdivision (c) of
Section 11391.
(l) For purposes of this section, evidence of any of the following
circumstances may not, in and of itself, be deemed a failure to
provide or offer reasonable services:
(1) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(2) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(3) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
(m) The implementation and operation of the amendments to
subdivisions (c) and (g) enacted at the 2005-06 Regular Session shall
be subject to appropriation through the budget process and by phase,
as provided in Section 366.35.
SEC. 201. Section 366.22 of the Welfare and Institutions Code is
amended to read:
366.22. (a) When a case has been continued pursuant to paragraph
(1) or (2) of subdivision (g) of Section 366.21, the permanency
review hearing shall occur within 18 months after the date the child
was originally removed from the physical custody of his or her parent
or legal guardian. After considering the admissible and relevant
evidence, the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment. At the permanency review
hearing, the court shall consider the criminal history, obtained
pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of
the parent or legal guardian subsequent to the child's removal, to
the extent that the criminal record is substantially related to the
welfare of the child or the parent's or legal guardian's ability to
exercise custody and control regarding his or her child, provided
that the parent or legal guardian agreed to submit fingerprint images
to obtain criminal history information as part of the case plan. The
failure of the parent or legal guardian to participate regularly and
make substantive progress in court-ordered treatment programs shall
be prima facie evidence that return would be detrimental. In making
its determination, the court shall review and consider the social
worker's report and recommendations and the report and
recommendations of any child advocate appointed pursuant to Section
356.5; shall consider the efforts or progress, or both, demonstrated
by the parent or legal guardian and the extent to which he or she
availed himself or herself of services provided, taking into account
the particular barriers of an incarcerated or institutionalized
parent's or legal guardian's access to those court-mandated services
and ability to maintain contact with his or her child; and shall make
appropriate findings pursuant to subdivision (a) of Section 366.
Whether or not the child is returned to his or her parent or legal
guardian, the court shall specify the factual basis for its
decision. If the child is not returned to a parent or legal guardian,
the court shall specify the factual basis for its conclusion that
return would be detrimental. If the child is not returned to his or
her parent or legal guardian, the court shall consider, and state for
the record, in-state and out-of-state options for the child's
permanent placement. If the child is placed out of the state, the
court shall make a determination whether the out-of-state placement
continues to be appropriate and in the best interests of the child.
Unless the conditions in subdivision (b) are met and the child is
not returned to a parent or legal guardian at the permanency review
hearing, the court shall order that a hearing be held pursuant to
Section 366.26 in order to determine whether adoption, or, in the
case of an Indian child, in consultation with the child's tribe,
tribal customary adoption, guardianship, or long-term foster care is
the most appropriate plan for the child. On and after January 1,
2012, a hearing pursuant to Section 366.26 shall not be ordered if
the child is a nonminor dependent, unless the nonminor
dependent is an Indian child, and
tribal customary adoption is recommended as the permanent plan.
However, if the court finds by clear and convincing evidence, based
on the evidence already presented to it, including a recommendation
by the State Department of Social Services when it is acting as an
adoption agency or by a county adoption agency, that there is a
compelling reason, as described in paragraph (5) of subdivision (g)
of Section 366.21, for determining that a hearing held under Section
366.26 is not in the best interests of the child because the child is
not a proper subject for adoption and has no one willing to accept
legal guardianship, the court may, only under these circumstances,
order that the child remain in long-term foster care. On and after
January 1, 2012, the nonminor dependent's legal status as an adult is
in and of itself a compelling reason not to hold a hearing pursuant
to Section 366.26. The court may order that a nonminor dependent who
otherwise is eligible pursuant to Section 11403 remain in a planned,
permanent living arrangement. If the court orders that a child who is
10 years of age or older remain in long-term foster care, the court
shall determine whether the agency has made reasonable efforts to
maintain the child's relationships with individuals other than the
child's siblings who are important to the child, consistent with the
child's best interests, and may make any appropriate order to ensure
that those relationships are maintained. The hearing shall be held no
later than 120 days from the date of the permanency review hearing.
The court shall also order termination of reunification services to
the parent or legal guardian. The court shall continue to permit the
parent or legal guardian to visit the child unless it finds that
visitation would be detrimental to the child. The court shall
determine whether reasonable services have been offered or provided
to the parent or legal guardian. For purposes of this subdivision,
evidence of any of the following circumstances shall not, in and of
themselves, be deemed a failure to provide or offer reasonable
services:
(1) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(2) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(3) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
(b) If the child is not returned to a parent or legal guardian at
the permanency review hearing and the court determines by clear and
convincing evidence that the best interests of the child would be met
by the provision of additional reunification services to a parent or
legal guardian who is making significant and consistent progress in
a court-ordered residential substance abuse treatment program, or a
parent recently discharged from incarceration, institutionalization,
or the custody of the United States Department of Homeland Security
and making significant and consistent progress in establishing a safe
home for the child's return, the court may continue the case for up
to six months for a subsequent permanency review hearing, provided
that the hearing shall occur within 24 months of the date the child
was originally taken from the physical custody of his or her parent
or legal guardian. The court shall continue the case only if it finds
that there is a substantial probability that the child will be
returned to the physical custody of his or her parent or legal
guardian and safely maintained in the home within the extended period
of time or that reasonable services have not been provided to the
parent or legal guardian. For the purposes of this section, in order
to find a substantial probability that the child will be returned to
the physical custody of his or her parent or legal guardian and
safely maintained in the home within the extended period of time, the
court shall be required to find all of the following:
(1) That the parent or legal guardian has consistently and
regularly contacted and visited with the child.
(2) That the parent or legal guardian has made significant and
consistent progress in the prior 18 months in resolving problems that
led to the child's removal from the home.
(3) The parent or legal guardian has demonstrated the capacity and
ability both to complete the objectives of his or her substance
abuse treatment plan as evidenced by reports from a substance abuse
provider as applicable, or complete a treatment plan postdischarge
from incarceration, institutionalization, or detention, or following
deportation to his or her country of origin and his or her return to
the United States, and to provide for the child's safety, protection,
physical and emotional well-being, and special needs.
For purposes of this subdivision, the court's decision to continue
the case based on a finding or substantial probability that the
child will be returned to the physical custody of his or her parent
or legal guardian is a compelling reason for determining that a
hearing held pursuant to Section 366.26 is not in the best interests
of the child.
The court shall inform the parent or legal guardian that if the
child cannot be returned home by the subsequent permanency review
hearing, a proceeding pursuant to Section 366.26 may be instituted.
The court may not order that a hearing pursuant to Section 366.26 be
held unless there is clear and convincing evidence that reasonable
services have been provided or offered to the parent or legal
guardian.
(c) (1) Whenever a court orders that a hearing pursuant to Section
366.26, including when a tribal customary adoption is recommended,
shall be held, it shall direct the agency supervising the child and
the county adoption agency, or the State Department of Social
Services when it is acting as an adoption agency, to prepare an
assessment that shall include:
(A) Current search efforts for an absent parent or parents.
(B) A review of the amount of and nature of any contact between
the child and his or her parents and other members of his or her
extended family since the time of placement. Although the extended
family of each child shall be reviewed on a case-by-case basis,
"extended family" for the purposes of this subparagraph shall
include, but not be limited to, the child's siblings, grandparents,
aunts, and uncles.
(C) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or legal guardian,
particularly the caretaker, to include a social history including
screening for criminal records and prior referrals for child abuse or
neglect, the capability to meet the child's needs, and the
understanding of the legal and financial rights and responsibilities
of adoption and guardianship. If a proposed legal guardian is a
relative of the minor, the assessment shall also consider, but need
not be limited to, all of the factors specified in subdivision (a) of
Section 361.3 and Section 361.4.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, the duration and character of the
relationship, the degree of attachment of the child to the
prospective relative guardian or adoptive parent, the relative's or
adoptive parent's strong commitment to caring permanently for the
child, the motivation for seeking adoption or legal guardianship, a
statement from the child concerning placement and the adoption or
legal guardianship, and whether the child, if over 12 years of age,
has been consulted about the proposed relative guardianship
arrangements, unless the child's age or physical, emotional, or other
condition precludes his or her meaningful response, and if so, a
description of the condition.
(F) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(G) In the case of an Indian child, in addition to subparagraphs
(A) to (F), inclusive, an assessment of the likelihood that the child
will be adopted, when, in consultation with the child's tribe, a
tribal customary adoption, as defined in Section 366.24, is
recommended. If tribal customary adoption is recommended, the
assessment shall include an analysis of both of the following:
(i) Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that
conclusion.
(ii) Whether the Indian child cannot or should not be returned to
the home of the Indian parent or Indian custodian and the reasons for
reaching that conclusion.
(2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
(B) Regardless of his or her immigration status, a relative
caregiver shall be given information regarding the permanency options
of guardianship and adoption, including the long-term benefits and
consequences of each option, prior to establishing legal guardianship
or pursuing adoption. If the proposed permanent plan is guardianship
with an approved relative caregiver for a minor eligible for aid
under the Kin-GAP Program, as provided for in Article 4.7 (commencing
with Section 11385) of Chapter 2 of Part 3 of Division 9, the
relative caregiver shall be informed about the terms and conditions
of the negotiated agreement pursuant to Section 11387 and shall agree
to its execution prior to the hearing held pursuant to Section
366.26. A copy of the executed negotiated agreement shall be attached
to the assessment.
(d) This section shall become operative January 1, 1999. If at any
hearing held pursuant to Section 366.26, a legal guardianship is
established for the minor with an approved relative caregiver, and
juvenile court dependency is subsequently dismissed, the minor shall
be eligible for aid under the Kin-GAP Program, as provided for in
Article 4.5 (commencing with Section 11360) or Article 4.7
(commencing with Section 11385), as applicable, of Chapter 2 of Part
3 of Division 9.
(e) 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 those persons even
if the marriage was terminated by death or dissolution. If the
proposed permanent plan is guardianship with an approved relative
caregiver for a minor eligible for aid under the Kin-GAP Program, as
provided for in Article 4.7 (commencing with Section 11385) of
Chapter 2 of Part 3 of Division 9, "relative" as used in this section
has the same meaning as "relative" as defined in subdivision (c) of
Section 11391.
(f) The implementation and operation of the amendments to
subdivision (a) enacted at the 2005-06 Regular Session shall be
subject to appropriation through the budget process and by phase, as
provided in Section 366.35.
SEC. 202. Section 366.25 of the Welfare and Institutions Code is
amended to read:
366.25. (a) (1) When a case has been continued pursuant to
subdivision (b) of Section 366.22, the subsequent permanency review
hearing shall occur within 24 months after the date the child was
originally removed from the physical custody of his or her parent or
legal guardian. After considering the relevant and admissible
evidence, the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment. At the subsequent
permanency review hearing, the court shall consider the criminal
history, obtained pursuant to paragraph (1) of subdivision (f) of
Section 16504.5, of the parent or legal guardian subsequent to the
child's removal to the extent that the criminal record is
substantially related to the welfare of the child or parent's or
legal guardian's ability to exercise custody and control regarding
his or her child provided that the parent or legal guardian agreed to
submit fingerprint images to obtain criminal history information as
part of the case plan. The failure of the parent or legal guardian to
participate regularly and make substantive progress in court-ordered
treatment programs shall be prima facie evidence that return would
be detrimental. In making its determination, the court shall review
and consider the social worker's report and recommendations and the
report and recommendations of any child advocate appointed pursuant
to Section 356.5; shall consider the efforts or progress, or both,
demonstrated by the parent or legal guardian and the extent to which
he or she availed himself or herself of services provided; and shall
make appropriate findings pursuant to subdivision (a) of Section 366.
(2) Whether or not the child is returned to his or her parent or
legal guardian, the court shall specify the factual basis for its
decision. If the child is not returned to a parent or legal guardian,
the court shall specify the factual basis for its conclusion that
return would be detrimental. If the child is not returned to his or
her parent or legal guardian, the court shall consider and state for
the record, in-state and out-of-state options for the child's
permanent placement. If the child is placed out of the state, the
court shall make a determination whether the out-of-state placement
continues to be appropriate and in the best interests of the child.
(3) If the child is not returned to a parent or legal guardian at
the subsequent permanency review hearing, the court shall order that
a hearing be held pursuant to Section 366.26 in order to determine
whether adoption, or, in the case of an Indian child, tribal
customary adoption, guardianship, or long-term foster care is the
most appropriate plan for the child. On and after January 1, 2012, a
hearing pursuant to Section 366.26 shall not be ordered if the child
is a nonminor dependent, unless the nonminor dependent is an Indian
child and tribal customary adoption is recommended as the permanent
plan. However, if the court finds by clear and convincing evidence,
based on the evidence already presented to it, including a
recommendation by the State Department of Social Services when it is
acting as an adoption agency or by a county adoption agency, that
there is a compelling reason, as described in paragraph (5) of
subdivision (g) of Section 366.21, for determining that a hearing
held under Section 366.26 is not in the best interest of the child
because the child is not a proper subject for adoption or, in the
case of an Indian child, tribal customary adoption, and has no one
willing to accept legal guardianship, then the court may, only under
these circumstances, order that the child remain in long-term foster
care. On and after January 1, 2012, the nonminor dependent's legal
status as an adult is in and of itself a compelling reason not to
hold a hearing pursuant to Section 366.26. The court may order that a
nonminor dependent who otherwise is eligible pursuant to Section
11403 remain in a planned, permanent living arrangement. If the court
orders that a child who is 10 years of age or older remain in
long-term foster care, the court shall determine whether the agency
has made reasonable efforts to maintain the child's relationships
with individuals other than the child's siblings who are important to
the child, consistent with the child's best interests, and may make
any appropriate order to ensure that those relationships are
maintained. The hearing shall be held no later than 120 days from the
date of the subsequent permanency review hearing. The court shall
also order termination of reunification services to the parent or
legal guardian. The court shall continue to permit the parent or
legal guardian to visit the child unless it finds that visitation
would be detrimental to the child. The court shall determine whether
reasonable services have been offered or provided to the parent or
legal guardian. For purposes of this paragraph, evidence of any of
the following circumstances shall not, in and of themselves, be
deemed a failure to provide or offer reasonable services:
(A) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(B) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(C) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
(b) (1) Whenever a court orders that a hearing pursuant to Section
366.26 shall be held, it shall direct the agency supervising the
child and the county adoption agency, or the State Department of
Social Services when it is acting as an adoption agency, to prepare
an assessment that shall include:
(A) Current search efforts for an absent parent or parents.
(B) A review of the amount of, and nature of, any contact between
the child and his or her parents and other members of his or her
extended family since the time of placement. Although the extended
family of each child shall be reviewed on a case-by-case basis,
"extended family" for the purposes of this paragraph shall include,
but not be limited to, the child's siblings, grandparents, aunts, and
uncles.
(C) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or legal guardian,
including a prospective tribal customary adoptive parent,
particularly the caretaker, to include a social history including
screening for criminal records and prior referrals for child abuse or
neglect, the capability to meet the child's needs, and the
understanding of the legal and financial rights and responsibilities
of adoption and guardianship. If a proposed legal guardian is a
relative of the minor, the assessment shall also consider, but need
not be limited to, all of the factors specified in subdivision (a) of
Section 361.3 and in Section 361.4.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, including a prospective tribal
customary adoptive parent, the duration and character of the
relationship, the degree of attachment of the child to the
prospective relative guardian or adoptive parent, the relative's or
adoptive parent's strong commitment to caring permanently for the
child, the motivation for seeking adoption or legal guardianship, a
statement from the child concerning placement and the adoption or
legal guardianship, and whether the child, if over 12 years of age,
has been consulted about the proposed relative guardianship
arrangements, unless the child's age or physical, emotional, or other
condition precludes his or her meaningful response, and if so, a
description of the condition.
(F) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(G) In the case of an Indian child, in addition to subparagraphs
(A) to (F), inclusive, an assessment of the likelihood that the child
will be adopted, when, in consultation with the child's tribe, a
tribal customary adoption, as defined in Section 366.24, is
recommended. If tribal customary adoption is recommended, the
assessment shall include an analysis of both of the following:
(i) Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that
conclusion.
(ii) Whether the Indian child cannot or should not be returned to
the home of the Indian parent or Indian custodian and the reasons for
reaching that conclusion.
(2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
(B) Regardless of his or her immigration status, a relative
caregiver shall be given information regarding the permanency options
of guardianship and adoption, including the long-term benefits and
consequences of each option, prior to establishing legal guardianship
or pursuing adoption. If the proposed permanent plan is guardianship
with an approved relative caregiver for a minor eligible for aid
under the Kin-GAP Program, as provided for in Article 4.7 (commencing
with Section 11385) of Chapter 2 of Part 3 of Division 9, the
relative caregiver shall be informed about the terms and conditions
of the negotiated agreement pursuant to Section 11387 and shall agree
to its execution prior to the hearing held pursuant to Section
366.26. A copy of the executed negotiated agreement shall be attached
to the assessment.
(c) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with an approved relative
caregiver, and juvenile court dependency is subsequently dismissed,
the minor shall be eligible for aid under the Kin-GAP Program, as
provided for in Article 4.5 (commencing with Section 11360) or
Article 4.7 (commencing with Section 11385), as applicable, of
Chapter 2 of Part 3 of Division 9.
(d) As used in this section, "relative" means an adult who is
related to the minor 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 those persons even
if the marriage was terminated by death or dissolution. If the
proposed permanent plan is guardianship with an approved relative
caregiver for a minor eligible for aid under the Kin-GAP Program, as
provided in Article 4.7 (commencing with Section 11385) of Chapter 2
of Part 3 of Division 9, "relative" as used in this section has the
same meaning as "relative" as defined in subdivision (c) of Section
11391.
(e) The implementation and operation of subdivision (a) enacted at
the 2005-06 Regular Session shall be subject to appropriation
through the budget process and by phase, as provided in Section
366.35.
SEC. 203. Section 4141 of the Welfare and Institutions Code is
amended to read:
4141. (a) (1) Each state hospital shall update its injury and
illness prevention plan at least once a year to include necessary
safeguards to prevent workplace safety hazards in connection with
workplace violence associated with patient assaults on employees.
(2) Updated injury and illness prevention plans shall address, but
shall not be limited to, all of the following:
(A) Control of physical access throughout the hospital and
grounds.
(B) Alarm systems.
(C) Presence of security personnel.
(D) Training.
(E) Buddy systems.
(F) Communication.
(G) Emergency responses.
(3) (A) The department shall submit the updated injury and illness
prevention plans to the Legislature every two years.
(B) (i) The requirement for submitting the updated injury and
illness prevention plans imposed pursuant to subparagraph (A) is
inoperative four years after the date the first report is due,
pursuant to Section 10231.5 of the Government Code.
(ii) Updated injury and illness prevention plans submitted
pursuant to subparagraph (A) shall be submitted in compliance with
Section 9795 of the Government Code.
(b) Each state hospital shall establish an injury and illness
prevention committee comprised of hospital management and employees
designated by the hospital's director in consultation with the
employee bargaining units. The committee shall be responsible for
providing recommendations to the hospital director for updates to the
injury and illness prevention plan. The committee shall meet at
least four times per year.
(c) Each state hospital shall develop an incident reporting
procedure that can be used, at a minimum, to develop reports of
patient assaults on employees and assist the hospital in identifying
risks of patient assaults on employees. Data obtained from the
incident reporting procedures shall be accessible to staff. The
incident reporting procedure shall be designed to provide hospital
management with immediate notification of reported incidents. The
hospital shall provide for timely and efficient responses and
investigations to incident reports made under the incident reporting
procedure. Incident reports shall also be forwarded to the injury and
illness prevention committee established pursuant to subdivision
(b).
SEC. 204. Section 4427.5 of the Welfare and Institutions Code is
amended to read:
4427.5. (a) (1) A developmental center shall immediately report
the following incidents involving a resident to the local law
enforcement agency having jurisdiction over the city or county in
which the developmental center is located, regardless of whether the
Office of Protective Services has investigated the facts and
circumstances relating to the incident:
(A) A death.
(B) A sexual assault, as defined in Section 15610.63.
