Bill Text: CA SB1171 | 2011-2012 | Regular Session | Chaptered
Bill Title: Maintenance of the codes.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2012-07-23 - Chaptered by Secretary of State. Chapter 162, Statutes of 2012. [SB1171 Detail]
Download: California-2011-SB1171-Chaptered.html
BILL NUMBER: SB 1171 CHAPTERED
BILL TEXT
CHAPTER 162
FILED WITH SECRETARY OF STATE JULY 23, 2012
APPROVED BY GOVERNOR JULY 23, 2012
PASSED THE SENATE JULY 6, 2012
PASSED THE ASSEMBLY JULY 2, 2012
AMENDED IN ASSEMBLY MAY 21, 2012
INTRODUCED BY Senator Harman
FEBRUARY 22, 2012
An act to amend Sections 2313, 7068.2, 12241, 19607.5, 19852.2,
19853, 23393.5, and 25503.56 of the Business and Professions Code, to
amend Sections 55.3, 1368, and 2983 of the Civil Code, to amend
Sections 527.6, 527.8, 527.85, 1287, 1514, and 2024.040 of the Code
of Civil Procedure, to amend Sections 500, 2900, 6210, 8210, 12570,
and 14301.3 of the Corporations Code, to amend Sections 234.1,
8483.76, 8499.5, 12000, 12001, 41202, 41202.5, 42251, 42605, 48204.1,
49061, 51500, 51501, 54699, 60044, 69508.5, 71091, 72699, 76300, and
89918 of the Education Code, to amend Sections 2196, 3206, and 18106
of, and to repeal Section 2168 of, the Elections Code, to amend and
renumber Section 9213 of the Family Code, to amend Section 14101.6 of
the Financial Code, to amend Section 8276.5 of the Fish and Game
Code, to amend Sections 27551 and 30801 of the Food and Agricultural
Code, to amend Sections 1322, 3540.1, 6208.2, 6218.01, 7572, 7582,
8310.7, 12011.5, 12172.5, 14502, 17280.3, 25825.5, 30025, 53395.3.5,
53395.81, 53760.3, 53891, 57077, 57150, 57534, 61105, 65863.10,
65863.11, and 76000.10 of, and to amend and renumber Sections
66499.201/4, 66499.201/2, and 66499.203/4 of, the Government Code, to
amend Section 1156.6 of the Harbors and Navigation Code, to amend
Sections 1367.241, 1374.74, 1527.3, 11357.5, 11364, 25160, 34163,
34167.5, 34173, 34176, 34188.8, 34189, 34194.4, 34195, 100425,
113789, 116565, 121690, 127405, and 136000 of, and to repeal Section
1461 of, the Health and Safety Code, to amend Sections 1760.1, 1763,
1764.1, 1765.1, 1765.2, 1768, 1774, 1775.5, 10123.191, 10144.51,
10192.12, 10509.912, and 11780.5 of the Insurance Code, to amend
Sections 226.8 and 1308.10 of the Labor Code, to amend Sections
136.2, 243, 336.5, 429, 597.4, 629.62, 830.5, 1370, 2602, 2932,
3060.7, 3453, 4807, 11105, 11105.03, 11165.7, and 13750 of, and to
amend and renumber Sections 21, 22, and 25.5 of, the Penal Code, to
amend Sections 4461, 7660, and 13600 of the Probate Code, to amend
Section 10490 of the Public Contract Code, to amend Sections 2762,
4214, 4514.5, 4527, 4551.5, 4561, 21092, 21108, 21152, 21167.6.5, and
25747 of the Public Resources Code, to amend Sections 278, 366.2,
381.1, 395.5, 399.11, 399.12, 399.18, 2775.6, 2830, 2851, 2881.1,
2881.2, and 8283 of the Public Utilities Code, to amend Sections
214.02, 3725, 17053.85, 17085, 17282, 19191, 24436.1, 30459.15, and
50156.18 of, to amend the heading of Article 9 (commencing with
Section 6850) of Chapter 6 of Part 1 of Division 2 of, and to amend
and renumber Section 17131.10 of, the Revenue and Taxation Code, to
amend Section 1962.4 of the Streets and Highways Code, to amend
Section 679 of, and to repeal Article 2 (commencing with Section
10521) of Chapter 4.5 of Part 1 of Division 3 of, the Unemployment
Insurance Code, to amend Sections 11713.3, 12804.11, 23575, and 40240
of the Vehicle Code, to amend Sections 1486, 10753, and 74209 of the
Water Code, to amend Sections 319, 366.21, 391, 712, 912, 4512,
4514, 4640.6, 4641.5, 4646.5, 4659.13, 4659.23, 4688.21, 4689, 5720,
8103, 10980, 11451.5, 11461, 11463, 12301.03, 12301.07, 12305.87,
14053.8, 14053.9, 14105.09, 14105.193, 14132.957, 14165, 14165.56,
14165.57, 14166.12, 14166.20, 14168.1, 14168.11, 14169.1, 14182,
14589, 14701, 15657.03, 15910, 15911, 15916, 15926, 17600, and
18220.1 of the Welfare and Institutions Code, to amend Sections 59
and 60 of Chapter 7 of the Statutes of 2011, to amend Sections 9 and
34 of Chapter 136 of the Statutes of 2011, to amend Section 2 of
Chapter 211 of the Statutes of 2011, to amend Section 1 of Chapter
404 of the Statutes of 2011, to amend Section 17 of Chapter 13 of the
First Extraordinary Session of the Statutes of 2011, and to amend
Section 2 of Chapter 14 of the First Extraordinary Session of the
Statutes of 2011, relating to the maintenance of the codes.
LEGISLATIVE COUNSEL'S DIGEST
SB 1171, Harman. 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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2313 of the Business and Professions Code is
amended to read:
2313. The board shall report annually to the Legislature, no
later than October 1 of each year, the following information:
(a) The total number of temporary restraining orders or interim
suspension orders sought by the board to enjoin licensees pursuant to
Sections 125.7, 125.8, and 2311, the circumstances in each case that
prompted the board to seek that injunctive relief, and whether a
restraining order or interim suspension order was actually issued.
(b) The total number and types of actions for unprofessional
conduct taken by the board against licensees, the number and types of
actions taken against licensees for unprofessional conduct related
to prescribing drugs, narcotics, or other controlled substances,
including those related to the undertreatment or undermedication of
pain.
(c) Information relative to the performance of the board,
including the following: number of consumer calls received; number of
consumer calls or letters designated as discipline-related
complaints; number of complaint forms received; number of Section 805
and Section 805.01 reports by type; number of Section 801.01 and
Section 803 reports; coroner reports received; number of convictions
reported to the board; number of criminal filings reported to the
division; number of complaints and referrals closed, referred out, or
resolved without discipline, respectively, prior to accusation;
number of accusations filed and final disposition of accusations
through the board and court review, respectively; final physician
discipline by category; number of citations issued with fines and
without fines, and number of public reprimands issued; number of
cases in process more than six months from receipt by the board of
information concerning the relevant acts to the filing of an
accusation; average and median time in processing complaints from
original receipt of complaint by the board for all cases at each
stage of discipline and court review, respectively; number of persons
in diversion, and number successfully completing diversion programs
and failing to do so, respectively; probation violation reports and
probation revocation filings and dispositions; number of petitions
for reinstatement and their dispositions; and caseloads of
investigators for original cases and for probation cases,
respectively.
"Action," for purposes of this section, includes proceedings
brought by, or on behalf of, the board against licensees for
unprofessional conduct that have not been finally adjudicated, as
well as disciplinary actions taken against licensees.
(d) The total number of reports received pursuant to Sections 805
and 805.01 by the type of peer review body reporting and, where
applicable, the type of health care facility involved and the total
number and type of administrative or disciplinary actions taken by
the board with respect to the reports.
(e) The number of malpractice settlements in excess of thirty
thousand dollars ($30,000) reported pursuant to Section 801.01. This
information shall be grouped by specialty practice and shall include
the total number of physicians and surgeons practicing in each
specialty. For the purpose of this subdivision, "specialty" includes
all specialties and subspecialties considered in determining the risk
categories described in Section 803.1.
SEC. 2. Section 7068.2 of the Business and Professions Code is
amended to read:
7068.2. (a) If the responsible managing officer, responsible
managing employee, responsible managing member, or responsible
managing manager disassociates from the licensed entity, the licensee
or the qualifier shall notify the registrar in writing within 90
days after the date of disassociation. The licensee shall have 90
days after the date of disassociation in which to replace the
qualifier. Upon failure to replace the qualifier within 90 days after
the date of disassociation, the license shall be automatically
suspended or the classification removed at the end of the 90 days.
(b) To replace a responsible managing officer, responsible
managing employee, responsible managing member, or responsible
managing manager, the licensee shall file an application as
prescribed by the registrar, accompanied by the fee fixed by this
chapter, designating an individual to qualify as required by this
chapter.
(c) Upon failure of the licensee or the qualifier to notify the
registrar of the disassociation of the qualifier within 90 days after
the date of disassociation, the license shall be automatically
suspended or the classification removed and the qualifier removed
from the license effective the date the written notification is
received at the board's headquarters office.
(d) The person qualifying on behalf of a licensee under Section
7068 shall be responsible for the licensee's construction operations
until the date of disassociation or the date the board receives the
written notification of disassociation, whichever is later.
(e) (1) Upon a showing of good cause by the licensee, the
registrar may review and accept a petition for one 90-day extension
to replace the qualifier immediately following the initial 90-day
period described in subdivision (a) only under one or more of the
following circumstances:
(A) If the licensee is disputing the date of disassociation.
(B) If the responsible managing officer, employee, member, or
manager has died.
(C) If there has been a delay in processing the application to
replace the qualifier that is out of the applicant's control and it
is the responsibility of the board or another state or federal agency
that is relied upon in the application process.
(2) This petition shall be received within 90 days after the date
of disassociation or death or delay. The petition shall only be
considered if an application to replace the qualifier as prescribed
by the registrar is on file with the board. Under the circumstances
described in subparagraphs (A) and (B) of paragraph (1), the licensee
shall have no more than a total of 180 days after the date of
disassociation or death in which to replace the qualifier.
(f) Failure of the licensee or the qualifier to notify the
registrar of the qualifier's disassociation within 90 days after the
date of disassociation shall constitute grounds for disciplinary
action.
SEC. 3. Section 12241 of the Business and Professions Code is
amended to read:
12241. On or before January 1, 2012, the secretary shall
establish by regulation an annual administrative fee to recover
reasonable administrative and enforcement costs incurred by the
department for exercising supervision over and performing
investigations in connection with the activities performed pursuant
to Sections 12210 and 12211. This administrative fee shall be
collected for every device registered with each county office of
weights and measures, and paid to the Department of Food and
Agriculture Fund beginning January 1, 2012, and annually thereafter.
SEC. 4. Section 19607.5 of the Business and Professions Code is
amended to read:
19607.5. (a) Notwithstanding any other provision of law, if both
a fair and a thoroughbred association are licensed by the board to
conduct live racing meetings within the northern zone during the same
calendar period, signals of both racing programs shall be accepted
at each live racing meeting within the northern zone and at all
satellite wagering facilities eligible to receive these programs.
(b) Notwithstanding any other provision of law, in order to ensure
that fairs which previously had an exclusive right to send their
signals to satellite wagering facilities in the northern zone during
periods of overlap do not lose commission revenues from satellite
wagering, each fair that conducts its meeting during the period
described in subdivision (a) shall receive the following satellite
wagering commissions:
(1) With respect to the 2nd District Agricultural Association in
Stockton, the commissions payable to the fair from satellite wagering
during the period described in subdivision (a) shall be the greater
of any of the following:
(A) The actual commission earned by the fair from satellite
wagering on its live races during that period.
(B) Fifty percent of the total combined satellite wagering
commissions payable to the thoroughbred association and the fair
during that period.
(C) One hundred ten percent of the satellite wagering commissions
paid to the fair during its live racing meeting in 1990.
If the satellite wagering commissions received by the 2nd District
Agricultural Association are less than the greater of the amounts
specified in subparagraph (B) or (C), the thoroughbred association
shall pay to the fair from amounts deducted from satellite wagering
on its meeting and before distribution of any satellite wagering
commissions and purses on its meeting, an amount equal to the
difference between the actual satellite wagering commissions received
by the fair in that year and the applicable amount from subparagraph
(B) or (C). No additional satellite wagering commission shall be
paid to the fair by an association unless the fair conducts live
racing during the period described in subdivision (a).
(2) With respect to the California Exposition and State Fair in
Sacramento, the commissions payable to the fair from satellite
wagering during the period described in subdivision (a) shall be the
greater of either of the following:
(A) The actual commission earned by the fair from satellite
wagering on its live races during that period.
(B) Sixty percent of the total combined satellite wagering
commissions payable to the thoroughbred association and the fair
during that period.
If the satellite wagering commissions received by the California
Exposition and State Fair are less than the amount described in
subparagraph (B), the thoroughbred association shall pay to the fair
from amounts deducted from satellite wagering on its meeting and
before distribution of any satellite wagering commissions and purses
on its meeting, an amount equal to the difference between the actual
satellite wagering commissions received by the fair in that year and
the amount described in subparagraph (B). No additional satellite
wagering commission shall be paid to the fair by an association
unless the fair conducts live racing during the period described in
subdivision (a).
(c) During any periods described in subdivision (a), including
periods of overlap for fairs not specified in subdivision (b), the
thoroughbred association shall deduct the same percentage from the
total amount wagered in its daily conventional and exotic parimutuel
pools as the percentage deducted by the fair meeting. The amounts
deducted shall be distributed as otherwise provided in this article,
with the following exceptions:
(1) If the percentages deducted from the conventional and exotic
parimutuel pools of the thoroughbred association under this
subdivision exceed the percentages deducted from the association's
pools during periods other than those described under subdivision
(a), the amount deducted which is equivalent to the difference
between those percentages shall be distributed by the thoroughbred
association equally between commissions and purses.
(2) If a thoroughbred association and the 2nd District
Agricultural Association in Stockton or the California Exposition and
State Fair in Sacramento both conduct live racing meetings during
any period described in subdivision (a), the total amount deducted
shall be distributed by both the association and fair in the
percentages specified for fair meetings in subdivision (b) of Section
19605.7.
This subdivision does not require any portion of the additional
deduction to be distributed pursuant to subdivision (c) of Section
19614.
(d) Notwithstanding any other provision of law, an association and
fair that conduct their meeting pursuant to subdivision (b) shall
combine the operating expenses incurred at satellite wagering
facilities during the period described in subdivision (a). For
purposes of this subdivision only, the combined satellite wagering
operating expenses of the association and the fair during the period
described in subdivision (a) shall not exceed the actual expenses, or
6 percent of the combined parimutuel pool at satellite wagering
facilities, whichever amount is less.
SEC. 5. Section 19852.2 of the Business and Professions Code is
amended to read:
19852.2. (a) Notwithstanding Section 19852 or any other provision
of law to the contrary, and solely for the purpose of the licensure
of a card club located on the grounds of a racetrack that is owned by
a limited partnership that also owns the racetrack, the commission,
in its discretion, may exempt from the licensing requirements of this
chapter all of the following:
(1) The limited partners in a limited partnership that holds
interest in a holding company if all of the following criteria are
met:
(A) The limited partners of the limited partnership in the
aggregate directly hold at least 95 percent of the interest in the
holding company.
(B) The limited partner is one of the following:
(i) An "institutional investor" as defined in subdivision (w) of
Section 19805.
(ii) An "employee benefit plan" as defined in Section 1002(3) of
Title 29 of the United States Code.
(iii) An investment company that manages a state university
endowment.
(2) Other limited partners in a limited partnership described in
paragraph (1), if the partners do not number more than five and each
partner indirectly owns 1 percent or less of the shares of the
interest in the holding company.
(3) A limited partner in a limited partnership that holds in the
aggregate less than 5 percent of the interest in a holding company.
(b) Nothing in this section shall be construed to limit the
licensure requirements for a general partner of a limited partnership
or a limited partner that is not specifically described in this
section.
SEC. 6. Section 19853 of the Business and Professions Code is
amended to read:
19853. (a) The commission, by regulation or order, may require
that the following persons register with the commission, apply for a
finding of suitability as defined in subdivision (j) of Section
19805, or apply for a gambling license:
(1) Any person who furnishes any services or any property to a
gambling enterprise under any arrangement whereby that person
receives payments based on earnings, profits, or receipts from
controlled gambling.
(2) Any person who owns an interest in the premises of a licensed
gambling establishment or in real property used by a licensed
gambling establishment.
(3) Any person who does business on the premises of a licensed
gambling establishment.
(4) Any person who is an independent agent of, or does business
with, a gambling enterprise as a ticket purveyor, a tour operator,
the operator of a bus program, or the operator of any other type of
travel program or promotion operated with respect to a licensed
gambling establishment.
(5) Any person who provides any goods or services to a gambling
enterprise for compensation that the commission finds to be grossly
disproportionate to the value of the goods or services provided.
(6) Every person who, in the judgment of the commission, has the
power to exercise a significant influence over the gambling
operation.
(b) The department may conduct any investigation it deems
necessary to determine whether a publicly traded corporation is, or
has, engaged in activities specified in paragraph (2), (3), or (4) of
subdivision (a), and shall report its findings to the commission. If
a publicly traded corporation is engaged in activities described in
paragraph (2), (3), or (4) of subdivision (a), the commission may
require the corporation and the following other persons to apply for
and obtain a license or finding of suitability:
(1) Any officer or director.
(2) Any owner, other than an institutional investor, of 5 percent
or more of the outstanding shares of the corporation.
SEC. 7. Section 23393.5 of the Business and Professions Code is
amended to read:
23393.5. (a) The department may issue a limited off-sale retail
wine license which authorizes the sale of wine by the licensee if all
of the following conditions are met:
(1) Sales are restricted to those solicited and accepted via
direct mail, telephone, or the Internet.
(2) Sales are not conducted from a retail premises open to the
public.
(3) The licensee takes possession of and title to all wine sold by
the licensee.
(4) All wine sold by the licensee is delivered to the purchaser
from the licensee's licensed premises or from a licensed public
warehouse.
(b) The sale of wine shall only be to consumers and not for
resale, in packages or quantities of 52 gallons or less per sale, for
consumption off the premises where sold.
(c) The licensee shall comply with Section 23985, but is exempted
from Sections 23985.5 and 23986.
(d) The department may impose reasonable conditions upon the
licensee as may be needed in the interest of public health, safety,
and welfare.
(e) The application for the license shall be accompanied by an
original fee in an amount equivalent to that of an original off-sale
beer and wine license pursuant to Section 23954.5. The annual fee for
the license shall be an amount equivalent to that of a retail
package off-sale beer and wine license pursuant to Section 23320. All
moneys collected from the fees shall be deposited in the Alcoholic
Beverage Control Fund, pursuant to Section 25761.
SEC. 8. Section 25503.56 of the Business and Professions Code is
amended to read:
25503.56. (a) An authorized licensee, or a designated
representative of an authorized licensee acting as an agent of the
authorized licensee, may conduct, on the area specified by paragraph
(1) of subdivision (c) of Section 23396.6, an instructional tasting
event for consumers on the subject of wine, beer, or distilled
spirits, including, but not limited to, the history, nature, values,
and characteristics of wine, beer, or distilled spirits, and the
methods of presenting and serving wine, beer, or distilled spirits.
(1) (A) Except as provided in subparagraph (B), the instructional
tasting event may include the serving of alcoholic beverages to an
attendee of legal drinking age. An instructional tasting event on the
subject of wine or distilled spirits shall be limited to not more
than three tastings per person per day. A single tasting of distilled
spirits shall not exceed one-fourth of one ounce and a single
tasting of wine shall not exceed one ounce. An instructional tasting
event on the subject of beer shall be limited to not more than the
tasting of eight ounces of beer per person per day. The wine, beer,
or distilled spirits tasted shall be limited to the products that are
authorized to be sold by the authorized licensee and the
licenseholder under its off-sale license.
(B) A beer and wine wholesaler may conduct an instructional
tasting event but shall not serve tastes of beer unless the beer and
wine wholesaler also holds a beer manufacturer's license, an
out-of-state beer manufacturer's certificate, or more than six
distilled spirits wholesaler's licenses.
(C) No charge of any sort shall be made for the tastings. Except
for the purposes of Section 23985, the serving of tastings shall not
be deemed a sale of products pursuant to this division.
(D) A person under 21 years of age shall not serve wine, beer, or
distilled spirits at the instructional tasting event.
(E) All tastes shall be served by an employee of the authorized
licensee, the designated representative of the authorized licensee,
or by an employee of the designated representative of the authorized
licensee.
(F) An authorized licensee, or a designated representative of an
authorized licensee, shall either supply the wine or distilled
spirits to be tasted during the instructional tasting event or
purchase the wine or distilled spirits from the licenseholder at the
original invoiced cost. An authorized licensee, or a designated
representative of an authorized licensee, shall purchase beer to be
tasted during the instructional tasting event from the licenseholder
at the original invoiced cost.
(G) Any unused wine, beer, or distilled spirits remaining from the
tasting shall be removed from the off-sale licensed premises by the
authorized licensee or its designated representative.
(2) If the instructional tasting event is conducted by a
designated representative of an authorized licensee, the designated
representative shall not be owned, controlled, or employed directly
or indirectly by the licenseholder on whose premises the
instructional tasting event is held.
(3) An instructional tasting event shall be limited to a single
type of alcoholic beverage. For purposes of this paragraph, "type of
alcoholic beverage" means distilled spirits, wine, or beer.
(b) For purposes of this section:
(1) "Authorized licensee" means a winegrower, California
winegrower's agent, beer and wine importer general, beer and wine
wholesaler, wine rectifier, distilled spirits manufacturer, distilled
spirits manufacturer's agent, distilled spirits importer general,
distilled spirits rectifier, distilled spirits general rectifier,
rectifier, out-of-state distilled spirits shipper's certificate
holder, distilled spirits wholesaler, brandy manufacturer, brandy
importer, California brandy wholesaler, beer manufacturer, or an
out-of-state beer manufacturer certificate holder. "Authorized
licensee" shall not include an entity that solely holds a combination
of a beer and wine wholesale license and an off-sale beer and wine
retail license or holds those licenses solely in combination with any
license not listed in this paragraph, or holds a limited off-sale
retail wine license.
(2) "Licenseholder" means an off-sale retail licensee issued an
instructional tasting license pursuant to Section 23396.6.
(3) "Location" means the total contiguous area encompassed by the
off-sale and on-sale licenses.
(c) Notwithstanding subparagraph (E) of paragraph (1) of
subdivision (a), a licenseholder may conduct an instructional tasting
event that includes the serving of tastings only when an authorized
licensee or its designated representative are unable to conduct an
instructional tasting event previously advertised pursuant to this
section and scheduled by the authorized licensee or its designated
representative, provided that the licenseholder supplies the wine,
beer, or distilled spirits used in the instructional tasting event
and provides or pays for a person to serve the wine, beer, or
distilled spirits. Instructional tasting events conducted by a
licenseholder pursuant to this subdivision are subject to the
provisions of this section and Section 23396.6.
(d) No more than one authorized licensee, or its designated
representative, may conduct an instructional tasting event that
includes the serving of tastes of wine, beer, or distilled spirits at
any one individual licensed premises of a licenseholder per day.
(e) A licenseholder that also holds an on-sale beer and wine
license, an on-sale beer and wine eating place license, or an on-sale
general license shall not allow an authorized licensee, or its
designated representative, to conduct an instructional tasting event
on the same day and at the same location as any instructional tasting
event held pursuant to subdivision (b) of Section 23386, Section
25503.4, subdivision (c) of Section 25503.5, or Section 25503.55.
(f) A licenseholder shall not condition the allowance of an
instructional tasting event upon the use of a particular designated
representative of an authorized licensee.
(g) (1) In addition to any point-of-sale advertising or other
advertising items allowed under this division or under rules of the
department, an authorized licensee or its designated representative,
in his or her absolute discretion and with permission of the
licenseholder upon whose premises the instructional tasting event
will be held, may list in an advertisement to the general public the
name and address of the licenseholder, the names of the alcoholic
beverages being featured at the instructional tasting event, and the
time, date, and location of, and other information about, the
instructional tasting event, provided that both of the following
apply:
(A) The advertisement does not contain the retail price of the
alcoholic beverages.
(B) The listing of the licenseholder's name and address is the
only reference to the licenseholder in the advertisement.
(2) Pictures or illustrations of the licenseholder's licensed
premises and laudatory references to the licenseholder in these
advertisements are not authorized. Nothing in this section shall
authorize an authorized licensee or its designated representative to
share in the costs, if any, of the licenseholder.
(h) A licenseholder may advertise an instructional tasting event
to the general public. The costs of this advertising shall be borne
solely by the licenseholder. Advertising permitted by this
subdivision includes flyers, newspaper ads, Internet communications,
and interior signage.
(i) Except as otherwise provided in this division or rules of the
department, no premium, gift, free goods, or other thing of value
shall be given away by an authorized licensee or its designated
representative in connection with an instructional tasting event that
includes tastings of an alcoholic beverage.
(j) The licenseholder or the authorized licensee or its designated
representative is authorized to perform setup and breakdown of the
instructional tasting event area. The authorized licensee or its
designated representative may provide, free of charge to the
licenseholder, the equipment, materials, and utensils as may be
required for use in connection with the instructional tasting event.
(k) (1) A licenseholder shall not require, or enter into a
collusive scheme with, an authorized licensee or its designated
representative to conduct one or more instructional tasting events as
a condition of the licenseholder's carrying or continuing to carry a
brand or brands of the authorized licensee or as a condition for
display or other merchandising plan which is based on an agreement to
provide shelf space. An authorized licensee or its designated
representative shall not require any preferential treatment or
benefit from, or enter into a collusive scheme with, a licenseholder
as a condition of conducting one or more instructional tasting
events, require a licenseholder to carry or continue to carry a brand
or brands of the authorized licensee as a condition of conducting
one or more instructional
tasting events, or condition display or other merchandising plans
that are based on agreements for the provision of shelf space on the
conducting of one or more instructional tasting events. Any
agreement, whether written or oral, entered into by and between a
licenseholder and an authorized licensee or its designated
representative that precludes the conducting of instructional tasting
events on the premises of the licenseholder by any other authorized
licensee is prohibited. A licenseholder or authorized licensee, or
its designated representative, shall not use an instructional tasting
event to circumvent any other requirements of this division.
(2) In addition to any other remedies available under this
division, upon a finding by the department of a failure to comply
with this subdivision, the department shall suspend the instructional
tasting license of the licenseholder and the privilege of the
authorized licensee to conduct instructional events for not less than
six months but for no more than one year.
(l) The Legislature finds that it is necessary and proper to
require a separation between manufacturing interests, wholesale
interests, and retail interests in the production and distribution of
alcoholic beverages in order to prevent suppliers from dominating
local markets through vertical integration and to prevent excessive
sales of alcoholic beverages produced by overly aggressive marketing
techniques. The Legislature further finds that the exception
established by this section to the general prohibition against tied
interests must be limited to its express terms so as not to undermine
the general prohibition, and intends that this section be construed
accordingly.
SEC. 9. Section 55.3 of the Civil Code is amended to read:
55.3. (a) For purposes of this section, the following shall
apply:
(1) "Complaint" means a civil complaint that is filed or is to be
filed with a court and is sent to or served upon a defendant on the
basis of one or more construction-related accessibility claims, as
defined in this section.
(2) "Demand for money" means a written document that is provided
to a building owner or tenant, or an agent or employee of a building
owner or tenant, that contains a request for money on the basis of
one or more construction-related accessibility claims, as defined in
paragraph (3), whether or not the attorney intends to file a
complaint or eventually files a complaint in state or federal court.
(3) "Construction-related accessibility claim" means any claim of
a violation of any construction-related accessibility standard, as
defined by paragraph (6) of subdivision (a) of Section 55.52, with
respect to a place of public accommodation. "Construction-related
accessibility claim" does not include a claim of interference with
housing within the meaning of paragraph (2) of subdivision (b) of
Section 54.1, or any claim of interference caused by something other
than the construction-related accessibility condition of the
property, including, but not limited to, the conduct of any person.
(b) An attorney shall provide a written advisory with each demand
for money or complaint sent to or served by him or her upon a
defendant, in the form described in subdivision (c), and on a page or
pages that are separate and clearly distinguishable from the demand
for money or complaint, as follows:
IMPORTANT INFORMATION FOR BUILDING OWNERS AND TENANTS
This form is available in English, Spanish, Chinese, Vietnamese,
and Korean through the Judicial Council of California. Persons with
visual impairments can get assistance in viewing this form through
the Judicial Council Internet Web site at http://www.courts.ca.gov.
Existing law requires that you receive this information because
the demand for money or complaint you received with this document
claims that your building or property does not comply with one or
more existing construction-related accessibility laws or regulations
protecting the civil rights of persons with disabilities to access
public places.
YOU HAVE IMPORTANT LEGAL OBLIGATIONS. Compliance with disability
access laws is a serious and significant responsibility that applies
to all California building owners and tenants with buildings open for
business to the public. You may obtain information about your legal
obligations and how to comply with disability access laws through the
Division of the State Architect. Commencing September 1, 2009,
information will also be available from the California Commission on
Disability Access Internet Web site.
YOU HAVE IMPORTANT LEGAL RIGHTS. You are not required to pay any
money unless and until a court finds you liable. Moreover, RECEIPT OF
THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR
ANYTHING.
You may wish to promptly consult an attorney experienced in this
area of the law to get helpful legal advice or representation in
responding to the demand for money or complaint you received. You may
contact the local bar association in your county for information on
available attorneys in your area. If you have insurance, you may also
wish to contact your insurance provider. You have the right to seek
assistance or advice about this demand for money or complaint from
any person of your choice, and no one may instruct you otherwise.
Your best interest may be served by seeking legal advice or
representation from an attorney.
If a complaint has been filed and served on you and your property
has been inspected by a Certified Access Specialist (CASp; see
http://www.dgs.ca.gov/dsa/Programs/programCert/casp.aspx), you may
have the right to a court stay (temporary stoppage) and early
evaluation conference to evaluate the merits of the
construction-related accessibility claim against you pursuant to
Civil Code Section 55.54. At your option, you may be, but need not
be, represented by an attorney to file a reply and to file an
application for a court stay and early evaluation conference. If you
choose not to hire an attorney to represent you, you may obtain
additional information about how to represent yourself and how to
file a reply without hiring an attorney through the Judicial Council
Internet Web site at http://www.courts.ca.gov. You may also obtain a
form to file your reply to the lawsuit, as well as the form and
information for filing an application to request the court stay and
early evaluation conference at that same Web site.
If you choose to hire an attorney to represent you, the attorney
who sent you the demand for money or complaint is prohibited from
contacting you further unless your attorney has given the other
attorney permission to contact you. If the other attorney does try to
contact you, you should immediately notify your attorney.
(c) On or before July 1, 2009, the Judicial Council shall adopt a
form that may be used by attorneys to comply with the requirements of
subdivision (b). The form shall be in substantially the same format
and include all of the text set forth in subdivision (b). The form
shall be available in English, Spanish, Chinese, Vietnamese, and
Korean, and shall include a statement that the form is available in
additional languages, and the Judicial Council Internet Web site
address where the different versions of the form may be located. The
form shall include Internet Web site information for the Division of
the State Architect and, when operational, the California Commission
on Disability Access.
(d) Subdivision (b) shall apply only to a demand for money or
complaint made by an attorney. Nothing in this section is intended to
affect the right to file a civil complaint under any other law or
regulation protecting the physical access rights of persons with
disabilities. Additionally, nothing in this section requires a party
acting in propria persona to provide or send a demand for money to
another party before proceeding against that party with a civil
complaint.
(e) This section shall not apply to any action brought by the
Attorney General, or by any district attorney, city attorney, or
county counsel.
SEC. 10. Section 1368 of the Civil Code is amended to read:
1368. (a) The owner of a separate interest, other than an owner
subject to the requirements of Section 11018.6 of the Business and
Professions Code, shall, as soon as practicable before transfer of
title to the separate interest or execution of a real property sales
contract therefor, as defined in Section 2985, provide the following
to the prospective purchaser:
(1) A copy of the governing documents of the common interest
development, including any operating rules, and including a copy of
the association's articles of incorporation, or, if not incorporated,
a statement in writing from an authorized representative of the
association that the association is not incorporated.
(2) If there is a restriction in the governing documents limiting
the occupancy, residency, or use of a separate interest on the basis
of age in a manner different from that provided in Section 51.3, a
statement that the restriction is only enforceable to the extent
permitted by Section 51.3 and a statement specifying the applicable
provisions of Section 51.3.
(3) A copy of the most recent documents distributed pursuant to
Section 1365.
(4) A true statement in writing obtained from an authorized
representative of the association as to the amount of the association'
s current regular and special assessments and fees, any assessments
levied upon the owner's interest in the common interest development
that are unpaid on the date of the statement, and any monetary fines
or penalties levied upon the owner's interest and unpaid on the date
of the statement. The statement obtained from an authorized
representative shall also include true information on late charges,
interest, and costs of collection which, as of the date of the
statement, are or may be made a lien upon the owner's interest in a
common interest development pursuant to Section 1367 or 1367.1.
(5) A copy or a summary of any notice previously sent to the owner
pursuant to subdivision (g) of Section 1363 that sets forth any
alleged violation of the governing documents that remains unresolved
at the time of the request. The notice shall not be deemed a waiver
of the association's right to enforce the governing documents against
the owner or the prospective purchaser of the separate interest with
respect to any violation. This paragraph shall not be construed to
require an association to inspect an owner's separate interest.
(6) A copy of the initial list of defects provided to each member
of the association pursuant to Section 1375, unless the association
and the builder subsequently enter into a settlement agreement or
otherwise resolve the matter and the association complies with
Section 1375.1. Disclosure of the initial list of defects pursuant to
this paragraph does not waive any privilege attached to the
document. The initial list of defects shall also include a statement
that a final determination as to whether the list of defects is
accurate and complete has not been made.
(7) A copy of the latest information provided for in Section
1375.1.
(8) Any change in the association's current regular and special
assessments and fees which have been approved by the association's
board of directors, but have not become due and payable as of the
date disclosure is provided pursuant to this subdivision.
(9) If there is a provision in the governing documents that
prohibits the rental or leasing of any of the separate interests in
the common interest development to a renter, lessee, or tenant, a
statement describing the prohibition and its applicability.
(10) If requested by the prospective purchaser, a copy of the
minutes of the meetings, excluding meetings held in executive
session, of the association's board of directors, conducted over the
previous 12 months, that were approved by the association's board of
directors.
(b) (1) Upon written request, the association shall, within 10
days of the mailing or delivery of the request, provide the owner of
a separate interest, or any other recipient authorized by the owner,
with a copy of the requested documents specified in paragraphs (1) to
(10), inclusive, of subdivision (a). Upon receipt of a written
request, the association shall provide, on the form described in
Section 1368.2, a written or electronic estimate of the fees that
will be assessed for providing the requested documents. The documents
required to be made available pursuant to this section may be
maintained in electronic form, and may be posted on the association's
Internet Web site. Requesting parties shall have the option of
receiving the documents by electronic transmission if the association
maintains the documents in electronic form. The association may
collect a reasonable fee based upon the association's actual cost for
the procurement, preparation, reproduction, and delivery of the
documents requested pursuant to the provisions of this section.
(2) No additional fees may be charged by the association for the
electronic delivery of the documents requested.
(3) Fees for any documents required by this section shall be
distinguished from other fees, fines, or assessments billed as part
of the transfer or sales transaction. Delivery of the documents
required by this section shall not be withheld for any reason nor
subject to any condition except the payment of the fee allowed
pursuant to paragraph (1).
(4) An association may contract with any person or entity to
facilitate compliance with the requirements of this subdivision on
behalf of the association.
(5) The association shall also provide a recipient authorized by
the owner of a separate interest with a copy of the completed form
specified in Section 1368.2 at the time the required documents are
delivered.
(c) (1) Except as provided in paragraph (2), neither an
association nor a community service organization or similar entity
may impose or collect any assessment, penalty, or fee in connection
with a transfer of title or any other interest except for the
following:
(A) An amount not to exceed the association's actual costs to
change its records.
(B) An amount authorized by subdivision (b).
(2) The prohibition in paragraph (1) does not apply to a community
service organization or similar entity, or to a nonprofit entity
that provides services to a common interest development under a
declaration of trust, that is described in subparagraph (A) or (B):
(A) The community service organization or similar entity satisfies
both of the following requirements:
(i) The community service organization or similar entity was
established prior to February 20, 2003.
(ii) The community service organization or similar entity exists
and operates, in whole or in part, to fund or perform environmental
mitigation or to restore or maintain wetlands or native habitat, as
required by the state or local government as an express written
condition of development.
(B) The community service organization or similar entity, or a
nonprofit entity that provides services to a common interest
development under a declaration of trust, satisfies all of the
following requirements:
(i) The organization or entity is not an organization or entity
described in subparagraph (A).
(ii) The organization or entity was established and received a
transfer fee prior to January 1, 2004.
(iii) On and after January 1, 2006, the organization or entity
offers a purchaser the following payment options for the fee or
charge it collects at the time of transfer:
(I) Paying the fee or charge at the time of transfer.
(II) Paying the fee or charge pursuant to an installment payment
plan for a period of not less than seven years. If the purchaser
elects to pay the fee or charge in installment payments, the
organization or entity may also collect additional amounts that do
not exceed the actual costs for billing and financing on the amount
owed. If the purchaser sells the separate interest before the end of
the installment payment plan period, he or she shall pay the
remaining balance prior to transfer.
(3) For the purposes of this subdivision, a "community service
organization or similar entity" means a nonprofit entity, other than
an association, that is organized to provide services to residents of
the common interest development or to the public in addition to the
residents, to the extent community common areas or facilities are
available to the public. A "community service organization or similar
entity" does not include an entity that has been organized solely to
raise moneys and contribute to other nonprofit organizations that
are qualified as tax exempt under Section 501(c)(3) of the Internal
Revenue Code and that provide housing or housing assistance.
(d) Any person or entity who willfully violates this section is
liable to the purchaser of a separate interest that is subject to
this section for actual damages occasioned thereby and, in addition,
shall pay a civil penalty in an amount not to exceed five hundred
dollars ($500). In an action to enforce this liability, the
prevailing party shall be awarded reasonable attorney's fees.
(e) Nothing in this section affects the validity of title to real
property transferred in violation of this section.
(f) In addition to the requirements of this section, an owner
transferring title to a separate interest shall comply with
applicable requirements of Sections 1133 and 1134.
(g) For the purposes of this section, a person who acts as a
community association manager is an agent, as defined in Section
2297, of the association.
SEC. 11. Section 2983 of the Civil Code is amended to read:
2983. (a) Except as provided in subdivision (b), if the seller,
except as the result of an accidental or bona fide error in
computation, violates any provision of Section 2981.9, or of
subdivision (a), (j), or (k) of Section 2982, the conditional sale
contract shall not be enforceable, except by a bona fide purchaser,
assignee, or pledgee for value, or until after the violation is
corrected as provided in Section 2984, and, if the violation is not
corrected, the buyer may recover from the seller the total amount
paid, pursuant to the terms of the contract, by the buyer to the
seller or his or her assignee. The amount recoverable for property
traded in as all or part of the downpayment shall be equal to the
agreed cash value of the property as the value appears on the
conditional sale contract or the fair market value of the property as
of the time the contract is made, whichever is greater.
(b) A conditional sale contract executed or entered into on or
after January 1, 2012, shall not be made unenforceable solely because
of a violation by the seller of paragraph (2) or (5) of subdivision
(a) of Section 2982. In addition to any other remedies that may be
available, the buyer is entitled to any actual damages sustained as a
result of a violation of those provisions. Nothing in this
subdivision affects any legal rights, claims, or remedies otherwise
available under law.
SEC. 12. Section 527.6 of the Code of Civil Procedure is amended
to read:
527.6. (a) (1) A person who has suffered harassment as defined in
subdivision (b) may seek a temporary restraining order and an
injunction prohibiting harassment as provided in this section.
(2) A minor, under 12 years of age, accompanied by a duly
appointed and acting guardian ad litem, shall be permitted to appear
in court without counsel for the limited purpose of requesting or
opposing a request for a temporary restraining order or injunction,
or both, under this section as provided in Section 374.
(b) For the purposes of this section:
(1) "Course of conduct" is a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including following or stalking an individual,
making harassing telephone calls to an individual, or sending
harassing correspondence to an individual by any means, including,
but not limited to, the use of public or private mails, interoffice
mail, facsimile, or computer email. Constitutionally protected
activity is not included within the meaning of "course of conduct."
(2) "Credible threat of violence" is a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
(3) "Harassment" is unlawful violence, a credible threat of
violence, or a knowing and willful course of conduct directed at a
specific person that seriously alarms, annoys, or harasses the
person, and that serves no legitimate purpose. The course of conduct
must be such as would cause a reasonable person to suffer substantial
emotional distress, and must actually cause substantial emotional
distress to the petitioner.
(4) "Petitioner" means the person to be protected by the temporary
restraining order and injunction and, if the court grants the
petition, the protected person.
(5) "Respondent" means the person against whom the temporary
restraining order and injunction are sought and, if the petition is
granted, the restrained person.
(6) "Temporary restraining order" and "injunction" mean orders
that include any of the following restraining orders, whether issued
ex parte or after notice and hearing:
(A) An order enjoining a party from harassing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, abusing, telephoning, including, but not
limited to, making annoying telephone calls, as described in Section
653m of the Penal Code, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, or coming within
a specified distance of, or disturbing the peace of, the petitioner.
(B) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
subparagraph (A).
(7) "Unlawful violence" is any assault or battery, or stalking as
prohibited in Section 646.9 of the Penal Code, but shall not include
lawful acts of self-defense or defense of others.
(c) In the discretion of the court, on a showing of good cause, a
temporary restraining order or injunction issued under this section
may include other named family or household members.
(d) Upon filing a petition for an injunction under this section,
the petitioner may obtain a temporary restraining order in accordance
with Section 527, except to the extent this section provides a rule
that is inconsistent. The temporary restraining order may include any
of the restraining orders described in paragraph (6) of subdivision
(b). A temporary restraining order may be issued with or without
notice, based on a declaration that, to the satisfaction of the
court, shows reasonable proof of harassment of the petitioner by the
respondent, and that great or irreparable harm would result to the
petitioner.
(e) A request for the issuance of a temporary restraining order
without notice under this section shall be granted or denied on the
same day that the petition is submitted to the court, unless the
petition is filed too late in the day to permit effective review, in
which case the order shall be granted or denied on the next day of
judicial business in sufficient time for the order to be filed that
day with the clerk of the court.
(f) A temporary restraining order issued under this section shall
remain in effect, at the court's discretion, for a period not to
exceed 21 days, or, if the court extends the time for hearing under
subdivision (g), not to exceed 25 days, unless otherwise modified or
terminated by the court.
(g) Within 21 days, or, if good cause appears to the court, 25
days from the date that a petition for a temporary order is granted
or denied, a hearing shall be held on the petition for the
injunction. If no request for temporary orders is made, the hearing
shall be held within 21 days, or, if good cause appears to the court,
25 days, from the date that the petition is filed.
(h) The respondent may file a response that explains, excuses,
justifies, or denies the alleged harassment or may file a
cross-petition under this section.
(i) At the hearing, the judge shall receive any testimony that is
relevant, and may make an independent inquiry. If the judge finds by
clear and convincing evidence that unlawful harassment exists, an
injunction shall issue prohibiting the harassment.
(j) (1) In the discretion of the court, an order issued after
notice and hearing under this section may have a duration of not more
than three years, subject to termination or modification by further
order of the court either on written stipulation filed with the court
or on the motion of a party. These orders may be renewed, upon the
request of a party, for a duration of not more than three years,
without a showing of any further harassment since the issuance of the
original order, subject to termination or modification by further
order of the court either on written stipulation filed with the court
or on the motion of a party. The request for renewal may be brought
at any time within the three months before the expiration of the
order.
(2) The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of
issuance.
(3) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party who
is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005, of the proceeding by personal
service or, if the protected party has satisfied the requirements of
Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1
of the Government Code, by service on the Secretary of State. If the
party who is protected by the order cannot be notified prior to the
hearing for modification or termination of the protective order, the
court shall deny the motion to modify or terminate the order without
prejudice or continue the hearing until the party who is protected
can be properly noticed and may, upon a showing of good cause,
specify another method for service of process that is reasonably
designed to afford actual notice to the protected party. The
protected party may waive his or her right to notice if he or she is
physically present in court and does not challenge the sufficiency of
the notice.
(k) This section does not preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(l) In a proceeding under this section if there are
allegations of unlawful violence or credible threats of violence, a
support person may accompany a party in court and, if the party is
not represented by an attorney, may sit with the party at the table
that is generally reserved for the party and the party's attorney.
The support person is present to provide moral and emotional support
for a person who alleges he or she is a victim of violence. The
support person is not present as a legal adviser and may not provide
legal advice. The support person may assist the person who alleges he
or she is a victim of violence in feeling more confident that he or
she will not be injured or threatened by the other party during the
proceedings if the person who alleges he or she is a victim of
violence and the other party are required to be present in close
proximity. This subdivision does not preclude the court from
exercising its discretion to remove the support person from the
courtroom if the court believes the support person is prompting,
swaying, or influencing the party assisted by the support person.
(m) Upon the filing of a petition for an injunction under this
section, the respondent shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may for good cause, on motion of the petitioner
or on its own motion, shorten the time for service on the respondent.
(n) A notice of hearing under this section shall notify the
respondent that if he or she does not attend the hearing, the court
may make orders against him or her that could last up to three years.
(o) (1) The court may, upon the filing of a declaration by the
petitioner that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall remain in effect until the date set for the hearing.
(2) The reissued order shall state on its face the date of
expiration of the order.
(p) (1) If a respondent, named in a restraining order issued after
a hearing, has not been served personally with the order but has
received actual notice of the existence and substance of the order
through personal appearance in court to hear the terms of the order
from the court, no additional proof of service is required for
enforcement of the order.
(2) If the respondent named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based on the temporary
restraining order, but the respondent does not appear at the hearing,
either personally or by an attorney, and the terms and conditions of
the restraining order or protective order issued at the hearing are
identical to the temporary restraining order, except for the duration
of the order, then the restraining order or protective order issued
at the hearing may be served on the respondent by first-class mail
sent to the respondent at the most current address for the respondent
available to the court.
(3) The Judicial Council form for temporary orders issued pursuant
to this subdivision shall contain a statement in substantially the
following form:
"If you have been personally served with this temporary
restraining order and notice of hearing, but you do not appear at the
hearing either in person or by a lawyer, and a restraining order
that is the same as this temporary restraining order except for the
expiration date is issued at the hearing, a copy of the restraining
order will be served on you by mail at the following address: ____.
If that address is not correct or you wish to verify that the
temporary restraining order was converted to a restraining order at
the hearing without substantive change and to find out the duration
of that order, contact the clerk of the court."
(q) (1) Information on any temporary restraining order or
injunction relating to civil harassment issued by a court pursuant to
this section shall be transmitted to the Department of Justice in
accordance with either paragraph (2) or (3).
(2) The court shall order the petitioner or the attorney for the
petitioner to deliver a copy of an order issued under this section,
or reissuance, extension, modification, or termination of the order,
and any subsequent proof of service, by the close of the business day
on which the order, reissuance, extension, modification, or
termination was made, to a law enforcement agency having jurisdiction
over the residence of the petitioner and to any additional law
enforcement agencies within the court's discretion as are requested
by the petitioner.
(3) Alternatively, the court or its designee shall transmit,
within one business day, to law enforcement personnel all information
required under subdivision (b) of Section 6380 of the Family Code
regarding any order issued under this section, or a reissuance,
extension, modification, or termination of the order, and any
subsequent proof of service, by either one of the following methods:
(A) Transmitting a physical copy of the order or proof of service
to a local law enforcement agency authorized by the Department of
Justice to enter orders into the California Law Enforcement
Telecommunications System (CLETS).
(B) With the approval of the Department of Justice, entering the
order or proof of service into CLETS directly.
(4) Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported
harassment.
(5) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported harassment involving
the parties to the proceeding. The petitioner shall provide the
officer with an endorsed copy of the order and a proof of service
that the officer shall complete and send to the issuing court.
(6) Upon receiving information at the scene of an incident of
harassment that a protective order has been issued under this
section, or that a person who has been taken into custody is the
subject of an order, if the protected person cannot produce a
certified copy of the order, a law enforcement officer shall
immediately attempt to verify the existence of the order.
(7) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and shall at that
time also enforce the order. Verbal notice of the terms of the order
shall constitute service of the order and is sufficient notice for
the purposes of this section and for the purposes of Section 29825 of
the Penal Code.
(r) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(s) Any willful disobedience of any temporary restraining order or
injunction granted under this section is punishable pursuant to
Section 273.6 of the Penal Code.
(t) (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 or ammunition 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.
(3) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive, a firearm or ammunition while the
protective order is in effect is punishable pursuant to Section 29825
of the Penal Code.
(u) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code or by Division 10 (commencing with
Section 6200) of the Family Code. This section does not preclude a
petitioner from using other existing civil remedies.
(v) (1) The Judicial Council shall develop forms, instructions,
and rules relating to matters governed by this section. The petition
and response forms shall be simple and concise, and their use by
parties in actions brought pursuant to this section shall be
mandatory.
(2) A temporary restraining order or injunction relating to civil
harassment issued by a court pursuant to this section shall be issued
on forms adopted by the Judicial Council of California and that have
been approved by the Department of Justice pursuant to subdivision
(i) of Section 6380 of the Family Code. However, the fact that an
order issued by a court pursuant to this section was not issued on
forms adopted by the Judicial Council and approved by the Department
of Justice shall not, in and of itself, make the order unenforceable.
(w) There is no filing fee for a petition that alleges that a
person has inflicted or threatened violence against the petitioner,
or stalked the petitioner, or acted or spoken in any other manner
that has placed the petitioner in reasonable fear of violence, and
that seeks a protective or restraining order or injunction
restraining stalking or future violence or threats of violence, in
any action brought pursuant to this section. No fee shall be paid for
a subpoena filed in connection with a petition alleging these acts.
No fee shall be paid for filing a response to a petition alleging
these acts.
(x) (1) Subject to paragraph (4) of subdivision (b) of Section
6103.2 of the Government Code, there shall be no fee for the service
of process by a sheriff or marshal of a protective order, restraining
order, or injunction to be issued, if either of the following
conditions applies:
(A) The protective order, restraining order, or injunction issued
pursuant to this section is based upon stalking, as prohibited by
Section 646.9 of the Penal Code.
(B) The protective order, restraining order, or injunction issued
pursuant to this section is based upon unlawful violence or a
credible threat of violence.
(2) The Judicial Council shall prepare and develop forms for
persons who wish to avail themselves of the services described in
this subdivision.
SEC. 13. Section 527.8 of the Code of Civil Procedure is amended
to read:
527.8. (a) Any employer, whose employee has suffered unlawful
violence or a credible threat of violence from any individual, that
can reasonably be construed to be carried out or to have been carried
out at the workplace, may seek a temporary restraining order and an
injunction on behalf of the employee and, at the discretion of the
court, any number of other employees at the workplace, and, if
appropriate, other employees at other workplaces of the employer.
(b) For the purposes of this section:
(1) "Course of conduct" is a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including following or stalking an employee to
or from the place of work; entering the workplace; following an
employee during hours of employment; making telephone calls to an
employee; or sending correspondence to an employee by any means,
including, but not limited to, the use of the public or private
mails, interoffice mail, facsimile, or computer email.
(2) "Credible threat of violence" is a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
(3) "Employer" and "employee" mean persons defined in Section 350
of the Labor Code. "Employer" also includes a federal agency, the
state, a state agency, a city, county, or district, and a private,
public, or quasi-public corporation, or any public agency thereof or
therein. "Employee" also includes the members of boards of directors
of private, public, and quasi-public corporations and elected and
appointed public officers. For purposes of this section only,
"employee" also includes a volunteer or independent contractor who
performs services for the employer at the employer's worksite.
(4) "Petitioner" means the employer that petitions under
subdivision (a) for a temporary restraining order and injunction.
(5) "Respondent" means the person against whom the temporary
restraining order and injunction are sought and, if the petition is
granted, the restrained person.
(6) "Temporary restraining order" and "injunction" mean orders
that include any of the following restraining orders, whether issued
ex parte or after notice and hearing:
(A) An order enjoining a party from harassing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, abusing, telephoning, including, but not
limited to, making annoying telephone calls as described in Section
653m of the Penal Code, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, or coming within
a specified distance of, or disturbing the peace of, the employee.
(B) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
subparagraph (A).
(7) "Unlawful violence" is any assault or battery, or stalking as
prohibited in Section 646.9 of the Penal Code, but shall not include
lawful acts of self-defense or defense of others.
(c) This section does not permit a court to issue a temporary
restraining order or injunction prohibiting speech or other
activities that are constitutionally protected, or otherwise
protected by Section 527.3 or any other provision of law.
(d) In the discretion of the court, on a showing of good cause, a
temporary restraining order or injunction issued under this section
may include other named family or household members, or other persons
employed at the employee's workplace or workplaces.
(e) Upon filing a petition for an injunction under this section,
the petitioner may obtain a temporary restraining order in accordance
with subdivision (a) of Section 527, if the petitioner also files a
declaration that, to the satisfaction of the court, shows reasonable
proof that an employee has suffered unlawful violence or a credible
threat of violence by the respondent, and that great or irreparable
harm would result to an employee. The temporary restraining order may
include any of the protective orders described in paragraph (6) of
subdivision (b).
(f) A request for the issuance of a temporary restraining order
without notice under this section shall be granted or denied on the
same day that the petition is submitted to the court, unless the
petition is filed too late in the day to permit effective review, in
which case the order shall be granted or denied on the next day of
judicial business in sufficient time for the order to be filed that
day with the clerk of the court.
(g) A temporary restraining order granted under this section shall
remain in effect, at the court's discretion, for a period not to
exceed 21 days, or if the court extends the time for hearing under
subdivision (h), not to exceed 25 days, unless otherwise modified or
terminated by the court.
(h) Within 21 days, or if good cause appears to the court, 25 days
from the date that a petition for a temporary order is granted or
denied, a hearing shall be held on the petition for the injunction.
If no request for temporary orders is made, the hearing shall be held
within 21 days, or, if good cause appears to the court, 25 days,
from the date that the petition is filed.
(i) The respondent may file a response that explains, excuses,
justifies, or denies the alleged unlawful violence or credible
threats of violence.
(j) At the hearing, the judge shall receive any testimony that is
relevant and may make an independent inquiry. Moreover, if the
respondent is a current employee of the entity requesting the
injunction, the judge shall receive evidence concerning the employer'
s decision to retain, terminate, or otherwise discipline the
respondent. If the judge finds by clear and convincing evidence that
the respondent engaged in unlawful violence or made a credible threat
of violence, an injunction shall issue prohibiting further unlawful
violence or threats of violence.
(k) (1) In the discretion of the court, an order issued after
notice and hearing under this section may have a duration of not more
than three years, subject to termination or modification by further
order of the court either on written stipulation filed with the court
or on the motion of a party. These orders may be renewed, upon the
request of a party, for a duration of not more than three years,
without a showing of any further violence or threats of violence
since the issuance of the original order, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party. The
request for renewal may be brought at any time within the three
months before the expiration of the order.
(2) The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of
issuance.
(3) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party who
is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005, of the proceeding by personal
service or, if the protected party has satisfied the requirements of
Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1
of the Government Code, by service on the Secretary of State. If the
party who is protected by the order cannot be notified prior to the
hearing for modification or termination of the protective order, the
court shall deny the motion to modify or terminate the order without
prejudice or continue the hearing until the party who is protected
can be properly noticed and may, upon a showing of good cause,
specify another method for service of process that is reasonably
designed to afford actual notice to the protected party. The
protected party may waive his or her right to notice if he or she is
physically present in court and does not challenge the sufficiency of
the notice.
(l) This section does not preclude either party from
representation by private counsel or from appearing on his or her own
behalf.
(m) Upon filing of a petition for an injunction under this
section, the respondent shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may, for good cause, on motion of the petitioner
or on its own motion, shorten the time for service on the respondent.
(n) A notice of hearing under this section shall notify the
respondent that, if he or she does not attend the hearing, the court
may make orders against him or her that could last up to three years.
(o) (1) The court may, upon the filing of a declaration by the
petitioner that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall remain in effect until the date set for the hearing.
(2) The reissued order shall state on its face the date of
expiration of the order.
(p) (1) If a respondent, named in a restraining order issued under
this section after a hearing, has not been served personally with
the order but has received actual notice of the existence and
substance of the order through personal appearance in court to hear
the terms of the order from the court, no additional proof of service
is required for enforcement of the order.
(2) If the respondent named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based on the temporary
restraining order, but the person does not appear at the hearing,
either personally or by an attorney, and the terms and conditions of
the restraining order or protective order issued at the hearing are
identical to the temporary restraining order, except for the duration
of the order, then the restraining order or protective order issued
at the hearing may be served on the person by first-class mail sent
to that person at the most current address for the person available
to the court.
(3) The Judicial Council form for temporary orders issued pursuant
to this subdivision shall contain a statement in substantially the
following form:
"If you have been personally served with this temporary
restraining order and notice of hearing, but you do not appear at the
hearing either in person or by a lawyer, and a restraining order
that is the same as this restraining order except for the expiration
date is issued at the hearing, a copy of the order will be served on
you by mail at the following address: ____.
If that address is not correct or you wish to verify that the
temporary restraining order was converted to a restraining order at
the hearing without substantive change and to find out the duration
of that order, contact the clerk of the court."
(q) (1) Information on any temporary restraining order or
injunction relating to workplace violence issued by a court pursuant
to this section shall be transmitted to the Department of Justice in
accordance with either paragraph (2) or (3).
(2) The court shall order the petitioner or the attorney for the
petitioner to deliver a copy of any order issued under this section,
or a reissuance, extension, modification, or termination of the
order, and any subsequent proof of service, by the close of the
business day on which the order, reissuance, extension, modification,
or termination was made, to each law enforcement agency having
jurisdiction over the residence of the petitioner and to any
additional law enforcement agencies within the court's discretion as
are requested by the petitioner.
(3) Alternatively, the court or its designee shall transmit,
within one business day, to law enforcement personnel all information
required under subdivision (b) of Section 6380 of the Family Code
regarding any order issued under this section, or a reissuance,
extension, modification, or termination of the order, and any
subsequent proof of service, by either one of the following methods:
(A) Transmitting a physical copy of the order or proof of service
to a local law enforcement agency authorized by the Department of
Justice to enter orders into the California Law Enforcement
Telecommunications System (CLETS).
(B) With the approval of the Department of Justice, entering the
order or proof of service into CLETS directly.
(4) Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported
unlawful violence or a credible threat of violence.
(5) At the request of the petitioner, an order issued under this
section shall be served on the respondent, regardless of whether the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported unlawful violence or
a credible threat of violence involving the parties to the
proceedings. The petitioner shall provide the officer with an
endorsed copy of the order and proof of service that the officer
shall complete and send to the issuing court.
(6) Upon receiving information at the scene of an incident of
unlawful violence or a credible threat of violence that a protective
order has been issued under this section, or that a person who has
been taken into custody is the subject of an order, if the petitioner
or the protected person cannot produce an endorsed copy of the
order, a law enforcement officer shall immediately attempt to verify
the existence of the order.
(7) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and obtain the
respondent's address. The law enforcement officer shall at that time
also enforce the order, but may not arrest or take the respondent
into custody for acts in violation of the order that were committed
prior to the verbal notice of the terms and conditions of the order.
The law enforcement officer's verbal notice of the terms of the order
shall constitute service of the order and constitutes sufficient
notice for the purposes of this section and for the purposes of
Section 29825 of the Penal Code. The petitioner shall mail an
endorsed copy of the order to the respondent's mailing address
provided to the law enforcement officer within one business day of
the reported incident of unlawful violence or a credible threat of
violence at which a verbal notice of the terms of the order was
provided by a law enforcement officer.
(r) (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 or ammunition 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.
(3) Every person who owns, possesses, purchases or receives, or
attempts to purchase or receive a firearm or ammunition while the
protective order is in effect is punishable pursuant to Section 29825
of the Penal Code.
(s) Any intentional disobedience of any temporary restraining
order or injunction granted under this section is punishable pursuant
to Section 273.6 of the Penal Code.
(t) Nothing in this section may be construed as expanding,
diminishing, altering, or modifying the duty, if any, of an employer
to provide a safe workplace for employees and other persons.
(u) (1) The Judicial Council shall develop forms, instructions,
and rules for relating to matters governed by this section. The forms
for the petition and response shall be simple and concise, and their
use by parties in actions brought pursuant to this section shall be
mandatory.
(2) A temporary restraining order or injunction relating to
unlawful violence or a credible threat of violence issued by a court
pursuant to this section shall be issued on forms adopted by the
Judicial Council of California and that have been approved by the
Department of Justice
pursuant to subdivision (i) of Section 6380 of the Family Code.
However, the fact that an order issued by a court pursuant to this
section was not issued on forms adopted by the Judicial Council and
approved by the Department of Justice shall not, in and of itself,
make the order unenforceable.
(v) There is no filing fee for a petition that alleges that a
person has inflicted or threatened violence against an employee of
the petitioner, or stalked the employee, or acted or spoken in any
other manner that has placed the employee in reasonable fear of
violence, and that seeks a protective or restraining order or
injunction restraining stalking or future violence or threats of
violence, in any action brought pursuant to this section. No fee
shall be paid for a subpoena filed in connection with a petition
alleging these acts. No fee shall be paid for filing a response to a
petition alleging these acts.
(w) (1) Subject to paragraph (4) of subdivision (b) of Section
6103.2 of the Government Code, there shall be no fee for the service
of process by a sheriff or marshal of a temporary restraining order
or injunction to be issued pursuant to this section if either of the
following conditions applies:
(A) The temporary restraining order or injunction issued pursuant
to this section is based upon stalking, as prohibited by Section
646.9 of the Penal Code.
(B) The temporary restraining order or injunction issued pursuant
to this section is based on unlawful violence or a credible threat of
violence.
(2) The Judicial Council shall prepare and develop forms for
persons who wish to avail themselves of the services described in
this subdivision.
SEC. 14. Section 527.85 of the Code of Civil Procedure is amended
to read:
527.85. (a) Any chief administrative officer of a postsecondary
educational institution, or an officer or employee designated by the
chief administrative officer to maintain order on the school campus
or facility, a student of which has suffered a credible threat of
violence made off the school campus or facility from any individual,
which can reasonably be construed to be carried out or to have been
carried out at the school campus or facility, may, with the written
consent of the student, seek a temporary restraining order and an
injunction, on behalf of the student and, at the discretion of the
court, any number of other students at the campus or facility who are
similarly situated.
(b) For the purposes of this section, the following definitions
shall apply:
(1) "Chief administrative officer" means the principal, president,
or highest ranking official of the postsecondary educational
institution.
(2) "Course of conduct" means a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including any of the following:
(A) Following or stalking a student to or from school.
(B) Entering the school campus or facility.
(C) Following a student during school hours.
(D) Making telephone calls to a student.
(E) Sending correspondence to a student by any means, including,
but not limited to, the use of the public or private mails,
interoffice mail, facsimile, or computer email.
(3) "Credible threat of violence" means a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
(4) "Petitioner" means the chief administrative officer, or his or
her designee, who petitions under subdivision (a) for a temporary
restraining order and injunction.
(5) "Postsecondary educational institution" means a private
institution of vocational, professional, or postsecondary education.
(6) "Respondent" means the person against whom the temporary
restraining order and injunction are sought and, if the petition is
granted, the restrained person.
(7) "Student" means an adult currently enrolled in or applying for
admission to a postsecondary educational institution.
(8) "Temporary restraining order" and "injunction" mean orders
that include any of the following restraining orders, whether issued
ex parte, or after notice and hearing:
(A) An order enjoining a party from harassing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, abusing, telephoning, including, but not
limited to, making annoying telephone calls as described in Section
653m of the Penal Code, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, or coming within
a specified distance of, or disturbing the peace of, the student.
(B) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
subparagraph (A).
(9) "Unlawful violence" means any assault or battery, or stalking
as prohibited in Section 646.9 of the Penal Code, but shall not
include lawful acts of self-defense or defense of others.
(c) This section does not permit a court to issue a temporary
restraining order or injunction prohibiting speech or other
activities that are constitutionally protected, or otherwise
protected by Section 527.3 or any other provision of law.
(d) In the discretion of the court, on a showing of good cause, a
temporary restraining order or injunction issued under this section
may include other named family or household members of the student,
or other students at the campus or facility.
(e) Upon filing a petition for an injunction under this section,
the petitioner may obtain a temporary restraining order in accordance
with subdivision (a) of Section 527, if the petitioner also files a
declaration that, to the satisfaction of the court, shows reasonable
proof that a student has suffered a credible threat of violence made
off the school campus or facility by the respondent, and that great
or irreparable harm would result to the student. The temporary
restraining order may include any of the protective orders described
in paragraph (8) of subdivision (b).
(f) A request for the issuance of a temporary restraining order
without notice under this section shall be granted or denied on the
same day that the petition is submitted to the court, unless the
petition is filed too late in the day to permit effective review, in
which case the order shall be granted or denied on the next day of
judicial business in sufficient time for the order to be filed that
day with the clerk of the court.
(g) A temporary restraining order granted under this section shall
remain in effect, at the court's discretion, for a period not to
exceed 21 days, or if the court extends the time for hearing under
subdivision (h), not to exceed 25 days, unless otherwise modified or
terminated by the court.
(h) Within 21 days, or if good cause appears to the court, within
25 days, from the date that a petition for a temporary order is
granted or denied, a hearing shall be held on the petition for the
injunction. If no request for temporary orders is made, the hearing
shall be held within 21 days, or if good cause appears to the court,
25 days, from the date the petition is filed.
(i) The respondent may file a response that explains, excuses,
justifies, or denies the alleged credible threats of violence.
(j) At the hearing, the judge shall receive any testimony that is
relevant and may make an independent inquiry. Moreover, if the
respondent is a current student of the entity requesting the
injunction, the judge shall receive evidence concerning the decision
of the postsecondary educational institution decision to retain,
terminate, or otherwise discipline the respondent. If the judge finds
by clear and convincing evidence that the respondent made a credible
threat of violence off the school campus or facility, an injunction
shall be issued prohibiting further threats of violence.
(k) (1) In the discretion of the court, an order issued after
notice and hearing under this section may have a duration of not more
than three years, subject to termination or modification by further
order of the court either on written stipulation filed with the court
or on the motion of a party. These orders may be renewed, upon the
request of a party, for a duration of not more than three years,
without a showing of any further violence or threats of violence
since the issuance of the original order, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party. The
request for renewal may be brought at any time within the three
months before the expiration of the order.
(2) The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of
issuance.
(3) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party who
is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005, of the proceeding by personal
service or, if the protected party has satisfied the requirements of
Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1
of the Government Code, by service on the Secretary of State. If the
party who is protected by the order cannot be notified prior to the
hearing for modification or termination of the protective order, the
court shall deny the motion to modify or terminate the order without
prejudice or continue the hearing until the party who is protected
can be properly noticed and may, upon a showing of good cause,
specify another method for service of process that is reasonably
designed to afford actual notice to the protected party. The
protected party may waive his or her right to notice if he or she is
physically present in court and does not challenge the sufficiency of
the notice.
(l) This section does not preclude either party from
representation by private counsel or from appearing on his or her own
behalf.
(m) Upon filing of a petition for an injunction under this
section, the respondent shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may, for good cause, on motion of the petitioner
or on its own motion, shorten the time for service on the respondent.
(n) A notice of hearing under this section shall notify the
respondent that if he or she does not attend the hearing, the court
may make orders against him or her that could last up to three years.
(o) (1) The court may, upon the filing of a declaration by the
petitioner that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall remain in effect until the date set for the hearing.
(2) The reissued order shall state on its face the date of
expiration of the order.
(p) (1) If a respondent, named in an order issued under this
section after a hearing, has not been served personally with the
order but has received actual notice of the existence and substance
of the order through personal appearance in court to hear the terms
of the order from the court, no additional proof of service is
required for enforcement of the order.
(2) If the respondent named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based on the temporary
restraining order, but the respondent does not appear at the hearing,
either personally or by an attorney, and the terms and conditions of
the restraining order or protective order issued at the hearing are
identical to the temporary restraining order, except for the duration
of the order, then the restraining order or protective order issued
at the hearing may be served on the respondent by first-class mail
sent to that person at the most current address for the respondent
available to the court.
(3) The Judicial Council form for temporary orders issued pursuant
to this subdivision shall contain a statement in substantially the
following form:
"If you have been personally served with a temporary restraining
order and notice of hearing, but you do not appear at the hearing
either in person or by a lawyer, and a restraining order that is the
same as this temporary restraining order except for the expiration
date is issued at the hearing, a copy of the order will be served on
you by mail at the following address:____.
If that address is not correct or you wish to verify that the
temporary restraining order was converted to a restraining order at
the hearing without substantive change and to find out the duration
of that order, contact the clerk of the court."
(q) (1) Information on any temporary restraining order or
injunction relating to schoolsite violence issued by a court pursuant
to this section shall be transmitted to the Department of Justice in
accordance with either paragraph (2) or (3).
(2) The court shall order the petitioner or the attorney for the
petitioner to deliver a copy of any order issued under this section,
or a reissuance, extension, modification, or termination of the
order, and any subsequent proof of service, by the close of the
business day on which the order, reissuance, or termination of the
order, and any proof of service, was made, to each law enforcement
agency having jurisdiction over the residence of the petition and to
any additional law enforcement agencies within the court's discretion
as are requested by the petitioner.
(3) Alternatively, the court or its designee shall transmit,
within one business day, to law enforcement personnel all information
required under subdivision (b) of Section 6380 of the Family Code
regarding any order issued under this section, or a reissuance,
extension, modification, or termination of the order, and any
subsequent proof of service, by either one of the following methods:
(A) Transmitting a physical copy of the order or proof of service
to a local law enforcement agency authorized by the Department of
Justice to enter orders into the California Law Enforcement
Telecommunications System (CLETS).
(B) With the approval of the Department of Justice, entering the
order of proof of service into CLETS directly.
(4) Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported
unlawful violence or a credible threat of violence.
(5) At the request of the petitioner, an order issued under this
section shall be served on the respondent, regardless of whether the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported unlawful violence or
a credible threat of violence involving the parties to the
proceedings. The petitioner shall provide the officer with an
endorsed copy of the order and proof of service that the officer
shall complete and send to the issuing court.
(6) Upon receiving information at the scene of an incident of
unlawful violence or a credible threat of violence that a protective
order has been issued under this section, or that a person who has
been taken into custody is the subject of an order, if the petitioner
or the protected person cannot produce an endorsed copy of the
order, a law enforcement officer shall immediately attempt to verify
the existence of the order.
(7) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and obtain the
respondent's address. The law enforcement officer shall at that time
also enforce the order, but may not arrest or take the respondent
into custody for acts in violation of the order that were committed
prior to the verbal notice of the terms and conditions of the order.
The law enforcement officer's verbal notice of the terms of the order
shall constitute service of the order and constitutes sufficient
notice for the purposes of this section, and Section 29825 of the
Penal Code. The petitioner shall mail an endorsed copy of the order
to the respondent's mailing address provided to the law enforcement
officer within one business day of the reported incident of unlawful
violence or a credible threat of violence at which a verbal notice of
the terms of the order was provided by a law enforcement officer.
(r) (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 or ammunition 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.
(3) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm or ammunition while the
protective order is in effect is punishable pursuant to Section 29825
of the Penal Code.
(s) Any intentional disobedience of any temporary restraining
order or injunction granted under this section is punishable pursuant
to Section 273.6 of the Penal Code.
(t) Nothing in this section may be construed as expanding,
diminishing, altering, or modifying the duty, if any, of a
postsecondary educational institution to provide a safe environment
for students and other persons.
(u) (1) The Judicial Council shall develop forms, instructions,
and rules relating to matters governed by this section. The forms for
the petition and response shall be simple and concise, and their use
by parties in actions brought pursuant to this section shall be
mandatory.
(2) A temporary restraining order or injunction relating to
unlawful violence or a credible threat of violence issued by a court
pursuant to this section 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.
(v) There is no filing fee for a petition that alleges that a
person has threatened violence against a student of the petitioner,
or stalked the student, or acted or spoken in any other manner that
has placed the student in reasonable fear of violence, and that seeks
a protective or restraining order or injunction restraining stalking
or future threats of violence, in any action brought pursuant to
this section. No fee shall be paid for a subpoena filed in connection
with a petition alleging these acts. No fee shall be paid for filing
a response to a petition alleging these acts.
(w) (1) Subject to paragraph (4) of subdivision (b) of Section
6103.2 of the Government Code, there shall be no fee for the service
of process by a sheriff or marshal of a temporary restraining order
or injunction to be issued pursuant to this section if either of the
following conditions applies:
(A) The temporary restraining order or injunction issued pursuant
to this section is based upon stalking, as prohibited by Section
646.9 of the Penal Code.