(C) An assault with a deadly weapon, as described in Section 245
of the Penal Code, by a nonresident of the developmental center.
(D) An assault with force likely to produce great bodily injury,
as described in Section 245 of the Penal Code.
(E) An injury to the genitals when the cause of the injury is
undetermined.
(F) A broken bone when the cause of the break is undetermined.
(2) If the incident is reported to the law enforcement agency by
telephone, a written report of the incident shall also be submitted
to the agency, within two working days.
(3) The reporting requirements of this subdivision are in addition
to, and do not substitute for, the reporting requirements of
mandated reporters, and any other reporting and investigative duties
of the developmental center and the department as required by law.
(4) This subdivision does not prevent the developmental center
from reporting any other criminal act constituting a danger to the
health or safety of the
residents of the developmental center to the local law enforcement
agency.
(b) (1) The department shall report to the agency described in
subdivision (i) of Section 4900 any of the following incidents
involving a resident of a developmental center:
(A) Any unexpected or suspicious death, regardless of whether the
cause is immediately known.
(B) Any allegation of sexual assault, as defined in Section
15610.63, in which the alleged perpetrator is a developmental center
or department employee or contractor.
(C) Any report made to the local law enforcement agency in the
jurisdiction in which the facility is located that involves physical
abuse, as defined in Section 15610.63, in which a staff member is
implicated.
(2) A report pursuant to this subdivision shall be made no later
than the close of the first business day following the discovery of
the reportable incident.
(c) The department shall do both of the following:
(1) Annually provide written information to every developmental
center employee regarding all of the following:
(A) The statutory and departmental requirements for mandatory
reporting of suspected or known abuse.
(B) The rights and protections afforded to individuals' reporting
of suspected or known abuse.
(C) The penalties for failure to report suspected or known abuse.
(D) The telephone numbers for reporting suspected or known abuse
or neglect to designated investigators of the department and to local
law enforcement agencies.
(2) On or before August 1, 2001, in consultation with employee
organizations, advocates, consumers, and family members, develop a
poster that encourages staff, residents, and visitors to report
suspected or known abuse and provides information on how to make
these reports.
SEC. 205. Section 4648 of the Welfare and Institutions Code is
amended to read:
4648. In order 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 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 which the regional center and consumer or, where
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 provision of
law or regulation to the contrary, 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), 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 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 where appropriate,
his or her parents, legal guardian, conservator, or authorized
representative, including those appointed pursuant to subdivision (d)
of Section 4548, 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
which 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 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, where appropriate, the
consumer's parent's parents '
, legal guardian's, authorized representative's, or conservator'
s choice of providers.
(7) No service or support provided by any agency or individual
shall be continued unless the consumer or, where appropriate, his or
her parents, legal guardian, or conservator, or authorized
representative, including those appointed pursuant to subdivision (d)
of Section 4548, 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 which 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 provision of
law or regulation to the contrary, 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 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
provision of law or regulation to the contrary, a regional center
shall not purchase new residential services from institutions for
mental disease, as described in Part 5 (commencing with Section 5900)
of Division 5, for which federal Medicaid funding is not available.
(ii) The prohibition described in clause (i) shall not apply to
emergencies, as determined by the regional center, when a regional
center cannot locate alternate federally eligible 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 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. 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) 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.
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.
(D) Each person with developmental disabilities placed by the
regional center in a community living arrangement shall have 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 prepares, provides, and requires
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 cognitive
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 audio tapes, 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 which 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 provision of law or regulation to
the contrary, 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 the area board to initiate action
under the provisions defining area board advocacy functions
established in this division.
(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, or
request the area board 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) Where there are identified gaps in the system of services and
supports or where 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. 206. Section 4684.53 of the Welfare and Institutions Code is
amended to read:
4684.53. (a) The State Department of Developmental Services and
the State Department of Social Services shall jointly implement a
licensing program to provide special health care and intensive
support services to adults in homelike community settings.
(b) The program shall be implemented through approved community
placement plans, as follows:
(1) For closure of Agnews Developmental Center, through the
following regional centers:
(A) The San Andreas Regional Center.
(B) The Regional Center of the East Bay.
(C) The Golden Gate Regional Center.
(2) All regional centers involved in the closure of the Lanterman
Developmental Center, as determined by the State Department of
Developmental Services.
(3) All regional centers transitioning developmental center
residents to placements in the community.
(c) Each ARFPSHN shall possess a community care facility license
issued pursuant to Article 9 (commencing with Section 1567.50) of
Chapter 3 of Division 2 of the Health and Safety Code, and shall be
subject to the requirements of Chapter 1 (commencing with Section
80000) of Division 6 of Title 22 of the California Code of
Regulations, except for Article 8 (commencing with Section 80090).
(d) For purposes of this article, a health facility licensed
pursuant to subdivision (e) or (h) of Section 1250 of the Health and
Safety Code may place its licensed bed capacity in voluntary
suspension for the purpose of licensing the facility to operate an
ARFPSHN if the facility is selected to participate pursuant to
Section 4684.58. Consistent with subdivision (a) of Section 4684.50,
any facility licensed pursuant to this section shall serve up to five
adults. A facility's bed capacity shall not be placed in voluntary
suspension until all consumers residing in the facility under the
license to be suspended have been relocated. A consumer shall not be
relocated unless it is reflected in the consumer's individual program
plan developed pursuant to Sections 4646 and 4646.5.
(e) Each ARFPSHN is subject to the requirements of Subchapters 5
to 9, inclusive, of Chapter 1 of, and Subchapters 2 and 4 of Chapter
3 of, Division 2 of Title 17 of the California Code of Regulations.
(f) Each ARFPSHN shall ensure that an operable automatic fire
sprinkler system is installed and maintained.
(g) Each ARFPSHN shall have an operable automatic fire sprinkler
system that is approved by the State Fire Marshal and that meets the
National Fire Protection Association (NFPA) 13D standard for the
installation of sprinkler systems in single- and two-family dwellings
and manufactured homes. A local jurisdiction shall not require a
sprinkler system exceeding this standard by amending the standard or
by applying standards
other than NFPA 13D. A public water agency shall not interpret this
section as changing the status of a facility from a residence
entitled to residential water rates, nor shall a new meter or larger
connection pipe be required of the facility.
(h) Each ARFPSHN shall provide an alternative power source to
operate all functions of the facility for a minimum of six hours in
the event the primary power source is interrupted. The alternative
power source shall comply with the manufacturer's recommendations for
installation and operation. The alternative power source shall be
maintained in safe operating condition, and shall be tested every 14
days under the full load condition for a minimum of 10 minutes.
Written records of inspection, performance, exercising period, and
repair of the alternative power source shall be regularly maintained
on the premises and available for inspection by the State Department
of Developmental Services.
SEC. 207. Section 4792.1 of the Welfare and Institutions Code is
repealed.
SEC. 208. Section 5008 of the Welfare and Institutions Code is
amended to read:
5008. Unless the context otherwise requires, the following
definitions shall govern the construction of this part:
(a) "Evaluation" consists of multidisciplinary professional
analyses of a person's medical, psychological, educational, social,
financial, and legal conditions as may appear to constitute a
problem. Persons providing evaluation services shall be properly
qualified professionals and may be full-time employees of an agency
providing evaluation services or may be part-time employees or may be
employed on a contractual basis.
(b) "Court-ordered evaluation" means an evaluation ordered by a
superior court pursuant to Article 2 (commencing with Section 5200)
or by a court pursuant to Article 3 (commencing with Section 5225) of
Chapter 2.
(c) "Intensive treatment" consists of such hospital and other
services as may be indicated. Intensive treatment shall be provided
by properly qualified professionals and carried out in facilities
qualifying for reimbursement under the California Medical Assistance
Program (Medi-Cal) set forth in Chapter 7 (commencing with Section
14000) of Part 3 of Division 9, or under Title XVIII of the federal
Social Security Act and regulations thereunder. Intensive treatment
may be provided in hospitals of the United States government by
properly qualified professionals. Nothing in this part shall be
construed to prohibit an intensive treatment facility from also
providing 72-hour treatment and evaluation.
(d) "Referral" is referral of persons by each agency or facility
providing intensive treatment or evaluation services to other
agencies or individuals. The purpose of referral shall be to provide
for continuity of care, and may include, but need not be limited to,
informing the person of available services, making appointments on
the person's behalf, discussing the person's problem with the agency
or individual to which the person has been referred, appraising the
outcome of referrals, and arranging for personal escort and
transportation when necessary. Referral shall be considered complete
when the agency or individual to whom the person has been referred
accepts responsibility for providing the necessary services. All
persons shall be advised of available precare services which prevent
initial recourse to hospital treatment or aftercare services which
support adjustment to community living following hospital treatment.
These services may be provided through county welfare departments,
the State Department of State Hospitals, Short-Doyle programs, or
other local agencies.
Each agency or facility providing evaluation services shall
maintain a current and comprehensive file of all community services,
both public and private. These files shall contain current agreements
with agencies or individuals accepting referrals, as well as
appraisals of the results of past referrals.
(e) "Crisis intervention" consists of an interview or series of
interviews within a brief period of time, conducted by qualified
professionals, and designed to alleviate personal or family
situations which present a serious and imminent threat to the health
or stability of the person or the family. The interview or interviews
may be conducted in the home of the person or family, or on an
inpatient or outpatient basis with such therapy, or other services,
as may be appropriate. Crisis intervention may, as appropriate,
include suicide prevention, psychiatric, welfare, psychological,
legal, or other social services.
(f) "Prepetition screening" is a screening of all petitions for
court-ordered evaluation as provided in Article 2 (commencing with
Section 5200) of Chapter 2, consisting of a professional review of
all petitions; an interview with the petitioner and, whenever
possible, the person alleged, as a result of mental disorder, to be a
danger to others, or to himself or herself, or to be gravely
disabled, to assess the problem and explain the petition; when
indicated, efforts to persuade the person to receive, on a voluntary
basis, comprehensive evaluation, crisis intervention, referral, and
other services specified in this part.
(g) "Conservatorship investigation" means investigation by an
agency appointed or designated by the governing body of cases in
which conservatorship is recommended pursuant to Chapter 3
(commencing with Section 5350).
(h) (1) For purposes of Article 1 (commencing with Section 5150),
Article 2 (commencing with Section 5200), and Article 4 (commencing
with Section 5250) of Chapter 2, and for the purposes of Chapter 3
(commencing with Section 5350), "gravely disabled" means either of
the following:
(A) A condition in which a person, as a result of a mental
disorder, is unable to provide for his or her basic personal needs
for food, clothing, or shelter.
(B) A condition in which a person , has been
found mentally incompetent under Section 1370 of the Penal Code and
all of the following facts exist:
(i) The indictment or information pending against the defendant at
the time of commitment charges a felony involving death, great
bodily harm, or a serious threat to the physical well-being of
another person.
(ii) The indictment or information has not been dismissed.
(iii) As a result of a mental disorder, the person is
unable to understand the nature and purpose of the proceedings taken
against him or her and to assist counsel in the conduct of his or her
defense in a rational manner.
(2) For purposes of Article 3 (commencing with Section 5225) and
Article 4 (commencing with Section 5250), of Chapter 2, and for the
purposes of Chapter 3 (commencing with Section 5350), "gravely
disabled" means a condition in which a person, as a result of
impairment by chronic alcoholism, is unable to provide for his or her
basic personal needs for food, clothing, or shelter.
(3) The term "gravely disabled" does not include mentally
retarded intellectually disabled persons by
reason of being mentally retarded
intellectually disabled alone.
(i) "Peace officer" means a duly sworn peace officer as that term
is defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2 of the Penal Code who has completed the basic training course
established by the Commission on Peace Officer Standards and
Training, or any parole officer or probation officer specified in
Section 830.5 of the Penal Code when acting in relation to cases for
which he or she has a legally mandated responsibility.
(j) "Postcertification treatment" means an additional period of
treatment pursuant to Article 6 (commencing with Section 5300) of
Chapter 2.
(k) "Court," unless otherwise specified, means a court of record.
( l ) "Antipsychotic medication" means any medication
customarily prescribed for the treatment of symptoms of psychoses and
other severe mental and emotional disorders.
(m) "Emergency" means a situation in which action to impose
treatment over the person's objection is immediately necessary for
the preservation of life or the prevention of serious bodily harm to
the patient or others, and it is impracticable to first gain consent.
It is not necessary for harm to take place or become unavoidable
prior to treatment.
SEC. 209. Section 5328.03 of the Welfare and Institutions Code is
amended to read:
5328.03. (a) (1) Notwithstanding Section 5328 of this code,
Section 3025 of the Family Code, or paragraph (2) of subdivision (c)
of Section 56.11 of the Civil Code, a psychotherapist who knows that
a minor has been removed from the physical custody of his or her
parent or guardian pursuant to Article 6 (commencing with Section
300) to Article 10 (commencing with Section 360), inclusive, of
Chapter 2 of Part 1 of Division 2 shall not release mental health
records of the minor patient and shall not disclose mental health
information about that minor patient based upon an authorization to
release those records or the information signed by the minor's parent
or guardian. This restriction shall not apply if the juvenile court
has issued an order authorizing the parent or guardian to sign an
authorization for the release of the records or information after
finding that such an order would not be detrimental to the minor
patient.
(2) Notwithstanding Section 5328 of this code or Section 3025 of
the Family Code, a psychotherapist who knows that a minor has been
removed from the physical custody of his or her parent or guardian
pursuant to Article 6 (commencing with Section 300) to Article 10
(commencing with Section 360), inclusive, of Chapter 2 of Part 1 of
Division 2 shall not allow the parent or guardian to inspect or
obtain copies of mental health records of the minor patient. This
restriction shall not apply if the juvenile court has issued an order
authorizing the parent or guardian to inspect or obtain copies of
the mental health records of the minor patient after finding that
such an order would not be detrimental to the minor patient.
(b) For purposes of this section, the following definitions apply:
(1) "Mental health records" means mental health records as defined
by subdivision (b) of Section 123105 of the Health and Safety Code.
(2) "Psychotherapist" means a provider of health care as defined
in Section 1010 of the Evidence Code.
(c) (1) When the juvenile court has issued an order described in
paragraph (1) of subdivision (a), the parent or guardian seeking the
release of the minor's mental health records or information about the
minor shall present a copy of the court order to the psychotherapist
before any records or information may be released pursuant to the
signed authorization.
(2) When the juvenile court has issued an order described in
paragraph (2) of subdivision (a), the parent or guardian seeking to
inspect or obtain copies of the mental health records of the minor
patient shall present a copy of the court order to the
psychotherapist and shall comply with subdivisions (a) and (b) of
Section 123110 of the Health and Safety Code before the parent or
guardian is allowed to inspect or obtain copies of the mental health
records of the minor patient.
(d) Nothing in this section shall be construed to prevent or limit
a psychotherapist's authority under subdivision (a) of Section
123115 of the Health and Safety Code to deny a parent's or guardian's
written request to inspect or obtain copies of the minor patient's
mental health records, notwithstanding the fact that the juvenile
court has issued an order authorizing the parent or guardian to sign
an authorization for the release of the mental health records or
information about that minor patient, or to inspect or obtain copies
of the minor patient's health records. Liability for a
psychotherapist's decision not to release records, not to disclose
information about the minor patient, or not to allow the parent or
guardian to inspect or obtain copies of the mental health records
pursuant to the authority of subdivision (a) of Section 123115 of the
Health and Safety Code shall be governed by that section.
(e) Nothing in this section shall be construed to impose upon a
psychotherapist a duty to inquire or investigate whether a child has
been removed from the physical custody of his or her parent or
guardian pursuant to Article 6 (commencing with Section 300) to
Article 10 (commencing with Section 360), inclusive, of Chapter 2 of
Part 1 of Division 2 when a parent or guardian presents the minor's
psychotherapist with an order authorizing the parent or guardian to
sign an authorization for the release of information or the mental
health records regarding the minor patient or authorizing the parent
or guardian to inspect or obtain copies of the mental health records
of the minor patient.
SEC. 210. Section 6254 of the Welfare and Institutions Code is
amended to read:
6254. Wherever provision is made in this code for an order of
commitment by a superior court, the order of commitment shall be in
substantially the following form:
In the Superior Court of the State of
California
For the County of ____
_______________________
The People )
For the Best Interest )
and Protection of )
_______________________
as a _________________, ) Order for
Care,
) Hospitalization
,
or Commitment
and Concerning )
_____________ and )
__________, Respondents )
_______________________ )
The petition dated ________, alleging that
________, having been presented to this court on
the ________ day of ________, 20__, and an order
of detention issued thereon by a judge of the
superior court of this county, and a return of the
said order:
And it further appearing that the
provisions of Sections 6250 to 6254, inclusive, of
the Welfare and Institutions Code have been
complied with;
And it further appearing that Dr. ________ and
Dr. ________, two regularly appointed and
qualified medical examiners of this county, have
made a personal examination of the alleged
________, and have made and signed the certificate
of the medical examiners, which certificate is
attached hereto and made a part hereof;
Now therefore, after examination and certificate
made as aforesaid , the court is satisfied and
believes that ________ is a ________ and is so
________.
It is ordered, adjudged , and decreed:
That ________ is a ________ and that _he
* (a) Be cared for and detained in ________, a
county psychiatric hospital, a community mental
health service, or a licensed sanitarium or
hospital for the care of the mentally disordered
until the further order of the court, or
* (b) Be cared for at ________, until the further
order of the court, or
* (c) Be committed to the State Department of
State Hospitals for placement in a state hospital,
or
* (d) Be committed to a facility of the
Department of Veterans Affairs or other agency of
the United States, to wit: ________ at ________.
It is further ordered and directed that ________
of this county, take, convey , and deliver ________
to the proper authorities of the hospital or
establishment designated herein to be cared for as
provided by law.
Dated this ________ day of ________, 20__.
______________________________
Judge of the Superior Court
* Strike out when not applicable.
SEC. 211. Section 7295 of the Welfare and Institutions Code is
amended to read:
7295. (a) To ensure its safety and security, a state hospital
that is under the jurisdiction of the State Department of State
Hospitals, as listed in Section 4100, may develop a list of items
that are deemed contraband and prohibited on hospital grounds and
control and eliminate contraband on hospital grounds.
(b) The State Department of State Hospitals shall develop a list
of items that shall be deemed contraband at every state hospital.
(c) A state hospital shall form a contraband committee, comprised
of hospital management and employees designated by the hospital's
director, to develop the list of contraband items. The committee
shall develop the list with the participation of patient
representatives, or the patient government of the hospital, if one is
available, and the Office of Patients' Rights.
(d) Each hospital's list of contraband items developed pursuant to
subdivision (a), and the statewide list of contraband items
developed pursuant to subdivision (b), are subject to review and
approval by the Director of State Hospitals or his or her designee.
(e) A list of contraband items developed pursuant to subdivision
(a) shall be updated and subject to review and approval by the
director of the department, or his or her designee, no less often
than every six months.
(f) If an item presents an emergent danger to the safety and
security of a facility, the item may be placed immediately on a
contraband list by the Director of State Hospitals or the executive
director of the state hospital, but this placement shall be reviewed
by the contraband committee, if applicable, and approved by the
Director of State Hospitals or his or her designee within six weeks.
(g) The lists of contraband items developed pursuant to this
section shall be posted prominently in every unit of the hospital and
throughout the hospital, and provided to a patient upon request.
(h) The lists of contraband items developed pursuant to this
section shall be posted on the hospital's Internet Web site.
(i) For the purposes of this section, "contraband" means
materials, articles, or goods that a patient is prohibited from
having in his or her possession because the materials, articles, or
goods present a risk to the safety and security of the facility.
(j) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the hospital
and the department may implement, interpret, or make specific this
section without taking regulatory action.
SEC. 212. Section 12306 of the Welfare and Institutions Code, as
amended by Section 36 of Chapter 439 of the Statutes of 2012, is
amended to read:
12306. (a) The state and counties shall share the annual cost of
providing services under this article as specified in this section.