(B) The temporary restraining order or injunction issued pursuant
to this section is based upon a credible threat of violence.
(2) The Judicial Council shall prepare and develop forms for
persons who wish to avail themselves of the services described in
this subdivision.
SEC. 15. Section 1287 of the Code of Civil Procedure is amended to
read:
1287. If the award is vacated, the court may order a rehearing
before new arbitrators. If the award is vacated on the grounds set
forth in paragraph (4) or (5) of subdivision (a) of Section 1286.2,
the court with the consent of the parties to the court proceeding may
order a rehearing before the original arbitrators.
If the arbitration agreement requires that the award be made
within a specified period of time, the rehearing may nevertheless be
held and the award made within an equal period of time beginning with
the date of the order for rehearing but only if the court determines
that the purpose of the time limit agreed upon by the parties to the
arbitration agreement will not be frustrated by the application of
this provision.
SEC. 16. Section 1514 of the Code of Civil Procedure is amended to
read:
1514. (a) The contents of, or the proceeds of sale of the
contents of, any safe deposit box or any other safekeeping
repository, held in this state by a business association, escheat to
this state if unclaimed by the owner for more than three years from
the date on which the lease or rental period on the box or other
repository expired, or from the date of termination of any agreement
because of which the box or other repository was furnished to the
owner without cost, whichever last occurs.
(b) If a business association has in its records an address for an
apparent owner of the contents of, or the proceeds of sale of the
contents of, a safe deposit box or other safekeeping repository
described in subdivision (a), and the records of the business
association do not disclose the address to be inaccurate, the
business association shall make reasonable efforts to notify the
owner by mail, or, if the owner has consented to electronic notice,
electronically, that the owner's contents, or the proceeds of the
sale of the contents, will escheat to the state pursuant to this
section. The business association shall give notice not less than 6
months and not more than 12 months before the time the contents, or
the proceeds of the sale of the contents, become reportable to the
Controller in accordance with this chapter.
(c) The face of the notice shall contain a heading at the top that
reads as follows: "THE STATE OF CALIFORNIA REQUIRES US TO NOTIFY YOU
THAT YOUR UNCLAIMED PROPERTY MAY BE TRANSFERRED TO THE STATE IF YOU
DO NOT CONTACT US," or substantially similar language. The notice
required by this subdivision shall specify the date that the property
will escheat and the effects of escheat, including the necessity for
filing a claim for the return of the property. The notice required
by this section shall, in boldface type or in a font a minimum of two
points larger than the rest of the notice, exclusive of the heading,
do all of the following:
(1) Identify the safe deposit box or other safekeeping repository
by number or identifier.
(2) State that the lease or rental period on the box or repository
has expired or the agreement has terminated.
(3) Indicate that the contents of, or the proceeds of sale of the
contents of, the safe deposit box or other safekeeping repository
will escheat to the state unless the owner requests the contents or
their proceeds.
(4) Specify that the Unclaimed Property Law requires business
associations to transfer the contents of, or the proceeds of sale of
the contents of, a safe deposit box or other safekeeping repository
to the Controller if they remain unclaimed for more than three years.
(5) Advise the owner to make arrangements with the business
association to either obtain possession of the contents of, or the
proceeds of sale of the contents of, the safe deposit box or other
safekeeping repository, or enter into a new agreement with the
business association to establish a leasing or rental arrangement. If
an owner fails to establish such an arrangement prior to the end of
the period described in subdivision (a), the contents or proceeds
shall escheat to this state.
(d) In addition to the notice required pursuant to subdivision
(b), the business association may give additional notice in
accordance with subdivision (c) at any time between the date on which
the lease or rental period for the safe deposit box or repository
expired, or from the date of the termination of any agreement,
through which the box or other repository was furnished to the owner
without cost, whichever is earlier, and the date the business
association transfers the contents of, or the proceeds of sale of the
contents of, the safe deposit box or other safekeeping repository to
the Controller.
(e) The contents of, or the proceeds of sale of the contents of, a
safe deposit box or other safekeeping repository shall not escheat
to the state if, as of June 30 or the fiscal yearend next preceding
the date on which a report is required to be filed under Section
1530, the owner has owned, with a banking organization providing the
safe deposit box or other safekeeping repository, any demand,
savings, or matured time deposit, or account subject to a negotiable
order of withdrawal, which has not escheated under Section 1513 and
is not reportable under subdivision (d) of Section 1530.
(f) The contents of, or the proceeds of sale of the contents of, a
safe deposit box or other safekeeping repository shall not escheat
to the state if, as of June 30 or the fiscal yearend next preceding
the date on which a report is required to be filed under Section
1530, the owner has owned, with a financial organization providing
the safe deposit box or other safekeeping repository, any demand,
savings, or matured time deposit, or matured investment certificate,
or account subject to a negotiable order of withdrawal, or other
interest in a financial organization or any deposit made therewith,
and any interest or dividends thereon, which has not escheated under
Section 1513 and is not reportable under subdivision (d) of Section
1530.
(g) The contents of, or the proceeds of sale of the contents of, a
safe deposit box or other safekeeping repository shall not escheat
to the state if, as of June 30 or the fiscal yearend next preceding
the date on which a report is required to be filed under Section
1530, the owner has owned, with a banking or financial organization
providing the safe deposit box or other safekeeping repository, any
funds in an individual retirement account or under a retirement plan
for self-employed individuals or similar account or plan pursuant to
the internal revenue laws of the United States or the income tax laws
of this state, which has not escheated under Section 1513 and is not
reportable under subdivision (d) of Section 1530.
(h) In the event the owner is in default under the safe deposit
box or other safekeeping repository agreement and the owner has owned
any demand, savings, or matured
time deposit, account, or plan described in subdivision (e),
(f), or (g), the banking or financial organization may pay or
deliver the contents of, or the proceeds of sale of the contents of,
the safe deposit box or other safekeeping repository to the owner
after deducting any amount due and payable from those proceeds under
that agreement. Upon making that payment or delivery under this
subdivision, the banking or financial organization shall be relieved
of all liability to the extent of the value of those contents or
proceeds.
(i) For new accounts opened for a safe deposit box or other
safekeeping repository with a business association on and after
January 1, 2011, the business association shall provide a written
notice to the person leasing the safe deposit box or safekeeping
repository informing the person that his or her property, or the
proceeds of sale of the property, may be transferred to the
appropriate state upon running of the time period specified by state
law from the date the lease or rental period on the safe deposit box
or repository expired, or from the date of termination of any
agreement because of which the box or other repository was furnished
to the owner without cost, whichever is earlier.
(j) A business association may directly escheat the contents of a
safe deposit box or other safekeeping repository without exercising
its rights under Article 2 (commencing with Section 1630) of Chapter
17 of Division 1 of the Financial Code.
SEC. 17. Section 2024.040 of the Code of Civil Procedure is
amended to read:
2024.040. (a) The time limit on completing discovery in an action
to be arbitrated under Chapter 2.5 (commencing with Section 1141.10)
of Title 3 of Part 3 is subject to Judicial Council Rule. After an
award in a case ordered to judicial arbitration, completion of
discovery is limited by Section 1141.24.
(b) This chapter does not apply to either of the following:
(1) Summary proceedings for obtaining possession of real property
governed by Chapter 4 (commencing with Section 1159) of Title 3 of
Part 3. Except as provided in Sections 2024.050 and 2024.060,
discovery in these proceedings shall be completed on or before the
fifth day before the date set for trial.
(2) Eminent domain proceedings governed by Title 7 (commencing
with Section 1230.010) of Part 3.
SEC. 18. Section 500 of the Corporations Code is amended to read:
500. (a) Neither a corporation nor any of its subsidiaries shall
make any distribution to the corporation's shareholders (Section 166)
unless the board of directors has determined in good faith either of
the following:
(1) The amount of retained earnings of the corporation immediately
prior to the distribution equals or exceeds the sum of (A) the
amount of the proposed distribution plus (B) the preferential
dividends arrears amount.
(2) Immediately after the distribution, the value of the
corporation's assets would equal or exceed the sum of its total
liabilities plus the preferential rights amount.
(b) For the purpose of applying paragraph (1) of subdivision (a)
to a distribution by a corporation, "preferential dividends arrears
amount" means the amount, if any, of cumulative dividends in arrears
on all shares having a preference with respect to payment of
dividends over the class or series to which the applicable
distribution is being made, provided that if the articles of
incorporation provide that a distribution can be made without regard
to preferential dividends arrears amount, then the preferential
dividends arrears amount shall be zero. For the purpose of applying
paragraph (2) of subdivision (a) to a distribution by a corporation,
"preferential rights amount" means the amount that would be needed if
the corporation were to be dissolved at the time of the distribution
to satisfy the preferential rights, including accrued but unpaid
dividends, of other shareholders upon dissolution that are superior
to the rights of the shareholders receiving the distribution,
provided that if the articles of incorporation provide that a
distribution can be made without regard to any preferential rights,
then the preferential rights amount shall be zero. In the case of a
distribution of cash or property in payment by the corporation in
connection with the purchase of its shares, (1) there shall be added
to retained earnings all amounts that had been previously deducted
therefrom with respect to obligations incurred in connection with the
corporation's repurchase of its shares and reflected on the
corporation's balance sheet, but not in excess of the principal of
the obligations that remain unpaid immediately prior to the
distribution and (2) there shall be deducted from liabilities all
amounts that had been previously added thereto with respect to the
obligations incurred in connection with the corporation's repurchase
of its shares and reflected on the corporation's balance sheet, but
not in excess of the principal of the obligations that will remain
unpaid after the distribution, provided that no addition to retained
earnings or deduction from liabilities under this subdivision shall
occur on account of any obligation that is a distribution to the
corporation's shareholders (Section 166) at the time the obligation
is incurred.
(c) The board of directors may base a determination that a
distribution is not prohibited under subdivision (a) or under Section
501 on any of the following:
(1) Financial statements prepared on the basis of accounting
practices and principles that are reasonable under the circumstances.
(2) A fair valuation.
(3) Any other method that is reasonable under the circumstances.
(d) The effect of a distribution under paragraph (1) or (2) of
subdivision (a) is measured as of the date the distribution is
authorized if the payment occurs within 120 days after the date of
authorization.
(e) (1) If terms of indebtedness provide that payment of principal
and interest is to be made only if, and to the extent that, payment
of a distribution to shareholders could then be made under this
section, indebtedness of a corporation, including indebtedness issued
as a distribution, is not a liability for purposes of determinations
made under paragraph (2) of subdivision (a).
(2) If indebtedness is issued as a distribution, each payment of
principal or interest on the indebtedness shall be treated as a
distribution, the effect of which is measured on the date the payment
of the indebtedness is actually made.
(f) This section does not apply to a corporation licensed as a
broker-dealer under Chapter 2 (commencing with Section 25210) of Part
3 of Division 1 of Title 4, if immediately after giving effect to
any distribution the corporation is in compliance with the net
capital rules of the Commissioner of Corporations and the Securities
and Exchange Commission.
SEC. 19. Section 2900 of the Corporations Code is amended to read:
2900. (a) As used in this section:
(1) "Flexible purpose corporation" includes an unincorporated
association.
(2) "Board" includes the managing body of an unincorporated
association.
(3) "Shareholder" includes a member of an unincorporated
association.
(4) "Shares" includes memberships in an unincorporated
association.
(b) No action may be instituted or maintained in right of any
domestic or foreign flexible purpose corporation under this section
by any party other than a shareholder of the flexible purpose
corporation.
(c) No action may be instituted or maintained in right of any
domestic or foreign flexible purpose corporation by any holder of
shares or of voting trust certificates of the flexible purpose
corporation unless both of the following conditions exist:
(1) The plaintiff alleges in the complaint that plaintiff was a
shareholder, of record or beneficially, or the holder of voting trust
certificates at the time of the transaction or any part thereof of
which plaintiff complains or that plaintiff's shares or voting trust
certificates thereafter devolved upon plaintiff by operation of law
from a holder who was a holder at the time of the transaction or any
part thereof complained of. Any shareholder who does not meet these
requirements may nevertheless be allowed, in the discretion of the
court, to maintain the action on a preliminary showing to and
determination by the court, by motion and after a hearing, at which
the court shall consider the evidence by affidavit or testimony, as
it deems material, of all of the following:
(A) There is a strong prima facie case in favor of the claim
asserted on behalf of the flexible purpose corporation.
(B) No other similar action has been or is likely to be
instituted.
(C) The plaintiff acquired the shares before there was disclosure
to the public or to the plaintiff of the wrongdoing of which
plaintiff complains.
(D) Unless the action can be maintained the defendant may retain a
gain derived from defendant's willful breach of a fiduciary duty.
(E) The requested relief will not result in unjust enrichment of
the flexible purpose corporation or any shareholder of the flexible
purpose corporation.
(2) The plaintiff alleges in the complaint with particularity
plaintiff's efforts to secure from the board the action as plaintiff
desires, or the reasons for not making that effort, and alleges
further that plaintiff has either informed the flexible purpose
corporation or the board in writing of the ultimate facts of each
cause of action against each defendant or delivered to the flexible
purpose corporation or the board a true copy of the complaint which
plaintiff proposes to file.
(d) In any action referred to in subdivision (b), at any time
within 30 days after service of summons upon the flexible purpose
corporation or upon any defendant who is an officer or director of
the flexible purpose corporation, or held that office at the time of
the acts complained of, the flexible purpose corporation or the
defendant may move the court for an order, upon notice and hearing,
requiring the plaintiff to furnish a bond as hereinafter provided.
The motion shall be based upon one or both of the following grounds:
(1) There is no reasonable possibility that the prosecution of the
cause of action alleged in the complaint against the moving party
will benefit the flexible purpose corporation or its shareholders.
(2) The moving party, if other than the flexible purpose
corporation, did not participate in the transaction complained of in
any capacity.
The court on application of the flexible purpose corporation or
any defendant may, for good cause shown, extend the 30-day period for
an additional period or periods not exceeding 60 days.
(e) At the hearing upon any motion pursuant to subdivision (c),
the court shall consider the evidence, written or oral, by witnesses
or affidavit, as may be material to the ground or grounds upon which
the motion is based, or to a determination of the probable reasonable
expenses, including attorney's fees, of the flexible purpose
corporation and the moving party that will be incurred in the defense
of the action. If the court determines, after hearing the evidence
adduced by the parties, that the moving party has established a
probability in support of any of the grounds upon which the motion is
based, the court shall fix the amount of the bond, not to exceed
fifty thousand dollars ($50,000), to be furnished by the plaintiff
for reasonable expenses, including attorney's fees, which may be
incurred by the moving party and the flexible purpose corporation in
connection with the action, including expenses for which the flexible
purpose corporation may become liable pursuant to Section 2702. A
ruling by the court on the motion shall not be a determination of any
issue in the action or of the merits thereof. If the court, upon the
motion, makes a determination that a bond shall be furnished by the
plaintiff as to any one or more defendants, the action shall be
dismissed as to the defendant or defendants, unless the bond required
by the court has been furnished within such reasonable time as may
be fixed by the court.
(f) If the plaintiff, either before or after a motion is made
pursuant to subdivision (c), or any order or determination pursuant
to the motion, furnishes a bond in the aggregate amount of fifty
thousand dollars ($50,000) to secure the reasonable expenses of the
parties entitled to make the motion, the plaintiff shall be deemed to
have complied with the requirements of this section and with any
order for a bond theretofore made, and any motion then pending shall
be dismissed and no further or additional bond shall be required.
(g) If a motion is filed pursuant to subdivision (c), no pleadings
need be filed by the flexible purpose corporation or any other
defendant and the prosecution of the action shall be stayed until 10
days after the motion has been disposed of.
SEC. 20. Section 6210 of the Corporations Code is amended to read:
6210. (a) Every corporation shall, within 90 days after the
filing of its original articles and biennially thereafter during the
applicable filing period, file, on a form prescribed by the Secretary
of State, a statement containing: (1) the name of the corporation
and the Secretary of State's file number; (2) the names and complete
business or residence addresses of its chief executive officer,
secretary, and chief financial officer; (3) the street address of its
principal office in this state, if any; (4) the mailing address of
the corporation, if different from the street address of its
principal executive office or if the corporation has no principal
office address in this state; and (5) if the corporation chooses to
receive renewal notices and any other notifications from the
Secretary of State by electronic mail instead of by United States
mail, a valid electronic mail address for the corporation or for the
corporation's designee to receive those notices.
(b) The statement required by subdivision (a) shall also
designate, as the agent of the corporation for the purpose of service
of process, a natural person residing in this state or any domestic
or foreign or foreign business corporation that has complied with
Section 1505 and whose capacity to act as an agent has not
terminated. If a natural person is designated, the statement shall
set forth the person's complete business or residence street address.
If a corporate agent is designated, no address for it shall be set
forth.
(c) For the purposes of this section, the applicable filing period
for a corporation shall be the calendar month during which its
original articles were filed and the immediately preceding five
calendar months. The Secretary of State shall provide a notice to
each corporation to comply with this section approximately three
months prior to the close of the applicable filing period. The notice
shall state the due date for compliance and shall be sent to the
last address of the corporation according to the records of the
Secretary of State or to the last electronic mail address according
to the records of the Secretary of State if the corporation has
elected to receive notices from the Secretary of State by electronic
mail. Neither the failure of the Secretary of State to send the
notice nor the failure of the corporation to receive it is an excuse
for failure to comply with this section.
(d) Whenever any of the information required by subdivision (a) is
changed, the corporation may file a current statement containing all
the information required by subdivisions (a) and (b). In order to
change its agent for service of process or the address of the agent,
the corporation must file a current statement containing all the
information required by subdivisions (a) and (b). Whenever any
statement is filed pursuant to this section, it supersedes any
previously filed statement and the statement in the articles as to
the agent for service of process and the address of the agent.
(e) The Secretary of State may destroy or otherwise dispose of any
statement filed pursuant to this section after it has been
superseded by the filing of a new statement.
(f) This section shall not be construed to place any person
dealing with the corporation on notice of, or under any duty to
inquire about, the existence or content of a statement filed pursuant
to this section.
SEC. 21. Section 8210 of the Corporations Code is amended to read:
8210. (a) Every corporation shall, within 90 days after the
filing of its original articles and biennially thereafter during the
applicable filing period, file, on a form prescribed by the Secretary
of State, a statement containing: (1) the name of the corporation
and the Secretary of State's file number; (2) the names and complete
business or residence addresses of its chief executive officer,
secretary, and chief financial officer; (3) the street address of its
principal office in this state, if any; (4) the mailing address of
the corporation, if different from the street address of its
principal executive office or if the corporation has no principal
office address in this state; and (5) if the corporation chooses to
receive renewal notices and any other notifications from the
Secretary of State by electronic mail instead of by United States
mail, a valid electronic mail address for the corporation or for the
corporation's designee to receive those notices.
(b) The statement required by subdivision (a) shall also
designate, as the agent of the corporation for the purpose of service
of process, a natural person residing in this state or any domestic
or foreign or foreign business corporation that has complied with
Section 1505 and whose capacity to act as an agent has not
terminated. If a natural person is designated, the statement shall
set forth the person's complete business or residence street address.
If a corporate agent is designated, no address for it shall be set
forth.
(c) For the purposes of this section, the applicable filing period
for a corporation shall be the calendar month during which its
original articles were filed and the immediately preceding five
calendar months. The Secretary of State shall provide a notice to
each corporation to comply with this section approximately three
months prior to the close of the applicable filing period. The notice
shall state the due date for compliance and shall be sent to the
last address of the corporation according to the records of the
Secretary of State or to the last electronic mail address according
to the records of the Secretary of State if the corporation has
elected to receive notices from the Secretary of State by electronic
mail. Neither the failure of the Secretary of State to send the
notice nor the failure of the corporation to receive it is an excuse
for failure to comply with this section.
(d) Whenever any of the information required by subdivision (a) is
changed, the corporation may file a current statement containing all
the information required by subdivisions (a) and (b). In order to
change its agent for service of process or the address of the agent,
the corporation must file a current statement containing all the
information required by subdivisions (a) and (b). Whenever any
statement is filed pursuant to this section, it supersedes any
previously filed statement and the statement in the articles as to
the agent for service of process and the address of the agent.
(e) The Secretary of State may destroy or otherwise dispose of any
statement filed pursuant to this section after it has been
superseded by the filing of a new statement.
(f) This section shall not be construed to place any person
dealing with the corporation on notice of, or under any duty to
inquire about, the existence or content of a statement filed pursuant
to this section.
SEC. 22. Section 12570 of the Corporations Code is amended to
read:
12570. (a) Every corporation shall, within 90 days after the
filing of its original articles and annually thereafter during the
applicable filing period in each year, file, on a form prescribed by
the Secretary of State, a statement containing: (1) the name of the
corporation and the Secretary of State's file number; (2) the names
and complete business or residence addresses of its chief executive
officer or general manager, secretary, and chief financial officer;
(3) the street address of its principal office in this state, if any;
(4) the mailing address of the corporation, if different from the
street address of its principal office in this state; and (5) if the
corporation chooses to receive renewal notices and any other
notifications from the Secretary of State by electronic mail instead
of by United States mail, a valid electronic mail address for the
corporation or for the corporation's designee to receive those
notices.
(b) The statement required by subdivision (a) shall also
designate, as the agent of the corporation for the purpose of service
of process, a natural person residing in this state or any domestic
or foreign corporation which has complied with Section 1505 and whose
capacity to act as such agent has not terminated. If a natural
person is designated, the statement shall set forth the person's
complete business or residence address. If a corporate agent is
designated, no address for it shall be set forth.
(c) For the purposes of this section, the applicable filing period
for a corporation shall be the calendar month during which its
original articles were filed and the immediately preceding five
calendar months. The Secretary of State shall provide a notice to
each corporation to comply with this section approximately three
months prior to the close of the applicable filing period. The notice
shall state the due date for compliance and shall be sent to the
last address of the corporation according to the records of the
Secretary of State or to the last electronic mail address according
to the records of the Secretary of State if the corporation has
elected to receive notices from the Secretary of State by electronic
mail. Neither the failure of the Secretary of State to send the
notice nor the failure of the corporation to receive it is an excuse
for failure to comply with this section.
(d) Whenever any of the information required by subdivision (a) is
changed, the corporation may file a current statement containing all
the information required by subdivisions (a) and (b). In order to
change its agent for service of process or the address of the agent,
the corporation must file a current statement containing all the
information required by subdivisions (a) and (b). Whenever any
statement is filed pursuant to this section, it supersedes any
previously filed statement and the statement in the articles as to
the agent for service of process and the address of the agent.
(e) The Secretary of State may destroy or otherwise dispose of any
statement filed pursuant to this section after it has been
superseded by the filing of a new statement.
(f) This section shall not be construed to place any person
dealing with the corporation on notice of, or under any duty to
inquire about, the existence or content of a statement filed pursuant
to this section.
SEC. 23. Section 14301.3 of the Corporations Code is amended to
read:
14301.3. (a) All construction on public water systems operated by
a mutual water company shall be designed and constructed to comply
with the applicable California Waterworks standards, as provided in
Chapter 16 (commencing with Section 64551) of Division 4 of Title 22
of the California Code of Regulations.
(b) A mutual water company that operates a public water system
shall maintain a financial reserve fund for repairs and replacements
to its water production, transmission, and distribution facilities at
a level sufficient for continuous operation of facilities in
compliance with the federal Safe Drinking Water Act (42 U.S.C. Sec.
300f et seq.) and the California Safe Drinking Water Act (Chapter 4
(commencing with Section 116270) of Part 12 of Division 104 of the
Health and Safety Code).
SEC. 24. Section 234.1 of the Education Code, as amended by
Section 2 of Chapter 723 of the Statutes of 2011, is amended to read:
234.1. The department, pursuant to subdivision (b) of Section
64001, shall monitor adherence to the requirements of Chapter 5.3
(commencing with Section 4900) of Division 1 of Title 5 of the
California Code of Regulations and Chapter 2 (commencing with Section
200) of this part as part of its regular monitoring and review of
local educational agencies, commonly known as the Categorical Program
Monitoring process. The department shall assess whether local
educational agencies have done all of the following:
(a) Adopted a policy that prohibits discrimination, harassment,
intimidation, and bullying based on the actual or perceived
characteristics set forth in Section 422.55 of the Penal Code and
Section 220 of this code, and disability, gender, gender identity,
gender expression, nationality, race or ethnicity, religion, sexual
orientation, or association with a person or group with one or more
of these actual or perceived characteristics. The policy shall
include a statement that the policy applies to all acts related to
school activity or school attendance occurring within a school under
the jurisdiction of the superintendent of the school district.
(b) Adopted a process for receiving and investigating complaints
of discrimination, harassment, intimidation, and bullying based on
any of the actual or perceived characteristics set forth in Section
422.55 of the Penal Code and Section 220 of this code, and
disability, gender, gender identity, gender expression, nationality,
race or ethnicity, religion, sexual orientation, or association with
a person or group with one or more of these actual or perceived
characteristics. The complaint process shall include, but not be
limited to, all of the following:
(1) A requirement that, if school personnel witness an act of
discrimination, harassment, intimidation, or bullying, they shall
take immediate steps to intervene when safe to do so.
(2) A timeline to investigate and resolve complaints of
discrimination, harassment, intimidation, or bullying that shall be
followed by all schools under the jurisdiction of the school
district.
(3) An appeal process afforded to the complainant should he or she
disagree with the resolution of a complaint filed pursuant to this
section.
(4) All forms developed pursuant to this process shall be
translated pursuant to Section 48985.
(c) Publicized antidiscrimination, antiharassment,
anti-intimidation, and antibullying policies adopted pursuant to
subdivision (a), including information about the manner in which to
file a complaint, to pupils, parents, employees, agents
of the governing board, and the general
public. The information shall be translated pursuant to Section
48985.
(d) Posted the policy established pursuant to subdivision (a) in
all schools and offices, including staff lounges and pupil government
meeting rooms.
(e) Maintained documentation of complaints and their resolution
for a minimum of one review cycle.
(f) Ensured that complainants are protected from retaliation and
that the identity of a complainant alleging discrimination,
harassment, intimidation, or bullying remains confidential, as
appropriate.
(g) Identified a responsible local educational agency officer for
ensuring school district or county office of education compliance
with the requirements of Chapter 5.3 (commencing with Section 4900)
of Division 1 of Title 5 of the California Code of Regulations and
Chapter 2 (commencing with Section 200) of this part.
SEC. 25. Section 8483.76 of the Education Code is amended to read:
8483.76. (a) A school that establishes a program pursuant to
Section 8483.7 or 8483.75 is eligible to receive a supplemental grant
to operate the program in excess of 180 regular schooldays or during
any combination of summer, intersession, or vacation periods for a
maximum of 30 percent of the total grant amount awarded, per school
year, to the school.
(b) An existing after school supplemental grantee may operate a
three-hour or a six-hour per day program, but is not eligible to
receive additional grant funds for the purpose of operating a
six-hour per day program pursuant to this section. If the grantee
operates a six-hour per day program, the target attendance level for
the purpose of grant reductions pursuant to subparagraph (A) of
paragraph (1) of subdivision (a) of Section 8483.7 shall be computed
as if the grant award were based upon the lesser of fifteen dollars
($15) per day of pupil attendance or 30 percent of the total grant
awarded to the school per school year. It is the intent of the
Legislature that a grantee who serves additional pupils by operating
a longer day program not receive additional funding for this purpose.
(c) A supplemental grantee that operates a program pursuant to
this section may change the location of the program to address the
needs of pupils and school closures. The program may be conducted at
an offsite location or at an alternate schoolsite. The supplemental
grantee shall give notice to the department of the change of location
and shall include a plan to provide safe transportation pursuant to
Section 8484.6.
(d) A supplemental grantee that operates a program pursuant to
this section may open eligibility to every pupil attending a school
in the district. Priority for enrollment shall be given to the pupils
enrolled in the school that receives the grant.
(e) A supplemental grantee operating a six-hour per day program
shall provide for each needy pupil at least one nutritionally
adequate free or reduced-price meal during each program day.
(f) A supplemental grantee that operates a six-hour per day
program is required to submit, for prior approval by the department,
a revised program plan that includes all of the following:
(1) A plan for provision of the free or reduced-price meal
required by subdivision (e).
(2) An attendance and early release policy for the program that is
consistent with the local educational agency's early release policy
for the regular schoolday.
SEC. 26. Section 8499.5 of the Education Code is amended to read:
8499.5. (a) The department shall allocate child care funding
pursuant to Chapter 2 (commencing with Section 8200) based on the
amount of state and federal funding that is available.
(b) By May 30 of each year, upon approval by the county board of
supervisors and the county superintendent of schools, a local
planning council shall submit to the department the local priorities
it has identified that reflect all child care needs in the county. To
accomplish this, a local planning council shall do all of the
following:
(1) Conduct an assessment of child care needs in the county no
less than once every five years. The department shall define and
prescribe data elements to be included in the needs assessment and
shall specify the format for the data reporting. The needs assessment
shall also include all factors deemed appropriate by the local
planning council in order to obtain an accurate picture of the
comprehensive child care needs in the county. The factors include,
but are not limited to, all of the following:
(A) The needs of families eligible for subsidized child care.
(B) The needs of families not eligible for subsidized child care.
(C) The waiting lists for programs funded by the department and
the State Department of Social Services.
(D) The need for child care for children determined by the child
protective services agency to be neglected, abused, or exploited, or
at risk of being neglected, abused, or exploited.
(E) The number of children in families receiving public
assistance, including CalFresh benefits, housing support, and
Medi-Cal, and assistance from the Healthy Families Program and the
Temporary Assistance for Needy Families (TANF) program.
(F) Family income among families with preschool or schoolage
children.
(G) The number of children in migrant agricultural families who
move from place to place for work or who are currently dependent for
their income on agricultural employment in accordance with
subdivision (a) of, and paragraphs (1) and (2) of subdivision (b) of,
Section 8231.
(H) The number of children who have been determined by a regional
center to require services pursuant to an individualized family
service plan, or by a local educational agency to require services
pursuant to an individualized education program or an individualized
family service plan.
(I) The number of children in the county by primary language
spoken pursuant to the department's language survey.
(J) Special needs based on geographic considerations, including
rural areas.
(K) The number of children needing child care services by age
cohort.
(2) Document information gathered during the needs assessment
which shall include, but need not be limited to, data on supply,
demand, cost, and market rates for each category of child care in the
county.
(3) Encourage public input in the development of the priorities.
Opportunities for public input shall include at least one public
hearing during which members of the public can comment on the
proposed priorities.
(4) Prepare a comprehensive countywide child care plan designed to
mobilize public and private resources to address identified needs.
(5) Conduct a periodic review of child care programs funded by the
department and the State Department of Social Services to determine
if identified priorities are being met.
(6) Collaborate with subsidized and nonsubsidized child care
providers, county welfare departments, human service agencies,
regional centers, job training programs, employers, integrated child
and family service councils, local and state children and families
commissions, parent organizations, early start family resource
centers, family empowerment centers on disability, local child care
resource and referral programs, and other interested parties to
foster partnerships designed to meet local child care needs.
(7) Design a system to consolidate local child care waiting lists,
if a centralized eligibility list is not already in existence.
(8) Coordinate part-day programs, including state preschool and
Head Start, with other child care and development services to provide
full-day child care.
(9) Submit the results of the needs assessment and the local
priorities identified by the local planning council to the board of
supervisors and the county superintendent of schools for approval
before submitting them to the department.
(10) Identify at least one, but not more than two, members to
serve as part of the department team that reviews and scores
proposals for the provision of services funded through contracts with
the department. Local planning council representatives may not
review and score proposals from the geographic area covered by their
own local planning council. The department shall notify each local
planning council whenever this opportunity is available.
(c) The department shall, in conjunction with the State Department
of Social Services and all appropriate statewide agencies and
associations, develop guidelines for use by local planning councils
to assist them in conducting needs assessments that are reliable and
accurate. The guidelines shall include acceptable sources of
demographic and child care data, and methodologies for assessing
child care supply and demand.
(d) The department shall allocate funding within each county in
accordance with the priorities identified by the local planning
council of that county and submitted to the department pursuant to
this section, unless the priorities do not meet the requirements of
state or federal law.
SEC. 27. Section 12000 of the Education Code is amended to read:
12000. (a) If, by any act of Congress, funds are provided as
federal aid to education to the several states and the disposition of
the funds is not otherwise provided for by or under the act of
Congress or by or under any law of this state, the apportionment and
distribution of those funds to school districts shall, insofar as
consistent with the requirements prescribed by the federal law and
implementing rules and regulations, be governed by the standards set
forth in this article.
(b) If a federal law designates a state educational agency or
other agency or officer primarily responsible for state supervision
of public schools, that designation shall be deemed to refer to the
state board. The state board shall make timely application for any
federal funds made available, and shall, pursuant to the federal law
and this article, direct the allocation and apportionment of the
federal funds to school districts.
(c) For purposes of this section and Section 12001, "school
districts" includes school districts, county offices of education,
and other educational agencies or entities deemed eligible pursuant
to state and federal law.
SEC. 28. Section 12001 of the Education Code is amended to read:
12001. The state board shall adopt rules and regulations for the
allocation of federal funds to school districts entitled to receive
federal funds for the support of schools. In determining the rules
and regulations by which those allocations are to be made, the state
board shall consider all factors of local effort and all educational
programs maintained by those school districts. The rules and
regulations adopted pursuant to this section shall be based upon
need, and the state board shall carefully scrutinize the abilities
and efforts of the affected school districts.
SEC. 29. Section 41202 of the Education Code is amended to read:
41202. The words and phrases set forth in subdivision (b) of
Section 8 of Article XVI of the California Constitution shall have
the following meanings:
(a) "Moneys to be applied by the State," as used in subdivision
(b) of Section 8 of Article XVI of the California Constitution, means
appropriations from the General Fund that are made for allocation to
school districts, as defined, or community college districts. An
appropriation that is withheld, impounded, or made without provisions
for its allocation to school districts or community college
districts, shall not be considered to be "moneys to be applied by the
State."
(b) "General Fund revenues which may be appropriated pursuant to
Article XIII B," as used in paragraph (1) of subdivision (b) of
Section 8 of Article XVI of the California Constitution, means
General Fund revenues that are the proceeds of taxes as defined by
subdivision (c) of Section 8 of Article XIII B of the California
Constitution, including, for the 1986-87 fiscal year only, any
revenues that are determined to be in excess of the appropriations
limit established pursuant to Article XIII B of the California
Constitution for the fiscal year in which they are received. General
Fund revenues for a fiscal year to which paragraph (1) of subdivision
(b) of Section 8 of Article XVI of the California Constitution is
being applied shall include, in that computation, only General Fund
revenues for that fiscal year that are the proceeds of taxes, as
defined in subdivision (c) of Section 8 of Article XIII B of the
California Constitution, and shall not include prior fiscal year
revenues. Commencing with the 1995-96 fiscal year, and each fiscal
year thereafter, "General Fund revenues that are the proceeds of
taxes," as defined in subdivision (c) of Section 8 of Article XIII B
of the California Constitution, includes any portion of the proceeds
of taxes received from the state sales tax that are transferred to
the counties pursuant to, and only if, legislation is enacted during
the 1995-96 fiscal year the purpose of which is to realign children's
programs. The amount of the proceeds of taxes shall be computed for
any fiscal year in a manner consistent with the manner in which the
amount of the proceeds of taxes was computed by the Department of
Finance for purposes of the Governor's Budget for the Budget Act of
1986.
(c) "General Fund revenues appropriated for school districts," as
used in paragraph (1) of subdivision (b) of Section 8 of Article XVI
of the California Constitution, means the sum of appropriations made
that are for allocation to school districts, as defined in Section
41302.5, regardless of whether those appropriations were made from
the General Fund to the Superintendent, to the Controller, or to any
other fund or state agency for the purpose of allocation to school
districts. The full amount of any appropriation shall be included in
the calculation of the percentage required by paragraph (1) of
subdivision (b) of Section 8 of Article XVI of the California
Constitution, without regard to any unexpended balance of any
appropriation. Any reappropriation of funds appropriated in any prior
year shall not be included in the sum of appropriations.
(d) "General Fund revenues appropriated for community college
districts," as used in paragraph (1) of subdivision (b) of Section 8
of Article XVI of the California Constitution, means the sum of
appropriations made that are for allocation to community college
districts, regardless of whether those appropriations were made from
the General Fund to the Controller, to the Chancellor of the
California Community Colleges, or to any other fund or state agency
for the purpose of allocation to community college districts. The
full amount of any appropriation shall be included in the calculation
of the percentage required by paragraph (1) of subdivision (b) of
Section 8 of Article XVI of the California Constitution, without
regard to any unexpended balance of any appropriation. Any
reappropriation of funds appropriated in any prior year shall not be
included in the sum of appropriations.
(e) "Total allocations to school districts and community college
districts from General Fund proceeds of taxes appropriated pursuant
to Article XIII B," as used in paragraph (2) or (3) of subdivision
(b) of Section 8 of Article XVI of the California Constitution, means
the sum of appropriations made that are for allocation to school
districts, as defined in Section 41302.5, and community college
districts, regardless of whether those appropriations were made from
the General Fund to the Controller, to the Superintendent, to the
Chancellor of the California Community Colleges, or to any other fund
or state agency for the purpose of allocation to school districts
and community college districts. The full amount of any appropriation
shall be included in the calculation of the percentage required by
paragraph (2) or (3) of subdivision (b) of Section 8 of Article XVI
of the California Constitution, without regard to any unexpended
balance of any appropriation. Any reappropriation of funds
appropriated in any prior year shall not be included in the sum of
appropriations.
(f) "General Fund revenues appropriated for school districts and
community college districts, respectively" and "moneys to be applied
by the state for the support of school districts and community
college districts," as used in Section 8 of Article XVI of the
California Constitution, shall include funds appropriated for
part-day California state preschool programs under Article 7
(commencing with Section 8235) of Chapter 2 of Part 6 of Division 1
of Title 1, and the After School Education and Safety Program
established pursuant to Article 22.5 (commencing with Section 8482)
of Chapter 2 of Part 6 of Division 1 of Title 1, and shall not
include any of the following:
(1) Any appropriation that is not made for allocation to a school
district, as defined in Section 41302.5, or to a community college
district, regardless of whether the appropriation is made for any
purpose that may be considered to be for the benefit to a school
district, as defined in Section 41302.5, or a community college
district. This paragraph shall not be construed to exclude any
funding appropriated for part-day California state preschool programs
under Article 7 (commencing with Section 8235) of Chapter 2 of Part
6 of Division 1 of Title 1 or the After School Education and Safety
Program established pursuant to Article 22.5 (commencing with Section
8482) of Chapter 2 of Part 6 of Division 1 of Title 1.
(2) Any appropriation made to the Teachers' Retirement Fund or to
the Public Employees' Retirement Fund except those appropriations for
reimbursable state mandates imposed on or before January 1, 1988.
(3) Any appropriation made to service any public debt approved by
the voters of this state.
(4) With the exception of the programs identified in paragraph
(1), commencing with the 2011-12 fiscal year, any funds appropriated
for the Child Care and Development Services Act, pursuant to Chapter
2 (commencing with Section 8200) of Part 6 of Division 1 of Title 1.
(g) "Allocated local proceeds of taxes," as used in paragraph (2)
or (3) of subdivision (b) of Section 8 of Article XVI of the
California Constitution, means, for school districts as defined,
those local revenues, except revenues identified pursuant to
paragraph (5) of subdivision (h) of Section 42238, that are used to
offset state aid for school districts in calculations performed
pursuant to Sections 2558 and 42238, and Chapter 7.2 (commencing with
Section 56836) of Part 30 of Division 4 of Title 2.
(h) "Allocated local proceeds of taxes," as used in paragraph (2)
or (3) of subdivision (b) of Section 8 of Article XVI of the
California Constitution, means, for community college districts,
those local revenues that are used to offset state aid for community
college districts in calculations performed pursuant to Section
84751. In no event shall the revenues or receipts derived from
student fees be considered "allocated local proceeds of taxes."
(i) For purposes of calculating the 4-percent entitlement pursuant
to subdivision (a) of Section 8.5 of Article XVI of the California
Constitution, "the total amount required pursuant to Section 8(b)"
shall mean the General Fund aid required for schools pursuant to
subdivision (b) of Section 8 of Article XVI of the California
Constitution, and shall not include allocated local proceeds of
taxes.
(j) This section shall become operative on July 1, 2011.
SEC. 30. Section 41202.5 of the Education Code is amended to read:
41202.5. (a) The Legislature finds and declares as follows:
(1) The Legislature acted to implement Proposition 98 soon after
its passage by defining "total allocations to school districts and
community college districts from General Fund proceeds of taxes" to
include the entirety of programs funded under the Child Care and
Development Services Act (Chapter 2 (commencing with Section 8200) of
Part 6 of Division 1 of Title 1).
(2) In California Teachers Assn. v. Hayes (1992) 5 Cal.App.4th
1513, the Court of Appeal permitted the inclusion of child care
within the Proposition 98 minimum funding guarantee but left open the
possibility of excluding particular child care programs that did not
directly advance and support the educational mission of school
districts.
(b) It is the intent of the Legislature to clarify that the
part-time state preschool programs and the After School Education and
Safety Program fall within the Proposition 98 guarantee and to fund
other child care programs less directly associated with school
districts from appropriations that do not count toward the
Proposition 98 minimum guarantee.
(c) Notwithstanding any other provision of law, for purposes of
making the computations required by subdivision (b) of Section 8 of
Article XVI of the California Constitution in the 2011-12 fiscal year
and each subsequent fiscal year, both of the following apply:
(1) For purposes of paragraph (1) of subdivision (b) of Section 8
of Article XVI of the California Constitution, "General Fund revenues
appropriated for school districts and community college districts,
respectively, in fiscal year 1986-87" does not include General Fund
revenues appropriated for any program within Chapter 2 (commencing
with Section 8200) of Part 6 of Division 1 of Title 1, with the
exception of the part-day California state preschool programs set
forth in Article 7 (commencing with Section 8235) and the After
School Education and Safety Program in Article 22.5 (commencing with
Section 8482). The Director of Finance shall adjust accordingly "the
percentage of General Fund revenues appropriated for school districts
and community college districts, respectively, in fiscal year
1986-87," for purposes of applying that percentage in the 2011-12
fiscal year and each subsequent fiscal year in making the
calculations required under paragraph (1) of subdivision (b) of
Section 8 of Article XVI of the California Constitution.
(2) General Fund revenues appropriated in the 2010-11 fiscal year
or any subsequent fiscal year for any program within Chapter 2
(commencing with Section 8200) of Part 6 of Division 1 of Title 1,
with the exception of the part-day California state preschool
programs set forth in Article 7 (commencing with Section 8235) and
the After School Education and Safety Program in Article 22.5
(commencing with Section 8482), are not included within the "total
allocations to school districts and community college districts from
General Fund proceeds of taxes appropriated pursuant to Article XIII
B" for purposes of paragraph (2) or (3) of subdivision (b) of Section
8 of Article XVI of the California Constitution.
SEC. 31. Section 42251 of the Education Code is amended to read:
42251. (a) The Superintendent shall make the following
calculations for the 2011-12 fiscal year:
(1) Determine the amount of funds that will be restricted after
the Superintendent makes the deduction pursuant to Section 52335.3
for each county office of education pursuant to subdivision (e) of
Section 2558 as of June 30, 2012.
(2) Divide fifty million dollars ($50,000,000) by the statewide
sum of the amounts determined pursuant to paragraph (1). If the
fraction is greater than one it shall be deemed to be one.
(3) Multiply the fraction determined pursuant to paragraph (2) by
the amount determined pursuant to paragraph (1) for each county
office of education.
(b) The auditor-controller of each county shall distribute the
amounts determined in paragraph (3) of subdivision (a) to the
Supplemental Revenue Augmentation Fund created within the county
pursuant to Section 100.06 of the Revenue and Taxation Code. The
aggregate amount of transfers required by this subdivision shall be
made in two equal shares, with the first share being transferred no
later than January 15, 2012, and the second share being transferred
after that date but no later than May 1, 2012.
(c) The moneys transferred to the Supplemental Revenue
Augmentation Fund in the 2011-12 fiscal year shall be transferred by
the county office of education to the Controller, in amounts and for
those purposes as directed by the Director of Finance, exclusively to
reimburse the state for the costs of providing trial court services
and costs until those moneys are exhausted.
SEC. 32. Section 42605 of the Education Code is amended to read:
42605. (a) (1) Unless otherwise prohibited under federal law or
otherwise specified in subdivision (e), for the 2008-09 fiscal year
to the 2014-15 fiscal year, inclusive, recipients of funds from the
items listed in paragraph (2) may use funding received, pursuant to
subdivision (b), from any of these items listed in paragraph (2) that
are contained in Section 2.00 of the annual Budget Act, for any
educational purpose.
(2) Items 6110-104-0001, 6110-105-0001, 6110-108-0001,
6110-122-0001, 6110-124-0001, 6110-137-0001, 6110-144-0001,
6110-150-0001, 6110-151-0001, 6110-156-0001, 6110-181-0001,
6110-188-0001, 6110-189-0001, 6110-190-0001, 6110-193-0001,
6110-195-0001, 6110-198-0001, 6110-204-0001, 6110-208-0001,
6110-209-0001, 6110-211-0001, 6110-227-0001, 6110-228-0001,
6110-232-0001, 6110-240-0001, 6110-242-0001, 6110-243-0001,
6110-244-0001, 6110-245-0001, 6110-246-0001, 6110-247-0001,
6110-248-0001, 6110-260-0001, 6110-265-0001, 6110-266-0001,
6110-267-0001, 6110-268-0001, and 6360-101-0001 of Section 2.00.
(b) (1) For the 2009-10 fiscal year to the 2014-15 fiscal year,
inclusive, the Superintendent or other administering state agency, as
appropriate, shall apportion from the amounts provided in the annual
Budget Act for the items enumerated in paragraph (2) of subdivision
(a) an amount to recipients based on the same relative proportion
that the recipient received in the 2008-09 fiscal year for the
programs funded through the items enumerated in paragraph (2) of
subdivision (a).
(2) This section and Section 42 of Chapter 12 of the Third
Extraordinary Session of the Statutes of 2009 do not authorize a
school district that receives funding on behalf of a charter school
pursuant to Sections 47634.1 and 47651 to redirect this funding for
another purpose unless otherwise authorized in law or pursuant to an
agreement between a charter school and its chartering authority.
Notwithstanding paragraph (1), for the 2008-09 fiscal year to the
2014-15 fiscal year, inclusive, a school district that receives
funding on behalf of a charter school pursuant to Sections 47634.1
and 47651 shall continue to distribute the funds to those charter
schools based on the relative proportion that the school district
distributed in the 2007-08 fiscal year, and shall adjust those
amounts to reflect changes in charter
school attendance in the district. The amounts allocated
shall be adjusted for any greater or lesser amount appropriated for
the items enumerated in paragraph (2) of subdivision (a). For a
charter school that began operation in the 2008-09 fiscal year, if a
school district received funding on behalf of that charter school
pursuant to Sections 47634.1 and 47651, the school district shall
continue to distribute the funds to that charter school based on the
relative proportion that the school district distributed in the
2008-09 fiscal year and shall adjust the amount of those funds to
reflect changes in charter school attendance in the district. The
amounts allocated shall be adjusted for any greater or lesser amount
appropriated for the items enumerated in paragraph (2) of subdivision
(a).
(3) Notwithstanding paragraph (1), for the 2008-09 fiscal year to
the 2014-15 fiscal year, inclusive, the Superintendent shall
apportion from the amounts appropriated by Item 6110-211-0001 of
Section 2.00 of the annual Budget Act an amount to a charter school
in accordance with the per-pupil methodology prescribed in
subdivision (c) of Section 47634.1.
(4) Notwithstanding paragraph (1), for the 2008-09 fiscal year to
the 2014-15 fiscal year, inclusive, the Superintendent shall
apportion from the amounts provided in the annual Budget Act an
amount to a school district, charter school, and county office of
education based on the same relative proportion that the local
educational agency received in the 2007-08 fiscal year for the
programs funded through the following items contained in Section 2.00
of the annual Budget Act: 6110-104-0001, 6110-105-0001,
6110-156-0001, 6110-190-0001, Schedule (3) of 6110-193-0001,
6110-198-0001, 6110-232-0001, and Schedule (2) of 6110-240-0001.
(5) For purposes of paragraph (4), if a direct-funded charter
school began operation in the 2008-09 fiscal year, the amount that
the charter school was entitled to receive from the items enumerated
in paragraph (4) for the 2008-09 fiscal year, as certified by the
Superintendent in March 2009, is deemed to have been received in the
2007-08 fiscal year.
(c) (1) This section does not obligate the state to refund or
repay reductions made pursuant to this section. A decision by a
school district to reduce funding pursuant to this section for a
state-mandated local program shall constitute a waiver of the
subvention of funds that the school district is otherwise entitled to
pursuant to Section 6 of Article XIII B of the California
Constitution on the amount so reduced.
(2) (A) As a condition of receipt of funds, the governing board of
the school district or governing board of the county office of
education, as appropriate, at a regularly scheduled open public
hearing shall take testimony from the public, discuss, approve or
disapprove the proposed use of funding, and make explicit for each of
the budget items in paragraph (2) of subdivision (a) the purposes
for which the funds will be used.
(B) The regularly scheduled open public hearing held pursuant to
subparagraph (A) shall be held prior to and independent of a meeting
where the governing board of the school district or governing board
of the county office of education adopts a budget. If the governing
board intends to close a program funded by the items listed in
paragraph (2) of subdivision (a), the governing board shall identify,
in the notice of the agenda of the public hearing or at another
public hearing, the program or programs proposed to be closed.
(3) Using the Standardized Account Code Structure reporting
process, a local educational agency shall report expenditures of
funds pursuant to the authority of this section by using the
appropriate function codes to indicate the activities for which these
funds are expended. The department shall collect and provide this
information to the Department of Finance and the appropriate policy
and budget committees of the Legislature by April 15, 2010, and
annually thereafter on April 15 until, and including, April 15, 2016.
(d) For the 2008-09 fiscal year to the 2014-15 fiscal year,
inclusive, local educational agencies that use the flexibility
provision of this section shall be deemed to be in compliance with
the program and funding requirements contained in statutory,
regulatory, and provisional language, associated with the items
enumerated in subdivision (a).
(e) Notwithstanding subdivision (d), the following requirements
shall continue to apply:
(1) For Item 6110-105-0001 of Section 2.00 of the annual Budget
Act, the amount authorized for flexibility shall exclude the funding
provided to fund remedial educational services pursuant to Provision
4. For Item 6110-156-0001 of Section 2.00 of the annual Budget Act,
the amount authorized for flexibility shall exclude the funding
provided for instruction of CalWORKs-eligible students pursuant to
Schedules (2) and (3) and Provisions 2 and 4.
(2) (A) Any instructional materials purchased by a local
educational agency shall be the materials adopted by the state board
for kindergarten and grades 1 to 8, inclusive, and for grades 9 to
12, inclusive, the materials purchased shall be aligned with state
standards as defined by Section 60605, and shall also meet the
reporting and sufficiency requirements contained in Section 60119.
(B) For purposes of this section, "sufficiency" means that each
pupil has sufficient textbooks and instructional materials in the
four core areas as defined by Section 60119 and that all pupils
within the local educational agency who are enrolled in the same
course shall have identical textbooks and instructional materials, as
specified in Section 1240.3.
(3) For Item 6110-195-0001 of Section 2.00 of the annual Budget
Act, the item shall exclude moneys that are required to fund awards
for teachers that have previously met the requirements necessary to
obtain these awards, until the award is paid in full.
(4) For Item 6110-266-0001 of Section 2.00 of the annual Budget
Act, a county office of education shall conduct at least one site
visit to each of the required schoolsites pursuant to Section 1240
and shall fulfill all of the duties set forth in Sections 1240 and
44258.9.
(5) For Item 6110-198-0001 of Section 2.00 of the annual Budget
Act, a school district or county office of education that operates
the child care component of the Cal-SAFE program shall comply with
paragraphs (5) and (6) of subdivision (c) of Section 54746.
(f) This section does not invalidate any state law pertaining to
teacher credentialing requirements or the functions that require
credentials.
SEC. 33. Section 48204.1 of the Education Code is amended to read:
48204.1. (a) A school district shall accept from the parent or
legal guardian of a pupil reasonable evidence that the pupil meets
the residency requirements for school attendance in the school
district as set forth in Sections 48200 and 48204. Reasonable
evidence of residency for a pupil living with his or her parent or
legal guardian shall be established by documentation showing the name
and address of the parent or legal guardian within the school
district, including, but not limited to, any of the following
documentation:
(1) Property tax payment receipts.
(2) Rental property contract, lease, or payment receipts.
(3) Utility service contract, statement, or payment receipts.
(4) Pay stubs.
(5) Voter registration.
(6) Correspondence from a government agency.
(7) Declaration of residency executed by the parent or legal
guardian of a pupil.
(b) Nothing in this section shall be construed to require a parent
or legal guardian of a pupil to show all of the items of
documentation listed in paragraphs (1) to (7), inclusive, of
subdivision (a).
(c) If an employee of a school district reasonably believes that
the parent or legal guardian of a pupil has provided false or
unreliable evidence of residency, the school district may make
reasonable efforts to determine that the pupil actually meets the
residency requirements set forth in Sections 48200 and 48204.
(d) Nothing in this section shall be construed as limiting access
to pupil enrollment in a school district as otherwise provided by
federal and state statutes and regulations. This includes immediate
enrollment and attendance guaranteed to a homeless child or youth, as
defined in Section 11434a(2) of the federal McKinney-Vento Homeless
Assistance Act (42 U.S.C. Sec. 11434a(2) et seq.), without any proof
of residency or other documentation.
(e) Consistent with Section 11432(g) of the federal McKinney-Vento
Homeless Assistance Act (42 U.S.C. Sec. 11301 et seq.), proof of
residency of a parent within a school district shall not be required
for an unaccompanied youth, as defined in Section 11434a(6) of Title
42 of the United States Code. A school district shall accept a
declaration of residency executed by the unaccompanied youth in lieu
of a declaration of residency executed by his or her parent or legal
guardian.
SEC. 34. Section 49061 of the Education Code is amended to read:
49061. As used in this chapter:
(a) "Parent" means a natural parent, an adopted parent, or legal
guardian. If the parents are divorced or legally separated, only a
parent having legal custody of the pupil may challenge the content of
a record pursuant to Section 49070, offer a written response to a
record pursuant to Section 49072, or consent to release records to
others pursuant to Section 49075. Either parent may grant consent if
both parents have notified, in writing, the school or school district
that an agreement has been made. If a pupil has attained the age of
18 years or is attending an institution of postsecondary education,
the permission or consent required of, and the rights accorded to,
the parents or guardian of the pupil shall thereafter only be
required of, and accorded to, the pupil.
(b) "Pupil record" means any item of information directly related
to an identifiable pupil, other than directory information, that is
maintained by a school district or required to be maintained by an
employee in the performance of his or her duties whether recorded by
handwriting, print, tapes, film, microfilm, or other means.
"Pupil record" does not include informal notes related to a pupil
compiled by a school officer or employee that remain in the sole
possession of the maker and are not accessible or revealed to any
other person except a substitute. For purposes of this subdivision,
"substitute" means a person who performs the duties of the individual
who made the notes on a temporary basis, and does not refer to a
person who permanently succeeds the maker of the notes in his or her
position.
(c) "Directory information" means one or more of the following
items: pupil's name, address, telephone number, date of birth, email
address, major field of study, participation in officially recognized
activities and sports, weight and height of members of athletic
teams, dates of attendance, degrees and awards received, and the most
recent previous public or private school attended by the pupil.
(d) "School district" means any school district maintaining any
kindergarten or any of grades 1 to 12, inclusive, any public school
providing instruction in any kindergarten or any of grades 1 to 12,
inclusive, the office of the county superintendent of schools, or any
special school operated by the department.
(e) "Access" means a personal inspection and review of a record or
an accurate copy of a record, or receipt of an accurate copy of a
record, an oral description or communication of a record or an
accurate copy of a record, and a request to release a copy of any
record.
(f) "County placing agency" means the county social service
department or county probation department.
SEC. 35. Section 51500 of the Education Code is amended to read:
51500. A teacher shall not give instruction and a school district
shall not sponsor any activity that promotes a discriminatory bias
on the basis of race or ethnicity, gender, religion, disability,
nationality, or sexual orientation, or because of a characteristic
listed in Section 220.
SEC. 36. Section 51501 of the Education Code is amended to read:
51501. The state board and any governing board shall not adopt
any textbooks or other instructional materials for use in the public
schools that contain any matter reflecting adversely upon persons on
the basis of race or ethnicity, gender, religion, disability,
nationality, or sexual orientation, or because of a characteristic
listed in Section 220.
SEC. 37. Section 54699 of the Education Code is amended to read:
54699. (a) (1) The Controller shall annually allocate the sum of
eight million dollars ($8,000,000) from the Renewable Resource Trust
Fund established pursuant to Section 25751 of the Public Resources
Code or other related fund, upon appropriation by the Legislature, to
the Superintendent for expenditure in the form of grants to school
districts, that shall be allocated using the same criteria as
provided in Article 5 (commencing with Section 54690), except as
provided in subdivision (b) of Section 54691, and pursuant to the
additional requirements of this article.
(2) If sufficient funds are not available to fully meet the
funding requirement of paragraph (1), for the 2010-11, 2011-12, and
2012-13 fiscal years, the Controller shall allocate the balance of
funds required to meet the funding requirement from the Alternative
and Renewable Fuel and Vehicle Technology Fund established pursuant
to Section 44273 of the Health and Safety Code, upon appropriation by
the Legislature, for expenditure in the form of grants to school
districts, that shall be allocated using the same criteria as
provided in Article 5 (commencing with Section 54690), except as
provided in subdivision (b) of Section 54691, and pursuant to the
additional requirements of this article.
(b) The Superintendent shall award grants pursuant to this article
to school districts that do all of the following:
(1) Meet the requirements specified in Article 5 (commencing with
Section 54690).
(2) Propose to implement a partnership academy, or to maintain an
existing academy, that focuses on employment in clean technology
businesses or renewable energy businesses and provides skilled
workforces for the products and services for energy or water
conservation, or both, renewable energy, pollution reduction, or
other technologies that improve the environment in furtherance of
state environmental laws.
(c) The Superintendent shall review grant applications submitted
by school districts in consultation with the State Energy Resources
Conservation and Development Commission.
(d) The Superintendent, in consultation with the State Energy
Resources Conservation and Development Commission, shall review
ongoing programs to ensure that those programs comply with
subdivision (b).
(e) (1) No later than 60 days after the effective date of this
article, and prior to the department issuing a request for grant
applications, the State Energy Resources Conservation and Development
Commission, in consultation with the Superintendent, shall adopt
guidelines to ensure that programs receiving grants reflect current
state energy policies and priorities as well as provide skills and
education linked to the needs of relevant industries.
(2) Notwithstanding any other law, any guideline adopted pursuant
to this section shall be exempt from the requirements of Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code.
(f) (1) The Superintendent shall give priority for grants pursuant
to this article according to the following:
(A) First, to school districts that propose to establish
partnership academies that are consistent with the guidelines
developed by the State Energy Resources Conservation and Development
Commission pursuant to subdivision (e).
(B) Second, to school districts that propose to establish a
partnership academy at schoolsites that do not currently participate
in the partnership academies program pursuant to Article 5
(commencing with Section 54690).
(C) Third, to school districts that would establish a partnership
academy at schoolsites that do not currently participate in the green
partnership academies program funded pursuant to Section 32 of
Chapter 757 of the Statutes of 2008.
(2) Notwithstanding subparagraphs (B) and (C) of paragraph (1),
the Superintendent may assign a higher priority to a school district
that has received a grant pursuant to the green partnership academies
program funded pursuant to Section 32 of Chapter 757 of the Statutes
of 2008, subject to subdivision (d).
(3) The Superintendent shall award grants to a school district to
establish or operate a partnership academy pursuant to this article
in the following amounts:
(A) A district operating a partnership academy may receive one
thousand dollars ($1,000) per year for each qualified student
enrolled in grade 9 in an academy during the first year of that
academy's operation, except that no more than forty-five thousand
dollars ($45,000) may be granted to any one academy for the initial
year.
(B) A district operating a partnership academy may receive one
thousand dollars ($1,000) per year for each qualified student
enrolled in either grade 9 or 10 in an academy during the second year
of that academy's operation, except that no more than eighty
thousand dollars ($80,000) may be granted to any one academy for the
second year.
(C) A district operating a partnership academy may receive one
thousand dollars ($1,000) for each qualified student enrolled in any
of grades 9 to 11, inclusive, in an academy during the third year of
that academy's operation, except that no more than one hundred twenty
thousand dollars ($120,000) may be granted to any one academy for
the third year.
(D) A district operating a partnership academy may receive one
thousand dollars ($1,000) for each qualified student enrolled in any
of grades 9 to 12, inclusive, in an academy during the fourth and
following years of that academy's operation, except that no more than
one hundred fifty thousand dollars ($150,000) may be granted to any
one academy for each fiscal year.
(4) For purposes of this section, "qualified student" has the same
meaning as described in subdivision (c) of Section 54691, but shall
also include a 9th grade pupil who meets the at-risk criteria
specified in Section 54690, who is enrolled in an academy for the 9th
grade, obtains 90 percent of the credits each academic year in
courses that are required for graduation, and successfully completes
a school year during the 9th grade with an attendance record of not
less than 80 percent.
(g) The Superintendent shall encourage a school district that
receives a grant under this article to work and coordinate with
regional occupational centers and programs for the required career
technical education sequence of courses.
(h) A school district may apply for planning grants, in accordance
with subdivision (a) of Section 54691, for implementing a
partnership academy pursuant to this article.
(i) Commencing in 2014 and not later than January 1 of each year
for which this article is operative, the Superintendent, in
consultation with the State Energy Resources Conservation and
Development Commission, shall provide a report to the Legislature
that includes, but is not limited to, a description of the curriculum
and substance of the programs funded by grants awarded pursuant to
this article. The first annual report shall include the
identification of gaps in available curricula relating to clean
technology and renewable energy that are consistent with current
state energy policy and priorities, as well as the proportion of
participating pupils who meet the at-risk criteria enumerated in
subdivision (d) of Section 54690. The report also shall include pupil
participation data and data collected pursuant to subdivision (d) of
Section 54691.
(j) Up to 5 percent of the funds transferred to the Superintendent
pursuant to this article may be expended to pay the costs incurred
in the administration of this article.
SEC. 38. Section 60044 of the Education Code is amended to read:
60044. A governing board shall not adopt any instructional
materials for use in the schools that, in its determination, contain:
(a) Any matter reflecting adversely upon persons on the basis of
race or ethnicity, gender, religion, disability, nationality, or
sexual orientation, occupation, or because of a characteristic listed
in Section 220.
(b) Any sectarian or denominational doctrine or propaganda
contrary to law.
SEC. 39. Section 69508.5 of the Education Code is amended to read:
69508.5. (a) Notwithstanding any other law, and except as
provided for in subdivision (c), a student who meets the requirements
of subdivision (a) of Section 68130.5, or who meets equivalent
requirements adopted by the Regents of the University of California,
is eligible to apply for, and participate in, any student financial
aid program administered by the State of California to the full
extent permitted by federal law. The Legislature finds and declares
that this section is a state law within the meaning of Section 1621
(d) of Title 8 of the United States Code.
(b) Notwithstanding any other law, the Student Aid Commission
shall establish procedures and forms that enable students who are
exempt from paying nonresident tuition under Section 68130.5, or who
meet equivalent requirements adopted by the regents, to apply for,
and participate in, all student financial aid programs administered
by the State of California to the full extent permitted by federal
law.
(c) A student who is exempt from paying nonresident tuition under
Section 68130.5 shall not be eligible for Competitive Cal Grant A and
B Awards unless funding remains available after all California
students not exempt pursuant to Section 68130.5 have received
Competitive Cal Grant A and B Awards for which they are eligible.
(d) This section shall become operative on January 1, 2013.
SEC. 40. Section 71091 of the Education Code is amended to read:
71091. (a) It is the intent of the Legislature that students
enrolling in the California Community Colleges system who desire to
apply to and enroll in another segment or in another community
college, or have previously enrolled in another segment, have their
educational records transferred electronically using transmission
systems and protocols that satisfy all of the following criteria:
(1) Are secure, are not susceptible to fraud, and protect student
privacy in a manner that complies with federal and state privacy
laws, including, but not limited to, the federal Family Educational
Rights and Privacy Act of 1974 (20 U.S.C. Sec. 1232g).
(2) Permit expeditious review of student transcripts for purposes
of admissions, academic assessment, and placement.
(3) Reduce operational costs, such as postage, key data entry, and
manual uploading and downloading of student records, printing,
paper, and other materials.
(4) Minimize delays in the transmission of student transcripts to
accelerate and enhance student transfer.
(5) Permit for other technological infrastructure, such as online
student planners, student electronic portfolios, and other electronic
student services, to be compatible with this system.
(6) Conform to national standards and protocols for electronic
transcript transmission.
(7) Have the capability of receiving and sending student
educational records electronically with current and future electronic
transcript systems developed and operated by other community college
districts, the State Department of Education, the California State
University, and the University of California.
(b) By January 1, 2012, the Office of the Chancellor of the
California Community Colleges shall implement a procedure that
complies with subdivision (a) to facilitate the electronic receipt
and transmission of student transcripts by community college
districts.
(c) Contingent upon the Office of the Chancellor's receipt of new,
one-time state, federal, or philanthropic funding sufficient for
this purpose, and, as a condition for receiving funding under this
section, a community college district shall implement a process for
the receipt and transmission of electronic student transcripts that
complies with subdivisions (a) and (b).
(d) (1) The Office of the Chancellor shall determine the
requirements and procedures for dispersing funds received pursuant to
subdivision (c) to participating community college districts.
(2) The Office of the Chancellor shall report to the appropriate
policy and fiscal committees of the Legislature, a year after funds
are dispersed pursuant to this section, the community colleges that
have adopted electronic transcripts and the remaining community
colleges that have yet to adopt the electronic transcript delivery
system.
(e) Any community college district that elects to implement a
process for the receipt and transmission of electronic student
transcripts pursuant to subdivision (c) may later opt out of the
provisions of this section in any subsequent year.
(f) 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. 41. Section 72699 of the Education Code is amended to read:
72699. (a) Notwithstanding any other provision of law, and except
as provided for in subdivision (c), whenever an auxiliary
organization discloses a record it maintains that is otherwise exempt
from this article, this disclosure shall constitute a waiver of the
exemptions specified in this article.
(b) For purposes of this section, "auxiliary organization"
includes a member, agent, volunteer, or officer of the auxiliary
organization acting within the scope of his or her affiliation with
the organization.
(c) Subdivision (a) shall not apply to the following disclosures:
(1) Disclosures made to a donor or prospective donor with regard
to that donor's donation or prospective donation to an auxiliary
organization.
(2) Disclosures made to a volunteer or prospective volunteer with
respect to that volunteer's services being provided to the auxiliary
organization.
(3) Disclosures made through other legal proceedings or as
otherwise required by law.
(4) Disclosures within the scope of a disclosure required by law
that limits disclosure of specified writings to certain purposes.
(5) Disclosures described in subdivision (a) of Section 72696 to
an auditor conducting an audit.
(6) Disclosures described in subdivision (a) of Section 72696
to a bank or similar financial institution in the course of ordinary
financial transactions, or in response to a request from the bank or
other financial institution relating to the ordinary delivery of
financial services.
SEC. 42. Section 76300 of the Education Code, as amended by
Section 4 of Chapter 15 of the 1st Extraordinary Session of the
Statutes of 2011, is amended to read:
76300. (a) The governing board of each community college district
shall charge each student a fee pursuant to this section.
(b) (1) The fee prescribed by this section shall be forty-six
dollars ($46) per unit per semester, effective with the summer term
of the 2012 calendar year.
(2) The board of governors shall proportionately adjust the amount
of the fee for term lengths based upon a quarter system, and also
shall proportionately adjust the amount of the fee for summer
sessions, intersessions, and other short-term courses. In making
these adjustments, the board of governors may round the per unit fee
and the per term or per session fee to the nearest dollar.
(c) For the purposes of computing apportionments to community
college districts pursuant to Section 84750.5, the board of governors
shall subtract, from the total revenue owed to each district, 98
percent of the revenues received by districts from charging a fee
pursuant to this section.
(d) The board of governors shall reduce apportionments by up to 10
percent to any district that does not collect the fees prescribed by
this section.
(e) The fee requirement does not apply to any of the following:
(1) Students enrolled in the noncredit courses designated by
Section 84757.
(2) California State University or University of California
students enrolled in remedial classes provided by a community college
district on a campus of the University of California or a campus of
the California State University, for whom the district claims an
attendance apportionment pursuant to an agreement between the
district and the California State University or the University of
California.
(3) Students enrolled in credit contract education courses
pursuant to Section 78021, if the entire cost of the course,
including administrative costs, is paid by the public or private
agency, corporation, or association with which the district is
contracting and if these students are not included in the calculation
of the full-time equivalent students (FTES) of that district.
(f) The governing board of a community college district may exempt
special part-time students admitted pursuant to Section 76001 from
the fee requirement.
(g) (1) The fee requirements of this section shall be waived for
any student who, at the time of enrollment, is a recipient of
benefits under the Temporary Assistance for Needy Families program,
the Supplemental Security Income/State Supplementary Payment Program,
or a general assistance program or has demonstrated financial need
in accordance with the methodology set forth in federal law or
regulation for determining the expected family contribution of
students seeking financial aid.
(2) The governing board of a community college district also shall
waive the fee requirements of this section for any student who
demonstrates eligibility according to income standards established by
regulations of the board of governors.
(3) Paragraphs (1) and (2) may be applied to a student enrolled in
the 2005-06 academic year if the student is exempted from
nonresident tuition under paragraph (3) of subdivision (a) of Section
76140.
(h) The fee requirements of this section shall be waived for any
student who, at the time of enrollment, is a dependent or surviving
spouse who has not remarried, of any member of the California
National Guard who, in the line of duty and while in the active
service of the state, was killed, died of a disability resulting from
an event that occurred while in the active service of the state, or
is permanently disabled as a result of an event that occurred while
in the active service of the state. "Active service of the state,"
for the purposes of this subdivision, refers to a member of the
California National Guard activated pursuant to Section 146 of the
Military and Veterans Code.
(i) The fee requirements of this section shall be waived for any
student who is the surviving spouse or the child, natural or adopted,
of a deceased person who met all of the requirements of Section
68120.
(j) The fee requirements of this section shall be waived for any
student in an undergraduate program, including a student who has
previously graduated from another undergraduate or graduate program,
who is the dependent of any individual killed in the September 11,
2001, terrorist attacks on the World Trade Center and the Pentagon or
the crash of United Airlines Flight 93 in southwestern Pennsylvania,
if that dependent meets the financial need requirements set forth in
Section 69432.7 for the Cal Grant A Program and either of the
following applies:
(1) The dependent was a resident of California on September 11,
2001.
(2) The individual killed in the attacks was a resident of
California on September 11, 2001.
(k) A determination of whether a person is a resident of
California on September 11, 2001, for purposes of subdivision (j)
shall be based on the criteria set forth in Chapter 1 (commencing
with Section 68000) of Part 41 of Division 5 for determining
nonresident and resident tuition.
(l) (1) "Dependent," for purposes of subdivision (j), is a person
who, because of his or her relationship to an individual killed as a
result of injuries sustained during the terrorist attacks of
September 11, 2001, qualifies for compensation under the federal
September 11th Victim Compensation Fund of 2001 (Title IV (commencing
with Section 401) of Public Law 107-42).
(2) A dependent who is the surviving spouse of an individual
killed in the terrorist attacks of September 11, 2001, is entitled to
the waivers provided in this section until January 1, 2013.
(3) A dependent who is the surviving child, natural or adopted, of
an individual killed in the terrorist attacks of September 11, 2001,
is entitled to the waivers under subdivision (j) until that person
attains 30 years of age.
(4) A dependent of an individual killed in the terrorist attacks
of September 11, 2001, who is determined to be eligible by the
California Victim Compensation and Government Claims Board, is also
entitled to the waivers provided in this section until January 1,
2013.
(m) (1) It is the intent of the Legislature that sufficient funds
be provided to support the provision of a fee waiver for every
student who demonstrates eligibility pursuant to subdivisions (g) to
(j), inclusive.
(2) From funds provided in the annual Budget Act, the board of
governors shall allocate to community college districts, pursuant to
this subdivision, an amount equal to 2 percent of the fees waived
pursuant to subdivisions (g) to (j), inclusive. From funds provided
in the annual Budget Act, the board of governors shall allocate to
community college districts, pursuant to this subdivision, an amount
equal to ninety-one cents ($0.91) per credit unit waived pursuant to
subdivisions (g) to (j), inclusive. It is the intent of the
Legislature that funds provided pursuant to this subdivision be used
to support the determination of financial need and delivery of
student financial aid services, on the basis of the number of
students for whom fees are waived. It also is the intent of the
Legislature that the funds provided pursuant to this subdivision
directly offset mandated costs claimed by community college districts
pursuant to Commission on State Mandates consolidated Test Claims
99-TC-13 (Enrollment Fee Collection) and 00-TC-15 (Enrollment Fee
Waivers). Funds allocated to a community college district for
determination of financial need and delivery of student financial aid
services shall supplement, and shall not supplant, the level of
funds allocated for the administration of student financial aid
programs during the 1992-93 fiscal year.