(b) Except as provided in subdivisions (c) and (d), the state
shall pay to each county, from the General Fund and any federal funds
received under Title XX of the federal Social Security Act available
for that purpose, 65 percent of the cost of providing services under
this article, and each county shall pay 35 percent of the cost of
providing those services.
(c) For services eligible for federal funding pursuant to Title
XIX of the federal Social Security Act under the Medi-Cal program
and, except as provided in subdivisions (b) and (d), the state shall
pay to each county, from the General Fund and any funds available for
that purpose, 65 percent of the nonfederal cost of providing
services under this article, and each county shall pay 35 percent of
the nonfederal cost of providing those services.
(d) (1) For the period of July 1, 1992, to June 30, 1994,
inclusive, the state's share of the cost of providing services under
this article shall be limited to the amount appropriated for that
purpose in the annual Budget Act.
(2) The department shall restore the funding reductions required
by subdivision (c) of Section 12301, fully or in part, as soon as
administratively practicable, if the amount appropriated from the
General Fund for the 1992-93 fiscal year under this article is
projected to exceed the sum of the General Fund expenditures under
Section 14132.95 and the actual General Fund expenditures under this
article for the 1992-93 fiscal year. The entire amount of the excess
shall be applied to the restoration. Services shall not be restored
under this paragraph until the Department of Finance has determined
that the restoration of services would result in no additional costs
to the state or to the counties relative to the combined state
appropriation and county matching funds for in-home supportive
services under this article in the 1992-93 fiscal year.
(e) This section shall become operative only if Chapter 45 of the
Statutes of 2012 is deemed inoperative pursuant to Section 15 of
that chapter.
SEC. 213. Section 12306 of the Welfare and Institutions Code, as
amended by Section 37 of Chapter 439 of the Statutes of 2012, is
amended to read:
12306. (a) The state and counties shall share the annual cost of
providing services under this article as specified in this section.
(b) Except as provided in subdivisions (c) and (d), the state
shall pay to each county, from the General Fund and any federal funds
received under Title XX of the federal Social Security Act available
for that purpose, 65 percent of the cost of providing services under
this article, and each county shall pay 35 percent of the cost of
providing those services.
(c) For services eligible for federal funding pursuant to Title
XIX of the federal Social Security Act under the Medi-Cal program
and, except as provided in subdivisions (b) and (d), the state shall
pay to each county, from the General Fund and any funds available for
that purpose, 65 percent of the nonfederal cost of providing
services under this article, and each county shall pay 35 percent of
the nonfederal cost of providing those services.
(d) (1) For the period of July 1, 1992, to June 30, 1994,
inclusive, the state's share of the cost of providing services under
this article shall be limited to the amount appropriated for that
purpose in the annual Budget Act.
(2) The department shall restore the funding reductions required
by subdivision (c) of Section 12301, fully or in part, as soon as
administratively practicable, if the amount appropriated from the
General Fund for the 1992-93 fiscal year under this article is
projected to exceed the sum of the General Fund expenditures under
Section 14132.95 and the actual General Fund expenditures under this
article for the 1992-93 fiscal year. The entire amount of the excess
shall be applied to the restoration. Services shall not be restored
under this paragraph until the Department of Finance has determined
that the restoration of services would result in no additional costs
to the state or to the counties relative to the combined state
appropriation and county matching funds for in-home supportive
services under this article in the 1992-93 fiscal year.
(e) For the period during which Section 12306.15 is operative,
each county's share of the costs of providing services pursuant to
this article specified in subdivisions (b) and (c) shall remain, but
the County IHSS Maintenance of Effort pursuant to Section 12306.15
shall be in lieu of that share.
(f) This section shall become inoperative only if Chapter 45 of
the Statutes of 2012 is deemed inoperative pursuant to Section 15 of
that chapter.
SEC. 214. Section 14005.27 of the Welfare and Institutions Code is
amended to read:
14005.27. (a) Individuals enrolled in the Healthy Families
Program pursuant to Part 6.2 (commencing with Section 12693) of
Division 2 of the Insurance Code on June 27, 2012, and who are
determined eligible to receive benefits pursuant to subdivisions (a)
and (b) of Section 14005.26, shall be transitioned into Medi-Cal,
pursuant to this section.
(b) To the extent necessary and for the purposes of carrying out
the provisions of this section, in performing initial eligibility
determinations for children enrolled in the Healthy Families Program
pursuant to Part 6.2 (commencing with Section 12693) of Division 2 of
the Insurance Code, the department shall adopt the option pursuant
to Section 1902(e)(13) of the federal Social Security Act (42 U.S.C.
Sec. 1396a(e)(13)) to allow the department or county human services
departments to rely upon findings made by the Managed Risk Medical
Insurance Board (MRMIB) regarding one or more components of
eligibility. The department shall seek federal approval of a state
plan amendment to implement this subdivision.
(c) To the extent necessary, the department shall seek federal
approval of a state plan amendment or a waiver to provide presumptive
eligibility for the optional targeted low-income category of
eligibility pursuant to Section 14005.26 for individuals
presumptively eligible for or enrolled in the Healthy Families
Program pursuant to Part 6.2 (commencing with Section 12693) of
Division 2 of the Insurance Code. The presumptive eligibility shall
be based upon the most recent information contained in the individual'
s Healthy Families Program file. The timeframe for the presumptive
eligibility shall begin no sooner than January 1, 2013, and shall
continue until a determination of Medi-Cal eligibility is made, which
determination shall be performed within one year of the individual's
Healthy Families Program annual review date.
(d) (1) The California Health and Human Services Agency, in
consultation with the Managed Risk Medical Insurance Board, the State
Department of Health Care Services, the Department of Managed Health
Care, and diverse stakeholders groups, shall provide the fiscal and
policy committees of the Legislature with a strategic plan for the
transition of the Healthy Families Program pursuant to this section
by no later than October 1, 2012. This strategic plan shall, at a
minimum, address all of the following:
(A) State, county, and local administrative components which
facilitate a successful subscriber transition such as communication
and outreach to subscribers and applicants, eligibility processing,
enrollment, communication, and linkage with health plan providers,
payments of applicable premiums, and overall systems operation
functions.
(B) Methods and processes for diverse stakeholder engagement
throughout the entire transition, including all phases of the
transition.
(C) State monitoring of managed care health plans' performance and
accountability for provision of services, and initial quality
indicators for children and adolescents transitioning to Medi-Cal.
(D) Health care and dental delivery system components such as
standards for informing and enrollment materials, network adequacy,
performance measures and metrics, fiscal solvency, and related
factors that ensure timely access to quality health and dental care
for children and adolescents transitioning to Medi-Cal.
(E) Inclusion of applicable operational steps, timelines, and key
milestones.
(F) A time certain for the transfer of the Healthy Families Advisory
Board, as described in Part 6.2 (commencing with Section 12693) of
Division 2 of the Insurance Code, to the State Department of Health
Care Services.
(2) The intent of this strategic plan is to serve as an overall
guide for the development of each plan for each phase of this
transition, pursuant to paragraphs (1) to (8), inclusive, of
subdivision (e), to ensure clarity and consistency in approach and
subscriber continuity of care. This strategic plan may also be
updated by the California Health and Human Services Agency as
applicable and provided to the Legislature upon completion.
(e) (1) The department shall transition individuals from the
Healthy Families Program to the Medi-Cal program in four phases, as
follows:
(A) Phase 1. Individuals enrolled in a Healthy Families Program
health plan that is a Medi-Cal managed care health plan shall be
enrolled in the same plan no earlier than January 1, 2013, pursuant
to the requirements of this section and Section 14011.6, and to the
extent the individual is otherwise eligible under this chapter and
Chapter 8 (commencing with Section 14200).
(B) Phase 2. Individuals enrolled in a Healthy Families Program
managed care health plan that is a subcontractor of a Medi-Cal
managed health care plan, to the extent possible, shall be enrolled
into a Medi-Cal managed health care plan that includes the
individuals' current plan pursuant to the requirements of this
section and Section 14011.6, and to the extent the individuals are
otherwise eligible under this chapter and Chapter 8 (commencing with
Section 14200). The transition of individuals described in this
subparagraph shall begin no earlier than April 1, 2013.
(C) Phase 3. Individuals enrolled in a Healthy Families Program
plan that is not a Medi-Cal managed care plan and does not contract
or subcontract with a Medi-Cal managed care plan shall be enrolled in
a Medi-Cal managed care plan in that county. Enrollment shall
include consideration of the individuals' primary care providers
pursuant to the requirements of this section and Section 14011.6, and
to the extent the individuals are otherwise eligible under this
chapter and Chapter 8 (commencing with Section 14200). The transition
of individuals described in this subparagraph shall begin no earlier
than August 1, 2013.
(D) Phase 4.
(i) Individuals residing in a county that is not a Medi-Cal
managed care county shall be provided services under the Medi-Cal
fee-for-service delivery system, subject to clause (ii). The
transition of individuals described in this subparagraph shall begin
no earlier than September 1, 2013.
(ii) In the event the department creates a managed health care
system in the counties described in clause (i), individuals residing
in those counties shall be enrolled in managed health care plans
pursuant to this chapter and Chapter 8 (commencing with Section
14200).
(2) For the transition of individuals pursuant to subparagraphs
(A), (B), (C), and (D) of paragraph (1), implementation plans shall
be developed to ensure state and county systems readiness, health
plan network adequacy, and continuity of care with the goal of
ensuring there is no disruption of service and there is continued
access to coverage for all transitioning individuals. If an
individual is not retained with his or her current primary care
provider, the implementation plan shall require the managed care plan
to report to the department as to how continuity of care is being
provided. Transition of individuals described in subparagraphs (A),
(B), (C), and (D) of paragraph (1) shall not occur until 90 days
after the department has submitted an implementation plan to the
fiscal and policy committees of the Legislature. The implementation
plans shall include, but not be limited to, information on health and
dental plan network adequacy, continuity of care, eligibility and
enrollment requirements, consumer protections, and family
notifications.
(3) The following requirements shall be in place prior to
implementation of Phase 1, and shall be required for all phases of
the transition:
(A) Managed care plan performance measures shall be integrated and
coordinated with the Healthy Families Program performance standards
including, but not limited to, child-only Healthcare Effectiveness
Data and Information Set (HEDIS) measures, and measures indicative of
performance in serving children and adolescents. These performance
measures shall also be in compliance with all performance
requirements under the Knox-Keene Health Care Service Plan Act of
1975 (Chapter 2.2 (commencing with Section 1340) of Division 2 of the
Health and Safety Code) and existing Medi-Cal managed care
performance measurements and standards as set forth in this chapter
and Chapter 8 (commencing with Section 14200) ,
of Title 22 of the California Code of Regulations, and
all-plan letters, including, but not limited to, network adequacy and
linguistic services, and shall be met prior to the transition of
individuals pursuant to Phase 1.
(B) Medi-Cal managed care health plans shall allow enrollees to
remain with their current primary care provider. If an individual
does not remain with the current primary care provider, the plan
shall report to the department as to how continuity of care is being
provided.
(4) (A) As individuals are transitioned pursuant to subparagraphs
(A), (B), (C), and (D) of paragraph (1), for individuals residing in
all counties except the Counties of Sacramento and Los Angeles, their
dental coverage shall transition to fee-for-service dental coverage
and may be provided by their current provider if the provider is a
Medi-Cal fee-for-service dental provider.
(B) For individuals residing in the County of Sacramento, their
dental coverage shall continue to be provided by their current dental
managed care plan if their plan is a Medi-Cal dental managed care
plan. If their plan is not a Medi-Cal dental managed care plan, they
shall select a Medi-Cal dental managed care plan. If they do not
choose a Medi-Cal dental managed care plan, they shall be assigned to
a plan with preference to a plan with which their current provider
is a contracted provider. Any children in the Healthy Families
Program transitioned into Medi-Cal dental managed care plans shall
also have access to the beneficiary dental exception process,
pursuant to Section 14089.09. Further, the Sacramento advisory
committee, established pursuant to Section 14089.08, shall be
consulted regarding the transition of children in the Healthy
Families Program into Medi-Cal dental managed care plans.
(C) (i) For individuals residing in the County of Los Angeles, for
purposes of continuity of care, their dental coverage shall continue
to be provided by their current dental managed care plan if that
plan is a Medi-Cal dental managed care plan. If their plan is not a
Medi-Cal dental managed care plan, they may select a Medi-Cal dental
managed care plan or choose to move into Medi-Cal fee-for-service
dental coverage.
(ii) It is the intent of the Legislature that children
transitioning to Medi-Cal under this section have a choice in dental
coverage, as provided under existing law.
(5) Dental health plan performance measures and benchmarks shall
be in accordance with Section 14459.6.
(6) Medi-Cal managed care health and dental plans shall report to
the department, as frequently as specified by the department,
specified information pertaining to transition implementation,
enrollees, and providers, including, but not limited to, grievances
related to access to care, continuity of care requests and outcomes,
and changes to provider networks, including provider enrollment and
disenrollment changes. The plans shall report this information by
county, and in the format requested by the department.
(7) The department may develop supplemental implementation plans
to separately account for the transition of individuals from the
Healthy Families Program to specific Medi-Cal delivery systems.
(8) The department shall consult with the Legislature and
stakeholders, including, but not limited to, consumers, families,
consumer advocates, counties, providers, and health and dental plans,
in the development of implementation plans described in paragraph
(3) for individuals who are transitioned to Medi-Cal in Phase 2,
Phase 3, and Phase 4, as described in subparagraphs (B), (C), and (D)
of paragraph (1).
(9) (A) The department shall consult and collaborate with the
Department of Managed Health Care in assessing Medi-Cal managed care
health plan network adequacy in accordance with the Knox-Keene Health
Care Service Plan Act of 1975 (Chapter 2.2 (commencing with Section
1340) of Division 2 of the Health and Safety Code) for purposes of
the developed transition plans pursuant to paragraph (2) for each of
the phases.
(B) For purposes of individuals transitioning in Phase 1, as
described in subparagraph (A) of paragraph (1), network adequacy
shall be assessed as described in this paragraph and findings from
this assessment shall be provided to the fiscal and appropriate
policy committees of the Legislature 60 days prior to the effective
date of implementing this transition.
(10) The department shall provide monthly status reports to the
fiscal and policy committees of the Legislature on the transition
commencing no later than February 15, 2013. This monthly status
transition report shall include, but not be limited to, information
on health plan grievances related to access to care, continuity of
care requests and outcomes, changes to provider networks, including
provider enrollment and disenrollment changes, and eligibility
performance standards pursuant to subdivision (n). A final
comprehensive report shall be provided within 90 days after
completion of the last phase of transition.
(f) (1) The department and MRMIB shall work collaboratively in the
development of notices for individuals transitioned pursuant to
paragraph (1) of subdivision (e).
(2) The state shall provide written notice to individuals enrolled
in the Healthy Families Program of their transition to the Medi-Cal
program at least 60 days prior to the transition of individuals in
Phase 1, as described in subparagraph (A) of paragraph (1) of
subdivision (e), and at least 90 days prior to transition of
individuals in Phases 2, 3, and 4, as described in subparagraphs (B),
(C), and (D) of paragraph (1) of subdivision (e).
(3) Notices developed pursuant to this subdivision shall ensure
individuals are informed regarding the transition, including, but not
limited to, how individuals' systems of care may change, when the
changes will occur, and whom they can contact for assistance when
choosing a Medi-Cal managed care plan, if applicable, including a
toll-free telephone number, and with problems they may encounter. The
department shall consult with stakeholders regarding notices
developed pursuant to this subdivision. These notices shall be
developed using plain language, and written translation of the
notices shall be available for those who are limited English
proficient or non-English speaking in all Medi-Cal threshold
languages.
(4) The department shall designate department liaisons responsible
for the coordination of the Healthy Families Program and may
establish a children's-focused section for this purpose and to
facilitate the provision of health care services for children
enrolled in Medi-Cal.
(5) The department shall provide a process for ongoing stakeholder
consultation and make information publicly available, including the
achievement of benchmarks, enrollment data, utilization data, and
quality measures.
(g) (1) In order to aid the transition of Healthy Families Program
enrollees, MRMIB, on the effective date of the act that added this
section and continuing through the completion of the transition of
Healthy Families Program enrollees to the Medi-Cal program, shall
begin requesting and collecting from health plans contracting with
MRMIB pursuant to Part 6.2 (commencing with Section 12693) of
Division 2 of the Insurance Code, information about each health plan'
s provider network, including, but not limited to, the primary care
and all specialty care providers assigned to individuals enrolled in
the health plan. MRMIB shall obtain this information in a manner that
coincides with the transition activities described in subdivision
(d), and shall provide all of the collected information to the
department within 60 days of the department's request for this
information to ensure timely transitions of the
Healthy Family Programs Program
enrollees.
(2) The department shall analyze the existing Healthy Families
Program delivery system network and the Medi-Cal fee-for-service
provider networks, including, but not limited to, Medi-Cal dental
providers, to determine overlaps of the provider networks in each
county for which there are no Medi-Cal managed care plans or dental
managed care plans. To the extent there is a lack of existing
Medi-Cal fee-for-service providers available to serve the Healthy
Families Program enrollees, the department shall work with the
Healthy Families Program provider community to encourage
participation of those providers in the Medi-Cal program, and develop
a streamlined process to enroll them as Medi-Cal providers.
(3) (A) MRMIB, within 60 days of a request by the department,
shall provide the department any data, information, or record
concerning the Healthy Families Program as is necessary to implement
the transition of enrollment required pursuant to this section.
(B) Notwithstanding any other provision of law, all of the
following shall apply:
(i) The term "data, information, or record" shall include, but is
not limited to, personal information as defined in Section 1798.3 of
the Civil Code.
(ii) Any data, information, or record 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) and any other law, to the same extent that it was
exempt from disclosure or privileged prior to the provision of the
data, information, or record to the department.
(iii) The provision of any such data, information, or record to
the department shall not constitute a waiver of any evidentiary
privilege or exemption from disclosure.
(iv) The department shall keep all data, information, or records
provided by MRMIB confidential to the full extent permitted by law,
including, but not limited to, the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code), and consistent with MRMIB's contractual
obligations to keep the data, information, or records confidential.
(h) This section shall be implemented only to the extent that all
necessary federal approvals and waivers have been obtained and the
enhanced rate of federal financial participation under Title XXI of
the federal Social Security Act (42 U.S.C. Sec. 1397aa et seq.) is
available for targeted low-income children pursuant to that act.
(i) (1) The department shall exercise the option pursuant to
Section 1916A of the federal Social Security Act (42 U.S.C. Sec.
1396o-1) to impose premiums for individuals described in subdivision
(a) of Section 14005.26 whose family income has been determined to be
above 150 percent and up to and including 200 percent of the federal
poverty level, after application of the income disregard pursuant to
subdivision (b) of Section 14005.26. The department shall not impose
premiums under this subdivision for individuals described in
subdivision (a) of Section 14005.26 whose family income has been
determined to be at or below 150 percent of the federal poverty
level, after application of the income disregard pursuant to
subdivision (b) of Section 14005.26. The department shall obtain
federal approval for the implementation of this subdivision.
(2) All premiums imposed under this section shall equal the family
contributions described in paragraph (2) of subdivision (d) of
Section 12693.43 of the Insurance Code and shall be reduced in
conformity with subdivisions (e) and (f) of Section 12693.43 of the
Insurance Code.
(j) The department shall not enroll targeted low-income children
described in this section in the Medi-Cal program until all necessary
federal approvals and waivers have been obtained, or no sooner than
January 1, 2013.
(k) (1) To the extent the new budget methodology pursuant to
paragraph (6) of subdivision (a) of Section 14154 is not fully
operational, for the purposes of implementing this section, for
individuals described in subdivision (a) whose family income has been
determined to be at or below 150 percent of the federal poverty
level, as determined pursuant to subdivision (b), the department
shall utilize the budgeting methodology for this population as
contained in the November 2011 Medi-Cal Local Assistance Estimate for
Medi-Cal county administration costs for eligibility operations.