(n) The board of governors shall adopt regulations implementing
this section.
(o) This section shall become operative on May 1, 2012, only if
subdivision (b) of Section 3.94 of the Budget Act of 2011 is
operative.
SEC. 43. Section 89918 of the Education Code is amended to read:
89918. (a) Notwithstanding any other provision of law, and except
as provided for in subdivision (c), whenever an auxiliary
organization discloses a record it maintains that is otherwise exempt
from this article, this disclosure shall constitute a waiver of the
exemptions specified in this article.
(b) For purposes of this section, "auxiliary organization"
includes a member, agent, volunteer, or officer of the auxiliary
organization acting within the scope of his or her affiliation with
the organization.
(c) Subdivision (a) shall not apply to the following disclosures:
(1) Disclosures made to a donor or prospective donor with regard
to that donor's donation or prospective donation to an auxiliary
organization.
(2) Disclosures made to a volunteer or prospective volunteer with
respect to that volunteer's services being provided to the auxiliary
organization.
(3) Disclosures made through other legal proceedings or as
otherwise required by law.
(4) Disclosures within the scope of a disclosure required by law
that limits disclosure of specified writings to certain purposes.
(5) Disclosures described in subdivision (a) of Section 89916 to
an auditor conducting an audit.
(6) Disclosures described in subdivision (a) of Section 89916 to a
bank or similar financial institution in the course of ordinary
financial transactions, or in response to a request from the bank or
other financial institution relating to the ordinary delivery of
financial services.
SEC. 44. Section 2168 of the Elections Code, as added by Section 2
of Chapter 912 of the Statutes of 1995, is repealed.
SEC. 45. Section 2196 of the Elections Code is amended to read:
2196. (a) (1) Notwithstanding any other provision of law, a
person who is qualified to register to vote and who has a valid
California driver's license or state identification card may submit
an affidavit of voter registration electronically on the Internet Web
site of the Secretary of State.
(2) An affidavit submitted pursuant to this section is effective
upon receipt of the affidavit by the Secretary of State if the
affidavit is received on or before the last day to register for an
election to be held in the precinct of the person submitting the
affidavit.
(3) The affiant shall affirmatively attest to the truth of the
information provided in the affidavit.
(4) For voter registration purposes, the applicant shall
affirmatively assent to the use of his or her signature from his or
her driver's license or state identification card.
(5) For each electronic affidavit, the Secretary of State shall
obtain an electronic copy of the applicant's signature from his or
her driver's license or state identification card directly from the
Department of Motor Vehicles.
(6) The Secretary of State shall require a person who submits an
affidavit pursuant to this section to submit all of the following:
(A) The number from his or her California driver's license or
state identification card.
(B) His or her date of birth.
(C) The last four digits of his or her social security number.
(D) Any other information the Secretary of State deems necessary
to establish the identity of the affiant.
(7) Upon submission of an affidavit pursuant to this section, the
electronic voter registration system shall provide for immediate
verification of both of the following:
(A) That the applicant has a California driver's license or state
identification card and that the number for that driver's license or
identification card provided by the applicant matches the number for
that person's driver's license or identification card that is on file
with the Department of Motor Vehicles.
(B) That the date of birth provided by the applicant matches the
date of birth for that person that is on file with the Department of
Motor Vehicles.
(8) The Secretary of State shall employ security measures to
ensure the accuracy and integrity of voter registration affidavits
submitted electronically pursuant to this section.
(b) The Department of Motor Vehicles shall utilize the electronic
voter registration system required by this section to comply with its
duties and responsibilities as a voter registration agency pursuant
to the federal National Voter Registration Act of 1993 (42 U.S.C.
Sec. 1973gg et seq.).
(c) The Department of Motor Vehicles and the Secretary of State
shall develop a process and the infrastructure to allow the
electronic copy of the applicant's signature and other information
required under this section that is in the possession of the
department to be transferred to the Secretary of State and to the
county election management systems to allow a person who is qualified
to register to vote in California to register to vote under this
section.
(d) If an applicant cannot electronically submit the information
required pursuant to paragraph (6) of subdivision (a), he or she
shall nevertheless be able to complete the affidavit of voter
registration electronically on the Secretary of State's Internet Web
site, print a hard copy of the completed affidavit, and mail or
deliver the hard copy of the completed affidavit to the Secretary of
State or the appropriate county elections official.
(e) This chapter shall become operative upon the date that either
of the following occurs:
(1) The Secretary of State certifies that the state has a
statewide voter registration database that complies with the
requirements of the federal Help America Vote Act of 2002 (42 U.S.C.
Sec. 15301 et seq.).
(2) The Secretary of State executes a declaration stating that all
of the following conditions have occurred:
(A) The United States Election Assistance Commission has approved
the use of the federal Help America Vote Act of 2002 (42 U.S.C. Sec.
15301) funding to provide online voter registration in advance of the
deployment of the statewide voter registration database or other
federal funding is available and approved for the same purpose.
(B) The Department of Motor Vehicles and the Secretary of State
have developed a process and the infrastructure necessary to
implement paragraph (5) of subdivision (a).
(C) All county election management systems have been modified to
receive and store electronic voter registration information received
from the Secretary of State in order to allow a person who is
qualified to register to vote in California to register to vote under
this section.
(f) For purposes of implementing this chapter as expeditiously as
possible, if it becomes operative pursuant to paragraph (2) of
subdivision (e), the Secretary of State's office shall be exempt from
information technology requirements included in Sections 11545,
11546, and 11547 of the Government Code and Section 12100 of the
Public Contract Code, and from information technology project and
funding approvals included in any other provision of law.
SEC. 46. Section 3206 of the Elections Code is amended to read:
3206. A voter whose name appears on the permanent vote by mail
voter list shall remain on the list and shall be mailed a vote by
mail ballot for each election conducted within the precinct in which
he or she is eligible to vote. If the voter fails to return an
executed vote by mail ballot in four consecutive statewide general
elections in accordance with Section 3017, the voter's name shall be
deleted from the list.
SEC. 47. Section 18106 of the Elections Code is amended to read:
18106. Every person is punishable by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16 months or
two or three years, or in a county jail for not more than one year
who, without the specific consent of the affiant, willfully and with
the intent to affect the affiant's voting rights, causes, procures,
or allows the completion, alteration, or defacement of the affiant's
party affiliation declaration contained in an executed, or partially
executed, affidavit of registration pursuant to paragraph (8) of
subdivision (a) of Section 2150 and Section 2151.
This section shall not apply to a county elections official
carrying out his or her official duties.
SEC. 48. Section 9213 of the Family Code is amended and renumbered
to read:
9321.5. (a) Notwithstanding Section 9321, a person who is a
resident of this state may file a petition for adult adoption with
the court in any of the following:
(1) The county in which the prospective adoptive parent resides.
(2) The county in which the proposed adoptee was born or resides
at the time the petition was filed.
(3) The county in which an office of the public or private agency
that placed the proposed adoptee for foster care or adoption as a
minor or dependent child is located.
(b) A petitioner who is not a resident of this state may file a
petition for adult adoption with the court in a county specified in
paragraph (3) of subdivision (a).
SEC. 49. Section 14101.6 of the Financial Code is amended to read:
14101.6. (a) Every credit union shall, within 90 days after the
filing of its original articles and annually thereafter during the
applicable filing period in each year, file, in a form prescribed by
the Secretary of State, a statement containing: (1) the name of the
credit union and the Secretary of State's file number; (2) the names
and complete business or residence addresses of its chief executive
officers, secretary, and chief financial officer; (3) the street
address of its principal office, if any; (4) if the credit union
chooses to receive renewal notices and any other notifications from
the Secretary of State by electronic mail instead of by United States
mail, a valid electronic mail address for the credit union or for
the credit union's designee to receive those notices; and (5) the
mailing address of the credit union, if different from the street
address of its principal office.
(b) The statement required by subdivision (a) shall also
designate, as the agent of the credit union for the purpose of
service of process, a natural person residing in this state or any
domestic or foreign business corporation that has complied with
Section 1505 of the Corporations Code and whose capacity to act as an
agent has not terminated. If a natural person is designated, the
statement shall set forth that person's complete business or
residence street address. If a corporate agent is designated, no
address for it shall be set forth.
(c) For the purposes of this section, the applicable filing period
for a credit union shall be the calendar month during which its
original articles were filed and the immediately preceding five
calendar months. The Secretary of State shall provide a notice to
each credit union to comply with this section approximately three
months prior to the close of the applicable filing period. The notice
shall state the due date for compliance and shall be sent to the
last address of the credit union according to the records of the
Secretary of State if the credit union has elected to receive notices
from the Secretary of State by electronic mail. Neither the failure
of the Secretary of State to provide the notice nor the failure of
the credit union to receive it is an excuse for failure to comply
with this section.
(d) Whenever any of the information required by subdivision (a) is
changed, the credit union may file a current statement containing
all the information required thereby. In order to change its agent
for service of process or the address of the agent, the corporation
must file a current statement containing all the information required
by subdivisions (a) and (b). Whenever any statement is filed
pursuant to this section, it supersedes any previously filed
statement and the statement in the articles as to the agent for
service of process and the address of the agent.
(e) An agent designated for service of process pursuant to
subdivision (b) may file a signed and acknowledged written statement
of resignation as such agent. Thereupon the authority of the agent to
act in such capacity shall cease and the Secretary of State
forthwith shall notify the credit union of the filing of the
statement of resignation.
(f) If a natural person who has been designated agent for service
of process pursuant to subdivision (b) dies or resigns or no longer
resides in the state, or if the corporate agent for such purpose
resigns, dissolves, withdraws from the state, forfeits its right to
transact intrastate business, has its corporate rights, powers, and
privileges suspended or ceases to exist, the credit union shall
forthwith file a new statement designating a new agent conforming to
the requirements of subdivision (a).
(g) Under regulations adopted by the Secretary of State, the
resignation of an agency may be effective if the agent disclaims
having been properly appointed as the agent.
(h) The Secretary of State may destroy or otherwise dispose of any
statement filed pursuant to this section after it has been
superseded by the filing of a new statement.
(i) This section shall not be construed to place any person
dealing with the credit union on notice of or in any duty to inquire
about the existence or content of the statement filed pursuant to
this section.
SEC. 50. Section 8276.5 of the Fish and Game Code is amended to
read:
8276.5. (a) In consultation with the Dungeness crab task force,
or its appointed representatives, the director shall adopt a program,
by March 31, 2013, for Dungeness crab trap limits for all California
permits. Unless the director finds that there is consensus in the
Dungeness crab industry that modifications to the following
requirements are more desirable, with evidence of consensus,
including, but not limited to, the record of the Dungeness crab task
force, the program shall include all of the following requirements:
(1) The program shall contain seven tiers of Dungeness crab trap
limits based on California landings receipts under California permits
between November 15, 2003, and July 15, 2008, as follows:
(A) The 55 California permits with the highest California landings
shall receive a maximum allocation of 500 trap tags.
(B) The 55 California permits with the next highest California
landings to those in subparagraph (A) shall receive a maximum
allocation of 450 trap tags.
(C) The 55 California permits with the next highest California
landings to those in subparagraph (B) shall receive a maximum
allocation of 400 trap tags.
(D) The 55 California permits with the next highest California
landings to those in subparagraph (C) shall receive a maximum
allocation of 350 trap tags.
(E) The 55 California permits with the next highest California
landings to those in subparagraph (D) shall receive a maximum
allocation of 300 trap tags.
(F) The remaining California permits with the next highest
California landings to those in subparagraph (E), which are not
described in paragraph (1) or (2) of subdivision (g) of Section
8276.4, shall receive a maximum allocation of 250 trap tags.
(G) The California permits described in paragraphs (1) and (2) of
subdivision (g) of Section 8276.4 shall receive a maximum allocation
of 175 tags. The tags in this tier shall not be transferable for the
first two years of the program.
(2) Notwithstanding paragraph (1), the director shall not remove a
permitholder from a tier described in paragraph (1), if after an
allocation is made pursuant to paragraph (1) an appeal pursuant to
paragraph (6) places a permitholder in a tier different than the
original allocation.
(3) Participants in the program shall meet all of the following
requirements:
(A) Pay a biennial fee for each trap tag issued pursuant to this
section to pay the pro rata share of costs of the program, including,
but not limited to, informing permitholders of the program,
collecting fees, acquiring and sending trap tags to permitholders,
paying for a portion of enforcement costs, and monitoring the results
of the program. The fee shall not exceed five dollars ($5) per trap,
per two-year period. All of the trap tags allocated to each permit
pursuant to subdivision (a) shall be purchased by the permitholder or
the permit shall be void.
(B) Purchase a biennial crab trap limit permit of not more than
one thousand dollars ($1,000) per two-year period to pay for the
department's reasonable regulatory costs.
(C) Not lease a crab trap tag, and transfer a tag only as part of
a transaction to purchase a California permitted crab vessel.
(D) A Dungeness crab trap that is fished shall contain a trap tag
that is fastened to the main buoy, and an additional tag provided by
the permitholder attached to the trap. The department shall mandate
the information that is required to appear on both buoy and trap
tags.
(4) The department shall annually provide an accounting of all
costs associated with the crab trap limit program. Excess funds
collected by the department shall be used to reduce the cost of the
crab trap limit permit fee or tag fee in subsequent years of the
program.
(5) Permitholders may replace lost tags by application to the
department and payment of a fee not to exceed the reasonable costs
incurred by the department. The department may waive or reduce a fee
in the case of catastrophic loss of tags.
(6) An individual may submit an appeal of a trap tag allocation
received pursuant to this section, by March 31, 2014, to the director
on a permit-by-permit basis for the purpose of revising upward or
downward any trap tag allocation based on evidence that a permit's
California landings during the period between November 15, 2003, and
July 15, 2008, inclusive, were reduced as a result of unusual
circumstances and that these circumstances constitute an unfair
hardship, taking into account the overall California landings history
as indicated by landing receipts associated with the permit. The
director shall initiate the appeal process within 12 months of
receiving an appeal request. The appeal shall be heard and decided by
an administrative law judge of the Office of Administrative
Hearings, whose decision shall constitute the final administrative
decision. An individual requesting an appeal shall pay all expenses,
including a nonrefundable filing fee, as determined by the
department, to pay for the department's reasonable costs associated
with the appeal process described in this
paragraph.
(b) (1) In addition to criminal penalties authorized by law, a
violation of the requirements of the program created pursuant to this
section shall be subject to the following civil penalties:
(A) Conviction of a first offense shall result in a fine of not
less than two hundred fifty dollars ($250) and not more than one
thousand dollars ($1,000) per illegal trap or fraudulent tag.
(B) Conviction of a second offense shall result in a fine of not
less than five hundred dollars ($500) and not more than two thousand
five hundred dollars ($2,500) per illegal trap or fraudulent tag, and
the permit may be suspended for one year.
(C) Conviction of a third offense shall result in a fine of not
less than one thousand dollars ($1,000) and not more than five
thousand dollars ($5,000) per illegal trap or fraudulent tag, and the
permit may be permanently revoked.
(2) The severity of a penalty within the ranges described in this
subdivision shall be based on a determination whether the violation
was willful or negligent and other factors.
(3) The portion of monetary judgments for noncompliance that are
paid to the department shall be deposited in the Dungeness Crab
Account created pursuant to subdivision (e).
(c) For the purposes of this section, a proposed recommendation
that receives an affirmative vote of at least 15 of the non-ex
officio members of the Dungeness crab task force may be transmitted
to the director or the Legislature as a recommendation, shall be
considered to be the consensus of the task force, and shall be
considered to be evidence of consensus in the Dungeness crab
industry. Any proposed recommendation that does not receive a vote
sufficient to authorize transmittal to the director or Legislature as
a recommendation shall be evidence of a lack of consensus by the
Dungeness crab task force, and shall be considered to be evidence of
a lack of consensus in the crab industry.
(d) (1) The director shall submit a proposed program pursuant to
this section to the Dungeness crab task force for review, and shall
not implement the program until the task force has had 60 days or
more to review the proposed program and recommend any proposed
changes. The director may implement the program earlier than 60 days
after it is submitted to the Dungeness crab task force for review, if
recommended by the task force.
(2) After the program is implemented pursuant to paragraph (1),
the director may modify the program, if consistent with the
requirements of this section, after consultation with the Dungeness
crab task force or its representatives and after the task force has
had 60 days or more to review the proposed modifications and
recommend any proposed changes. The director may implement the
modifications earlier than 60 days after it is sent to the Dungeness
crab task force for review, if recommended by the task force.
(e) The Dungeness Crab Account is hereby established in the Fish
and Game Preservation Fund and the fees collected pursuant to this
section shall be deposited in that account. The money in the account
shall be used by the department, upon appropriation by the
Legislature, for administering and enforcing the program.
(f) For purposes of meeting the necessary expenses of initial
organization and operation of the program until fees may be
collected, or other funding sources may be received, the department
may borrow money as needed for these expenses from the council. The
borrowed money shall be repaid within one year from the fees
collected or other funding sources received. The council shall give
high priority to providing funds or services to the department, in
addition to loans, to assist in the development of the program,
including, but not limited to, the costs of convening the Dungeness
crab task force, environmental review, and the department's costs of
attending meetings with task force members.
(g) (1) It is the intent of the Legislature that the department,
the council, and the Dungeness crab task force work with the Pacific
States Marine Fisheries Commission and the Tri-State Dungeness Crab
Commission to resolve any issues pertaining to moving the fair start
line south to the border of California and Mexico.
(2) For the purposes of this subdivision, the resolution of issues
pertaining to the fair start line shall be limited to assessing the
positive and negative implications of including District 10 in the
tri-state agreement, including working with the Tri-State Dungeness
Crab Commission to amend Oregon and Washington laws to include
District 10 in the regular season fair start clause, and discussion
of providing different rules for District 10 with regard to preseason
quality testing.
(h) For purposes of this section, "council" means the Ocean
Protection Council established pursuant to Section 35600 of the
Public Resources Code.
(i) This section shall become inoperative on April 1, 2019, and,
as of January 1, 2020, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2020, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 51. Section 27551 of the Food and Agricultural Code is
amended to read:
27551. The following persons shall pay to the secretary a maximum
fee of fifteen cents ($0.15) for each 30 dozen eggs sold as provided
below:
(a) California egg handlers shall pay the fee on all egg sales
from their own production, on eggs purchased or acquired from
California egg producers, and on eggs processed into egg products.
California egg handlers shall not pay a fee on eggs purchased from
out-of-state egg handlers or egg producers.
(b) California egg producers shall pay the fee on all egg sales to
anyone not registered under this chapter as an egg handler, to
out-of-state purchasers, and to egg breaking plants.
(c) Out-of-state egg handlers and producers shall report and pay
the fee on egg sales into California sold to a retailer, producer,
handler, or breaking plant, and on egg products brought into the
state, at a maximum rate of fifteen cents ($0.15) for each equivalent
of 30 dozen eggs.
(d) Shipments of eggs that are accompanied by a United States
Department of Agriculture certificate of grade and sold to the
federal government or its agencies are exempt from these fees.
(e) Eggs sold to household consumers on the premises where
produced from a total flock size of 500 hens or fewer are exempt from
these fees.
(f) The assessment provided for in this section shall be paid only
once on any particular egg.
SEC. 52. Section 30801 of the Food and Agricultural Code is
amended to read:
30801. (a) A board of supervisors may provide for the issuance of
serially numbered metallic dog licenses pursuant to this section.
The dog licenses shall be stamped with the name of the county and the
year of issue.
(b) The board of supervisors or animal control department may
authorize veterinarians to issue the licenses to owners of dogs who
apply.
(c) The licenses shall be issued for a period of not to exceed two
years.
(d) In addition to the authority provided in subdivisions (a),
(b), and (c), a license may be issued, as provided by this section,
by a board of supervisors for a period not to exceed three years for
dogs that have attained the age of 12 months, or older, and who have
been vaccinated against rabies. The person to whom the license is to
be issued pursuant to this subdivision may choose a license period as
established by the board of supervisors of up to one, two, or three
years. However, when issuing a license pursuant to this subdivision,
the license period shall not extend beyond the remaining period of
validity for the current rabies vaccination.
SEC. 53. Section 1322 of the Government Code is amended to read:
1322. In addition to any other statutory provisions requiring
confirmation by the Senate of officers appointed by the Governor, the
appointments by the Governor of the following officers and the
appointments by him or her to the listed boards and commissions are
subject to confirmation by the Senate:
(a) California Horse Racing Board.
(b) Court Reporters Board of California.
(c) Chief, Division of Occupational Safety and Health.
(d) Chief, Division of Labor Standards Enforcement.
(e) Commissioner of Corporations.
(f) Contractors' State License Board.
(g) Director of Fish and Game.
(h) Director of Health Care Services.
(i) Chief Deputy, State Department of Health Care Services.
(j) Real Estate Commissioner.
(k) State Athletic Commissioner.
(l) State Board of Barbering and Cosmetology.
(m) State Librarian.
(n) Director of Social Services.
(o) Chief Deputy, State Department of Social Services.
(p) Director of Mental Health.
(q) Chief Deputy, State Department of Mental Health.
(r) Director of Developmental Services.
(s) Chief Deputy, State Department of Developmental Services.
(t) Director of Alcohol and Drug Programs.
(u) Director of Rehabilitation.
(v) Chief Deputy, Department of Rehabilitation.
(w) Director of Statewide Health Planning and Development.
(x) Deputy, California Health and Human Services Agency.
(y) Director of the Department of Managed Health Care.
(z) Patient Advocate, California Health and Human Services Agency.
(aa) State Public Health Officer, State Department of Public
Health.
(ab) Chief Deputy, State Department of Public Health.
SEC. 54. Section 3540.1 of the Government Code is amended to read:
3540.1. As used in this chapter:
(a) "Board" means the Public Employment Relations Board created
pursuant to Section 3541.
(b) "Certified organization" or "certified employee organization"
means an organization that has been certified by the board as the
exclusive representative of the public school employees in an
appropriate unit after a proceeding under Article 5 (commencing with
Section 3544).
(c) "Confidential employee" means an 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 that is used to contribute significantly
to the development of management positions.
(d) "Employee organization" means an organization that includes
employees of a public school employer and that has as one of its
primary purposes representing those employees in their relations with
that public school employer. "Employee organization" shall also
include any person of the organization authorized to act on its
behalf.
(e) "Exclusive representative" means the employee organization
recognized or certified as the exclusive negotiating representative
of public school employees, as "public school employee" is defined in
subdivision (j), in an appropriate unit of a public school employer.
(f) "Impasse" means that the parties to a dispute over matters
within the scope of representation have reached a point in meeting
and negotiating at which their differences in positions are so
substantial or prolonged that future meetings would be futile.
(g) "Management employee" means an employee in a position having
significant responsibilities for formulating district policies or
administering district programs. Management positions shall be
designated by the public school employer subject to review by the
Public Employment Relations Board.
(h) "Meeting and negotiating" means meeting, conferring,
negotiating, and discussing by the exclusive representative and the
public school employer in a good faith effort to reach agreement on
matters within the scope of representation and the execution, if
requested by either party, of a written document incorporating any
agreements reached, which document shall, when accepted by the
exclusive representative and the public school employer, become
binding upon both parties and, notwithstanding Section 3543.7, is not
subject to subdivision 2 of Section 1667 of the Civil Code. The
agreement may be for a period of not to exceed three years.
(i) "Organizational security" is within the scope of
representation, and means either of the following:
(1) An arrangement pursuant to which a public school employee may
decide whether or not to join an employee organization, but which
requires him or her, as a condition of continued employment, if he or
she does join, to maintain his or her membership in good standing
for the duration of the written agreement. However, an arrangement
shall not deprive the employee of the right to terminate his or her
obligation to the employee organization within a period of 30 days
following the expiration of a written agreement.
(2) An arrangement that requires an employee, as a condition of
continued employment, either to join the recognized or certified
employee organization, or to pay the organization a service fee in an
amount not to exceed the standard initiation fee, periodic dues, and
general assessments of the organization for the duration of the
agreement, or a period of three years from the effective date of the
agreement, whichever comes first.
(j) "Public school employee" or "employee" means a person employed
by a public school employer except persons elected by popular vote,
persons appointed by the Governor of this state, management
employees, and confidential employees.
(k) "Public school employer" or "employer" means the governing
board of a school district, a school district, a county board of
education, a county superintendent of schools, a charter school that
has declared itself a public school employer pursuant to subdivision
(b) of Section 47611.5 of the Education Code, an auxiliary
organization established pursuant to Article 6 (commencing with
Section 72670) of Chapter 6 of Part 45 of Division 7 of Title 3 of
the Education Code, except an auxiliary organization solely formed as
or operating a student body association or student union, or a joint
powers agency, except a joint powers agency established solely to
provide services pursuant to Section 990.8, if all the following
apply to the joint powers agency:
(1) It is created as an agency or entity that is separate from the
parties to the joint powers agreement pursuant to Section 6503.5.
(2) It has its own employees separate from employees of the
parties to the joint powers agreement.
(3) Any of the following are true:
(A) It provides educational services primarily performed by a
school district, county board of education, or county superintendent
of schools.
(B) A school district, county board of education, or county
superintendent of schools is designated in the joint powers agreement
pursuant to Section 6509.
(C) It is comprised solely of educational agencies.
(l) "Recognized organization" or "recognized employee organization"
means an employee organization that has been recognized by an
employer as the exclusive representative pursuant to Article 5
(commencing with Section 3544).
(m) "Supervisory employee" means an employee, regardless of job
description, having authority in the interest of the employer to
hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or the responsibility to
assign work to and direct them, or to adjust their grievances, or
effectively recommend that action, if, in connection with the
foregoing functions, the exercise of that authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment.
SEC. 55. Section 6208.2 of the Government Code is amended to read:
6208.2. (a) (1) No person shall post on the Internet, with the
intent that another person imminently use that information to commit
a crime involving violence or a threat of violence against the
participant or the program participant's family members who are
participating in the program, the home address, the telephone number,
or personal identifying information of a program participant or the
program participant's family members who are participating in the
program.
(2) A violation of this subdivision is a misdemeanor punishable by
a fine of up to two thousand five hundred dollars ($2,500), or
imprisonment of up to six months in a county jail, or by both that
fine and imprisonment.
(3) A violation of this subdivision that leads to the bodily
injury of the program participant, or of any of the program
participant's family members who are participating in the program, is
a misdemeanor punishable by a fine of up to five thousand dollars
($5,000), or imprisonment of up to one year in a county jail, or by
both that fine and imprisonment.
(b) Nothing in this section shall preclude prosecution under any
other provision of law.
SEC. 56. Section 6218.01 of the Government Code is amended to
read:
6218.01. (a) (1) No person shall post on the Internet, with the
intent that another person imminently use that information to commit
a crime involving violence or a threat of violence against the
provider, employee, volunteer, or patient of a reproductive health
service facility or other individuals residing at the same home
address, the home address, the telephone number, or personal
identifying information of a provider, employee, volunteer, or
patient of a reproductive health services facility or other
individuals residing at the same home address.
(2) A violation of this subdivision is a misdemeanor punishable by
a fine of up to two thousand five hundred dollars ($2,500),
imprisonment of up to six months in a county jail, or by both that
fine and imprisonment.
(3) A violation of this subdivision that leads to the bodily
injury of the provider, employee, volunteer, or patient of a
reproductive health services facility or other individuals residing
at the same home address, is a misdemeanor punishable by a fine of up
to five thousand dollars ($5,000), imprisonment of up to one year in
a county jail, or by both that fine and imprisonment.
(b) Nothing in this section shall preclude prosecution under any
other provision of law.
SEC. 57. Section 7572 of the Government Code is amended to read:
7572. (a) A child shall be assessed in all areas related to the
suspected disability by those qualified to make a determination of
the child's need for the service before any action is taken with
respect to the provision of related services or designated
instruction and services to a child, including, but not limited to,
services in the areas of occupational therapy and physical therapy.
All assessments required or conducted pursuant to this section shall
be governed by the assessment procedures contained in Article 2
(commencing with Section 56320) of Chapter 4 of Part 30 of Division 4
of Title 2 of the Education Code.
(b) Occupational therapy and physical therapy assessments shall be
conducted by qualified medical personnel as specified in regulations
developed by the State Department of Health Care Services in
consultation with the State Department of Education.
(c) A related service or designated instruction and service shall
only be added to the child's individualized education program by the
individualized education program team, as described in Part 30
(commencing with Section 56000) of Division 4 of Title 2 of the
Education Code, if a formal assessment has been conducted pursuant to
this section, and a qualified person conducting the assessment
recommended the service in order for the child to benefit from
special education. In no case shall the inclusion of necessary
related services in a pupil's individualized education plan be
contingent upon identifying the funding source. Nothing in this
section shall prevent a parent from obtaining an independent
assessment in accordance with subdivision (b) of Section 56329 of the
Education Code, which shall be considered by the individualized
education program team.
(1) If an assessment has been conducted pursuant to subdivision
(b), the recommendation of the person who conducted the assessment
shall be reviewed and discussed with the parent and with appropriate
members of the individualized education program team prior to the
meeting of the individualized education program team. When the
proposed recommendation of the person has been discussed with the
parent and there is disagreement on the recommendation pertaining to
the related service, the parent shall be notified in writing and may
require the person who conducted the assessment to attend the
individualized education program team meeting to discuss the
recommendation. The person who conducted the assessment shall attend
the individualized education program team meeting if requested.
Following this discussion and review, the recommendation of the
person who conducted the assessment shall be the recommendation of
the individualized education program team members who are attending
on behalf of the local educational agency.
(2) If an independent assessment for the provision of related
services or designated instruction and services is submitted to the
individualized education program team, review of that assessment
shall be conducted by the person specified in subdivision (b). The
recommendation of the person who reviewed the independent assessment
shall be reviewed and discussed with the parent and with appropriate
members of the individualized education program team prior to the
meeting of the individualized education program team. The parent
shall be notified in writing and may request the person who reviewed
the independent assessment to attend the individualized education
program team meeting to discuss the recommendation. The person who
reviewed the independent assessment shall attend the individualized
education program team meeting if requested. Following this review
and discussion, the recommendation of the person who reviewed the
independent assessment shall be the recommendation of the
individualized education program team members who are attending on
behalf of the local educational agency.
(3) Any disputes between the parent and team members representing
the public agencies regarding a recommendation made in accordance
with paragraphs (1) and (2) shall be resolved pursuant to Chapter 5
(commencing with Section 56500) of Part 30 of Division 4 of Title 2
of the Education Code.
(d) Whenever a related service or designated instruction and
service specified in subdivision (b) is to be considered for
inclusion in the child's individualized educational program, the
local educational agency shall invite the responsible public agency
representative to meet with the individualized education program team
to determine the need for the service and participate in developing
the individualized education program. If the responsible public
agency representative cannot meet with the individualized education
program team, then the representative shall provide written
information concerning the need for the service pursuant to
subdivision (c). Conference calls, together with written
recommendations, are acceptable forms of participation. If the
responsible public agency representative will not be available to
participate in the individualized education program team meeting, the
local educational agency shall ensure that a qualified substitute is
available to explain and interpret the evaluation pursuant to
subdivision (d) of Section 56341 of the Education Code. A copy of the
information shall be provided by the responsible public agency to
the parents or any adult pupil for whom no guardian or conservator
has been appointed.
SEC. 58. Section 7582 of the Government Code is amended to read:
7582. Assessments and therapy treatment services provided under
programs of the State Department of Health Care Services, or its
designated local agencies, rendered to a child referred by a local
educational agency for an assessment or a disabled child or youth
with an individualized education program, shall be exempt from
financial eligibility standards and family repayment requirements for
these services when rendered pursuant to this chapter.
SEC. 59. Section 8310.7 of the Government Code is amended to read:
8310.7. (a) This section shall only apply to the following state
agencies:
(1) The Department of Industrial Relations.
(2) The Department of Fair Employment and Housing.
(b) In addition to the duties imposed under Section 8310.5, the
state agencies described in subdivision (a), in the course of
collecting demographic data directly or by contract as to the
ancestry or ethnic origin of California residents, shall collect and
tabulate data for the following:
(1) Additional major Asian groups, including, but not limited to,
Bangladeshi, Hmong, Indonesian, Malaysian, Pakistani, Sri Lankan,
Taiwanese, and Thai.
(2) Additional major Native Hawaiian and other Pacific Islander
groups, including, but not limited to, Fijian and Tongan.
(c) The state agencies identified in subdivision (a) shall make
any data collected pursuant to subdivision (b) publicly available,
except for personal identifying information, which shall be deemed
confidential, by posting the data on the Internet Web site of the
agency on or before July 1, 2012, and annually thereafter. This
subdivision shall not be construed to prevent any other state agency
from posting data collected pursuant to subdivision (b) on the agency'
s Internet Web site, in the manner prescribed by this section.
(d) The state agencies identified in subdivision (a) shall, within
18 months after the decennial United States Census for the year 2020
is released to the public, update their data collection to reflect
the additional Asian groups and additional Native Hawaiian and
Pacific Islander groups as they are reported by the United States
Census Bureau.
SEC. 60. Section 12011.5 of the Government Code is amended to
read:
12011.5. (a) In the event of a vacancy in a judicial office to be
filled by appointment of the Governor, or in the event that a
declaration of candidacy is not filed by a judge and the Governor is
required under subdivision (d) of Section 16 of Article VI of the
California Constitution to nominate a candidate, the Governor shall
first submit to a designated agency of the State Bar of California
the names of all potential appointees or nominees for the judicial
office for evaluation of their judicial qualifications.
(b) The membership of the designated agency of the State Bar
responsible for evaluation of judicial candidates shall consist of
attorney members and public members with the ratio of public members
to attorney members determined, to the extent practical, by the ratio
established in Section 6013.5 of the Business and Professions Code.
It is the intent of this subdivision that the designated agency of
the State Bar
responsible for evaluation of judicial candidates shall be broadly
representative of the ethnic, gender, and racial diversity of the
population of California and composed in accordance with Sections
11140 and 11141. The further intent of this subdivision is to
establish a selection process for membership on the designated agency
of the State Bar responsible for evaluation of judicial candidates
under which no member of that agency shall provide inappropriate,
multiple representation for purposes of this subdivision. Each member
of the designated agency of the State Bar responsible for evaluation
of judicial candidates shall complete a minimum of 60 minutes of
training in the areas of fairness and bias in the judicial
appointments process at an orientation for new members. If the member
serves more than one term, the member shall complete an additional
60 minutes of that training during the member's service on the
designated agency of the State Bar responsible for evaluation of
judicial candidates.
(c) Upon receipt from the Governor of the names of candidates for
judicial office and their completed personal data questionnaires, the
State Bar shall employ appropriate confidential procedures to
evaluate and determine the qualifications of each candidate with
regard to his or her ability to discharge the judicial duties of the
office to which the appointment or nomination shall be made. Within
90 days of submission by the Governor of the name of a potential
appointee for judicial office, the State Bar shall report in
confidence to the Governor its recommendation whether the candidate
is exceptionally well qualified, well qualified, qualified, or not
qualified and the reasons therefor, and may report, in confidence,
other information as the State Bar deems pertinent to the
qualifications of the candidate.
(d) In determining the qualifications of a candidate for judicial
office, the State Bar shall consider, among other appropriate
factors, his or her industry, judicial temperament, honesty,
objectivity, community respect, integrity, health, ability, and legal
experience. The State Bar shall consider legal experience broadly,
including, but not limited to, litigation and nonlitigation
experience, legal work for a business or nonprofit entity, experience
as a law professor or other academic position, legal work in any of
the three branches of government, and legal work in dispute
resolution.
(e) The State Bar shall establish and promulgate rules and
procedures regarding the investigation of the qualifications of
candidates for judicial office by the designated agency. These rules
and procedures shall establish appropriate, confidential methods for
disclosing to the candidate the subject matter of substantial and
credible adverse allegations received regarding the candidate's
health, physical or mental condition, or moral turpitude which,
unless rebutted, would be determinative of the candidate's
unsuitability for judicial office. No provision of this section shall
be construed as requiring that any rule or procedure be adopted that
permits the disclosure to the candidate of information from which
the candidate may infer the source, and no information shall either
be disclosed to the candidate nor be obtainable by any process that
would jeopardize the confidentiality of communications from persons
whose opinion has been sought on the candidate's qualifications.
(f) All communications, written, verbal, or otherwise, of and to
the Governor, the Governor's authorized agents or employees,
including, but not limited to, the Governor's Legal Affairs Secretary
and Appointments Secretary, or of and to the State Bar in
furtherance of the purposes of this section are absolutely privileged
from disclosure and confidential, and any communication made in the
discretion of the Governor or the State Bar with a candidate or
person providing information in furtherance of the purposes of this
section shall not constitute a waiver of the privilege or a breach of
confidentiality.
(g) If the Governor has appointed a person to a trial court who
has been found not qualified by the designated agency, the State Bar
may make public this fact after due notice to the appointee of its
intention to do so, but that notice or disclosure shall not
constitute a waiver of privilege or breach of confidentiality with
respect to communications of or to the State Bar concerning the
qualifications of the appointee.
(h) If the Governor has nominated or appointed a person to the
Supreme Court or court of appeal in accordance with subdivision (d)
of Section 16 of Article VI of the California Constitution, the
Commission on Judicial Appointments may invite, or the State Bar's
governing board or its designated agency may submit to the
commission, its recommendation, and the reasons therefor, but that
disclosure shall not constitute a waiver of privilege or breach of
confidentiality with respect to communications of or to the State Bar
concerning the qualifications of the nominee or appointee.
(i) No person or entity shall be liable for any injury caused by
any act or failure to act, be it negligent, intentional,
discretionary, or otherwise, in the furtherance of the purposes of
this section, including, but not limited to, providing or receiving
any information, making any recommendations, and giving any reasons
therefor. As used in this section, the term "State Bar" means its
governing board and members thereof, the designated agency of the
State Bar and members thereof, and employees and agents of the State
Bar.
(j) At any time prior to the receipt of the report from the State
Bar specified in subdivision (c) the Governor may withdraw the name
of any person submitted to the State Bar for evaluation pursuant to
this section.
(k) A candidate for judicial office shall not be appointed until
the State Bar has reported to the Governor pursuant to this section,
or until 90 days have elapsed after submission of the candidate's
name to the State Bar, whichever occurs earlier. The requirement of
this subdivision shall not apply to any vacancy in judicial office
occurring within the 90 days preceding the expiration of the Governor'
s term of office, provided, however, that with respect to those
vacancies and with respect to nominations pursuant to subdivision (d)
of Section 16 of Article VI of the California Constitution, the
Governor shall be required to submit any candidate's name to the
State Bar in order to provide an opportunity, if time permits, to
make an evaluation.
(l) Nothing in this section shall be construed as imposing an
additional requirement for an appointment or nomination to judicial
office, nor shall anything in this section be construed as adding any
additional qualifications for the office of a judge.
(m) The Board of Governors of the State Bar shall not conduct or
participate in, or authorize any committee, agency, employee, or
commission of the State Bar to conduct or participate in, any
evaluation, review, or report on the qualifications, integrity,
diligence, or judicial ability of any specific justice of a court
provided for in Section 2 or 3 of Article VI of the California
Constitution without prior review and statutory authorization by the
Legislature, except an evaluation, review, or report on potential
judicial appointees or nominees as authorized by this section.
The provisions of this subdivision shall not be construed to
prohibit a member of the State Bar from conducting or participating
in an evaluation, review, or report in his or her individual
capacity.
(n) (1) Notwithstanding any other provision of this section, but
subject to paragraph (2), on or before March 1 of each year for the
prior calendar year, all of the following shall occur:
(A) The Governor shall collect and release, on an aggregate
statewide basis, all of the following:
(i) Demographic data provided by all judicial applicants relative
to ethnicity, race, gender, gender identity, and sexual orientation.
(ii) Demographic data relative to ethnicity, race, gender, gender
identity, and sexual orientation as provided by all judicial
applicants, both as to those judicial applicants who have been and
those who have not been submitted to the State Bar for evaluation.
(iii) Demographic data relative to ethnicity, race, gender, gender
identity, and sexual orientation of all judicial appointments or
nominations as provided by the judicial appointee or nominee.
(B) The designated agency of the State Bar responsible for
evaluation of judicial candidates shall collect and release both of
the following on an aggregate statewide basis:
(i) Statewide demographic data provided by all judicial applicants
reviewed relative to ethnicity, race, gender, gender identity,
sexual orientation, and areas of legal practice and employment.
(ii) The statewide summary of the recommendations of the
designated agency of the State Bar by ethnicity, race, gender, gender
identity, sexual orientation, and areas of legal practice and
employment.
(C) The Administrative Office of the Courts shall collect and
release the demographic data provided by justices and judges
described in Article VI of the California Constitution relative to
ethnicity, race, gender, gender identity, and sexual orientation by
specific jurisdiction.
(2) For purposes of subparagraph (A) of paragraph (1), in the year
following a general election or recall election that will result in
a new Governor taking office prior to March 1, the departing Governor
shall provide all of the demographic data collected for the year by
that Governor pursuant to this subdivision to the incoming Governor.
The incoming Governor shall then be responsible for releasing the
provided demographic data, and the demographic data collected by that
incoming Governor, if any, prior to the March 1 deadline imposed
pursuant to this subdivision.
(3) Any demographic data disclosed or released pursuant to this
subdivision shall disclose only aggregated statistical data and shall
not identify any individual applicant, justice, or judge.
(4) The State Bar and the Administrative Office of the Courts
shall use the following ethnic and racial categories: American Indian
or Alaska Native, Asian, Black or African American, Hispanic or
Latino, Native Hawaiian or other Pacific Islander, White, some other
race, and more than one race, as those categories are defined by the
United States Census Bureau for the 2010 Census for reporting
purposes.
(5) Any demographic data disclosed or released pursuant to this
subdivision shall also indicate the percentage of respondents who
declined to respond.
(o) Members of judicial selection advisory committees are
encouraged to recommend candidates from diverse backgrounds and
cultures reflecting the demographics of California.
(p) If any provision of this section other than a provision
relating to or providing for confidentiality or privilege from
disclosure of any communication or matter, or the application of the
provision to any person or circumstances, is held invalid, the
remainder of this section to the extent it can be given effect, or
the application of the provision to persons or circumstances other
than those as to which it is held invalid, shall not be affected
thereby, and to this extent the provisions of this section are
severable. If any other act of the Legislature conflicts with the
provisions of this section, this section shall prevail.
SEC. 61. Section 12172.5 of the Government Code is amended to
read:
12172.5. (a) The Secretary of State is the chief elections
officer of the state, and shall administer the provisions of the
Elections Code. The Secretary of State shall see that elections are
efficiently conducted and that state election laws are enforced. The
Secretary of State may require elections officers to make reports
concerning elections in their jurisdictions.
(b) If, at any time, the Secretary of State concludes that state
election laws are not being enforced, the Secretary of State shall
call the violation to the attention of the district attorney of the
county or to the Attorney General. In these instances, the Secretary
of State may assist the county elections officer in discharging his
or her duties.
(c) In order to determine whether an elections law violation has
occurred, the Secretary of State may examine voted, unvoted, spoiled
and canceled ballots, vote-counting computer programs, vote by mail
ballot envelopes and applications, and supplies referred to in
Section 14432 of the Elections Code. The Secretary of State may also
examine any other records of elections officials as he or she finds
necessary in making his or her determination, subject to the
restrictions set forth in Section 6253.5.
(d) The Secretary of State may adopt regulations to assure the
uniform application and administration of state election laws.
SEC. 62. Section 14502 of the Government Code is amended to read:
14502. The commission consists of 13 members appointed as
follows:
(a) Nine members shall be appointed by the Governor with the
advice and consent of the Senate. One member shall be appointed by
the Speaker of the Assembly and one member shall be appointed by the
Senate Committee on Rules, with neither of these members subject to
confirmation by the Senate. A member appointed pursuant to this
subdivision shall not simultaneously hold an elected public office,
or serve on any local or regional public board or commission with
business before the commission.
(b) One Member of the Senate appointed by the Senate Committee on
Rules and one Member of the Assembly appointed by the Speaker of the
Assembly shall be ex officio members without vote and shall
participate in the activities of the commission to the extent that
such participation is not incompatible with their positions as
Members of the Legislature.
(c) Notwithstanding any other provision of law, a voting member of
the commission may serve on the High-Speed Rail Authority as
established in Division 19.5 (commencing with Section 185000) of the
Public Utilities Code.
SEC. 63. Section 17280.3 of the Government Code is amended to
read:
17280.3. (a) If a registered warrant, as defined in Section
17221, is issued for payment of any principal or interest due and
payable on a state bond that is held in book entry form by a
securities settlement system, the beneficial owner of the state bond
may offset the portion of the principal amount of the registered
warrant (exclusive of interest thereon) that is attributable to that
beneficial owner's beneficial interest in the state bond against an
existing tax liability, as defined in subdivision (a) of Section
17280.1, of that beneficial owner, in accordance with Sections
17280.1 and 17280.2, or otherwise in accordance with procedures
established by the Controller, notwithstanding that the securities
settlement system, or its nominee, is the registered owner of the
state bond or the named payee of the registered warrant. The amount
of that beneficial owner's tax liability that may be offset pursuant
to this section shall not exceed the portion of the principal amount
of the registered warrant, exclusive of interest thereon, that is
attributable to the taxpayer's beneficial ownership of the state
bond. Any beneficial owner who exercises the offset right set forth
in this section in payment of an existing tax liability shall not be
entitled to receive payment of any interest accruing on the portion
of the registered warrant attributable to that beneficial owner's
beneficial interest in the state bond after the date on which the
beneficial owner exercises the offset right in accordance with the
applicable procedures, and the beneficial owner shall be required to
promptly repay to the state any interest accruing on the registered
warrant after that date that may be paid to or ultimately received by
the beneficial owner, if any. The preceding sentence shall apply
even if the portion of the principal amount of the registered warrant
that is attributable to the beneficial owner's ownership interest in
the state bond is larger than the amount of the tax liability offset
by the beneficial owner with that registered warrant. Upon
exercising the right of offset pursuant to this subdivision, the
beneficial owner shall not be permitted to sell, transfer, or assign
his or her beneficial ownership of the applicable state bond until
the applicable registered warrant has been redeemed by the state and
the beneficial owner has repaid any interest received on his or her
portion of that registered warrant attributable to the period after
that beneficial owner's exercise of the right of offset as provided
in this subdivision. For purposes of this subdivision and subdivision
(b), "state bond" means any general obligation bond or revenue
anticipation note issued by the state.
(b) No state entity shall take any action that would materially
adversely impair, limit, or restrict the rights of a beneficial owner
of a state bond, as set forth in this section, Section 17280.1, or
Section 17280.2, or any successor provisions, as those provisions
were in effect when the person or party became a beneficial owner of
the state bond, until the state bond is fully paid and discharged.
SEC. 64. Section 25825.5 of the Government Code is amended to
read:
25825.5. (a) The Legislature finds and declares all of the
following:
(1) There are ongoing discharges to the Los Osos Discharge
Prohibition Zone established in the Water Quality Control Plan for
the Central Coast Basin.
(2) The agency responsible for eliminating these discharges is the
Los Osos Community Services District, which is a relatively new
agency, formed in 1998.
(3) The Central Coast Regional Water Quality Control Board has
imposed substantial fines on the Los Osos Community Services District
for failing to make adequate progress toward eliminating these
discharges.
(4) The Los Osos Community Services District has a relatively
small staff that has no experience of successfully designing and
constructing facilities of the size and type needed to eliminate
these discharges.
(5) The County of San Luis Obispo has a larger staff that has
experience in successfully designing large public works projects.
(6) There is an urgent need to protect the public health and
safety by eliminating these discharges and the most feasible
alternative is best accomplished by a temporary realignment of
certain wastewater collection and treatment powers between the Los
Osos Community Services District and the County of San Luis Obispo.
(7) It is the intent of the Legislature in enacting this section
and amending Section 61105 to authorize the County of San Luis Obispo
to design, construct, and operate a wastewater collection and
treatment project that will eliminate these discharges, particularly
in the prohibition zone, to avoid a wasteful duplication of effort
and funds, and to temporarily prohibit the Los Osos Community
Services District from exercising those powers.
(b) As used in this section, the following definitions apply:
(1) "Board" means the Board of Supervisors of the County of San
Luis Obispo.
(2) "County" means the County of San Luis Obispo.
(3) "District" means the Los Osos Community Services District,
formed pursuant to the Community Services District Law (Division 3
(commencing with Section 61000) of Title 6) located in San Luis
Obispo County.
(4) "Prohibition zone" means that territory within the Baywood
Park-Los Osos area of the county that is subject to the wastewater
discharge prohibition imposed by the Central Coast Regional Water
Quality Control Board pursuant to Resolution 83-13.
(c) The county may undertake any efforts necessary to construct
and operate a community wastewater collection and treatment system to
meet the wastewater collection and treatment needs within the
district. These efforts may include programs and projects for
recharging aquifers, preventing saltwater intrusion, and managing
groundwater resources to the extent that they are related to the
construction and operation of the community wastewater collection and
treatment system. These efforts shall include any services that the
county deems necessary, including, but not limited to, any planning,
design, engineering, financial analysis, pursuit of grants to
mitigate affordability issues, administrative support, project
management, and environmental review and compliance services. The
county shall not exercise any powers authorized by this section
outside the district.
(d) Nothing in this section shall affect the district's power to
do any of the following:
(1) Operate wastewater collection and treatment facilities within
the district that the district was operating on January 1, 2006.
(2) Provide facilities and services, other than wastewater
collection and treatment.
(e) To finance the construction and operation of a wastewater
collection and treatment system, the county may levy benefit
assessments consistent with the requirements of Article XIII D of the
California Constitution, pursuant to any of the following:
(1) The Improvement Act of 1911 (Division 7 (commencing with
Section 5000) of the Streets and Highways Code).
(2) The Improvement Bond Act of 1915 (Division 10 (commencing with
Section 8500) of the Streets and Highways Code).
(3) The Municipal Improvement Act of 1913 (Division 12 (commencing
with Section 10000) of the Streets and Highways Code).
(f) The county may charge standby charges for sewer services,
consistent with the requirements of Article XIII D of the California
Constitution, pursuant to the Uniform Standby Charge Procedures Act
(Chapter 12.4 (commencing with Section 54984) of Part 1 of Division 2
of Title 5).
(g) The county may develop a program to offset assessments,
standby charges, or user fees and charges that are authorized
pursuant to subdivisions (e), (f), and (h) for very low or low-income
households with funding sources, including, but not limited to,
grants, principal forgiveness, and noncounty funds from low-interest
loans approved for the project by the State Water Resources Control
Board or the United States Department of Agriculture. The county
shall not include in an assessment or charge an amount to cover the
costs to the county in carrying out this subdivision.
(h) The county may impose and collect user fees and charges and
any other sources of revenue permitted by law sufficient to cover the
reasonable costs of any wastewater collection or treatment services
provided pursuant to this section.
(i) Promptly upon the adoption of a resolution by the board
requesting this action, the board of directors of the district shall
convey to the county any requested retained rights-of-way, licenses,
funds, and permits previously acquired by the district in connection
with construction projects for which the district awarded contracts
in 2005. The county shall use those fee interests, rights-of-way,
licenses, and funds for the purpose of furthering the construction
and operation of a wastewater collection and treatment system
pursuant to this section.
(j) After the approval of a benefit assessment, the board shall
complete a due diligence review before deciding to proceed with the
construction and operation of a wastewater collection and treatment
system. The board shall consider any relevant factors, including, but
not limited to, the prompt availability of reasonable and sufficient
financing, the status of enforcement actions, the successful
development of reasonable project technology and location options,
the availability of any necessary permits and other approvals, and
the absence of other significant impediments. At the completion of
this due diligence review, the board shall adopt a resolution
declaring its intention to proceed or not proceed with the
construction and operation of the wastewater collection and treatment
system.
(k) Collection of assessments may not commence until the adoption
of the resolution to proceed pursuant to subdivision (i).
(l) The county shall have no power or responsibility to construct
and operate a wastewater collection and treatment system pursuant to
this section and the district shall resume that power and
responsibility when any of the following occurs:
(1) If the board adopts a resolution not to hold a benefit
assessment election pursuant to subdivision (e).
(2) If there is a majority protest to a benefit assessment
proposed by the county, on the date of the resolution adopted by the
board determining that the majority protest exists.
(3) If there is not a majority protest, but the board adopts a
resolution, pursuant to subdivision (i), which declares that the
county will no longer exercise its powers pursuant to this section,
on the date specified in the board's resolution.
(4) If the county constructs and operates a wastewater collection
and treatment system pursuant to this section, not less than three
years after the operation of the system commences, the board and the
board of directors of the district shall mutually apply to the
Central Coast Regional Water Quality Control Board for a modification
of the waste discharge permit, requesting permission to transfer
responsibility to operate the wastewater collection and treatment
system from the county to the district. Consistent with that
modification, the board shall adopt a resolution that specifies the
date on which the county will no longer exercise its powers pursuant
to this section.
(m) When the power and responsibility to construct and operate a
wastewater collection and treatment system transfers from the county
to the district pursuant to subdivision (k), the county shall do all
of the following:
(1) Promptly convey to the district any remaining retained fee
interests in any real property, rights-of-way, licenses, other
interests in real property, funds, and other personal property that
the county previously acquired pursuant to subdivision (h).
(2) Promptly convey to the district the wastewater collection and
treatment system that the county constructed pursuant to this
section.
(3) Continue to collect any necessary assessments and use them to
repay any indebtedness incurred by the county to finance the
construction of the wastewater collection and treatment system
pursuant to this section.
(4) The county shall cease collecting any benefit assessments
after repayment of any indebtedness incurred by the county to finance
the construction of the wastewater collection and treatment system.
(n) Nothing in this section shall be construed as imposing upon
the county any liability for any district decisions or actions, or
failures to act, or imposing upon the county any liability for
any decisions or actions, or
failures to act, by any district officers, employees, or agents. In
addition, nothing in this section shall be construed as imposing upon
the county any liability for any prior or subsequent district
liabilities, whether liquidated or contingent, or any prior or
subsequent liabilities of district officers, employees, or agents,
whether liquidated or contingent.
SEC. 65. Section 30025 of the Government Code is amended to read:
30025. (a) The Local Revenue Fund 2011 is hereby created in the
State Treasury and shall receive all revenues, less refunds, derived
from the taxes described in Sections 6051.15 and 6201.15; revenues as
may be allocated to the fund pursuant to Sections 11001.5 and 11005
of the Revenue and Taxation Code; and other moneys that may be
specifically appropriated to the fund.
(b) The Trial Court Security Account, the Local Community
Corrections Account, the Local Law Enforcement Services Account, the
Mental Health Account, the District Attorney and Public Defender
Account, the Juvenile Justice Account, the Health and Human Services
Account, the Reserve Account, and the Undistributed Account are
hereby created within the Local Revenue Fund 2011.
(c) The Youthful Offender Block Grant Subaccount and the Juvenile
Reentry Grant Subaccount are hereby created within the Juvenile
Justice Account.
(d) The Adult Protective Services Subaccount, the Foster Care
Assistance Subaccount, the Foster Care Administration Subaccount, the
Child Welfare Services Subaccount, the Adoptions Subaccount, the
Adoption Assistance Program Subaccount, the Child Abuse Prevention
Subaccount, the Women and Children's Residential Treatment Services
Subaccount, the Drug Court Subaccount, the Nondrug Medi-Cal Substance
Abuse Treatment Services Subaccount, and the Drug Medi-Cal
Subaccount are hereby created within the Health and Human Services
Account within the Local Revenue Fund 2011.
(e) Funds transferred to the Local Revenue Fund 2011 and its
accounts and subaccounts are, notwithstanding Section 13340,
continuously appropriated and shall be allocated pursuant to statute
exclusively for Public Safety Services as defined in subdivision (i)
and as further limited by statute. The moneys derived from taxes
described in subdivision (a) and deposited in the Local Revenue Fund
2011 shall be available to reimburse the General Fund for moneys that
are advanced to the Local Revenue Fund 2011. Additionally, all funds
deposited in the Local Revenue Fund 2011 and its accounts shall be
available to pay for state costs incurred during the 2011-12 fiscal
year from state agency or department appropriations authorized in the
Budget Act of 2011 for the realignment of Public Safety Services
programs during the 2011-12 legislative session. The Department of
Finance is authorized to determine the time, manner, and amount to be
reimbursed pursuant to this subdivision.
(f) (1) Each county treasurer, city and county treasurer, or other
appropriate official shall create a County Local Revenue Fund 2011
for the county or city and county and shall create the Local
Community Corrections Account, the Trial Court Security Account, the
District Attorney and Public Defender Account, the Juvenile Justice
Account, the Health and Human Services Account, and the Supplemental
Law Enforcement Services Account within the County Local Revenue Fund
2011 for the county or city and county.
(2) The moneys in the County Local Revenue Fund 2011 for each
county or city and county and its accounts shall be exclusively used
for Public Safety Services as defined in subdivision (i) and as
further described in this section.
(3) The moneys in the Trial Court Security Account shall be used
exclusively to fund trial court security provided by county sheriffs.
General county administrative costs shall not be charged to this
account, including, but not limited to, the costs of administering
the account.
(4) The moneys in the Local Community Corrections Account shall be
used exclusively to fund the provisions of Chapter 15 of the
Statutes of 2011. The moneys within this account shall not be used by
local agencies to supplant other funding for Public Safety Services.
This account shall be the source of funding for the Postrelease
Community Supervision Act of 2011, as enacted by Section 479 of
Chapter 15 of the Statutes of 2011, and to fund the housing of
parolees in county jails.
(5) The moneys in the District Attorney and Public Defender
Account shall be used exclusively to fund costs associated with
revocation proceedings involving persons subject to state parole and
the Postrelease Community Supervision Act of 2011 (Title 2.05
(commencing with Section 3450) of Part 3 of the Penal Code). The
moneys shall be allocated equally by the county or city and county to
the district attorney's office and county public defender's office,
or where no public defender's office is established, to the county
for distribution for the same purpose.
(6) The moneys in the Juvenile Justice Account shall only be used
to fund activities in connection with the grant programs described in
this paragraph.
(A) The Youthful Offender Block Grant Subaccount shall be used to
fund grants solely to enhance the capacity of county probation,
mental health, drug and alcohol, and other county departments to
provide appropriate rehabilitative, housing, and supervision services
to youthful offenders, subject to Sections 731.1, 733, 1766, and
1767.35 of the Welfare and Institutions Code. Counties, in expending
an allocation from this subaccount, shall provide all necessary
services related to the custody and parole of the offenders.
(B) The Juvenile Reentry Grant Subaccount shall be used to fund
grants exclusively to address local program needs for persons
discharged from the custody of the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities. County probation
departments, in expending the Juvenile Reentry Grant allocation,
shall provide evidence-based supervision and detention practices and
rehabilitative services to persons who are subject to the
jurisdiction of the juvenile court, and who were committed to and
discharged from the Department of Corrections and Rehabilitation,
Division of Juvenile Facilities. "Evidence-based" refers to
supervision and detention policies, procedures, programs, and
practices demonstrated by scientific research to reduce recidivism
among individuals on probation or under postrelease supervision. The
funds allocated from this subaccount shall supplement existing
services and shall not be used by local agencies to supplant any
existing funding for existing services provided by those entities.
The funding provided from this subaccount is intended to provide
payment in full for all local government costs of the supervision,
programming, education, incarceration, or any other cost resulting
from persons discharged from custody or held in local facilities
pursuant to the provisions of Chapter 729 of the Statutes of 2010.
(7) The Health and Human Services Account and its subaccounts
described in subdivision (d) shall be used only to fund activities
performed in connection with the programs described in this
subdivision. The subaccounts shall be used exclusively as follows:
(A) The Adult Protective Services Subaccount shall be used to fund
adult protective services described in statute and regulation.
(B) The Foster Care Assistance Subaccount shall be used to fund
the cost of foster care grants and services as those services are
described in statute and regulation, including the costs for the
Title IV-E Child Welfare Waiver Demonstration Capped Allocation
Project.
(C) The Foster Care Administration Subaccount shall be used to
fund the administrative costs of foster care services as those
services are described in statute and regulation, including the costs
for the Title IV-E Child Welfare Waiver Demonstration Capped
Allocation Project.
(D) The Child Welfare Services Subaccount shall be used to fund
the costs of child welfare services as those services are described
in statute and regulation, including the costs for the Title IV-E
Child Welfare Waiver Demonstration Capped Allocation Project.
(E) The Adoptions Subaccount shall be used to fund the costs
connected with providing adoptive services, including agency
adoptions, as described in statute and regulation, including the
costs incurred by the county or city and county if the county or city
and county elects to contract with the state to provide those
services.
(F) The Child Abuse Prevention Subaccount shall be used to fund
the costs of child abuse prevention, intervention, and treatment
services as those costs and services are described in statute and
regulation.
(G) The Adoption Assistance Program Subaccount shall be used to
fund the administrative costs and payments for families adopting
children with special needs.
(H) The Women and Children's Residential Treatment Services
Subaccount shall be used to fund the costs of residential perinatal
drug services and treatment as those services and treatment are
described in statute and regulation.
(I) The Drug Court Subaccount shall be used to fund the costs of
drug court operations and services as those costs are currently
permitted and described by statute and regulation.
(J) The Nondrug Medi-Cal Substance Abuse Treatment Services
Subaccount shall be used to fund the costs of nondrug Medi-Cal
substance abuse treatment programs, as described in statute and
regulation.
(K) The Drug Medi-Cal Subaccount shall be used to fund the costs
of the Drug Medi-Cal program as that program is described in statute,
regulation, or the current State Plan Amendment.
(g) The moneys in the Reserve Account shall be used to fund
entitlements paid from the Foster Care Assistance Subaccount, the
Drug Medi-Cal Subaccount and the Adoption Assistance Program
Subaccount of the Health and Human Services Account.
(h) The moneys in the Undistributed Account shall be used to
reimburse the General Fund for costs incurred and expenditures made
by the state on behalf of any local government entity in providing
Public Safety Services, as defined in subdivision (i), and are
available for transfer to the Local Law Enforcement Services Account
to permit the full allocation as described in subdivision (e) of
Section 30029.
(i) For purposes of this section, "Public Safety Services" shall
include all of the following:
(1) Employing public safety officials, prosecutors, public
defenders, and court security staff.
(2) Managing local jails, housing and treating youthful offenders,
and providing services for, and overseeing the supervised release
of, offenders.
(3) Preventing child abuse, providing services to children who are
abused, neglected, or exploited, providing services to vulnerable
children and their families, and providing adult protective services.
(4) Providing mental health services to children and adults in
order to reduce failure in school, harm to themselves and others,
homelessness, and preventable incarceration.
(5) Preventing, treating, and providing recovery services for
alcohol and drug abuse.
(j) The realignment moneys collected by the state and distributed
to the local governmental entities pursuant to this article shall be
considered state funds for the purposes of the political subdivision
provision of the nonfederal share of Medicaid expenditures for
purposes of Section 5001(g)(2) of the federal American Recovery and
Reinvestment Act of 2009 (P.L. 111-5) and Section 10201(c)(6) of the
federal Patient Protection and Affordable Care Act (P.L. 111-148).
SEC. 66. Section 53395.3.5 of the Government Code is amended to
read:
53395.3.5. Notwithstanding subdivision (b) of Section 53395.3, a
district may reimburse a developer of a project that is located
entirely within the boundaries of that district for any permit
expenses incurred and to offset additional expenses incurred by the
developer in constructing affordable housing units pursuant to the
Transit Priority Project Program established in Section 65470.
SEC. 67. Section 53395.81 of the Government Code is amended to
read:
53395.81. (a) This section shall apply only to a special
waterfront district.
(b) A special waterfront district may be created as a waterfront
district pursuant to, and shall be subject to, all applicable
requirements of Sections 53395.3 and 53395.8, except as provided in
this section.
(c) (1) The special waterfront district ERAF share produced in a
Port America's Cup district with a special waterfront district
enhanced financing plan shall be used only to finance the following:
(A) Construction of the port's maritime facilities at Pier 27.
(B) Planning and design work that is directly related to the port'
s maritime facilities at Pier 27.
(C) Planning, design, and construction of improvements to publicly
owned waterfront lands held by trustee agencies, such as the
National Park Service and the California State Parks, and used as
public spectator viewing sites for America's Cup-related events,
including the San Francisco Bay Trail along the Marina Green.
(D) Future installations of shoreside power facilities on port
maritime facilities.
(2) A special waterfront district enhanced financing plan for a
Port America's Cup district shall provide that the proceeds of
special waterfront district ERAF-secured debt are restricted for use
to finance directly, reimburse the port for its costs related to, or
refinance other debt incurred in, the construction of the port's
maritime facilities at Pier 27, including public access and public
open-space improvements.
(3) Twenty percent in the aggregate of the special waterfront
district ERAF share allocated to a Port America's Cup district under
this section shall be set aside to finance costs of improvements to
federally or state-owned waterfront lands approved by trustee
agencies such as the National Park Service or the California State
Parks as provided in subparagraph (C) of paragraph (1).
(4) The 20 percent set-aside requirements applicable to a special
waterfront district set forth in paragraph (3) are in lieu of the
set-aside requirement set forth in clause (ii) of subparagraph (C) of
paragraph (3) of subdivision (g) of Section 53395.8.
(d) (1) Before adopting the resolution authorizing the first debt
issuance by a Port America's Cup district with a special waterfront
district enhanced financing plan authorized by this section, the
board of supervisors shall submit a fiscal analysis to the California
Infrastructure and Economic Development Bank for review and
approval.
(2) The bank may circulate the fiscal analysis to other state
agencies, including, but not limited to, the Department of Finance,
the Department of Housing and Community Development, and the Office
of Planning and Research, and solicit their comments and
recommendations. After considering the comments and recommendations
of other state agencies, if any, the bank shall take one of the
following actions:
(A) Approve the fiscal analysis if the bank makes the finding
required pursuant to paragraph (4).
(B) Return the fiscal analysis to the board of supervisors with
specific recommendations for changes that would allow the bank to
approve the fiscal analysis.
(3) The bank shall have 90 days from the receipt of the fiscal
analysis to act pursuant to this subdivision. If the bank does not
act within 90 days, the fiscal analysis shall be deemed approved.
(4) For bank approval, the fiscal analysis shall demonstrate to
the bank's reasonable satisfaction a reasonable probability that the
economic activity proposed to occur as a result of hosting the
America's Cup event in California would result in an amount of
revenue to the General Fund with a net present value that is greater
than the net present value of the amount of property tax increment
revenues that would be diverted from ERAF over the term of the Port
America's Cup district, taking into consideration all pertinent data.
In reviewing the board's fiscal analysis, the bank shall consider
only those General Fund revenues that would occur because of economic
activity proposed to occur as a result of hosting the America's Cup
event in California. The bank shall not consider those General Fund
revenues that would have occurred if the America's Cup event were not
held in California.
(5) The legislative body shall reimburse the bank for the
reasonable cost of the review and approval of the fiscal analysis.
(e) The county auditor or officer responsible for the payment of
taxes into the funds of the respective taxing entities shall allocate
and pay to a special waterfront district the portion of taxes
required to be allocated pursuant to an approved special waterfront
district enhanced financing plan. If the plan allocates 100 percent
of the incremental tax revenue of San Francisco that is available
under applicable law to be allocated to the special waterfront
district, then the special waterfront district shall not make a
payment to ERAF, but if the plan allocates less than 100 percent of
the incremental tax revenue of San Francisco that is available under
applicable law to be allocated to a special waterfront district then
the special waterfront district shall pay a proportionate share of
incremental tax revenue into ERAF. The special waterfront district
shall file a statement of indebtedness and a reconciliation statement
annually in the same manner as described in subdivision (i) of
Section 53395.8. It is the intent of this subdivision that any
special waterfront district shall be deemed to be a district formed
pursuant to subparagraph (D) of paragraph (3) of subdivision (g) of
Section 53395.8 for purposes of allocation and payment of taxes by
the county auditor as set forth in subdivision (i) of Section
53395.8.
(f) This section implements and fulfills the intent of Article 2
(commencing with Section 53395.10) of this chapter and of Article
XIII B of the California Constitution and is consistent with the
conclusion of California courts that tax increment revenues are not
"proceeds of taxes" for purposes of the latter. The allocation and
payment to a special waterfront district of the special waterfront
district ERAF share for the purpose of paying principal of, or
interest on, loans, advances, or indebtedness incurred for facilities
or the cost of acquisition and construction of facilities under this
section shall not be deemed the receipt by the special waterfront
district of proceeds of taxes levied by or on behalf of the special
waterfront district within the meaning or for the purposes of Article
XIII B of the California Constitution, nor shall this portion of
taxes be deemed the receipt of proceeds of taxes by, or an
appropriation subject to limitation of, any other public body within
the meaning or for purposes of Article XIII B of the California
Constitution or any statutory provision enacted in implementation of
Article XIII B. The allocation and payment to a special waterfront
district of this portion of taxes shall not be deemed the
appropriation by a special waterfront district of proceeds of taxes
levied by or on behalf of a district within the meaning or for
purposes of Article XIII B of the California Constitution.
(g) For purposes of this section, the meanings set forth in
subdivision (c) of Section 53395.8 shall apply as appropriate, and
the following terms have the following meanings, except as otherwise
provided:
(1) "Port America's Cup district" means a special waterfront
district in the City and County of San Francisco designated as
America's Cup venues, excluding any venues within the Rincon
Point-South Beach Redevelopment Project Area.
(2) "Special waterfront district" means a waterfront district in
San Francisco that may comprise some or all of the America's Cup
venues or potential venues.
(3) "Special waterfront district enhanced financing plan" means an
infrastructure financing plan for a special waterfront district that
contains a provision substantially similar to that authorized for a
Pier 70 district under subparagraph (D) of paragraph (3) of
subdivision (g) of Section 55395.8, with only those changes deemed
necessary by the legislative body of the special waterfront district
to implement the financing of the improvements described in paragraph
(1) of subdivision (c).
(4) "Special waterfront district ERAF-secured debt" means debt
incurred in accordance with a special waterfront district enhanced
financing plan that is secured by and will be repaid from the special
waterfront district ERAF share. For a Port America's Cup district,
special waterfront district ERAF-secured debt includes the portion of
any debt that is payable from the special waterfront district ERAF
share as long as the same percentage of debt proceeds will be used
for the purposes authorized by paragraph (2) of subdivision (c).
(5) (A) "Special waterfront district ERAF share" means the county
ERAF portion of incremental tax revenue committed, as applicable, to
a special waterfront district under a special waterfront district
enhanced financing plan.
(B) Notwithstanding any other provision of this chapter, the
maximum amount of the county ERAF portion of incremental tax revenues
committed to a special waterfront district under this section shall
not exceed one million dollars ($1,000,000) in any fiscal year.
SEC. 68. Section 53760.3 of the Government Code is amended to
read:
53760.3. (a) A local public entity may initiate the neutral
evaluation process if the local public entity is or likely will
become unable to meet its financial obligations as and when those
obligations are due or become due and owing. The local public entity
shall initiate the neutral evaluation by providing notice by
certified mail of a request for neutral evaluation to all interested
parties as defined in Section 53760.1.
(b) Interested parties shall respond within 10 business days of
receipt of notice of the local public entity's request for neutral
evaluation.
(c) (1) The local public entity and the interested parties
agreeing to participate in the neutral evaluation shall, through a
mutually agreed-upon process, select the neutral evaluator to oversee
the neutral evaluation process and facilitate all discussions in an
effort to resolve their disputes.
(2) If the local public entity and interested parties fail to
agree on a neutral evaluator within seven days after the interested
parties have responded to the notification sent by the public entity,
the public entity shall select five qualified neutral evaluators and
provide their names, references, and backgrounds to the
participating interested parties. Within three business days, a
majority of participating interested parties may strike up to four
names from the list. If a majority of participating interested
parties strikes four names, the remaining candidate shall be the
neutral evaluator. If the majority of participating parties strikes
fewer than four names, the local public entity may choose which of
the remaining candidates shall be the neutral evaluator.
(d) A neutral evaluator shall have experience and training in
conflict resolution and alternative dispute resolution and shall meet
at least one of the following qualifications:
(1) At least 10 years of high-level business or legal practice
involving bankruptcy or service as a United States Bankruptcy Judge.
(2) Professional experience or training in municipal finance and
one or more of the following issue areas:
(A) Municipal organization.
(B) Municipal debt restructuring.
(C) Municipal finance dispute resolution.
(D) Chapter 9 bankruptcy.
(E) Public finance.
(F) Taxation.
(G) California constitutional law.
(H) California labor law.
(I) Federal labor law.
(e) The neutral evaluator shall be impartial, objective,
independent, and free from prejudice. The neutral evaluator shall not
act with partiality or prejudice based on any participant's personal
characteristics, background, values or beliefs, or performance
during the neutral evaluation process.