(2) For purposes of implementing this section, the department
shall include in the Medi-Cal Local Assistance Estimate an amount for
Medi-Cal eligibility operations associated with the transfer of
Healthy Families Program enrollees eligible pursuant to subdivision
(a) of Section 14005.26 and whose family income is determined to be
above 150 percent and up to and including 200 percent of the federal
poverty level, after application of the income disregard pursuant to
subdivision (b) of Section 14005.26. In developing an estimate for
this activity, the department shall consider the projected number of
final eligibility determinations each county will process and
projected county costs. Within 60 days of the passage of the annual
Budget Act, the department shall notify each county of their
allocation for this activity based upon the amount allotted in the
annual Budget Act for this purpose.
(l) When the new budget methodology pursuant to paragraph (6) of
subdivision (a) of Section 14154 is fully operational, the new budget
methodology shall be utilized to reimburse counties for eligibility
determinations made for individuals pursuant to this section.
(m) Except as provided in subdivision (b), eligibility
determinations and annual redeterminations made pursuant to this
section shall be performed by county eligibility workers.
(n) In conducting the eligibility determinations for individuals
pursuant to this section and Section 14005.26, the following
reporting and performance standards shall apply to all counties:
(1) Counties shall report to the department, in a manner and for a
time period determined by the department, in consultation with the
County Welfare Directors Association, the number of applications
processed on a monthly basis, a breakout of the applications based on
income using the federal percentage of poverty levels, the final
disposition of each application, including information on the
approved Medi-Cal program, if applicable, and the average number of
days it took to make the final eligibility determination for
applications submitted directly to the county and from the single
point of entry (SPE).
(2) Notwithstanding any other law, the following performance
standards shall be applied to counties for eligibility determinations
for individuals eligible pursuant to this section:
(A) For children whose applications are received by the county
human services department from the SPE, the following standards shall
apply:
(i) Applications for children who are granted accelerated
enrollment by the SPE shall be processed according to the timeframes
specified in subdivision (d) of Section 14154.
(ii) Applications for children who are not granted accelerated
enrollment by the SPE due to the existence of an already active
Medi-Cal case shall be processed according to the timeframes
specified in subdivision (d) of Section 14154.
(iii) For applications for children who are not described in
clause (i) or (ii), 90 percent shall be processed within 10 working
days of being received, complete and without client errors.
(iv) If an application described in this section also contains
adults, and the adult applicants are required to submit additional
information beyond the information provided for the children, the
county shall process the eligibility for the child or children
without delay, consistent with this section while gathering the
necessary information to process eligibility for the adults.
(B) The department, in consultation with the County Welfare
Directors Association, shall develop reporting requirements for the
counties to provide regular data to the state regarding the
timeliness and outcomes of applications processed by the counties
that are received from the SPE.
(C) Performance thresholds and corrective action standards as set
forth in Section 14154 shall apply.
(D) For applications received directly into
by the county, these applications shall be processed by
the counties in accordance with the performance standards established
under subdivision (d) of Section 14154.
(3) This subdivision shall be implemented no sooner than January
1, 2013.
(4) Twelve months after implementation of this section pursuant to
subdivision (e), the department shall provide enrollment information
regarding individuals determined eligible pursuant to subdivision
(a) to the fiscal and appropriate policy committees of the
Legislature.
(o) (1) Notwithstanding Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code, for
purposes of this transition, 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. It is the intent of the Legislature that the
department be allowed temporary authority as necessary to implement
program changes until completion of the regulatory process.
(2) To the extent otherwise required by Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code, the department shall adopt emergency regulations
implementing this section no later than July 1, 2014. The department
may thereafter readopt the emergency regulations pursuant to that
chapter. The adoption and readoption, by the department, of
regulations implementing this section shall be deemed to be an
emergency and necessary to avoid serious harm to the public peace,
health, safety, or general welfare for purposes of Sections 11346.1
and 11349.6 of the Government Code, and the department is hereby
exempted from the requirement that it describe facts showing the need
for immediate action and from review by the Office of Administrative
Law.
(p) To implement this section, the department may enter into and
continue contracts with the Healthy Families Program administrative
vendor, for the purposes of implementing and maintaining the
necessary systems and activities for providing health care coverage
to optional targeted low-income children in the Medi-Cal program for
purposes of accelerated enrollment application processing by single
point of entry, noneligibility-related case maintenance and premium
collection, maintenance of the Health-E-App Web portal, call center
staffing and operations, certified application assistant services,
and reporting capabilities. To further implement this section, the
department may also enter into a contract with the Health Care
Options Broker of the department for purposes of managed care
enrollment activities. The contracts entered into or amended under
this section may initially be completed on a noncompetitive bid basis
and are exempt from the Public Contract Code. Contracts thereafter
shall be entered into or amended on a competitive bid basis and shall
be subject to the Public Contract Code.
(q) (1) If at any time the director determines that this section
or any part of this section may jeopardize the state's ability to
receive federal financial participation under the federal Patient
Protection and Affordable Care Act (Public Law 111-148), or any
amendment or extension of that act, or any additional federal funds
that the director, in consultation with the Department of Finance,
determines would be advantageous to the state, the director shall
give notice to the fiscal and policy committees of the Legislature
and to the Department of Finance. After giving notice, this section
or any part of this section shall become inoperative on the date that
the director executes a declaration stating that the department has
determined, in consultation with the Department of Finance, that it
is necessary to cease to implement this section or a part or parts
thereof in order to receive federal financial participation, any
increase in the federal medical assistance percentage available on or
after October 1, 2008, or any additional federal funds that the
director, in consultation with the Department of Finance, has
determined would be advantageous to the state.
(2) The director shall retain the declaration described in
paragraph (1), shall provide a copy of the declaration to the
Secretary of the State, the Secretary of the Senate, the Chief Clerk
of the Assembly, and the Legislative Counsel, and shall post the
declaration on the department's Internet Web site.
(3) In the event that the director makes a determination under
paragraph (1) and this section ceases to be implemented, the children
shall be enrolled back into the Healthy Families Program.
SEC. 215. Section 14043.25 of the Welfare and Institutions Code,
as added by Section 8 of Chapter 797 of the Statutes of 2012, is
amended to read:
14043.25. (a) The application form for enrollment, the provider
agreement, and all attachments or changes to either, shall be signed
under penalty of perjury.
(b) The department may require that the application form for
enrollment, the provider agreement, and all attachments or changes to
either, submitted by an applicant or provider licensed pursuant to
Division 2 (commencing with Section 500) of the Business and
Professions Code, the Osteopathic Initiative Act, or the Chiropractic
Initiative Act, be notarized.
(c) Application forms for enrollment, provider agreements, and all
attachments or changes to either, submitted by an applicant or
provider not subject to subdivision (b) shall be notarized. This
subdivision shall not apply with respect to providers under the
In-Home Supportive Services program.
(d) The department shall collect an application fee for
enrollment, including enrollment at a new location or a change in
location. The
application fee shall not be collected from individual physicians or
nonphysician practitioners, from providers that are enrolled in
Medicare or another state's Medicaid program or Children's Health
Insurance Program, from providers that submit proof that they have
paid the applicable fee to a Medicare contractor or to another state'
s Medicaid program, or pursuant to an exemption or waiver pursuant to
federal law. The application fee collected shall be in the amount
calculated by the federal Centers for Medicare and Medicaid Services
in effect for the calendar year during which the application for
enrollment is received by the department.
(e) (1) This section shall become operative on the effective date
of the state plan amendment necessary to implement this section, as
stated in the declaration executed by the director pursuant to
paragraph (2).
(2) Upon approval of the state plan amendment necessary to
implement this section, the director shall execute a declaration, to
be retained by the director and posted on the department's Internet
Web site, that states this approval has been obtained and the
effective date of the state plan amendment. The department shall
transmit a copy of the declaration to the Legislature.
SEC. 216. Section 14043.7 of the Welfare and Institutions Code, as
amended by Section 21 of Chapter 797 of the Statutes of 2012, is
amended to read:
14043.7. (a) The department may make unannounced visits to an
applicant or to a provider for the purpose of determining whether
enrollment, continued enrollment, or certification is warranted, or
as necessary for the administration of the Medi-Cal program. At the
time of the visit, the applicant or provider shall be required to
demonstrate an established place of business appropriate and adequate
for the services billed or claimed to the Medi-Cal program, as
relevant to his or her scope of practice, as indicated by, but not
limited to, the following:
(1) Being open and available to the general public.
(2) Having regularly established and posted business hours.
(3) Having adequate supplies in stock on the premises.
(4) Meeting all local laws and ordinances regarding business
licensing and operations.
(5) Having the necessary equipment and facilities to carry out
day-to-day business for his or her practice.
(b) An unannounced visit pursuant to subdivision (a) shall be
prohibited with respect to clinics licensed under Section 1204 of the
Health and Safety Code, clinics exempt from licensure under Section
1206 of the Health and Safety Code, health facilities licensed under
Chapter 2 (commencing with Section 1250) of Division 2 of the Health
and Safety Code, and natural persons licensed or certified under
Division 2 (commencing with Section 500) of the Business and
Professions Code, the Osteopathic Initiative Act, or the Chiropractic
Initiative Act, unless the department has reason to believe that the
provider will defraud or abuse the Medi-Cal program or lacks the
organizational or administrative capacity to provide services under
the program.
(c) Failure to remediate significant discrepancies in information
provided to the department by the provider or significant
discrepancies that are discovered as a result of an announced or
unannounced visit to a provider, for purposes of enrollment,
continued enrollment, or certification pursuant to subdivision (a)
shall make the provider subject to temporary suspension from the
Medi-Cal program, which shall include temporary deactivation of the
provider's number, including all business addresses used by the
provider to obtain reimbursement from the Medi-Cal program. The
director shall notify in writing the provider of the temporary
suspension and deactivation of provider numbers, which shall take
effect 15 days from the date of the notification. Notwithstanding
Section 100171 of the Health and Safety Code, proceedings after the
imposition of sanctions in this subdivision shall be in accordance
with Section 14043.65.
(d) This section shall become inoperative on the effective date of
the necessary state plan amendment, as stated in the declaration
executed by the director pursuant to Section 14043.7 as added by
Section 22 of the act that added this subdivision, and is repealed on
the January 1 of the following year. The department shall post the
declaration on its Internet Web site and transmit a copy of the
declaration to the Legislature.
SEC. 217. Section 14043.7 of the Welfare and Institutions Code, as
added by Section 22 of Chapter 797 of the Statutes of 2012, is
amended to read:
14043.7. (a) The department may make unannounced visits to an
applicant or to a provider for the purpose of determining whether
enrollment, continued enrollment, or certification is warranted, or
as necessary for the administration of the Medi-Cal program. If an
unannounced site visit is conducted by the department for any
enrolled provider, the provider shall permit access to any and all of
their provider locations. If a provider fails to permit access for
any site visit, the application shall be denied and the provider
shall be subject to deactivation. At the time of the visit, the
applicant or provider shall be required to demonstrate an established
place of business appropriate and adequate for the services billed
or claimed to the Medi-Cal program, as relevant to his or her scope
of practice, as indicated by, but not limited to, the following:
(1) Being open and available to the general public.
(2) Having regularly established and posted business hours.
(3) Having adequate supplies in stock on the premises.
(4) Meeting all local laws and ordinances regarding business
licensing and operations.
(5) Having the necessary equipment and facilities to carry out
day-to-day business for his or her practice.
(b) An unannounced visit pursuant to subdivision (a) shall be
prohibited with respect to clinics licensed under Section 1204 of the
Health and Safety Code, clinics exempt from licensure under Section
1206 of the Health and Safety Code, health facilities licensed under
Chapter 2 (commencing with Section 1250) of Division 2 of the Health
and Safety Code, and natural persons licensed or certified under
Division 2 (commencing with Section 500) of the Business and
Professions Code, the Osteopathic Initiative Act, or the Chiropractic
Initiative Act, unless the department has reason to believe that the
provider will defraud or abuse the Medi-Cal program or lacks the
organizational or administrative capacity to provide services under
the program.
(c) Failure to remediate significant discrepancies in information
provided to the department by the provider or significant
discrepancies that are discovered as a result of an announced or
unannounced visit to a provider, for purposes of enrollment,
continued enrollment, or certification pursuant to subdivision (a)
shall make the provider subject to temporary suspension from the
Medi-Cal program, which shall include temporary deactivation of the
provider's number, including all business addresses used by the
provider to obtain reimbursement from the Medi-Cal program. The
director shall notify in writing the provider of the temporary
suspension and deactivation of provider numbers, which shall take
effect 15 days from the date of the notification. Notwithstanding
Section 100171 of the Health and Safety Code, proceedings after the
imposition of sanctions in this subdivision shall be in accordance
with Section 14043.65.
(d) (1) This section shall become operative on the effective date
of the state plan amendment necessary to implement this section, as
stated in the declaration executed by the director pursuant to
paragraph (2).
(2) Upon approval of the state plan amendment necessary to
implement this section under Section 455.416 of Title 42 of the Code
of Federal Regulations, the director shall execute a declaration, to
be retained by the director and posted on the department's Internet
Web site, that states that this approval has been obtained and the
effective date of the state plan amendment. The department shall
transmit a copy of the declaration to the Legislature.
SEC. 218. Section 14132.275 of the Welfare and Institutions Code
is amended to read:
14132.275. (a) The department shall seek federal approval to
establish the demonstration project described in this section
pursuant to a Medicare or a Medicaid demonstration project or waiver,
or a combination thereof. Under a Medicare demonstration, the
department may contract with the federal Centers for Medicare and
Medicaid Services (CMS) and demonstration sites to operate the
Medicare and Medicaid benefits in a demonstration project that is
overseen by the state as a delegated Medicare benefit administrator,
and may enter into financing arrangements with CMS to share in any
Medicare program savings generated by the demonstration project.
(b) After federal approval is obtained, the department shall
establish the demonstration project that enables dual eligible
beneficiaries to receive a continuum of services that maximizes
access to, and coordination of, benefits between the Medi-Cal and
Medicare programs and access to the continuum of long-term services
and supports and behavioral health services, including mental health
and substance use disorder treatment services. The purpose of the
demonstration project is to integrate services authorized under the
federal Medicaid Program (Title XIX of the federal Social Security
Act (42 U.S.C. Sec. 1396 et seq.)) and the federal Medicare Program
(Title XVIII of the federal Social Security Act (42 U.S.C. Sec. 1395
et seq.)). The demonstration project may also include additional
services as approved through a demonstration project or waiver, or a
combination thereof.
(c) For purposes of this section, the following definitions shall
apply:
(1) "Behavioral health" means Medi-Cal services provided pursuant
to Section 51341 of Title 22 of the California Code of Regulations
and Drug Medi-Cal substance abuse services provided pursuant to
Section 51341.1 of Title 22 of the California Code of Regulations,
and any mental health benefits available under the Medicare Program.
(2) "Capitated payment model" means an agreement entered into
between CMS, the state, and a managed care health plan, in which the
managed care health plan receives a capitation payment for the
comprehensive, coordinated provision of Medi-Cal services and
benefits under Medicare Part C (42 U.S.C. Sec. 1395w-21 et seq.) and
Medicare Part D (42 U.S.C. Sec. 1395w-101 et seq.), and CMS shares
the savings with the state from the improved provision of
Medi-Cal and Medicare services that reduces the cost of those
services. Medi-Cal services include long-term services and supports
as defined in Section 14186.1, behavioral health services, and any
additional services offered by the demonstration site.
(3) "Demonstration site" means a managed care health plan that is
selected to participate in the demonstration project under the
capitated payment model.
(4) "Dual eligible beneficiary" means an individual 21 years of
age or older who is enrolled for benefits under Medicare Part A (42
U.S.C. Sec. 1395c et seq.) and Medicare Part B (42 U.S.C. Sec. 1395j
et seq.) and is eligible for medical assistance under the Medi-Cal
State Plan.
(d) No sooner than March 1, 2011, the department shall identify
health care models that may be included in the demonstration project,
shall develop a timeline and process for selecting, financing,
monitoring, and evaluating the demonstration sites, and shall provide
this timeline and process to the appropriate fiscal and policy
committees of the Legislature. The department may implement these
demonstration sites in phases.
(e) The department shall provide the fiscal and appropriate policy
committees of the Legislature with a copy of any report submitted to
CMS to meet the requirements under the demonstration project.
(f) Goals for the demonstration project shall include all of the
following:
(1) Coordinate Medi-Cal and Medicare benefits across health care
settings and improve the continuity of care across acute care,
long-term care, behavioral health, including mental health and
substance use disorder services, and home- and community-based
services settings using a person-centered approach.
(2) Coordinate access to acute and long-term care services for
dual eligible beneficiaries.
(3) Maximize the ability of dual eligible beneficiaries to remain
in their homes and communities with appropriate services and supports
in lieu of institutional care.
(4) Increase the availability of and access to home- and
community-based services.
(5) Coordinate access to necessary and appropriate behavioral
health services, including mental health and substance use disorder
services.
(6) Improve the quality of care for dual eligible beneficiaries.
(7) Promote a system that is both sustainable and person and
family centered by providing dual eligible beneficiaries with timely
access to appropriate, coordinated health care services and community
resources that enable them to attain or maintain personal health
goals.
(g) No sooner than March 1, 2013, demonstration sites shall be
established in up to eight counties, and shall include at least one
county that provides Medi-Cal services via a two-plan model pursuant
to Article 2.7 (commencing with Section 14087.3) and at least one
county that provides Medi-Cal services under a county-organized
health system pursuant to Article 2.8 (commencing with Section
14087.5). The director shall consult with the Legislature, CMS, and
stakeholders when determining the implementation date for this
section. In determining the counties in which to establish a
demonstration site, the director shall consider the following:
(1) Local support for integrating medical care, long-term care,
and home- and community-based services networks.
(2) A local stakeholder process that includes health plans,
providers, mental health representatives, community programs,
consumers, designated representatives of in-home supportive services
personnel, and other interested stakeholders in the development,
implementation, and continued operation of the demonstration site.
(h) In developing the process for selecting, financing,
monitoring, and evaluating the health care models for the
demonstration project, the department shall enter into a memorandum
of understanding with CMS. Upon completion, the memorandum of
understanding shall be provided to the fiscal and appropriate policy
committees of the Legislature and posted on the department's Internet
Web site.
(i) The department shall negotiate the terms and conditions of the
memorandum of understanding, which shall address, but are not
limited to, the following:
(1) Reimbursement methods for a capitated payment model. Under the
capitated payment model, the demonstration sites shall meet all of
the following requirements:
(A) Have Medi-Cal managed care health plan and Medicare dual
eligible-special needs plan contract experience, or evidence of the
ability to meet these contracting requirements.
(B) Be in good financial standing and meet licensure requirements
under the Knox-Keene Health Care Service Plan Act of 1975 (Chapter
2.2 (commencing with Section 1340) of Division 2 of the Health and
Safety Code), except for county-organized health system plans that
are exempt from licensure pursuant to Section 14087.95.
(C) Meet quality measures, which may include Medi-Cal and Medicare
Healthcare Effectiveness Data and Information Set measures and other
quality measures determined or developed by the department or CMS.
(D) Demonstrate a local stakeholder process that includes dual
eligible beneficiaries, managed care health plans, providers, mental
health representatives, county health and human services agencies,
designated representatives of in-home supportive services personnel,
and other interested stakeholders that advise and consult with the
demonstration site in the development, implementation, and continued
operation of the demonstration project.
(E) Pay providers reimbursement rates sufficient to maintain an
adequate provider network and ensure access to care for
beneficiaries.
(F) Follow final policy guidance determined by CMS and the
department with regard to reimbursement rates for providers pursuant
to paragraphs (4) to (7), inclusive, of subdivision (o).
(G) To the extent permitted under the demonstration, pay
noncontracted hospitals prevailing Medicare fee-for-service rates for
traditionally Medicare covered
Medicare-covered benefits and prevailing Medi-Cal
fee-for-service rates for traditionally Medi-Cal covered
Medi-Cal-covered benefits.
(2) Encounter data reporting requirements for both Medi-Cal and
Medicare services provided to beneficiaries enrolling in the
demonstration project.
(3) Quality assurance withholding from the demonstration site
payment, to be paid only if quality measures developed as part of the
memorandum of understanding and plan contracts are met.
(4) Provider network adequacy standards developed by the
department and CMS, in consultation with the Department of Managed
Health Care, the demonstration site, and stakeholders.
(5) Medicare and Medi-Cal appeals and hearing process
processes .
(6) Unified marketing requirements and combined review process by
the department and CMS.
(7) Combined quality management and consolidated reporting process
by the department and CMS.
(8) Procedures related to combined federal and state contract
management to ensure access, quality, program integrity, and
financial solvency of the demonstration site.
(9) To the extent permissible under federal requirements,
implementation of the provisions of Sections 14182.16 and 14182.17
that are applicable to beneficiaries simultaneously eligible for
full-scope benefits under Medi-Cal and the Medicare Program.
(10) (A) In consultation with the hospital industry, CMS approval
to ensure that Medicare supplemental payments for direct graduate
medical education and Medicare add-on payments, including indirect
medical education and disproportionate share hospital adjustments
continue to be made available to hospitals for services provided
under the demonstration.
(B) The department shall seek CMS approval for CMS to continue
these payments either outside the capitation rates or, if contained
within the capitation rates, and to the extent permitted under the
demonstration project, shall require demonstration sites to provide
this reimbursement to hospitals.
(11) To the extent permitted under the demonstration project, the
default rate for noncontracting providers of physician services shall
be the prevailing Medicare fee schedule for services covered by the
Medicare Program and the prevailing Medi-Cal fee schedule for
services covered by the Medi-Cal program.
(j) (1) The department shall comply with and enforce the terms and
conditions of the memorandum of understanding with CMS, as specified
in subdivision (i). To the extent that the terms and conditions do
not address the specific selection, financing, monitoring, and
evaluation criteria listed in subdivision (i), the department:
(A) Shall require the demonstration site to do all of the
following:
(i) Comply with additional site readiness criteria specified by
the department.
(ii) Comply with long-term services and supports
support requirements in accordance with Article
5.7 (commencing with Section 14186).
(iii) To the extent permissible under federal requirements, comply
with the provisions of Sections 14182.16 and 14182.17 that are
applicable to beneficiaries simultaneously eligible for full-scope
benefits under both Medi-Cal and the Medicare Program.
(iv) Comply with all transition of care requirements for Medicare
Part D benefits as described in Chapters 6 and 14 of the Medicare
Managed Care Manual, published by CMS, including transition
timeframes, notices, and emergency supplies.
(B) May require the demonstration site to forgo charging premiums,
coinsurance, copayments, and deductibles for Medicare Part C and
Medicare Part D services.
(2) The department shall notify the Legislature within 30 days of
the implementation of each provision in paragraph (1).
(k) The director may enter into exclusive or nonexclusive
contracts on a bid or negotiated basis and may amend existing managed
care contracts to provide or arrange for services provided under
this section. Contracts entered into or amended pursuant to this
section shall be exempt from the provisions of 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.
(l) (1) (A) Except for the exemptions provided for in this
section, the department shall enroll dual eligible beneficiaries into
a demonstration site unless the beneficiary makes an affirmative
choice to opt out of enrollment or is already enrolled on or before
June 1, 2013, in a managed care organization licensed under the
Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2
(commencing with Section 1340) of Division 2 of the Health and Safety
Code) that has previously contracted with the department as a
primary care case management plan pursuant to Article 2.9 (commencing
with Section 14088) to provide services to beneficiaries who are HIV
positive or who have been diagnosed with AIDS or in any entity with
a contract with the department pursuant to Chapter 8.75 (commencing
with Section 14591).
(B) Dual eligible beneficiaries who opt out of enrollment into a
demonstration site may choose to remain enrolled in fee-for-service
Medicare or a Medicare Advantage plan for their Medicare benefits,
but shall be mandatorily enrolled into a Medi-Cal managed care health
plan pursuant to Section 14182.16, except as exempted under
subdivision (c) of Section 14182.16.
(C) (i) Persons meeting requirements for the Program of
All-Inclusive Care for the Elderly (PACE) pursuant to Chapter 8.75
(commencing with Section 14591) or a managed care organization
licensed under the Knox-Keene Health Care Service Plan Act of 1975
(Chapter 2.2 (commencing with Section 1340) of Division 2 of the
Health and Safety Code) that has previously contracted with the
department as a primary care case management plan pursuant to Article
2.9 (commencing with Section 14088) to provide services to
beneficiaries who are HIV positive or who have been diagnosed with
AIDS , may select either of these managed care health
plans for their Medicare and Medi-Cal benefits if one is available in
that county.
(ii) In areas where a PACE plan is available, the PACE plan shall
be presented as an enrollment option, included in all enrollment
materials, enrollment assistance programs, and outreach programs
related to the demonstration project, and made available to
beneficiaries whenever enrollment choices and options are presented.
Persons meeting the age qualifications for PACE and who choose PACE
shall remain in the fee-for-service Medi-Cal and Medicare programs,
and shall not be assigned to a managed care health plan for the
lesser of 60 days or until they are assessed for eligibility for PACE
and determined not to be eligible for a PACE plan. Persons enrolled
in a PACE plan shall receive all Medicare and Medi-Cal services from
the PACE program pursuant to the three-way agreement between the PACE
program, the department, and the federal Centers for Medicare and
Medicaid Services.
(2) To the extent that federal approval is obtained, the
department may require that any beneficiary, upon enrollment in a
demonstration site, remain enrolled in the Medicare portion of the
demonstration project on a mandatory basis for six months from the
date of initial enrollment. After the sixth month, a dual eligible
beneficiary may elect to enroll in a different demonstration site, a
different Medicare Advantage plan, fee-for-service Medicare, PACE, or
a managed care organization licensed under the Knox-Keene Health
Care Service Plan Act of 1975 (Chapter 2.2 (commencing with Section
1340) of Division 2 of the Health and Safety Code) that has
previously contracted with the department as a primary care case
management plan pursuant to Article 2.9 (commencing with Section
14088) to provide services to beneficiaries who are HIV positive or
who have been diagnosed with AIDS, for his or her Medicare benefits.
(A) During the six-month mandatory enrollment in a demonstration
site, a beneficiary may continue receiving services from an
out-of-network Medicare provider for primary and specialty care
services only if all of the following criteria are met:
(i) The dual eligible beneficiary demonstrates an existing
relationship with the provider prior to enrollment in a demonstration
site.
(ii) The provider is willing to accept payment from the
demonstration site based on the current Medicare fee schedule.
(iii) The demonstration site would not otherwise exclude the
provider from its provider network due to documented quality of care
concerns.
(B) The department shall develop a process to inform providers and
beneficiaries of the availability of continuity of services from an
existing provider and ensure that the beneficiary continues to
receive services without interruption.
(3) (A) Notwithstanding subparagraph (A) of paragraph (1), a dual
eligible beneficiary shall be excluded from enrollment in the
demonstration project if the beneficiary meets any of the following:
(i) The beneficiary has a prior diagnosis of end-stage renal
disease. This clause shall not apply to beneficiaries diagnosed with
end-stage renal disease subsequent to enrollment in the demonstration
project. The director may, with stakeholder input and federal
approval, authorize beneficiaries with a prior diagnosis of end-stage
renal disease in specified counties to voluntarily enroll in the
demonstration project.
(ii) The beneficiary has other health coverage, as defined in
paragraph (4) of subdivision (b) of Section 14182.16.
(iii) The beneficiary is enrolled in a home- and community-based
waiver that is a Medi-Cal benefit under Section 1915(c) of the
federal Social Security Act (42 U.S.C. Sec. 1396n(c)), except for
persons enrolled in Multipurpose Senior Services Program services.
(iv) The beneficiary is receiving services through a regional
center or state developmental center.
(v) The beneficiary resides in a geographic area or ZIP Code not
included in managed care, as determined by the department and CMS.
(vi) The
beneficiary resides in one of the Veterans' Homes of California, as
described in Chapter 1 (commencing with Section 1010) of Division 5
of the Military and Veterans Code.
(B) (i) Beneficiaries who have been diagnosed with HIV/AIDS may
opt out of the demonstration project at the beginning of any month.
The State Department of Public Health may share relevant data
relating to a beneficiary's enrollment in the AIDS Drug Assistance
Program with the department, and the department may share relevant
data relating to HIV-positive beneficiaries with the State Department
of Public Health.
(ii) The information provided by the State Department of Public
Health pursuant to this subparagraph shall not be further disclosed
by the State Department of Health Care Services, and shall be subject
to the confidentiality protections of subdivisions (d) and (e) of
Section 121025 of the Health and Safety Code, except this information
may be further disclosed as follows:
(I) To the person to whom the information pertains or the
designated representative of that person.
(II) To the Office of AIDS within the State Department of Public
Health.
(C) Beneficiaries who are Indians receiving Medi-Cal services in
accordance with Section 55110 of Title 22 of the California Code of
Regulations may opt out of the demonstration project at the beginning
of any month.
(D) The department, with stakeholder input, may exempt specific
categories of dual eligible beneficiaries from enrollment
requirements in this section based on extraordinary medical needs of
specific patient groups or to meet federal requirements.
(4) For the 2013 calendar year, the department shall offer federal
Medicare Improvements for Patients and Providers Act of 2008 (Public
Law 110-275) compliant contracts to existing Medicare Advantage
Special Needs Plans (D-SNP plans) to continue to provide Medicare
benefits to their enrollees in their service areas as approved on
January 1, 2012. In the 2013 calendar year, beneficiaries in Medicare
Advantage and D-SNP plans shall be exempt from the enrollment
provisions of subparagraph (A) of paragraph (1), but may voluntarily
choose to enroll in the demonstration project. Enrollment into the
demonstration project's managed care health plans shall be reassessed
in 2014 depending on federal reauthorization of the D-SNP model and
the department's assessment of the demonstration plans.
(5) For the 2013 calendar year, demonstration sites shall not
offer to enroll dual eligible beneficiaries eligible for the
demonstration project into the demonstration site's D-SNP.
(6) The department shall not terminate contracts in a
demonstration site with a managed care organization licensed under
the Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2
(commencing with Section 1340) of Division 2 of the Health and Safety
Code) that has previously contracted with the department as a
primary care case management plan pursuant to Article 2.9 (commencing
with Section 14088) to provide services to beneficiaries who are HIV
positive beneficiaries or who have been diagnosed with AIDS and with
any entity with a contract pursuant to Chapter 8.75 (commencing with
Section 14591), except as provided in the contract or pursuant to
state or federal law.
(m) Notwithstanding Section 10231.5 of the Government Code, the
department shall conduct an evaluation, in partnership with CMS, to
assess outcomes and the experience of dual eligibles in these
demonstration sites and shall provide a report to the Legislature
after the first full year of demonstration operation, and annually
thereafter. A report submitted to the Legislature pursuant to this
subdivision shall be submitted in compliance with Section 9795 of the
Government Code. The department shall consult with stakeholders
regarding the scope and structure of the evaluation.
(n) This section shall be implemented only if and to the extent
that federal financial participation or funding is available.
(o) It is the intent of the Legislature that:
(1) In order to maintain adequate provider networks, demonstration
sites shall reimburse providers at rates sufficient to ensure access
to care for beneficiaries.
(2) Savings under the demonstration project are intended to be
achieved through shifts in utilization, and not through reduced
reimbursement rates to providers.
(3) Reimbursement policies shall not prevent demonstration sites
and providers from entering into payment arrangements that allow for
the alignment of financial incentives and provide opportunities for
shared risk and shared savings in order to promote appropriate
utilization shifts, which encourage the use of home- and
community-based services and quality of care for dual eligible
beneficiaries enrolled in the demonstration sites.
(4) To the extent permitted under the demonstration project, and
to the extent that a public entity voluntarily provides an
intergovernmental transfer for this purpose, both of the following
shall apply:
(A) The department shall work with CMS in ensuring that the
capitation rates under the demonstration project are inclusive of
funding currently provided through certified public expenditures
supplemental payment programs that would otherwise be impacted by the
demonstration project.
(B) Demonstration sites shall pay to a public entity voluntarily
providing intergovernmental transfers that previously received
reimbursement under a certified public expenditures supplemental
payment program, rates that include the additional funding under the
capitation rates that are funded by the public entity's
intergovernmental transfer.
(5) The department shall work with CMS in developing other
reimbursement policies and shall inform demonstration sites,
providers, and the Legislature of the final policy guidance.
(6) The department shall seek approval from CMS to permit the
provider payment requirements contained in subparagraph (G) of
paragraph (1) and paragraphs (10) and (11) of subdivision (i), and
Section 14132.276.
(7) Demonstration sites that contract with hospitals for hospital
services on a fee-for-service basis that otherwise would have been
traditionally Medicare services will achieve savings through
utilization changes and not by paying hospitals at rates lower than
prevailing Medicare fee-for-service rates.
(p) The department shall enter into an interagency agreement with
the Department of Managed Health Care to perform some or all of the
department's oversight and readiness review activities specified in
this section. These activities may include providing consumer
assistance to beneficiaries affected by this section and conducting
financial audits, medical surveys, and a review of the adequacy of
provider networks of the managed care health plans participating in
this section. The interagency agreement shall be updated, as
necessary, on an annual basis in order to maintain functional clarity
regarding the roles and responsibilities of the Department of
Managed Health Care and the department. The department shall not
delegate its authority under this section as the single state
Medicaid agency to the Department of Managed Health Care.
(q) (1) Beginning with the May Revision to the 2013-14 Governor's
Budget, and annually thereafter, the department shall report to the
Legislature on the enrollment status, quality measures, and state
costs of the actions taken pursuant to this section.
(2) (A) By January 1, 2013, or as soon thereafter as practicable,
the department shall develop, in consultation with CMS and
stakeholders, quality and fiscal measures for health plans to reflect
the short- and long-term results of the implementation of this
section. The department shall also develop quality thresholds and
milestones for these measures. The department shall update these
measures periodically to reflect changes in this program due to
implementation factors and the structure and design of the benefits
and services being coordinated by managed care health plans.
(B) The department shall require health plans to submit Medicare
and Medi-Cal data to determine the results of these measures. If the
department finds that a health plan is not in compliance with one or
more of the measures set forth in this section, the health plan
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 health plan shall take to improve its
performance based on the standard or standards with which the health
plan is out of compliance. The plan shall establish interim
benchmarks for improvement that shall be expected to be met by the
health plan in order to avoid a sanction pursuant to Section 14304.
Nothing in this subparagraph is intended to limit Section 14304.
(C) The department shall publish the results of these measures,
including via posting on the department's Internet Web site, on a
quarterly basis.
(r) 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 section
and any applicable federal waivers and state plan amendments by means
of all-county letters, plan letters, plan or provider bulletins, or
similar instructions, without taking regulatory action. Prior to
issuing any letter or similar instrument authorized pursuant to this
section, the department shall notify and consult with stakeholders,
including advocates, providers, and beneficiaries. The department
shall notify the appropriate policy and fiscal committees of the
Legislature of its intent to issue instructions under this section at
least five days in advance of the issuance.
SEC. 219. Section 14132.276 of the Welfare and Institutions Code
is amended to read:
14132.276. For nursing facility services provided under the
demonstration project as established in Section 14132.275, to the
extent these provisions are authorized under the memorandum of
understanding specified in subdivision (j) of Section 14132.275, the
following shall apply:
(a) The demonstration site shall not combine the rates of payment
for post-acute skilled and rehabilitation care provided by a nursing
facility and long-term and chronic care provided by a nursing
facility in order to establish a single payment rate for dual
eligible beneficiaries requiring skilled nursing services.
(b) The demonstration site shall pay nursing facilities providing
post-acute skilled and rehabilitation care or long-term and chronic
care rates that reflect the different level of services and intensity
required to provide these services.
(c) For the purposes of determining the appropriate rate for the
type of care identified in subdivision (b), the demonstration site
shall pay no less than the recognized rates under Medicare and
Medi-Cal for these service types.
(d) With respect to services under this section, the demonstration
site shall not offer, and the nursing facility shall not accept, any
discounts, rebates, or refunds as compensation or inducements for
the referral of patients or residents.
(e) It is the intent of the Legislature that savings under the
demonstration project be achieved through shifts in utilization, and
not through reduced reimbursement rates to providers.
(f) In order to encourage quality improvement and promote
appropriate utilization incentives, including reduced
rehospitalization and shorter lengths of stay, for nursing facilities
providing the services under this section, the demonstration sites
may do any of the following:
(1) Utilize incentive or bonus payment programs that are in
addition to the rates identified in subdivisions (b) and (c).
(2) Opt to direct beneficiaries to facilities that demonstrate
better performance on quality or appropriate utilization factors.
SEC. 220. Section 14169.32 of the Welfare and Institutions Code is
amended to read:
14169.32. (a) There shall be imposed on each general acute care
hospital that is not an exempt facility a quality assurance fee,
provided that a quality assurance fee under this article shall not be
imposed on a converted hospital.
(b) The quality assurance fee shall be computed starting on July
1, 2011, and continue through and including December 31, 2013.
(c) Subject to Section 14169.34, upon receipt of federal approval,
the following shall become operative:
(1) Within 10 business days following receipt of the notice of
federal approval from the federal government, the department shall
send notice to each hospital subject to the quality assurance fee,
and publish on its Internet Web site, the following information:
(A) The date that the state received notice of federal approval.
(B) The fee percentage for each subject fiscal year.
(2) The notice to each hospital subject to the quality assurance
fee shall also state the following:
(A) The aggregate quality assurance fee after the application of
the fee percentage for each subject fiscal year.
(B) The aggregate quality assurance fee.
(C) The amount of each payment due from the hospital with respect
to the aggregate quality assurance fee.
(D) The date on which each payment is due.
(3) The hospitals shall pay the aggregate quality assurance fee
after application of the fee percentage for all subject fiscal years
in 10 installments. The department shall establish the date that each
installment is due, provided that the first installment shall be due
no earlier than 20 days following the department sending the notice
pursuant to paragraph (1), and the installments shall be paid at
least one month apart, but if possible, the installments shall be
paid on a quarterly basis.
(4) Notwithstanding any other provision of this section, the
amount of each hospital's aggregate quality assurance fee after the
application of the fee percentage for each subject fiscal year that
has not been paid by the hospital before December 15, 2013, pursuant
to paragraphs (3) and (8), shall be paid by the hospital no later
than December 15, 2013.
(5) (A) Notwithstanding subdivision (l) of Section 14169.31, for
the purpose of determining the installments under paragraph (3), the
department shall use an interim fee percentage as follows:
(i) One hundred percent for subject fiscal year 2011-12 until the
federal government has approved or disapproved additional capitation
payments described in Section 14169.5 for that subject fiscal year.
(ii) One hundred percent for subject fiscal year 2012-13 until the
federal government has approved or disapproved additional capitation
payments described in Section 14169.5 for that subject fiscal year.
(iii) Fifty percent for subject fiscal year 2013-14 until the
federal government has approved or disapproved additional capitation
payments described in Section 14169.5 for that subject fiscal year.
(B) The director may use a lower interim fee percentage for each
subject fiscal year under this paragraph as the director, in his or
her discretion, determines is reasonable in order to generate
sufficient but not excessive installment payments to make the
payments described in subdivision (b) of Section 14169.33.
(6) The director shall determine the final fee percentage for each
subject fiscal year within 15 days of the approval or disapproval,
in whole or in part, by the federal government of all changes to the
capitation rates of managed health care plans requested by the
department to implement Section 14169.5 for that subject fiscal year,
but in no event later than December 1, 2013. At the time the
director determines the final fee percentage for a subject fiscal
year, the director shall also determine the amount of future
installment payments of the quality assurance fee for each hospital
subject to the fee, if any are due. The amount of each future
installment payment shall be established by the director with the
objective that the total of the installment payments of the quality
assurance fee due from a hospital shall equal the director's estimate
for each subject fiscal year for the hospital of the aggregate
quality assurance fee after the application of the fee percentage.