(f) The neutral evaluator shall avoid a conflict of interest or
the appearance of a conflict of interest during the neutral
evaluation process. The neutral evaluator shall make a reasonable
inquiry to determine whether there are any facts that a reasonable
individual would consider likely to create a potential or actual
conflict of interest. Notwithstanding subdivision (n), if the neutral
evaluator is informed of the existence of any facts that a
reasonable individual would consider likely to create a potential or
actual conflict of interest, the neutral evaluator shall disclose
these facts in writing to the local public entity and all interested
parties involved in the neutral evaluation. If any party to the
neutral evaluation objects to the neutral evaluator, that party shall
notify all other parties to the neutral evaluation, including the
neutral evaluator, within 15 days of receipt of the notice from the
neutral evaluator, the neutral evaluator shall withdraw and a new
neutral evaluator shall be selected.
(g) Prior to the neutral evaluation process, the neutral evaluator
shall not establish another relationship with any of the parties in
a manner that would raise questions about the integrity of the
neutral evaluation, except that the neutral evaluator may conduct
further neutral evaluations regarding other potential local public
entities that may involve some of the same or similar constituents to
a prior mediation.
(h) The neutral evaluator shall conduct the neutral evaluation
process in a manner that promotes voluntary, uncoerced decisionmaking
in which each party makes free and informed choices regarding the
process and outcome.
(i) The neutral evaluator shall not impose a settlement on the
parties. The neutral evaluator shall use his or her best efforts to
assist the parties to reach a satisfactory resolution of their
disputes. Subject to the discretion of the neutral evaluator, the
neutral evaluator may make oral or written recommendations for
settlement or plan of readjustment to a party privately or to all
parties jointly.
(j) The neutral evaluator shall inform the local public entity and
all parties of the provisions of Chapter 9 relative to other
chapters of the bankruptcy codes. This instruction shall highlight
the limited authority of United States bankruptcy judges in Chapter 9
such as the lack of flexibility available to judges to reduce or
cram down debt repayments and similar efforts not available to
reorganize the operations of the city that may be available to a
corporate entity.
(k) The neutral evaluator may request from the parties
documentation and other information that the neutral evaluator
believes may be helpful in assisting the parties to address the
obligations between them. This documentation may include the status
of funds of the local public entity that clearly distinguishes
between general funds and special funds, and the proposed plan of
readjustment prepared by the local public entity.
(l) The neutral evaluator shall provide counsel and guidance to
all parties, shall not be a legal representative of any party, and
shall not have a fiduciary duty to any party.
(m) In the event of a settlement with all interested parties, the
neutral evaluator may assist the parties in negotiating a
prepetitioned, preagreed plan of readjustment in connection with a
potential Chapter 9 filing.
(n) If at any time during the neutral evaluation process the local
public entity and a majority of the representatives of the
interested parties participating in the neutral evaluation wish to
remove the neutral evaluator, the local public entity or any
interested party may make a request to the other interested parties
to remove the neutral evaluator. If the local public entity and the
majority of the interested parties agree that the neutral evaluator
should be removed, the parties shall select a new neutral evaluator.
(o) The local public entity and all interested parties
participating in the neutral evaluation process shall negotiate in
good faith.
(p) The local public entity and interested parties shall provide a
representative of each party to attend all neutral evaluation
sessions. Each representative shall have the authority to settle and
resolve disputes or shall be in a position to present any proposed
settlement or plan of readjustment to the parties participating in
the neutral evaluation.
(q) The parties shall maintain the confidentiality of the neutral
evaluation process and shall not disclose statements made,
information disclosed, or documents prepared or produced, during the
neutral evaluation process, at the conclusion of the neutral
evaluation process or during any bankruptcy proceeding unless either
of the following occur:
(1) All persons that conduct or otherwise participate in the
neutral evaluation expressly agree in writing, or orally pursuant to
Section 1118 of the Evidence Code, to disclosure of the
communication, document, or writing.
(2) The information is deemed necessary by a judge presiding over
a bankruptcy proceeding pursuant to Chapter 9 of Title 11 of the
United States Code to determine eligibility of a municipality to
proceed with a bankruptcy proceeding pursuant to Section 109(c) of
Title 11 of the United States Code.
(r) The neutral evaluation established by this process shall not
last for more than 60 days following the date the evaluator is
selected, unless the local public entity or a majority of
participating interested parties elects to extend the process for up
to 30 additional days. The neutral evaluation process shall not last
for more than 90 days following the date the evaluator is selected
unless the local public entity and a majority of the interested
parties agree to an extension.
(s) The local public entity shall pay 50 percent of the costs of
neutral evaluation, including, but not limited to, the fees of the
evaluator, and the creditors shall pay the balance, unless otherwise
agreed to by the parties.
(t) The neutral evaluation process shall end if any of the
following occur:
(1) The parties execute a settlement agreement.
(2) The parties reach an agreement or proposed plan of
readjustment that requires the approval of a bankruptcy judge.
(3) The neutral evaluation process has exceeded 60 days following
the date the neutral evaluator was selected, the parties have not
reached an agreement, and neither the local public entity or a
majority of the interested parties elects to extend the neutral
evaluation process past the initial 60-day time period.
(4) The local public entity initiated the neutral evaluation
process pursuant to subdivision (a) and received no responses from
interested parties within the time specified in subdivision (b).
(5) The fiscal condition of the local public entity deteriorates
to the point that a fiscal emergency is declared pursuant to Section
53760.5 and necessitates the need to file a petition and exercise
powers pursuant to applicable federal bankruptcy law.
(u) If the 60-day time period for neutral evaluation has expired,
including any extension of the neutral evaluation past the initial
60-day time period pursuant to subdivision (r), and the neutral
evaluation is complete with differences resolved, the neutral
evaluation shall be concluded. If the neutral evaluation process does
not resolve all pending disputes with creditors the local public
entity may file a petition and exercise powers pursuant to applicable
federal bankruptcy law if, in the opinion of the governing board of
the local public entity, a bankruptcy filing is necessary.
SEC. 69. Section 53891 of the Government Code is amended to read:
53891. The officer of each local agency who has charge of the
financial records shall furnish to the Controller a report of all the
financial transactions of the local agency during the next preceding
fiscal year. The report shall be furnished within 90 days after the
close of each fiscal year and shall be in the form required by the
Controller. If the report is filed in electronic format as prescribed
by the Controller, the report shall be furnished within 110 days
after the close of each fiscal year. However, whenever a local agency
files annual financial materials with the Office of Statewide Health
Planning and Development or any successor thereto pursuant to
Section 128735 of the Health and Safety Code, the audited report
shall be furnished within 120 days after the close of each fiscal
year. Further, whenever a community redevelopment agency files an
annual report with the Controller pursuant to Section 33080 of the
Health and Safety Code, the report shall be furnished within six
months of the end of the agency's fiscal year.
The Controller shall prescribe uniform accounting and reporting
procedures that shall be applicable to all local agencies except
cities, counties, and school districts, and except for local agencies
that substantially follow a system of accounting prescribed by the
Public Utilities Commission of the State of California or the Federal
Energy Regulatory Commission. The procedures shall be adopted under
the provisions of Chapter 3.5 (commencing with Section 11340) of Part
1 of Division 3 of Title 2. The Controller shall prescribe the
procedures only after consultation with and approval of a local
governmental advisory committee established pursuant to Section
12463.1. Approval of the procedures shall be by majority vote of the
members present at a meeting of the committee called by the
chairperson thereof.
SEC. 70. Section 57077 of the Government Code is amended to read:
57077. (a) If a change of organization consists of a dissolution,
disincorporation, incorporation, establishment of a subsidiary
district, consolidation, or merger, the commission shall do either of
the following:
(1) Order the change of organization subject to confirmation of
the voters, or in the case of a landowner-voter district, subject to
confirmation by the landowners, unless otherwise stated in the
formation provisions of the enabling statute of the district or
otherwise authorized pursuant to Section 56854.
(2) Order the change of organization without election if it is a
change of organization that meets the requirements of Section 56854,
57081, 57102, or 57107; otherwise, the commission shall take the
action specified in paragraph (1).
(b) Notwithstanding subdivision (a) or Section 57102, if a change
of organization consists of the dissolution of a district that is
consistent with a prior action of the commission pursuant to Section
56378, 56425, or 56430, the commission may do either of the
following:
(1) If the dissolution is initiated by the district board,
immediately order the dissolution without an election or protest
proceeding pursuant to this part.
(2) If the dissolution is initiated by an affected local agency,
by the commission pursuant to Section 56375, or by petition pursuant
to Section 56650, order the dissolution after holding at least one
noticed public hearing, and after conducting protest proceedings in
accordance with this part. Notwithstanding any other provision of
law, the commission shall terminate proceedings if a majority protest
exists in accordance with Section 57078. If a majority protest is
not found, the commission shall order the dissolution without an
election.
(c) If a reorganization consists of one or more dissolutions,
incorporations, formations, disincorporations, mergers,
establishments of subsidiary districts, consolidations, or any
combination of those proposals, the commission shall do either of the
following:
(1) Order the reorganization subject to confirmation of the
voters, or in the case of landowner-voter districts, subject to
confirmation by the landowners, unless otherwise authorized pursuant
to Section 56854.
(2) Order the reorganization without election if it is a
reorganization that meets the requirements of Section 56853.5,
56853.6, 56854, 57081, 57102, 57107, or 57111; otherwise, the
commission shall take the action specified in paragraph (1).
SEC. 71. Section 57150 of the Government Code is amended to read:
57150. All proper expenses incurred in conducting elections for a
change of organization or reorganization pursuant to this chapter
shall be paid, unless otherwise provided by agreement between the
commission and the proponents, as follows:
(a) In the case of annexation or detachment proceedings, by the
local agency to or from which territory is annexed, or from which
territory is detached, or was proposed to be annexed or detached.
(b) In the case of incorporation or formation proceedings, by the
newly incorporated city or the newly formed district, if successful,
or by the county within which the proposed city or district is
located, if the incorporation or formation proceedings are
terminated. In the case of a separate election for city officers held
following the election for incorporation pursuant to Section 56724,
by the newly incorporated city.
(c) In the case of disincorporation or dissolution proceedings,
from the remaining assets of the disincorporated city or dissolved
district or by the city proposed to be disincorporated or the
district proposed to be dissolved if disincorporation or dissolution
proceedings are terminated.
(d) In the case of consolidation proceedings, by the successor
city or district or by the local agencies proposed to be
consolidated, to be paid by those local agencies in proportion to
their respective assessed values, if proceedings are terminated.
(e) In the case of a reorganization, by either of the following:
(1) If the reorganization is ordered, by the subject local
agencies or successor local agencies, as the case may be, for any of
the changes of organization specified in subdivisions (a) to (d),
inclusive, that may be included in the particular reorganization, to
be paid by those local agencies in proportion to their assessed
value.
(2) If the reorganization proceedings are terminated or the
proposal is defeated, by the county or counties within which the
subject local agency is located.
SEC. 72. Section 57534 of the Government Code is amended to read:
57534. On and after the effective date of an order establishing a
district as a subsidiary district of a city, the city council shall
be designated, and empowered to act, ex officio as the board of
directors of the district. The district shall continue in existence
with all of the powers, rights, duties, obligations, and functions
provided for by the principal act, except for any provisions relating
to the selection or removal of the members of the board of directors
of the district.
SEC. 73. Section 61105 of the Government Code is amended to read:
61105. (a) The Legislature finds and declares that the unique
circumstances that exist in certain communities justify the enactment
of special statutes for specific districts. In enacting this
section, the Legislature intends to provide specific districts with
special statutory powers to provide special services and facilities
that are not available to other districts.
(b) (1) The Los Osos Community Services District may borrow money
from public or private lenders and lend those funds to property
owners within the district to pay for the costs of decommissioning
septic systems and constructing lateral connections on private
property to facilitate the connection of those properties to the
district's wastewater treatment system. The district shall lend money
for this purpose at rates not to exceed its cost of borrowing and
the district's cost of making the loans. The district may require
that the borrower pay the district's reasonable attorney's fees and
administrative costs in the event that the district is required to
take legal action to enforce the provisions of the contract or note
securing the loan. The district may elect to have the debt payments
or any delinquency collected on the tax roll pursuant to Section
61116. To secure the loan as a lien on real property, the district
shall follow the procedures for the creation of special tax liens in
Section 53328.3 of this code and Section 3114.5 of the Streets and
Highways Code.
(2) (A) (i) Except as otherwise provided in this paragraph, on and
after January 1, 2007, the Los Osos Community Services District
shall not undertake any efforts to design, construct, and operate a
community wastewater collection and treatment system within, or for
the benefit of, the district. The district shall resume those powers
on the date specified in any resolution adopted pursuant to
subdivision (l) of Section 25825.5.
(ii) Upon resuming the powers pursuant to subdivision (i), the Los
Osos Community Services District may continue the program to offset
assessments or charges for very low or low-income households with
funding sources, including, but not limited to, grants, adopted
pursuant to subdivision (g) of Section 25825.5. If the county has not
implemented that program, the Los Osos Community Services District
may adopt a program that complies with subdivision (g) of Section
25825.5 to offset assessments or charges for very low or low-income
households. The Los Osos Community Services District shall not
include in an assessment or charge an amount to cover the costs to
the county in carrying out the offset program.
(B) Nothing in this paragraph shall affect the district's power to
do any of the following:
(i) Operate wastewater collection and treatment facilities within
the district that the district was operating on January 1, 2006.
(ii) Provide facilities and services in the territory that is
within the district, but outside the prohibition zone.
(iii) Provide facilities and services, other than wastewater
collection and treatment, within the prohibition zone.
(C) Promptly upon the adoption of a resolution by the Board of
Supervisors of the County of San Luis Obispo requesting this action
pursuant to subdivision (i) of Section 25825.5, the district shall
convey to the County of San Luis Obispo all retained rights-of-way,
licenses, other interests in real property, funds, and other personal
property previously acquired by the district in connection with
construction projects for which the district awarded contracts in
2005.
(c) The Heritage Ranch Community Services District may acquire,
construct, improve, maintain, and operate petroleum storage tanks and
related facilities for its own use, and sell those petroleum
products to the district's property owners, residents, and visitors.
The authority granted by this subdivision shall expire when a private
person or entity is ready, willing, and able to acquire, construct,
improve, maintain, and operate petroleum storage tanks and related
facilities, and sell those petroleum products to the district and its
property owners, residents, and visitors. At that time, the district
shall either (1) diligently transfer its title, ownership,
maintenance, control, and operation of those petroleum tanks and
related facilities at a fair market value to that private person or
entity, or (2) lease the operation of those petroleum tanks and
related facilities at a fair market value to that private person or
entity.
(d) The Wallace Community Services District may acquire, own,
maintain, control, or operate the underground gas distribution
pipeline system located and to be located within Wallace Lake Estates
for the purpose of allowing a privately owned provider of liquefied
petroleum gas to use the underground gas distribution system pursuant
to a mutual agreement between the private provider and the district
or the district's predecessor in interest. The district shall require
and receive payment from the private provider for the use of that
system. The authority granted by this subdivision shall expire when
the Pacific Gas and Electric Company is ready, willing, and able to
provide natural gas service to the residents of Wallace Lake Estates.
At that time, the district shall diligently transfer its title,
ownership, maintenance, control, and operation of the system to the
Pacific Gas and Electric Company.
(e) The Cameron Park Community Services District, the El Dorado
Hills Community Services District, the Golden Hills Community
Services District, the Mountain House Community Services District,
the Rancho Murieta Community Services District, the Salton Community
Services District, the Stallion Springs Community Services District,
and the Tenaja Meadows Community Services District, which enforced
covenants, conditions, and restrictions prior to January 1, 2006,
pursuant to former Section 61601.7 and former Section 61601.10, may
continue to exercise the powers set forth in former Section 61601.7
and former Section 61601.10.
(f) The Bear Valley Community Services District, the Bell Canyon
Community Services District, the Cameron Estates Community Services
District, the Lake Sherwood Community Services District, the Saddle
Creek Community Services District, the Wallace Community Services
District, and the Santa Rita Hills Community Services District may,
for roads owned by the district and that are not formally dedicated
to or kept open for use by the public for the purpose of vehicular
travel, by ordinance, limit access to and the use of those roads to
the landowners and residents of that district.
(g) Notwithstanding any other provision of law, the transfer of
the assets of the Stonehouse Mutual Water Company, including its
lands, easements, rights, and obligations to act as sole agent of the
stockholders in exercising the riparian rights of the stockholders,
and rights relating to the ownership, operation, and maintenance of
those facilities serving the customers of the company, to the Hidden
Valley Lake Community Services District is not a transfer subject to
taxes imposed by Part 11 (commencing with Section 23001) of Division
2 of the Revenue and Taxation Code.
(h) The El Dorado Hills Community Services District and the Rancho
Murieta Community Services District may each acquire, construct,
improve, maintain, and operate television receiving, translating, or
distribution facilities, provide television and television-related
services to the district and its residents, or authorize the
construction and operation of a cable television system to serve the
district and its residents by franchise or license. In authorizing
the construction and operation of a cable television system by
franchise or license, the district shall have the same powers as a
city or county under Section 53066.
(i) The Mountain House Community Services District may provide
facilities for television and telecommunications systems, including
the installation of wires, cables, conduits, fiber optic lines,
terminal panels, service space, and appurtenances required to provide
television, telecommunication, and data transfer services to the
district and its residents, and provide facilities for a cable
television system, including the installation of wires, cables,
conduits, and appurtenances to service the district and its residents
by franchise or license, except that the district may not provide or
install any facilities pursuant to this subdivision unless one or
more cable franchises or licenses have been awarded under Section
53066 and the franchised or licensed cable television and
telecommunications services providers are permitted equal access to
the utility trenches, conduits, service spaces, easements, utility
poles, and rights-of-way in the district necessary to construct their
facilities concurrently with the construction of the district's
facilities. The district shall not have the authority to operate
television, cable, or telecommunications systems, except as provided
in Section 61100. The district shall have the same powers as a city
or county under Section 53066 in granting a franchise or license for
the operation of a cable television system.
SEC. 74. Section 65863.10 of the Government Code is amended to
read:
65863.10. (a) As used in this section, the following terms have
the following meanings:
(1) "Affected public entities" means the mayor of the city in
which the assisted housing development is located, or, if located in
an unincorporated area, the chair of the board of supervisors of the
county; the appropriate local public housing authority, if any; and
the Department of Housing and Community Development.
(2) "Affected tenant" means a tenant household residing in an
assisted housing development, as defined in paragraph (3), at the
time notice is required to be provided pursuant to this section, that
benefits from the government assistance.
(3) "Assisted housing development" means a multifamily rental
housing development that receives governmental assistance under any
of the following programs:
(A) New construction, substantial rehabilitation, moderate
rehabilitation, property disposition, and loan management set-aside
programs, or any other program providing project-based assistance,
under Section 8 of the United States Housing Act of 1937, as amended
(42 U.S.C. Sec. 1437f).
(B) The following federal programs:
(i) The Below-Market-Interest-Rate Program under Section 221(d)(3)
of the National Housing Act (12 U.S.C. Sec. 1715 l (d)(3)
and (5)).
(ii) Section 236 of the National Housing Act (12 U.S.C. Sec.
1715z-1).
(iii) Section 202 of the Housing Act of 1959 (12 U.S.C. Sec.
1701q).
(C) Programs for rent supplement assistance under Section 101 of
the Housing and Urban Development Act of 1965, as amended (12 U.S.C.
Sec. 1701s).
(D) Programs under Sections 514, 515, 516, 533, and 538 of the
Housing Act of 1949, as amended (42 U.S.C. Sec. 1485).
(E) Section 42 of the Internal Revenue Code.
(F) Section 142(d) of the Internal Revenue Code (tax-exempt
private activity mortgage revenue bonds).
(G) Section 147 of the Internal Revenue Code (Section 501(c)(3)
bonds).
(H) Title I of the Housing and Community Development Act of 1974,
as amended (Community Development Block Grant Program).
(I) Title II of the Cranston-Gonzalez National Affordable Housing
Act of 1990, as amended (HOME Investment Partnership Program).
(J) Titles IV and V of the McKinney-Vento Homeless Assistance Act
of 1987, as amended, including the Department of Housing and Urban
Development's Supportive Housing Program, Shelter Plus Care Program,
and surplus federal property disposition program.
(K) Grants and loans made by the Department of Housing and
Community Development, including the Rental Housing Construction
Program, CHRP-R, and other rental housing finance programs.
(L) Chapter 1138 of the Statutes of 1987.
(M) The following assistance provided by counties or cities in
exchange for restrictions on the maximum rents that may be charged
for units within a multifamily rental housing development and on the
maximum tenant income as a condition of eligibility for occupancy of
the unit subject to the rent restriction, as reflected by a recorded
agreement with a county or city:
(i) Loans or grants provided using tax increment financing
pursuant to the Community Redevelopment Law (Part 1 (commencing with
Section 33000) of Division 24 of the Health and Safety Code).
(ii) Local housing trust funds, as referred to in paragraph (3) of
subdivision (a) of Section 50843 of the Health and Safety Code.
(iii) The sale or lease of public property at or below market
rates.
(iv) The granting of density bonuses, or concessions or
incentives, including fee waivers, parking variances, or amendments
to general plans, zoning, or redevelopment project area plans,
pursuant to Chapter 4.3 (commencing with Section 65915).
Assistance pursuant to this subparagraph shall not include the use
of tenant-based Housing Choice Vouchers (Section 8(o) of the United
States Housing Act of 1937, 42 U.S.C. Sec. 1437f(o), excluding
subparagraph (13) relating to project-based assistance). Restrictions
shall not include any rent control or rent stabilization ordinance
imposed by a county, city, or city and county.
(4) "City" means a general law city, a charter city, or a city and
county.
(5) "Expiration of rental restrictions" means the expiration of
rental restrictions for an assisted housing development described in
paragraph (3) unless the development has other recorded agreements
restricting the rent to the same or lesser levels for at least 50
percent of the units.
(6) "Low or moderate income" means having an income as defined in
Section 50093 of the Health and Safety Code.
(7) "Prepayment" means the payment in full or refinancing of the
federally insured or federally held mortgage indebtedness prior to
its original maturity date, or the voluntary cancellation of mortgage
insurance, on an assisted housing development described in paragraph
(3) that would have the effect of removing the current rent or
occupancy or rent and occupancy restrictions contained in the
applicable laws and the regulatory agreement.
(8) "Termination" means an owner's decision not to extend or renew
its participation in a federal, state, or local government subsidy
program or private, nongovernmental subsidy program for an assisted
housing development described in paragraph (3), either at or prior to
the scheduled date of the expiration of the contract, that may
result in an increase in tenant
rents or a change in the form of the subsidy from project-based
to tenant-based.
(9) "Very low income" means having an income as defined in Section
50052.5 of the Health and Safety Code.
(b) (1) At least 12 months prior to the anticipated date of the
termination of a subsidy contract, the expiration of rental
restrictions, or prepayment on an assisted housing development, the
owner proposing the termination or prepayment of governmental
assistance or the owner of an assisted housing development in which
there will be the expiration of rental restrictions shall provide a
notice of the proposed change to each affected tenant household
residing in the assisted housing development at the time the notice
is provided and to the affected public entities. An owner who meets
the requirements of Section 65863.13 shall be exempt from providing
that notice. The notice shall contain all of the following:
(A) In the event of termination, a statement that the owner
intends to terminate the subsidy contract or rental restrictions upon
its expiration date, or the expiration date of any contract
extension thereto.
(B) In the event of the expiration of rental restrictions, a
statement that the restrictions will expire, and in the event of
prepayment, termination, or the expiration of rental restrictions
whether the owner intends to increase rents during the 12 months
following prepayment, termination, or the expiration of rental
restrictions to a level greater than permitted under Section 42 of
the Internal Revenue Code.
(C) In the event of prepayment, a statement that the owner intends
to pay in full or refinance the federally insured or federally held
mortgage indebtedness prior to its original maturity date, or
voluntarily cancel the mortgage insurance.
(D) The anticipated date of the termination, prepayment of the
federal or other program or expiration of rental restrictions, and
the identity of the federal or other program described in subdivision
(a).
(E) A statement that the proposed change would have the effect of
removing the current low-income affordability restrictions in the
applicable contract or regulatory agreement.
(F) A statement of the possibility that the housing may remain in
the federal or other program after the proposed date of termination
of the subsidy contract or prepayment if the owner elects to do so
under the terms of the federal government's or other program operator'
s offer.
(G) A statement whether other governmental assistance will be
provided to tenants residing in the development at the time of the
termination of the subsidy contract or prepayment.
(H) A statement that a subsequent notice of the proposed change,
including anticipated changes in rents, if any, for the development,
will be provided at least six months prior to the anticipated date of
termination of the subsidy contract, or expiration of rental
restrictions, or prepayment.
(I) A statement of notice of opportunity to submit an offer to
purchase, as required in Section 65863.11.
(2) Notwithstanding paragraph (1), if an owner provides a copy of
a federally required notice of termination of a subsidy contract or
prepayment at least 12 months prior to the proposed change to each
affected tenant household residing in the assisted housing
development at the time the notice is provided and to the affected
public entities, the owner shall be deemed in compliance with this
subdivision, if the notice is in compliance with all federal laws.
However, the federally required notice does not satisfy the
requirements of Section 65863.11.
(c) (1) At least six months prior to the anticipated date of
termination of a subsidy contract, expiration of rental restrictions
or prepayment on an assisted housing development, the owner proposing
the termination or prepayment of governmental assistance or the
owner of an assisted housing development in which there will be the
expiration of rental restrictions shall provide a notice of the
proposed change to each affected tenant household residing in the
assisted housing development at the time the notice is provided and
to the affected public entities. An owner who meets the requirements
of Section 65863.13 shall be exempt from providing that notice.
(2) The notice to the tenants shall contain all of the following:
(A) The anticipated date of the termination or prepayment of the
federal or other program, or the expiration of rental restrictions,
and the identity of the federal or other program, as described in
subdivision (a).
(B) The current rent and rent anticipated for the unit during the
12 months immediately following the date of the prepayment or
termination of the federal or other program, or expiration of rental
restrictions.
(C) A statement that a copy of the notice will be sent to the
city, county, or city and county, where the assisted housing
development is located, to the appropriate local public housing
authority, if any, and to the Department of Housing and Community
Development.
(D) A statement of the possibility that the housing may remain in
the federal or other program after the proposed date of subsidy
termination or prepayment if the owner elects to do so under the
terms of the federal government's or other program administrator's
offer or that a rent increase may not take place due to the
expiration of rental restrictions.
(E) A statement of the owner's intention to participate in any
current replacement subsidy program made available to the affected
tenants.
(F) The name and telephone number of the city, county, or city and
county, the appropriate local public housing authority, if any, the
Department of Housing and Community Development, and a legal services
organization, that can be contacted to request additional written
information about an owner's responsibilities and the rights and
options of an affected tenant.
(3) In addition to the information provided in the notice to the
affected tenant, the notice to the affected public entities shall
contain information regarding the number of affected tenants in the
project, the number of units that are government assisted and the
type of assistance, the number of the units that are not government
assisted, the number of bedrooms in each unit that is government
assisted, and the ages and income of the affected tenants. The notice
shall briefly describe the owner's plans for the project, including
any timetables or deadlines for actions to be taken and specific
governmental approvals that are required to be obtained, the reason
the owner seeks to terminate the subsidy contract or prepay the
mortgage, and any contacts the owner has made or is making with other
governmental agencies or other interested parties in connection with
the notice. The owner shall also attach a copy of any federally
required notice of the termination of the subsidy contract or
prepayment that was provided at least six months prior to the
proposed change. The information contained in the notice shall be
based on data that is reasonably available from existing written
tenant and project records.
(d) The owner proposing the termination or prepayment of
governmental assistance or the owner of an assisted housing
development in which there will be the expiration of rental
restrictions shall provide additional notice of any significant
changes to the notice required by subdivision (c) within seven
business days to each affected tenant household residing in the
assisted housing development at the time the notice is provided and
to the affected public entities. "Significant changes" shall include,
but not be limited to, any changes to the date of termination or
prepayment, or expiration of rental restrictions or the anticipated
new rent.
(e) An owner who is subject to the requirements of this section
shall also provide a copy of any notices issued to existing tenants
pursuant to subdivision (b), (c), or (d) to any prospective tenant at
the time he or she is interviewed for eligibility.
(f) This section shall not require the owner to obtain or acquire
additional information that is not contained in the existing tenant
and project records, or to update any information in his or her
records. The owner shall not be held liable for any inaccuracies
contained in these records or from other sources, nor shall the owner
be liable to any party for providing this information.
(g) For purposes of this section, service of the notice to the
affected tenants, the city, county, or city and county, the
appropriate local public housing authority, if any, and the
Department of Housing and Community Development by the owner pursuant
to subdivisions (b) to (e), inclusive, shall be made by first-class
mail postage prepaid.
(h) Nothing in this section shall enlarge or diminish the
authority, if any, that a city, county, city and county, affected
tenant, or owner may have, independent of this section.
(i) If, prior to January 1, 2001, the owner has already accepted a
bona fide offer from a qualified entity, as defined in subdivision
(c) of Section 65863.11, and has complied with this section as it
existed prior to January 1, 2001, at the time the owner decides to
sell or otherwise dispose of the development, the owner shall be
deemed in compliance with this section.
(j) Injunctive relief shall be available to any party identified
in paragraph (1) or (2) of subdivision (a) who is aggrieved by a
violation of this section.
(k) The Director of Housing and Community Development shall
approve forms to be used by owners to comply with subdivisions (b)
and (c). Once the director has approved the forms, an owner shall use
the approved forms to comply with subdivisions (b) and (c).
SEC. 75. Section 65863.11 of the Government Code is amended to
read:
65863.11. (a) Terms used in this section shall be defined as
follows:
(1) "Assisted housing development" and "development" mean a
multifamily rental housing development as defined in paragraph (3) of
subdivision (a) of Section 65863.10.
(2) "Owner" means an individual, corporation, association,
partnership, joint venture, or business entity that holds title to an
assisted housing development.
(3) "Tenant" means a tenant, subtenant, lessee, sublessee, or
other person legally in possession or occupying the assisted housing
development.
(4) "Tenant association" means a group of tenants who have formed
a nonprofit corporation, cooperative corporation, or other entity or
organization, or a local nonprofit, regional, or national
organization whose purpose includes the acquisition of an assisted
housing development and that represents the interest of at least a
majority of the tenants in the assisted housing development.
(5) "Low or moderate income" means having an income as defined in
Section 50093 of the Health and Safety Code.
(6) "Very low income" means having an income as defined in Section
50105 of the Health and Safety Code.
(7) "Local nonprofit organizations" means not-for-profit
corporations organized pursuant to Division 2 (commencing with
Section 5000) of Title 1 of the Corporations Code that have as their
principal purpose the ownership, development, or management of
housing or community development projects for persons and families of
low or moderate income and very low income, and which have a broadly
representative board, a majority of whose members are community
based and have a proven track record of local community service.
(8) "Local public agencies" means housing authorities,
redevelopment agencies, or any other agency of a city, county, or
city and county, whether general law or chartered, which are
authorized to own, develop, or manage housing or community
development projects for persons and families of low or moderate
income and very low income.
(9) "Regional or national organizations" means not-for-profit,
charitable corporations organized on a multicounty, state, or
multistate basis that have as their principal purpose the ownership,
development, or management of housing or community development
projects for persons and families of low or moderate income and very
low income.
(10) "Regional or national public agencies" means multicounty,
state, or multistate agencies that are authorized to own, develop, or
manage housing or community development projects for persons and
families of low or moderate income and very low income.
(11) "Use restriction" means any federal, state, or local statute,
regulation, ordinance, or contract that, as a condition of receipt
of any housing assistance, including a rental subsidy, mortgage
subsidy, or mortgage insurance, to an assisted housing development,
establishes maximum limitations on tenant income as a condition of
eligibility for occupancy of the units within a development, imposes
any restrictions on the maximum rents that could be charged for any
of the units within a development; or requires that rents for any of
the units within a development be reviewed by any governmental body
or agency before the rents are implemented.
(12) "Profit-motivated organizations and individuals" means
individuals or two or more persons organized pursuant to Division 1
(commencing with Section 100) of Title 1 of, Division 3 (commencing
with Section 1200) of Title 1 of, or Chapter 5 (commencing with
Section 16100) of Title 2 of, the Corporations Code, that carry on as
a business for profit.
(13) "Department" means the Department of Housing and Community
Development.
(14) "Offer to purchase" means an offer from a qualified or
nonqualified entity that is nonbinding on the owner.
(15) "Expiration of rental restrictions" has the meaning given in
paragraph (5) of subdivision (a) of Section 65863.10.
(b) An owner of an assisted housing development shall not
terminate a subsidy contract or prepay the mortgage pursuant to
Section 65863.10, unless the owner or its agent shall first have
provided each of the entities listed in subdivision (d) an
opportunity to submit an offer to purchase the development, in
compliance with subdivisions (g) and (h). An owner of an assisted
housing development in which there will be the expiration of rental
restrictions shall also provide each of the entities listed in
subdivision (d) an opportunity to submit an offer to purchase the
development, in compliance with subdivisions (g) and (h). An owner
who meets the requirements of Section 65863.13 shall be exempt from
this requirement.
(c) An owner of an assisted housing development shall not sell, or
otherwise dispose of, the development at any time within the five
years prior to the expiration of rental restrictions or at any time
if the owner is eligible for prepayment or termination within five
years unless the owner or its agent shall first have provided each of
the entities listed in subdivision (d) an opportunity to submit an
offer to purchase the development, in compliance with this section.
An owner who meets the requirements of Section 65863.13 shall be
exempt from this requirement.
(d) The entities to whom an opportunity to purchase shall be
provided include only the following:
(1) The tenant association of the development.
(2) Local nonprofit organizations and public agencies.
(3) Regional or national nonprofit organizations and regional or
national public agencies.
(4) Profit-motivated organizations or individuals.
(e) For the purposes of this section, to qualify as a purchaser of
an assisted housing development, an entity listed in subdivision (d)
shall do all of the following:
(1) Be capable of managing the housing and related facilities for
its remaining useful life, either by itself or through a management
agent.
(2) Agree to obligate itself and any successors in interest to
maintain the affordability of the assisted housing development for
households of very low, low, or moderate income for either a 30-year
period from the date that the purchaser took legal possession of the
housing or the remaining term of the existing federal government
assistance specified in subdivision (a) of Section 65863.10,
whichever is greater. The development shall be continuously occupied
in the approximate percentages that those households who have
occupied that development on the date the owner gave notice of intent
or the approximate percentages specified in existing use
restrictions, whichever is higher. This obligation shall be recorded
prior to the close of escrow in the office of the county recorder of
the county in which the development is located and shall contain a
legal description of the property, indexed to the name of the owner
as grantor. An owner that obligates itself to an enforceable
regulatory agreement that will ensure for a period of not less than
30 years that rents for units occupied by low- and very low income
households or that are vacant at the time of executing a purchase
agreement will conform with restrictions imposed by Section 42(f) of
the Internal Revenue Code shall be deemed in compliance with this
paragraph. In addition, the regulatory agreement shall contain
provisions requiring the renewal of rental subsidies, should they be
available, provided that assistance is at a level to maintain the
project's fiscal viability.
(3) Local nonprofit organizations and public agencies shall have
no member among their officers or directorate with a financial
interest in assisted housing developments that have terminated a
subsidy contract or prepaid a mortgage on the development without
continuing the low-income restrictions.
(f) If an assisted housing development is not economically
feasible, as defined in paragraph (3) of subdivision (h) of Section
17058 of the Revenue and Taxation Code, a purchaser shall be entitled
to remove one or more units from the rent and occupancy requirements
as is necessary for the development to become economically feasible,
provided that once the development is again economically feasible,
the purchaser shall designate the next available units as low-income
units up to the original number of those units.
(g) (1) If an owner decides to terminate a subsidy contract, or
prepay the mortgage pursuant to Section 65863.10, or sell or
otherwise dispose of the assisted housing development pursuant to
subdivision (b) or (c), or if the owner has an assisted housing
development in which there will be the expiration of rental
restrictions, the owner shall first give notice of the opportunity to
offer to purchase to each qualified entity on the list provided to
the owner by the department, in accordance with subdivision (o), as
well as to those qualified entities that directly contact the owner.
The notice of the opportunity to offer to purchase must be given
prior to or concurrently with the notice required pursuant to Section
65863.10 for a period of at least 12 months. The owner shall contact
the department to obtain the list of qualified entities. The notice
shall conform to the requirements of subdivision (h) and shall be
sent to the entities by registered or certified mail, return receipt
requested. The owner shall also post a copy of the notice in a
conspicuous place in the common area of the development.
(2) If the owner already has a bona fide offer to purchase from an
entity prior to January 1, 2001, at the time the owner decides to
sell or otherwise dispose of the development, the owner shall not be
required to comply with this subdivision. However, the owner shall
notify the department of this exemption and provide the department a
copy of the offer.
(h) The initial notice of a bona fide opportunity to submit an
offer to purchase shall contain all of the following:
(1) A statement addressing all of the following:
(A) Whether the owner intends to maintain the current number of
affordable units and level of affordability.
(B) Whether the owner has an interest in selling the property.
(C) Whether the owner has executed a contract or agreement of at
least five years' duration with a public entity to continue or
replace subsidies to the property and to maintain an equal or greater
number of units at an equal or deeper level of affordability and, if
so, the length of the contract or agreement.
(2) A statement that each of the type of entities listed in
subdivision (d) has the right to purchase the development under this
section.
(3) (A) Except as provided in subparagraph (B), a statement that
the owner will make available to each of the types of entities listed
in subdivision (d), within 15 business days of receiving a request
therefor, that includes all of the following:
(i) Itemized lists of monthly operating expenses for the property.
(ii) Capital improvements, as determined by the owner, made within
each of the two preceding calendar years at the property.
(iii) The amount of project property reserves.
(iv) Copies of the two most recent financial and physical
inspection reports on the property, if any, filed with a federal,
state, or local agency.
(v) The most recent rent roll for the property listing the rent
paid for each unit and the subsidy, if any, paid by a governmental
agency as of the date the notice of intent was made pursuant to
Section 65863.10.
(vi) A statement of the vacancy rate at the property for each of
the two preceding calendar years.
(vii) The terms of assumable financing, if any, the terms of the
subsidy contract, if any, and proposed improvements to the property
to be made by the owner in connection with the sale, if any.
(B) Subparagraph (A) shall not apply if 25 percent or less of the
units on the property are subject to affordability restrictions or a
rent or mortgage subsidy contract.
(C) A corporation authorized pursuant to Section 52550 of the
Health and Safety Code or a public entity may share information
obtained pursuant to subparagraph (A) with other prospective
purchasers, and shall not be required to sign a confidentiality
agreement as a condition of receiving or sharing this information,
provided that the information is used for the purpose of attempting
to preserve the affordability of the property.
(4) A statement that the owner has satisfied all notice
requirements pursuant to subdivision (b) of Section 65863.10, unless
the notice of opportunity to submit an offer to purchase is delivered
more than 12 months prior to the anticipated date of termination,
prepayment, or expiration of rental restrictions.
(i) If a qualified entity elects to purchase an assisted housing
development, it shall make a bona fide offer to purchase the
development. A qualified entity's bona fide offer to purchase shall
identify whether it is a tenant association, nonprofit organization,
public agency, or profit-motivated organizations or individuals and
shall certify, under penalty of perjury, that it is qualified
pursuant to subdivision (e). During the first 180 days from the date
of an owner's bona fide notice of the opportunity to submit an offer
to purchase, an owner shall accept a bona fide offer to purchase only
from a qualified entity. During this 180-day period, the owner shall
not accept offers from any other entity.
(j) When a bona fide offer to purchase has been made to an owner,
and the offer is accepted, a purchase agreement shall be executed.
(k) Either the owner or the qualified entity may request that the
fair market value of the property, as a development, be determined by
an independent appraiser qualified to perform multifamily housing
appraisals, who shall be selected and paid by the requesting party.
All appraisers shall possess qualifications equivalent to those
required by the members of the Appraisers Institute. This appraisal
shall be nonbinding on either party with respect to the sales price
of the development offered in the bona fide offer to purchase, or the
acceptance or rejection of the offer.
(l) During the 180-day period following the initial 180-day period
required pursuant to subdivision (i), an owner may accept an offer
from a person or an entity that does not qualify under subdivision
(e). This acceptance shall be made subject to the owner's providing
each qualified entity that made a bona fide offer to purchase the
first opportunity to purchase the development at the same terms and
conditions as the pending offer to purchase, unless these terms and
conditions are modified by mutual consent. The owner shall notify in
writing those qualified entities of the terms and conditions of the
pending offer to purchase, sent by registered or certified mail,
return receipt requested. The qualified entity shall have 30 days
from the date the notice is mailed to submit a bona fide offer to
purchase and that offer shall be accepted by the owner. The owner
shall not be required to comply with the provisions of this
subdivision if the person or the entity making the offer during this
time period agrees to maintain the development for persons and
families of very low, low, and moderate income in accordance with
paragraph (2) of subdivision (e). The owner shall notify the
department regarding how the buyer is meeting the requirements of
paragraph (2) of subdivision (e).
(m) This section shall not apply to any of the following: a
government taking by eminent domain or negotiated purchase; a forced
sale pursuant to a foreclosure; a transfer by gift, devise, or
operation of law; a sale to a person who would be included within the
table of descent and distribution if there were to be a death
intestate of an owner; or an owner who certifies, under penalty of
perjury, the existence of a financial emergency during the period
covered by the first right of refusal requiring immediate access to
the proceeds of the sale of the development. The certification shall
be made pursuant to subdivision (p).
(n) Prior to the close of escrow, an owner selling, leasing, or
otherwise disposing of a development to a purchaser who does not
qualify under subdivision (e) shall certify under penalty of perjury
that the owner has complied with all provisions of this section and
Section 65863.10. This certification shall be recorded and shall
contain a legal description of the property, shall be indexed to the
name of the owner as grantor, and may be relied upon by good faith
purchasers and encumbrances for value and without notice of a failure
to comply with the provisions of this section.
Any person or entity acting solely in the capacity of an escrow
agent for the transfer of real property subject to this section shall
not be liable for any failure to comply with this section unless the
escrow agent either had actual knowledge of the requirements of this
section or acted contrary to written escrow instructions concerning
the provisions of this section.
(o) The
department shall undertake the following responsibilities and duties:
(1) Maintain a form containing a summary of rights and obligations
under this section and make that information available to owners of
assisted housing developments as well as to tenant associations,
local nonprofit organizations, regional or national nonprofit
organizations, public agencies, and other entities with an interest
in preserving the state's subsidized housing.
(2) Compile, maintain, and update a list of entities in
subdivision (d) that have either contacted the department with an
expressed interest in purchasing a development in the subject area or
have been identified by the department as potentially having an
interest in participating in a right-of-first-refusal program. The
department shall publicize the existence of the list statewide. Upon
receipt of a notice of intent under Section 65863.10, the department
shall make the list available to the owner proposing the termination,
prepayment, or removal of government assistance or to the owner of
an assisted housing development in which there will be the expiration
of rental restrictions. If the department does not make the list
available at any time, the owner shall only be required to send a
written copy of the opportunity to submit an offer to purchase notice
to the qualified entities which directly contact the owner and to
post a copy of the notice in the common area pursuant to subdivision
(g).
(p) (1) The provisions of this section may be enforced either in
law or in equity by any qualified entity entitled to exercise the
opportunity to purchase and right of first refusal under this section
that has been adversely affected by an owner's failure to comply
with this section.
(2) An owner may rely on the statements, claims, or
representations of any person or entity that the person or entity is
a qualified entity as specified in subdivision (d), unless the owner
has actual knowledge that the purchaser is not a qualified entity.
(3) If the person or entity is not an entity as specified in
subdivision (d), that fact, in the absence of actual knowledge as
described in paragraph (2), shall not give rise to any claim against
the owner for a violation of this section.
(q) It is the intent of the Legislature that the provisions of
this section are in addition to, but not preemptive of, applicable
federal laws governing the sale or other disposition of a development
that would result in either (1) a discontinuance of its use as an
assisted housing development or (2) the termination or expiration of
any low-income use restrictions that apply to the development.
SEC. 76. Section 66499.20¼ of the Government Code is amended and
renumbered to read:
66499.20.1. A city or county may, by ordinance, authorize a
parcel map to be filed under the provisions of this chapter for the
purpose of reverting to acreage land previously subdivided and
consisting of four or less contiguous parcels under the same
ownership. Any map so submitted shall be accompanied by evidence of
title and nonuse or lack of necessity of any public streets or public
easements which are to be vacated or abandoned. Any public streets
or public easements to be left in effect after the reversion shall be
adequately delineated on the map. After approval of the reversion by
the governing body or advisory agency the map shall be delivered to
the county recorder. The filing of the map shall constitute legal
reversion to acreage of the land affected thereby, and shall also
constitute abandonment of all public streets or public easements not
shown on the map, provided however that written notation of each
abandonment is listed by reference to the recording data creating
those public streets or public easements and certified to on the map
by the clerk of the legislative body or the designee of the
legislative body approving the map. The filing of the map shall also
constitute a merger of the separate parcels into one parcel for
purposes of this chapter and shall thereafter be shown as such on the
assessment roll subject to the provisions of Section 66445. Except
as provided in subdivision (f) of Section 66445, on any parcel map
used for reverting acreage, a certificate shall appear signed and
acknowledged by all parties having any record title interest in the
land being reverted, consenting to the preparation and filing of the
parcel map.
SEC. 77. Section 66499.20½ of the Government Code is amended and
renumbered to read:
66499.20.2. Subdivided lands may be merged and resubdivided
without reverting to acreage by complying with all the applicable
requirements for the subdivision of land as provided by this division
and any local ordinances adopted pursuant thereto. The filing of the
final map or parcel map shall constitute legal merging of the
separate parcels into one parcel and the resubdivision of such
parcel, and the real property shall thereafter be shown with the new
lot or parcel boundaries on the assessment roll. Any unused fees or
deposits previously made pursuant to this division pertaining to the
property shall be credited pro rata towards any requirements for the
same purposes which are applicable at the time of resubdivision. Any
public streets or public easements to be left in effect after the
resubdivision shall be adequately delineated on the map. After
approval of the merger and resubdivision by the governing body or
advisory agency the map shall be delivered to the county recorder.
The filing of the map shall constitute legal merger and resubdivision
of the land affected thereby, and shall also constitute abandonment
of all public streets and public easements not shown on the map,
provided that a written notation of each abandonment is listed by
reference to the recording data creating these public streets or
public easements, and certified to on the map by the clerk of the
legislative body or the designee of the legislative body approving
the map.
SEC. 78. Section 66499.20¾ of the Government Code is amended and
renumbered to read:
66499.20.3. A city or county may, by ordinance, authorize the
merger of contiguous parcels under common ownership without reverting
to acreage. The ordinance shall require the recordation of an
instrument evidencing the merger.
SEC. 79. Section 76000.10 of the Government Code is amended to
read:
76000.10. (a) This section shall be known, and may be cited, as
the Emergency Medical Air Transportation Act.
(b) For purposes of this section:
(1) "Department" means the State Department of Health Care
Services.
(2) "Director" means the Director of Health Care Services.
(3) "Provider" means a provider of emergency medical air
transportation services.
(4) "Rotary wing" means a type of aircraft, commonly referred to
as a helicopter, that generates lift through the use of wings, known
as rotor blades, that revolve around a mast.
(5) "Fixed wing" means a type of aircraft, commonly referred to as
an airplane, that generates lift through the use of the forward
motion of the aircraft and wings that do not revolve around a mast
but are fixed in relation to the fuselage of the aircraft.
(6) "Air mileage rate" means the per-mileage reimbursement rate
paid for services rendered by rotary-wing and fixed-wing providers.
(c) (1) For purposes of implementing this section, a penalty of
four dollars ($4) shall be imposed upon every conviction for a
violation of the Vehicle Code or a local ordinance adopted pursuant
to the Vehicle Code, except parking offenses subject to Article 3
(commencing with Section 40200) of Chapter 1 of Division 17 of the
Vehicle Code.
(2) The penalty described in this subdivision shall be in addition
to the state penalty assessed pursuant to Section 1464 of the Penal
Code. However, this penalty shall not be included in the base fine
used to calculate the state penalty assessment pursuant to
subdivision (a) of Section 1464 of the Penal Code, the state
surcharge levied pursuant to Section 1465.7 of the Penal Code, and
the state court construction penalty pursuant to Section 70372 of
this code, and to calculate the other additional penalties levied
pursuant to this chapter.
(d) The county or the court that imposed the fine shall, in
accordance with the procedures set out in Section 68101, transfer
moneys collected pursuant to this section to the Treasurer for
deposit into the Emergency Medical Air Transportation Act Fund, which
is hereby established in the State Treasury. Notwithstanding Section
16305.7, the Emergency Medical Air Transportation Act Fund shall
include interest and dividends earned on money in the fund.
(e) (1) The Emergency Medical Air Transportation Act Fund shall be
administered by the State Department of Health Care Services. Moneys
in the Emergency Medical Air Transportation Act Fund shall be made
available, upon appropriation by the Legislature, to the department
to be used as follows:
(A) For payment of the administrative costs of the department in
administering this section.
(B) Twenty percent of the fund remaining after payment of
administrative costs pursuant to subparagraph (A) shall be used to
offset the state portion of the Medi-Cal reimbursement rate for
emergency medical air transportation services.
(C) Eighty percent of the fund remaining after payment of
administrative costs pursuant to subparagraph (A) shall be used to
augment emergency medical air transportation reimbursement payments
made through the Medi-Cal program, as set forth in paragraphs (2) and
(3).
(2) (A) The department shall seek to obtain federal matching funds
by using the moneys in the Emergency Medical Air Transportation Act
Fund for the purpose of augmenting Medi-Cal reimbursement paid to
emergency medical air transportation providers.
(B) The director shall do all of the following:
(i) By March 1, 2011, meet with medical air transportation
providers to determine the most appropriate methodology to distribute
the funds for medical air services.
(ii) Implement the methodology determined most appropriate in a
timely manner.
(iii) Develop the methodology in collaboration with the medical
air providers.
(iv) Submit any state plan amendments or waiver requests that may
be necessary to implement this section.
(v) Submit any state plan amendment or waiver request that may be
necessary to implement this section.
(vi) Seek federal approvals or waivers as may be necessary to
implement this section and to obtain federal financial participation
to the maximum extent possible for the payments under this section.
If federal approvals are not received, moneys in the fund may be
distributed pursuant to this section until federal approvals are
received.
(C) The director may give great weight to the needs of the
emergency medical air services providers, as discussed through the
development of the methodology.
(3) (A) Upon appropriation by the Legislature, the department
shall use moneys in the Emergency Medical Air Transportation Act Fund
and any federal matching funds to increase the Medi-Cal
reimbursement for emergency medical air transportation services in an
amount not to exceed normal and customary charges charged by the
providers.
(B) Notwithstanding any other provision of law, and pursuant to
this section, the department shall increase the Medi-Cal
reimbursement for emergency medical air transportation services
provided that both of the following conditions are met:
(i) Moneys in the Emergency Medical Air Transportation Act Fund
will cover the cost of increased payments pursuant to subparagraph
(A).
(ii) The state does not incur any General Fund expense to pay for
the Medi-Cal emergency medical air transportation services increase.
(f) The assessment of penalties pursuant to this section shall
terminate commencing January 1, 2016. Penalties assessed prior to
January 1, 2016, shall continue to be collected, administered, and
distributed pursuant to this section until exhausted or until June
30, 2017, whichever occurs first. On June 30, 2017, moneys remaining
unexpended and unencumbered in the Emergency Medical Air
Transportation Act Fund shall be transferred to the General Fund, to
be available, upon appropriation by the Legislature, for the purposes
of augmenting Medi-Cal reimbursement for emergency medical air
transportation and related costs, generally.
(g) Notwithstanding the rulemaking provisions of Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2,
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.
(h) This section shall remain in effect 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. 80. Section 1156.6 of the Harbors and Navigation Code is
amended to read:
1156.6. (a) If suspected safety standard violations concerning
pilot hoists, pilot ladders, or the proper rigging of pilot hoists or
pilot ladders are reported to the board, the executive director
shall investigate the report. The executive director may personally
inspect or assign a commission investigator to personally inspect the
equipment for its compliance with the relevant safety standards
promulgated by the United States Coast Guard and the International
Maritime Organization. If, in the preliminary investigation, the
equipment is found to be in violation, or in likely violation in the
opinion of the executive director, of the relevant safety standards,
the executive director shall immediately alert the appropriate United
States Coast Guard office. The executive director shall report his
or her findings and recommendations, if any, to the board. The board
shall receive the executive director's findings, which may include
other reports, information, or statements from interested parties.
The board shall specify, by regulation, the information that shall be
contained in the report.
(b) This section applies to the pilotage grounds, as defined in
Section 1114.5. If a vessel passes outside of the pilotage grounds,
the executive director's report shall include that fact along with a
description of the incident.
(c) The record of the investigation and the board's findings and
recommendations, if any, shall be a public record maintained by the
board.
SEC. 81. Section 1367.241 of the Health and Safety Code is amended
to read:
1367.241. (a) Notwithstanding any other provision of law, on and
after January 1, 2013, a health care service plan that provides
prescription drug benefits shall accept only the prior authorization
form developed pursuant to subdivision (c) when requiring prior
authorization for prescription drug benefits. This section does not
apply in the event that a physician or physician group has been
delegated the financial risk for prescription drugs by a health care
service plan and does not use a prior authorization process. This
section does not apply to a health care service plan, or to its
affiliated providers, if the health care service plan owns and
operates its pharmacies and does not use a prior authorization
process for prescription drugs.
(b) If a health care service plan fails to utilize or accept the
prior authorization form, or fails to respond within two business
days upon receipt of a completed prior authorization request from a
prescribing provider, pursuant to the submission of the prior
authorization form developed as described in subdivision (c), the
prior authorization request shall be deemed to have been granted. The
requirements of this subdivision shall not apply to contracts
entered into pursuant to Article 2.7 (commencing with Section
14087.3), Article 2.8 (commencing with Section 14087.5), Article 2.81
(commencing with Section 14087.96), or Article 2.91 (commencing with
Section 14089) of Chapter 7 of, or Chapter 8 (commencing with
Section 14200) of, Part 3 of Division 9 of the Welfare and
Institutions Code.
(c) On or before July 1, 2012, the department and the Department
of Insurance shall jointly develop a uniform prior authorization
form. Notwithstanding any other provision of law, on and after
January 1, 2013, or six months after the form is developed, whichever
is later, every prescribing provider shall use that uniform prior
authorization form to request prior authorization for coverage of
prescription drug benefits and every health care service plan shall
accept that form as sufficient to request prior authorization for
prescription drug benefits.
(d) The prior authorization form developed pursuant to subdivision
(c) shall meet the following criteria:
(1) The form shall not exceed two pages.
(2) The form shall be made electronically available by the
department and the health care service plan.
(3) The completed form may also be electronically submitted from
the prescribing provider to the health care service plan.
(4) The department and the Department of Insurance shall develop
the form with input from interested parties from at least one public
meeting.
(5) The department and the Department of Insurance, in development
of the standardized form, shall take into consideration the
following:
(A) Existing prior authorization forms established by the federal
Centers for Medicare and Medicaid Services and the State Department
of Health Care Services.
(B) National standards pertaining to electronic prior
authorization.
(e) For purposes of this section, a "prescribing provider" shall
include a provider authorized to write a prescription, pursuant to
subdivision (a) of Section 4040 of the Business and Professions Code,
to treat a medical condition of an enrollee.
SEC. 82. Section 1374.74 of the Health and Safety Code is amended
to read:
1374.74. (a) The department, in consultation with the Department
of Insurance, shall convene an Autism Advisory Task Force by February
1, 2012, in collaboration with other agencies, departments,
advocates, autism experts, health plan and health insurer
representatives, and other entities and stakeholders that it deems
appropriate. The Autism Advisory Task Force shall develop
recommendations regarding behavioral health treatment that is
medically necessary for the treatment of individuals with autism or
pervasive developmental disorder. The Autism Advisory Task Force
shall address all of the following:
(1) Interventions that have been scientifically validated and have
demonstrated clinical efficacy.
(2) Interventions that have measurable treatment outcomes.
(3) Patient selection, monitoring, and duration of therapy.
(4) Qualifications, training, and supervision of providers.
(5) Adequate networks of providers.
(b) The Autism Advisory Task Force shall also develop
recommendations regarding the education, training, and experience
requirements that unlicensed individuals providing autism services
shall meet in order to secure a license from the state.
(c) The department shall submit a report of the Autism Advisory
Task Force to the Governor, the President pro Tempore of the Senate,
the Speaker of the Assembly, and the Senate and Assembly Committees
on Health by December 31, 2012, on which date the task force shall
cease to exist.
SEC. 83. Section 1461 of the Health and Safety Code, as added by
Section 21 of Chapter 1136 of the Statutes of 1993, is repealed.
SEC. 84. Section 1527.3 of the Health and Safety Code is amended
to read:
1527.3. The fund shall not be liable for any of the following:
(a) Any loss arising out of a dishonest, fraudulent, criminal, or
intentional act.
(b) Any occurrence which does not arise from the foster-care
relationship.
(c) 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.
(d) 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.
(e) Any allegation of alienation of affection against a foster
parent.
(f) Any loss or damage arising out of occurrences prior to October
1, 1986.
(g) Exemplary damages.
(h) Any liability of a foster parent which is uninsured due solely
to the foster parent's failure to obtain insurance specified in
Section 676.7 of the Insurance Code. Nothing in this subdivision
shall be construed to expand the liability of the fund with respect
to insured foster parents.
SEC. 85. Section 11357.5 of the Health and Safety Code is amended
to read:
11357.5. (a) Every person who sells, dispenses, distributes,
furnishes, administers, or gives, or offers to sell, dispense,
distribute, furnish, administer, or give, or possesses for sale any
synthetic cannabinoid compound, or any synthetic cannabinoid
derivative, to any person, is guilty of a misdemeanor punishable by
imprisonment in a county jail not exceeding six months, or by a fine
not exceeding one thousand dollars ($1,000), or by both that fine and
imprisonment.
(b) As used in this section, the term "synthetic cannabinoid
compound" refers to any of the following substances:
(1) 1-pentyl-3-(1-naphthoyl)indole (JWH-018).
(2) 1-butyl-3-(1-naphthoyl)indole (JWH-073).
(3) 1-2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole (JWH-200).
(4) 5-(1,1-dimethylheptyl)-2-(1R,3S)-3-hydroxycyclohexyl]-phenol
(CP-47,497).
(5) 5-(1,1-dimethyloctyl)-2-(1R,3S)-3-hydroxycyclohexyl]-phenol
(cannabicyclohexanol; CP-47,497 C8 homologue).
SEC. 86. Section 11364 of the Health and Safety Code is amended to
read:
11364. (a) It is unlawful to possess an opium pipe or any device,
contrivance, instrument, or paraphernalia used for unlawfully
injecting or smoking (1) a controlled substance specified in
subdivision (b), (c), or (e) or paragraph (1) of subdivision (f) of
Section 11054, specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, specified in subdivision (b) or (c)
of Section 11055, or specified in paragraph (2) of subdivision (d)
of Section 11055, or (2) a controlled substance which is a narcotic
drug classified in Schedule III, IV, or V.
(b) This section shall not apply to hypodermic needles or syringes
that have been containerized for safe disposal in a container that
meets state and federal standards for disposal of sharps waste.
(c) Pursuant to authorization by a county, with respect to all of
the territory within the county, or a city, with respect to the
territory within the city, for the period commencing January 1, 2005,
and ending December 31, 2018, subdivision (a) shall not apply to the
possession solely for personal use of 10 or fewer hypodermic needles
or syringes if acquired from an authorized source.
(d) This section shall be inoperative until January 1, 2015.
SEC. 87. Section 25160 of the Health and Safety Code is amended to
read:
25160. (a) For purposes of this chapter, the following
definitions apply:
(1) "Manifest" means a shipping document originated and signed by
a generator of hazardous waste that contains all of the information
required by the department and that complies with all applicable
federal and state regulations.
(2) "California Uniform Hazardous Waste Manifest" means either of
the following:
(A) A manifest document printed and supplied by the state for a
shipment initiated on or before September 4, 2006.
(B) The Uniform Hazardous Waste Manifest printed by a source
registered with the United States Environmental Protection Agency for
a shipment initiated on or after September 5, 2006.
(3) For purposes of this section and Section 25205.15, a shipment
is initiated on the date when the manifest is signed by the first
transporter and the hazardous waste leaves the site where it is
generated.
(b) (1) Except as provided in Section 25160.2 or 25160.8, or as
otherwise authorized by a variance issued by the department, a person
generating hazardous waste that is transported, or submitted for
transportation, for offsite handling, treatment, storage, disposal,
or any combination thereof, shall complete a manifest prior to the
time the waste is transported or offered for transportation, and
shall designate on that manifest the facility to which the waste is
to be shipped for the handling, treatment, storage, disposal, or
combination thereof. The manifest shall be completed as required by
the department. The generator shall provide the manifest to the
person who will transport the hazardous waste, who is the driver, if
the hazardous waste will be transported by vehicle, or the person
designated by the railroad corporation or vessel operator, if the
hazardous waste will be transported by rail or vessel.
(A) The generator shall use the standard California Uniform
Hazardous Waste Manifest supplied by the department for all shipments
of hazardous waste initiated on and before September 4, 2006, for
which a manifest is required, except as provided in paragraph (2).
(B) The generator shall use the Uniform Hazardous Waste Manifest
printed by a source registered with the United States Environmental
Protection Agency for all shipments of hazardous waste initiated on
and after September 5, 2006, for which a manifest is required.
(C) A manifest shall only be used for the purposes specified in
this chapter, including, but not limited to, identifying materials
that the person completing the manifest reasonably believes are
hazardous waste.
(D) Within 30 days from the date of transport, or submission for
transport, of hazardous waste, each generator of that hazardous waste
shall submit to the department a legible copy of each manifest used.
The copy submitted to the department shall contain the signatures of
the generator and the transporter.
(E) In lieu of submitting a copy of each manifest used, a
generator may submit an electronic report to the department meeting
the requirements of Section 25160.3.
(2) Except as provided in Section 25160.2 or 25160.8 or as
otherwise authorized by a variance issued by the department, a person
generating hazardous waste that is transported, or submitted for
transportation, for offsite handling, treatment, storage, disposal,
or any combination thereof, outside of the state, shall complete,
whether or not the waste is determined to be hazardous by the
importing country or state, a manifest in accordance with the
following conditions:
(A) The generator shall use the standard California Uniform
Hazardous Waste Manifest or the manifest required by the receiving
state for all shipments of hazardous waste initiated on
and before September 4, 2006, for
which a manifest is required.
(B) The generator shall use the Uniform Hazardous Waste Manifest
printed by a source registered with the United States Environmental
Protection Agency for all shipments of hazardous waste initiated on
and after September 5, 2006, for which a manifest is required.
(C) The generator shall submit a copy of the manifest specified in
subparagraph (A) or (B), as applicable, to the department within 30
days from the date of the transport, or submission for transport, of
the hazardous waste. In lieu of submitting a copy of each manifest
used, a generator may submit an electronic report to the department
meeting the requirements of Section 25160.3.
(3) Within 30 days from the date of transport, or submission for
transport, of hazardous waste out of state, each generator of that
hazardous waste shall submit to the department a legible copy of each
manifest used. The copy submitted to the department shall contain
the signatures of the generator, all transporters, excepting
intermediate rail transporters, and the out-of-state facility
operator. If within 35 days from the date of the initial shipment, or
for exports by water to foreign countries 60 days after the initial
shipment, the generator has not received a copy of the manifest
signed by all transporters and the facility operator, the generator
shall contact the owner or operator of the designated facility to
determine the status of the hazardous waste and to request that the
owner or operator immediately provide a signed copy of the manifest
to the generator. Except as provided otherwise in paragraph (2) of
subdivision (h) of Section 25123.3, if within 45 days from the date
of the initial shipment or, for exports by water to foreign
countries, 90 days from the date of the initial shipment, the
generator has not received a copy of the signed manifest from the
facility owner or operator, the generator shall submit an exception
report to the department.
(4) For shipments of waste that do not require a manifest pursuant
to Title 40 of the Code of Federal Regulations, the department, by
regulation, may establish manifest requirements that differ from the
requirements of this section. The requirements for an alternative
form of manifest shall ensure that the hazardous waste is transported
by a registered hazardous waste transporter, that the hazardous
waste is tracked, and that human health and safety and the
environment are protected.
(5) (A) Notwithstanding any other provision of this section,
except as provided in subparagraph (B), the generator copy of the
manifest is not required to be submitted to the department for any
waste transported in compliance with the consolidated manifest
procedures in Section 25160.2 or with the procedures specified in
Section 25160.8, or when the transporter is operating pursuant to a
variance issued by the department pursuant to Section 25143
authorizing the use of a consolidated manifest for waste not listed
in Section 25160.2, if the generator, transporter, and facility are
all identified as the same company on the hazardous waste manifest.
If multiple identification numbers are used by a single company, all
of the company's identification numbers shall be included in its
annual transporter registration application, if those numbers will be
used with the consolidated manifest procedure. Nothing in this
paragraph affects the obligation of a facility operator to submit to
the department a copy of a manifest pursuant to this section.
(B) If the waste subject to subparagraph (A) is transported out of
state, the generator shall either ensure that the facility operator
submits to the department a copy of the manifest or the generator
shall submit a copy to the department that contains the signatures of
the generator, all transporters, excepting intermediate rail
transporters, and the out-of-state facility operator pursuant to
paragraph (3).
(c) (1) The department shall determine the form and manner in
which a manifest shall be completed and the information that the
manifest shall contain. The information requested on the manifest
shall serve as the data dictionary for purposes of the developing of
an electronic reporting format pursuant to Section 71062 of the
Public Resources Code. The form of each manifest and the information
requested on each manifest shall be the same for all hazardous
wastes, regardless of whether the hazardous wastes are also regulated
pursuant to the federal act or by regulations adopted by the United
States Department of Transportation. However, the form of the
manifest and the information required shall be consistent with
federal regulations.
(2) Pursuant to federal regulations, the department may require
information on the manifest in addition to the information required
by federal regulations.
(d) (1) A person who transports hazardous waste in a vehicle shall
have a manifest in his or her possession while transporting the
hazardous waste. The manifest shall be shown upon demand to any
representative of the department, any officer of the Department of
the California Highway Patrol, any local health officer, any
certified unified program agency, or any local public officer
designated by the director. If the hazardous waste is transported by
rail or vessel, the railroad corporation or vessel operator shall
comply with Subchapter C (commencing with Section 171.1) of Chapter 1
of Subtitle B of Title 49 of the Code of Federal Regulations and
shall also enter on the shipping papers any information concerning
the hazardous waste that the department may require.
(2) Any person who transports a waste, as defined by Section
25124, and who is provided with a manifest for that waste shall,
while transporting that waste, comply with all requirements of this
chapter, and the regulations adopted pursuant thereto, concerning the
transportation of hazardous waste.
(3) A person who transports hazardous waste shall transfer a copy
of the manifest to the facility operator at the time of delivery, or
to the person who will subsequently transport the hazardous waste in
a vehicle. A person who transports hazardous waste and then transfers
custody of that hazardous waste to a person who will subsequently
transport that waste by rail or vessel shall transfer a copy of the
manifest to the person designated by the railroad corporation or
vessel operator, as specified by Subchapter C (commencing with
Section 171.1) of Chapter 1 of Subtitle B of Title 49 of the Code of
Federal Regulations.
(4) A person transporting hazardous waste by motor vehicle, rail,
or water shall certify to the department, at the time of initial
registration and at the time of renewal of that registration pursuant
to this article, that the transporter is familiar with the
requirements of this section, the department regulations, and federal
laws and regulations governing the use of manifests.
(e) (1) A facility operator in the state who receives hazardous
waste for handling, treatment, storage, disposal, or any combination
thereof, which was transported with a manifest pursuant to this
section, shall submit a copy of the manifest to the department within
30 days from the date of receipt of the hazardous waste. The copy
submitted to the department shall contain the signatures of the
generator, all transporters, excepting intermediate rail
transporters, and the facility operator. In instances in which the
generator or transporter is not required by the generator's state or
federal law to sign the manifest, the facility operator shall require
the generator and all transporters, excepting intermediate rail
transporters, to sign the manifest before receiving the waste at any
facility in this state. In lieu of submitting a copy of each manifest
used, a facility operator may submit an electronic report to the
department meeting the requirements of Section 25160.3.
(2) Any treatment, storage, or disposal facility receiving
hazardous waste generated outside this state may only accept the
hazardous waste for treatment, storage, disposal, or any combination
thereof, if the hazardous waste is accompanied by a completed
standard California Uniform Hazardous Waste Manifest.
(3) A facility operator may accept hazardous waste generated
offsite that is not accompanied by a properly completed and signed
standard California Uniform Hazardous Waste Manifest if the facility
operator meets both of the following conditions:
(A) The facility operator is authorized to accept the hazardous
waste pursuant to a hazardous waste facilities permit or other grant
of authorization from the department.
(B) The facility operator is in compliance with the regulations
adopted by the department specifying the conditions and procedures
applicable to the receipt of hazardous waste under these
circumstances.
(4) This subdivision applies only to shipments of hazardous waste
for which a manifest is required pursuant to this section and the
regulations adopted pursuant to this section.
(f) A generator, transporter, or facility operator may comply with
the requirements of Sections 66262.40, 66263.22, 66264.71, and
66265.71 of Title 22 of the California Code of Regulations by storing
manifest information electronically. A generator, transporter, or
facility operator who stores manifest information electronically
shall use the standardized electronic format and protocol for the
exchange of electronic data established by the Secretary for
Environmental Protection pursuant to Part 2 (commencing with Section
71050) of Division 34 of the Public Resources Code and the stored
information shall include all the information required to be retained
by the department, including all signatures required by this
section.
(g) The department shall make available for review, by any
interested party, the department's plans for revising and enhancing
its system for tracking hazardous waste for the purposes of
protecting human health and the environment, enforcing laws,
collecting revenue, and generating necessary reports.
SEC. 88. Section 34163 of the Health and Safety Code is amended to
read:
34163. Notwithstanding Part 1 (commencing with Section 33000),
Part 1.5 (commencing with Section 34000), Part 1.6 (commencing with
Section 34050), and Part 1.7 (commencing with Section 34100), or any
other law, commencing on the effective date of this part, an agency
shall not have the authority to, and shall not, do any of the
following:
(a) Make loans or advances or grant or enter into agreements to
provide funds or provide financial assistance of any sort to any
entity or person for any purpose, including, but not limited to, all
of the following:
(1) Loans of moneys or any other thing of value or commitments to
provide financing to nonprofit organizations to provide those
organizations with financing for the acquisition, construction,
rehabilitation, refinancing, or development of multifamily rental
housing or the acquisition of commercial property for lease, each
pursuant to Chapter 7.5 (commencing with Section 33741) of Part 1.
(2) Loans of moneys or any other thing of value for residential
construction, improvement, or rehabilitation pursuant to Chapter 8
(commencing with Section 33750) of Part 1. These include, but are not
limited to, construction loans to purchasers of residential housing,
mortgage loans to purchasers of residential housing, and loans to
mortgage lenders, or any other entity, to aid in financing pursuant
to Chapter 8 (commencing with Section 33750).
(3) The purchase, by an agency, of mortgage or construction loans
from mortgage lenders or from any other entities.
(b) Enter into contracts with, incur obligations, or make
commitments to, any entity, whether governmental, tribal, or private,
or any individual or groups of individuals for any purpose,
including, but not limited to, loan agreements, passthrough
agreements, regulatory agreements, services contracts, leases,
disposition and development agreements, joint exercise of powers
agreements, contracts for the purchase of capital equipment, and
agreements for redevelopment activities, including, but not limited
to, agreements for planning, design, redesign, development,
demolition, alteration, construction, reconstruction, rehabilitation,
site remediation, site development or improvement, removal of
graffiti, land clearance, and seismic retrofits.
(c) Amend or modify existing agreements, obligations, or
commitments with any entity, for any purpose, including, but not
limited to, any of the following:
(1) Renewing or extending the term of leases or other agreements,
except that the agency may extend lease space for its own use to a
date not to exceed six months after the effective date of the act
adding this part and for a rate no more than 5 percent above the rate
the agency currently pays on a monthly basis.
(2) Modifying terms and conditions of existing agreements,
obligations, or commitments.
(3) Forgiving all or any part of the balance owed to the agency on
existing loans or extend the term or change the terms and conditions
of existing loans.
(4) Increasing its deposits to the Low and Moderate Income Housing
Fund created pursuant to Section 33334.3 beyond the minimum level
that applied to it as of January 1, 2011.
(5) Transferring funds out of the Low and Moderate Income Housing
Fund, except to meet the minimum housing-related obligations that
existed as of January 1, 2011, to make required payments under
Sections 33690 and 33690.5, and to borrow funds pursuant to Section
34168.5.