(7) The director, within 15 days of determining the final fee
percentage for a subject fiscal year pursuant to paragraph (6), shall
send notice to each hospital subject to the quality assurance fee of
the following information:
(A) The final fee percentage for each subject fiscal year for
which the final fee percentage has been determined.
(B) The fee percentage determined under paragraph (5) for each
subject fiscal year for which the final fee percentage has not been
determined.
(C) The aggregate quality assurance fee after application of the
fee percentage for each subject fiscal year.
(D) The director's estimate of total quality assurance fee
payments due from the hospital under this article whether or not
paid. This amount shall be the sum of the aggregate quality assurance
fee after application of the fee percentage for each subject fiscal
year using the fee percentages contained in the notice.
(E) The total quality assurance fee payments that the hospital has
made under this article.
(F) The amount, if any, by which the total quality assurance fee
payments due from the hospital under this article as described in
subparagraph (C) exceed the total quality assurance fee payments that
the hospital has made under this article.
(G) The amount of each remaining installment of the quality
assurance fee, if any, due from the hospital and the date each
installment is due. This amount shall be the amount described in
subparagraph (F) divided by the number of installment payments
remaining.
(8) Each hospital that is sent a notice under paragraph (7) shall
pay the additional installments of the quality assurance fee that are
due, if any, in the amounts and at the times set forth in the notice
unless superseded by a subsequent notice from the department.
(9) The department shall refund to a hospital paying the quality
assurance fee the amount, if any, by which the total quality
assurance fee payments that the hospital has made under this article
for all subject fiscal years exceed the total quality assurance fee
payments due from the hospital under this article within 30 days of
the date on which the notice is sent to the hospital under paragraph
(7).
(d) The quality assurance fee, as paid pursuant to this section,
shall be paid by each hospital subject to the fee to the department
for deposit in the Hospital Quality Assurance Revenue Fund. Deposits
may be accepted at any time and will be credited toward the program
period.
(e) This section shall become inoperative if the federal Centers
for Medicare and Medicaid Services denies approval for, or does not
approve before July 1, 2014, the implementation of the quality
assurance fee pursuant to this article or the supplemental payments
to private hospitals described in Sections 14169.2 and 14169.3, and
either or both provisions cannot be modified by the department
pursuant to subdivision (d) of Section 14169.33 in order to meet the
requirements of federal law or to obtain federal approval.
(f) In no case shall the aggregate fees collected in a federal
fiscal year pursuant to this section , Section
and Sections 14167.32 , and
Section 14168.32 exceed the maximum percentage of the
annual aggregate net patient revenue for hospitals subject to the fee
that is prescribed pursuant to federal law and regulations as
necessary to preclude a finding that an indirect guarantee has been
created.
(g) (1) Interest shall be assessed on quality assurance fees not
paid on the date due at the greater of 10 percent per annum or the
rate at which the department assesses interest on Medi-Cal program
overpayments to hospitals that are not repaid when due. Interest
shall begin to accrue the day after the date the payment was due and
shall be deposited in the Hospital Quality Assurance Revenue Fund.
(2) In the event that any fee payment is more than 60 days
overdue, a penalty equal to the interest charge described in
paragraph (1) shall be assessed and due for each month for which the
payment is not received after 60 days.
(h) When a hospital fails to pay all or part of the quality
assurance fee on or before the date that payment is due, the
department may immediately begin to deduct the unpaid assessment and
interest from any Medi-Cal payments owed to the hospital, or, in
accordance with Section 12419.5 of the Government Code, from any
other state payments owed to the hospital until the full amount is
recovered. All amounts, except penalties, deducted by the department
under this subdivision shall be deposited in the Hospital Quality
Assurance Revenue Fund. The remedy provided to the department by this
section is in addition to other remedies available under law.
(i) The payment of the quality assurance fee shall not be
considered as an allowable cost for Medi-Cal cost reporting and
reimbursement purposes.
(j) The department shall work in consultation with the hospital
community to implement this article and Article 5.228 (commencing
with Section 14169.1).
(k) This subdivision creates a contractually enforceable promise
on behalf of the state to use the proceeds of the quality assurance
fee, including any federal matching funds, solely and exclusively for
the purposes set forth in this article as they existed on September
16, 2011, to limit the amount of the proceeds of the quality
assurance fee to be used to pay for the health care coverage of
children to the amounts specified in this article, to limit any
payments for the department's costs of administration to the amounts
set forth in this article on September 16, 2011, to maintain and
continue prior reimbursement levels as set forth in Section 14169.12
on September 16, 2011, and to otherwise comply with all its
obligations set forth in Article 5.228 (commencing with Section
14169.1) and this article provided that amendments that arise from,
or have as a basis, a decision, advice, or determination by the
federal Centers for Medicare and Medicaid Services relating to
federal approval of the quality assurance fee or the payments set
forth in this article or Article 5.228 (commencing with Section
14169.1) shall control for the purposes of this subdivision.
(l) (1) Effective January 1, 2014, the rates payable to hospitals
and managed health care plans under Medi-Cal shall be the rates then
payable without the supplemental and increased capitation payments
set forth in Article 5.228 (commencing with Section 14169.1).
(2) The supplemental payments and other payments under Article
5.228 (commencing with Section 14169.1) shall be regarded as quality
assurance payments, the implementation or suspension of which does
not affect a determination of the adequacy of any rates under federal
law.
(m) (1) Subject to paragraph (2), the director may waive any or
all interest and penalties assessed under this article in the event
that the director determines, in his or her sole discretion, that the
hospital has demonstrated that imposition of the full quality
assurance fee on the timelines applicable under this article has a
high likelihood of creating a financial hardship for the hospital or
a significant danger of reducing the provision of needed health care
services.
(2) Waiver of some or all of the interest or penalties under this
subdivision shall be conditioned on the hospital's agreement to make
fee payments, or to have the payments withheld from payments
otherwise due from the Medi-Cal program to the hospital, on a
schedule developed by the department that takes into account the
financial situation of the hospital and the potential impact on
services.
(3) A decision by the director under this subdivision is not
subject to judicial review.
(4) If fee payments are remitted to the department after the date
determined by the department to be the final date for calculating the
final supplemental payments under this article and Article 5.228
(commencing with Section 14169.1), the fee payments shall be retained
in the fund for purposes of funding supplemental payments supported
by a hospital quality assurance fee program implemented under
subsequent legislation, provided, however, that if supplemental
payments are not implemented under subsequent legislation, then those
fee payments shall be deposited in the Distressed Hospital Fund.
(5) If during the implementation of this article, fee payments
that were due under Article 5.21 (commencing with Section 14167.1)
and Article 5.22 (commencing with Section 14167.31), or Article 5.227
(commencing with Section 14168.31), are remitted to the department
under a payment plan or for any other reason, and the final date for
calculating the final supplemental payments under those articles has
passed, those fee payments shall be deposited in the fund to support
the uses established by this article.
SEC. 221. Section 14182 of the Welfare and Institutions Code is
amended to read:
14182. (a) (1) In furtherance of the waiver or demonstration
project developed pursuant to Section 14180, the department may
require seniors and persons with disabilities who do not have other
health coverage to be assigned as mandatory enrollees into new or
existing managed care health plans. To the extent that enrollment is
required by the department, an enrollee's access to fee-for-service
Medi-Cal shall not be terminated until the enrollee has been assigned
to a managed care health plan.
(2) For purposes of this section:
(A) "Other health coverage" means health coverage providing the
same full or partial benefits as the Medi-Cal program, health
coverage under another state or federal medical care program, or
health coverage under contractual or legal entitlement, including,
but not limited to, a private group or indemnification insurance
program.
(B) "Managed care health plan" means an individual, organization,
or entity that enters into a contract with the department pursuant to
Article 2.7 (commencing with Section 14087.3), Article 2.81
(commencing with Section 14087.96), Article 2.91 (commencing with
Section 14089), or Chapter 8 (commencing with Section 14200).
(b) In exercising its authority pursuant to subdivision (a), the
department shall do all of the following:
(1) Assess and ensure the readiness of the managed care health
plans to address the unique needs of seniors or persons with
disabilities pursuant to the applicable readiness evaluation criteria
and requirements set forth in paragraphs (1) to (8), inclusive, of
subdivision (b) of Section 14087.48.
(2) Ensure the
managed care health plans provide access to providers that comply
with applicable state and federal laws, including, but not limited
to, physical accessibility and the provision of health plan
information in alternative formats.
(3) Develop and implement an outreach and education program for
seniors and persons with disabilities, not currently enrolled in
Medi-Cal managed care, to inform them of their enrollment options and
rights under the demonstration project. Contingent upon available
private or public dollars other than moneys from the General Fund,
the department or its designated agent for enrollment and outreach
may partner or contract with community-based, nonprofit consumer or
health insurance assistance organizations with expertise and
experience in assisting seniors and persons with disabilities in
understanding their health care coverage options. Contracts entered
into or amended pursuant to this paragraph shall be exempt from
Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of
the Public Contract Code and any implementing regulations or policy
directives.
(4) At least three months prior to enrollment, inform
beneficiaries who are seniors or persons with disabilities, through a
notice written at no more than a sixth grade reading level, about
the forthcoming changes to their delivery of care, including, at a
minimum, how their system of care will change, when the changes will
occur, and who they can contact for assistance with choosing a
delivery system or with problems they encounter. In developing this
notice, the department shall consult with consumer representatives
and other stakeholders.
(5) Implement an appropriate cultural awareness and sensitivity
training program regarding serving seniors and persons with
disabilities for managed care health plans and plan providers and
staff in the Medi-Cal Managed Care Division of the department.
(6) Establish a process for assigning enrollees into an organized
delivery system for beneficiaries who do not make an affirmative
selection of a managed care health plan. The department shall develop
this process in consultation with stakeholders and in a manner
consistent with the waiver or demonstration project developed
pursuant to Section 14180. The department shall base plan assignment
on an enrollee's existing or recent utilization of providers, to the
extent possible. If the department is unable to make an assignment
based on the enrollee's affirmative selection or utilization history,
the department shall base plan assignment on factors, including, but
not limited to, plan quality and the inclusion of local health care
safety net system providers in the plan's provider network.
(7) Review and approve the mechanism or algorithm that has been
developed by the managed care health plan, in consultation with their
stakeholders and consumers, to identify, within the earliest
possible timeframe, persons with higher risk and more complex health
care needs pursuant to paragraph (11) of subdivision (c).
(8) Provide managed care health plans with historical utilization
data for beneficiaries upon enrollment in a managed care health plan
so that the plans participating in the demonstration project are
better able to assist beneficiaries and prioritize assessment and
care planning.
(9) Develop and provide managed care health plans participating in
the demonstration project with a facility site review tool for use
in assessing the physical accessibility of providers, including
specialists and ancillary service providers that provide care to a
high volume of seniors and persons with disabilities, at a clinic or
provider site, to ensure that there are sufficient physically
accessible providers. Every managed care health plan participating in
the demonstration project shall make the results of the facility
site review tool publicly available on their Internet Web site and
shall regularly update the results to the department's satisfaction.
(10) Develop a process to enforce legal sanctions, including, but
not limited to, financial penalties, withholding of Medi-Cal
payments, enrollment termination, and contract termination, in order
to sanction any managed care health plan in the demonstration project
that consistently or repeatedly fails to meet performance standards
provided in statute or contract.
(11) Ensure that managed care health plans provide a mechanism for
enrollees to request a specialist or clinic as a primary care
provider. A specialist or clinic may serve as a primary care provider
if the specialist or clinic agrees to serve in a primary care
provider role and is qualified to treat the required range of
conditions of the enrollee.
(12) Ensure that managed care health plans participating in the
demonstration project are able to provide communication access to
seniors and persons with disabilities in alternative formats or
through other methods that ensure communication, including assistive
listening systems, sign language interpreters, captioning, written
communication, plain language , or written translations
and oral interpreters, including for those who are limited
English-proficient, or non-English speaking, and that all managed
care health plans are in compliance with applicable cultural and
linguistic requirements.
(13) Ensure that managed care health plans participating in the
demonstration project provide access to out-of-network providers for
new individual members enrolled under this section who have an
ongoing relationship with a provider if the provider will accept the
health plan's rate for the service offered, or the applicable
Medi-Cal fee-for-service rate, whichever is higher, and the health
plan determines that the provider meets applicable professional
standards and has no disqualifying quality of care issues.
(14) Ensure that managed care health plans participating in the
demonstration project comply with continuity of care requirements in
Section 1373.96 of the Health and Safety Code.
(15) Ensure that the medical exemption criteria applied in
counties operating under Chapter 4.1 (commencing with Section 53800)
or Chapter 4.5 (commencing with Section 53900) of Subdivision 1 of
Division 3 of Title 22 of the California Code of Regulations are
applied to seniors and persons with disabilities served under this
section.
(16) Ensure that managed care health plans participating in the
demonstration project take into account the behavioral health needs
of enrollees and include behavioral health services as part of the
enrollee's care management plan when appropriate.
(17) Develop performance measures that are required as part of the
contract to provide quality indicators for the Medi-Cal population
enrolled in a managed care health plan and for the subset of
enrollees who are seniors and persons with disabilities. These
performance measures may include measures from the Healthcare
Effectiveness Data and Information Set (HEDIS) or measures indicative
of performance in serving special needs populations, such as the
National Committee for Quality Assurance (NCQA) Structure and Process
measures, or both.
(18) Conduct medical audit reviews of participating managed care
health plans that include elements specifically related to the care
of seniors and persons with disabilities. These medical audits shall
include, but not be limited to, evaluation of the delivery model's
policies and procedures, performance in utilization management,
continuity of care, availability and accessibility, member rights,
and quality management.
(19) Conduct financial audit reviews to ensure that a financial
statement audit is performed on managed care health plans annually
pursuant to the Generally Accepted Auditing Standards, and conduct
other risk-based audits for the purpose of detecting fraud and
irregular transactions.
(20) Ensure that managed care health plans maintain a dedicated
liaison to coordinate with the department, affected providers, and
new individual members for all of the following purposes:
(A) To ensure a mechanism for new members to obtain continuity of
care as described in paragraph (13).
(B) To receive notice, including that a new member has been denied
a medical exemption as described in paragraph (15), which is
required to include the name or names of the requesting provider, and
ensure that the provider's ability to treat the member is continued
as described in paragraphs (11) and (13), if applicable, or, if not
applicable, ensure the member is immediately referred to a qualified
provider or specialty care center.
(C) To assist new members in maintaining an ongoing relationship
with a specialist or specialty care center when the specialist is
contracting with the plan and the assigned primary care provider has
approved a standing referral pursuant to Section 1374.16 of the
Health and Safety Code.
(21) Ensure that written notice is provided to the beneficiary and
the requesting provider if a request for exemption from plan
enrollment is denied. The notice shall set out with specificity the
reasons for the denial or failure to unconditionally approve the
request for exemption from plan enrollment. The notice shall inform
the beneficiary and the provider of the right to appeal the decision,
how to appeal the decision, and if the decision is not appealed,
that the beneficiary shall enroll in a Medi-Cal plan and how that
enrollment shall occur. The notice shall also include information of
the possibility of continued access to an out-of-network provider
pursuant to paragraph (13). A beneficiary who has not been enrolled
in a plan shall remain in fee-for-service Medi-Cal if a request for
an exemption from plan enrollment or appeal is submitted, until the
final resolution. The department shall also require the plans to
ensure that these beneficiaries receive continuity of care.
(22) Develop a process to track a beneficiary who has been denied
a request for exemption from plan enrollment and to notify the plan,
if applicable, of the denial, including information identifying the
provider. Notwithstanding paragraph (12) of subdivision (c), the plan
shall immediately refer the beneficiary for a risk assessment survey
and an individual care plan shall be developed within 10 days,
including authorization for 30 days of continuity of prescription
drugs.
(c) Prior to exercising its authority under this section and
Section 14180, the department shall ensure that each managed care
health plan participating in the demonstration project is able to do
all of the following:
(1) Comply with the applicable readiness evaluation criteria and
requirements set forth in paragraphs (1) to (8), inclusive, of
subdivision (b) of Section 14087.48.
(2) Ensure and monitor an appropriate provider network, including
primary care physicians, specialists, professional, allied, and
medical supportive personnel, and an adequate number of accessible
facilities within each service area. Managed care health plans shall
maintain an updated, accurate, and accessible listing of a provider's
ability to accept new patients and shall make it available to
enrollees, at a minimum, by phone, written material, and Internet Web
site.
(3) Assess the health care needs of beneficiaries who are seniors
or persons with disabilities and coordinate their care across all
settings, including coordination of necessary services within and,
where necessary, outside of the plan's provider network.
(4) Ensure that the provider network and informational materials
meet the linguistic and other special needs of seniors and persons
with disabilities, including providing information in an
understandable manner in plain language, maintaining toll-free
telephone lines, and offering member or ombudsperson services.
(5) Provide clear, timely, and fair processes for accepting and
acting upon complaints, grievances, and disenrollment requests,
including procedures for appealing decisions regarding coverage or
benefits. Each managed care health plan participating in the
demonstration project shall have a grievance process that complies
with Section 14450, and Sections 1368 and 1368.01 of the Health and
Safety Code.
(6) Solicit stakeholder and member participation in advisory
groups for the planning and development activities related to the
provision of services for seniors and persons with disabilities.
(7) Contract with safety net and traditional providers as defined
in subdivisions (hh) and (jj) of Section 53810, of Title 22 of the
California Code of Regulations, to ensure access to care and
services. The managed care health plan shall establish participation
standards to ensure participation and broad representation of
traditional and safety net providers within a service area.
(8) Inform seniors and persons with disabilities of procedures for
obtaining transportation services to service sites that are offered
by the plan or are available through the Medi-Cal program.
(9) Monitor the quality and appropriateness of care for children
with special health care needs, including children eligible for, or
enrolled in, the California Children's Services Program, and seniors
and persons with disabilities.
(10) Maintain a dedicated liaison to coordinate with each regional
center operating within the plan's service area to assist members
with developmental disabilities in understanding and accessing
services and act as a central point of contact for questions, access
and care concerns, and problem resolution.
(11) At the time of enrollment apply the risk stratification
mechanism or algorithm described in paragraph (7) of subdivision (b)
approved by the department to determine the health risk level of
beneficiaries.
(12) (A) Managed care health plans shall assess an enrollee's
current health risk by administering a risk assessment survey tool
approved by the department. This risk assessment survey shall be
performed within the following timeframes:
(i) Within 45 days of plan enrollment for individuals determined
to be at higher risk pursuant to paragraph (11).
(ii) Within 105 days of plan enrollment for individuals determined
to be at lower risk pursuant to paragraph (11).
(B) Based on the results of the current health risk assessment,
managed care health plans shall develop individual care plans for
higher risk beneficiaries that shall include the following minimum
components:
(i) Identification of medical care needs, including primary care,
specialty care, durable medical equipment, medications, and other
needs with a plan for care coordination as needed.
(ii) Identification of needs and referral to appropriate community
resources and other agencies as needed for services outside the
scope of responsibility of the managed care health plan.
(iii) Appropriate involvement of caregivers.
(iv) Determination of timeframes for reassessment and, if
necessary, circumstances or conditions that require redetermination
of risk level.
(13) (A) Establish medical homes to which enrollees are assigned
that include, at a minimum, all of the following elements, which
shall be considered in the provider contracting process:
(i) A primary care physician who is the primary clinician for the
beneficiary and who provides core clinical management functions.
(ii) Care management and care coordination for the beneficiary
across the health care system including transitions among levels of
care.
(iii) Provision of referrals to qualified professionals, community
resources, or other agencies for services or items outside the scope
of responsibility of the managed care health plan.
(iv) Use of clinical data to identify beneficiaries at the care
site with chronic illness or other significant health issues.
(v) Timely preventive, acute, and chronic illness treatment in the
appropriate setting.
(vi) Use of clinical guidelines or other evidence-based medicine
when applicable for treatment of beneficiaries' health care issues or
timing of clinical preventive services.