(d) Dispose of assets by sale, long-term lease, gift, grant,
exchange, transfer, assignment, or otherwise, for any purpose,
including, but not limited to, any of the following:
(1) Assets, including, but not limited to, real property, deeds of
trust, and mortgages held by the agency, moneys, accounts
receivable, contract rights, proceeds of insurance claims, grant
proceeds, settlement payments, rights to receive rents, and any other
rights to payment of whatever kind.
(2) Real property, including, but not limited to, land, land under
water and waterfront property, buildings, structures, fixtures, and
improvements on the land, any property appurtenant to, or used in
connection with, the land, every estate, interest, privilege,
easement, franchise, and right in land, including rights-of-way,
terms for years, and liens, charges, or encumbrances by way of
judgment, mortgage, or otherwise, and the indebtedness secured by the
liens.
(e) Acquire real property by any means for any purpose, including,
but not limited to, the purchase, lease, or exercising of an option
to purchase or lease, exchange, subdivide, transfer, assume, obtain
option upon, acquire by gift, grant, bequest, devise, or otherwise
acquire any real property, any interest in real property, and any
improvements on it, including the repurchase of developed property
previously owned by the agency and the acquisition of real property
by eminent domain, provided, however, that nothing in this
subdivision is intended to prohibit the acceptance or transfer of
title for real property acquired prior to the effective date of this
part.
(f) Transfer, assign, vest, or delegate any of its assets, funds,
rights, powers, ownership interests, or obligations for any purpose
to any entity, including, but not limited to, the community, the
legislative body, another member of a joint powers authority, a
trustee, a receiver, a partner entity, another agency, a nonprofit
corporation, a contractual counterparty, a public body, a
limited-equity housing cooperative, the state, a political
subdivision of the state, the federal government, any private entity,
or an individual or group of individuals.
(g) Accept financial or other assistance from the state or federal
government or any public or private source if the acceptance
necessitates or is conditioned upon the agency incurring indebtedness
as that term is described in this part.
SEC. 89. Section 34167.5 of the Health and Safety Code is amended
to read:
34167.5. Commencing on the effective date of the act adding this
part, the Controller shall review the activities of redevelopment
agencies in the state to determine whether an asset transfer has
occurred after January 1, 2011, between the city or county, or city
and county that created a redevelopment agency or any other public
agency, and the redevelopment agency. If such an asset transfer did
occur during that period and the government agency that received the
assets is not contractually committed to a third party for the
expenditure or encumbrance of those assets, to the extent not
prohibited by state and federal law, the Controller shall order the
available assets to be returned to the redevelopment agency or, on or
after October 1, 2011, to the successor agency, if a successor
agency is established pursuant to Part 1.85 (commencing with Section
34170). Upon receiving that order from the Controller, an affected
local agency shall, as soon as practicable, reverse the transfer and
return the applicable assets to the redevelopment agency or, on or
after October 1, 2011, to the successor agency, if a successor agency
is established pursuant to Part 1.85 (commencing with Section
34170). The Legislature hereby finds that a transfer of assets by a
redevelopment agency during the period covered in this section is
deemed not to be in the furtherance of the Community Redevelopment
Law and is thereby unauthorized.
SEC. 90. Section 34173 of the Health and Safety Code is amended to
read:
34173. (a) Successor agencies, as defined in this part, are
hereby designated as successor entities to the former redevelopment
agencies.
(b) Except for those provisions of the Community Redevelopment Law
that are repealed, restricted, or revised pursuant to the act adding
this part, all authority, rights, powers, duties, and obligations
previously vested with the former redevelopment agencies, under the
Community Redevelopment Law, are hereby vested in the successor
agencies.
(c) (1) Where the redevelopment agency was in the form of a joint
powers authority, and where the joint powers agreement governing the
formation of the joint powers authority addresses the allocation of
assets and liabilities upon dissolution of the joint powers
authority, then each of the entities that created the former
redevelopment agency may be a successor agency within the meaning of
this part and each shall have a share of assets and liabilities based
on the provisions of the joint powers agreement.
(2) Where the redevelopment agency was in the form of a joint
powers authority, and where the joint powers agreement governing the
formation of the joint powers authority does not address the
allocation of assets and liabilities upon dissolution of the joint
powers authority, each of the entities that created the former
redevelopment agency may be a successor agency within the meaning of
this part, a proportionate share of the assets and liabilities shall
be based on the assessed value in the project areas within each
entity's jurisdiction, as determined by the county assessor, in its
jurisdiction as compared to the assessed value of land within the
boundaries of the project areas of the former redevelopment agency.
(d) (1) A city, county, city and county, or the entities forming
the joint powers authority that authorized the creation of each
redevelopment agency may elect not to serve as a successor agency
under this part. A city, county, city and county, or any member of a
joint powers authority that elects not to serve as a successor agency
under this part must file a copy of a duly authorized resolution of
its governing board to that effect with the county auditor-controller
no later than one month prior to the operative date of this part.
(2) The determination of the first local agency that elects to
become the successor agency shall be made by the county
auditor-controller based on the earliest receipt by the county
auditor-controller of a copy of a duly adopted resolution of the
local agency's governing board authorizing such an election. As used
in this section, "local agency" means any city, county, city and
county, or special district in the county of the former redevelopment
agency.
(3) If no local agency elects to serve as a successor agency for a
dissolved redevelopment agency, a public body, referred to herein as
a "designated local authority" shall be immediately formed, pursuant
to this part, in the county and shall be vested with all the powers
and duties of a successor agency as described in this part. The
Governor shall appoint three residents of the county to serve as the
governing board of the authority. The designated local authority
shall serve as successor agency until a local agency elects to become
the successor agency in accordance with this section.
(e) The liability of any successor agency, acting pursuant to the
powers granted under the act adding this part, shall be limited to
the extent of the total sum of property tax revenues it receives
pursuant to this part and the value of assets transferred to it as a
successor agency for a dissolved redevelopment agency.
SEC. 91. Section 34176 of the Health and Safety Code is amended to
read:
34176. (a) The city, county, or city and county that authorized
the creation of a redevelopment agency may elect to retain the
housing assets and functions previously performed by the
redevelopment agency. If a city, county, or city and county elects to
retain the responsibility for performing housing functions
previously performed by a redevelopment agency, all rights, powers,
duties, and obligations, excluding any amounts on deposit in the Low
and Moderate Income Housing Fund, shall be transferred to the city,
county, or city and county.
(b) If a city, county, or city and county does not elect to retain
the responsibility for performing housing functions previously
performed by a redevelopment agency, all rights, powers, assets,
liabilities, duties, and obligations associated with the housing
activities of the agency, excluding any amounts in the Low and
Moderate Income Housing Fund, shall be transferred as follows:
(1) Where there is no local housing authority in the territorial
jurisdiction of the former redevelopment agency, to the Department of
Housing and Community Development.
(2) Where there is one local housing authority in the territorial
jurisdiction of the former redevelopment agency, to that local
housing authority.
(3) Where there is more than one local housing authority in the
territorial jurisdiction of the former redevelopment agency, to the
local housing authority selected by the city, county, or city and
county that authorized the creation of the redevelopment agency.
(c) Commencing on the operative date of this part, the entity
assuming the housing functions formerly performed by the
redevelopment agency may enforce affordability covenants and perform
related activities pursuant to applicable provisions of the Community
Redevelopment Law (Part 1 (commencing with Section 33000)),
including, but not limited to, Section 33418.
SEC. 92. Section 34188.8 of the Health and Safety Code is amended
to read:
34188.8. For purposes of a redevelopment agency that becomes
subject to this part pursuant to Section 34195, a date certain
identified in this chapter shall not be subject to Section 34191,
except for dates certain in Section 34182 and references to "October
1, 2011," or to the "operative date of this part." However, for
purposes of those redevelopment agencies, a date certain identified
in this chapter shall be appropriately modified, as necessary to
reflect the appropriate fiscal year or portion of a fiscal year.
SEC. 93. Section 34189 of the Health and Safety Code is amended to
read:
34189. (a) Commencing on the operative date of this part, all
provisions of the Community Redevelopment Law that depend on the
allocation of tax increment to redevelopment agencies, including, but
not limited to, Sections 33445, 33640, 33641, 33645, and subdivision
(b) of Section 33670, shall be inoperative, except as those sections
apply to a redevelopment agency operating pursuant to Part 1.9
(commencing with Section 34192).
(b) The California Law Revision Commission shall draft a Community
Redevelopment Law cleanup bill for consideration by the Legislature
no later than January 1, 2013.
(c) To the extent that a provision of Part 1 (commencing with
Section 33000), Part 1.5 (commencing with Section 34000), Part 1.6
(commencing with Section 34050), and Part 1.7 (commencing with
Section 34100) conflicts with this part, the provisions of this part
shall control. Further, if a provision of Part 1 (commencing with
Section 33000), Part 1.5 (commencing with Section 34000), Part 1.6
(commencing with Section 34050), or Part 1.7 (commencing with Section
34100) provides an authority that the act adding this part is
restricting or eliminating, the restriction and elimination
provisions of the act adding this part shall control.
(d) It is intended that the provisions of this part shall be read
in a manner as to avoid duplication of payments.
SEC. 94. Section 34194.4 of the Health and Safety Code is amended
to read:
34194.4. (a) The county auditor-controller in each county in
which a redevelopment agency exists shall establish in the county
treasury a Special District Allocation Fund. The county
auditor-controller shall deposit the following amounts into the fund
out of each annual remittance by a city or county that includes a
special district under this section paid pursuant to Section 34194 as
follows:
(1) For the 2011-12 fiscal year, the amount shall be the city's or
county's remittance amount multiplied by the ratio of four million
three hundred thousand dollars ($4,300,000) to one billion seven
hundred million dollars ($1,700,000,000).
(2) For the 2012-13 fiscal year and each fiscal year thereafter,
the amount shall be the city's or county's remittance amount
multiplied by the ratio of sixty million dollars ($60,000,000) to
four hundred million dollars ($400,000,000).
(3) Amounts derived from the remittance payments of each city or
county shall be maintained in separate accounts in the fund.
(b) On or before May 15 each year, the county auditor-controller
shall make payments out of each account in the Special District
Allocation Fund to each special district the boundaries of which
include all or any portion of a redevelopment project area of the
city's or county's redevelopment agency for special district services
that the district determines further redevelopment purposes. Each
special district shall receive a proportionate share of the total
annual deposit in
the account, determined as follows:
(1) For each special district, the auditor-controller shall
determine the annual amount of tax increment revenue of the city's or
county's redevelopment agency that is attributable to the special
district. This amount shall be the amount of additional property tax
revenue that the special district would have received in that year
had property tax collected on incremental assessed value within the
redevelopment project areas been allocated to the district under the
property tax allocation laws then in effect. From this amount, the
auditor-controller shall subtract any passthrough payments received
in that year by the special district from the redevelopment agency.
(2) The county auditor-controller shall sum all of the annual
amounts for individual special districts determined in paragraph (1).
(3) For each special district, the county auditor-controller shall
calculate the ratio of the amount determined for that special
district under paragraph (1) to the total amount determined in
paragraph (2). This ratio shall be each special district's proportion
of the total payment from the account.
(c) For the purposes of this section, "special district" means a
district that provides fire protection services and transit
districts. A special district that has both excluded and nonexcluded
functions and that serves nonexcluded functions within a
redevelopment project area shall receive a prorated share
proportionate to the special district's overall share of countywide
property tax that is received for its nonexcluded functions.
(d) The auditor-controller shall report the payments made to
special districts pursuant to this section to the Controller by June
30 each year in a form and manner as specified by the Controller.
(e) The county auditor-controller may require special districts to
provide, as a condition of receiving payments from the Special
District Allocation Fund, any relevant information necessary to the
determination of the payments made pursuant to this section.
SEC. 95. Section 34195 of the Health and Safety Code is amended to
read:
34195. In the event that a city or county fails to make the
remittance required pursuant to the agreement specified in Section
34194 or 34194.5 and the Director of Finance makes the determination
described in subdivision (d) of Section 34194, the following shall
apply:
(a) The city or county shall no longer be authorized to engage in
voluntary redevelopment pursuant to this part and the redevelopment
agency shall become immediately subject to the provisions of Part 1.8
(commencing with Section 34161) and Part 1.85 (commencing with
Section 34170).
(b) The state shall be entitled to an assignment of any rights of
a city or county, as applicable, to any payments from the
redevelopment agency to which the city or county is entitled, as
described in subdivision (b) of Section 34193.2, for purposes of
mitigating the fiscal impact to the state related to the failure of
the city or county to make the required remittance payment.
SEC. 96. Section 100425 of the Health and Safety Code, as amended
by Section 2 of Chapter 402 of the Statutes of 2011, is amended to
read:
100425. (a) The fees or charges for the issuance or renewal of
any permit, license, registration, or document pursuant to Sections
1639.5, 1676, 1677, 2805, 11839.25, 106700, 106890, 106925, 107080,
107090, 107095, 107160, 110210, 110470, 111130, 111140, 111630,
112405, 112510, 112750, 112755, 113060, 113065, 115035, 115065,
115080, 116200, 117923, 117995, 118045, 118210, and 118245 shall be
adjusted annually by the percentage change printed in the Budget Act
for those items appropriating funds to the state department. After
the first annual adjustment of fees or charges pursuant to this
section, the fees or charges subject to subsequent adjustment shall
be the fees or charges for the prior calendar year. The percentage
change shall be determined by the Department of Finance, and shall
include at least the total percentage change in salaries and
operating expenses of the state department. However, the total
increase in amounts collected under this section shall not exceed the
total increased cost of the program or service provided.
(b) The state department shall publish annually a list of the
actual numerical fee charges for each permit, license, certification,
or registration governed by this section.
(c) This adjustment of fees and publication of the fee list shall
not be subject to the requirements of Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.
(d) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 97. Section 100425 of the Health and Safety Code, as added by
Section 3 of Chapter 402 of the Statutes of 2011, is amended to
read:
100425. (a) The fees or charges for the issuance or renewal of
any permit, license, registration, or document pursuant to Sections
1639.5, 1676, 1677, 2805, 11839.25, 103625, 106700, 106890, 106925,
107080, 107090, 107095, 107160, 110210, 110470, 111130, 111140,
111630, 112405, 112510, 112750, 112755, 113060, 113065, 114065,
115035, 115065, 115080, 117923, 117995, 118045, 118210, and 118245
shall be adjusted annually by the percentage change printed in the
Budget Act for those items appropriating funds to the state
department. After the first annual adjustment of fees or charges
pursuant to this section, the fees or charges subject to subsequent
adjustment shall be the fees or charges for the prior calendar year.
The percentage change shall be determined by the Department of
Finance, and shall include at least the total percentage change in
salaries and operating expenses of the state department. However, the
total increase in amounts collected under this section shall not
exceed the total increased cost of the program or service provided.
(b) The state department shall publish annually a list of the
actual numerical fee charges for each permit, license, certification,
or registration governed by this section.
(c) This adjustment of fees and publication of the fee list shall
not be subject to the requirements of Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.
(d) With respect to the fees or charges pursuant to Section
103625, the actual dollar fee or charge shall be rounded to the
nearest whole dollar.
(e) This section shall become operative on January 1, 2014.
SEC. 98. Section 113789 of the Health and Safety Code is amended
to read:
113789. (a) "Food facility" means an operation that stores,
prepares, packages, serves, vends, or otherwise provides food for
human consumption at the retail level, including, but not limited to,
the following:
(1) An operation where food is consumed on or off the premises,
regardless of whether there is a charge for the food.
(2) Any place used in conjunction with the operations described in
this subdivision, including, but not limited to, storage facilities
for food-related utensils, equipment, and materials.
(b) "Food facility" includes permanent and nonpermanent food
facilities, including, but not limited to, the following:
(1) Public and private school cafeterias.
(2) Restricted food service facilities.
(3) Licensed health care facilities.
(4) Commissaries.
(5) Mobile food facilities.
(6) Mobile support units.
(7) Temporary food facilities.
(8) Vending machines.
(9) Certified farmers' markets, for purposes of permitting and
enforcement pursuant to Section 114370.
(10) Farm stands, for purposes of permitting and enforcement
pursuant to Section 114375.
(c) "Food facility" does not include any of the following:
(1) A cooperative arrangement wherein no permanent facilities are
used for storing or handling food.
(2) A private home.
(3) A church, private club, or other nonprofit association that
gives or sells food to its members and guests, and not to the general
public, at an event that occurs not more than three days in any
90-day period.
(4) A for-profit entity that gives or sells food at an event that
occurs not more than three days in a 90-day period for the benefit of
a nonprofit association, if the for-profit entity receives no
monetary benefit, other than that resulting from recognition from
participating in an event.
(5) Premises set aside for wine tasting, as that term is used in
Section 23356.1 of the Business and Professions Code and in the
regulations adopted pursuant to that section, in compliance with
Section 118375, regardless of whether there is a charge for the wine
tasting, if no other beverage, except for bottles of wine and
prepackaged nonpotentially hazardous beverages, is offered for sale
for onsite consumption and no food, except for crackers, is served.
(6) Premises operated by a producer, selling or offering for sale
only whole produce grown by the producer, or shell eggs, or both,
provided the sales are conducted on premises controlled by the
producer.
(7) A commercial food processing plant as defined in Section
111955.
(8) A child day care facility, as defined in Section 1596.750.
(9) A community care facility, as defined in Section 1502.
(10) A residential care facility for the elderly, as defined in
subdivision (k) of Section 1569.2.
(11) A residential care facility for the chronically ill, which
has the same meaning as a residential care facility, as defined in
subdivision (j) of Section 1568.01.
(12) Premises set aside by a beer manufacturer, as defined in
Section 25000.2 of the Business and Professions Code, in compliance
with Section 118375, for the purposes of beer tasting, regardless of
whether there is a charge for the beer tasting, if no other beverage,
except for beer and prepackaged nonpotentially hazardous beverages,
is offered for sale for onsite consumption, and no food, except for
crackers or pretzels, is served.
SEC. 99. 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
106590, 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 prior to 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. 100. Section 121690 of the Health and Safety Code is amended
to read:
121690. In rabies areas, all of the following shall apply:
(a) Every dog owner, after his or her dog attains the age of four
months, shall no less than once every two years secure a license for
the dog as provided by ordinance of the responsible city, city and
county, or county. License fees shall be fixed by the responsible
city, city and county, or county, at an amount not to exceed
limitations otherwise prescribed by state law or city, city and
county, or county charter.
(b) (1) Every dog owner, after his or her dog attains the age of
four months, shall, at intervals of time not more often than once a
year, as may be prescribed by the department, procure its vaccination
by a licensed veterinarian with a canine antirabies vaccine approved
by, and in a manner prescribed by, the department, unless a licensed
veterinarian determines, on an annual basis, that a rabies
vaccination would endanger the dog's life due to disease or other
considerations that the veterinarian can verify and document. The
responsible city, county, or city and county may specify the means by
which the dog owner is required to provide proof of his or her dog's
rabies vaccination, including, but not limited to, by electronic
transmission or facsimile.
(2) A request for an exemption from the requirements of this
subdivision shall be submitted on an approved form developed by the
department and shall include a signed statement by the veterinarian
explaining the inadvisability of the vaccination and a signed
statement by the dog owner affirming that the owner understands the
consequences and accepts all liability associated with owning a dog
that has not received the canine antirabies vaccine. The request
shall be submitted to the local health officer, who may issue an
exemption from the canine antirabies vaccine.
(3) The local health officer shall report exemptions issued
pursuant to this subdivision to the department.
(4) A dog that is exempt from the vaccination requirements of this
section shall be considered unvaccinated.
(5) A dog that is exempt from the vaccination requirements of this
section shall, at the discretion of the local health officer or the
officer's designee, be confined to the premises of the owner, keeper,
or harborer and, when off the premises, shall be on a leash the
length of which shall not exceed six feet and shall be under the
direct physical control of an adult. A dog that is exempt from the
provisions of this section shall not have contact with a dog or cat
that is not currently vaccinated against rabies.
(c) All dogs under four months of age shall be confined to the
premises of, or kept under physical restraint by, the owner, keeper,
or harborer. Nothing in this chapter and Section 120435 shall be
construed to prevent the sale or transportation of a puppy four
months old or younger.
(d) Any dog in violation of this chapter and any additional
provisions that may be prescribed by any local governing body shall
be impounded, as provided by local ordinance.
(e) The governing body of each city, city and county, or county
shall maintain or provide for the maintenance of a pound system and a
rabies control program for the purpose of carrying out and enforcing
this section.
(f) Each city, county, or city and county shall provide dog
vaccination clinics, or arrange for dog vaccination at clinics
operated by veterinary groups or associations, held at strategic
locations throughout each city, city and county, or county. The
vaccination and licensing procedures may be combined as a single
operation in the clinics. No charge in excess of the actual cost
shall be made for any one vaccination at a clinic. No owner of a dog
shall be required to have his or her dog vaccinated at a public
clinic if the owner elects to have the dog vaccinated by a licensed
veterinarian of the owner's choice.
All public clinics shall be required to operate under antiseptic
immunization conditions comparable to those used in the vaccination
of human beings.
(g) In addition to the authority provided in subdivision (a), the
ordinance of the responsible city, city and county, or county may
provide for the issuance of a license for a period not to exceed
three years for dogs that have attained the age of 12 months or older
and have been vaccinated against rabies or one year for dogs
exempted from the vaccination requirement pursuant to subdivision
(b). The person to whom the license is issued pursuant to this
subdivision may choose a license period as established by the
governing body of up to one, two, or three years. However, when
issuing a license pursuant to this subdivision, the license period
shall not extend beyond the remaining period of validity for the
current rabies vaccination and, if a dog is exempted from the
vaccination requirement pursuant to subdivision (b), the license
period shall not extend beyond one year. A dog owner who complies
with this subdivision shall be deemed to have complied with the
requirements of subdivision (a).
(h) All information obtained from a dog owner by compliance with
this chapter is confidential to the dog owner and proprietary to the
veterinarian. This information shall not be used, distributed, or
released for any purpose, except to ensure compliance with existing
federal, state, county, or city laws or regulations.
SEC. 101. Section 127405 of the Health and Safety Code is amended
to read:
127405. (a) (1) (A) Each hospital shall maintain an
understandable written policy regarding discount payments for
financially qualified patients as well as an understandable written
charity care policy. Uninsured patients or patients with high medical
costs who are at or below 350 percent of the federal poverty level,
as defined in subdivision (b) of Section 127400, shall be eligible to
apply for participation under a hospital's charity care policy or
discount payment policy. Notwithstanding any other provision of this
article, a hospital may choose to grant eligibility for its discount
payment policy or charity care policies to patients with incomes over
350 percent of the federal poverty level. Both the charity care
policy and the discount payment policy shall state the process used
by the hospital to determine whether a patient is eligible for
charity care or discounted payment. In the event of a dispute, a
patient may seek review from the business manager, chief financial
officer, or other appropriate manager as designated in the charity
care policy and the discount payment policy.
(B) The written policy regarding discount payments shall also
include a statement that an emergency physician, as defined in
Section 127450, who provides emergency medical services in a hospital
that provides emergency care is also required by law to provide
discounts to uninsured patients or patients with high medical costs
who are at or below 350 percent of the federal poverty level. This
statement shall not be construed to impose any additional
responsibilities upon the hospital.
(2) Rural hospitals, as defined in Section 124840, may establish
eligibility levels for financial assistance and charity care at less
than 350 percent of the federal poverty level as appropriate to
maintain their financial and operational integrity.
(b) A hospital's discount payment policy shall clearly state
eligibility criteria based upon income consistent with the
application of the federal poverty level. The discount payment policy
shall also include an extended payment plan to allow payment of the
discounted price over time. The policy shall provide that the
hospital and the patient may negotiate the terms of the payment plan.
(c) The charity care policy shall state clearly the eligibility
criteria for charity care. In determining eligibility under its
charity care policy, a hospital may consider income and monetary
assets of the patient. For purposes of this determination, monetary
assets shall not include retirement or deferred compensation plans
qualified under the Internal Revenue Code, or nonqualified deferred
compensation plans. Furthermore, the first ten thousand dollars
($10,000) of a patient's monetary assets shall not be counted in
determining eligibility, nor shall 50 percent of a patient's monetary
assets over the first ten thousand dollars ($10,000) be counted in
determining eligibility.
(d) A hospital shall limit expected payment for services it
provides to a patient at or below 350 percent of the federal poverty
level, as defined in subdivision (b) of Section 127400, eligible
under its discount payment policy to the amount of payment the
hospital would expect, in good faith, to receive for providing
services from Medicare, Medi-Cal, the Healthy Families Program, or
another government-sponsored health program of health benefits in
which the hospital participates, whichever is greater. If the
hospital provides a service for which there is no established payment
by Medicare or any other government-sponsored program of health
benefits in which the hospital participates, the hospital shall
establish an appropriate discounted payment.
(e) A patient, or patient's legal representative, who requests a
discounted payment, charity care, or other assistance in meeting his
or her financial obligation to the hospital shall make every
reasonable effort to provide the hospital with documentation of
income and health benefits coverage. If the person requests charity
care or a discounted payment and fails to provide information that is
reasonable and necessary for the hospital to make a determination,
the hospital may consider that failure in making its determination.
(1) For purposes of determining eligibility for discounted
payment, documentation of income shall be limited to recent pay stubs
or income tax returns.
(2) For purposes of determining eligibility for charity care,
documentation of assets may include information on all monetary
assets, but shall not include statements on retirement or deferred
compensation plans qualified under the Internal Revenue Code, or
nonqualified deferred compensation plans. A hospital may require
waivers or releases from the patient or the patient's family,
authorizing the hospital to obtain account information from financial
or commercial institutions, or other entities that hold or maintain
the monetary assets, to verify their value.
(3) Information obtained pursuant to paragraph (1) or (2) shall
not be used for collections activities. This paragraph does not
prohibit the use of information obtained by the hospital, collection
agency, or assignee independently of the eligibility process for
charity care or discounted payment.
(4) Eligibility for discounted payments or charity care may be
determined at any time the hospital is in receipt of information
specified in paragraph (1) or (2), respectively.
SEC. 102. 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, 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, and Medicare; 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 (P.L. 111-148).
(e) Commencing on 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 on 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 on January 1, 2013, the office shall develop
protocols, procedures, and training modules for organizations with
which it contracts.
(4) Commencing on January 1, 2013, the office shall adopt
standards for organizations with which it contracts regarding
confidentiality and conduct.
(5) Commencing on 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 on 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 shall
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. 103. Section 1760.1 of the Insurance Code is amended to read:
1760.1. For the purposes of this chapter, the following terms
have the following definitions:
(a) "Certified" means an originally signed or sealed statement,
dated not more than 60 days before submission, made by a public
official or other person, attached to a copy of a document, that
attests that the copy is a true copy of the original, and that the
original is in the custody of the person making the statement.
(b) "Commercial insured" means any person purchasing commercial
insurance that, at the time of placement, meets all of the following
requirements:
(1) The person employs or retains a qualified risk manager to
negotiate insurance coverage.
(2) The person has paid aggregate nationwide commercial property
and casualty insurance premiums in excess of one hundred thousand
dollars ($100,000) in the immediately preceding 12 months.
(3) (A) The person meets at least one of the following criteria:
(i) The person possesses a net worth in excess of twenty million
dollars ($20,000,000), as that amount is adjusted pursuant to
subparagraph (B).
(ii) The person generates annual revenues in excess of fifty
million dollars ($50,000,000), as that amount is adjusted pursuant to
subparagraph (B).
(iii) The person employs more than 500 full-time or full-time
equivalent employees per individual insured or is a member of an
affiliated group employing more than 1,000 employees in the
aggregate.
(iv) The person is a not-for-profit organization or public entity
generating annual budgeted expenditures of at least thirty million
dollars ($30,000,000), as that amount is adjusted pursuant to
subparagraph (B).
(v) The person is a municipality with a population in excess of
50,000 persons.
(B) Effective on January 1, 2015, and each fifth January 1
occurring thereafter, the dollar amounts in subparagraph (A) shall be
adjusted to reflect the percentage change for that five-year period
in the Consumer Price Index for All Urban Consumers published by the
Bureau of Labor Statistics of the United States Department of Labor.
The commissioner shall issue a bulletin to all surplus line brokers
advising of any adjustments and may adopt the calculations of the
NAIC or other entity in doing so.
(c) "Domiciliary jurisdiction" means the state, nation, or
subdivision thereof under the laws of which an insurer is
incorporated or otherwise organized.
(d) "Domiciliary state of the syndicate's trust" means the state
in which the syndicate's trust fund is principally maintained and
administered for the benefit of the syndicate's policyholders in the
United States.
(e) "Home state" means, except as provided in paragraphs (2) to
(4), inclusive, any of the following, with respect to an insured or
applicant:
(1) (A) The state in which the insured maintains its principal
place of business or, in the case of an individual, the individual's
principal residence.
(B) If 100 percent of the insured risk is located outside the
state referred to in subparagraph (A), the state to which the
greatest percentage of the insured's taxable premium for that
insurance contract is allocated.
(2) "Principal place of business" means, with respect to
subparagraph (A) of paragraph (1) determining the home state of the
insured, (A) the state where the insured maintains its headquarters
and where the insured's high-level officers direct, control, and
coordinate the business activities; or (B) if the insured's
high-level officers direct, control, and coordinate the business
activities in more than one state, the state in which the greatest
percentage of the insured's taxable premium for that insurance
contract is allocated; or (C) if the insured maintains its
headquarters or the insured's high-level officers direct, control,
and coordinate the business activities outside any state, the state
to which the greatest percentage of the insured's taxable premium for
that insurance contract is allocated.
(3) "Principal residence" means, with respect to determining the
home state of the insured, (A) the state where the insured resides
for the greatest number of days during a calendar year; or (B) if the
insured's principal residence is located outside any state, the
state to which the greatest percentage of the insured's taxable
premium for that insurance contract is allocated.
(4) Affiliated groups. If more than one insured from an affiliated
group are named insureds on a single nonadmitted insurance contract,
the term "home state" means the home state, as determined pursuant
to subparagraph (A) of paragraph (1), of the member of the affiliated
group that has the largest percentage of premium attributed to it
under such insurance contract.
(f) "Home state insured" or "home state insured applicant" means a
person whose home state is California and who has received a
certificate or evidence of coverage as set forth in Section 1764 or a
policy as issued by an eligible surplus line insurer, or a person
who is an applicant therefor.
(g) "IID" means the International Insurers Department of the
National Association of Insurance Commissioners.
(h) "Insurer" means, unless the context indicates otherwise,
"nonadmitted" insurers that are either "foreign" or "alien" insurers,
as those terms are defined in Sections 25, 27, and 1580, and
syndicates whose members consist of individual incorporated insurers
who are not engaged in any business other than underwriting as a
member of the group and individual unincorporated insurers, provided
all the members are subject to the same level of solvency regulation
and control by the group's domiciliary regulator. The term "insurer"
includes all nonadmitted insurers selling insurance to or through
purchasing groups as defined in the federal Liability Risk Retention
Act of 1986 (15 U.S.C. Sec. 3901 et seq.) and the California Risk
Retention Act of 1991 (Chapter 1.5 (commencing with Section 125) of
Part 1), except insurers that are risk retention groups as defined by
those acts.
(i) "ISI" means Insurance Solvency International.
(j) "Licensee" means a surplus line broker as defined in Section
47.
(k) "Multistate risk" means a risk covered by a nonadmitted
insurer with insured exposures in more than one state.
(l) "NAIC" means the National Association of Insurance
Commissioners or its successor organization.
(m) "Nonadmitted insurance" means any property and casualty
insurance permitted to be placed directly or through a surplus line
broker with a nonadmitted insurer eligible to accept such insurance.
(n) "Nonadmitted insurer" means an insurer not licensed or
admitted to engage in the business of insurance in this state in
conformity with Section 700; but does not include a risk retention
group, as that term is defined in Sections 130(k) and 2(a)(4) of the
federal Liability Risk Retention Act of 1986 (15 U.S.C. Sec. 3901(a)
(4)).
(o) "Qualified risk manager" means, with respect to a policyholder
of commercial insurance, a person who meets all of the following
requirements:
(1) The person is an employee of, or third-party consultant
retained by, the commercial policyholder.
(2) The person provides skilled services in loss prevention, loss
reduction, or risk and insurance coverage analysis, and purchase of
insurance.
(3) The person has any of the following:
(A) A bachelor's degree or higher degree from an accredited
college or university in risk management, business administration,
finance, economics, or any other field determined by the commissioner
to demonstrate minimum competence in risk management and satisfies
either of the following:
(i) Has three years of experience in risk financing, claims
administration, loss prevention, risk and insurance analysis, or
purchasing commercial lines of insurance.
(ii) Has one of the following:
(I) A designation as a Chartered Property and Casualty Underwriter
(CPCU) issued by the American Institute for CPCU and Insurance
Institute of America.
(II) A designation as an Associate in Risk Management (ARM) issued
by the American Institute for CPCU and Insurance Institute of
America.
(III) A designation as Certified Risk Manager (CRM) issued by the
National Alliance for Insurance Education and Research.
(IV) A designation as a RIMS Fellow (RF) issued by the Global Risk
Management Institute.
(V) Any other designation, certification, or license determined by
the commissioner to demonstrate minimum competency in risk
management.
(B) At least seven years of experience in risk financing, claims
administration, loss prevention, risk and insurance coverage
analysis, or purchasing commercial lines of insurance, and has any
one of the designations specified in subclauses (I) to (V),
inclusive, of clause (ii) of subparagraph (A).
(C) At least 10 years of experience in risk financing, claims
administration, loss prevention, risk and insurance coverage
analysis, or purchasing commercial lines of insurance.
(D) A graduate degree from an accredited college or university in
risk management, business administration, finance, economics, or any
other field determined by the commissioner to demonstrate minimum
competence in risk management.
(p) "State" means any state of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana
Islands, the Virgin Islands, and American Samoa.
(q) "Verified" means a document or copy accompanied by an
originally signed statement, dated not more than 60 days before
submission, from a responsible executive or official who has
authority to provide the statement and knowledge whereof he or she
speaks, attesting either under oath before a notary public, or under
the penalty of perjury under California law, that the assertions made
in the document are true.
SEC. 104. Section 1763 of the Insurance Code is amended to read:
1763. (a) A surplus line broker may solicit and place insurance
for a home state insured, other than as excepted in Section 1761,
with nonadmitted insurers only if that insurance cannot be procured
from insurers admitted for the particular class or classes of
insurance and that actually write the particular type of insurance in
this state. Each surplus line broker shall be responsible to ensure
that a diligent search is made among insurers that are admitted to
transact and are actually writing the particular type of insurance in
this state before procuring the insurance for a home state insured
from a nonadmitted insurer. Each surplus line broker shall file with
the commissioner or his or her designee, within 60 days of placing
any insurance for a home state insured with a nonadmitted insurer, a
written report that shall be kept confidential, regarding the
insurance. This report shall include the name and address of the
insured, verification that the insured is a home state insured, the
identity of the insurer or insurers, a description of the subject and
location of the risk, the amount of premium charged for the
insurance, a copy of the declarations page of the policy or a copy of
the surplus line broker's certificate or binder evidencing the
placement of insurance, and other pertinent information that the
commissioner may reasonably require. In addition, each surplus line
broker shall file a standardized form to be prescribed by the
commissioner setting forth the diligent efforts to place the coverage
with admitted insurers and the results of these efforts. The form
shall be signed by a person licensed under this code who has made the
diligent search required by this section or who supervised an
unlicensed person or persons who actually conducted the search. The
insurance shall not be placed with a nonadmitted insurer for the
purpose of procuring a rate lower than the lowest rate that will be
accepted by any admitted insurer except as provided by subdivision
(c). The commissioner may make and publish reasonable rules and
regulations, consistent with this chapter, in respect to transactions
governed thereby and the basis or bases for his or her
determinations hereunder.
(b) It shall be prima facie evidence that a diligent search among
admitted insurers has been made if the standardized form filed as
required by subdivision (a) establishes that three admitted insurers
that actually write the particular type of insurance in this state
have declined the risk, or that fewer than three admitted insurers
actually write the particular type of insurance. The commissioner, or
his or her designee, may review the form for the accuracy of the
information provided on it, including, but not limited to, whether
the listed insurers actually write that type of insurance, and
whether the three insurers declined the risk. The commissioner may
take disciplinary action against the person signing the form for any
misrepresentation made in the form due to the negligence of or the
result of an intentional act by that person or the person or persons
who actually conducted the search. Those actions may include any
action authorized to be taken against a licensed person by this code.
Nothing in this subdivision shall preclude the commissioner or his
or her designee from directing the surplus line broker to conduct a
further or additional search among admitted insurers for similar
placements in the future.
(c) It shall be conclusively presumed that insurance is placed in
violation of this section if the insurance is actually placed
with a nonadmitted insurer at a
lower rate of premium or lower premium than the lowest rate of
premium or the lowest premium that could be obtained from an admitted
insurer unless, at the time the insurance attaches, there is filed
with the commissioner a statement describing the insurance,
specifying the rate and the nearest procurable rates from admitted
insurers. The statement shall include an explanation of the reasons
that the insurance must be placed with a nonadmitted insurer even
though it is available from an admitted insurer. Unless the
commissioner, or his or her designee, within five days after that
filing notifies the filing broker that in his or her opinion the
placing of the insurance constitutes a violation of this section, the
broker may thereafter maintain in effect that insurance. If within
that five-day period the commissioner notifies the surplus line
broker that the insurance is in violation of this section and orders
the broker to effect termination of that insurance within 10 days
from the notice, and the broker fails or refuses to effect that
termination, that failure or refusal is a violation of this section.
(d) Statements filed under this section are not subject to public
inspection unless the commissioner determines that the public
interest or the welfare of the filing broker requires that any
statement be made public.
(e) For purposes of this section, "type of insurance" means the
hazard or combination of hazards covered by a contract of insurance.
(f) Notwithstanding subdivision (a), this section shall not apply
to insurance issued or delivered in this state to a home state
insured by a nonadmitted Mexican insurer by and through a surplus
line broker affording coverage exclusively in the Republic of Mexico
on property located temporarily or permanently in, or operations
conducted temporarily or permanently within, the Republic of Mexico.
(g) This section does not apply to the extension of coverage by a
nonadmitted insurer, of or for the same risks, and to the same
insured under an existing surplus lines policy. Such an extension may
not exceed 90 days in the aggregate during any 12-month period. The
extension may not include a change in coverage, terms, and
conditions, or limits. Any additional premium charged for the
extension shall be determined pro rata, based on the same rate of
premium as the existing surplus lines policy.
(h) (1) The diligent search requirement set forth in subdivision
(a) shall not apply to a commercial insured as defined in subdivision
(b) of Section 1760.1 when both of the following occur:
(A) The surplus line broker procuring or placing the surplus line
insurance has disclosed in writing to the commercial insured that
surplus insurance may or may not be available from the admitted
market that may provide greater protection with more regulatory
oversight.
(B) The commercial insured has subsequently requested in writing
that the surplus line broker procure or place surplus insurance from
a nonadmitted insurer.
(2) The surplus line broker shall be responsible to ensure that
the applicant is a commercial insured. A surplus line broker who
reasonably relies on information provided in good faith by the
applicant, whether directly or through a producer, shall be deemed to
be in compliance with this requirement.
SEC. 105. Section 1764.1 of the Insurance Code is amended to read:
1764.1. (a) (1) Every nonadmitted insurer, in the case of
insurance to be purchased by a home state insured pursuant to Section
1760, and surplus line broker, in the case of any insurance with a
nonadmitted carrier for a home state insured to be transacted by the
surplus line broker, shall be responsible to ensure that, at the time
of accepting an application for an insurance policy, other than a
renewal of that policy, issued by a nonadmitted insurer, the
signature of the applicant on the disclosure statement set forth in
subdivision (b) is obtained. In fulfillment of this responsibility,
the nonadmitted insurer and the surplus line broker may rely, if it
is reasonable under all the circumstances to do so, on the disclosure
statement received from a licensee involved in the transaction as
prima facie evidence that the disclosure statement and appropriate
signature from the applicant have been obtained. The surplus line
broker shall maintain a copy of the signed disclosure statement in
his or her records for a period of at least five years. These records
shall be made available to the commissioner and the insured upon
request. This disclosure shall be signed by the applicant, and is not
subject to a limited power of attorney agreement between the
applicant and an agent or broker or a surplus line broker. The
disclosure statement shall be in boldface 16-point type on a
freestanding document. In addition, every policy issued by a
nonadmitted insurer and every certificate evidencing the placement of
insurance shall contain, or have affixed to it by the insurer or
surplus line broker, the disclosure statement set forth in
subdivision (b) in boldface 16-point type on the front page of the
policy.
(2) In a case in which the applicant has not received and
completed the signed disclosure form required by this section, he or
she may cancel the insurance so placed. The cancellation shall be on
a pro rata basis as to premium, and the applicant shall be entitled
to the return of any broker's fees charged for the placement.
(b) The following notice shall be provided to home state insureds
and home state insured applicants for insurance as provided by
subdivision (a), and shall be printed in English and in the language
principally used by the surplus line broker and nonadmitted insurer
to advertise, solicit, or negotiate the sale and purchase of surplus
line insurance. The surplus line broker and nonadmitted insurer shall
use the appropriate bracketed language for application and issued
policy disclosures:
"NOTICE:
1. THE INSURANCE POLICY THAT YOU HAVE PURCHASED] ARE APPLYING TO
PURCHASE] IS BEING ISSUED BY AN INSURER THAT IS NOT LICENSED BY THE
STATE OF CALIFORNIA. THESE COMPANIES ARE CALLED "NONADMITTED" OR
"SURPLUS LINE" INSURERS.
2. THE INSURER IS NOT SUBJECT TO THE FINANCIAL SOLVENCY REGULATION
AND ENFORCEMENT THAT APPLY TO CALIFORNIA LICENSED INSURERS.
3. THE INSURER DOES NOT PARTICIPATE IN ANY OF THE INSURANCE
GUARANTEE FUNDS CREATED BY CALIFORNIA LAW. THEREFORE, THESE FUNDS
WILL NOT PAY YOUR CLAIMS OR PROTECT YOUR ASSETS IF THE INSURER
BECOMES INSOLVENT AND IS UNABLE TO MAKE PAYMENTS AS PROMISED.
4. THE INSURER SHOULD BE LICENSED EITHER AS A FOREIGN INSURER IN
ANOTHER STATE IN THE UNITED STATES OR AS A NON-UNITED STATES (ALIEN)
INSURER. YOU SHOULD ASK QUESTIONS OF YOUR INSURANCE AGENT, BROKER, OR
"SURPLUS LINE" BROKER OR CONTACT THE CALIFORNIA DEPARTMENT OF
INSURANCE AT THE FOLLOWING TOLL-FREE TELEPHONE NUMBER ____. ASK
WHETHER OR NOT THE INSURER IS LICENSED AS A FOREIGN OR NON-UNITED
STATES (ALIEN) INSURER AND FOR ADDITIONAL INFORMATION ABOUT THE
INSURER. YOU MAY ALSO CONTACT THE NAIC'S INTERNET WEB SITE AT
WWW.NAIC.ORG.
5. FOREIGN INSURERS SHOULD BE LICENSED BY A STATE IN THE UNITED
STATES AND YOU MAY CONTACT THAT STATE'S DEPARTMENT OF INSURANCE TO
OBTAIN MORE INFORMATION ABOUT THAT INSURER.
6. FOR NON-UNITED STATES (ALIEN) INSURERS, THE INSURER SHOULD BE
LICENSED BY A COUNTRY OUTSIDE OF THE UNITED STATES AND SHOULD BE ON
THE NAIC'S INTERNATIONAL INSURERS DEPARTMENT (IID) LISTING OF
APPROVED NONADMITTED NON-UNITED STATES INSURERS. ASK YOUR AGENT,
BROKER, OR "SURPLUS LINE" BROKER TO OBTAIN MORE INFORMATION ABOUT
THAT INSURER.
7. CALIFORNIA MAINTAINS A LIST OF APPROVED SURPLUS LINE INSURERS.
ASK YOUR AGENT OR BROKER IF THE INSURER IS ON THAT LIST, OR VIEW THAT
LIST AT THE INTERNET WEB SITE OF THE CALIFORNIA DEPARTMENT OF
INSURANCE: WWW.INSURANCE.CA.GOV.
8. IF YOU, AS THE APPLICANT, REQUIRED THAT THE INSURANCE POLICY
YOU HAVE PURCHASED BE BOUND IMMEDIATELY, EITHER BECAUSE EXISTING
COVERAGE WAS GOING TO LAPSE WITHIN TWO BUSINESS DAYS OR BECAUSE YOU
WERE REQUIRED TO HAVE COVERAGE WITHIN TWO BUSINESS DAYS, AND YOU DID
NOT RECEIVE THIS DISCLOSURE FORM AND A REQUEST FOR YOUR SIGNATURE
UNTIL AFTER COVERAGE BECAME EFFECTIVE, YOU HAVE THE RIGHT TO CANCEL
THIS POLICY WITHIN FIVE DAYS OF RECEIVING THIS DISCLOSURE. IF YOU
CANCEL COVERAGE, THE PREMIUM WILL BE PRORATED AND ANY BROKER'S FEE
CHARGED FOR THIS INSURANCE WILL BE RETURNED TO YOU."
(c) When a contract is issued to an industrial insured, neither
the nonadmitted insurer nor the surplus line broker is required to
provide the notice required in this section except on the
confirmation of insurance, the certificate of placement, or the
policy, whichever is first provided to the insured, nor is the
insurer or surplus line broker required to obtain the insured's
signature. The producer shall ensure that the notice affixed to the
confirmation of insurance, certificate of placement, or the policy is
provided to the insured. The producer shall insert the current
toll-free telephone number of the Department of Insurance as provided
in paragraph 4 of the notice.
(1) An industrial insured is an insured that does both of the
following:
(A) Employs at least 25 employees on average during the prior 12
months.
(B) Has aggregate annual premiums for insurance for all risks
other than workers' compensation and health coverage totaling no less
than twenty-five thousand dollars ($25,000) or obtains insurance
through the services of a full-time employee acting as an insurance
manager or a continuously retained insurance consultant. A
"continuously retained insurance consultant" does not include: (i) an
agent or broker through whom the insurance is being placed, (ii) a
subagent or subproducer involved in the transaction, or (iii) an
agent or broker that is a business organization employing or
contracting with a person mentioned in clauses (i) and (ii).
(2) The surplus line broker shall be responsible for ensuring that
the applicant is an industrial insured. A surplus line broker who
reasonably relies on information provided in good faith by the
applicant, whether directly or through the producer, shall be deemed
to be in compliance with this requirement.
(d) For purposes of compliance with the requirement of subdivision
(a) that the signature of the applicant be obtained, the following
shall apply:
(1) If the insurance transaction is not conducted at an in-person,
face-to-face meeting, the applicant's signature on the disclosure
form may be transmitted by the applicant to the agent or broker via
facsimile or comparable electronic transmittal.
(2) In the case of commercial lines coverage, or personal
insurance coverage subject to Section 675 and any umbrella coverage
associated therewith, where an applicant requires that insurance
coverage be bound immediately, either because existing coverage will
lapse within two business days of the time the insurance is bound or
because the applicant is required to have coverage in place within
two business days, and the applicant cannot meet in person with the
agent or broker to sign the disclosure form, the agent or broker may
obtain the signature of the applicant within five days of binding
coverage, provided that the applicant may cancel the insurance so
placed within five days of receiving the disclosure form from the
agent or broker. The cancellation shall be on a pro rata basis, and
the applicant shall be entitled to the rescission or return of any
broker's fees charged for the placement. When a policy is canceled,
the broker shall inform the applicant that the broker's fee must be
returned and that the premium must be prorated.
(e) Notwithstanding subdivision (a), this section shall not apply
to insurance issued or delivered in this state by a nonadmitted
Mexican insurer by and through a surplus line broker affording
coverage exclusively in the Republic of Mexico on property located
temporarily or permanently in, or operations conducted temporarily or
permanently within, the Republic of Mexico.
SEC. 106. Section 1765.1 of the Insurance Code is amended to read:
1765.1. No surplus line broker shall place any coverage with a
nonadmitted insurer for a home state insured unless the insurer is
domiciled in the Republic of Mexico and the placement covers only
liability arising out of the ownership, maintenance, or use of a
motor vehicle, aircraft, or boat in the Republic of Mexico, or, at
the time of placement, the nonadmitted insurer meets the requirements
of either subdivision (a) or (b):
(a) If the insurer is domiciled in one of the states of the United
States or its territories as defined in subdivision (p) of Section
1760.1:
(1) Is licensed to write the type of insurance in its domiciliary
jurisdiction; and
(2) (A) Has capital and surplus that together total forty-five
million dollars ($45,000,000).
(B) The requirements of subparagraph (A) may be satisfied by an
insurer possessing less than forty-five million dollars ($45,000,000)
upon an affirmative finding of acceptability by the commissioner.
The finding shall be based upon factors such as quality of
management, capital and surplus of any parent company, company
underwriting profit and investment income trends, market
availability, and company record and reputation within the industry.
The commissioner is prohibited from making an affirmative finding of
acceptability when the foreign insurer's capital and surplus are less
than four million five hundred thousand dollars ($4,500,000); or
(C) If a foreign insurer that was listed as an eligible surplus
line insurer as of January 1, 2011, and did not have the forty-five
million dollars ($45,000,000) of capital and surplus as of January 1,
2011, that insurer shall have at least thirty million dollars
($30,000,000) of capital and surplus as of December 31, 2011, and at
least forty-five million dollars ($45,000,000) of capital and surplus
as of December 31, 2013.
(b) If the insurer is not domiciled in one of the states of the
United States or its territories as defined in subdivision (p) of
Section 1760.1, the insurer is listed on the Quarterly Listing of
Alien Insurers maintained by the NAIC International Insurers
Department (IID) and is licensed as an insurer in its domiciliary
jurisdiction.
(c) The commissioner shall not recognize that a nonadmitted
insurer is eligible pursuant to subdivision (a) or (b) unless and
until the nonadmitted insurer, or a surplus line broker on its
behalf, has submitted for filing the following:
(1) A certificate of capital and surplus issued by the insurer's
domiciliary jurisdiction.
(2) A certified copy of the insurer's license issued by its
domiciliary jurisdiction, plus a certification of good standing,
certificate of compliance, or other equivalent certificate, from
either that jurisdiction or, if the jurisdiction does not issue those
certificates, from any state where it is licensed.
(3) Information on the insurer's agent in California for service
of process, including the agent's full name and address. The agent's
address must include a street address where the agent can be reached
during normal business hours.
(4) The complete street address, mailing address, and telephone
number of the insurer's principal place of business.
(5) Notice, if applicable, that the insurer or licensee is
currently known to be the subject of any order or proceeding
regarding conservation, liquidation, or other receivership; or
regarding revocation or suspension of a license to transact insurance
in any jurisdiction; or otherwise seeking to stop the insurer from
transacting insurance in any jurisdiction. The notice shall identify
the proceeding by date, jurisdiction, and relief or sanction sought,
and shall attach a copy of the relevant order.
(6) A list of all California surplus line brokers authorized by
the insurer to issue policies on its behalf, and any additions to or
deletions from that list.
(7) Any additional information or documentation required by the
commissioner that pertains to the requirements of this section or the
NAIC review of the insurer including for purposes of inclusion on or
exclusion from the list of authorized nonadmitted insurers
maintained by the NAIC.
(d) The commissioner shall not recognize that a nonadmitted
insurer is eligible pursuant to subdivision (a) or (b) unless and
until the nonadmitted insurer, or a surplus line broker on its
behalf, has established, in addition to the requirements prescribed
in subdivision (c), that:
(1) All documents required by subdivision (c) have been filed.
Each of the documents appear after review to be complete, clear,
comprehensible, unambiguous, accurate, and consistent.
(2) The documents affirm that the insurer is not subject in any
jurisdiction to an order or proceeding that:
(A) Seeks to stop it from transacting insurance.
(B) Relates to conservation, liquidation, or other receivership.
(C) Relates to revocation or suspension of its license.
(3) The documents confirm that the insurer holds a license to
issue insurance policies, other than reinsurance, to residents of the
jurisdiction that granted the license.
(4) The information available to the commissioner shall not
indicate that the insurer offers to a home state insured products or
rates that violate any provision of this code.
(e) If at any time the commissioner determines that an insurer is
no longer eligible pursuant to subdivision (a) or (b), the
commissioner may issue an order without prior notice and hearing. At
the time an order is issued pursuant to this subdivision to an
insurer, the commissioner shall notify all surplus line brokers of
the order.
(f) The commissioner may require, at least annually, the
submission of records and statements as are reasonably necessary to
ensure that the requirements of this section are maintained.
(g) The commissioner shall establish by regulation a schedule of
fees to cover costs of administering and enforcing this chapter.
(h) (1) Insurance may be placed on a limited basis with insurers
not eligible pursuant to this section if all of the following
conditions are met:
(A) The use of multiple insurers is necessary to obtain coverage
for 100 percent of the risk.
(B) At least 80 percent of the risk is placed with admitted
insurers or insurers that are eligible nonadmitted insurers.
(C) The placing surplus line broker submits to the commissioner,
or his or her designee, copies of all documentation relied upon by
the surplus line broker to make the broker's determination that the
financial stability, reputation, and integrity of the ineligible
insurer or insurers, are adequate to safeguard the interest of the
insured under the policy. This documentation, and any other
documentation regarding the ineligible insurer requested by the
commissioner, shall be submitted no more than 30 days after the
insurance is placed with the unlisted insurer for the initial
placement by that broker with the particular ineligible insurer, and
annually thereafter for as long as the broker continues to make
placements with the ineligible insurer pursuant to this paragraph.
(D) The insured has aggregate annual premiums for all risks other
than workers' compensation or health coverage totaling no less than
one hundred thousand dollars ($100,000).
(2) Insurance may not be placed pursuant to paragraph (1) if any
of the following applies:
(A) The ineligible insurer has for any reason been objected to by
the commissioner pursuant to this section or become ineligible.
(B) The insurance includes coverage for employer-sponsored
medical, surgical, hospital, or other health or medical expense
benefits payable to the employee by the insurer.
(C) The insurance is mandatory under the laws of the federal
government, this state, or any political subdivision thereof, and
includes any portion of limits of coverage mandated by those laws.
(D) The insured is a multiple employer welfare arrangement, as
defined in Section 1002(40)(A) of Title 29 of the United States Code,
or any other arrangement among two or more employers that are not
under common ownership or control, which is established or maintained
for the primary purpose of providing insurance benefits to the
employees of two or more employers.
(E) Ineligible insurers represent a disproportionate portion of
the lower layers of the coverage.
(3) Nothing in this section is intended to alter any duties of a
surplus line broker pursuant to subdivision (b) of Section 1765 or
other laws of this state to safeguard the interests of the insured
under the policy in recommending or placing insurance with a
nonadmitted insurer.
(4) Placements authorized by this subdivision are intended to
provide sophisticated insurance purchasers with a means to obtain
necessary commercial insurance coverage from nonadmitted insurers
that are not eligible in situations where it is not commercially
possible to fully obtain that coverage from either admitted or
eligible insurers. This subdivision shall not be deemed to permit
surplus line brokers to place with nonadmitted insurers common
commercial or personal line coverages for insureds that can be placed
with insurers that are admitted or eligible pursuant to this
section, whether the insured is an individual insured, or a group
created primarily for the purpose of purchasing insurance.
(i) With respect to a nonadmitted insurer that is listed as an
eligible surplus line insurer as of July 21, 2011, pursuant to the
former Section 1765.1 as it read prior to July 21, 2011, this section
shall not be effective until the subsequent expiration of the
policies of that insurer in effect on July 21, 2011. Nothing in the
bill that amended this section during the 2011 portion of the 2011-12
Regular Session is intended to repeal or imply there is not
authority to adopt, or to have adopted, or to continue in force, any
regulation, or part thereof, with respect to surplus line insurance
which is not clearly inconsistent with it.
SEC. 107. Section 1765.2 of the Insurance Code is amended to read:
1765.2. A surplus line broker may place any coverage with a
California-approved nonadmitted insurer if the insurer is domiciled
in the Republic of Mexico and the placement covers only liability
arising out of the ownership, maintenance, or use of a motor vehicle,
aircraft, or boat in the Republic of Mexico, or if, at the time of
placement, the nonadmitted insurer meets the following requirements:
(a) (1) Has established its financial stability, reputation, and
integrity, for the class of insurance the broker proposes to place,
by satisfactory evidence submitted to the commissioner through a
surplus line broker.
(2) Meets one of the following requirements with respect to its
financial stability:
(A) Has capital and surplus that together total at least
forty-five million dollars ($45,000,000). "Capital" shall be as
defined in Section 36. "Surplus" shall be defined as assets exceeding
the sum of liabilities for losses reported, expenses, taxes, and all
other indebtedness and reinsurance of outstanding risks as provided
by law and paid-in capital in the case of an insurer issuing or
having outstanding shares of capital stock. The type of assets to be
used in calculating capital and surplus shall be as follows: at least
twenty-five million dollars ($25,000,000) shall be in the form of
cash, or securities of the same character and quality as specified in
Sections 1170 to 1182, inclusive, or in readily marketable
securities listed on regulated United States' national or principal
regional securities exchanges. The remaining assets shall be in the
form just described or in the form of investments of substantially
the same character and quality as described in Sections 1190 to 1202,
inclusive. In calculating capital and surplus under this section,
the term "same character and quality" shall permit, but not require,
the commissioner to approve assets maintained in accordance with the
laws of another state or country. The commissioner shall be guided by
the limitations, restrictions, or other requirements of this code or
the National Association of Insurance Commissioners' Accounting
Practices and Procedures Manual in determining whether assets
substantially similar to those described in Sections 1190 to 1202,
inclusive, qualify. The commissioner shall retain the discretion to
disapprove or disallow an asset that is not of a sound quality, or
that he or she deems to create an unacceptable risk of loss to the
insurer or to policyholders. Letters of credit shall not qualify as
assets in the calculation of surplus. If capital and surplus together
total less than forty-five million dollars ($45,000,000), the
commissioner has affirmatively found that the capital and surplus are
adequate to protect California policyholders. The commissioner shall
consider, on determining whether to make this finding, factors such
as quality of management, the capital and surplus of a parent
company, the underwriting profit and investment income trends, and
the record of claims payment and claims handling practices of the
nonadmitted insurer.
(B) In the case of an "Insurance Exchange" created and authorized
under the laws of individual states, maintains capital and surplus of
not less than fifty million dollars ($50,000,000) in the aggregate.
"Capital" shall be as defined in Section 36. "Surplus" shall be
defined as assets exceeding the sum of liabilities for losses
reported, expenses, taxes, and all other indebtedness and reinsurance
of outstanding risks as provided by law and paid-in capital in the
case of an insurer issuing or having outstanding shares of capital
stock. The type of assets to be used in calculating capital and
surplus shall be as follows: at least twenty-five million dollars
($25,000,000) shall be in the form of cash, or securities of the same
character and quality as specified in Sections 1170 to 1182,
inclusive, or in readily marketable securities listed on regulated
United States' national or principal regional securities exchanges.
The remaining assets shall be in the form just described or in the
form of investments of substantially the same character and quality
as described in Sections 1190 to 1202, inclusive. In calculating
capital and surplus under this section, the term "same character and
quality" shall permit, but not require, the commissioner to approve
assets maintained in accordance with the laws of another state or
country. The commissioner shall be guided by the limitations,
restrictions, or other requirements of this code or the National
Association of Insurance Commissioners' Accounting Practices and
Procedures Manual in determining whether assets substantially similar
to those described
in Sections 1190 to 1202, inclusive, qualify. The commissioner shall
retain the discretion to disapprove or disallow an asset that is not
of a sound quality, or that he or she deems to create an
unacceptable risk of loss to the insurer or to policyholders. Letters
of credit shall not qualify as assets in the calculation of surplus.
Each individual syndicate seeking to accept surplus line placements
of risks resident, located, or to be performed in this state shall
maintain minimum capital and surplus of not less than six million
four hundred thousand dollars ($6,400,000). Each individual syndicate
shall increase the capital and surplus required by this paragraph by
one million dollars ($1,000,000) each year until it attains a
capital and surplus of forty-five million dollars ($45,000,000).
(C) In the case of a syndicate that is part of a group consisting
of incorporated individual insurers, or a combination of both
incorporated and unincorporated insurers, that at all times maintains
a trust fund of not less than one hundred million dollars
($100,000,000) in a qualified United States financial institution as
security to the full amount thereof for the United States surplus
line policyholders and beneficiaries of direct policies of the group,
including all policyholders and beneficiaries of direct policies of
the syndicate, and the full balance in the trust fund is available to
satisfy the liabilities of each member of the group of those
syndicates, incorporated individual insurers or other unincorporated
insurers, without regard to their individual contributions to that
trust fund, and the trust complies with the terms of and conditions
specified in paragraph (1) of subdivision (b), the syndicate is
excepted from the capital and surplus requirements of subparagraph
(A). The incorporated members of the group shall not be engaged in
any business other than underwriting as a member of the group and
shall be subject to the same level of solvency regulation and control
by the group's domiciliary regulator as are the unincorporated
members.
(b) (1) In addition, to be approved as a surplus line insurer, an
insurer not domiciled in one of the United States or its territories
shall have in force in the United States an irrevocable trust account
in a qualified United States financial institution, for the
protection of United States policyholders, of not less than five
million four hundred thousand dollars ($5,400,000) and consisting of
cash, securities acceptable to the commissioner that are authorized
pursuant to Sections 1170 to 1182, inclusive, readily marketable
securities acceptable to the commissioner that are listed on a
regulated United States national or principal regional security
exchange, or clean and irrevocable letters of credit acceptable to
the commissioner and issued by a qualified United States financial
institution. The trust agreement shall be in a form acceptable to the
commissioner. The funds in the trust account may be included in any
calculation of capital and surplus, except letters of credit, which
shall not be included in the calculation.
(2) In the case of a syndicate seeking approval under subparagraph
(C) of paragraph (2) of subdivision (a), the syndicate shall, in
addition to the requirements of that subparagraph, at a minimum,
maintain in the United States a trust account in an amount
satisfactory to the commissioner that is not less than the amount
required by the domiciliary state of the syndicate's trust. The trust
account shall comply with the terms and conditions specified in
paragraph (1).
(3) In the case of a group of incorporated insurers under common
administration that maintains a trust fund of not less than one
hundred million dollars ($100,000,000) in a qualified United States
financial institution for the payment of claims of its United States
policyholders, their assigns, or successors in interest and that
complies with the terms and conditions of paragraph (1) that has
continuously transacted an insurance business outside the United
States for at least three years, that is in good standing with its
domiciliary regulator, whose individual insurer members maintain
standards and a financial condition reasonably comparable to admitted
insurers, that submits to this state's authority to examine its
books and bears the expense of examination, and that has an aggregate
policyholder surplus of ten billion dollars ($10,000,000,000), the
group is excepted from the capital and surplus requirements of
subdivision (a).
(c) Unless available from the NAIC or other public source, has
caused to be provided to the commissioner the following documents:
(1) The financial documents as specified below, each showing the
insurer's condition as of a date not more than 12 months prior to
submission:
(A) A copy of an annual statement, prepared in the form prescribed
by the NAIC. For an alien insurer, in lieu of an annual statement, a
licensee may submit a form as set forth by regulation and as
prepared by the insurer, and, if listed by the IID, a copy of the
complete information as required in the application for listing by
the IID.
(B) A copy of an audited financial report on the insurer's
condition that meets the standards of subparagraph (D) for foreign
insurers or subparagraph (E) for alien insurers.
(C) If the insurer is an alien:
(i) A certified copy of the trust agreement referenced in
subdivision (b).
(ii) A verified copy of the most recent quarterly statement or
list of the assets in the trust.
(D) Financial reports filed pursuant to this section by foreign
insurers shall conform to the following standards:
(i) Financial documents shall be certified.
(ii) An audited financial report shall constitute a supplement to
the insurer's annual statement, as required by the annual statement
instructions issued by the NAIC.
(iii) An audited financial report shall be prepared by an
independent certified public accountant or accounting firm in good
standing with the American Institute of Certified Public Accountants
and in all states where licensed to practice; and be prepared in
conformity with statutory accounting practices prescribed, or
otherwise permitted, by the insurance regulator of the insurer's
domiciliary jurisdiction.
(iv) An audited financial report shall include information on the
insurer's financial position as of the end of the most recent
calendar year, and the results of its operations, cashflows, and
changes in capital and surplus for the year then ended.
(v) An audited financial report shall be prepared in a form and
using language and groupings substantially the same as the relevant
sections of the insurer's annual statement filed with its domiciliary
jurisdiction, and presenting comparatively the amounts as of
December 31 of the most recent calendar year and the amounts as of
December 31 of the preceding year.
(E) Financial reports filed pursuant to this section by alien
insurers shall conform to the following standards:
(i) Except as provided in clause (ii) of subparagraph (C),
financial documents should be certified. If certification of a
financial document is not available, the document shall be verified.
(ii) Financial documents should be expressed in United States
dollars, but may be expressed in another currency, if the exchange
rate for the other currency as of the date of the document is also
provided.
(iii) The responses provided pursuant to subparagraph (A) on the
form submitted in lieu of an annual statement should follow the most
recent Insurance Solvency International Guide to Alien Reporting
Format, "Standard Definitions of Accounting Items." Responses that do
not agree with a standard definition shall be fully explained in the
form.
(iv) An audited financial report shall be prepared by an
independent licensed auditor in the insurer's domiciliary
jurisdiction or in any state.
(v) An audited financial report shall be prepared in accord with
either (I) Generally Accepted Auditing Standards that prescribe
Generally Accepted Accounting Principles, or (II) International
Accounting Standards as published and revised from time to time by
the International Auditing Guidelines published by the International
Auditing Practice Committee of the International Federation of
Accountants, and shall include financial statement notes and a
summary of significant accounting practices.
(F) The commissioner may accept, in lieu of a document described
above, a certified or verified financial or regulatory document,
statement, or report if the commissioner finds that it possesses
reliability and financial detail substantially equal to or greater
than the document for which it is proposed to be a substitute.
(G) If one of the financial documents required to be submitted
under subparagraphs (A) and (B) is dated within 12 months of
submission, but the other document is not so dated, the licensee may
use the outdated document if it is accompanied by a supplement. The
supplement must meet the same requirements that apply to the
supplemented document and must update the outdated document to a date
within the prescribed time period, preferably to the same date as
the nonsupplemented document.
(2) A certified copy of the insurer's license issued by its
domiciliary jurisdiction, plus a certification of good standing,
certificate of compliance, or other equivalent certificate, from
either that jurisdiction or, if the jurisdiction does not issue those
certificates, from a state where it is licensed.
(3) Information on the insurer's agent in California for service
of process, including the agent's full name and address. The agent's
address must include a street address where the agent can be reached
during normal business hours.
(4) The complete street address, mailing address, and telephone
number of the insurer's principal place of business.
(5) A certified or verified explanation, report, or other
statement from the insurance regulatory office or official of the
insurer's domiciliary jurisdiction concerning the insurer's record
regarding market conduct and consumer complaints, or, if that
information cannot be obtained from that jurisdiction, then any other
information that the licensee can procure to demonstrate a good
reputation for payment of claims and treatment of policyholders.
(6) A verified statement, from the insurer or licensee, on whether
the insurer or an affiliated entity is currently known to be the
subject of an order or proceeding regarding conservation,
liquidation, or other receivership; or regarding revocation or
suspension of a license to transact insurance in any jurisdiction; or
otherwise seeking to stop the insurer from transacting insurance in
any jurisdiction. The statement shall identify the proceeding by
date, jurisdiction, and relief or sanction sought, and shall attach a
copy of the relevant order.
(7) A certified copy of the most recent report of examination or
an explanation if the report is not available.
(8) A list of all California surplus line brokers authorized by
the insurer to issue policies on its behalf, and any additions to or
deletions from that list.
(d) (1) Has provided additional information or documentation
required by the commissioner that is relevant to the financial
stability, reputation, and integrity of the nonadmitted insurer. In
making a determination concerning financial stability, reputation,
and integrity of the nonadmitted insurer, the commissioner shall
consider any analyses, findings, or conclusions made by the NAIC in
its review of the insurer for purposes of inclusion on or exclusion
from the list of authorized nonadmitted insurers maintained by the
NAIC. The commissioner may, but shall not be required to, rely on,
adopt, or otherwise accept any analyses, findings, or conclusions of
the NAIC, as the commissioner deems appropriate. In the case of a
syndicate seeking eligibility under subparagraph (C) of paragraph (2)
of subdivision (a), the commissioner may, but shall not be required
to, rely on, adopt, or otherwise accept any analyses, findings, or
conclusions of a state, as the commissioner deems appropriate, as
long as that state, in its method of regulation and review, meets the
requirements of paragraph (2).
(2) The regulatory body of the state shall regularly receive and
review the following: (A) an audited financial statement of the
syndicate, prepared by a certified or chartered public accountant;
(B) an opinion of a qualified actuary with regard to the syndicate's
aggregate reserves for payment of losses or claims and payment of
expenses of adjustment or settlement of losses or claims; (C) a
certification from the qualified United States financial institution
that acts as the syndicate's trustee, respecting the existence and
value of the syndicate's trust fund; and (D) information concerning
the syndicate's or its manager's operating history, business plan,
ownership and control, experience, and ability, together with any
other pertinent factors, and any information indicating that the
syndicate or its manager make reasonably prompt payment of claims in
this state or elsewhere. The regulatory body of the state shall have
the authority, either by law or through the operation of a valid and
enforceable agreement, to review the syndicate's assets and
liabilities and audit the syndicate's trust account, and shall
exercise that authority with a frequency and in a manner satisfactory
to the commissioner.
(e) Has established that:
(1) All documents required by subdivisions (c) and (d) have been
filed. Each of the documents appear after review to be complete,
clear, comprehensible, unambiguous, accurate, and consistent.
(2) The documents affirm that the insurer is not subject in any
jurisdiction to an order or proceeding that:
(A) Seeks to stop it from transacting insurance.
(B) Relates to conservation, liquidation, or other receivership.
(C) Relates to revocation or suspension of its license.
(3) The documents affirm that the insurer has actively transacted
insurance for the three years immediately preceding the filing made
under this section, unless an exemption is granted. As used in this
paragraph, "insurer" does not include a syndicate of underwriting
entities. The commissioner may grant an exemption if the licensee has
applied for exemption and demonstrates either of the following:
(A) The insurer meets the condition for any exception set forth in
subdivision (a), (b), or (c) of Section 716.
(B) If the insurer has been actively transacting insurance for at
least 12 months, and the licensee demonstrates that the exemption is
warranted because the insurer's current financial strength, operating
history, business plan, ownership and control, management
experience, and ability, together with any other pertinent factors,
make three years of active insurance transaction unnecessary to
establish sufficient reputation.
(4) The documents confirm that the insurer holds a license to
issue insurance policies, other than reinsurance, to residents of the
jurisdiction that granted the license unless an exemption is
granted. The commissioner may grant an exemption if the licensee has
applied for an exemption and demonstrates that the exemption is
warranted because the insurer proposes to issue in California only
commercial coverage, and is wholly owned and actually controlled by
substantial and knowledgeable business enterprises that are its
policyholders and that effectively govern the insurer's destiny in
furtherance of their own business objectives.
(5) The information filed pursuant to paragraph (5) of subdivision
(c) or otherwise filed with or available to the commissioner,
including reports received from California policyholders, shall
indicate that the insurer makes reasonably prompt payment of claims
in this state or elsewhere.
(6) The information available to the commissioner shall not
indicate that the insurer offers in California a licensee products or
rates that violate any provision of this code.
(f) Has been placed on the list of approved surplus line insurers
by the commissioner. The commissioner shall establish a list of all
surplus line insurers that have met the requirements of subdivisions
(a) to (e), inclusive, and shall publish a master list at least
semiannually. An insurer receiving approval as an approved surplus
line insurer shall be added by addendum to the list at the time of
approval, and shall be incorporated into the master list at the next
date of publication. If an insurer appears on the most recent list,
it shall be presumed that the insurer is an approved surplus line
insurer, unless the commissioner or his or her designee has mailed or
causes to be mailed notice to all surplus line brokers that the
commissioner has withdrawn the insurer's approval. Upon receipt of
notice, the surplus line broker shall no longer advertise that the
insurer is approved. Nothing in this subdivision shall limit the
commissioner's discretion to withdraw an insurer's approval.
(g) (1) Except as provided by paragraph (2), whenever the
commissioner has reasonable cause to believe, and determines after a
public hearing, that an insurer on the list established pursuant to
subdivision (f), (A) is in an unsound financial condition, (B) does
not meet the approval requirements under subdivisions (a) to (e),
inclusive, (C) has violated the laws of this state, or (D) without
justification, or with a frequency so as to indicate a general
business practice, delays the payment of just claims, the
commissioner may issue an order removing the insurer from the list.
Notice of hearing shall be served upon the insurer or its agent for
service of process stating the time and place of the hearing and the
conduct, condition, or ground upon which the commissioner would make
his or her order. The hearing shall occur not less than 20 days, nor
more than 30 days, after notice is served upon the insurer or its
agent for service of process.
(2) If the commissioner determines that an insurer's immediate
removal from the list is necessary to protect the public or a home
state insured or home state insured applicant of the insurer, or, in
the case of an application by an insurer to be placed on the list
that is being denied by the commissioner, the commissioner may issue
an order pursuant to paragraph (1) without prior notice and hearing.
At the time an order is served pursuant to this paragraph to an
insurer on the list, the commissioner shall also issue and serve upon
the insurer a statement of the reasons that immediate removal is
necessary. An order issued pursuant to this paragraph shall include a
notice stating the time and place of a hearing on the order, which
shall be not less than 20 days, nor more than 30 days, after the
notice is served.
(3) Notwithstanding paragraphs (1) and (2), in a case where the
commissioner is basing a decision to remove an insurer from the list,
or deny an application to be placed on the list, on the failure of
the insurer or applicant to comply with, meet, or maintain any of the
objective criteria established by this section, or by regulation
adopted pursuant to this section, the commissioner may specify this
fact in the order, and no hearing shall be required to be held on the
order.
(4) Notwithstanding paragraphs (1) and (2), the commissioner may,
without prior notice or hearing, remove from the list established
pursuant to subdivision (f) an insurer that has failed or refused to
timely provide documents required by this section, or regulations
adopted to implement this section. In the case of removal pursuant to
this paragraph, the commissioner shall notify all surplus line
brokers of the action.
(h) In addition to other statements or reports required by this
chapter, the commissioner may also address to a licensee a written
request for full and complete information respecting the financial
stability, reputation, and integrity of a nonadmitted insurer with
whom the licensee has dealt or proposes to deal in the transaction of
insurance business with a home state insured. The licensee so
addressed shall promptly furnish in written or printed form so much
of the information requested as he or she can produce, together with
a signed statement identifying the same and giving reasons for
omissions, if any. After due examination of the information and
accompanying statement, the commissioner may, if he or she believes
it to be in the public interest, advise the licensee in writing that
the insurer does not qualify as an approved insurer. Any placement in
the nonadmitted insurer made by a licensee after receipt of that
advisement shall be accompanied by a copy of the advisement. The
commissioner may issue an advisement when documents submitted
pursuant to subdivisions (c) and (d) do not meet the criteria of
subdivisions (a) to (e), inclusive, or when the commissioner obtains
documents on an insurer and the insurer does not meet the criteria of
subdivisions (a) to (e), inclusive, and shall be authorized to not
include or remove that insurer from the List of Approved Surplus Line
Insurers.
(i) The commissioner shall require, at least annually, the
submission of records and statements reasonably necessary to ensure
that the requirements of this section are maintained.
(j) The commissioner shall establish, by regulation, a schedule of
fees to cover costs of administering and enforcing this chapter.
SEC. 108. Section 1768 of the Insurance Code is amended to read:
1768. A resident surplus line broker shall keep in this state
complete records of the business transacted by him or her for
California home state insureds with nonadmitted insurers under his or
her license as a surplus line broker including all of the following
documentation for each policy:
(a) Verification that the insured is a California home state
insured.
(b) Verification that the commercial insured or industrial insured
qualifies for the provisions of this code.
(c) Whether or not it is a single state policy or multistate
policy.
(d) Where allocation of premium to the states is required, data
necessary to make that allocation. A nonresident surplus line broker
shall keep in the state where he or she is licensed as a resident
surplus line broker complete records of the business transacted by
him or her for California home state insureds with nonadmitted
insurers under his or her California nonresident surplus line broker
license, including subdivisions (a) to (d), inclusive. The
commissioner may waive or modify any of the foregoing requirements by
issuance of a notice published on the department's Internet Web
site.
SEC. 109. Section 1774 of the Insurance Code is amended to read:
1774. (a) (1) On or before the first day of March of each year
the surplus line broker, placing business for a home state insured,
shall file with the commissioner a sworn statement of all business
transacted under his or her surplus line license during the last
preceding calendar year. The statement shall contain an account of
the business done by the surplus line broker placing business for a
home state insured for the prior year, and shall include (A) the
total amount of gross premium, (B) the total gross premium for single
state risks where 100 percent of the premium is attributable to
risks in California, and (C) for multistate risks, the percentage of
gross premium allocated to California and each other state. The
commissioner may waive or modify any of the foregoing requirements by
issuance of a notice published on the department's Internet Web
site.
(2) On or before the first day of March of each year, the home
state insured that directly procures insurance pursuant to Section
1760 shall file with the commissioner a sworn statement of all
business done during the last preceding calendar year. That statement
shall contain an account of the insurance directly procured by the
home state insured pursuant to Section 1760 for the prior year, and
shall include (A) the total amount of premium, (B) the total premium
for single state risks where 100 percent of the premium is
attributable to risks in California, and (C) for multistate risks,
the percentage of premium allocated to California and each other
state. The commissioner may waive or modify any of the foregoing
requirements by issuance of a notice published on the department's
Internet Web site.
(b) For purposes of this chapter, "business done" or "business
transacted" means all insurance business conducted by the surplus
line broker for a home state insured or directly procured by the home
state insured. If two or more persons licensed as surplus line
brokers are involved in placing a policy, only the one who is
responsible for filing the confidential written report pursuant to
subdivision (a) of Section 1763, shall be considered transacting
business for tax purposes and then only one licensed surplus line
broker shall include the policy in his or her sworn statement. The
surplus line broker who is required to include the policy in his or
her own statement is either (1) the one who is responsible for
negotiating, effecting the placement, remitting the premium to the
nonadmitted insurer or its representatives, and filing the
confidential written report pursuant to subdivision (a) of Section
1763, or (2) the one surplus line broker who is delegated the
responsibility for the filing of the confidential written report
pursuant to subdivision (a) of Section 1763 pursuant to a written
agreement that is (A) by and among the surplus line brokers
referenced in paragraph (1) and this paragraph involved in the
transaction, (B) signed by the surplus line brokers referenced in
paragraph (1) and this paragraph involved in the transaction, and (C)
provides by its terms that the agreement shall be made available to
the commissioner or his or her designee, upon request.
(c) The date on which the surplus line broker transacting a policy
prepares a bill or invoice for payment of all or part of the
premiums due, shall be considered the date on which that business was
done or transacted, subject to subdivision (d). This date shall be
shown on the face of the bill or invoice and shall be referred to as
the "invoice date."
(d) (1) The invoice date shall be no more than 60 days after the
policy effective date and no more than 60 days after the insurance
was placed with a nonadmitted insurer, except as provided in
paragraph (2).
(2) For purposes of this chapter, the amount of gross premium to
be reported, if premiums are billed and payable in installments,
shall be the amount of the installment premium, provided the amount
and due date of each installment, or the basis for determining each
installment, is identifiable in the policy or an endorsement, and
either of the following
conditions is satisfied:
(A) Installments under the policy are not billed more frequently
than once per month.
(B) If more than one installment is billed in any month, the
commissioner determines, in his or her discretion, that the
installment billing method used does not unduly burden the
commissioner's ability to accurately determine the amount of premium
paid by the insured.
(3) If a new or renewal policy has an effective date between
January 1, 2011, to July 20, 2011, inclusive, and is placed on or
before July 20, 2011, then the policy shall be considered to be
business done by the surplus line broker as of the effective date. If
a new or renewal policy has an effective date between January 1,
2011, to July 20, 2011, inclusive, then the policy shall be
considered to be business done by the home state insured who directly
procures policies as of the effective date. Cancellations or
endorsements shall be business done on the same date as the policy
that is being canceled or endorsed, if that policy effective date is
on or before July 20, 2011. Installment premiums, as referenced in
paragraph (2), shall be business done on the date of the most recent
invoice issued on or before July 20, 2011, that included premium tax
charges. This paragraph is enacted to address the July 21, 2011,
effective date of the federal Dodd-Frank Wall Street Reform and
Consumer Protection Act (P.L. 111-203), and shall remain in effect
only until October 18, 2012.
SEC. 110. Section 1775.5 of the Insurance Code is amended to read:
1775.5. (a) Every surplus line broker shall annually, on or
before the first day of March of each year, pay to the Insurance
Commissioner for the use of the State of California a tax of 3
percent of the gross premiums charged less return premiums upon
business done by him or her under the authority of his or her license
during the preceding calendar year, excluding any portions of
premiums upon business done involving the risk finance portion of any
blended finite risk product used in the financing element of state
or federal Superfund environmental settlements involving remediation
of soil or groundwater contamination or by the provisions of Section
1760.5. If during any calendar year 3 percent of the return premiums
upon business done by a surplus line broker exceed 3 percent of the
gross premiums upon that business done by him or her in that year,
then he or she may either carry forward that excess to the next
succeeding year and apply it as a credit against 3 percent of gross
premiums on the business done by him or her in the succeeding year,
or he or she may elect to receive, and thereupon be paid a refund
equal to the amount of taxes theretofore paid by him or her on that
excess of return premiums paid over gross premiums received.
(b) For the purpose of determining that tax, the total premium
charged for all that nonadmitted insurance placed in a single
transaction with one underwriter or group of underwriters, whether in
one or more policies, shall be the entire premium charged on all
nonadmitted insurance for the California home state insured. This
provision shall not apply to interstate motor transit operations
conducted between this and other states. With respect to those
operations surplus line tax shall be payable on the entire premium
charged on all nonadmitted insurance, less the following:
(1) The portion of the premium as is determined, as herein
provided, to have been charged for operations in other states taxing
the premium on operations in those states of an insured maintaining
its headquarters office in this state.
(2) The premium for any operations outside of this state of an
insured who maintains a headquarters operating office outside of this
state and a branch office in this state.
(c) (1) A penalty of 10 percent of the amount of the payment due
pursuant to this section shall be levied upon and paid by any surplus
line broker who fails to make the necessary payment within the time
required, plus interest at the rate of 1 percent per calendar month
or fraction thereof, from March 1, the due date of the annual tax,
until the date the payment is received by the commissioner. The
penalty and interest shall be applied as prescribed in Section
12636.5 of the Revenue and Taxation Code. The commissioner, upon a
showing of good cause, may extend for a period not to exceed 30 days,
the time for filing a tax return or paying any amount required to be
paid with the return. The extension may be granted at any time,
provided that a request therefor is filed with the commissioner
within, or prior to, the period for which the extension may be
granted.
(2) Any surplus line broker to whom an extension is granted shall,
in addition to the tax, pay interest at the rate of 1 percent per
month or fraction thereof from March 1, until the date of payment.
The commissioner may remit the penalty in a case where the
commissioner finds, as a result of examination or otherwise, that the
failure of or delay in payment arose out of excusable mistake or
excusable inadvertence.
(d) For any part of a payment required by this section or by
Section 1775.4 which was not made within the time required by law,
when the nonpayment or late payment was due to fraud on the part of
the broker, a penalty of 25 percent of the amount unpaid shall be
added thereto, in addition to all other penalties otherwise imposed.
(e) For the purposes of this section, these terms shall have the
following meanings:
(1) "Blended finite risk product" means a contractual arrangement
combining risk finance with traditional risk transfer, where a
distinct portion of the program cost represents the funding of a
known, existing, nonfortuitous future cost, obligation,
responsibility, or liability at its discounted net present value, and
another portion of the program cost represents risk transfer for
losses that have yet to occur related to the cost, obligation,
responsibility, or liability that is the subject of the program.
(2) "Risk financing" means that portion of any blended finite risk
product that represents the funding of a known, existing,
nonfortuitous future cost, obligation, responsibility, or liability.
(3) "Risk finance" or "financing element" means a method of
funding for a known future cost over a long time horizon in
current-value dollars using the principle of net present value
discounting.
SEC. 111. Section 10123.191 of the Insurance Code is amended to
read:
10123.191. (a) Notwithstanding any other provision of law, on and
after January 1, 2013, a health insurer that provides prescription
drug benefits shall utilize and accept only the prior authorization
form developed pursuant to subdivision (c) when requiring prior
authorization for prescription drug benefits.
(b) If a health insurer fails to utilize or accept the prior
authorization form, or fails to respond within two business days upon
receipt of a completed prior authorization request from a
prescribing provider, pursuant to the submission of the prior
authorization form developed as described in subdivision (c), the
prior authorization request shall be deemed to have been granted. The
requirements of this subdivision shall not apply to contracts
entered into pursuant to Article 2.7 (commencing with Section
14087.3), Article 2.8 (commencing with Section 14087.5), Article 2.81
(commencing with Section 14087.96), or Article 2.91 (commencing with
Section 14089) of Chapter 7 of, or Chapter 8 (commencing with
Section 14200) of, Part 3 of Division 9 of the Welfare and
Institutions Code.
(c) On or before July 1, 2012, the department and the Department
of Managed Health Care shall jointly develop a uniform prior
authorization form. Notwithstanding any other provision of law, on
and after January 1, 2013, or six months after the form is developed,
whichever is later, every prescribing provider shall use that
uniform prior authorization form to request prior authorization for
coverage of prescription drug benefits and every health insurer shall
accept that form as sufficient to request prior authorization for
prescription drug benefits.
(d) The prior authorization form developed pursuant to subdivision
(c) shall meet the following criteria:
(1) The form shall not exceed two pages.
(2) The form shall be made electronically available by the
department and the health insurer.
(3) The completed form may also be electronically submitted from
the prescribing provider to the health insurer.
(4) The department and the Department of Managed Health Care shall
develop the form with input from interested parties from at least
one public meeting.
(5) The department and the Department of Managed Health Care, in
development of the standardized form, shall take into consideration
the following:
(A) Existing prior authorization forms established by the federal
Centers for Medicare and Medicaid Services and the State Department
of Health Care Services.
(B) National standards pertaining to electronic prior
authorization.
(e) For purposes of this section, a "prescribing provider" shall
include a provider authorized to write a prescription, pursuant to
subdivision (a) of Section 4040 of the Business and Professions Code,
to treat a medical condition of an insured.
SEC. 112. Section 10144.51 of the Insurance Code is amended to
read:
10144.51. (a) (1) Every health insurance policy shall also
provide coverage for behavioral health treatment for pervasive
developmental disorder or autism no later than July 1, 2012. The
coverage shall be provided in the same manner and shall be subject to
the same requirements as provided in Section 10144.5.
(2) Notwithstanding paragraph (1), as of the date that proposed
final rulemaking for essential health benefits is issued, this
section does not require any benefits to be provided that exceed the
essential health benefits that all health insurers will be required
by federal regulations to provide under Section 1302(b) of the
federal Patient Protection and Affordable Care Act (P.L. 111-148), as
amended by the federal Health Care and Education Reconciliation Act
of 2010 (P.L. 111-152).
(3) This section shall not affect services for which an individual
is eligible pursuant to Division 4.5 (commencing with Section 4500)
of the Welfare and Institutions Code or Title 14 (commencing with
Section 95000) of the Government Code.
(4) This section shall not affect or reduce any obligation to
provide services under an individualized education program, as
defined in Section 56032 of the Education Code, or an individualized
service plan, as described in Section 5600.4 of the Welfare and
Institutions Code, or under the Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1400 et seq.) and its implementing
regulations.
(b) Pursuant to Article 6 (commencing with Section 2240) of Title
10 of the California Code of Regulations, every health insurer
subject to this section shall maintain an adequate network that
includes qualified autism service providers who supervise and employ
qualified autism service professionals or paraprofessionals who
provide and administer behavioral health treatment. Nothing shall
prevent a health insurer from selectively contracting with providers
within these requirements.
(c) For the purposes of this section, the following definitions
shall apply:
(1) "Behavioral health treatment" means professional services and
treatment programs, including applied behavior analysis and
evidence-based behavior intervention programs, that develop or
restore, to the maximum extent practicable, the functioning of an
individual with pervasive developmental disorder or autism, and that
meet all of the following criteria:
(A) The treatment is prescribed by a physician and surgeon
licensed pursuant to Chapter 5 (commencing with Section 2000) of, or
is developed by a psychologist licensed pursuant to Chapter 6.6
(commencing with Section 2900) of, Division 2 of the Business and
Professions Code.
(B) The treatment is provided under a treatment plan prescribed by
a qualified autism service provider and is administered by one of
the following:
(i) A qualified autism service provider.
(ii) A qualified autism service professional supervised and
employed by the qualified autism service provider.
(iii) A qualified autism service paraprofessional supervised and
employed by a qualified autism service provider.
(C) The treatment plan has measurable goals over a specific
timeline that is developed and approved by the qualified autism
service provider for the specific patient being treated. The
treatment plan shall be reviewed no less than once every six months
by the qualified autism service provider and modified whenever
appropriate, and shall be consistent with Section 4686.2 of the
Welfare and Institutions Code pursuant to which the qualified autism
service provider does all of the following:
(i) Describes the patient's behavioral health impairments to be
treated.
(ii) Designs an intervention plan that includes the service type,
number of hours, and parent participation needed to achieve the plan'
s goal and objectives, and the frequency at which the patient's
progress is evaluated and reported.
(iii) Provides intervention plans that utilize evidence-based
practices, with demonstrated clinical efficacy in treating pervasive
developmental disorder or autism.
(iv) Discontinues intensive behavioral intervention services when
the treatment goals and objectives are achieved or no longer
appropriate.
(D) The treatment plan is not used for purposes of providing or
for the reimbursement of respite, day care, or educational services
and is not used to reimburse a parent for participating in the
treatment program. The treatment plan shall be made available to the
insurer upon request.
(2) "Pervasive developmental disorder or autism" shall have the
same meaning and interpretation as used in Section 10144.5.
(3) "Qualified autism service provider" means either of the
following:
(A) A person, entity, or group that is certified by a national
entity, such as the Behavior Analyst Certification Board, that is
accredited by the National Commission for Certifying Agencies, and
who designs, supervises, or provides treatment for pervasive
developmental disorder or autism, provided the services are within
the experience and competence of the person, entity, or group that is
nationally certified.
(B) A person licensed as a physician and surgeon, physical
therapist, occupational therapist, psychologist, marriage and family
therapist, educational psychologist, clinical social worker,
professional clinical counselor, speech-language pathologist, or
audiologist pursuant to Division 2 (commencing with Section 500) of
the Business and Professions Code, who designs, supervises, or
provides treatment for pervasive developmental disorder or autism,
provided the services are within the experience and competence of the
licensee.
(4) "Qualified autism service professional" means an individual
who meets all of the following criteria:
(A) Provides behavioral health treatment.
(B) Is employed and supervised by a qualified autism service
provider.
(C) Provides treatment pursuant to a treatment plan developed and
approved by the qualified autism service provider.
(D) Is a behavioral service provider approved as a vendor by a
California regional center to provide services as an Associate
Behavior Analyst, Behavior Analyst, Behavior Management Assistant,
Behavior Management Consultant, or Behavior Management Program as
defined in Section 54342 of Title 17 of the California Code of
Regulations.
(E) Has training and experience in providing services for
pervasive developmental disorder or autism pursuant to Division 4.5
(commencing with Section 4500) of the Welfare and Institutions Code
or Title 14 (commencing with Section 95000) of the Government Code.
(5) "Qualified autism service paraprofessional" means an
unlicensed and uncertified individual who meets all of the following
criteria:
(A) Is employed and supervised by a qualified autism service
provider.
(B) Provides treatment and implements services pursuant to a
treatment plan developed and approved by the qualified autism service
provider.
(C) Meets the criteria set forth in the regulations adopted
pursuant to Section 4686.3 of the Welfare and Institutions Code.
(D) Has adequate education, training, and experience, as certified
by a qualified autism service provider.
(d) This section shall not apply to the following:
(1) A specialized health insurance policy that does not cover
mental health or behavioral health services or an accident only,
specified disease, hospital indemnity, or Medicare supplement policy.
(2) A health insurance policy in the Medi-Cal program (Chapter 7
(commencing with Section 14000) of Part 3 of Division 9 of the
Welfare and Institutions Code).
(3) A health insurance policy in the Healthy Families Program
(Part 6.2 (commencing with Section 12693)).
(4) A health care benefit plan or policy entered into with the
Board of Administration of the Public Employees' Retirement System
pursuant to the Public Employees' Medical and Hospital Care Act (Part
5 (commencing with Section 22750) of Division 5 of Title 2 of the
Government Code).
(e) Nothing in this section shall be construed to limit the
obligation to provide services under Section 10144.5.
(f) As provided in Section 10144.5 and in paragraph (1) of
subdivision (a), in the provision of benefits required by this
section, a health insurer may utilize case management, network
providers, utilization review techniques, prior authorization,
copayments, or other cost sharing.
(g) This section shall become inoperative on July 1, 2014, and, as
of January 1, 2015, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2015, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 113. Section 10192.12 of the Insurance Code is amended to
read:
10192.12. (a) (1) With respect to the guaranteed issue of a
Medicare supplement policy, eligible persons are those individuals
described in subdivision (b) who seek to enroll under the policy
during the period specified in subdivision (c), and who submit
evidence of the date of termination or disenrollment or enrollment in
Medicare Part D with the application for a Medicare supplement
policy.
(2) With respect to eligible persons, an issuer shall not take any
of the following actions:
(A) Deny or condition the issuance or effectiveness of a Medicare
supplement policy described in subdivision (e) that is offered and is
available for issuance to new enrollees by the issuer.
(B) Discriminate in the pricing of that Medicare supplement policy
because of health status, claims experience, receipt of health care,
or medical condition.
(C) Impose an exclusion of benefits based on a preexisting
condition under that Medicare supplement policy.
(b) An eligible person is an individual described in any of the
following paragraphs:
(1) The individual is enrolled under an employee welfare benefit
plan that provides health benefits that supplement the benefits under
Medicare and either of the following applies:
(A) The plan either terminates or ceases to provide all of those
supplemental health benefits to the individual.
(B) The employer no longer provides the individual with insurance
that covers all of the payment for the 20-percent coinsurance.
(2) The individual is enrolled with a Medicare Advantage
organization under a Medicare Advantage plan under Medicare Part C,
and any of the following circumstances apply:
(A) The certification of the organization or plan has been
terminated.
(B) The organization has terminated or otherwise discontinued
providing the plan in the area in which the individual resides.
(C) The individual is no longer eligible to elect the plan because
of a change in the individual's place of residence or other change
in circumstances specified by the secretary. Those changes in
circumstances shall not include termination of the individual's
enrollment on the basis described in Section 1851(g)(3)(B) of the
federal Social Security Act where the individual has not paid
premiums on a timely basis or has engaged in disruptive behavior as
specified in standards under Section 1856 of the federal Social
Security Act, or the plan is terminated for all individuals within a
residence area.
(D) (i) The Medicare Advantage plan in which the individual is
enrolled reduces any of its benefits or increases the amount of cost
sharing or premium or discontinues for other than good cause relating
to quality of care its relationship or contract under the plan with
a provider who is currently furnishing services to the individual. An
individual shall be eligible under this subparagraph for a Medicare
supplement policy issued by the same issuer through which the
individual was enrolled at the time the reduction, increase, or
discontinuance described above occurs or, commencing January 1, 2007,
for one issued by a subsidiary of the parent company of that issuer
or by a network that contracts with the parent company of that
issuer. If no Medicare supplement policy is available to the
individual from the same issuer, a subsidiary of the parent company
of the issuer, or a network that contracts with the parent company of
the issuer, the individual shall be eligible for a Medicare
supplement policy pursuant to paragraph (1) of subdivision (e) issued
by any issuer, if the Medicare Advantage plan in which the
individual is enrolled does any of the following:
(I) Increases the premium by 15 percent or more.
(II) Increases physician, hospital, or drug copayments by 15
percent or more.
(III) Reduces any benefits under the plan.
(IV) Discontinues, for other than good cause relating to quality
of care, its relationship or contract under the plan with a provider
who is currently furnishing services to the individual.
(ii) Enrollment in a Medicare supplement policy from an issuer
unaffiliated with the issuer of the Medicare Advantage plan in which
the individual is enrolled shall be permitted only during the annual
election period for a Medicare Advantage plan, except where the
Medicare Advantage plan has discontinued its relationship with a
provider currently furnishing services to the individual. Nothing in
this section shall be construed to authorize an individual to enroll
in a group Medicare supplement policy if the individual does not meet
the eligibility requirements for the group.
(E) The individual demonstrates, in accordance with guidelines
established by the secretary, either of the following:
(i) The organization offering the plan substantially violated a
material provision of the organization's contract under this article
in relation to the individual, including the failure to provide on a
timely basis medically necessary care for which benefits are
available under the plan or the failure to provide the covered care
in accordance with applicable quality standards.
(ii) The organization, or agent or other entity acting on the
organization's behalf, materially misrepresented the plan's
provisions in marketing the plan to the individual.
(F) The individual meets other exceptional conditions as the
secretary may provide.
(3) The individual is 65 years of age or older, is enrolled with a
Program of All-Inclusive Care for the Elderly (PACE) provider under
Section 1894 of the federal Social Security Act, and circumstances
similar to those described in paragraph (2) exist that would permit
discontinuance of the individual's enrollment with the provider, if
the individual were enrolled in a Medicare Advantage plan.
(4) The individual meets both of the following conditions:
(A) The individual is enrolled with any of the following:
(i) An eligible organization under a contract under Section 1876
of the federal Social Security Act (Medicare cost).
(ii) A similar organization operating under demonstration project
authority, effective for periods before April 1, 1999.
(iii) An organization under an agreement under Section 1833(a)(1)
(A) of the federal Social Security Act (health care prepayment plan).
(iv) An organization under a Medicare Select policy.
(B) The enrollment ceases under the same circumstances that would
permit discontinuance of an individual's election of coverage under
paragraph (2) or (3).
(5) The individual is enrolled under a Medicare supplement policy,
and the enrollment ceases because of any of the following
circumstances:
(A) The insolvency of the issuer or bankruptcy of the nonissuer
organization, or other involuntary termination of coverage or
enrollment under the policy.
(B) The issuer of the policy substantially violated a material
provision of the policy.
(C) The issuer, or an agent or other entity acting on the issuer's
behalf, materially misrepresented the policy's provisions in
marketing the policy to the individual.
(6) The individual meets both of the following conditions:
(A) The individual was enrolled under a Medicare supplement policy
and terminates enrollment and subsequently enrolls, for the first
time, with any Medicare Advantage organization under a Medicare
Advantage plan under Medicare Part C, any eligible organization under
a contract under Section 1876 of the federal Social Security Act
(Medicare cost), any similar organization operating under
demonstration project authority, any PACE provider under Section 1894
of the federal Social Security Act, or a Medicare Select policy.
(B) The subsequent enrollment under subparagraph (A) is terminated
by the individual during any period within the first 12 months of
the subsequent enrollment (during which the enrollee is permitted to
terminate the subsequent enrollment under Section 1851(e) of the
federal Social Security Act).
(7) The individual upon first becoming eligible for benefits under
Medicare Part A at 65 years of age enrolls in a Medicare Advantage
plan under Medicare Part C or with a PACE provider under Section 1894
of the federal Social Security Act, and disenrolls from the plan or
program not later than 12 months after the effective date of
enrollment.
(8) The individual while enrolled under a Medicare supplement
policy that covers outpatient prescription drugs enrolls in a
Medicare Part D plan during the initial enrollment period terminates
enrollment in the Medicare supplement policy, and submits evidence of
enrollment in Medicare Part D along with the application for a
policy described in paragraph (4) of subdivision (e).
(c) (1) In the case of an individual described in
paragraph (1) of subdivision (b), the guaranteed issue period begins
on the later of the following two dates and ends on the date that is
63 days after the date the applicable coverage terminates:
(A) The date the individual receives a notice of termination or
cessation of all supplemental health benefits or, if no notice is
received, the date of the notice denying a claim because of a
termination or cessation of benefits.
(B) The date that the applicable coverage terminates or ceases.
(2) In the case of an individual described in paragraphs (2), (3),
(4), (6), and (7) of subdivision (b) whose enrollment is terminated
involuntarily, the guaranteed issue period begins on the date that
the individual receives a notice of termination and ends 63 days
after the date the applicable coverage is terminated.
(3) In the case of an individual described in subparagraph (A) of
paragraph (5) of subdivision (b), the guaranteed issue period begins
on the earlier of the following two dates and ends on the date that
is 63 days after the date the coverage is terminated:
(A) The date that the individual receives a notice of termination,
a notice of the issuer's bankruptcy or insolvency, or other similar
notice if any.
(B) The date that the applicable coverage is terminated.
(4) In the case of an individual described in paragraph (2), (3),
(6), or (7) of, or in subparagraph (B) or (C) of paragraph (5) of,
subdivision (b) who disenrolls voluntarily, the guaranteed issue
period begins on the date that is 60 days before the effective date
of the disenrollment and ends on the date that is 63 days after the
effective date of the disenrollment.
(5) In the case of an individual described in paragraph (8) of
subdivision (b), the guaranteed issue period begins on the date the
individual receives notice pursuant to Section 1882(v)(2)(B) of the
federal Social Security Act from the Medicare supplement issuer
during the 60-day period immediately preceding the initial enrollment
period for Medicare Part D and ends on the date that is 63 days
after the effective date of the individual's coverage under Medicare
Part D.
(6) In the case of an individual described in subdivision (b) who
is not included in this subdivision, the guaranteed issue period
begins on the effective date of disenrollment and ends on the date
that is 63 days after the effective date of disenrollment.
(d) (1) In the case of an individual described in paragraph (6) of
subdivision (b), or deemed to be so described pursuant to this
paragraph, whose enrollment with an organization or provider
described in subparagraph (A) of paragraph (6) of subdivision (b) is
involuntarily terminated within the first 12 months of enrollment and
who, without an intervening enrollment, enrolls with another such
organization or provider, the subsequent enrollment shall be deemed
to be an initial enrollment described in paragraph (6) of subdivision
(b).
(2) In the case of an individual described in paragraph (7) of
subdivision (b), or deemed to be so described pursuant to this
paragraph, whose enrollment with a plan or in a program described in
paragraph (7) of subdivision (b) is involuntarily terminated within
the first 12 months of enrollment and who, without an intervening
enrollment, enrolls in another such plan or program, the subsequent
enrollment shall be deemed to be an initial enrollment described in
paragraph (7) of subdivision (b).
(3) For purposes of paragraphs (6) and (7) of subdivision (b), an
enrollment of an individual with an organization or provider
described in subparagraph (A) of paragraph (6) of subdivision (b), or
with a plan or in a program described in paragraph (7) of
subdivision (b) shall not be deemed to be an initial enrollment under
this paragraph after the two-year period beginning on the date on
which the individual first enrolled with such an organization,
provider, plan, or program.
(e) (1) Under paragraphs (1), (2), (3), (4), and (5) of
subdivision (b), an eligible individual is entitled to a Medicare
supplement policy that has a benefit package classified as Plan A, B,
C, F (including a high deductible Plan F), K, L, M, or N offered by
any issuer.
(2) (A) Under paragraph (6) of subdivision (b), an eligible
individual is entitled to the same Medicare supplement policy in
which he or she was most recently enrolled, if available from the
same issuer. If that policy is not available, the eligible individual
is entitled to a Medicare supplement policy that has a benefit
package classified as Plan A, B, C, F (including a high deductible
Plan F), K, L, M, or N offered by any issuer.
(B) On and after January 1, 2006, an eligible individual described
in this paragraph who was most recently enrolled in a Medicare
supplement policy with an outpatient prescription drug benefit is
entitled to a Medicare supplement policy that is available from the
same issuer but without an outpatient prescription drug benefit or,
at the election of the individual, has a benefit package classified
as a Plan A, B, C, F (including high deductible Plan F), K, L, M, or
N that is offered by any issuer.
(3) Under paragraph (7) of subdivision (b), an eligible individual
is entitled to any Medicare supplement policy offered by any issuer.
(4) Under paragraph (8) of subdivision (b), an eligible individual
is entitled to a Medicare supplement policy that has a benefit
package classified as Plan A, B, C, F (including a high deductible
Plan F), K, L, M, or N and that is offered and is available for
issuance to a new enrollee by the same issuer that issued the
individual's Medicare supplement policy with outpatient prescription
drug coverage.
(f) (1) At the time of an event described in subdivision (b) by
which an individual loses coverage or benefits due to the termination
of a contract or agreement, policy, or plan, the organization that
terminates the contract or agreement, the issuer terminating the
policy, or the administrator of the plan being terminated,
respectively, shall notify the individual of his or her rights under
this section and of the obligations of issuers of Medicare supplement
policies under subdivision (a). The notice shall be communicated
contemporaneously with the notification of termination.
(2) At the time of an event described in subdivision (b) by which
an individual ceases enrollment under a contract or agreement,
policy, or plan, the organization that offers the contract or
agreement, regardless of the basis for the cessation of enrollment,
the issuer offering the policy, or the administrator of the plan,
respectively, shall notify the individual of his or her rights under
this section, and of the obligations of issuers of Medicare
supplement policies under subdivision (a). The notice shall be
communicated within 10 working days of the date the issuer received
notification of disenrollment.
(g) An issuer shall refund any unearned premium that an insured
paid in advance and shall terminate coverage upon the request of an
insured.
SEC. 114. Section 10509.912 of the Insurance Code is amended to
read:
10509.912. Unless otherwise specifically included, this article
shall not apply to transactions involving any of the following:
(a) Direct response solicitations where there is no recommendation
based on information collected from the consumer pursuant to this
article.
(b) Contracts used to fund any of the following:
(1) An employee pension or welfare benefit plan that is covered by
the federal Employee Retirement Income Security Act (ERISA) of 1974
(29 U.S.C. Sec. 1001 et seq.).
(2) A plan described by Section 401(a), 401(k), 403(b), 408(k), or
408(p) of the Internal Revenue Code (IRC), as amended, if
established or maintained by an employer.
(3) A government or church plan defined in Section 414 of the IRC,
a government or church welfare benefit plan, or a deferred
compensation plan of a state or local government or tax-exempt
organization under Section 457 of the IRC.
(4) A nonqualified deferred compensation arrangement established
or maintained by an employer or plan sponsor.
(5) Settlements of or assumptions of liabilities associated with
personal injury litigation or any dispute or claim resolution
process.
(6) Formal prepaid funeral contracts.
SEC. 115. Section 11780.5 of the Insurance Code is amended to
read:
11780.5. (a) The fund may also insure a California employer
against his or her liability for workers' compensation benefits,
under the law of any other state, for California employees
temporarily working outside of California on a specific assignment if
the fund insures the employer's other employees who work within
California.
(b) (1) The fund is only authorized under this subdivision to
insure an employer whose principal place of business is in
California, provided the majority of the employer's operations and
employees are located within California, against his or her liability
for workers' compensation benefits, under the law of any other
state, if the fund insures the employer's employees who work within
California.
(2) The fund is only authorized pursuant to this subdivision to
contract as a reinsurer with a ceding insurer that has responded to a
request for proposal from the fund and is admitted to transact
workers' compensation insurance in California and in the out-of-state
jurisdiction where the non-California employees are located. The
fund may only contract for purposes of this subdivision if the ceding
insurer meets all of the following criteria:
(A) The insurer has an A minus (A-) rating or better from A.M.
Best Company.
(B) The insurer has substantial prior experience in transacting
workers' compensation business on another insurer's behalf.
(C) The insurer has a minimum surplus of one hundred million
dollars ($100,000,000).
(c) On or before March 1, 2015, the Department of Insurance shall
provide to the Secretary of the Senate and Chief Clerk of the
Assembly, pursuant to Section 9795 of the Government Code, a report
assessing the experience of the fund that is authorized pursuant to
subdivision (b) and shall make recommendations concerning its
continuation, limitation, or expansion with special attention to the
extent of advantages this practice offers California employers, the
California workers' compensation marketplace, and the impact of this
class of insurance, whether pro or con, on the fund, its management,
and the California marketplace. The report shall be posted on the
Department of Insurance Internet Web site upon completion. The costs
incurred by the Department of Insurance in the assessment, writing,
and publication of this report shall be provided by the fund.
(d) The fund shall not initiate paid advertising or solicit
sponsorship of advertising campaigns to market or promote to
prospective insureds the ability to insure qualified employers under
the law of any other state.
(e) Subdivisions (b), (c), and (d) shall be operative only until
December 31, 2016.
SEC. 116. Section 226.8 of the Labor Code is amended to read:
226.8. (a) It is unlawful for any person or employer to engage in
any of the following activities:
(1) Willful misclassification of an individual as an independent
contractor.
(2) Charging an individual who has been willfully misclassified as
an independent contractor a fee, or making any deductions from
compensation, for any purpose, including for goods, materials, space
rental, services, government licenses, repairs, equipment
maintenance, or fines arising from the individual's employment where
any of the acts described in this paragraph would have violated the
law if the individual had not been misclassified.
(b) If the Labor and Workforce Development Agency or a court
issues a determination that a person or employer has engaged in any
of the enumerated violations of subdivision (a), the person or
employer shall be subject to a civil penalty of not less than five
thousand dollars ($5,000) and not more than fifteen thousand dollars
($15,000) for each violation, in addition to any other penalties or
fines permitted by law.
(c) If the Labor and Workforce Development Agency or a court
issues a determination that a person or employer has engaged in any
of the enumerated violations of subdivision (a) and the person or
employer has engaged in or is engaging in a pattern or practice of
these violations, the person or employer shall be subject to a civil
penalty of not less than ten thousand dollars ($10,000) and not more
than twenty-five thousand dollars ($25,000) for each violation, in
addition to any other penalties or fines permitted by law.
(d) (1) If the Labor and Workforce Development Agency or a court
issues a determination that a person or employer that is a licensed
contractor pursuant to the Contractors' State License Law has
violated subdivision (a), the agency, in addition to any other remedy
that has been ordered, shall transmit a certified copy of the order
to the Contractors' State License Board.
(2) The registrar of the Contractors' State License Board shall
initiate disciplinary action against a licensee within 30 days of
receiving a certified copy of an agency or court order that resulted
in disbarment pursuant to paragraph (1).
(e) If the Labor and Workforce Development Agency or a court
issues a determination that a person or employer has violated
subdivision (a), the agency or court, in addition to any other remedy
that has been ordered, shall order the person or employer to display
prominently on its Internet Web site, in an area which is accessible
to all employees and the general public, or, if the person or
employer does not have an Internet Web site, to display prominently
in an area that is accessible to all employees and the general public
at each location where a violation of subdivision (a) occurred, a
notice that sets forth all of the following:
(1) That the Labor and Workforce Development Agency or a court, as
applicable, has found that the person or employer has committed a
serious violation of the law by engaging in the willful
misclassification of employees.
(2) That the person or employer has changed its business practices
in order to avoid committing further violations of this section.
(3) That any employee who believes that he or she is being
misclassified as an independent contractor may contact the Labor and
Workforce Development Agency. The notice shall include the mailing
address, email address, and telephone number of the agency.
(4) That the notice is being posted pursuant to a state order.
(f) In addition to including the information specified in
subdivision (e), a person or employer also shall satisfy the
following requirements in preparing the notice:
(1) An officer shall sign the notice.
(2) It shall post the notice for one year commencing with the date
of the final decision and order.
(g) (1) In accordance with the procedures specified in Sections 98
to 98.2, inclusive, the Labor Commissioner may issue a determination
that a person or employer has violated subdivision (a).
(2) If, upon inspection or investigation, the Labor Commissioner
determines that a person or employer has violated subdivision (a),
the Labor Commissioner may issue a citation to assess penalties set
forth in subdivisions (b) and (c) in addition to any other penalties
or damages that are otherwise available at law. The procedures for
issuing, contesting, and enforcing judgments shall be the same as
those set forth in Section 1197.1.
(3) The Labor Commissioner may enforce this section pursuant to
Section 98 or in a civil suit.
(h) Any administrative or civil penalty pursuant to subdivision
(b) or (c) or disciplinary action pursuant to subdivision (d) or (e)
shall remain in effect against any successor corporation, owner, or
business entity that satisfies both of the following:
(1) Has one or more of the same principals or officers as the
person or employer subject to the penalty or action.
(2) Is engaged in the same or a similar business as the person or
employer subject to the penalty or action.
(i) For purposes of this section, the following definitions apply:
(1) "Determination" means an order, decision, award, or citation
issued by an agency or a court of competent jurisdiction for which
the time to appeal has expired and for which no appeal is pending.
(2) "Labor and Workforce Development Agency" means the Labor and
Workforce Development Agency or any of its departments, divisions,
commissions, boards, or agencies.
(3) "Officer" means the chief executive officer, president, any
vice president in charge of a principal business unit, division, or
function, or any other officer of the corporation who performs a
policymaking function. If the employer is a partnership, "officer"
means a partner. If the employer is a sole proprietor, "officer"
means the owner.
(4) "Willful misclassification" means avoiding employee status for
an individual by voluntarily and knowingly misclassifying that
individual as an independent contractor.
(j) Nothing in this section is intended to limit any rights or
remedies otherwise available at law.
SEC. 117. Section 1308.10 of the Labor Code is amended to read:
1308.10. (a) Prior to the employment of a minor under the age of
16 years in any of the circumstances listed in subdivision (a) of
Section 1308.5, the Labor Commissioner may issue a temporary permit
authorizing employment of the minor to enable a parent or guardian of
the minor to meet the requirement for a permit under subdivision (a)
of Section 1308.5 and to establish a trust account for the minor or
to produce the documentation required by the Labor Commissioner for
the issuance of a permit under Section 1308.5, subject to all of the
following conditions:
(1) A temporary permit shall be valid for a period not to exceed
10 days from the date of issuance.
(2) A temporary permit shall not be issued for the employment of a
minor if the minor's parent or guardian has previously applied for
or been issued a permit by the Labor Commissioner pursuant to Section
1308.5 or a temporary permit pursuant to this section for employment
of the minor.
(3) The Division of Labor Standards Enforcement shall prepare and
make available on its Internet Web site the application form for a
temporary permit. An applicant for a temporary permit shall submit a
completed application and application fee online to the division.
Upon receipt of the completed application and fee, the division shall
immediately issue a temporary permit.
(b) The Labor Commissioner shall deposit all fees for temporary
permits received into the Entertainment Work Permit Fund, which is
hereby created in the State Treasury. The funds deposited in the
Entertainment Work Permit Fund shall be available to the Labor
Commissioner, upon appropriation by the Legislature, to pay for the
costs of administration of the online temporary minor's entertainment
work permit program and to repay any loan from the Labor Enforcement
and Compliance Fund made pursuant to subdivision (c).
(c) The Labor Commissioner is authorized on a one-time basis to
borrow up to two hundred fifty thousand dollars ($250,000) from the
Labor Enforcement and Compliance Fund, as established by subdivision
(e) of Section 62.5, for deposit in the Entertainment and Compliance
Fund to cover the one-time startup costs related to the temporary
permit program. The loan shall be repaid to the Labor Enforcement and
Compliance Fund as soon as sufficient funds exist in the
Entertainment Work Permit Fund to repay the loan without compromising
the operations of the temporary work permit program.
(d) The Labor Commissioner shall set forth the fee in an amount
sufficient to pay for these costs, but not to exceed fifty dollars
($50).
SEC. 118. Section 21 of the Penal Code is amended and renumbered
to read:
29.2. (a) The intent or intention is manifested by the
circumstances connected with the offense.
(b) In the guilt phase of a criminal action or a juvenile
adjudication hearing, evidence that the accused lacked the capacity
or ability to control his or her conduct for any reason shall not be
admissible on the issue of whether the accused actually had any
mental state with respect to the commission of any crime. This
subdivision is not applicable to Section 26.
SEC. 119. Section 22 of the Penal Code is amended and renumbered
to read:
29.4. (a) No act committed by a person while in a state of
voluntary intoxication is less criminal by reason of his or her
having been in that condition. Evidence of voluntary intoxication
shall not be admitted to negate the capacity to form any mental
states for the crimes charged, including, but not limited to,
purpose, intent, knowledge, premeditation, deliberation, or malice
aforethought, with which the accused committed the act.
(b) Evidence of voluntary intoxication is admissible solely on the
issue of whether or not the defendant actually formed a required
specific intent, or, when charged with murder, whether the defendant
premeditated, deliberated, or harbored express malice aforethought.
(c) Voluntary intoxication includes the voluntary ingestion,
injection, or taking by any other means of any intoxicating liquor,
drug, or other substance.
SEC. 120. Section 25.5 of the Penal Code is amended and renumbered
to read:
29.8. In any criminal proceeding in which a plea of not guilty by
reason of insanity is entered, this defense shall not be found by
the trier of fact solely on the basis of a personality or adjustment
disorder, a seizure disorder, or an addiction to, or abuse of,
intoxicating substances. This section shall apply only to persons who
utilize this defense on or after the operative date of the section.
SEC. 121. 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, any court
with jurisdiction over a criminal matter may issue orders, including,
but not limited to, the following:
(1) Any 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 any person described in this section shall have
no communication whatsoever with any specified witness or any victim,
except through an attorney under any 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) Any 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) Any 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.
(b) Any person violating any 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, any person
so held in contempt shall be entitled to credit for any punishment
imposed therein against any sentence imposed upon conviction of an
offense described in Section 136.1. Any conviction or acquittal for
any 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) Every 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 any 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, any
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) Any 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) 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.
SEC. 122. Section 243 of the Penal Code is amended to read:
243. (a) A battery is punishable by a fine not exceeding two
thousand dollars ($2,000), or by imprisonment in a county jail not
exceeding six months, or by both that fine and imprisonment.
(b) When a battery is committed against the person of a peace
officer, custodial officer, firefighter, emergency medical
technician, lifeguard, security officer, custody assistant, process
server, traffic officer, code enforcement officer, animal control
officer, or search and rescue member engaged in the performance of
his or her duties, whether on or off duty, including when the peace
officer is in a police uniform and is concurrently performing the
duties required of him or her as a peace officer while also employed
in a private capacity as a part-time or casual private security guard
or patrolman, or a nonsworn employee of a probation department
engaged in the performance of his or her duties, whether on or off
duty, or a physician or nurse engaged in rendering emergency medical
care outside a hospital, clinic, or other health care facility, and
the person committing the offense knows or reasonably should know
that the victim is a peace officer, custodial officer, firefighter,
emergency medical technician, lifeguard, security officer, custody
assistant, process server, traffic officer, code enforcement officer,
animal control officer, or search and rescue member engaged in the
performance of his or her duties, nonsworn employee of a probation
department, or a physician or nurse engaged in rendering emergency
medical care, the battery is punishable by a fine not exceeding two
thousand dollars ($2,000), or by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment.
(c) (1) When a battery is committed against a custodial officer,
firefighter, emergency medical technician, lifeguard, process server,
traffic officer, or animal control officer engaged in the
performance of his or her duties, whether on or off duty, or a
nonsworn employee of a probation department engaged in the
performance of his or her duties, whether on or off duty, or a
physician or nurse engaged in rendering emergency medical care
outside a hospital, clinic, or other health care facility, and the
person committing the offense knows or reasonably should know that
the victim is a nonsworn employee of a probation department,
custodial officer, firefighter, emergency medical technician,
lifeguard, process server, traffic officer, or animal control officer
engaged in the performance of his or her duties, or a physician or
nurse engaged in rendering emergency medical care, and an injury is
inflicted on that victim, the battery is punishable by a fine of not
more than two thousand dollars ($2,000), by imprisonment in a county
jail not exceeding one year, or by both that fine and imprisonment,
or by imprisonment pursuant to subdivision (h) of Section 1170 for 16
months or two or three years.
(2) When the battery specified in paragraph (1) is committed
against a peace officer engaged in the performance of his or her
duties, whether on or off duty, including when the peace officer is
in a police uniform and is concurrently performing the duties
required of him or her as a peace officer while also employed in a
private capacity as a part-time or casual private security guard or
patrolman and the person committing the offense knows or reasonably
should know that the victim is a peace officer engaged in the
performance of his or her duties, the battery is punishable by a fine
of not more than ten thousand dollars ($10,000), or by imprisonment
in a county jail not exceeding one year or pursuant to subdivision
(h) of Section 1170 for 16 months or two or three years, or by both
that fine and imprisonment.
(d) When a battery is committed against any person and serious
bodily injury is inflicted on the person, the battery is punishable
by imprisonment in a county jail not exceeding one year or
imprisonment pursuant to subdivision (h) of Section 1170 for two,
three, or four years.
(e) (1) When a battery is committed against a spouse, a person
with whom the defendant is cohabiting, a person who is the parent of
the defendant's child, former spouse, fiancé, or fiancée, or a person
with whom the defendant currently has, or has previously had, a
dating or engagement relationship, the battery is punishable by a
fine not exceeding two thousand dollars ($2,000), or by imprisonment
in a county jail for a period of not more than one year, or by both
that fine and imprisonment. If probation is granted, or the execution
or imposition of the sentence is suspended, it shall be a condition
thereof that the defendant participate in, for no less than one year,
and successfully complete, a batterer's treatment program, as
described in Section 1203.097, or if none is available, another
appropriate counseling program designated by the court. However, this
provision shall not be construed as requiring a city, a county, or a
city and county to provide a new program or higher level of service
as contemplated by Section 6 of Article XIII B of the California
Constitution.
(2) Upon conviction of a violation of this subdivision, if
probation is granted, 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 five thousand dollars ($5,000).
(B) 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.
For any order to pay a fine, make payments to a battered women's
shelter, or pay restitution as a condition of probation under this
subdivision, 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. 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 this section, 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 section, until all separate property of the
offending spouse is exhausted.
(3) Upon conviction of a violation of this subdivision, if
probation is granted or the execution or imposition of the sentence
is suspended and the person has been previously convicted of a
violation of this subdivision and sentenced under paragraph (1), the
person shall be imprisoned for not less than 48 hours in addition to
the conditions in paragraph (1). However, the court, upon a showing
of good cause, may elect not to impose the mandatory minimum
imprisonment as required by this subdivision and may, under these
circumstances, grant probation or order the suspension of the
execution or imposition of the sentence.
(4) The Legislature finds and declares that these specified crimes
merit special consideration when imposing a sentence so as to
display society's condemnation for these crimes of violence upon
victims with whom a close relationship has been formed.
(f) As used in this section:
(1) "Peace officer" means any person defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2.
(2) "Emergency medical technician" means a person who is either an
EMT-I, EMT-II, or EMT-P (paramedic), and possesses a valid
certificate or license in accordance with the standards of Division
2.5 (commencing with Section 1797) of the Health and Safety Code.
(3) "Nurse" means a person who meets the standards of Division 2.5
(commencing with Section 1797) of the Health and Safety Code.
(4) "Serious bodily injury" means a serious impairment of physical
condition, including, but not limited to, the following: loss of
consciousness, concussion, bone fracture, protracted loss or
impairment of function of any bodily member or organ, a wound
requiring extensive suturing, and serious disfigurement.
(5) "Injury" means any physical injury which requires professional
medical treatment.
(6) "Custodial officer" means any person who has the
responsibilities and duties described in Section 831 and who is
employed by a law enforcement agency of any city or county or who
performs those duties as a volunteer.
(7) "Lifeguard" means a person defined in paragraph (5) of
subdivision (d) of Section 241.
(8) "Traffic officer" means any person employed by a city, county,
or city and county to monitor and enforce state laws and local
ordinances relating to parking and the operation of vehicles.
(9) "Animal control officer" means any person employed by a city,
county, or city and county for purposes of enforcing animal control
laws or regulations.
(10) "Dating relationship" means frequent, intimate associations
primarily characterized by the expectation of affectional or sexual
involvement independent of financial considerations.
(11) (A) "Code enforcement officer" means any person who is not
described in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2 and who is employed by any governmental subdivision, public or
quasi-public corporation, public agency, public service corporation,
any town, city, county, or municipal corporation, whether
incorporated or chartered, who has enforcement authority for health,
safety, and welfare requirements, and whose duties include
enforcement of any statute, rules, regulations, or standards, and who
is authorized to issue citations or file formal complaints.
(B) "Code enforcement officer" also includes any person who is
employed by the Department of Housing and Community Development who
has enforcement authority for health, safety, and welfare
requirements pursuant to the Employee Housing Act (Part 1 (commencing
with Section 17000) of Division 13 of the Health and Safety Code);
the State Housing Law (Part 1.5 (commencing with Section 17910) of
Division 13 of the Health and Safety Code); the Manufactured Housing
Act of 1980 (Part 2 (commencing with Section 18000) of Division 13 of
the Health and Safety Code); the Mobilehome Parks Act (Part 2.1
(commencing with Section 18200) of Division 13 of the Health and
Safety Code); and the Special Occupancy Parks Act (Part 2.3
(commencing with Section 18860) of Division 13 of the Health and
Safety Code).
(12) "Custody assistant" means any person who has the
responsibilities and duties described in Section 831.7 and who is
employed by a law enforcement agency of any city, county, or city and
county.
(13) "Search and rescue member" means any person who is part of an
organized search and rescue team managed by a government agency.
(14) "Security officer" means any person who has the
responsibilities and duties described in Section 831.4 and who is
employed by a law enforcement agency of any city, county, or city and
county.
(g) It is the intent of the Legislature by amendments to this
section at the 1981-82 and 1983-84 Regular Sessions to abrogate the
holdings in cases such as People v. Corey (1978) 21 Cal.3d 738 and
Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, and to reinstate
prior judicial interpretations of this section as they relate to
criminal sanctions for battery on peace officers who are employed, on
a part-time or casual basis, while wearing a police uniform as
private security guards or patrolmen and to allow the exercise of
peace officer powers concurrently with that employment.
SEC. 123. Section 336.5 of the Penal Code is amended to read:
336.5. Gaming chips may be used on the gaming floor by a patron
of a gambling establishment, as defined in subdivision (o) of Section
19805 of the Business and Professions Code, to pay for food and
beverage items that are served at the table.
SEC. 124. Section 429 of the Penal Code is amended to read:
429. Any provider of telecommunications services in this state
that intentionally fails to collect or remit, as may be required, the
annual fee imposed pursuant to Section 431 of the Public Utilities
Code, the universal telephone service surcharge imposed pursuant to
Section 879 or 879.5 of the Public Utilities Code, the fee for filing
an application for a certificate of public convenience and necessity
as provided in Section 1904 of the Public Utilities Code, or the
surcharge imposed pursuant to subdivision (g) of Section 2881 of the
Public Utilities Code, whether imposed on the provider or measured by
the provider's service charges, is guilty of a misdemeanor.
SEC. 125. Section 597.4 of the Penal Code is amended to read:
597.4. (a) It shall be unlawful for any person to willfully do
either of the following:
(1) Sell or give away as part of a commercial transaction a live
animal on any street, highway, public right-of-way, parking lot,
carnival, or boardwalk.
(2) Display or offer for sale, or display or offer to give away as
part of a commercial transaction, a live animal, if the act of
selling or giving away the live animal is to occur on any street,
highway, public right-of-way, parking lot, carnival, or boardwalk.
(b) (1) A person who violates this section for the first time
shall be guilty of an infraction punishable by a fine not to exceed
two hundred fifty dollars ($250).
(2) A person who violates this section for the first time and by
that violation either causes or permits any animal to suffer or be
injured, or causes or permits any animal to be placed in a situation
in which its life or health may be endangered, shall be guilty of a
misdemeanor.
(3) A person who violates this section for a second or subsequent
time shall be guilty of a misdemeanor.
(c) A person who is guilty of a misdemeanor violation of this
section shall be punishable by a fine not to exceed one thousand
dollars ($1,000) per violation. The court shall weigh the gravity of
the violation in setting the fine.
(d) A notice describing the charge and the penalty for a violation
of this section may be issued by any peace officer, animal control
officer, as defined in Section 830.9, or humane officer qualified
pursuant to Section 14502 or 14503 of the Corporations Code.
(e) This section shall not apply to the following:
(1) Events held by 4-H Clubs, Junior Farmers Clubs, or Future
Farmers Clubs.
(2) The California Exposition and State Fair, district
agricultural association fairs, or county fairs.
(3) Stockyards with respect to which the Secretary of the United
States Department of Agriculture has posted notice that the
stockyards are regulated by the federal Packers and Stockyards Act,
1921 (7 U.S.C. Sec. 181 et seq.).
(4) The sale of cattle on consignment at any public cattle sales
market, the sale of sheep on consignment at any public sheep sales
market, the sale of swine on consignment at any public swine sales
market, the sale of goats on consignment at any public goat sales
market, and the sale of equines on consignment at any public equine
sales market.
(5) Live animal markets regulated under Section 597.3.
(6) A public animal control agency or shelter, society for the
prevention of cruelty to animals shelter, humane society shelter, or
rescue group regulated under Division 14 (commencing with Section
30501) of the Food and Agricultural Code. For purposes of this
section, "rescue group" is a not-for-profit entity whose primary
purpose is the placement of dogs, cats, or other animals that have
been removed from a public animal control agency or shelter, society
for the prevention of cruelty to animals shelter, or humane society
shelter, or that have been surrendered or relinquished to the entity
by the previous owner.
(7) The sale of fish or shellfish, live or dead, from a fishing
vessel or registered aquaculture facility, at a pier or wharf, or at
a farmer's market by any licensed commercial fisherman or an owner or
employee of a registered aquaculture facility to the public for
human consumption.
(8) A cat show, dog show, or bird show, provided that all of the
following circumstances exist:
(A) The show is validly permitted by the city or county in which
the show is held.
(B) The show's sponsor or permittee ensures compliance with all
federal, state, and local animal welfare and animal control laws.
(C) The participant has written documentation of the payment of a
fee for the entry of his or her cat, dog, or bird in the show.
(D) The sale of a cat, dog, or bird occurs only on the premises
and within the confines of the show.
(E) The show is a competitive event where the cats, dogs, or birds
are exhibited and judged by an established standard or set of ideals
established for each breed or species.
(9) A pet store as defined in subdivision (i) of Section 122350 of
the Health and Safety Code.
(f) Nothing in this section shall be construed to in any way limit
or affect the application or enforcement of any other law that
protects animals or the rights of consumers, including, but not
limited to, the Lockyer-Polanco-Farr Pet Protection Act contained in
Article 2 (commencing with Section 122125) of Chapter 5 of Part 6 of
Division 105 of the Health and Safety Code, or Sections 597 and 597l
of this code.
(g) Nothing in this section limits or authorizes any act or
omission that violates Section 597 or 597l, or any other local,
state, or federal law. The procedures set forth in this section shall
not apply to any civil violation of any other local, state, or
federal law that protects animals or the rights of consumers, or to a
violation of Section 597 or 597l, which is cited or prosecuted
pursuant to one or both of those sections, or to a violation of any
other local, state, or federal law that is cited or prosecuted
pursuant to that law.
SEC. 126. Section 629.62 of the Penal Code is amended to read:
629.62. (a) The Attorney General shall prepare and submit an
annual report to the Legislature, the Judicial Council, and the
Director of the Administrative Office of the United States Courts on
interceptions conducted under the authority of this chapter during
the preceding year. Information for this report shall be provided to
the Attorney General by any prosecutorial agency seeking an order
pursuant to this chapter.
(b) The report shall include all of the following data:
(1) The number of orders or extensions applied for.
(2) The kinds of orders or extensions applied for.
(3) The fact that the order or extension was granted as applied
for, was modified, or was denied.
(4) The number of wire or electronic communication devices that
are the subject of each order granted.
(5) The period of interceptions authorized by the order, and the
number and duration of any extensions of the order.
(6) The offense specified in the order or application, or
extension of an order.
(7) The identity of the applying law enforcement officer and
agency making the application and the person authorizing the
application.
(8) The nature of the facilities from which or the place where
communications were to be intercepted.
(9) A general description of the interceptions made under the
order or extension, including (A) the number of persons whose
communications were intercepted, (B) the number of communications
intercepted, (C) the percentage of incriminating communications
intercepted and the percentage of other communications intercepted,
and (D) the approximate nature, amount, and cost of the manpower and
other resources used in the interceptions.
(10) The number of arrests resulting from interceptions made under
the order or extension, and the offenses for which arrests were
made.
(11) The number of trials resulting from the interceptions.
(12) The number of motions to suppress made with respect to the
interceptions, and the number granted or denied.
(13) The number of convictions resulting from the interceptions
and the offenses for which the convictions were obtained and a
general assessment of the importance of the interceptions.
(14) Except with regard to the initial report required by this
section, the information required by paragraphs (9) to (13),
inclusive, with respect to
orders or extensions obtained in a preceding calendar year.
(15) The date of the order for service of inventory made pursuant
to Section 629.68, confirmation of compliance with the order, and the
number of notices sent.
(16) Other data that the Legislature, the Judicial Council, or the
Director of the Administrative Office of the United States Courts
shall require.
(c) The annual report shall be filed no later than April of each
year, and shall also include a summary analysis of the data reported
pursuant to subdivision (b). The Attorney General may issue
regulations prescribing the content and form of the reports required
to be filed pursuant to this section by any prosecutorial agency
seeking an order to intercept wire or electronic communications.
(d) The Attorney General shall, upon the request of an individual
making an application, provide any information known to him or her as
a result of these reporting requirements that would enable the
individual making an application to comply with paragraph (6) of
subdivision (a) of Section 629.50.
SEC. 127. Section 830.5 of the Penal Code is amended to read:
830.5. The following persons are peace officers whose authority
extends to any place in the state while engaged in the performance of
the duties of their respective employment and for the purpose of
carrying out the primary function of their employment or as required
under Sections 8597, 8598, and 8617 of the Government Code, as
amended by Section 44 of Chapter 1124 of the Statutes of 2002. Except
as specified in this section, these peace officers may carry
firearms only if authorized and under those terms and conditions
specified by their employing agency:
(a) A parole officer of the Department of Corrections and
Rehabilitation, or the Department of Corrections and Rehabilitation,
Division of Juvenile Parole Operations, probation officer, deputy
probation officer, or a board coordinating parole agent employed by
the Juvenile Parole Board. Except as otherwise provided in this
subdivision, the authority of these parole or probation officers
shall extend only as follows:
(1) To conditions of parole, probation, or postrelease community
supervision by any person in this state on parole, probation, or
postrelease community supervision.
(2) To the escape of any inmate or ward from a state or local
institution.
(3) To the transportation of persons on parole, probation, or
postrelease community supervision.
(4) To violations of any penal provisions of law which are
discovered while performing the usual or authorized duties of his or
her employment.
(5) (A) To the rendering of mutual aid to any other law
enforcement agency.
(B) For the purposes of this subdivision, "parole agent" shall
have the same meaning as parole officer of the Department of
Corrections and Rehabilitation or of the Department of Corrections
and Rehabilitation, Division of Juvenile Facilities.
(C) Any parole officer of the Department of Corrections and
Rehabilitation, or the Department of Corrections and Rehabilitation,
Division of Juvenile Parole Operations, is authorized to carry
firearms, but only as determined by the director on a case-by-case or
unit-by-unit basis and only under those terms and conditions
specified by the director or chairperson. The Department of
Corrections and Rehabilitation, Division of Juvenile Facilities,
shall develop a policy for arming peace officers of the Department of
Corrections and Rehabilitation, Division of Juvenile Facilities, who
comprise "high-risk transportation details" or "high-risk escape
details" no later than June 30, 1995. This policy shall be
implemented no later than December 31, 1995.
(D) The Department of Corrections and Rehabilitation, Division of
Juvenile Facilities, shall train and arm those peace officers who
comprise tactical teams at each facility for use during "high-risk
escape details."
(b) A correctional officer employed by the Department of
Corrections and Rehabilitation, or of the Department of Corrections
and Rehabilitation, Division of Juvenile Facilities, having custody
of wards or any employee of the Department of Corrections and
Rehabilitation designated by the secretary or any correctional
counselor series employee of the Department of Corrections and
Rehabilitation or any medical technical assistant series employee
designated by the secretary or designated by the secretary and
employed by the State Department of Mental Health or any employee of
the Board of Parole Hearings designated by the secretary or employee
of the Department of Corrections and Rehabilitation, Division of
Juvenile Facilities, designated by the secretary or any
superintendent, supervisor, or employee having custodial
responsibilities in an institution operated by a probation
department, or any transportation officer of a probation department.
(c) The following persons may carry a firearm while not on duty: a
parole officer of the Department of Corrections and Rehabilitation,
or the Department of Corrections and Rehabilitation, Division of
Juvenile Facilities, a correctional officer or correctional counselor
employed by the Department of Corrections and Rehabilitation, or an
employee of the Department of Corrections and Rehabilitation,
Division of Juvenile Facilities, having custody of wards or any
employee of the Department of Corrections and Rehabilitation
designated by the secretary. A parole officer of the Juvenile Parole
Board may carry a firearm while not on duty only when so authorized
by the chairperson of the board and only under the terms and
conditions specified by the chairperson. Nothing in this section
shall be interpreted to require licensure pursuant to Section 25400.
The director or chairperson may deny, suspend, or revoke for good
cause a person's right to carry a firearm under this subdivision.
That person shall, upon request, receive a hearing, as provided for
in the negotiated grievance procedure between the exclusive employee
representative and the Department of Corrections and Rehabilitation,
Division of Juvenile Facilities, or the Juvenile Parole Board, to
review the director's or the chairperson's decision.
(d) Persons permitted to carry firearms pursuant to this section,
either on or off duty, shall meet the training requirements of
Section 832 and shall qualify with the firearm at least quarterly. It
is the responsibility of the individual officer or designee to
maintain his or her eligibility to carry concealable firearms off
duty. Failure to maintain quarterly qualifications by an officer or
designee with any concealable firearms carried off duty shall
constitute good cause to suspend or revoke that person's right to
carry firearms off duty.
(e) The Department of Corrections and Rehabilitation shall allow
reasonable access to its ranges for officers and designees of either
department to qualify to carry concealable firearms off duty. The
time spent on the range for purposes of meeting the qualification
requirements shall be the person's own time during the person's
off-duty hours.
(f) The secretary shall promulgate regulations consistent with
this section.
(g) "High-risk transportation details" and "high-risk escape
details" as used in this section shall be determined by the
secretary, or his or her designee. The secretary, or his or her
designee, shall consider at least the following in determining
"high-risk transportation details" and "high-risk escape details":
protection of the public, protection of officers, flight risk, and
violence potential of the wards.
(h) "Transportation detail" as used in this section shall include
transportation of wards outside the facility, including, but not
limited to, court appearances, medical trips, and interfacility
transfers.
(i) This section is operative January 1, 2012.
SEC. 128. Section 1370 of the Penal Code, as added by Section 2 of
Chapter 654 of the Statutes of 2011, is amended to read:
1370. (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, the trial or
judgment shall be suspended until the person becomes mentally
competent.
(i) In the meantime, the court shall order that the mentally
incompetent defendant be delivered by the sheriff to a state hospital
for the care and treatment of the mentally disordered, or to any
other available public or private treatment facility approved by the
community program director that will promote the defendant's speedy
restoration to mental competence, or placed on outpatient status as
specified in 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 mentally
disordered 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 mentally disordered 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 the filing of a certificate of restoration to competence,
the court shall order that the defendant be returned to court in
accordance with Section 1372. The court shall transmit a copy of its
order to the community program director or a designee.
(D) A defendant charged with a violent felony may not be delivered
to a state hospital or treatment facility pursuant to this
subdivision unless the state hospital or treatment facility has a
secured perimeter or a locked and controlled treatment facility, and
the judge determines that the public safety will be protected.
(E) For purposes of this paragraph, "violent felony" means an
offense specified in subdivision (c) of Section 667.5.
(F) A defendant charged with a violent felony may be placed on
outpatient status, as specified in Section 1600, only if the court
finds that the placement will not pose a danger to the health or
safety of others. If the court places a defendant charged with a
violent felony on outpatient status, as specified in Section 1600,
the court must serve copies of the placement order on defense
counsel, the sheriff in the county where the defendant will be placed
and the district attorney for the county in which the violent felony
charges are pending against the defendant.
(2) Prior to making the order directing that the defendant be
confined in a state hospital or other treatment facility or placed on
outpatient status, the court shall proceed as follows:
(A) The court shall order the community program director or a
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 required to undergo outpatient treatment, or
committed to a state hospital or to any other treatment facility. No
person shall be admitted to a state hospital or other treatment
facility or placed on outpatient status under this section without
having been evaluated by the community program director or a
designee.
(B) The court shall hear and determine whether the defendant lacks
capacity to make decisions regarding the administration of
antipsychotic medication, and shall proceed as follows:
(i) The court shall hear and determine whether any of the
following is true:
(I) The defendant lacks capacity to make decisions regarding
antipsychotic medication, the defendant's mental disorder requires
medical treatment with antipsychotic medication, and, if the
defendant's mental disorder is not treated with antipsychotic
medication, it is probable that serious harm to the physical or
mental health of the patient will result. Probability of serious harm
to the physical or mental health of the defendant requires evidence
that the defendant is presently suffering adverse effects to his or
her physical or mental health, or the defendant has previously
suffered these effects as a result of a mental disorder and his or
her condition is substantially deteriorating. The fact that a
defendant has a diagnosis of a mental disorder does not alone
establish probability of serious harm to the physical or mental
health of the defendant.
(II) The defendant is a danger to others, in that the defendant
has inflicted, attempted to inflict, or made a serious threat of
inflicting substantial physical harm on another while in custody, or
the defendant had inflicted, attempted to inflict, or made a serious
threat of inflicting substantial physical harm on another that
resulted in his or her being taken into custody, and the defendant
presents, as a result of mental disorder or mental defect, a
demonstrated danger of inflicting substantial physical harm on
others. Demonstrated danger may be based on an assessment of the
defendant's present mental condition, including a consideration of
past behavior of the defendant within six years prior to the time the
defendant last attempted to inflict, inflicted, or threatened to
inflict substantial physical harm on another, and other relevant
evidence.
(III) The people have charged the defendant with a serious crime
against the person or property, involuntary administration of
antipsychotic medication is substantially likely to render the
defendant competent to stand trial, the medication is unlikely to
have side effects that interfere with the defendant's ability to
understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a reasonable manner, less
intrusive treatments are unlikely to have substantially the same
results, and antipsychotic medication is in the patient's best
medical interest in light of his or her medical condition.
(ii) If the court finds any of the conditions described in clause
(i) to be true, the court shall issue an order authorizing the
treatment facility to involuntarily administer antipsychotic
medication to the defendant when and as prescribed by the defendant's
treating psychiatrist. The court shall not order involuntary
administration of psychotropic medication under subclause (III) of
clause (i) unless the court has first found that the defendant does
not meet the criteria for involuntary administration of psychotropic
medication under subclause (I) of clause (i) and does not meet the
criteria under subclause (II) of clause (i).
(iii) In all cases, the treating hospital, facility, or program
may administer medically appropriate antipsychotic medication
prescribed by a psychiatrist in an emergency as described in
subdivision (m) of Section 5008 of the Welfare and Institutions Code.
(iv) If the court has determined that the defendant has the
capacity to make decisions regarding antipsychotic medication, and if
the defendant, with advice of his or her counsel, consents, the
court order of commitment shall include confirmation that
antipsychotic medication may be given to the defendant as prescribed
by a treating psychiatrist pursuant to the defendant's consent. The
commitment order shall also indicate that, if the defendant withdraws
consent for antipsychotic medication, after the treating
psychiatrist complies with the provisions of subparagraph (C), the
defendant shall be returned to court for a hearing in accordance with
subparagraphs (C) and (D) regarding whether antipsychotic medication
shall be administered involuntarily.
(v) If the court has determined that the defendant has the
capacity to make decisions regarding antipsychotic medication and if
the defendant, with advice from his or her counsel, does not consent,
the court order for commitment shall indicate that, after the
treating psychiatrist complies with the provisions of subparagraph
(C), the defendant shall be returned to court for a hearing in
accordance with subparagraphs (C) and (D) regarding whether
antipsychotic medication shall be administered involuntarily.
(vi) Any report made pursuant to paragraph (1) of subdivision (b)
shall include a description of any antipsychotic medication
administered to the defendant and its effects and side effects,
including effects on the defendant's appearance or behavior that
would affect the defendant's ability to understand the nature of the
criminal proceedings or to assist counsel in the conduct of a defense
in a reasonable manner. During the time the defendant is confined in
a state hospital or other treatment facility or placed on outpatient
status, either the defendant or the people may request that the
court review any order made pursuant to this subdivision. The
defendant, to the same extent enjoyed by other patients in the state
hospital or other treatment facility, shall have the right to contact
the patients' rights advocate regarding his or her rights under this
section.
(C) If the defendant consented to antipsychotic medication as
described in clause (iv) of subparagraph (B), but subsequently
withdraws his or her consent, or, if involuntary antipsychotic
medication was not ordered pursuant to clause (v) of subparagraph
(B), and the treating psychiatrist determines that antipsychotic
medication has become medically necessary and appropriate, the
treating psychiatrist shall make efforts to obtain informed consent
from the defendant for antipsychotic medication. If informed consent
is not obtained from the defendant, and the treating psychiatrist is
of the opinion that the defendant lacks capacity to make decisions
regarding antipsychotic medication based on the conditions described
in subclause (I) or (II) of clause (i) of subparagraph (B), the
treating psychiatrist shall certify whether the lack of capacity and
any applicable conditions described above exist. That certification
shall contain an assessment of the current mental status of the
defendant and the opinion of the treating psychiatrist that
involuntary antipsychotic medication has become medically necessary
and appropriate.
(D) (i) If the treating psychiatrist certifies that antipsychotic
medication has become medically necessary and appropriate pursuant to
subparagraph (C), antipsychotic medication may be administered to
the defendant for not more than 21 days, provided, however, that,
within 72 hours of the certification, the defendant is provided a
medication review hearing before an administrative law judge to be
conducted at the facility where the defendant is receiving treatment.