(B) In implementing this section, and the Special Terms and
Conditions of the demonstration project, the department may alter the
medical home elements described in this paragraph as necessary to
secure the increased federal financial participation associated with
the provision of medical assistance in conjunction with a health
home, as made available under 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 codified in Section 1945 of Title XIX of the federal
Social Security Act. The department shall notify the appropriate
policy and fiscal committees of the Legislature of its intent to
alter medical home elements under this section at least five days in
advance of taking this action.
(14) Perform, at a minimum, the following care management and care
coordination functions and activities for enrollees who are seniors
or persons with disabilities:
(A) Assessment of each new enrollee's risk level and health needs
shall be conducted through a standardized risk assessment survey by
means such as telephonic, Web-based, or in-person communication or by
other means as determined by the department.
(B) Facilitation of timely access to primary care, specialty care,
durable medical equipment, medications, and other health services
needed by the enrollee, including referrals to address any physical
or cognitive barriers to access.
(C) Active referral to community resources or other agencies for
needed services or items outside the managed care health plans
responsibilities.
(D) Facilitating communication among the beneficiaries' health
care providers, including mental health and substance abuse providers
when appropriate.
(E) Other activities or services needed to assist beneficiaries in
optimizing their health status, including assisting with
self-management skills or techniques, health education, and other
modalities to improve health status.
(d) Except in a county where Medi-Cal services are provided by a
county-organized health system, and notwithstanding any other
provision of law, in any county in which fewer than two existing
managed care health plans contract with the department to provide
Medi-Cal services under this chapter, the department may contract
with additional managed care health plans to provide Medi-Cal
services for seniors and persons with disabilities and other Medi-Cal
beneficiaries.
(e) Beneficiaries enrolled in managed care health plans pursuant
to this section shall have the choice to continue an established
patient-provider relationship in a managed care health plan
participating in the demonstration project if his or her treating
provider is a primary care provider or clinic contracting with the
managed care health plan and agrees to continue to treat that
beneficiary.
(f) The department may contract with existing managed care health
plans to operate under the demonstration project to provide or
arrange for services under this section. Notwithstanding any other
provision of law, the department may enter into the contract without
the need for a competitive bid process or other contract proposal
process, provided the managed care health plan provides written
documentation that it meets all qualifications and requirements of
this section.
(g) This section shall be implemented only to the extent that
federal financial participation is available.
(h) (1) The development of capitation rates for managed care
health plan contracts shall include the analysis of data specific to
the seniors and persons with disabilities population. For the
purposes of developing capitation rates for payments to managed care
health plans, the director may require managed care health plans,
including existing managed care health plans, to submit financial and
utilization data in a form, time, and substance as deemed necessary
by the department.
(2) (A) Notwithstanding Section 14301, the department may
incorporate, on a one-time basis for a three-year period, a
risk-sharing mechanism in a contract with the local initiative health
plan in the county with the highest normalized fee-for-service risk
score over the normalized managed care risk score listed in Table 1.0
of the Medi-Cal Acuity Study Seniors and Persons with Disabilities
(SPD) report written by Mercer Government Human Services Consulting
and dated September 28, 2010, if the local initiative health plan
meets the requirements of subparagraph (B). The Legislature finds and
declares that this risk-sharing mechanism will limit the risk of
beneficial or adverse effects associated with a contract to furnish
services pursuant to this section on an at-risk basis.
(B) The local initiative health plan shall pay the nonfederal
share of all costs associated with the development, implementation,
and monitoring of the risk-sharing mechanism established pursuant to
subparagraph (A) by means of intergovernmental transfers. The
nonfederal share includes the state costs of staffing, state
contractors, or administrative costs directly attributable to
implementing subparagraph (A).
(C) This subdivision shall be implemented only to the extent
federal financial participation is not jeopardized.
(i) Persons meeting participation requirements for the Program of
All-Inclusive Care for the Elderly (PACE) pursuant to Chapter 8.75
(commencing with Section 14591), may select a PACE plan if one is
available in that county.
(j) Persons meeting the participation requirements in effect on
January 1, 2010, for a Medi-Cal primary care case management (PCCM)
plan in operation on that date, may select that PCCM plan or a
successor health care plan that is licensed pursuant to the
Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2
(commencing with Section 1340) of Division 2 of the Health and Safety
Code) to provide services within the same geographic area that the
PCCM plan served on January 1, 2010.
(k) 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 section
and any applicable federal waivers and state plan amendments by means
of all-county letters, plan letters, plan or provider bulletins, or
similar instructions, without taking regulatory action. Prior to
issuing any letter or similar instrument authorized pursuant to this
section, the department shall notify and consult with stakeholders,
including advocates, providers, and beneficiaries. The department
shall notify the appropriate policy and fiscal committees of the
Legislature of its intent to issue instructions under this section at
least five days in advance of the issuance.
(l) Consistent with state law that exempts Medi-Cal managed care
contracts from Chapter 2 (commencing with Section 10290) of Part 2 of
Division 2 of the Public Contract Code, and in order to achieve
maximum cost savings, the Legislature hereby determines that an
expedited contract process is necessary for contracts entered into or
amended pursuant to this section. The contracts and amendments
entered into or amended pursuant to this section shall be exempt from
Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of
the Public Contract Code and the requirements of State
Administrative Management Manual Memo 03-10. The department shall
make the terms of a contract available to the public within 30 days
of the contract's effective date.
(m) In the event of a conflict between the Special Terms and
Conditions of the approved demonstration project, including any
attachment thereto, and any provision of this part, the Special Terms
and Conditions shall control. If the department identifies a
specific provision of this article that conflicts with a term or
condition of the approved waiver or demonstration project, or an
attachment thereto, the term or condition shall control, and the
department shall so notify the appropriate fiscal and policy
committees of the Legislature within 15 business days.
(n) In the event of a conflict between the provisions of this
article and any other provision of this part, the provisions of this
article shall control.
(o) Any otherwise applicable provisions of this chapter, Chapter 8
(commencing with Section 14200), or Chapter 8.75 (commencing with
Section 14591) not in conflict with this article or with the terms
and conditions of the demonstration project shall apply to this
section.
(p) To the extent that the director utilizes state plan amendments
or waivers to accomplish the purposes of this article in addition to
waivers granted under the demonstration project, the terms of the
state plan amendments or waivers shall control in the event of a
conflict with any provision of this part.
(q) (1) Enrollment of seniors and persons with disabilities into a
managed care health plan under this section shall be accomplished
using a phased-in process to be determined by the department and
shall not commence until necessary federal approvals have been
acquired or until June 1, 2011, whichever is later.
(2) Notwithstanding paragraph (1), and at the director's
discretion, enrollment in Los Angeles County of seniors and persons
with disabilities may be phased-in over a 12-month period using a
geographic region method that is proposed by Los Angeles County
subject to approval by the department.
(r) A managed care health plan established pursuant to this
section, or under the Special Terms and Conditions of the
demonstration project pursuant to Section 14180, shall be subject to,
and comply with, the requirement for submission of encounter data
specified in Section 14182.1.
(s) (1) Commencing January 1, 2011, and until January 1, 2014, the
department shall provide the fiscal and policy committees of the
Legislature with semiannual updates regarding core activities for the
enrollment of seniors and persons with disabilities into managed
care health plans pursuant to the pilot program. The semiannual
updates shall include key milestones, progress toward the objectives
of the pilot program, relevant or necessary changes to the program,
submittal of state plan amendments to the federal Centers for
Medicare and Medicaid Services, submittal of any federal waiver
documents, and other key activities related to the mandatory
enrollment of seniors and persons with disabilities into managed care
health plans. The department shall also include updates on the
transition of individuals into managed care health plans, the health
outcomes of enrollees, the care management and coordination process,
and other information concerning the success or overall status of the
pilot program.
(2) (A) The requirement for submitting a report imposed
under paragraph (1) is inoperative on January 1, 2015, pursuant to
Section 10231.5 of the Government Code.
(B) A report to be submitted pursuant to paragraph (1) shall be
submitted in compliance with Section 9795 of the Government Code.
(t) The department, in collaboration with the State Department of
Social Services and county welfare departments, shall monitor the
utilization and caseload of the In-Home Supportive Services (IHSS)
program before and during the implementation of the pilot program.
This information shall be monitored in order to identify the impact
of the pilot program on the IHSS program for the affected population.
(u) Services under Section 14132.95 or 14132.952, or Article 7
(commencing with Section 12300) of Chapter 3 that are provided to
individuals assigned to managed care health plans under this section
shall be provided through direct hiring of personnel, contract, or
establishment of a public authority or nonprofit consortium, in
accordance with and subject to the requirements of Section 12302 or
12301.6, as applicable.
(v) The department shall, at a minimum, monitor on a quarterly
basis the adequacy of provider networks of the managed care health
plans.
(w) The department shall suspend new enrollment of seniors and
persons with disabilities into a managed care health plan if it
determines that the managed care health plan does not have sufficient
primary or specialty providers to meet the needs of their enrollees.
SEC. 222. Section 14182.16 of the Welfare and Institutions Code is
amended to read:
14182.16. (a) The department shall require Medi-Cal beneficiaries
who have dual eligibility in Medi-Cal and the Medicare Program to be
assigned as mandatory enrollees into new or existing Medi-Cal
managed care health plans for their Medi-Cal benefits in counties
participating in the demonstration project pursuant to Section
14132.275.
(b) For the purposes of this section and Section 14182.17, the
following definitions shall apply:
(1) "Dual eligible beneficiary" means an individual 21 years of
age or older who is enrolled for benefits under Medicare Part A (42
U.S.C. Sec. 1395c et seq.) or Medicare Part B (42 U.S.C. Sec. 1395j
et seq.), or both, and is eligible for medical assistance under the
Medi-Cal State Plan.
(2) "Full-benefit dual eligible beneficiary" means an individual
21 years of age or older who is eligible for benefits under Medicare
Part A (42 U.S.C. Sec. 1395c et seq.), Medicare Part B (42 U.S.C.
Sec. 1395j et seq.), and Medicare Part D (42 U.S.C. Sec. 1395w-101),
and is eligible for medical assistance under the Medi-Cal State Plan.
(3) "Managed care health plan" means an individual, organization,
or entity that enters into a contract with the department pursuant to
Article 2.7 (commencing with Section 14087.3), Article 2.81
(commencing with Section 14087.96), or Article 2.91 (commencing with
Section 14089), of this chapter, or Chapter 8 (commencing with
Section 14200).
(4) "Other health coverage" means health coverage providing the
same full or partial benefits as the Medi-Cal program, health
coverage under another state or federal medical care program except
for the Medicare Program (Title XVIII of the federal Social Security
Act (42 U.S.C. Sec. 1395 et seq.)), or health coverage under a
contractual or legal entitlement, including, but not limited to, a
private group or indemnification insurance program.
(5) "Out-of-network Medi-Cal provider" means a health care
provider that does not have an existing contract with the beneficiary'
s managed care health plan or its subcontractors.
(6) "Partial-benefit dual eligible beneficiary" means an
individual 21 years of age or older who is enrolled for benefits
under Medicare Part A (42 U.S.C. Sec. 1395c et seq.), but not
Medicare Part B (42 U.S.C. Sec. 1395j et seq.), or who is eligible
for Medicare Part B (42 U.S.C. Sec. 1395j et seq.), but not Medicare
Part A (42 U.S.C. Sec. 1395c et seq.), and is eligible for medical
assistance under the Medi-Cal State Plan.
(c) (1) Notwithstanding subdivision (a), a dual eligible
beneficiary is exempt from mandatory enrollment in a managed care
health plan if the dual eligible beneficiary meets any of the
following:
(A) Except in counties with county-organized health systems
operating pursuant to Article 2.8 (commencing with Section 14087.5),
the beneficiary has other health coverage.
(B) The beneficiary receives services through a foster care
program, including the program described in Article 5 (commencing
with Section 11400) of Chapter 2.
(C) The beneficiary is under 21 years of age.
(D) The beneficiary is not eligible for enrollment in managed care
health plans for medically necessary reasons determined by the
department.
(E) The beneficiary resides in one of the Veterans' Homes of
California, as described in Chapter 1 (commencing with Section 1010)
of Division 5 of the Military and Veterans Code.
(F) The beneficiary is enrolled in any entity with a contract with
the department pursuant to Chapter 8.75 (commencing with Section
14591).
(G) The beneficiary is enrolled in a managed care organization
licensed under the Knox-Keene Health Care Service Plan Act of 1975
(Chapter 2.2 (commencing with Section 1340) of Division 2 of the
Health and Safety Code) that has previously contracted with the
department as a primary care case management plan pursuant to Article
2.9 (commencing with Section 14088).
(2) A beneficiary who has been diagnosed with HIV/AIDS is not
exempt from mandatory enrollment, but may opt out of managed care
enrollment at the beginning of any month.
(d) Implementation of this section shall incorporate the
provisions of Section 14182.17 that are applicable to beneficiaries
eligible for benefits under Medi-Cal and the Medicare Program.
(e) At the director's sole discretion, in consultation with
stakeholders, the department may determine and implement a phased-in
enrollment approach that may include Medi-Cal beneficiary enrollment
into managed care health plans immediately upon implementation of
this section in a specific county, over a 12-month period, or other
phased approach. The phased-in enrollment shall commence no sooner
than March 1, 2013, and not until all necessary federal approvals
have been obtained.
(f) To the extent that mandatory enrollment is required by the
department, an enrollee's access to fee-for-service Medi-Cal shall
not be terminated until the enrollee has selected or been assigned to
a managed care health plan.
(g) Except in a county where Medi-Cal services are provided by a
county organized health system, and notwithstanding any other law, in
any county in which fewer than two existing managed health care
plans contract with the department to provide Medi-Cal services under
this chapter that are available to dual eligible beneficiaries,
including long-term services and supports, the department may
contract with additional managed care health plans to provide
Medi-Cal services.
(h) For partial-benefit dual eligible beneficiaries, the
department shall inform these beneficiaries of their rights to
continuity of care from out-of-network Medi-Cal providers pursuant to
subparagraph (G) of paragraph (5) of subdivision (d) of Section
14182.17, and that the need for medical exemption criteria applied to
counties operating under Chapter 4.1 (commencing with Section 53800)
of Subdivision 1 of Division 3 of Title 22 of the California Code of
Regulations may not be necessary to continue receiving Medi-Cal
services from an out-of-network provider.
(i) The department may contract with existing managed care health
plans to provide or arrange for services under this section.
Notwithstanding any other law, the department may enter into the
contract without the need for a competitive bid process or other
contract proposal process, provided that the managed care health plan
provides written documentation that it meets all of the
qualifications and requirements of this section and Section 14182.17.
(j) The development of capitation rates for managed care health
plan contracts shall include the analysis of data specific to the
dual eligible population. For the purposes of developing capitation
rates for payments to managed care health plans, the department shall
require all managed care health plans, including existing managed
care health plans, to submit financial, encounter, and utilization
data in a form, at a time, and including substance as deemed
necessary by the department. Failure to submit the required data
shall result in the imposition of penalties pursuant to Section
14182.1.
(k) Persons meeting participation requirements for the Program of
All-Inclusive Care for the Elderly (PACE) pursuant to Chapter 8.75
(commencing with Section 14591) may select a PACE plan if one is
available in that county.
(l) Except for dual eligible beneficiaries participating in the
demonstration project pursuant to Section 14132.275, persons meeting
the participation requirements in effect on January 1, 2010, for a
Medi-Cal primary case management plan in operation on that date, may
select that primary care case management plan or a successor health
care plan that is licensed pursuant to the Knox-Keene Health Care
Service Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340)
of Division 2 of the Health and Safety Code) to provide services
within the same geographic area that the primary care case management
plan served on January 1, 2010.
(m) The department may implement an intergovernmental transfer
arrangement with a public entity that elects to transfer public funds
to the state to be used solely as the nonfederal share of Medi-Cal
payments to managed care health plans for the provision of services
to dual eligible beneficiaries pursuant to Section 14182.15.
(n) To implement this section, the department may contract with
public or private entities. Contracts or amendments entered into
under this section may be on an exclusive or nonexclusive basis and
on a noncompetitive bid basis and shall be exempt from all of the
following:
(1) Part 2 (commencing with Section 10100) of Division 2 of the
Public Contract Code and any policies, procedures, or regulations
authorized by that part.
(2) Article 4 (commencing with Section 19130) of Chapter 5 of Part
2 of Division 5 of Title 2 of the Government Code.
(3) Review or approval of contracts by the Department of General
Services.
(o) Any otherwise applicable provisions of this chapter, Chapter 8
(commencing with Section 14200), or Chapter 8.75 (commencing with
Section 14591) not in conflict with this section or with the Special
Terms and Conditions of the waiver shall apply to this section.
(p) The department shall, in coordination with and consistent with
an interagency agreement with the Department of Managed Health Care,
at a minimum, monitor on a quarterly basis the adequacy of provider
networks of the managed care health plans.
(q) The department shall suspend new enrollment of dual eligible
beneficiaries into a managed care health plan if it determines that
the managed care health plan does not have sufficient primary or
specialty care providers and long-term services and supports to meet
the needs of its enrollees.
(r) Managed care health plans shall pay providers in accordance
with Medicare and Medi-Cal coordination of benefits.
(s) This section shall be implemented only to the extent that all
federal approvals and waivers are obtained and only if and to the
extent that federal financial participation is available.
(t) 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 section
and any applicable federal waivers and state plan amendments by means
of all-county letters, plan letters, plan or provider bulletins, or
similar instructions, without taking regulatory action. Prior to
issuing any letter or similar instrument authorized pursuant to this
section, the department shall notify and consult with stakeholders,
including advocates, providers, and beneficiaries. The department
shall notify the appropriate policy and fiscal committees of the
Legislature of its intent to issue instructions under this section at
least five days in advance of the issuance.
(u) A managed care health plan that contracts with the department
for the provision of services under this section shall ensure that
beneficiaries have access to the same categories of licensed
providers that are available under fee-for-service Medicare. Nothing
in this section shall prevent a managed care health plan from
contracting with selected providers within a category of licensure.
SEC. 223. Section 15630 of the Welfare and Institutions Code is
amended to read:
15630. (a) Any person who has assumed full or intermittent
responsibility for the care or custody of an elder or dependent
adult, whether or not he or she receives compensation, including
administrators, supervisors, and any licensed staff of a public or
private facility that provides care or services for elder or
dependent adults, or any elder or dependent adult care custodian,
health practitioner, clergy member, or employee of a county adult
protective services agency or a local law enforcement agency, is a
mandated reporter.
(b) (1) Any mandated reporter who, in his or her professional
capacity, or within the scope of his or her employment, has observed
or has knowledge of an incident that reasonably appears to be
physical abuse, as defined in Section 15610.63, abandonment,
abduction, isolation, financial abuse, or neglect, or is told by an
elder or dependent adult that he or she has experienced behavior,
including an act or omission, constituting physical abuse, as defined
in Section 15610.63, abandonment, abduction, isolation, financial
abuse, or neglect, or reasonably suspects that abuse, shall report
the known or suspected instance of abuse by telephone or through a
confidential Internet reporting tool, as authorized by Section 15658,
immediately or as soon as practicably possible. If reported by
telephone, a written report shall be sent, or an Internet report
shall be made through the confidential Internet reporting tool
established in Section 15658, within two working days:
(A) If the suspected or alleged abuse is physical abuse, as
defined in Section 15610.63, and the abuse occurred in a long-term
care facility, except a state mental health hospital or a state
developmental center, the following shall occur:
(i) If the suspected abuse results in serious bodily injury, a
telephone report shall be made to the local law enforcement agency
immediately, and no later than within two hours of the mandated
reporter observing, obtaining knowledge of, or suspecting the
physical abuse, and a written report shall be made to the local
ombudsman, the corresponding licensing agency, and the local law
enforcement agency within two hours of the mandated reporter
observing, obtaining knowledge of, or suspecting the physical abuse.
(ii) If the suspected abuse does not result in serious bodily
injury, a telephone report shall be made to the local law enforcement
agency within 24 hours of the mandated reporter observing, obtaining
knowledge of, or suspecting the physical abuse, and a written report
shall be made to the local ombudsman, the corresponding licensing
agency, and the local law enforcement agency within 24 hours of the
mandated reporter observing, obtaining knowledge of, or suspecting
the physical abuse.