The treating psychiatrist shall present the case for the
certification for involuntary treatment and the defendant shall be
represented by an attorney or a patients' rights advocate. The
attorney or patients' rights advocate shall be appointed to meet with
the defendant no later than one day prior to the medication review
hearing to review the defendant's rights at the medication review
hearing, discuss the process, answer questions or concerns regarding
involuntary medication or the hearing, assist the defendant in
preparing for the hearing and advocating for his or her interests at
the hearing, review the panel's final determination following the
hearing, advise the defendant of his or her right to judicial review
of the panel's decision, and provide the defendant with referral
information for legal advice on the subject. The defendant shall also
have the following rights with respect to the medication review
hearing:
(I) To being given timely access to the defendant's records.
(II) To be present at the hearing, unless the defendant waives
that right.
(III) To present evidence at the hearing.
(IV) To question persons presenting evidence supporting
involuntary medication.
(V) To make reasonable requests for attendance of witnesses on the
defendant's behalf.
(VI) To a hearing conducted in an impartial and informal manner.
(ii) If the administrative law judge determines that the defendant
meets the criteria specified in either subclause (I) or (II) of
clause (i) of subparagraph (B), then antipsychotic medication may
continue to be administered to the defendant for the 21-day
certification period. Concurrently with the treating psychiatrist's
certification, the treating psychiatrist shall file a copy of the
certification and a petition with the court for issuance of an order
to administer antipsychotic medication beyond the 21-day
certification period. For purposes of this subparagraph, the treating
psychiatrist shall not be required to pay or deposit any fee for the
filing of the petition or other document or paper related to the
petition.
(iii) If the administrative law judge disagrees with the
certification, medication may not be administered involuntarily until
the court determines that antipsychotic medication should be
administered pursuant to this section.
(iv) The court shall provide notice to the prosecuting attorney
and to the attorney representing the defendant, and shall hold a
hearing, no later than 18 days from the date of the certification, to
determine whether antipsychotic medication should be ordered beyond
the certification period.
(v) If, as a result of the hearing, the court determines that
antipsychotic medication should be administered beyond the
certification period, the court shall issue an order authorizing the
administration of that medication.
(vi) The court shall render its decision on the petition and issue
its order no later than three calendar days after the hearing and,
in any event, no later than the expiration of the 21-day
certification period.
(3) When the court orders that the defendant be confined in a
state hospital or other public or private treatment facility, the
court shall provide copies of the following documents which shall be
taken with the defendant to the state hospital or other treatment
facility where the defendant is to be confined:
(A) The commitment order, including a specification of the
charges.
(B) A computation or statement setting forth the maximum term of
commitment in accordance with subdivision (c).
(C) A computation or statement setting forth the amount of credit
for time served, if any, to be deducted from the maximum term of
commitment.
(D) State summary criminal history information.
(E) Any arrest reports prepared by the police department or other
law enforcement agency.
(F) Any court-ordered psychiatric examination or evaluation
reports.
(G) The community program director's placement recommendation
report.
(H) Records of any finding of mental incompetence pursuant to this
chapter arising out of a complaint charging a felony offense
specified in Section 290 or any pending Section 1368 proceeding
arising out of a charge of a Section 290 offense.
(4) When the defendant is committed to a treatment 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
treatment 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 any finding of
mental incompetence pursuant to this chapter arising out of a charge
of a Section 290 offense.
(5) When directing that the defendant be confined in a state
hospital pursuant to this subdivision, the court shall select the
hospital in accordance with the policies established by the State
Department of Mental Health.
(6) (A) If the defendant is committed or transferred to a state
hospital pursuant to this section, the court may, upon receiving the
written recommendation of the medical director of the state hospital
and the community program director that the defendant be transferred
to a public or private treatment facility approved by the community
program director, order the defendant transferred to that facility.
If the defendant is committed or transferred to a public or private
treatment facility approved by the community program director, the
court may, upon receiving the written recommendation of the community
program director, transfer the defendant to a state hospital or to
another public or private treatment facility approved by the
community program 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). Where either the defendant or the
prosecutor chooses to contest either kind of order of transfer, a
petition may be filed in 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 are 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 community
program director or a designee.
(B) If the defendant is initially 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
any other facility, copies of the documents specified in paragraph
(3) shall be taken with the defendant to each subsequent facility to
which the defendant is transferred. 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).
(7) An order by the court authorizing involuntary medication of
the defendant shall be valid for no more than one year. The court
shall review the order six months after the order was made to
determine if the grounds for the authorization remain. In the review,
the court shall consider the reports of the treating psychiatrist or
psychiatrists and the defendant's patients' rights advocate or
attorney. The court may require testimony from the treating
psychiatrist or psychiatrists and the patients' rights advocate or
attorney, if necessary. The court may continue the order authorizing
involuntary medication for up to another six months, or vacate the
order, or make any other appropriate order.
(b) (1) Within 90 days of a commitment made pursuant to
subdivision (a), the medical director of the state hospital or other
treatment facility to which the defendant is confined shall make a
written report to the court and the community program director for
the county or region of commitment, or a designee, concerning the
defendant's progress toward recovery of mental competence. Where the
defendant is on outpatient status, the outpatient treatment staff
shall make a written report to the community program director
concerning the defendant's progress toward recovery of mental
competence. Within 90 days of placement on outpatient status, the
community program director shall report to the court on this matter.
If the defendant has not recovered mental competence, but the report
discloses a substantial likelihood that the defendant will regain
mental competence in the foreseeable future, the defendant shall
remain in the state hospital or other treatment facility or on
outpatient status. Thereafter, at six-month intervals or until the
defendant becomes mentally competent, where the defendant is confined
in a treatment facility, the medical director of the hospital or
person in charge of the facility shall report in writing to the court
and the community program director or a designee regarding the
defendant's progress toward recovery of mental competence. Where the
defendant is on outpatient status, after the initial 90-day report,
the outpatient treatment staff shall report to the community program
director on the defendant's progress toward recovery, and the
community program director shall report to the court on this matter
at six-month intervals. A copy of these reports shall be provided to
the prosecutor and defense counsel by the court. If the report
indicates that there is no substantial likelihood that the defendant
will regain mental competence in the foreseeable future, 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 community program
director or a designee.
(2) Where the court has issued an order authorizing the treating
facility to involuntarily administer antipsychotic medication to the
defendant, the reports made at six-month intervals concerning the
defendant's progress toward regaining competency shall also consider
the issue of involuntary medication. Each report shall include, but
is not limited to, all of the following:
(A) Whether or not the defendant has the capacity to make
decisions concerning antipsychotic medication.
(B) If the defendant lacks capacity to make decisions concerning
antipsychotic medication, whether the defendant risks serious harm to
his or her physical or mental health if not treated with
antipsychotic medication.
(C) Whether or not the defendant presents a danger to others if he
or she is not treated with antipsychotic medication.
(D) Whether the defendant has a mental illness for which
medications are the only effective treatment.
(E) Whether there are any side effects from the medication
currently being experienced by the defendant that would interfere
with the defendant's ability to collaborate with counsel.
(F) Whether there are any effective alternatives to medication.
(G) How quickly the medication is likely to bring the defendant to
competency.
(H) Whether the treatment plan includes methods other than
medication to restore the defendant to competency.
(I) A statement, if applicable, that no medication is likely to
restore the defendant to competency.
(3) After reviewing the reports, the court shall determine whether
or not grounds for the order authorizing involuntary administration
of antipsychotic medication still exist and shall do one of the
following:
(A) If the original grounds for involuntary medication still
exist, the order authorizing the treating facility to involuntarily
administer antipsychotic medication to the defendant shall remain in
effect.
(B) If the original grounds for involuntary medication no longer
exist, and there is no other basis for involuntary administration of
antipsychotic medication, the order for the involuntary
administration of antipsychotic medication shall be vacated.
(C) If the original grounds for involuntary medication no longer
exist, and the report states that there is another basis for
involuntary administration of antipsychotic medication, the court
shall set a hearing within 21 days to determine whether the order for
the involuntary administration of antipsychotic medication shall be
vacated or whether a new order for the involuntary administration of
antipsychotic medication shall be issued. The hearing shall proceed
as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(4) Any 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 community program
director or a designee.
(5) 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. The court shall transmit a copy
of its order to the community program director or a designee.
(6) 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. If the court determines that the defendant shall
continue to be treated in the state hospital or on an outpatient
basis, the court shall determine issues concerning administration of
antipsychotic medication, as set forth in subparagraph (B) of
paragraph (2) of subdivision (a).
(c) (1) 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 recovered mental competence shall be
returned to the committing court. The court shall notify the
community program director or a designee of the return and of any
resulting court orders.
(2) Whenever any defendant is returned to the court pursuant to
paragraph (1) or (4) of subdivision (b) or paragraph (1) of this
subdivision and it appears to the court that the defendant is gravely
disabled, as defined in subparagraph (B) of paragraph (1) of
subdivision (h) of Section 5008 of the Welfare and Institutions Code,
the court shall order the conservatorship investigator of the county
of commitment of the defendant to initiate conservatorship
proceedings for the defendant pursuant to Chapter 3 (commencing with
Section 5350) of Part 1 of Division 5 of the Welfare and Institutions
Code. Any hearings required in the conservatorship proceedings shall
be held in the superior court in the county that ordered the
commitment. The court shall transmit a copy of the order directing
initiation of conservatorship proceedings to the community program
director or a designee, the sheriff and the district attorney of the
county in which criminal charges are pending, and the defendant's
counsel of record. The court shall notify the community program
director or a designee, the sheriff and district attorney of the
county in which criminal charges are pending, and the defendant's
counsel of record of the outcome of the conservatorship proceedings.
(3) If a change in placement is proposed for a defendant who is
committed pursuant to subparagraph (B) of paragraph (1) of
subdivision (h) of Section 5008 of the Welfare and Institutions Code,
the court shall provide notice and an opportunity to be heard with
respect to the proposed placement of the defendant to the sheriff and
the district attorney of the county in which criminal charges are
pending.
(4) Where the defendant is confined in a treatment facility, a
copy of any report to the committing court regarding the defendant's
progress toward recovery of mental competence shall be provided by
the committing court to the prosecutor and to the defense counsel.
(d) The criminal action remains subject to dismissal pursuant to
Section 1385. If the criminal action is dismissed, the court shall
transmit a copy of the order of dismissal to the community program
director or a designee.
(e) If the criminal charge against the defendant is dismissed, the
defendant shall be released from any commitment ordered under this
section, but without prejudice to the initiation of any proceedings
that may be appropriate under the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code).
(f) As used in this chapter, "community program director" means
the person, agency, or entity designated by the State Department of
Mental Health pursuant to Section 1605 of this code and Section 4360
of the Welfare and Institutions Code.
(g) For the purpose of this section, "secure treatment facility"
shall not include, except for state mental hospitals, state
developmental centers, and correctional treatment facilities, any
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 any community board and care facility.
(h) Nothing in this section shall preclude a defendant from filing
a petition for habeas corpus to challenge the continuing validity of
an order authorizing a treatment facility or outpatient program to
involuntarily administer antipsychotic medication to a person being
treated as incompetent to stand trial.
(i) This section shall become operative on July 1, 2012.
SEC. 129. Section 2602 of the Penal Code is amended to read:
2602. (a) Except as provided in subdivision (b), no person
sentenced to imprisonment in a state prison shall be administered any
psychotropic medication without his or her prior informed consent.
(b) If a psychiatrist determines that an inmate should be treated
with psychotropic 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 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 or a danger to self or
others and does not have the capacity to refuse treatment with
psychotropic medications.
(3) A psychiatrist has prescribed one or more psychotropic
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 psychotropic 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. 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. The written notice
shall do all of the following:
(A) Set forth the diagnosis, the factual basis for the diagnosis,
the basis upon which psychotropic 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 prisoner 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 psychotropic
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.
(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) Nothing in this section is intended to 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 psychotropic
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, but in no event longer than five days after the written notice
and counsel are provided pursuant to subdivision (c), unless the
department first obtains an order from an administrative law judge
authorizing the continuance of medication beyond five days. The order
may be issued ex parte upon a showing that in the absence of the
medication the emergency is likely to recur. The request for an order
shall be supported by an affidavit showing specific facts. The
inmate may present facts supported by an affidavit in opposition to
the request. 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 psychotropic 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 longer 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 in emergency situations, 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 psychotropic 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, the written
notice described in paragraph (7) of subdivision (c). The notice
shall specify that the request is for a renewal.
(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) To obtain a renewal order, the department shall provide the
same due process protections as specified in subdivision (c). The
department shall prove the same elements supporting the involuntary
administration of psychotropic medication and the administrative law
judge shall be required to make the same findings described in
subdivision (c).
(3) Renewal orders shall be valid for one year from the date of
the hearing.
(4) An order renewing a prior order may be granted based on clear
and convincing evidence 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) The hearing on any petition to renew an order for involuntary
medication shall be conducted prior to the expiration of the current
order.
(h) In the event of a conflict between the provisions of this
section and the Administrative Procedure Act (Chapter 4.5 (commencing
with Section 11400), and Chapter 5 (commencing with Section 11500)
of Part 1 of Division 3 of the Government Code), this section shall
control.
SEC. 130. Section 2932 of the Penal Code is amended to read:
2932. (a) (1) For any time credit accumulated pursuant to Section
2931 or 2933, not more than 360 days of credit may be denied or lost
for a single act of murder, attempted murder, solicitation of
murder, manslaughter, rape, sodomy, or oral copulation accomplished
against the victim's will, attempted rape, attempted sodomy, or
attempted oral copulation accomplished against the victim's will,
assault or battery causing serious bodily injury, assault with a
deadly weapon or caustic substance, taking of a hostage, escape with
force or violence, or possession or manufacture of a deadly weapon or
explosive device, whether or not prosecution is undertaken for
purposes of this paragraph. Solicitation of murder shall be proved by
the testimony of two witnesses, or of one witness and corroborating
circumstances.
(2) Not more than 180 days of credit may be denied or lost for a
single act of misconduct, except as specified in paragraph (1), which
could be prosecuted as a felony whether or not prosecution is
undertaken.
(3) Not more than 90 days of credit may be denied or lost for a
single act of misconduct which could be prosecuted as a misdemeanor,
whether or not prosecution is undertaken.
(4) Not more than 30 days of credit may be denied or lost for a
single act of misconduct defined by regulation as a serious
disciplinary offense by the Department of Corrections and
Rehabilitation. Any person confined due to a change in custodial
classification following the commission of any serious disciplinary
infraction shall, in addition to any loss of time credits, be
ineligible to receive participation or worktime credit for a period
not to exceed the number of days of credit which have been lost for
the act of misconduct or 180 days, whichever is less. Any person
confined in a secure housing unit for having committed any misconduct
specified in paragraph (1) in which great bodily injury is inflicted
upon a nonprisoner shall, in addition to any loss of time credits,
be ineligible to receive participation or worktime credit for a
period not to exceed the number of days of credit which have been
lost for that act of misconduct. In unusual cases, an inmate may be
denied the opportunity to participate in a credit qualifying
assignment for up to six months beyond the period specified in this
subdivision if the Secretary of the Department of Corrections and
Rehabilitation finds, after a hearing, that no credit qualifying
program may be assigned to the inmate without creating a substantial
risk of physical harm to staff or other inmates. At the end of the
six-month period and of successive six-month periods, the denial of
the opportunity to participate in a credit qualifying assignment may
be renewed upon a hearing and finding by the director.
(5) The prisoner may appeal the decision through the department's
review procedure, which shall include a review by an individual
independent of the institution who has supervisorial authority over
the institution.
(b) For any credit accumulated pursuant to Section 2931, not more
than 30 days of participation credit may be denied or lost for a
single failure or refusal to participate. Any act of misconduct
described by the Department of Corrections and Rehabilitation as a
serious disciplinary infraction if committed while participating in
work, educational, vocational, therapeutic, or other prison activity
shall be deemed a failure to participate.
(c) Any procedure not provided for by this section, but necessary
to carry out the purposes of this section, shall be those procedures
provided for by the Department of Corrections and Rehabilitation for
serious disciplinary infractions if those procedures are not in
conflict with this section.
(1) (A) The Department of Corrections and Rehabilitation shall,
using reasonable diligence to investigate, provide written notice to
the prisoner. The written notice shall be given within 15 days after
the discovery of information leading to charges that may result in a
possible denial of credit, except that if the prisoner has escaped,
the notice shall be given within 15 days of the prisoner's return to
the custody of the secretary. The written notice shall include the
specific charge, the date, the time, the place that the alleged
misbehavior took place, the evidence relied upon, a written
explanation of the procedures that will be employed at the
proceedings and the prisoner's rights at the hearing. The hearing
shall be conducted by an individual who shall be independent of the
case and shall take place within 30 days of the written notice.
(B) The Department of Corrections and Rehabilitation may delay
written notice beyond 15 days when all of the following factors are
true:
(i) An act of misconduct is involved which could be prosecuted as
murder, attempted murder, or assault on a prison employee, whether or
not prosecution is undertaken.
(ii) Further investigation is being undertaken for the purpose of
identifying other prisoners involved in the misconduct.
(iii) Within 15 days after the discovery of information leading to
charges that may result in a possible denial of credit, the
investigating officer makes a written request to delay notifying that
prisoner and states the reasons for the delay.
(iv) The warden of the institution approves of the delay in
writing.
The period of delay under this paragraph shall not exceed 30 days.
The prisoner's hearing shall take place within 30 days of the
written notice.
(2) The prisoner may elect to be assigned an employee to assist in
the investigation, preparation, or presentation of a defense at the
disciplinary hearing if it is determined by the department that
either of the following circumstances exist:
(A)
The prisoner is illiterate.
(B) The complexity of the issues or the prisoner's confinement
status makes it unlikely that the prisoner can collect and present
the evidence necessary for an adequate comprehension of the case.
(3) The prisoner may request witnesses to attend the hearing and
they shall be called unless the person conducting the hearing has
specific reasons to deny this request. The specific reasons shall be
set forth in writing and a copy of the document shall be presented to
the prisoner.
(4) The prisoner has the right, under the direction of the person
conducting the hearing, to question all witnesses.
(5) At the conclusion of the hearing the charge shall be dismissed
if the facts do not support the charge, or the prisoner may be found
guilty on the basis of a preponderance of the evidence.
(d) If found guilty the prisoner shall be advised in writing of
the guilty finding and the specific evidence relied upon to reach
this conclusion and the amount of time-credit loss. The prisoner may
appeal the decision through the department's review procedure, and
may, upon final notification of appeal denial, within 15 days of the
notification demand review of the department's denial of credit to
the Board of Parole Hearings, and the board may affirm, reverse, or
modify the department's decision or grant a hearing before the board
at which hearing the prisoner shall have the rights specified in
Section 3041.5.
(e) Each prisoner subject to Section 2931 shall be notified of the
total amount of good behavior and participation credit which may be
credited pursuant to Section 2931, and his or her anticipated
time-credit release date. The prisoner shall be notified of any
change in the anticipated release date due to denial or loss of
credits, award of worktime credit, under Section 2933, or the
restoration of any credits previously forfeited.
(f) (1) If the conduct the prisoner is charged with also
constitutes a crime, the department may refer the case to criminal
authorities for possible prosecution. The department shall notify the
prisoner, who may request postponement of the disciplinary
proceedings pending the referral.
(2) The prisoner may revoke his or her request for postponement of
the disciplinary proceedings up until the filing of the accusatory
pleading. In the event of the revocation of the request for
postponement of the proceeding, the department shall hold the hearing
within 30 days of the revocation.
(3) Notwithstanding the notification requirements in this
paragraph and subparagraphs (A) and (B) of paragraph (1) of
subdivision (c), in the event the case is referred to criminal
authorities for prosecution and the authority requests that the
prisoner not be notified so as to protect the confidentiality of its
investigation, no notice to the prisoner shall be required until an
accusatory pleading is filed with the court, or the authority
notifies the warden, in writing, that it will not prosecute or it
authorizes the notification of the prisoner. The notice exceptions
provided for in this paragraph shall only apply if the criminal
authority requests of the warden, in writing, and within the 15 days
provided in subparagraph (A) of paragraph (1) of subdivision (c),
that the prisoner not be notified. Any period of delay of notice to
the prisoner shall not exceed 30 days beyond the 15 days referred to
in subdivision (c). In the event that no prosecution is undertaken,
the procedures in subdivision (c) shall apply, and the time periods
set forth in that subdivision shall commence to run from the date the
warden is notified in writing of the decision not to prosecute. In
the event the authority either cancels its requests that the prisoner
not be notified before it makes a decision on prosecution or files
an accusatory pleading, the provisions of this paragraph shall apply
as if no request had been received, beginning from the date of the
cancellation or filing.
(4) In the case where the prisoner is prosecuted by the district
attorney, the Department of Corrections and Rehabilitation shall not
deny time credit where the prisoner is found not guilty and may deny
credit if the prisoner is found guilty, in which case the procedures
in subdivision (c) shall not apply.
(g) If time credit denial proceedings or criminal prosecution
prohibit the release of a prisoner who would have otherwise been
released, and the prisoner is found not guilty of the alleged
misconduct, the amount of time spent incarcerated, in excess of what
the period of incarceration would have been absent the alleged
misbehavior, shall be deducted from the prisoner's parole period.
(h) Nothing in the amendments to this section made at the 1981-82
Regular Session of the Legislature shall affect the granting or
revocation of credits attributable to that portion of the prisoner's
sentence served prior to January 1, 1983.
SEC. 131. Section 3060.7 of the Penal Code is amended to read:
3060.7. (a) (1) Notwithstanding any other provision of law, the
parole authority 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 parole authority 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 parole authority, 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
parole authority, and shall issue a warrant for the parolee's arrest.
(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 the effective date of this section 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.
SEC. 132. Section 3453 of the Penal Code is amended to read:
3453. A postrelease community supervision agreement shall include
the following conditions:
(a) The person shall sign and agree to the conditions of release.
(b) The person shall obey all laws.
(c) The person shall report to the supervising county agency
within two working days of release from custody.
(d) The person shall follow the directives and instructions of the
supervising county agency.
(e) The person shall report to the supervising county agency as
directed by that agency.
(f) The person, and his or her residence and possessions, shall be
subject to search at any time of the day or night, with or without a
warrant, by an agent of the supervising county agency or by a peace
officer.
(g) The person shall waive extradition if found outside the state.
(h) The person shall inform the supervising county agency of the
person's place of residence, employment, education, or training.
(i) (1) The person shall inform the supervising county agency of
any pending or anticipated changes in residence, employment,
education, or training.
(2) If the person enters into new employment, he or she shall
inform the supervising county agency of the new employment within
three business days of that entry.
(j) The person shall immediately inform the supervising county
agency if he or she is arrested or receives a citation.
(k) The person shall obtain the permission of the supervising
county agency to travel more than 50 miles from the person's place of
residence.
(l) The person shall obtain a travel pass from the supervising
county agency before he or she may leave the county or state for more
than two days.
(m) The person shall not be in the presence of a firearm or
ammunition, or any item that appears to be a firearm or ammunition.
(n) The person shall not possess, use, or have access to any
weapon listed in Section 16140, subdivision (c) of Section 16170,
Section 16220, 16260, 16320, 16330, or 16340, subdivision (b) of
Section 16460, Section 16470, subdivision (f) of Section 16520, or
Section 16570, 16740, 16760, 16830, 16920, 16930, 16940, 17090,
17125, 17160, 17170, 17180, 17190, 17200, 17270, 17280, 17330, 17350,
17360, 17700, 17705, 17710, 17715, 17720, 17725, 17730, 17735,
17740, 17745, 19100, 19200, 19205, 20200, 20310, 20410, 20510, 20610,
20710, 20910, 21110, 21310, 21810, 22010, 22015, 22210, 22215,
22410, 24310, 24410, 24510, 24610, 24680, 24710, 30210, 30215, 31500,
32310, 32400, 32405, 32410, 32415, 32420, 32425, 32430, 32435,
32440, 32445, 32450, 32900, 33215, 33220, 33225, or 33600.
(o) (1) Except as provided in paragraph (2) and subdivision (p),
the person shall not possess a knife with a blade longer than two
inches.
(2) The person may possess a kitchen knife with a blade longer
than two inches if the knife is used and kept only in the kitchen of
the person's residence.
(p) The person may use a knife with a blade longer than two
inches, if the use is required for that person's employment, the use
has been approved in a document issued by the supervising county
agency, and the person possesses the document of approval at all
times and makes it available for inspection.
(q) The person agrees to waive any right to a court hearing prior
to the imposition of a period of "flash incarceration" in a county
jail of not more than 10 consecutive days for any violation of his or
her postrelease supervision conditions.
(r) The person agrees to participate in rehabilitation programming
as recommended by the supervising county agency.
(s) The person agrees that he or she may be subject to arrest with
or without a warrant by a peace officer employed by the supervising
county agency or, at the direction of the supervising county agency,
by any peace officer when there is probable cause to believe the
person has violated the terms and conditions of his or her release.
SEC. 133. Section 4807 of the Penal Code is amended to read:
4807. (a) At the beginning of every regular session of the
Legislature, the Governor shall file a written report with the
Legislature that shall include each application that was granted for
each case of reprieve, pardon, or commutation by the Governor, or his
or her predecessor in office, during the immediately preceding
regular session of the Legislature, stating the name of the person
convicted, the crime of which the person was convicted, the sentence
and its date, the date of the reprieve, pardon, or commutation, and
the reason for granting the same. The report shall be submitted in
compliance with Section 9795 of the Government Code.
(b) Notwithstanding any other law, the written report filed with
the Legislature pursuant to subdivision (a) shall be available to the
public.
SEC. 134. Section 11105 of the Penal Code is amended to read:
11105. (a) (1) The Department of Justice shall maintain state
summary criminal history information.
(2) As used in this section:
(A) "State summary criminal history information" means the master
record of information compiled by the Attorney General pertaining to
the identification and criminal history of any person, such as name,
date of birth, physical description, fingerprints, photographs, date
of arrests, arresting agencies and booking numbers, charges,
dispositions, and similar data about the person.
(B) "State summary criminal history information" does not refer to
records and data compiled by criminal justice agencies other than
the Attorney General, nor does it refer to records of complaints to
or investigations conducted by, or records of intelligence
information or security procedures of, the office of the Attorney
General and the Department of Justice.
(b) The Attorney General shall furnish state summary criminal
history information to any of the following, if needed in the course
of their duties, provided that, when information is furnished to
assist an agency, officer, or official of state or local government,
a public utility, or any other entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321 of the Statutes of
1974 and Section 432.7 of the Labor Code shall apply:
(1) The courts of the state.
(2) Peace officers of the state, as defined in Section 830.1,
subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section
830.3, subdivision (a) of Section 830.31, and subdivisions (a) and
(b) of Section 830.5.
(3) District attorneys of the state.
(4) Prosecuting city attorneys of any city within the state.
(5) City attorneys pursuing civil gang injunctions pursuant to
Section 186.22a, or drug abatement actions pursuant to Section 3479
or 3480 of the Civil Code, or Section 11571 of the Health and Safety
Code.
(6) Probation officers of the state.
(7) Parole officers of the state.
(8) A public defender or attorney of record when representing a
person in proceedings upon a petition for a certificate of
rehabilitation and pardon pursuant to Section 4852.08.
(9) A public defender or attorney of record when representing a
person in a criminal case, or parole revocation or revocation
extension proceeding, and if authorized access by statutory or
decisional law.
(10) Any agency, officer, or official of the state if the criminal
history information is required to implement a statute or regulation
that expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information,
and contains requirements or exclusions, or both, expressly based
upon that specified criminal conduct. The agency, officer, or
official of the state authorized by this paragraph to receive state
summary criminal history information may also transmit fingerprint
images and related information to the Department of Justice to be
transmitted to the Federal Bureau of Investigation.
(11) Any city or county, city and county, district, or any officer
or official thereof if access is needed in order to assist that
agency, officer, or official in fulfilling employment, certification,
or licensing duties, and if the access is specifically authorized by
the city council, board of supervisors, or governing board of the
city, county, or district if the criminal history information is
required to implement a statute, ordinance, or regulation that
expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information, and
contains requirements or exclusions, or both, expressly based upon
that specified criminal conduct. The city or county, city and county,
district, or the officer or official thereof authorized by this
paragraph may also transmit fingerprint images and related
information to the Department of Justice to be transmitted to the
Federal Bureau of Investigation.
(12) The subject of the state summary criminal history information
under procedures established under Article 5 (commencing with
Section 11120).
(13) Any person or entity when access is expressly authorized by
statute if the criminal history information is required to implement
a statute or regulation that expressly refers to specific criminal
conduct applicable to the subject person of the state summary
criminal history information, and contains requirements or
exclusions, or both, expressly based upon that specified criminal
conduct.
(14) Health officers of a city, county, city and county, or
district when in the performance of their official duties enforcing
Section 120175 of the Health and Safety Code.
(15) Any managing or supervising correctional officer of a county
jail or other county correctional facility.
(16) Any humane society, or society for the prevention of cruelty
to animals, for the specific purpose of complying with Section 14502
of the Corporations Code for the appointment of humane officers.
(17) Local child support agencies established by Section 17304 of
the Family Code. When a local child support agency closes a support
enforcement case containing summary criminal history information, the
agency shall delete or purge from the file and destroy any documents
or information concerning or arising from offenses for or of which
the parent has been arrested, charged, or convicted, other than for
offenses related to the parent's having failed to provide support for
minor children, consistent with the requirements of Section 17531 of
the Family Code.
(18) County child welfare agency personnel who have been delegated
the authority of county probation officers to access state summary
criminal history information pursuant to Section 272 of the Welfare
and Institutions Code for the purposes specified in Section 16504.5
of the Welfare and Institutions Code. Information from criminal
history records provided pursuant to this subdivision shall not be
used for any purposes other than those specified in this section and
Section 16504.5 of the Welfare and Institutions Code. When an agency
obtains records obtained both on the basis of name checks and
fingerprint checks, final placement decisions shall be based only on
the records obtained pursuant to the fingerprint check.
(19) The court of a tribe, or court of a consortium of tribes,
that has entered into an agreement with the state pursuant to Section
10553.1 of the Welfare and Institutions Code. This information may
be used only for the purposes specified in Section 16504.5 of the
Welfare and Institutions Code and for tribal approval or tribal
licensing of foster care or adoptive homes. Article 6 (commencing
with Section 11140) shall apply to officers, members, and employees
of a tribal court receiving criminal record offender information
pursuant to this section.
(20) Child welfare agency personnel of a tribe or consortium of
tribes that has entered into an agreement with the state pursuant to
Section 10553.1 of the Welfare and Institutions Code and to whom the
state has delegated duties under paragraph (2) of subdivision (a) of
Section 272 of the Welfare and Institutions Code. The purposes for
use of the information shall be for the purposes specified in Section
16504.5 of the Welfare and Institutions Code and for tribal approval
or tribal licensing of foster care or adoptive homes. When an agency
obtains records on the basis of name checks and fingerprint checks,
final placement decisions shall be based only on the records obtained
pursuant to the fingerprint check. Article 6 (commencing with
Section 11140) shall apply to child welfare agency personnel
receiving criminal record offender information pursuant to this
section.
(21) An officer providing conservatorship investigations pursuant
to Sections 5351, 5354, and 5356 of the Welfare and Institutions
Code.
(22) A court investigator providing investigations or reviews in
conservatorships pursuant to Section 1826, 1850, 1851, or 2250.6 of
the Probate Code.
(23) A person authorized to conduct a guardianship investigation
pursuant to Section 1513 of the Probate Code.
(24) A humane officer pursuant to Section 14502 of the
Corporations Code for the purposes of performing his or her duties.
(c) The Attorney General may furnish state summary criminal
history information and, when specifically authorized by this
subdivision, federal level criminal history information upon a
showing of a compelling need to any of the following, provided that
when information is furnished to assist an agency, officer, or
official of state or local government, a public utility, or any other
entity in fulfilling employment, certification, or licensing duties,
Chapter 1321 of the Statutes of 1974 and Section 432.7 of the Labor
Code shall apply:
(1) Any public utility, as defined in Section 216 of the Public
Utilities Code, that operates a nuclear energy facility when access
is needed in order to assist in employing persons to work at the
facility, provided that, if the Attorney General supplies the data,
he or she shall furnish a copy of the data to the person to whom the
data relates.
(2) To a peace officer of the state other than those included in
subdivision (b).
(3) To an illegal dumping enforcement officer as defined in
subdivision (j) of Section 830.7.
(4) To a peace officer of another country.
(5) To public officers, other than peace officers, of the United
States, other states, or possessions or territories of the United
States, provided that access to records similar to state summary
criminal history information is expressly authorized by a statute of
the United States, other states, or possessions or territories of the
United States if the information is needed for the performance of
their official duties.
(6) To any person when disclosure is requested by a probation,
parole, or peace officer with the consent of the subject of the state
summary criminal history information and for purposes of furthering
the rehabilitation of the subject.
(7) The courts of the United States, other states, or territories
or possessions of the United States.
(8) Peace officers of the United States, other states, or
territories or possessions of the United States.
(9) To any individual who is the subject of the record requested
if needed in conjunction with an application to enter the United
States or any foreign nation.
(10) (A) (i) Any public utility, as defined in Section 216 of the
Public Utilities Code, or any cable corporation as defined in
subparagraph (B), if receipt of criminal history information is
needed in order to assist in employing current or prospective
employees, contract employees, or subcontract employees who, in the
course of their employment, may be seeking entrance to private
residences or adjacent grounds. The information provided shall be
limited to the record of convictions and any arrest for which the
person is released on bail or on his or her own recognizance pending
trial.
(ii) If the Attorney General supplies the data pursuant to this
paragraph, the Attorney General shall furnish a copy of the data to
the current or prospective employee to whom the data relates.
(iii) Any information obtained from the state summary criminal
history is confidential and the receiving public utility or cable
corporation shall not disclose its contents, other than for the
purpose for which it was acquired. The state summary criminal history
information in the possession of the public utility or cable
corporation and all copies made from it shall be destroyed not more
than 30 days after employment or promotion or transfer is denied or
granted, except for those cases where a current or prospective
employee is out on bail or on his or her own recognizance pending
trial, in which case the state summary criminal history information
and all copies shall be destroyed not more than 30 days after the
case is resolved.
(iv) A violation of this paragraph is a misdemeanor, and shall
give the current or prospective employee who is injured by the
violation a cause of action against the public utility or cable
corporation to recover damages proximately caused by the violations.
Any public utility's or cable corporation's request for state summary
criminal history information for purposes of employing current or
prospective employees who may be seeking entrance to private
residences or adjacent grounds in the course of their employment
shall be deemed a "compelling need" as required to be shown in this
subdivision.
(v) Nothing in this section shall be construed as imposing a duty
upon public utilities or cable corporations to request state summary
criminal history information on any current or prospective employees.
(B) For purposes of this paragraph, "cable corporation" means any
corporation or firm that transmits or provides television, computer,
or telephone services by cable, digital, fiber optic, satellite, or
comparable technology to subscribers for a fee.
(C) Requests for federal level criminal history information
received by the Department of Justice from entities authorized
pursuant to subparagraph (A) shall be forwarded to the Federal Bureau
of Investigation by the Department of Justice. Federal level
criminal history information received or compiled by the Department
of Justice may then be disseminated to the entities referenced in
subparagraph (A), as authorized by law.
(D) (i) Authority for a cable corporation to request state or
federal level criminal history information under this paragraph shall
commence July 1, 2005.
(ii) Authority for a public utility to request federal level
criminal history information under this paragraph shall commence July
1, 2005.
(11) To any campus of the California State University or the
University of California, or any four-year college or university
accredited by a regional accreditation organization approved by the
United States Department of Education, if needed in conjunction with
an application for admission by a convicted felon to a special
education program for convicted felons, including, but not limited
to, university alternatives and halfway houses. Only conviction
information shall be furnished. The college or university may require
the convicted felon to be fingerprinted, and any inquiry to the
department under this section shall include the convicted felon's
fingerprints and any other information specified by the department.
(12) To any foreign government, if requested by the individual who
is the subject of the record requested, if needed in conjunction
with the individual's application to adopt a minor child who is a
citizen of that foreign nation. Requests for information pursuant to
this paragraph shall be in accordance with the process described in
Sections 11122 to 11124, inclusive. The response shall be provided to
the foreign government or its designee and to the individual who
requested the information.
(d) Whenever an authorized request for state summary criminal
history information pertains to a person whose fingerprints are on
file with the Department of Justice and the department has no
criminal history of that person, and the information is to be used
for employment, licensing, or certification purposes, the fingerprint
card accompanying the request for information, if any, may be
stamped "no criminal record" and returned to the person or entity
making the request.
(e) Whenever state summary criminal history information is
furnished as the result of an application and is to be used for
employment, licensing, or certification purposes, the Department of
Justice may charge the person or entity making the request a fee that
it determines to be sufficient to reimburse the department for the
cost of furnishing the information. In addition, the Department of
Justice may add a surcharge to the fee to fund maintenance and
improvements to the systems from which the information is obtained.
Notwithstanding any other law, a person or entity required to pay a
fee to the department for information received under this section may
charge the applicant a fee sufficient to reimburse the person or
entity for this expense. All moneys received by the department
pursuant to this section, Sections 11105.3 and 26190 of this code,
and Sections 45125 and 88024 of the Education Code shall be deposited
in a special account in the General Fund to be available for
expenditure by the department to offset costs incurred pursuant to
those sections and for maintenance and improvements to the systems
from which the information is obtained upon appropriation by the
Legislature.
(f) Whenever there is a conflict, the processing of criminal
fingerprints and fingerprints of applicants for security guard or
alarm agent registrations or firearms qualification permits submitted
pursuant to Section 7583.9, 7583.23, 7596.3, or 7598.4 of the
Business and Professions Code shall take priority over the processing
of other applicant fingerprints.
(g) It is not a violation of this section to disseminate
statistical or research information obtained from a record, provided
that the identity of the subject of the record is not disclosed.
(h) It is not a violation of this section to include information
obtained from a record in (1) a transcript or record of a judicial or
administrative proceeding or (2) any other public record if the
inclusion of the information in the public record is authorized by a
court, statute, or decisional law.
(i) Notwithstanding any other law, the Department of Justice or
any state or local law enforcement agency may require the submission
of fingerprints for the purpose of conducting summary criminal
history information checks that are authorized by law.
(j) The state summary criminal history information shall include
any finding of mental incompetence pursuant to Chapter 6 (commencing
with Section 1367) of Title 10 of Part 2 arising out of a complaint
charging a felony offense specified in Section 290.
(k) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization and the information is to be used for peace officer
employment or certification purposes. As used in this subdivision, a
peace officer is defined in Chapter 4.5 (commencing with Section 830)
of Title 3 of Part 2.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest or detention, except for an arrest or detention
resulting in an exoneration, provided, however, that where the
records of the Department of Justice do not contain a disposition for
the arrest, the Department of Justice first makes a genuine effort
to determine the disposition of the arrest.
(D) Every successful diversion.
(E) Every date and agency name associated with all retained peace
officer or nonsworn law enforcement agency employee preemployment
criminal offender record information search requests.
(l) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by a criminal justice
agency or organization, as defined in Section 13101, and the
information is to be used for criminal justice employment, licensing,
or certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the records of the
Department of Justice do not contain a disposition or did not result
in a conviction, provided that the Department of Justice first makes
a genuine effort to determine the disposition of the arrest. However,
information concerning an arrest shall not be disclosed if the
records of the Department of Justice indicate, or if the genuine
effort reveals, that the subject was exonerated, successfully
completed a diversion or deferred entry of judgment program, or the
arrest was deemed a detention.
(D) Every date and agency name associated with all retained peace
officer or nonsworn law enforcement agency employee preemployment
criminal offender record information search requests.
(m) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization pursuant to Section 1522, 1568.09, 1569.17, or 1596.871
of the Health and Safety Code, or any statute that incorporates the
criteria of any of those sections or this subdivision by reference,
and the information is to be used for employment, licensing, or
certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction of an offense rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the State Department of
Social Services is required by paragraph (1) of subdivision (a) of
Section 1522 of the Health and Safety Code to determine if an
applicant has been arrested. However, if the records of the
Department of Justice do not contain a disposition for an arrest, the
Department of Justice shall first make a genuine effort to determine
the disposition of the arrest.
(3) Notwithstanding the requirements of the sections referenced in
paragraph (1), the Department of Justice shall not disseminate
information about an arrest subsequently deemed a detention or an
arrest that resulted in either the successful completion of a
diversion program or exoneration.
(n) (1) This subdivision shall apply whenever state or federal
summary criminal history information, to be used for employment,
licensing, or certification purposes, is furnished by the Department
of Justice as the result of an application by an authorized agency,
organization, or individual pursuant to any of the following:
(A) Paragraph (9) of subdivision (c), when the information is to
be used by a cable corporation.
(B) Section 11105.3 or 11105.4.
(C) Section 15660 of the Welfare and Institutions Code.
(D) Any statute that incorporates the criteria of any of the
statutory provisions listed in subparagraph (A), (B), or (C) by
reference.
(2) With the exception of applications submitted by transportation
companies authorized pursuant to Section 11105.3, and
notwithstanding any other provision of law, whenever state summary
criminal history information is furnished pursuant to paragraph (1),
the Department of Justice shall disseminate the following
information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in
subdivision (a) of Section 15660 of the Welfare and Institutions
Code. However, with the exception of those offenses for which
registration is required pursuant to Section 290, the Department of
Justice shall not disseminate information pursuant to this
subdivision unless the conviction occurred within 10 years of the
date of the agency's request for information or the conviction is
over 10 years old but the subject of the request was incarcerated
within 10 years of the agency's request for information.
(B) Every arrest for a violation or attempted violation of an
offense specified in subdivision (a) of Section 15660 of the Welfare
and Institutions Code for which the applicant is presently awaiting
trial, whether the applicant is incarcerated or has been released on
bail or on his or her own recognizance pending trial.
(o) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization pursuant to Section 261 or 550 of the Financial Code,
or any statute that incorporates the criteria of either of those
sections or this subdivision by reference, and the information is to
be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in Section
550 of the Financial Code.
(B) Every arrest for a violation or attempted violation of an
offense specified in Section 550 of the Financial Code for which the
applicant is presently awaiting trial, whether the applicant is
incarcerated or has been released on bail or on his or her own
recognizance pending trial.
(p) (1) This subdivision shall apply whenever state or federal
criminal history information is furnished by the Department of
Justice as the result of an application by an agency, organization,
or individual not defined in subdivision (k), (l), (m), (n), or (o),
or by a transportation company authorized pursuant to Section
11105.3, or any statute that incorporates the criteria of that
section or this subdivision by reference, and the information is to
be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other provisions of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(q) All agencies, organizations, or individuals defined in
subdivisions (k), (l), (m), (n), (o), and (p) may contract with the
Department of Justice for subsequent arrest notification pursuant to
Section 11105.2. This subdivision shall not supersede sections that
mandate an agency, organization, or individual to contract with the
Department of Justice for subsequent arrest notification pursuant to
Section 11105.2.
(r) Nothing in this section shall be construed to mean that the
Department of Justice shall cease compliance with any other statutory
notification requirements.
(s) The provisions of Section 50.12 of Title 28 of the Code of
Federal Regulations are to be followed in processing federal criminal
history information.
SEC. 135. Section 11105.03 of the Penal Code is amended to read:
11105.03. (a) Subject to the requirements and conditions set
forth in this section and Section 11105, local law enforcement
agencies are hereby authorized to provide state criminal summary
history information obtained through the California Law Enforcement
Telecommunications System (CLETS) for the purpose of screening
prospective participants and prospective and current staff of a
regional, county, city, or other local public housing authority, at
the request of the chief executive officer of the authority or his or
her designee, upon a showing by that authority that the authority
manages a Section 8 housing program pursuant to federal law (United
States Housing Act of 1937), operates housing at which children under
the age of 18 years reside, or operates housing for persons
categorized as aged, blind, or disabled.
(b) The following requirements shall apply to information released
by local law enforcement agencies pursuant to subdivision (a):
(1) Local law enforcement agencies shall not release any
information unless it relates to a conviction for a serious felony,
as defined in subdivision (c) of Section 1192.7, a conviction for any
offense punishable under Section 273.5, 422.6, 422.7, 422.75, 422.9,
or 422.76, or under Chapter 2 (commencing with Section 29800) or
Chapter 3 (commencing with Section 29900) of Division 9 of Title 4 of
Part 6, or under any provision listed in Section 16590, a conviction
under Section 273.6 that involves a violation of a protective order,
as defined in Section 6218 of the Family Code, or a conviction for
any felony offense that involves controlled substances or alcoholic
beverages, or any felony offense that involves any activity related
to controlled substances or alcoholic beverages, or a conviction for
any offense that involves domestic violence, as defined in Section
13700.
(2) Local law enforcement agencies shall not release information
concerning an arrest for an offense that did not result in a
conviction.
(3) Local law enforcement agencies shall not release information
concerning an offense committed by a person who was under 18 years of
age at the time he or she committed the offense.
(4) Local law enforcement agencies shall release any information
concerning any conviction or release from custody that occurred
within 10 years of the date on which the request for information is
submitted to the Attorney General, unless the conviction was based
upon a felony offense that involved controlled substances or
alcoholic beverages or a felony offense that involved any activity
related to controlled substances or alcoholic beverages. Where a
conviction was based on any of these felony offenses, local law
enforcement agencies shall release information concerning this
conviction if the conviction occurred within five years of the date
on which a request for the information was submitted.
(5) Notwithstanding paragraph (4), if information that meets the
requirements of paragraphs (2) to (4), inclusive, is located and the
information reveals a conviction of an offense specified in paragraph
(1), local law enforcement agencies shall release all summary
criminal history information concerning the person whether or not the
information meets the requirements of paragraph (4), provided,
however, that the information meets the requirements of paragraphs
(1) to (3), inclusive.
(6) Information released to the local public housing authority
pursuant to this section shall also be released to parole or
probation officers at the same time.
(c) State summary criminal history information shall be used by
the chief executive officer of the housing authority or a designee
only for purposes of identifying prospective participants in
subsidized programs and prospective and current staff who have access
to residences, whose criminal history is likely to pose a risk to
children under 18 years of age or persons categorized as aged, blind,
or disabled living in the housing operated by the authority.
(d) If a housing authority obtains summary criminal history
information for the purpose of screening a prospective participant
pursuant to this section, it shall review and evaluate that
information in the context of other available information and shall
not evaluate the person's suitability as a prospective participant
based solely on his or her past criminal history.
(e) If a housing authority determines that a prospective
participant is not eligible as a resident, it shall promptly notify
him or her of the basis for its determination and, upon request,
shall provide him or her within a reasonable time after the
determination is made with an opportunity for an informal hearing on
the determination in accordance with Section 960.207 of Title 24 of
the Code of Federal Regulations.
(f) Any information obtained from state summary criminal history
information pursuant to this section is confidential and the
recipient public housing authority shall not disclose or use the
information for any purpose other than that authorized by this
section. The state summary criminal history information in the
possession of the authority and all copies made from it shall be
destroyed not more than 30 days after the authority's final decision
whether to act on the housing status of the individual to whom the
information relates.
(g) The local public housing authority receiving state summary
criminal history information pursuant to this section shall adopt
regulations governing the receipt, maintenance, and use of the
information. The regulations shall include provisions that require
notice that the authority has access to criminal records of
participants and employees who have access to programs.
(h) Use of this information is to be consistent with Title 24 of
the Code of Federal Regulations and the current regulations adopted
by the housing authority using the information.
(i) Nothing in this section shall be construed to require a
housing authority to request and review an applicant's criminal
history.
(j) The California Housing Authorities Association, after
compiling data from all public housing authorities that receive
summary criminal information pursuant to this chapter, shall report
its findings based upon this data to the Legislature prior to January
1, 2000.
SEC. 136. 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) Any 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) Any 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) Any 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 processor, as
specified in subdivision (e) of Section 11166. As used in this
article, "commercial film and photographic print processor" means a
person who develops exposed photographic film into negatives, slides,
or prints, or who makes prints from negatives or slides, for
compensation. The term includes any employee of such a person; it
does not include a person who develops film or makes prints 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 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) The custodian of records of a clergy member, as specified in
this section and subdivision (d) of Section 11166.
(34) An employee of a 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.
(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. 137. Section 13750 of the Penal Code is amended to read:
13750. (a) The City of San Diego, the City of Anaheim, the County
of Alameda, and the County of Sonoma are each hereby authorized to
create a two-year pilot project for the
establishment of a family justice center in accordance
with the provisions of this section and Section 13751.
(b) The City of San Diego, the City of Anaheim, the County of
Alameda, and the County of Sonoma may each establish a multiagency,
multidisciplinary family justice center to assist victims of domestic
violence, officer-involved domestic violence, sexual assault, elder
or dependent adult abuse, stalking, cyberstalking, cyberbullying, and
human trafficking, depending on the availability of services, to
ensure that victims of abuse are able to access all needed services
in one location in order to enhance victim safety, increase offender
accountability, and improve access to services for victims of
domestic violence, sexual assault, elder or dependent adult abuse,
stalking, cyberstalking, cyberbullying, and human trafficking.
(c) For purposes of this title, the following terms have the
following meanings:
(1) "Abuse" has the same meaning as set forth in Section 6203 of
the Family Code.
(2) "Domestic violence" has the same meaning as set forth in
Section 6211 of the Family Code.
(3) "Sexual assault" means an act or attempt made punishable by
Section 220, 261, 261.5, 262, 264.1, 266c, 269, 285, 286, 288, 288.5,
288a, 289, or 647.6.
(4) "Elder or dependent adult abuse" means an act made punishable
by Section 368.
(5) "Human trafficking" has the same meaning as set forth in
Section 236.1.
(6) "Victim of crime," "crime victim," or "victim" means a victim
of domestic violence, officer-involved domestic violence, sexual
assault, elder or dependent adult abuse, stalking, cyberstalking,
cyberbullying, or human trafficking.
(d) For purposes of this title, family justice centers shall be
defined as multiagency, multidisciplinary service centers where
public and private agencies assign staff members on a full-time or
part-time basis in order to provide services to victims of crime from
one location in order to reduce the number of times victims must
tell their story, reduce the number of places victims must go for
help, and increase access to services and support for victims and
their children. Staff members at a family justice center may be
comprised of, but are not limited to, the following:
(1) Law enforcement personnel.
(2) Medical personnel.
(3) District attorneys and city attorneys.
(4) Victim-witness program personnel.
(5) Domestic violence shelter service staff.
(6) Community-based rape crisis, domestic violence, and human
trafficking advocates.
(7) Social service agency staff members.
(8) Child welfare agency social workers.
(9) County health department staff.
(10) City or county welfare and public assistance workers.
(11) Nonprofit agency counseling professionals.
(12) Civil legal service providers.
(13) Supervised volunteers from partner agencies.
(14) Other professionals providing services.
(e) Victims of crime shall not be required to participate in the
criminal justice system or cooperate with law enforcement in order to
receive counseling, medical care, or other services at a family
justice center.
(f) Victims of crime shall not be denied services on the grounds
of criminal history. No criminal history search shall be conducted of
a victim at a family justice center without the victim's written
consent unless the criminal history search is pursuant to an active
criminal investigation.
(g) (1) Each family justice center shall consult with
community-based domestic violence, officer-involved domestic
violence, sexual assault, elder or dependent adult abuse, stalking,
cyberstalking, cyberbullying, and human trafficking agencies in
partnership with survivors of violence and abuse and their advocates
in the operations process of the family justice center, and shall
establish procedures for the ongoing input, feedback, and evaluation
of the family justice center by survivors of violence and abuse and
community-based crime victim service providers and advocates.
(2) Each family justice center shall develop policies and
procedures, in collaboration with local community-based crime victim
service providers and local survivors of violence or abuse, to ensure
coordinated services are provided to victims and to enhance the
safety of victims and professionals at a family justice center who
participate in affiliated survivor-centered support or advocacy
groups. All family justice centers shall maintain a formal client
feedback, complaint, and input process to address client concerns
about services provided or the conduct of any family justice center
professionals, agency partners, or volunteers providing services in a
family justice center.
(h) (1) Each family justice center shall maintain an informed
client consent policy and shall be in compliance with all state and
federal laws protecting the confidentiality of the types of
information and documents that may be in a victim's file, including,
but not limited to, medical and legal records. Each family justice
center shall have a designated privacy officer to develop and oversee
privacy policies and procedures consistent with state and federal
privacy laws and the Fair Information Practice Principles. At no time
shall a victim be required to sign a client consent form to share
information in order to access services.
(2) Each family justice center is required to inform the victim
that information shared with staff members at a family justice center
may, under certain circumstances, be shared with law enforcement
professionals. Each family justice center shall obtain written
acknowledgment that the victim has been informed of this policy.
(3) Information obtained from victims in family justice centers
shall be privileged and confidential to the extent it is protected
from disclosure under existing California law. Nothing in this title
related to confidentiality and client-authorized information sharing
is intended to change existing state law.
(4) A victim's consent to share information pursuant to the client
consent policy shall not be construed as a waiver of confidentiality
or any privilege held by the victim or family justice center
professionals.
(i) (1) The National Family Justice Center Alliance shall, with
private funds, contract with an independent organization to conduct
an evaluation and prepare a report on the four pilot centers. The
independent organization conducting the evaluation shall submit the
report to the Office of Privacy Protection and the National Family
Justice Center Alliance for review and comment, and then to the
Assembly Committee on Judiciary, the Senate Committee on Judiciary,
the Assembly Committee on Public Safety, and the Senate Committee on
Public Safety, no later than January 1, 2013. The independent
organization conducting the evaluation shall, in consultation with
the four pilot centers, the National Family Justice Center Alliance,
groups that advocate on behalf of victims, community-based crime
victim service provider representatives, including one person
recommended by the federally recognized state domestic violence
coalition, privacy rights organizations, and other relevant
stakeholders, develop evaluation criteria, which shall include, but
not be limited to, all of the following:
(A) The number of clients served, number of children served,
reasons for seeking services at the center, services utilized, and
number of returning clients.
(B) Filing, conviction, and dismissal rates for misdemeanor and
felony criminal cases handled at the center.
(C) Subjective and objective measurements of the impacts of
colocated multiagency services for victims and their children related
to safety, empowerment, and mental and emotional well-being, and
comparison data from victims, if any, on their access to services
outside the family justice center model.
(D) Barriers, if any, to receiving needed services, including
access to services based on immigration status, criminal history, or
substance abuse and mental health issues, and potential ways to
mitigate any identified hurdles to accessing needed services.
(E) Whether privacy, immigration status, or other barriers
prevented victims from utilizing a family justice center and, if so,
recommendations to improve utilization rates.
(F) Compliance by the four pilot centers, with the service
delivery requirements set forth in subdivisions (e), (f), (g), and
(h).
(G) Recommended best practices and model protocols, if any.
(2) The independent organization conducting the evaluation shall
gather the evaluation data from preservices victim information,
postservices exit interviews, victim focus groups, partner agency
focus group data, and other evaluation criteria necessary to conduct
the evaluation under paragraph (1).
(3) The National Family Justice Center Alliance may include any
recommendations for statewide legislation, best practices, and model
policies and procedures in the comments submitted to the independent
evaluation organization and the Legislature under paragraph (1).
SEC. 138. Section 4461 of the Probate Code is amended to read:
4461. In a statutory form power of attorney, the language
granting power with respect to benefits from social security,
Medicare, Medicaid, or other governmental programs, or civil or
military service, empowers the agent to do all of the following:
(a) Execute vouchers in the name of the principal for allowances
and reimbursements payable by the United States or a foreign
government or by a state or subdivision of a state to the principal,
including allowances and reimbursements for transportation of the
individuals described in paragraph (1) of subdivision (a) of Section
4460, and for shipment of their household effects.
(b) Take possession and order the removal and shipment of property
of the principal from a post, warehouse, depot, dock, or other place
of storage or safekeeping, either governmental or private, and
execute and deliver a release, voucher, receipt, bill of lading,
shipping ticket, certificate, or other instrument for that purpose.
(c) Prepare, file, and prosecute a claim of the principal to a
benefit or assistance, financial or otherwise, to which the principal
claims to be entitled, under a statute or governmental regulation.
(d) Prosecute, defend, submit to arbitration, settle, and propose
or accept a compromise with respect to any benefits the principal may
be entitled to receive.
(e) Receive the financial proceeds of a claim of the type
described in this section, conserve, invest, disburse, or use
anything received for a lawful purpose.
SEC. 139. Section 7660 of the Probate Code is amended to read:
7660. (a) If a public administrator takes possession or control
of an estate pursuant to this chapter, the public administrator may,
acting as personal representative of the estate, summarily dispose of
the estate in the manner provided in this article in either of the
following circumstances:
(1) The total value of the property in the decedent's estate does
not exceed the amount prescribed in Section 13100. The authority
provided by this paragraph may be exercised only upon order of the
court. The order may be made upon ex parte application. The fee to be
allowed to the clerk for the filing of the application is two
hundred five dollars ($205). The authority for this summary
administration of the estate shall be evidenced by a court order for
summary disposition.
(2) The total value of the property in the decedent's estate does
not exceed fifty thousand dollars ($50,000). The authority provided
by this paragraph may be exercised without court authorization.
(A) A public administrator who is authorized to summarily dispose
of property of a decedent pursuant to this paragraph may issue a
written certification of Authority for Summary Administration. The
written certification is effective for 30 days after the date of
issuance.
(B) A financial institution, government or private agency,
retirement fund administrator, insurance company, licensed securities
dealer, or other person shall, without the necessity of inquiring
into the truth of the written certification of Authority for Summary
Administration and without court order or letters being issued, do
all of the following:
(i) Provide the public administrator complete information
concerning any property held in the name of the decedent, including
the names and addresses of any beneficiaries or joint owners.
(ii) Grant the public administrator access to a safe-deposit box
or storage facility rented in the name of the decedent for the
purpose of inspection and removal of property of the decedent. Costs
and expenses incurred in accessing a safe-deposit box or storage
facility shall be borne by the estate of the decedent.
(iii) Surrender to the public administrator any property of the
decedent that is held or controlled by the financial institution,
agency, retirement fund administrator, insurance company, licensed
securities dealer, or other person.
(C) Receipt by a financial institution, government or private
agency, retirement fund administrator, insurance company, licensed
securities dealer, or other person of the written certification
provided by this article shall do both of the following:
(i) Constitute sufficient acquittance for providing information or
granting access to a safe-deposit box or a storage facility and for
surrendering any property of the decedent.
(ii) Fully discharge the financial institution, government or
private agency, retirement fund administrator, insurance company,
licensed securities dealer, or other person from liability for any
act or omission of the public administrator with respect to the
property, a safe-deposit box, or a storage facility.
(b) Summary disposition may be made notwithstanding the existence
of the decedent's will, if the will does not name an executor or if
the named executor refuses to act.
(c) Nothing in this article precludes the public administrator
from filing a petition with the court under any other provision of
this code concerning the administration of the decedent's estate.
(d) Petitions filed pursuant to this article shall contain the
information required by Section 8002.
(e) If a public administrator takes possession or control of an
estate pursuant to this chapter, this article conveys the authority
of a personal representative as described in Section 9650 to the
public administrator to summarily dispose of the estates pursuant to
the procedures described in paragraphs (1) and (2) of subdivision
(a).
(f) The fee charged under paragraph (1) of subdivision (a) shall
be distributed as provided in Section 68085.4 of the Government Code.
When an application is filed under that paragraph, no other fees
shall be charged in addition to the uniform filing fee provided for
in Section 68085.4 of the Government Code.
SEC. 140. Section 13600 of the Probate Code is amended to read:
13600. (a) At any time after a husband or wife dies, the
surviving spouse or the guardian or conservator of the estate of the
surviving spouse may, without procuring letters of administration or
awaiting probate of the will, collect salary or other compensation
owed by an employer for personal services of the deceased spouse,
including compensation for unused vacation, not in excess of fifteen
thousand dollars ($15,000) net.
(b) Not more than fifteen thousand dollars ($15,000) net in the
aggregate may be collected by or for the surviving spouse under this
chapter from all of the employers of the decedent.
(c) For the purposes of this chapter, a guardian or conservator of
the estate of the surviving spouse may act on behalf of the
surviving spouse without authorization or approval of the court in
which the guardianship or conservatorship proceeding is pending.
(d) The fifteen-thousand-dollar ($15,000) net limitation set forth
in subdivisions (a) and (b) does not apply to the surviving spouse
or the guardian or conservator of the estate of the surviving spouse
of a firefighter or peace officer described in subdivision (a) of
Section 22820 of the Government Code.
(e) On January 1, 2003, and on January 1 of each year thereafter,
the maximum net amount of salary or compensation payable under
subdivisions (a) and (b) to the surviving spouse or the guardian or
conservator of the estate of the surviving spouse may be adjusted to
reflect any increase in the cost of living occurring after January 1
of the immediately preceding year. The United States city average of
the "Consumer Price Index for All Urban Consumers," as published by
the United States Bureau of Labor Statistics, shall be used as the
basis for determining the changes in the cost of living. The
cost-of-living increase shall equal or exceed 1 percent before any
adjustment is made. The net amount payable may not be decreased as a
result of the cost-of-living adjustment.
SEC. 141. Section 10490 of the Public Contract Code is amended to
read:
10490. (a) A scrutinized company is ineligible to, and shall not,
bid on or submit a proposal for a contract with a state agency for
goods or services related to products or services that are the reason
the company must comply with Section 13(p) of the federal Securities
Exchange Act of 1934.
(b) For purposes of this section, a "scrutinized company" is a
person that has been found to be in violation of Section 13(p) of the
federal Securities Exchange Act of 1934 by final judgment or
settlement entered in a civil or administrative action brought by the
United States Securities and Exchange Commission and the person has
not remedied or cured the violation in a manner accepted by the
commission on or before final judgment or settlement.
(c) A person shall cease to be regarded as a scrutinized company
when the person is no longer deemed to be in violation of Section 13
(p) of the federal Securities Exchange Act of 1934, or upon filing by
such person of an amended or corrective filing under Section 13(p)
of the federal Securities Exchange Act of 1934, which filing corrects
the violations described in subdivision (b), or after three years
from the date of final judgment or settlement, whichever is earlier.
(d) The Department of General Services shall establish in the
State Administrative Manual or the State Contracting Manual policies
and procedures for all state agencies, departments, boards, and
commissions to implement the contract prohibition of this section.
(e) For purposes of this section, "goods or services" includes
goods and services subject to this chapter (commencing with Section
10290), information technology goods and services subject to Chapter
3 (commencing with Section 12100), and telecommunication goods and
services subject to Chapter 3.5 (commencing with Section 12120).
SEC. 142. Section 2762 of the Public Resources Code is amended to
read:
2762. (a) Within 12 months of receiving the mineral information
described in Section 2761, and also within 12 months of the
designation of an area of statewide or regional significance within
its jurisdiction, a lead agency shall, in accordance with state
policy, establish mineral resource management policies to be
incorporated in its general plan that will:
(1) Recognize mineral information classified by the State
Geologist and transmitted by the board.
(2) Assist in the management of land use that affects access to
areas of statewide and regional significance.
(3) Emphasize the conservation and development of identified
mineral deposits.
(b) A lead agency shall submit proposed mineral resource
management policies to the board for review and comment prior to
adoption.
(c) A subsequent amendment of the mineral resource management
policy previously reviewed by the board shall also require review and
comment by the board.
(d) (1) If an area is classified by the State Geologist as an area
described in paragraph (2) of subdivision (b) of Section 2761 and
the lead agency either has designated that area in its general plan
as having important minerals to be protected pursuant to subdivision
(a), or otherwise has not yet acted pursuant to subdivision (a), then
prior to permitting a use that would threaten the potential to
extract minerals in that area, the lead agency shall prepare, in
conjunction with preparing, if required, an environmental document
required by Division 13 (commencing with Section 21000), a statement
specifying its reasons for permitting the proposed use, and shall
forward a copy to the State Geologist and the board for review.
(2) If the proposed use is subject to the requirements of Division
13 (commencing with Section 21000), the lead agency shall comply
with the public review requirements of that division. Otherwise, the
lead agency shall provide public notice of the availability of its
statement by all of the following:
(A) Publishing the notice at least one time in a newspaper of
general circulation in the area affected by the proposed use.
(B) Directly mailing the notice to owners of property within
one-half mile of the parcel or parcels on which the proposed use is
located as those owners are shown on the latest equalized assessment
roll.
(3) The public review period shall not be less than 60 days from
the date of the notice and shall include at least one public hearing.
The lead agency shall evaluate comments received and shall prepare a
written response. The written response shall describe the
disposition of the major issues raised. In particular, if the lead
agency's position on the proposed use is at variance with
recommendations and objections raised in the comments, the written
response shall address in detail why specific comments and
suggestions were not accepted.
(e) Prior to permitting a use that would threaten the potential to
extract minerals in an area classified by the State Geologist as an
area described in paragraph (3) of subdivision (b) of Section 2761,
the lead agency may cause to be prepared an evaluation of the area in
order to ascertain the significance of the mineral deposit located
in the area. The results of the evaluation shall be transmitted to
the State Geologist and the board.
SEC. 143. Section 4214 of the Public Resources Code is amended to
read:
4214. (a) Fire prevention fees collected pursuant to this chapter
shall be expended, upon appropriation by the Legislature, as
follows:
(1) The State Board of Equalization shall retain moneys necessary
for the payment of refunds pursuant to Section 4228 and reimbursement
of the State Board of Equalization for expenses incurred in the
collection of the fee.
(2) The moneys collected, other than that retained by the State
Board of Equalization pursuant to paragraph (1), shall be deposited
into the State Responsibility Area Fire Prevention Fund, which is
hereby created in the State Treasury, and shall be available to the
board and the department to expend for fire prevention activities
specified in subdivision (d) that benefit the owners of structures
within a state responsibility area who are required to pay the fire
prevention fee. The amount expended to benefit the owners of
structures within a state responsibility area shall be commensurate
with the amount collected from the owners within that state
responsibility area. All moneys in excess of the costs of
administration of the board and the department shall be expended only
for fire prevention activities in counties with state responsibility
areas.
(b) (1) The fund may also be used to cover the costs of
administering this chapter.
(2) The fund shall cover all startup costs incurred over a period
not to exceed two years.
(c) It is the intent of the Legislature that the moneys in this
fund be fully appropriated to the board and the department each year
in order to effectuate the purposes of this chapter.
(d) Moneys in the fund shall be used only for the following fire
prevention activities, which shall benefit owners of structures
within the state responsibility areas who are required to pay the
annual fire prevention fee pursuant to this chapter:
(1) Local assistance grants pursuant to subdivision (e).
(2) Grants to Fire Safe Councils, the California Conservation
Corps, or certified local conservation corps for fire prevention
projects and activities in the state responsibility areas.
(3) Grants to a qualified nonprofit organization with a
demonstrated ability to satisfactorily plan, implement, and complete
a fire prevention project applicable to the state responsibility
areas. The department may establish other qualifying criteria.
(4) Inspections by the department for compliance with defensible
space requirements around structures in state responsibility areas as
required by Section 4291.
(5) Public education to reduce fire risk in the state
responsibility areas.
(6) Fire severity and fire hazard mapping by the department in the
state responsibility areas.
(7) Other fire prevention projects in the state responsibility
areas, authorized by the board.
(e) (1) The board shall establish a local assistance grant program
for fire prevention activities designed to benefit structures within
state responsibility areas, including public education, that are
provided by counties and other local agencies, including special
districts, with state responsibility areas within their
jurisdictions.
(2) In order to ensure an equitable distribution of funds, the
amount of each grant shall be based on the number of structures in
state responsibility areas for which the applicant is legally
responsible and the amount of moneys made available in the annual
Budget Act for this local assistance grant program.
(f) By January 1, 2013, and annually thereafter, the board shall
submit to the Legislature a written report on the status and uses of
the fund pursuant to this chapter. The written report shall also
include an evaluation of the benefits received by counties based on
the number of structures in state responsibility areas within their
jurisdictions, the effectiveness of the board's grant programs, the
number of defensible space inspections in the reporting period, the
degree of compliance with defensible space requirements, measures to
increase compliance, if any, and any recommendations to the
Legislature.
(g) (1) The requirement for submitting a report imposed under
subdivision (f) is inoperative on January 1, 2017, pursuant to
Section 10231.5 of the Government Code.
(2) A report to be submitted pursuant to subdivision (f) shall be
submitted in compliance with Section 9795 of the Government Code.
(h) It is essential that this article be implemented without
delay. To permit timely implementation, the department may contract
for services related to the
establishment of the fire prevention fee collection process. For this
purpose only, and for a period not to exceed 24 months, the
provisions of the Public Contract Code or any other provision of law
related to public contracting shall not apply.
SEC. 144. Section 4514.5 of the Public Resources Code is amended
to read:
4514.5. A person may commence an action on his or her own behalf
against the board or the department for a writ of mandate pursuant to
Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the
Code of Civil Procedure to compel the board or the department to
carry out a duty imposed upon them pursuant to this chapter.
SEC. 145. Section 4527 of the Public Resources Code is amended to
read:
4527. (a) (1) "Timber operations" means the cutting or removal,
or both, of timber or other solid wood forest products, including
Christmas trees, from timberlands for commercial purposes, together
with all the incidental work, including, but not limited to,
construction and maintenance of roads, fuelbreaks, firebreaks, stream
crossings, landings, skid trails, and beds for the falling of trees,
fire hazard abatement, and site preparation that involves
disturbance of soil or burning of vegetation following timber
harvesting activities, but excluding preparatory work such as
treemarking, surveying, or roadflagging.
(2) "Commercial purposes" includes (A) the cutting or removal of
trees that are processed into logs, lumber, or other wood products
and offered for sale, barter, exchange, or trade, or (B) the cutting
or removal of trees or other forest products during the conversion of
timberlands to land uses other than the growing of timber that are
subject to Section 4621, including, but not limited to, residential
or commercial developments, production of other agricultural crops,
recreational developments, ski developments, water development
projects, and transportation projects.
(b) For purposes of this section, the removal of trees less than
16 inches in diameter at breast height from a firebreak or fuelbreak
does not constitute "timber operations" if the removal meets all of
the following criteria:
(1) It is located within 500 feet of the boundary of an urban
wildland interface community at high risk of wildfire, as defined in
pages 751 to 776, inclusive, of Volume 66 of the Federal Register (66
FR 751-02), as that definition may be amended from time to time. For
purposes of this paragraph, "urban wildland interface community at
high risk of wildfire" means an area having one or more structures
for every five acres.
(2) It is part of a community wildfire protection plan approved by
the department or part of a department fire plan.
(3) The trees to be removed will not be processed into logs or
lumber.
(4) The work to be conducted is under a firebreak or fuelbreak
project that has been subject to a project-based review pursuant to a
negative declaration, mitigated negative declaration, or
environmental impact report in compliance with the California
Environmental Quality Act (Division 13 (commencing with Section
21000)). For projects to be conducted on forested landscapes, as
defined in Section 754, the project and the project-based review
shall be prepared by or in consultation with a registered
professional forester.
(5) The removal of surface and ladder fuels is consistent with
paragraph (9) of subdivision (j) of Section 4584.
SEC. 146. Section 4551.5 of the Public Resources Code is amended
to read:
4551.5. Rules and regulations shall apply to the conduct of
timber operations and shall include, but shall not be limited to,
measures for fire prevention and control, for soil erosion control,
for site preparation that involves disturbance of soil or burning of
vegetation following timber harvesting activities, for water quality
and watershed control, for flood control, for stocking, for
protection against timber operations that unnecessarily destroy young
timber growth or timber productivity of the soil, for prevention and
control of damage by forest insects, pests, and disease, for the
protection of natural and scenic qualities in special treatment areas
identified pursuant to subdivision (b) of Section 30417, and for the
preparation of timber harvesting plans. In developing these rules,
the board shall solicit and consider recommendations from the
department, recommendations from the Department of Fish and Game
relating to the protection of fish and wildlife, recommendations from
the State Water Resources Control Board and the California regional
water quality control boards relating to water quality,
recommendations from the State Air Resources Board and local air
pollution control districts relating to air pollution control, and
recommendations of the California Coastal Commission relating to the
protection of natural and scenic coastal zone resources in special
treatment areas.
SEC. 147. Section 4561 of the Public Resources Code is amended to
read:
4561. It is the purpose of this section to set forth resource
conservation standards for timber operations, and to ensure that a
cover of trees of commercial species, sufficient to utilize
adequately the suitable and available growing space, is maintained or
established after timber operations.
To that end, the following resource conservation standards define
minimum acceptable stocking, and an area covered by a timber
harvesting plan shall be classified as acceptably stocked if either
of the following conditions exist within five years after completion
of timber operations:
(a) The area contains an average point count of 300 per acre,
except that in areas that the registered professional forester who
prepares the timber harvesting plan has determined are site IV
classification or lower, the minimum average point count shall be 150
per acre. Point count shall be computed as follows:
(1) A countable tree that is not more than four inches in diameter
at breast height to count as one.
(2) A countable tree over 4 inches and not more than 12 inches in
diameter at breast height to count as three.
(3) A countable tree over 12 inches in diameter at breast height
to count as six.