(iii) When the suspected abuse is allegedly caused by a resident
with a physician's diagnosis of dementia, and there is no serious
bodily injury, as reasonably determined by the mandated reporter,
drawing upon his or her training or experience, the reporter shall
report to the local ombudsman or law enforcement agency by telephone,
immediately or as soon as practicably possible, and by written
report, within 24 hours.
(iv) When applicable, reports made pursuant to clauses (i) and
(ii) shall be deemed to satisfy the reporting requirements of the
federal Elder Justice Act of 2009, as set out in Subtitle H of Title
VI of the federal Patient Protection and Affordable Care Act (Public
Law 111-148), Section 1418.91 of the Health and Safety Code, and
Section 72541 of Title 22 of the California Code of
Regulations. When a local law enforcement agency receives an initial
report of suspected abuse in a long-term care facility pursuant to
this subparagraph, the local law enforcement agency may coordinate
efforts with the local ombudsman to provide the most immediate and
appropriate response warranted to investigate the mandated report.
The local ombudsman and local law enforcement agencies may
collaborate to develop protocols to implement this subparagraph.
(B) 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, or any other law, the department may implement
subparagraph (A), in whole or in part, by means of all-county
letters, provider bulletins, or other similar instructions without
taking regulatory action.
(C) If the suspected or alleged abuse is abuse other than physical
abuse, and the abuse occurred in a long-term care facility, except a
state mental health hospital or a state developmental center, a
telephone report and a written report shall be made to the local
ombudsman or the local law enforcement agency.
(D) With regard to abuse reported pursuant to subparagraphs (A)
and (C), the local ombudsman and the local law enforcement agency
shall, as soon as practicable, except in the case of an emergency or
pursuant to a report required to be made pursuant to clause (v), in
which case these actions shall be taken immediately, do all of the
following:
(i) Report to the State Department of Public Health any case of
known or suspected abuse occurring in a long-term health care
facility, as defined in subdivision (a) of Section 1418 of the Health
and Safety Code.
(ii) Report to the State Department of Social Services any case of
known or suspected abuse occurring in a residential care facility
for the elderly, as defined in Section 1569.2 of the Health and
Safety Code, or in an adult day program, as defined in paragraph (2)
of subdivision (a) of Section 1502 of the Health and Safety Code.
(iii) Report to the State Department of Public Health and the
California Department of Aging any case of known or suspected abuse
occurring in an adult day health care center, as defined in
subdivision (b) of Section 1570.7 of the Health and Safety Code.
(iv) Report to the Bureau of Medi-Cal Fraud any case of known or
suspected criminal activity.
(v) Report all cases of known or suspected physical abuse and
financial abuse to the local district attorney's office in the county
where the abuse occurred.
(E) If the suspected or alleged abuse occurred in a state mental
hospital or a state developmental center, the report shall be made to
designated investigators of the State Department of State Hospitals
or the State Department of Developmental Services, or to the local
law enforcement agency.
(i) Except in an emergency, the local law enforcement agency
shall, as soon as practicable, report any case of known or suspected
criminal activity to the Bureau of Medi-Cal Fraud.
(ii) Mandated reporters of the State Department of Developmental
Services shall immediately report suspected abuse to the Office of
Protective Services or to the local law enforcement agency.
(F) If the abuse has occurred any place other than one described
in subparagraph (A), the report shall be made to the adult protective
services agency or the local law enforcement agency.
(2) (A) A mandated reporter who is a clergy member who acquires
knowledge or reasonable suspicion of elder or dependent adult abuse
during a penitential communication is not subject to paragraph (1).
For purposes of this subdivision, "penitential communication" means a
communication that is intended to be in confidence, including, but
not limited to, a sacramental confession made to a clergy member who,
in the course of the discipline or practice of his or her church,
denomination, or organization is authorized or accustomed to hear
those communications and under the discipline tenets, customs, or
practices of his or her church, denomination, or organization, has a
duty to keep those communications secret.
(B) This subdivision shall not be construed to modify or limit a
clergy member's duty to report known or suspected elder and dependent
adult abuse if he or she is acting in the capacity of a care
custodian, health practitioner, or employee of an adult protective
services agency.
(C) Notwithstanding any other provision in this section, a clergy
member who is not regularly employed on either a full-time or
part-time basis in a long-term care facility or does not have care or
custody of an elder or dependent adult shall not be responsible for
reporting abuse or neglect that is not reasonably observable or
discernible to a reasonably prudent person having no specialized
training or experience in elder or dependent care.
(3) (A) A mandated reporter who is a physician and surgeon, a
registered nurse, or a psychotherapist, as defined in Section 1010 of
the Evidence Code, shall not be required to report, pursuant to
paragraph (1), an incident if all of the following conditions exist:
(i) The mandated reporter has been told by an elder or dependent
adult that he or she has experienced behavior constituting physical
abuse, as defined in Section 15610.63, abandonment, abduction,
isolation, financial abuse, or neglect.
(ii) The mandated reporter is not aware of any independent
evidence that corroborates the statement that the abuse has occurred.
(iii) The elder or dependent adult has been diagnosed with a
mental illness or dementia, or is the subject of a court-ordered
conservatorship because of a mental illness or dementia.
(iv) In the exercise of clinical judgment, the physician and
surgeon, the registered nurse, or the psychotherapist, as defined in
Section 1010 of the Evidence Code, reasonably believes that the abuse
did not occur.
(B) This paragraph shall not be construed to impose upon mandated
reporters a duty to investigate a known or suspected incident of
abuse and shall not be construed to lessen or restrict any existing
duty of mandated reporters.
(4) (A) In a long-term care facility, a mandated reporter shall
not be required to report as a suspected incident of abuse, as
defined in Section 15610.07, an incident if all of the following
conditions exist:
(i) The mandated reporter is aware that there is a proper plan of
care.
(ii) The mandated reporter is aware that the plan of care was
properly provided or executed.
(iii) A physical, mental, or medical injury occurred as a result
of care provided pursuant to clause (i) or (ii).
(iv) The mandated reporter reasonably believes that the injury was
not the result of abuse.
(B) This paragraph shall not be construed to require a mandated
reporter to seek, nor to preclude a mandated reporter from seeking,
information regarding a known or suspected incident of abuse prior to
reporting. This paragraph shall apply only to those categories of
mandated reporters that the State Department of Public Health
determines, upon approval by the Bureau of Medi-Cal Fraud and the
state long-term care ombudsman, have access to plans of care and have
the training and experience necessary to determine whether the
conditions specified in this section have been met.
(c) (1) Any mandated reporter who has knowledge, or reasonably
suspects, that types of elder or dependent adult abuse for which
reports are not mandated have been inflicted upon an elder or
dependent adult, or that his or her emotional well-being is
endangered in any other way, may report the known or suspected
instance of abuse.
(2) If the suspected or alleged abuse occurred in a long-term care
facility other than a state mental health hospital or a state
developmental center, the report may be made to the long-term care
ombudsman program. Except in an emergency, the local ombudsman shall
report any case of known or suspected abuse to the State Department
of Public Health and any case of known or suspected criminal activity
to the Bureau of Medi-Cal Fraud, as soon as is practicable.
(3) If the suspected or alleged abuse occurred in a state mental
health hospital or a state developmental center, the report may be
made to the designated investigator of the State Department of State
Hospitals or the State Department of Developmental Services or to a
local law enforcement agency. Except in an emergency, the local law
enforcement agency shall report any case of known or suspected
criminal activity to the Bureau of Medi-Cal Fraud, as soon as is
practicable.
(4) If the suspected or alleged abuse occurred in a place other
than a place described in paragraph (2) or (3), the report may be
made to the county adult protective services agency.
(5) If the conduct involves criminal activity not covered in
subdivision (b), it may be immediately reported to the appropriate
law enforcement agency.
(d) If two or more mandated reporters are present and jointly have
knowledge or reasonably suspect that types of abuse of an elder or a
dependent adult for which a report is or is not mandated have
occurred, and there is agreement among them, the telephone report or
Internet report, as authorized by Section 15658, may be made by a
member of the team selected by mutual agreement, and a single report
may be made and signed by the selected member of the reporting team.
Any member who has knowledge that the member designated to report has
failed to do so shall thereafter make the report.
(e) A telephone report or Internet report, as authorized by
Section 15658, of a known or suspected instance of elder or dependent
adult abuse shall include, if known, the name of the person making
the report, the name and age of the elder or dependent adult, the
present location of the elder or dependent adult, the names and
addresses of family members or any other adult responsible for the
elder's or dependent adult's care, the nature and extent of the elder'
s or dependent adult's condition, the date of the incident, and any
other information, including information that led that person to
suspect elder or dependent adult abuse, as requested by the agency
receiving the report.
(f) The reporting duties under this section are individual, and no
supervisor or administrator shall impede or inhibit the reporting
duties, and no person making
the report shall be subject to any sanction for making the report.
However, internal procedures to facilitate reporting, ensure
confidentiality, and apprise supervisors and administrators of
reports may be established, provided they are not inconsistent with
this chapter.
(g) (1) Whenever this section requires a county adult protective
services agency to report to a law enforcement agency, the law
enforcement agency shall, immediately upon request, provide a copy of
its investigative report concerning the reported matter to that
county adult protective services agency.
(2) Whenever this section requires a law enforcement agency to
report to a county adult protective services agency, the county adult
protective services agency shall, immediately upon request, provide
to that law enforcement agency a copy of its investigative report
concerning the reported matter.
(3) The requirement to disclose investigative reports pursuant to
this subdivision shall not include the disclosure of social services
records or case files that are confidential, nor shall this
subdivision be construed to allow disclosure of any reports or
records if the disclosure would be prohibited by any other provision
of state or federal law.
(h) Failure to report, or impeding or inhibiting a report of,
physical abuse, as defined in Section 15610.63, abandonment,
abduction, isolation, financial abuse, or neglect of an elder or
dependent adult, in violation of this section, is a misdemeanor,
punishable by not more than six months in the
a county jail, by a fine of not more than one thousand dollars
($1,000), or by both that fine and imprisonment. Any mandated
reporter who willfully fails to report, or impedes or inhibits a
report of, physical abuse, as defined in Section 15610.63,
abandonment, abduction, isolation, financial abuse, or neglect of an
elder or dependent adult, in violation of this section, if that abuse
results in death or great bodily injury, shall be punished by not
more than one year in a county jail, by a fine of not more than five
thousand dollars ($5,000), or by both that fine and imprisonment. If
a mandated reporter intentionally conceals his or her failure to
report an incident known by the mandated reporter to be abuse or
severe neglect under this section, the failure to report is a
continuing offense until a law enforcement agency specified in
paragraph (1) of subdivision (b) discovers the offense.
(i) For purposes of this section, "dependent adult" shall have the
same meaning as in Section 15610.23.
SEC. 224. Section 15650 of the Welfare and Institutions Code is
amended to read:
15650. (a) Investigation of reports of known or suspected
instances of abuse in long-term care facilities shall be the
responsibility of the bureau, the local law enforcement agency, and
the long-term care ombudsman program.
(b) Investigations of known or suspected instances of abuse
outside of long-term care facilities shall be the responsibility of
the county adult protective services agency, unless another public
agency is given responsibility for investigation in that
jurisdiction, and the local law enforcement agency.
(c) The investigative responsibilities set forth in this section
are in addition to, and not in derogation of or substitution for, the
investigative and regulatory responsibilities of licensing agencies,
such as the State Department of Social Services Community Care
Licensing Division and the State Department of Public Health
Licensing and Certification Division and their authorized
representatives.
(d) Other public agencies involved in the investigation of abuse
or advocacy of respective client populations, or both, include, but
shall not be limited to, the State Department of State Hospitals and
the State Department of Developmental Services. Other public agencies
shall conduct or assist in, or both, the investigation of reports of
abuse of elder and dependent adults within their jurisdiction in
conjunction with county adult protective services, local ombudsman
programs, and local law enforcement agencies.
(e) Each county adult protective services agency shall maintain an
inventory of all public and private service agencies available to
assist victims of abuse, as defined by Section 15610.07. This
inventory shall be used to refer victims in the event that the county
adult protective services agency cannot resolve the immediate needs
of the victim, and to serve the victim on a long-term, followup
basis. The intent of this section is to acknowledge that limited
funds are available to resolve all suspected cases of abuse reported
to a county adult protective services agency.
(f) Each local ombudsman program shall maintain an inventory of
all public and private agencies available to assist long-term care
residents who are victims of abuse, as defined by Section 15610.07.
This inventory shall be used to refer cases of abuse in the event
that another agency has jurisdiction over the resident, the abuse is
verified and further investigation is needed by a law enforcement or
licensing agency, or the program does not have sufficient resources
to provide immediate assistance. The intent of this section is to
acknowledge that ombudsman responsibility in abuse cases is to
receive reports, determine the validity of reports, refer verified
abuse cases to appropriate agencies for further action as necessary,
and follow up to complete the required report information. Other
ombudsman services shall be provided to the resident, as appropriate.
SEC. 225. Section 18969 of the Welfare and Institutions Code is
amended to read:
18969. (a) There is hereby created in the State Treasury a fund
which shall be known as the State Children's Trust Fund. The fund
shall consist of funds received from a county pursuant to Section
18968, funds collected by the state and transferred to the fund
pursuant to subdivision (b) of Section 103625 of the Health and
Safety Code and Article 2 (commencing with Section 18711) of Chapter
3 of Part 10.2 of Division 2 of the Revenue and Taxation Code,
grants, gifts, or bequests made to the state from private sources to
be used for innovative and distinctive child abuse and neglect
prevention and intervention projects, and money appropriated to the
fund for this purpose by the Legislature. The State Registrar may
retain a percentage of the fees collected pursuant to Section 103625
of the Health and Safety Code, not to exceed 10 percent, in order to
defray the costs of collection.
(b) Money in the State Children's Trust Fund, upon appropriation
by the Legislature, shall be allocated to the State Department of
Social Services for the purpose of funding child abuse and neglect
prevention and intervention programs. The department may not supplant
any federal, state, or county funds with any funds made available
through the State Children's Trust Fund.
(c) The department may establish positions as needed for the
purpose of implementing and administering child abuse and neglect
prevention and intervention programs that are funded by the State
Children's Trust Fund. However, the department shall use no more than
5 percent of the funds appropriated pursuant to this section for
administrative costs.
(d) No State Children's Trust Fund money shall be used to supplant
state General Fund money for any purpose.
(e) It is the intent of the Legislature that the State Children's
Trust Fund provide for all of the following:
(1) The development of a public-private partnership by encouraging
consistent outreach to the private foundation and corporate
community.
(2) Funds for large-scale dissemination of information that will
promote public awareness regarding the nature and incidence of child
abuse and the availability of services for intervention. These public
awareness activities shall include, but not be limited to, the
production of public service announcements, well-designed posters,
pamphlets, booklets, videos, and other media tools.
(3) Research and demonstration projects that explore the nature
and incidence and the development of long-term solutions to the
problem of child abuse.
(4) The development of a mechanism to provide ongoing public
awareness through activities that will promote the charitable tax
deduction for the trust fund and seek continued contributions. These
activities may include convening a philanthropic roundtable,
developing literature for use by the State Bar for dissemination, and
whatever other activities are deemed necessary and appropriate to
promote the trust fund.
SEC. 226. Section 1 of Chapter 357 of the Statutes of 2012 is
amended to read:
SECTION 1. (a) The sum of six hundred twenty-four thousand six
hundred seventy-one dollars and eighty-six cents ($624,671.86) is
hereby appropriated from the fund specified in subdivision (b) to the
Executive Officer of the California Victim Compensation and
Government Claims Board for the payment of claims accepted by the
board pursuant to the schedule set forth in subdivision (b).
(b) Pursuant to subdivision (a), claims accepted by the California
Victim Compensation and Government Claims Board shall be paid
pursuant to the following schedule:
Total for Fund: General ........................
Fund (0001)
$593,372.28
Total for Fund: Item
2660-001-0042 Budget ...............$9,330.35
Act of 2012, Program
20.10
Total for Fund: Item
2740-001-0044 Budget ...............$3,055.15
Act of 2012, Program 11
Total for Fund: Item
4260-001-0001 Budget ...............$6,131.34
Act of 2012, Program 20
Total for Fund: Item
5180-111-0001 Budget ...............$3,117.59
Act of 2012, Program
25.15
Total for Fund: Item
7100-001-0185 Budget ...............$9,665.15
Act of 2012, Program 21
SEC. 227. Section 1 of Chapter 513 of the Statutes of 2012 is
amended to read:
SECTION 1. This act shall be known and may be cited as Kathy's
Law.
SEC. 228. Section 1 of Chapter 541 of the Statutes of 2012 is
amended to read:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The coho salmon (Oncorhynchus kisutch) is a fish native to
many northern California coastal streams and consists of two distinct
Evolutionary Significant Units (ESU), the Southern Oregon/Northern
California Coast (SONCC) and the Central California Coast (CCC) ESUs.
The historical range of the SONCC ESU includes coastal rivers and
tributaries in Del Norte, Siskiyou, Humboldt, Trinity, Mendocino, and
Lake Counties. The historical range for the CCC ESU includes coastal
rivers and tributaries in parts of Humboldt, Mendocino, Sonoma,
Napa, Marin, Solano, Contra Costa, San Francisco, Alameda, San Mateo,
Santa Clara, and Santa Cruz Counties.
(b) All coho salmon runs in California have declined dramatically
over the past 40 to 50 years. Population numbers, including hatchery
stocks, were estimated at 6 to 15 percent of 1940 levels in 2004.
Since 2004, populations in all monitored streams have continued to
decline with an estimated 1 percent remaining of the original
population. While a few coastal rivers , such as the
Russian River , did show an increase in population for
2011, it is not yet known whether the increase is sustainable, and
the species remains at critical risk of extinction.
(c) Both the SONCC and the CCC ESUs are listed pursuant to the
federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.)
and the California Endangered Species Act (Chapter 1.5 (commencing
with Section 2050) of Division 3 of the Fish and Game Code). The
populations south of the San Francisco Bay are listed as endangered
and considered to be virtually extinct. The populations between San
Francisco Bay and Punta Gorda to the north are listed as endangered,
and the populations from Punta Gorda to the Oregon border are listed
as threatened.
(d) California's salmon populations need freshwater habitat that
includes cold and clean water, appropriate water depth, quantity, and
flow velocities, upland and riparian vegetation to stabilize soil
and shade, clean gravel for spawning and egg rearing, large woody
debris to provide resting and hiding places, adequate food, and
varied channel forms.
(e) An urgency exists due to the extraordinarily small numbers of
coho salmon remaining in California. In order to prevent their
extinction from northern California waters, it is imperative that
habitat restoration efforts be expedited and increased as soon as
possible.
(f) Therefore, it is the intent of the Legislature in enacting
this policy that the Department of Fish and Wildlife seek agreements
and partnerships with state and federal agencies to efficiently and
effectively permit habitat enhancement projects necessary to prevent
the extinction of coho salmon populations in California coastal
watersheds and that the Department of Fish and Wildlife expedite and
streamline the permitting and approval of coho salmon habitat
enhancement projects, including, in particular, large woody debris
restoration projects, in northern California streams.
(g) By eliminating barriers to fish passage, stabilizing banks,
increasing stream channel complexity, and otherwise restoring and
enhancing habitat, these projects will result in a net benefit to
coho salmon and other species.
SEC. 229. Section 2 of Chapter 719 of the Statutes of 2012 is
amended to read:
SEC. 2. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
This authorization is required to begin construction on the
memorial as quickly as possible to coincide with the
Portuguese Heritage Month, established by Resolution
Chapter 24 of the Statutes of 2010.
SEC. 230. Any section of any act enacted by the Legislature during
the 2013 calendar year that takes effect on or before January 1,
2014, 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 2013 calendar year and takes
effect on or before January 1, 2014, amends, amends and renumbers,
adds, repeals and adds, or repeals any section contained in that
article, chapter, part, title, or division.