(b) (1) The average residual basal area, measured in stems one
inch or larger in diameter is at least 85 square feet per acre,
except that in areas that the registered professional forester who
prepares the timber harvesting plan has determined are site II
classification or lower, the minimum average residual basal area
shall be 50 square feet per acre.
(2) The board, on a finding that it is in furtherance of the
purposes of this chapter, may encourage selection, shelterwood, or
other types of management of timber if consistent with the biological
requirements of the tree species and may regulate the size and shape
of areas in which even-age management of timber is utilized.
(3) Rock outcroppings and other areas not normally bearing timber
shall not be considered as requiring stocking and are exempt from the
stocking provisions.
SEC. 148. Section 21092 of the Public Resources Code is amended to
read:
21092. (a) A lead agency that is preparing an environmental
impact report or a negative declaration or making a determination
pursuant to subdivision (c) of Section 21157.1 shall provide public
notice of that fact within a reasonable period of time prior to
certification of the environmental impact report, adoption of the
negative declaration, or making the determination pursuant to
subdivision (c) of Section 21157.1.
(b) (1) The notice shall specify the period during which comments
will be received on the draft environmental impact report or negative
declaration, and shall include the date, time, and place of any
public meetings or hearings on the proposed project, a brief
description of the proposed project and its location, the significant
effects on the environment, if any, anticipated as a result of the
project, the address where copies of the draft environmental impact
report or negative declaration, and all documents referenced in the
draft environmental impact report or negative declaration, are
available for review, and a description of how the draft
environmental impact report or negative declaration can be provided
in an electronic format.
(2) This section shall not be construed in any manner that results
in the invalidation of an action because of the alleged inadequacy
of the notice content if there has been substantial compliance with
the notice content requirements of this section.
(3) The notice required by this section shall be given to the last
known name and address of all organizations and individuals who have
previously requested notice, and shall also be given by at least one
of the following procedures:
(A) Publication, 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 affected by the proposed project. If more
than one area will be affected, the notice shall be published in the
newspaper of largest circulation from among the newspapers of general
circulation in those areas.
(B) Posting of notice by the lead agency on- and off-site in the
area where the project is to be located.
(C) Direct mailing to the owners and occupants of contiguous
property shown on the latest equalized assessment roll.
(c) For a project involving the burning of municipal wastes,
hazardous waste, or refuse-derived fuel, including, but not limited
to, tires, meeting the qualifications of subdivision (d), notice
shall be given to all organizations and individuals who have
previously requested notice and shall also be given by at least the
procedures specified in subparagraphs (A), (B), and (C) of paragraph
(3) of subdivision (b). In addition, notification shall be given by
direct mailing to the owners and occupants of property within
one-fourth of a mile of any parcel or parcels on which is located a
project subject to this subdivision.
(d) The notice requirements of subdivision (c) apply to both of
the following:
(1) The construction of a new facility.
(2) The expansion of an existing facility that burns hazardous
waste which would increase its permitted capacity by more than 10
percent. For purposes of this paragraph, the amount of expansion of
an existing facility shall be calculated by comparing the proposed
facility capacity with whichever of the following is applicable:
(A) The facility capacity approved in the facility's hazardous
waste facilities permit pursuant to Section 25200 of the Health and
Safety Code or its grant of interim status pursuant to Section
25200.5 of the Health and Safety Code, or the facility capacity
authorized in any state or local agency permit allowing the
construction or operation of a facility for the burning of hazardous
waste, granted before January 1, 1990.
(B) The facility capacity authorized in the facility's original
hazardous waste facilities permit, grant of interim status, or any
state or local agency permit allowing the construction or operation
of a facility for the burning of hazardous waste, granted on or after
January 1, 1990.
(e) The notice requirements specified in subdivision (b) or (c)
shall not preclude a public agency from providing additional notice
by other means if the agency so desires, or from providing the public
notice required by this section at the same time and in the same
manner as public notice otherwise required by law for the project.
SEC. 149. Section 21108 of the Public Resources Code is amended to
read:
21108. (a) If a state agency approves or determines to carry out
a project that is subject to this division, the state agency shall
file notice of that approval or that determination with the Office of
Planning and Research. The notice shall identify the person or
persons in subdivision (b) or (c) of Section 21065, as reflected in
the agency's record of proceedings, and indicate the determination of
the state agency whether the project will, or will not, have a
significant effect on the environment and shall indicate whether an
environmental impact report has been prepared pursuant to this
division.
(b) If a state agency determines that a project is not subject to
this division pursuant to subdivision (b) of Section 21080 or Section
21172, and the state agency approves or determines to carry out the
project, the state agency or the person specified in subdivision (b)
or (c) of Section 21065 may file notice of the determination with the
Office of Planning and Research. A notice filed pursuant to this
subdivision shall identify the person or persons in subdivision (b)
or (c) of Section 21065, as reflected in the agency's record of
proceedings. A notice filed pursuant to this subdivision by a person
specified in subdivision (b) or (c) of Section 21065 shall have a
certificate of determination attached to it issued by the state
agency responsible for making the determination that the project is
not subject to this division pursuant to subdivision (b) of Section
21080 or pursuant to Section 21172. The certificate of determination
may be in the form of a certified copy of an existing document or
record of the state agency.
(c) A notice filed pursuant to this section shall be available for
public inspection, and a list of these notices shall be posted on a
weekly basis in the Office of Planning and Research. Each list shall
remain posted for a period of 30 days. The Office of Planning and
Research shall retain each notice for not less than 12 months.
SEC. 150. Section 21152 of the Public Resources Code is amended to
read:
21152. (a) If a local agency approves or determines to carry out
a project that is subject to this division, the local agency shall
file notice of the approval or the determination within five working
days after the approval or determination becomes final, with the
county clerk of each county in which the project will be located. The
notice shall identify the person or persons in subdivision (b) or
(c) of Section 21065, as reflected in the agency's record of
proceedings, and indicate the determination of the local agency
whether the project will, or will not, have a significant effect on
the environment and shall indicate whether an environmental impact
report has been prepared pursuant to this division. The notice shall
also include certification that the final environmental impact
report, if one was prepared, together with comments and responses, is
available to the general public.
(b) If a local agency determines that a project is not subject to
this division pursuant to subdivision (b) of Section 21080 or
pursuant to Section 21172, and the local agency approves or
determines to carry out the project, the local agency or the person
specified in subdivision (b) or (c) of Section 21065 may file a
notice of the determination with the county clerk of each county in
which the project will be located. A notice filed pursuant to this
subdivision shall identify the person or persons in subdivision (b)
or (c) of Section 21065, as reflected in the agency's record of
proceedings. A notice filed pursuant to this subdivision by a person
specified in subdivision (b) or (c) of Section 21065 shall have a
certificate of determination attached to it issued by the local
agency responsible for making the determination that the project is
not subject to this division pursuant to subdivision (b) of Section
21080 or Section 21172. The certificate of determination may be in
the form of a certified copy of an existing document or record of the
local agency.
(c) A notice filed pursuant to this section shall be available for
public inspection, and shall be posted within 24 hours of receipt in
the office of the county clerk. A notice shall remain posted for a
period of 30 days. Thereafter, the clerk shall return the notice to
the local agency with a notation of the period it was posted. The
local agency shall retain the notice for not less than 12 months.
SEC. 151. Section 21167.6.5 of the Public Resources Code is
amended to read:
21167.6.5. (a) The petitioner or plaintiff shall name, as a real
party in interest, the person or persons identified by the public
agency in its notice filed pursuant to subdivision (a) or (b) of
Section 21108 or Section 21152 or, if no notice is filed, the person
or persons in subdivision (b) or (c) of Section 21065, as reflected
in the agency's record of proceedings for the project that is the
subject of an action or proceeding brought pursuant to Section 21167,
21168, or 21168.5, and shall serve the petition or complaint on that
real party in interest, by personal service, mail, facsimile, or any
other method permitted by law, not later than 20 business days
following service of the petition or complaint on the public agency.
(b) The public agency shall provide the petitioner or plaintiff,
not later than 10 business days following service of the petition or
complaint on the public agency, with a list of responsible agencies
and a public agency having jurisdiction over a natural resource
affected by the project.
(c) The petitioner or plaintiff shall provide the responsible
agencies, and a public agency having jurisdiction over a natural
resource affected by the project, with notice of the action or
proceeding within 15 days of receipt of the list described in
subdivision (b).
(d) Failure to name potential persons, other than those real
parties in interest described in subdivision (a), is not grounds for
dismissal pursuant to Section 389 of the Code of Civil Procedure.
(e) This section is not intended to affect an existing right of a
party to intervene in the action.
SEC. 152. Section 25747 of the Public Resources Code is amended to
read:
25747. (a) The commission shall adopt guidelines governing the
funding programs authorized under this chapter, at a publicly noticed
meeting offering all interested parties an opportunity to comment.
Substantive changes to the guidelines shall not be adopted without at
least 10 days' written notice to the public. The public notice of
meetings required by this subdivision shall not be less than 30 days.
Notwithstanding any other law, any guidelines adopted pursuant to
this chapter or Section 399.25 of the Public Utilities Code, shall be
exempt from the requirements of Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code.
The Legislature declares that the changes made to this subdivision by
the act amending this section during the 2002 portion of the 2001-02
Regular Session are declaratory of, and not a change in, existing
law.
(b) Funds to further the purposes of this chapter may be committed
for multiple years.
(c) Awards made pursuant to this chapter are grants, subject to
appeal to the commission upon a showing that factors other than those
described in the guidelines adopted by the commission were applied
in making the awards and payments. Any actions taken by an applicant
to apply for, or become or remain eligible and registered to receive,
payments or awards, including satisfying conditions specified by the
commission, shall not constitute the rendering of goods, services,
or a direct benefit to the commission.
(d) An award made pursuant to this chapter, the amount of the
award, and the terms and conditions of the grant are public
information.
SEC. 153. Section 278 of the Public Utilities Code is amended to
read:
278. (a) (1) Commencing on July 1, 2003, there is hereby created
the Telecommunications Access for Deaf and Disabled Administrative
Committee, formerly the Deaf and Disabled Telecommunications Program
Administrative Committee, as an advisory board to advise the
commission regarding the development, implementation, and
administration of programs to provide specified telecommunications
services and equipment to persons in this state who are deaf or
disabled, as provided for in Sections 2881, 2881.1, and 2881.2.
(2) In addition to the membership qualifications established by
the commission pursuant to subdivision (a) of Section 271, the
commission shall establish qualifications for persons to serve as
members of the Telecommunications Access for Deaf and Disabled
Administrative Committee so that consumers of telecommunications
services for the deaf and disabled comprise not less than two-thirds
of the membership of the committee. To the extent feasible, one of
those members shall have experience in the administration of programs
similar to those provided for in Sections 2881, 2881.1, and 2881.2.
(3) As part of its advisory role, as specified in paragraph (1),
the Telecommunications Access for Deaf and Disabled Administrative
Committee shall advise the commission regarding contracts and
agreements related to the Deaf and Disabled Telecommunications
Program as specified in subdivisions (d) and (e) of Section 2881.4.
(b) All revenues collected by telephone corporations in rates
authorized by the commission to fund the programs specified in
subdivision (a) shall be submitted to the commission pursuant to a
schedule established by the commission. Commencing on July 1, 2003,
and continuing thereafter, the commission shall transfer the moneys
received, and all unexpended revenue collected prior to July 1, 2003,
to the Controller for deposit in the Deaf and Disabled
Telecommunications Program Administrative Committee Fund. All
interest earned by moneys in the fund shall be deposited in the fund.
Those revenues that are collected pursuant to subdivision (g) of
Section 2881 shall be accounted for separately, as required by
subdivision (b) of Section 2881.2, and deposited in the fund created
by the commission pursuant to subdivision (b) of Section 2881.2.
(c) Moneys appropriated from the Deaf and Disabled
Telecommunications Program Administrative Committee Fund to the
commission shall be utilized exclusively by the commission for the
programs specified in subdivision (a), including all costs of the
committee and the commission associated with the administration and
oversight of the programs and the fund.
(d) Commencing on July 1, 2003, staffing costs incurred by the
commission for oversight and administration of the programs described
in subdivision (a) shall be funded by moneys appropriated from the
Deaf and Disabled Telecommunications Program Administrative Committee
Fund.
SEC. 154. Section 366.2 of the Public Utilities Code is amended to
read:
366.2. (a) (1) Customers shall be entitled to aggregate their
electric loads as members of their local community with community
choice aggregators.
(2) Customers may aggregate their loads through a public process
with community choice aggregators, if each customer is given an
opportunity to opt out of his or her community's aggregation program.
(3) If a customer opts out of a community choice aggregator's
program, or has no community choice aggregation program available,
that customer shall have the right to continue to be served by the
existing electrical corporation or its successor in interest.
(4) The implementation of a community choice aggregation program
shall not result in a shifting of costs between the customers of the
community choice aggregator and the bundled service customers of an
electrical corporation.
(5) A community choice aggregator shall be solely responsible for
all generation procurement activities on behalf of the community
choice aggregator's customers, except where other generation
procurement arrangements are expressly authorized by statute.
(b) If a public agency seeks to serve as a community choice
aggregator, it shall offer the opportunity to purchase electricity to
all residential customers within its jurisdiction.
(c) (1) Notwithstanding Section 366, a community choice aggregator
is hereby authorized to aggregate the electrical load of interested
electricity consumers within its boundaries to reduce transaction
costs to consumers, provide consumer protections, and leverage the
negotiation of contracts. However, the community choice aggregator
may not aggregate electrical load if that load is served by a local
publicly owned electric utility. A community choice aggregator may
group retail electricity customers to solicit bids, broker, and
contract for electricity and energy services for those customers. The
community choice aggregator may enter into agreements for services
to facilitate the sale and purchase of electricity and other related
services. Those service agreements may be entered into by an entity
authorized to be a community choice aggregator, as defined in Section
331.1.
(2) Under community choice aggregation, customer participation may
not require a positive written declaration, but each customer shall
be informed of his or her right to opt out of the community choice
aggregation program. If no negative declaration is made by a
customer, that customer shall be served through the community choice
aggregation program. If an existing customer moves the location of
his or her electric service within the jurisdiction of the community
choice aggregator, the customer shall retain the same subscriber
status as prior to the move, unless the customer affirmatively
changes his or her subscriber status. If the customer is moving from
outside to inside the jurisdiction of the community choice
aggregator, customer participation shall not require a positive
written declaration, but the customer shall be informed of his or her
right to elect not to receive service through the community choice
aggregator.
(3) A community choice aggregator establishing electrical load
aggregation pursuant to this section shall develop an implementation
plan detailing the process and consequences of aggregation. The
implementation plan, and any subsequent changes to it, shall be
considered and adopted at a duly noticed public hearing. The
implementation plan shall contain all of the following:
(A) An organizational structure of the program, its operations,
and its funding.
(B) Ratesetting and other costs to participants.
(C) Provisions for disclosure and due process in setting rates and
allocating costs among participants.
(D) The methods for entering and terminating agreements with other
entities.
(E) The rights and responsibilities of program participants,
including, but not limited to, consumer protection procedures, credit
issues, and shutoff procedures.
(F) Termination of the program.
(G) A description of the third parties that will be supplying
electricity under the program, including, but not limited to,
information about financial, technical, and operational capabilities.
(4) A community choice aggregator establishing electrical load
aggregation shall prepare a statement of intent with the
implementation plan. Any
community choice load aggregation established pursuant to this
section shall provide for the following:
(A) Universal access.
(B) Reliability.
(C) Equitable treatment of all classes of customers.
(D) Any requirements established by state law or by the commission
concerning aggregated service, including those rules adopted by the
commission pursuant to paragraph (3) of subdivision (b) of Section
8341 for the application of the greenhouse gases emission performance
standard to community choice aggregators.
(5) In order to determine the cost-recovery mechanism to be
imposed on the community choice aggregator pursuant to subdivisions
(d), (e), and (f) that shall be paid by the customers of the
community choice aggregator to prevent shifting of costs, the
community choice aggregator shall file the implementation plan with
the commission, and any other information requested by the commission
that the commission determines is necessary to develop the
cost-recovery mechanism in subdivisions (d), (e), and (f).
(6) The commission shall notify any electrical corporation serving
the customers proposed for aggregation that an implementation plan
initiating community choice aggregation has been filed, within 10
days of the filing.
(7) Within 90 days after the community choice aggregator
establishing load aggregation files its implementation plan, the
commission shall certify that it has received the implementation
plan, including any additional information necessary to determine a
cost-recovery mechanism. After certification of receipt of the
implementation plan and any additional information requested, the
commission shall then provide the community choice aggregator with
its findings regarding any cost recovery that must be paid by
customers of the community choice aggregator to prevent a shifting of
costs as provided for in subdivisions (d), (e), and (f).
(8) No entity proposing community choice aggregation shall act to
furnish electricity to electricity consumers within its boundaries
until the commission determines the cost recovery that must be paid
by the customers of that proposed community choice aggregation
program, as provided for in subdivisions (d), (e), and (f). The
commission shall designate the earliest possible effective date for
implementation of a community choice aggregation program, taking into
consideration the impact on any annual procurement plan of the
electrical corporation that has been approved by the commission.
(9) All electrical corporations shall cooperate fully with any
community choice aggregators that investigate, pursue, or implement
community choice aggregation programs. Cooperation shall include
providing the entities with appropriate billing and electrical load
data, including, but not limited to, electrical consumption data as
defined in Section 8380 and other data detailing electricity needs
and patterns of usage, as determined by the commission, and in
accordance with procedures established by the commission. The
commission shall exercise its authority pursuant to Chapter 11
(commencing with Section 2100) to enforce the requirements of this
paragraph when it finds that the requirements of this paragraph have
been violated. Electrical corporations shall continue to provide all
metering, billing, collection, and customer service to retail
customers that participate in community choice aggregation programs.
Bills sent by the electrical corporation to retail customers shall
identify the community choice aggregator as providing the electrical
energy component of the bill. The commission shall determine the
terms and conditions under which the electrical corporation provides
services to community choice aggregators and retail customers.
(10) If the commission finds that an electrical corporation has
violated this section, the commission shall consider the impact of
the violation upon community choice aggregators.
(11) The commission shall proactively expedite the complaint
process for disputes regarding an electrical corporation's violation
of its obligations pursuant to this section in order to provide for
timely resolution of complaints made by community choice aggregation
programs, so that all complaints are resolved in no more than 180
days following the filing of a complaint by a community choice
aggregation program concerning the actions of the incumbent
electrical corporation. This deadline may only be extended under
either of the following circumstances:
(A) Upon agreement of all of the parties to the complaint.
(B) The commission makes a written determination that the deadline
cannot be met, including findings for the reason for this
determination, and issues an order extending the deadline. A single
order pursuant to this subparagraph shall not extend the deadline for
more than 60 days.
(12) (A) An entity authorized to be a community choice aggregator,
as defined in Section 331.1, that elects to implement a community
choice aggregation program within its jurisdiction pursuant to this
chapter, shall do so by ordinance. A city, county, or city and county
may request, by affirmative resolution of its governing council or
board, that another entity authorized to be a community choice
aggregator act as the community choice aggregator on its behalf. If a
city, county, or city and county, by resolution, requests another
authorized entity be the community choice aggregator for the city,
county, or city and county, that authorized entity shall be
responsible for adopting the ordinance to implement the community
choice aggregation program on behalf of the city, county, or city and
county.
(B) Two or more entities authorized to be a community choice
aggregator, as defined in Section 331.1, may participate as a group
in a community choice aggregation program pursuant to this chapter,
through a joint powers agency established pursuant to Chapter 5
(commencing with Section 6500) of Division 7 of Title 1 of the
Government Code, if each entity adopts an ordinance pursuant to
subparagraph (A). Pursuant to Section 6508.1 of the Government Code,
members of a joint powers agency that is a community choice
aggregator may specify in their joint powers agreement that, unless
otherwise agreed by the members of the agency, the debts,
liabilities, and obligations of the agency shall not be the debts,
liabilities, and obligations, either jointly or severally, of the
members of the agency. The commission shall not, as a condition of
registration or otherwise, require an agency's members to voluntarily
assume the debts, liabilities, and obligations of the agency to the
electrical corporation unless the commission finds that the agreement
by the agency's members is the only reasonable means by which the
agency may establish its creditworthiness under the electrical
corporation's tariff to pay charges to the electrical corporation
under the tariff.
(13) Following adoption of aggregation through the ordinance
described in paragraph (12), the program shall allow any retail
customer to opt out and to continue to be served as a bundled service
customer by the existing electrical corporation, or its successor in
interest. Delivery services shall be provided at the same rates,
terms, and conditions, as approved by the commission, for community
choice aggregation customers and customers that have entered into a
direct transaction where applicable, as determined by the commission.
Once enrolled in the aggregated entity, any ratepayer that chooses
to opt out within 60 days or two billing cycles of the date of
enrollment may do so without penalty and shall be entitled to receive
default service pursuant to paragraph (3) of subdivision (a).
Customers that return to the electrical corporation for procurement
services shall be subject to the same terms and conditions as are
applicable to other returning direct access customers from the same
class, as determined by the commission, as authorized by the
commission pursuant to this code or any other provision of law,
except that those customers shall be subject to no more than a
12-month stay requirement with the electrical corporation. Any
reentry fees to be imposed after the opt-out period specified in this
paragraph, shall be approved by the commission and shall reflect the
cost of reentry. The commission shall exclude any amounts previously
determined and paid pursuant to subdivisions (d), (e), and (f) from
the cost of reentry.
(14) Nothing in this section shall be construed as authorizing any
city or any community choice retail load aggregator to restrict the
ability of retail electricity customers to obtain or receive service
from any authorized electric service provider in a manner consistent
with law.
(15) (A) The community choice aggregator shall fully inform
participating customers at least twice within two calendar months, or
60 days, in advance of the date of commencing automatic enrollment.
Notifications may occur concurrently with billing cycles. Following
enrollment, the aggregated entity shall fully inform participating
customers for not less than two consecutive billing cycles.
Notification may include, but is not limited to, direct mailings to
customers, or inserts in water, sewer, or other utility bills. Any
notification shall inform customers of both of the following:
(i) That they are to be automatically enrolled and that the
customer has the right to opt out of the community choice aggregator
without penalty.
(ii) The terms and conditions of the services offered.
(B) The community choice aggregator may request the commission to
approve and order the electrical corporation to provide the
notification required in subparagraph (A). If the commission orders
the electrical corporation to send one or more of the notifications
required pursuant to subparagraph (A) in the electrical corporation's
normally scheduled monthly billing process, the electrical
corporation shall be entitled to recover from the community choice
aggregator all reasonable incremental costs it incurs related to the
notification or notifications. The electrical corporation shall fully
cooperate with the community choice aggregator in determining the
feasibility and costs associated with using the electrical
corporation's normally scheduled monthly billing process to provide
one or more of the notifications required pursuant to subparagraph
(A).
(C) Each notification shall also include a mechanism by which a
ratepayer may opt out of community choice aggregated service. The opt
out may take the form of a self-addressed return postcard indicating
the customer's election to remain with, or return to, electrical
energy service provided by the electrical corporation, or another
straightforward means by which the customer may elect to derive
electrical energy service through the electrical corporation
providing service in the area.
(16) A community choice aggregator shall have an operating service
agreement with the electrical corporation prior to furnishing
electric service to consumers within its jurisdiction. The service
agreement shall include performance standards that govern the
business and operational relationship between the community choice
aggregator and the electrical corporation. The commission shall
ensure that any service agreement between the community choice
aggregator and the electrical corporation includes equitable
responsibilities and remedies for all parties. The parties may
negotiate specific terms of the service agreement, provided that the
service agreement is consistent with this chapter.
(17) The community choice aggregator shall register with the
commission, which may require additional information to ensure
compliance with basic consumer protection rules and other procedural
matters.
(18) Once the community choice aggregator's contract is signed,
the community choice aggregator shall notify the applicable
electrical corporation that community choice service will commence
within 30 days.
(19) Once notified of a community choice aggregator program, the
electrical corporation shall transfer all applicable accounts to the
new supplier within a 30-day period from the date of the close of the
electrical corporation's normally scheduled monthly metering and
billing process.
(20) An electrical corporation shall recover from the community
choice aggregator any costs reasonably attributable to the community
choice aggregator, as determined by the commission, of implementing
this section, including, but not limited to, all business and
information system changes, except for transaction-based costs as
described in this paragraph. Any costs not reasonably attributable to
a community choice aggregator shall be recovered from ratepayers, as
determined by the commission. All reasonable transaction-based costs
of notices, billing, metering, collections, and customer
communications or other services provided to an aggregator or its
customers shall be recovered from the aggregator or its customers on
terms and at rates to be approved by the commission.
(21) At the request and expense of any community choice
aggregator, electrical corporations shall install, maintain, and
calibrate metering devices at mutually agreeable locations within or
adjacent to the community choice aggregator's political boundaries.
The electrical corporation shall read the metering devices and
provide the data collected to the community choice aggregator at the
aggregator's expense. To the extent that the community choice
aggregator requests a metering location that would require alteration
or modification of a circuit, the electrical corporation shall only
be required to alter or modify a circuit if such alteration or
modification does not compromise the safety, reliability, or
operational flexibility of the electrical corporation's facilities.
All costs incurred to modify circuits pursuant to this paragraph,
shall be borne by the community choice aggregator.
(d) (1) It is the intent of the Legislature that each retail
end-use customer that has purchased power from an electrical
corporation on or after February 1, 2001, should bear a fair share of
the Department of Water Resources' electricity purchase costs, as
well as electricity purchase contract obligations incurred as of the
effective date of the act adding this section, that are recoverable
from electrical corporation customers in commission-approved rates.
It is further the intent of the Legislature to prevent any shifting
of recoverable costs between customers.
(2) The Legislature finds and declares that this subdivision is
consistent with the requirements of Division 27 (commencing with
Section 80000) of the Water Code and Section 360.5 of this code, and
is therefore declaratory of existing law.
(e) A retail end-use customer that purchases electricity from a
community choice aggregator pursuant to this section shall pay both
of the following:
(1) A charge equivalent to the charges that would otherwise be
imposed on the customer by the commission to recover bond-related
costs pursuant to any agreement between the commission and the
Department of Water Resources pursuant to Section 80110 of the Water
Code, which charge shall be payable until any obligations of the
Department of Water Resources pursuant to Division 27 (commencing
with Section 80000) of the Water Code are fully paid or otherwise
discharged.
(2) Any additional costs of the Department of Water Resources,
equal to the customer's proportionate share of the Department of
Water Resources' estimated net unavoidable electricity purchase
contract costs as determined by the commission, for the period
commencing with the customer's purchases of electricity from the
community choice aggregator, through the expiration of all then
existing electricity purchase contracts entered into by the
Department of Water Resources.
(f) A retail end-use customer purchasing electricity from a
community choice aggregator pursuant to this section shall reimburse
the electrical corporation that previously served the customer for
all of the following:
(1) The electrical corporation's unrecovered past undercollections
for electricity purchases, including any financing costs,
attributable to that customer, that the commission lawfully
determines may be recovered in rates.
(2) Any additional costs of the electrical corporation recoverable
in commission-approved rates, equal to the share of the electrical
corporation's estimated net unavoidable electricity purchase contract
costs attributable to the customer, as determined by the commission,
for the period commencing with the customer's purchases of
electricity from the community choice aggregator, through the
expiration of all then existing electricity purchase contracts
entered into by the electrical corporation.
(g) Estimated net unavoidable electricity costs paid by the
customers of a community choice aggregator shall be reduced by the
value of any benefits that remain with bundled service customers,
unless the customers of the community choice aggregator are allocated
a fair and equitable share of those benefits.
(h) (1) Any charges imposed pursuant to subdivision (e) shall be
the property of the Department of Water Resources. Any charges
imposed pursuant to subdivision (f) shall be the property of the
electrical corporation. The commission shall establish mechanisms,
including agreements with, or orders with respect to, electrical
corporations necessary to ensure that charges payable pursuant to
this section shall be promptly remitted to the party entitled to
payment.
(2) Charges imposed pursuant to subdivisions (d), (e), and (f)
shall be nonbypassable.
(i) The commission shall authorize community choice aggregation
only if the commission imposes a cost-recovery mechanism pursuant to
subdivisions (d), (e), (f), and (h). Except as provided by this
subdivision, this section shall not alter the suspension by the
commission of direct purchases of electricity from alternate
providers other than by community choice aggregators, pursuant to
Section 365.1.
(j) (1) The commission shall not authorize community choice
aggregation until it implements a cost-recovery mechanism, consistent
with subdivisions (d), (e), and (f), that is applicable to customers
that elected to purchase electricity from an alternate provider
between February 1, 2001, and January 1, 2003.
(2) The commission shall not authorize community choice
aggregation until it has adopted rules for implementing community
choice aggregation.
(k) (1) Except for nonbypassable charges imposed by the commission
pursuant to subdivisions (d), (e), (f), and (h), and programs
authorized by the commission to provide broader statewide or regional
benefits to all customers, electric service customers of a community
choice aggregator shall not be required to pay nonbypassable charges
for goods, services, or programs that do not benefit either, or
where applicable, both, the customer and the community choice
aggregator serving the customer.
(2) The commission, Energy Commission, electrical corporation, or
third-party administrator shall administer any program funded through
a nonbypassable charge on a nondiscriminatory basis so that the
electric service customers of a community choice aggregator may
participate in the program on an equal basis with the customers of an
electrical corporation.
(3) Nothing in this subdivision is intended to modify, or prohibit
the use of, charges funding programs for the benefit of low-income
customers.
(l) (1) An electrical corporation shall not terminate the services
of a community choice aggregator unless authorized by a vote of the
full commission. The commission shall ensure that prior to
authorizing a termination of service, that the community choice
aggregator has been provided adequate notice and a reasonable
opportunity to be heard regarding any electrical corporation
contentions in support of termination. If the contentions made by the
electrical corporation in favor of termination include factual
claims, the community choice aggregator shall be afforded an
opportunity to address those claims in an evidentiary hearing.
(2) Notwithstanding paragraph (1), if the Independent System
Operator has transferred the community choice aggregator's scheduling
coordination responsibilities to the incumbent electrical
corporation, an administrative law judge or assigned commissioner,
after providing the aggregator with notice and an opportunity to
respond, may suspend the aggregator's service to customers pending a
full vote of the commission.
(m) Any meeting of an entity authorized to be a community choice
aggregator, as defined in Section 331.1, for the purpose of
developing, implementing, or administering a program of community
choice aggregation shall be conducted in the manner prescribed by the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of
Part 1 of Division 2 of Title 5 of the Government Code).
SEC. 155. Section 381.1 of the Public Utilities Code is amended to
read:
381.1. (a) No later than July 15, 2003, the commission shall
establish policies and procedures by which any party, including, but
not limited to, a local entity that establishes a community choice
aggregation program, may apply to become administrators for
cost-effective energy efficiency and conservation programs
established pursuant to Section 381. In determining whether to
approve an application to become administrators and subject to an
aggregator's right to elect to become an administrator pursuant to
subdivision (f), the commission shall consider the value of program
continuity and planning certainty and the value of allowing
competitive opportunities for potentially new administrators. The
commission shall weigh the benefits of the party's proposed program
to ensure that the program meets the following objectives:
(1) Is consistent with the goals of the existing programs
established pursuant to Section 381.
(2) Advances the public interest in maximizing cost-effective
electricity savings and related benefits.
(3) Accommodates the need for broader statewide or regional
programs.
(b) All audit and reporting requirements established by the
commission pursuant to Section 381 and other statutes shall apply to
the parties chosen as administrators under this section.
(c) If a community choice aggregator is not the administrator of
energy efficiency and conservation programs for which its customers
are eligible, the commission shall require the administrator of
cost-effective energy efficiency and conservation programs to direct
a proportional share of its approved energy efficiency program
activities for which the community choice aggregator's customers are
eligible, to the community choice aggregator's territory without
regard to customer class. To the extent that energy efficiency and
conservation programs are targeted to specific locations to avoid or
defer transmission or distribution system upgrades, the targeted
expenditures shall continue irrespective of whether the loads in
those locations are served by an aggregator or by an electrical
corporation. The commission shall also direct the administrator to
work with the community choice aggregator, to provide advance
information where appropriate about the likely impacts of energy
efficiency programs and to accommodate any unique community program
needs by placing more, or less, emphasis on particular approved
programs to the extent that these special shifts in emphasis in no
way diminish the effectiveness of broader statewide or regional
programs. If the community choice aggregator proposes energy
efficiency programs other than programs already approved for
implementation in its territory, it shall do so under established
commission policies and procedures. The commission may order an
adjustment to the share of energy efficiency program activities
directed to a community choice aggregator's territory if necessary to
ensure an equitable and cost-effective allocation of energy
efficiency program activities.
(d) The commission shall establish an impartial process for making
the determination of whether a third party, including a community
choice aggregator, may become administrators for cost-effective
energy efficiency and conservation programs pursuant to subdivision
(a), and shall not delegate or otherwise transfer the commission's
authority to make this determination for a community choice
aggregator to an electrical corporation.
(e) The impartial process established by the commission shall
allow a registered community choice aggregator to elect to become the
administrator of funds collected from the aggregator's electric
service customers and collected through a nonbypassable charge
authorized by the commission, for cost-effective energy efficiency
and conservation programs, except those funds collected for broader
statewide and regional programs authorized by the commission.
(f) A community choice aggregator electing to become an
administrator shall submit a plan, approved by its governing board,
to the commission for the administration of cost-effective energy
efficiency and conservation programs for the aggregator's electric
service customers that includes funding requirements, a program
description, a cost-effectiveness analysis, and the duration of the
program. The commission shall certify that the plan submitted does
all of the following:
(1) Is consistent with the goals of the programs established
pursuant to this section and Section 399.4.
(2) Advances the public interest in maximizing cost-effective
electricity savings and related benefits.
(3) Accommodates the need for broader statewide or regional
programs.
(4) Includes audit and reporting requirements consistent with the
audit and reporting requirements established by the commission
pursuant to this section.
(5) Includes evaluation, measurement, and verification protocols
established by the community choice aggregator.
(6) Includes performance metrics regarding the community choice
aggregator's achievement of the objectives listed in paragraphs (1)
to (5), inclusive, and in any previous plan.
(g) If the commission does not certify the plan for the
administration of cost-effective energy efficiency and conservation
programs submitted by a community choice aggregator pursuant to
subdivision (f), the community choice aggregator electing to
administer these programs may submit an amended plan to the
commission for certification. No moneys may be released to a
community choice aggregator unless the commission certifies the plan
pursuant to subdivision (f).
SEC. 156. Section 395.5 of the Public Utilities Code is amended to
read:
395.5. (a) For purposes
of this section, the following terms have the following meanings:
(1) "Nonprofit charitable organization" means any charitable
organization described in Section 501(c)(3) of the federal Internal
Revenue Code that has as its primary purpose serving the needs of the
poor or elderly.
(2) "Electric commodity" means electricity used by the customer or
a supply of electricity available for use by the customer, and does
not include services associated with the transmission and
distribution of electricity.
(b) Notwithstanding Section 80110 of the Water Code, a nonprofit
charitable organization may acquire electric commodity service
through a direct transaction with an electric service provider if
electric commodity service is donated free of charge without
compensation.
(c) A nonprofit charitable organization that acquires donated
electric commodity service through a direct transaction pursuant to
this section shall be responsible for paying all of the following:
(1) Those charges and surcharges that would be imposed upon a
retail end-use customer of a community choice aggregator pursuant to
subdivisions (d), (e), (f), and (h) of Section 366.2.
(2) The transmission and distribution charges of an electrical
corporation or a local publicly owned electric utility.
(3) A nonbypassable charge imposed pursuant to Article 7
(commencing with Section 381), Article 8 (commencing with Section
385), or Article 15 (commencing with Section 399).
(4) Costs imposed upon a load-serving entity pursuant to Section
380.
(d) Existing direct access rules and all service obligations
otherwise applicable to electric service providers shall govern
transactions under this section.
(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. 157. Section 399.11 of the Public Utilities Code is amended
to read:
399.11. The Legislature finds and declares all of the following:
(a) In order to attain a target of generating 20 percent of total
retail sales of electricity in California from eligible renewable
energy resources by December 31, 2013, and 33 percent by December 31,
2020, it is the intent of the Legislature that the commission and
the Energy Commission implement the California Renewables Portfolio
Standard Program described in this article.
(b) Achieving the renewables portfolio standard through the
procurement of various electricity products from eligible renewable
energy resources is intended to provide unique benefits to
California, including all of the following, each of which
independently justifies the program:
(1) Displacing fossil fuel consumption within the state.
(2) Adding new electrical generating facilities in the
transmission network within the Western Electricity Coordinating
Council service area.
(3) Reducing air pollution in the state.
(4) Meeting the state's climate change goals by reducing emissions
of greenhouse gases associated with electrical generation.
(5) Promoting stable retail rates for electric service.
(6) Meeting the state's need for a diversified and balanced energy
generation portfolio.
(7) Assistance with meeting the state's resource adequacy
requirements.
(8) Contributing to the safe and reliable operation of the
electrical grid, including providing predictable electrical supply,
voltage support, lower line losses, and congestion relief.
(9) Implementing the state's transmission and land use planning
activities related to development of eligible renewable energy
resources.
(c) The California Renewables Portfolio Standard Program is
intended to complement the Renewable Energy Resources Program
administered by the Energy Commission and established pursuant to
Chapter 8.6 (commencing with Section 25740) of Division 15 of the
Public Resources Code.
(d) New and modified electric transmission facilities may be
necessary to facilitate the state achieving its renewables portfolio
standard targets.
(e) (1) Supplying electricity to California end-use customers that
is generated by eligible renewable energy resources is necessary to
improve California's air quality and public health, and the
commission shall ensure rates are just and reasonable, and are not
significantly affected by the procurement requirements of this
article. This electricity may be generated anywhere in the
interconnected grid that includes many states, and areas of both
Canada and Mexico.
(2) This article requires generating resources located outside of
California that are able to supply that electricity to California
end-use customers to be treated identically to generating resources
located within the state, without discrimination.
(3) California electrical corporations have already executed, and
the commission has approved, power purchase agreements with eligible
renewable energy resources located outside of California that will
supply electricity to California end-use customers. These resources
will fully count toward meeting the renewables portfolio standard
procurement requirements. In addition, there are nearly 7,000
megawatts of additional proposed renewable energy resources located
outside of California that are awaiting interconnection approval from
the Independent System Operator. All of these resources, if
procured, will count as eligible renewable energy resources that
satisfy the portfolio content requirements of paragraph (1) of
subdivision (c) of Section 399.16.
SEC. 158. Section 399.12 of the Public Utilities Code is amended
to read:
399.12. For purposes of this article, the following terms have
the following meanings:
(a) "Conduit hydroelectric facility" means a facility for the
generation of electricity that uses only the hydroelectric potential
of an existing pipe, ditch, flume, siphon, tunnel, canal, or other
manmade conduit that is operated to distribute water for a beneficial
use.
(b) "Balancing authority" means the responsible entity that
integrates resource plans ahead of time, maintains load-interchange
generation balance within a balancing authority area, and supports
interconnection frequency in real time.
(c) "Balancing authority area" means the collection of generation,
transmission, and loads within the metered boundaries of the area
within which the balancing authority maintains the electrical
load-resource balance.
(d) "California balancing authority" is a balancing authority with
control over a balancing authority area primarily located in this
state and operating for retail sellers and local publicly owned
electric utilities subject to the requirements of this article and
includes the Independent System Operator (ISO) and a local publicly
owned electric utility operating a transmission grid that is not
under the operational control of the ISO. A California balancing
authority is responsible for the operation of the transmission grid
within its metered boundaries which may not be limited by the
political boundaries of the State of California.
(e) "Eligible renewable energy resource" means an electrical
generating facility that meets the definition of a "renewable
electrical generation facility" in Section 25741 of the Public
Resources Code, subject to the following:
(1) (A) An existing small hydroelectric generation facility of 30
megawatts or less shall be eligible only if a retail seller or local
publicly owned electric utility procured the electricity from the
facility as of December 31, 2005. A small hydroelectric generation
unit with a nameplate capacity not exceeding 40 megawatts that is
operated as part of a water supply or conveyance system is an
eligible renewable energy resource if the retail seller or local
publicly owned electric utility procured the electricity from the
facility as of December 31, 2005. A new hydroelectric facility that
commences generation of electricity after December 31, 2005, is not
an eligible renewable energy resource if it will cause an adverse
impact on instream beneficial uses or cause a change in the volume or
timing of streamflow.
(B) Notwithstanding subparagraph (A), a conduit hydroelectric
facility of 30 megawatts or less that commenced operation before
January 1, 2006, is an eligible renewable energy resource. A conduit
hydroelectric facility of 30 megawatts or less that commences
operation after December 31, 2005, is an eligible renewable energy
resource so long as it does not cause an adverse impact on instream
beneficial uses or cause a change in the volume or timing of
streamflow.
(C) A facility approved by the governing board of a local publicly
owned electric utility prior to June 1, 2010, for procurement to
satisfy renewable energy procurement obligations adopted pursuant to
former Section 387, shall be certified as an eligible renewable
energy resource by the Energy Commission pursuant to this article, if
the facility is a "renewable electrical generation facility" as
defined in Section 25741 of the Public Resources Code.
(2) A facility engaged in the combustion of municipal solid waste
shall not be considered an eligible renewable energy resource unless
it is located in Stanislaus County and was operational prior to
September 26, 1996.
(f) "Procure" means to acquire through ownership or contract.
(g) "Procurement entity" means any person or corporation
authorized by the commission to enter into contracts to procure
eligible renewable energy resources on behalf of customers of a
retail seller pursuant to subdivision (f) of Section 399.13.
(h) (1) "Renewable energy credit" means a certificate of proof
associated with the generation of electricity from an eligible
renewable energy resource, issued through the accounting system
established by the Energy Commission pursuant to Section 399.25, that
one unit of electricity was generated and delivered by an eligible
renewable energy resource.
(2) "Renewable energy credit" includes all renewable and
environmental attributes associated with the production of
electricity from the eligible renewable energy resource, except for
an emissions reduction credit issued pursuant to Section 40709 of the
Health and Safety Code and any credits or payments associated with
the reduction of solid waste and treatment benefits created by the
utilization of biomass or biogas fuels.
(3) (A) Electricity generated by an eligible renewable energy
resource attributable to the use of nonrenewable fuels, beyond a de
minimis quantity used to generate electricity in the same process
through which the facility converts renewable fuel to electricity,
shall not result in the creation of a renewable energy credit. The
Energy Commission shall set the de minimis quantity of nonrenewable
fuels for each renewable energy technology at a level of no more than
2 percent of the total quantity of fuel used by the technology to
generate electricity. The Energy Commission may adjust the de minimis
quantity for an individual facility, up to a maximum of 5 percent,
if it finds that all of the following conditions are met:
(i) The facility demonstrates that the higher quantity of
nonrenewable fuel will lead to an increase in generation from the
eligible renewable energy facility that is significantly greater than
generation from the nonrenewable fuel alone.
(ii) The facility demonstrates that the higher quantity of
nonrenewable fuels will reduce the variability of its electrical
output in a manner that results in net environmental benefits to the
state.
(iii) The higher quantity of nonrenewable fuel is limited to
either natural gas or hydrogen derived by reformation of a fossil
fuel.
(B) Electricity generated by a small hydroelectric generation
facility shall not result in the creation of a renewable energy
credit unless the facility meets the requirements of subparagraph (A)
of paragraph (1) of subdivision (e).
(C) Electricity generated by a conduit hydroelectric generation
facility shall not result in the creation of a renewable energy
credit unless the facility meets the requirements of subparagraph (B)
of paragraph (1) of subdivision (e).
(D) Electricity generated by a facility engaged in the combustion
of municipal solid waste shall not result in the creation of a
renewable energy credit unless the facility meets the requirements of
paragraph (2) of subdivision (e).
(i) "Renewables portfolio standard" means the specified percentage
of electricity generated by eligible renewable energy resources that
a retail seller or a local publicly owned electric utility is
required to procure pursuant to this article.
(j) "Retail seller" means an entity engaged in the retail sale of
electricity to end-use customers located within the state, including
any of the following:
(1) An electrical corporation, as defined in Section 218.
(2) A community choice aggregator. The commission shall institute
a rulemaking to determine the manner in which a community choice
aggregator will participate in the renewables portfolio standard
program subject to the same terms and conditions applicable to an
electrical corporation.
(3) An electric service provider, as defined in Section 218.3, for
all sales of electricity to customers beginning January 1, 2006. The
commission shall institute a rulemaking to determine the manner in
which electric service providers will participate in the renewables
portfolio standard program. The electric service provider shall be
subject to the same terms and conditions applicable to an electrical
corporation pursuant to this article. This paragraph does not impair
a contract entered into between an electric service provider and a
retail customer prior to the suspension of direct access by the
commission pursuant to Section 80110 of the Water Code.
(4) "Retail seller" does not include any of the following:
(A) A corporation or person employing cogeneration technology or
producing electricity consistent with subdivision (b) of Section 218.
(B) The Department of Water Resources acting in its capacity
pursuant to Division 27 (commencing with Section 80000) of the Water
Code.
(C) A local publicly owned electric utility.
(k) "WECC" means the Western Electricity Coordinating Council of
the North American Electric Reliability Corporation, or a successor
to the corporation.
SEC. 159. Section 399.18 of the Public Utilities Code is amended
to read:
399.18. (a) This section applies to an electrical corporation
that as of January 1, 2010, met either of the following conditions:
(1) Served 30,000 or fewer customer accounts in California and had
issued at least four solicitations for eligible renewable energy
resources prior to June 1, 2010.
(2) Had 1,000 or fewer customer accounts in California and was not
connected to any transmission system or to the Independent System
Operator.
(b) For an electrical corporation or its successor, electricity
products from eligible renewable energy resources may be used for
compliance with this article, notwithstanding any procurement content
limitation in Section 399.16, provided that both of the following
conditions are met:
(1) The electrical corporation or its successor participates in,
and complies with, the accounting system administered by the Energy
Commission pursuant to subdivision (b) of Section 399.25.
(2) The Energy Commission verifies that the electricity generated
by the facility is eligible to meet the requirements of Section
399.15.
SEC. 160. Section 2775.6 of the Public Utilities Code is amended
to read:
2775.6. Every request for the recovery in rates of any costs or
liability incurred by a gas corporation and resulting from any
violation of Section 25421 of the Health and Safety Code, or of any
costs, damages, penalties, or other liabilities incurred in
connection with the sale of landfill gas containing chemicals known
to the state to cause cancer or reproductive toxicity shall be
reviewed by the commission for the purposes of establishing rates for
the gas corporation. If the commission finds that the gas
corporation, on or after January 1, 1989, knowingly and intentionally
violated Section 25421 of the Health and Safety Code, the costs and
liability shall be disallowed by the commission for purposes of
determining rates.
SEC. 161. Section 2830 of the Public Utilities Code is amended to
read:
2830. (a) As used in this section, the following terms have the
following meanings:
(1) "Benefiting account" means an electricity account, or more
than one account, located within the geographical boundaries of a
local government or, for a campus, within the geographical boundary
of the city, county, or city and county in which the campus is
located, that is mutually agreed upon by the local government or
campus and an electrical corporation.
(2) "Bill credit" means an amount of money credited to a
benefiting account that is calculated based upon the time-of-use
electricity generation component of the electricity usage charge of
the generating account, multiplied by the quantities of electricity
generated by an eligible renewable generating facility that are
exported to the grid during the corresponding time period.
Electricity is exported to the grid if it is generated by an eligible
renewable generating facility, is not utilized onsite by the local
government, and the electricity flows through the meter site and on
to the electrical corporation's distribution or transmission
infrastructure.
(3) "Campus" means an individual community college campus,
individual California State University campus, or individual
University of California campus.
(4) "Eligible renewable generating facility" means a generation
facility that meets all of the following requirements:
(A) Has a generating capacity of no more than five megawatts.
(B) Is an eligible renewable energy resource, as defined in
Article 16 (commencing with Section 399.11) of Part 1.
(C) Is located within the geographical boundary of the local
government or, for a campus, within the geographical boundary of the
city or city and county, if the campus is located in an incorporated
area, or county, if the campus is located in an unincorporated area.
(D) Is owned by, operated by, or on property under the control of
the local government or campus.
(E) Is sized to offset all or part of the electrical load of the
benefiting account. For these purposes, premises that are leased by a
local government or campus are under the control of the local
government or campus.
(5) "Generating account" means the time-of-use electric service
account of the local government or campus where the eligible
renewable generating facility is located.
(6) "Local government" means a city, county, whether general law
or chartered, city and county, special district, school district,
political subdivision, or other local public agency, but shall not
mean a joint powers authority, the state or any agency or department
of the state, other than an individual campus of the University of
California or the California State University.
(b) Subject to the limitation in subdivision (h), a local
government may elect to receive electric service pursuant to this
section if all of the following conditions are met:
(1) The local government designates one or more benefiting
accounts to receive a bill credit.
(2) A benefiting account receives service under a time-of-use rate
schedule.
(3) The benefiting account is the responsibility of, and serves
property that is owned, operated, or on property under the control of
the same local government that owns, operates, or controls the
eligible renewable generating facility.
(4) The electrical output of the eligible renewable generating
facility is metered for time of use to allow calculation of the bill
credit based upon when the electricity is exported to the grid.
(5) All costs associated with the metering requirements of
paragraphs (2) and (4) are the responsibility of the local
government.
(6) All costs associated with interconnection are the
responsibility of the local government. For purposes of this
paragraph, "interconnection" has the same meaning as defined in
Section 2803, except that it applies to the interconnection of an
eligible renewable generating facility rather than the energy source
of a private energy producer.
(7) The local government does not sell electricity exported to the
electrical grid to a third party.
(8) All electricity exported to the grid by the local government
that is generated by the eligible renewable generating facility
becomes the property of the electrical corporation to which the
facility is interconnected, but shall not be counted toward the
electrical corporation's total retail sales for purposes of Article
16 (commencing with Section 399.11) of Chapter 2.3 of Part 1.
Ownership of the renewable energy credits, as defined in Section
399.12, shall be the same as the ownership of the renewable energy
credits associated with electricity that is net metered pursuant to
Section 2827.
(9) An electrical corporation shall not be required to compensate
a local government for electricity generated from an eligible
renewable facility pursuant to this section in excess of the bill
credits applied to the designated benefiting account. A local
government renewable generation facility participating pursuant to
this section shall not be eligible for any other tariff or program
that requires an electrical corporation to purchase generation from
that facility while participating in the local government renewable
energy self-generation program pursuant to this section.
(c) (1) A benefiting account shall be billed for all electricity
usage, and for each bill component, at the rate schedule applicable
to the benefiting account, including any cost-responsibility
surcharge or other cost recovery mechanism, as determined by the
commission, to reimburse the Department of Water Resources for
purchases of electricity, pursuant to Division 27 (commencing with
Section 80000) of the Water Code.
(2) The bill shall then subtract the bill credit applicable to the
benefiting account. The generation component credited to the
benefiting account shall not include the cost-responsibility
surcharge or other cost recovery mechanism, as determined by the
commission, to reimburse the Department of Water Resources for
purchases of electricity, pursuant to Division 27 (commencing with
Section 80000) of the Water Code. The electrical corporation shall
ensure that the local government receives the full bill credit.
(3) If, during the billing cycle, the generation component of the
electricity usage charges exceeds the bill credit, the benefiting
account shall be billed for the difference.
(4) If, during the billing cycle, the bill credit applied pursuant
to paragraph (2) exceeds the generation component of the electricity
usage charges, the difference shall be carried forward as a
financial credit to the next billing cycle.
(5) After the electricity usage charge pursuant to paragraph (1)
and the credit pursuant to paragraph (2) are determined for the last
billing cycle of a 12-month period, any remaining credit resulting
from the application of this section shall be reset to zero.
(d) The commission shall ensure that the transfer of a bill credit
to a benefiting account does not result in a shifting of costs to
bundled service subscribers. The costs associated with the transfer
of a bill credit shall include all billing-related expenses.
(e) Not more frequently than once per year, and upon providing the
electrical corporation with a minimum of 60 days' notice, the local
government may elect to change a benefiting account. Any credit
resulting from the application of this section earned prior to the
change in a benefiting account that has not been used as of the date
of the change in the benefiting account shall be applied, and may
only be applied, to a benefiting account as changed.
(f) A local government shall provide the electrical corporation to
which the eligible renewable generating facility will be
interconnected with not less than 60 days' notice prior to the
eligible renewable generating facility becoming operational. The
electrical corporation shall file an advice letter with the
commission that complies with this section not later than 30 days
after receipt of the notice proposing a rate tariff for a benefiting
account. The commission, within 30 days of the date of filing, shall
approve the proposed tariff or specify conforming changes to be made
by the electrical corporation to be filed in a new advice letter.
(g) The local government may terminate its election pursuant to
subdivision (b), upon providing the electrical corporation with a
minimum of 60 days' notice. Should the local government sell its
interest in the eligible renewable generating facility, or sell the
electricity generated by the eligible renewable generating facility,
in a manner other than required by this section, upon the date of
either event, and the earliest date if both events occur, no further
bill credit pursuant to paragraph (3) of subdivision (b) may be
earned. Only credit earned prior to that date shall be made to a
benefiting account.
(h) An electrical corporation is not obligated to provide a bill
credit to a benefiting account that is not designated by a local
government prior to the point in time that the combined statewide
cumulative rated generating capacity of all eligible renewable
generating facilities within the service territories of the state's
three largest electrical corporations reaches 250 megawatts. Only
those eligible renewable generating facilities that are providing
bill credits to benefiting accounts pursuant to this section shall
count toward reaching this 250-megawatt limitation. Each electrical
corporation shall only be required to offer service or contracts
under this section until that electrical corporation reaches its
proportionate share of the 250-megawatt limitation based on the ratio
of its peak demand to the total statewide peak demand of all
electrical corporations.
(i) This chapter does not apply to an electrical corporation with
60,000 or fewer customer accounts.
SEC. 162. Section 2851 of the Public Utilities Code is amended to
read:
2851. (a) In implementing the California Solar Initiative, the
commission shall do all of the following:
(1) The commission shall authorize the award of monetary
incentives for up to the first megawatt of alternating current
generated by solar energy systems that meet the eligibility criteria
established by the Energy Commission pursuant to Chapter 8.8
(commencing with Section 25780) of Division 15 of the Public
Resources Code. The commission
shall determine the eligibility of a solar energy system, as defined
in Section 25781 of the Public Resources Code, to receive monetary
incentives until the time the Energy Commission establishes
eligibility criteria pursuant to Section 25782 of the Public
Resources Code. Monetary incentives shall not be awarded for solar
energy systems that do not meet the eligibility criteria. The
incentive level authorized by the commission shall decline each year
following implementation of the California Solar Initiative, at a
rate of no less than an average of 7 percent per year, and shall be
zero as of December 31, 2016. The commission shall adopt and publish
a schedule of declining incentive levels no less than 30 days in
advance of the first decline in incentive levels. The commission may
develop incentives based upon the output of electricity from the
system, provided those incentives are consistent with the declining
incentive levels of this paragraph and the incentives apply to only
the first megawatt of electricity generated by the system.
(2) The commission shall adopt a performance-based incentive
program so that by January 1, 2008, 100 percent of incentives for
solar energy systems of 100 kilowatts or greater and at least 50
percent of incentives for solar energy systems of 30 kilowatts or
greater are earned based on the actual electrical output of the solar
energy systems. The commission shall encourage, and may require,
performance-based incentives for solar energy systems of less than 30
kilowatts. Performance-based incentives shall decline at a rate of
no less than an average of 7 percent per year. In developing the
performance-based incentives, the commission may:
(A) Apply performance-based incentives only to customer classes
designated by the commission.
(B) Design the performance-based incentives so that customers may
receive a higher level of incentives than under incentives based on
installed electrical capacity.
(C) Develop financing options that help offset the installation
costs of the solar energy system, provided that this financing is
ultimately repaid in full by the consumer or through the application
of the performance-based rebates.
(3) By January 1, 2008, the commission, in consultation with the
Energy Commission, shall require reasonable and cost-effective energy
efficiency improvements in existing buildings as a condition of
providing incentives for eligible solar energy systems, with
appropriate exemptions or limitations to accommodate the limited
financial resources of low-income residential housing.
(4) Notwithstanding subdivision (g) of Section 2827, the
commission may develop a time-variant tariff that creates the maximum
incentive for ratepayers to install solar energy systems so that the
system's peak electricity production coincides with California's
peak electricity demands and that ensures that ratepayers receive due
value for their contribution to the purchase of solar energy systems
and customers with solar energy systems continue to have an
incentive to use electricity efficiently. In developing the
time-variant tariff, the commission may exclude customers
participating in the tariff from the rate cap for residential
customers for existing baseline quantities or usage by those
customers of up to 130 percent of existing baseline quantities, as
required by Section 80110 of the Water Code. Nothing in this
paragraph authorizes the commission to require time-variant pricing
for ratepayers without a solar energy system.
(b) Notwithstanding subdivision (a), in implementing the
California Solar Initiative, the commission may authorize the award
of monetary incentives for solar thermal and solar water heating
devices, in a total amount up to one hundred million eight hundred
thousand dollars ($100,800,000).
(c) (1) In implementing the California Solar Initiative, the
commission shall not allocate more than fifty million dollars
($50,000,000) to research, development, and demonstration that
explores solar technologies and other distributed generation
technologies that employ or could employ solar energy for generation
or storage of electricity or to offset natural gas usage. Any program
that allocates additional moneys to research, development, and
demonstration shall be developed in collaboration with the Energy
Commission to ensure there is no duplication of efforts, and adopted
by the commission through a rulemaking or other appropriate public
proceeding. Any grant awarded by the commission for research,
development, and demonstration shall be approved by the full
commission at a public meeting. This subdivision does not prohibit
the commission from continuing to allocate moneys to research,
development, and demonstration pursuant to the self-generation
incentive program for distributed generation resources originally
established pursuant to Chapter 329 of the Statutes of 2000, as
modified pursuant to Section 379.6.
(2) The Legislature finds and declares that a program that
provides a stable source of monetary incentives for eligible solar
energy systems will encourage private investment sufficient to make
solar technologies cost effective.
(3) On or before June 30, 2009, and by June 30 of every year
thereafter, the commission shall submit to the Legislature an
assessment of the success of the California Solar Initiative program.
That assessment shall include the number of residential and
commercial sites that have installed solar thermal devices for which
an award was made pursuant to subdivision (b) and the dollar value of
the award, the number of residential and commercial sites that have
installed solar energy systems, the electrical generating capacity of
the installed solar energy systems, the cost of the program, total
electrical system benefits, including the effect on electrical
service rates, environmental benefits, how the program affects the
operation and reliability of the electrical grid, how the program has
affected peak demand for electricity, the progress made toward
reaching the goals of the program, whether the program is on schedule
to meet the program goals, and recommendations for improving the
program to meet its goals. If the commission allocates additional
moneys to research, development, and demonstration that explores
solar technologies and other distributed generation technologies
pursuant to paragraph (1), the commission shall include in the
assessment submitted to the Legislature, a description of the
program, a summary of each award made or project funded pursuant to
the program, including the intended purposes to be achieved by the
particular award or project, and the results of each award or
project.
(d) (1) The commission shall not impose any charge upon the
consumption of natural gas, or upon natural gas ratepayers, to fund
the California Solar Initiative.
(2) Notwithstanding any other provision of law, any charge imposed
to fund the program adopted and implemented pursuant to this section
shall be imposed upon all customers not participating in the
California Alternate Rates for Energy (CARE) or Family Electric Rate
Assistance (FERA) programs, including those residential customers
subject to the rate cap required by Section 80110 of the Water Code
for existing baseline quantities or usage up to 130 percent of
existing baseline quantities of electricity.
(3) The costs of the program adopted and implemented pursuant to
this section may not be recovered from customers participating in the
CARE program established pursuant to Section 739.1, except to the
extent that program costs are recovered out of the nonbypassable
system benefits charge authorized pursuant to Section 399.8.
(e) In implementing the California Solar Initiative, the
commission shall ensure that the total cost over the duration of the
program does not exceed three billion five hundred fifty million
eight hundred thousand dollars ($3,550,800,000). The financial
components of the California Solar Initiative shall consist of the
following:
(1) Programs under the supervision of the commission funded by
charges collected from customers of San Diego Gas and Electric
Company, Southern California Edison Company, and Pacific Gas and
Electric Company. The total cost over the duration of these programs
shall not exceed two billion three hundred sixty-six million eight
hundred thousand dollars ($2,366,800,000) and includes moneys
collected directly into a tracking account for support of the
California Solar Initiative and moneys collected into other accounts
that are used to further the goals of the California Solar
Initiative.
(2) Programs adopted, implemented, and financed in the amount of
seven hundred eighty-four million dollars ($784,000,000), by charges
collected by local publicly owned electric utilities pursuant to
Section 387.5. Nothing in this subdivision shall give the commission
power and jurisdiction with respect to a local publicly owned
electric utility or its customers.
(3) Programs for the installation of solar energy systems on new
construction, administered by the Energy Commission pursuant to
Chapter 8.6 (commencing with Section 25740) of Division 15 of the
Public Resources Code, and funded by nonbypassable charges in the
amount of four hundred million dollars ($400,000,000), collected from
customers of San Diego Gas and Electric Company, Southern California
Edison Company, and Pacific Gas and Electric Company pursuant to
Article 15 (commencing with Section 399).
SEC. 163. Section 2881.1 of the Public Utilities Code is amended
to read:
2881.1. (a) In addition to the requirements of Section 2881, the
commission shall design and implement a program to provide a
telecommunications device capable of servicing the needs of the deaf
or severely hearing impaired, together with a single party line, at
no charge additional to the basic exchange rate, to any subscriber
which is an agency of state government and which the commission
determines serves a significant portion of the deaf or severely
hearing-impaired population, and to an office located in the State
Capitol and selected by the Joint Rules Committee, for purposes of
access by the deaf or severely hearing impaired to Members of the
Legislature.
(b) The commission shall permit providers of equipment and service
specified in subdivision (a) to recover costs as they are incurred
under this section pursuant to subdivision (g) of Section 2881.
(c) The commission may direct any telephone corporation subject to
its jurisdiction to comply with its determinations pursuant to this
section.
SEC. 164. Section 2881.2 of the Public Utilities Code is amended
to read:
2881.2. (a) In addition to the requirements of Section 2881, the
commission shall design and implement a program that shall provide
for publicly available telecommunications devices capable of
servicing the needs of the deaf or hearing impaired in existing
buildings, structures, facilities, and public accommodations of the
type specified in Section 4450 of the Government Code and Sections
19955.5 and 19956 of the Health and Safety Code, making available
reasonable access of all phases of public telephone service to
individuals who are deaf or hearing impaired. The commission shall
direct the appropriate committee under its control to determine and
specify locations within existing buildings, structures, facilities,
and public accommodations in need of a telecommunications device and
to contract for the procurement, installation, and maintenance of
these devices. In the letting of the contract, the commission shall
direct the committee to ensure consideration of for-profit and
nonprofit corporations, including nonprofit corporations with
demonstrated service to individuals who are deaf or hearing impaired
and whose boards of directors and staff are made up of a majority of
those individuals. The commission shall also direct the committee to
seek the cooperation of the owners, managers, and tenants of the
existing buildings, structures, facilities, and public accommodations
that have been determined to be in need of a telecommunications
device with regard to its installation and maintenance. The
commission shall phase in this program over a reasonable period of
time, beginning no later than January 1, 1998, giving priority to
those existing buildings, structures, facilities, and public
accommodations determined by the commission, with the advice and
counsel of statewide nonprofit consumer organizations for the deaf,
to be of most importance and usefulness to the deaf or hearing
impaired.
(b) The commission shall ensure that costs are recovered as they
are incurred under this section, including any costs incurred by the
owners, managers, or tenants of existing buildings, structures,
facilities, and public accommodations, and shall utilize for this
purpose the rate recovery mechanism established pursuant to
subdivision (g) of Section 2881. The commission shall also establish
a fund and require separate accounting for the program implemented
under this section and, in addition, shall require that the surcharge
utilized to fund the program not exceed two-hundredths of 1 percent,
that it be combined with the surcharge required by subdivision (g)
of Section 2881, and that it count toward the limits set by that
subdivision. This surcharge shall be in effect until January 1, 2006.
(c) "Existing buildings, structures, facilities, and public
accommodations," for the purposes of this section, means those
buildings, structures, facilities, and public accommodations or parts
thereof that were constructed or altered prior to January 26, 1993,
or are otherwise not required by Section 303 of the federal Americans
with Disabilities Act of 1990 (P.L. 101-336; 42 U.S.C. Sec. 12183)
or any other section of that act and its implementing regulations and
guidelines, to have a publicly available telecommunications device
capable of serving the needs of the deaf or hearing impaired.
SEC. 165. Section 8283 of the Public Utilities Code is amended to
read:
8283. (a) The commission shall require each electrical, gas,
water, wireless telecommunications service provider, and telephone
corporation with gross annual revenues exceeding twenty-five million
dollars ($25,000,000) and their commission-regulated subsidiaries and
affiliates, to submit annually, a detailed and verifiable plan for
increasing procurement from women, minority, and disabled veteran
business enterprises in all categories, including, but not limited
to, renewable energy, wireless telecommunications, broadband, smart
grid, and rail projects.
(b) These annual plans shall include short- and long-term goals
and timetables, but not quotas, and shall include methods for
encouraging both prime contractors and grantees to engage women,
minority, and disabled veteran business enterprises in subcontracts
in all categories that provide subcontracting opportunities,
including, but not limited to, renewable energy, wireless
telecommunications, broadband, smart grid, and rail projects.
(c) The commission shall establish guidelines for all electrical,
gas, water, wireless telecommunications service providers, and
telephone corporations with gross annual revenues exceeding
twenty-five million dollars ($25,000,000) and their
commission-regulated subsidiaries and affiliates, to be utilized in
establishing programs pursuant to this article.
(d) Every electrical, gas, water, wireless telecommunications
service provider, and telephone corporation with gross annual
revenues exceeding twenty-five million dollars ($25,000,000) shall
furnish an annual report to the commission regarding the
implementation of programs established pursuant to this article in a
form that the commission shall require, and at the time that the
commission shall annually designate.
(e) (1) The commission shall provide a report to the Legislature
on September 1 of each year, on the progress of activities undertaken
by each electrical, gas, water, wireless telecommunications service
provider, and telephone corporation with gross annual revenues
exceeding twenty-five million dollars ($25,000,000) pursuant to this
article in the implementation of women, minority, and disabled
veteran business enterprise development programs. The report shall
include information about which procurements are made with women,
minority, and disabled veteran business enterprises with at least a
majority of the enterprise's workforce in California, to the extent
that information is readily accessible. The commission shall
recommend a program for carrying out the policy declared in this
article, together with recommendations for legislation that it deems
necessary or desirable to further that policy. The commission shall
make the report available on its Internet Web site.
(2) In regard to disabled veteran business enterprises, the
commission shall ensure that the programs and legislation recommended
pursuant to paragraph (1) are consistent with the disabled veteran
business enterprise certification eligibility requirements imposed by
the Department of General Services and that the recommendations
include only those disabled veteran business enterprises certified by
the Department of General Services.
(f) (1) The Legislature declares that each electrical, gas, water,
mobile telephony service provider, and telephone corporation that is
not required to submit a plan pursuant to subdivision (a) is
encouraged to voluntarily adopt a plan for increasing women,
minority, and disabled veteran business enterprise procurement in all
categories.
(2) The Legislature declares that each cable television
corporation and direct broadcast satellite provider is encouraged to
voluntarily adopt a plan for increasing women, minority, and disabled
veteran business enterprise procurement and to voluntarily report
activity in this area to the Legislature on an annual basis.
SEC. 166. Section 214.02 of the Revenue and Taxation Code is
amended to read:
214.02. (a) Except as provided in subdivision (b) or (c),
property that is used exclusively for the preservation of native
plants or animals, biotic communities, geological or geographical
formations of scientific or educational interest, or open-space lands
used solely for recreation and for the enjoyment of scenic beauty,
is open to the general public subject to reasonable restrictions
concerning the needs of the land, and is owned and operated by a
scientific or charitable fund, foundation, limited liability company,
or corporation, the primary interest of which is to preserve those
natural areas, and that meets all the requirements of Section 214,
shall be deemed to be within the exemption provided for in
subdivision (b) of Section 4, and Section 5, of Article XIII of the
California Constitution and Section 214 of this code.
(b) The exemption provided by this section shall not apply to any
property of an organization that owns in the aggregate 30,000 acres
or more in one county that were exempt under this section prior to
March 1, 1983, or that are proposed to be exempt, unless the
nonprofit organization that holds the property is fully independent
of the owner of any taxable real property that is adjacent to the
property otherwise qualifying for tax exemption under this section.
For purposes of this section, the nonprofit organization that holds
the property shall be considered fully independent if the exempt
property is not used or operated by that organization or by any other
person so as to benefit any officer, trustee, director, shareholder,
member, employee, contributor, or bondholder of the exempt
organization or operator, or the owner of any adjacent property, or
any other person, through the distribution of profits, payment of
excessive charges or compensations, or the more advantageous pursuit
of their business or profession.
(c) The exemption provided by this section shall not apply to
property that is reserved for future development.
(d) This section shall be operative from the lien date in 1983 to
and including the lien date in 2022, after which date this section
shall become inoperative, and as of January 1, 2023, this section is
repealed.
(e) The amendments made by Chapter 354 of the Statutes of 2004
shall apply with respect to lien dates occurring on and after January
1, 2005.
SEC. 167. Section 3725 of the Revenue and Taxation Code is amended
to read:
3725. (a) A proceeding based on alleged invalidity or
irregularity of any proceedings instituted under this chapter can
only be commenced in a court if both of the following are satisfied:
(1) The person commencing the proceeding has first petitioned the
board of supervisors pursuant to Section 3731 within one year of the
date of the execution of the tax collector's deed.
(2) The proceeding is commenced within one year of the date the
board of supervisors determines that a tax deed sold under this part
should not be rescinded pursuant to Section 3731.
(b) Sections 351 to 358, inclusive, of the Code of Civil Procedure
do not apply to the time within which a proceeding may be brought
under this section.
(c) The amendments made to this section by Chapter 288 of the
Statutes of 2011 shall apply to sales that are completed on or after
January 1, 2012.
SEC. 168. Section 17053.85 of the Revenue and Taxation Code is
amended to read:
17053.85. (a) (1) For taxable years beginning on or after January
1, 2011, there shall be allowed to a qualified taxpayer a credit
against the "net tax," as defined in Section 17039, 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) In the case of any passthrough entity, the determination of
whether a taxpayer is a qualified taxpayer under this section shall
be made at the entity level and any credit under this section is not
allowed to the passthrough 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, "passthrough entity"
means any entity taxed as a partnership or "S" corporation.
(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 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.
(2) 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.
(3) In the case where the credit allowed under this section
exceeds the "net tax," the excess credit may be carried over to
reduce the "net tax" in the following taxable year, and succeeding
five taxable years, if necessary, until the credit has been
exhausted.
(4) 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.
(5) A party that has acquired tax credits under this section shall
be subject to the requirements of this section.
(6) 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.
(7) 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.
(8) 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.
(9) Subdivision (g) of Section 17039 shall not apply to any credit
sold pursuant to this subdivision.
(10) For purposes of this subdivision, the unrelated party or
parties that purchase a credit pursuant to this subdivision 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 (e) 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, 2015, 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 and any members to
which the credit is assigned, including, if readily available, the
states, provinces, or other jurisdictions in which any of those
members finance motion picture productions.
(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. 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 23685, 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).
(B) Establish audit requirements that must be satisfied before a
credit certificate may be issued by the California Film Commission.
(C) 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) Provide the Legislative Analyst's Office, upon request, any
application materials or any other materials received from
applicants, including, but not limited to, information in electronic
format when available.
(A) Financial information, including, but not limited to,
statements of profits and losses of a partnership or of an owner of a
single member limited liability company that is disregarded pursuant
to Section 23038.
(B) The names of all members of the qualified taxpayer's combined
reporting group and any member to which the credit is assigned.
(C) The names of all partners in a partnership or the names of all
members of a limited liability company classified as a partnership
for California income tax purposes that is not publicly traded.
(D) The sales price of a credit certificate provided by the
Franchise Tax Board. The Franchise Tax Board, upon request and
subject to confidentiality requirements, shall provide aggregate
information on the identity of the qualified taxpayer, the amount of
the credit, and the credit recipient.
(h) The California Film Commission shall provide the Franchise Tax
Board and the board annually 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.
(i) (1) The aggregate amount of credits that may be allocated in
any fiscal year pursuant to this section and Section 23685 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 2014-15 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. 169. Section 17085 of the Revenue and Taxation Code is
amended to read:
17085. Section 72 of the Internal Revenue Code, relating to
annuities, certain proceeds of endowment and life insurance
contracts, is modified as follows:
(a) The amendments and transitional rules made by Public Law
99-514 shall be applicable to this part for the same transactions and
the same years as they are applicable for federal purposes, except
that the repeal of Section 72(d) of the Internal Revenue Code,
relating to repeal of special rule for employees' annuities, shall
apply only to the following:
(1) Any individual whose annuity starting date is after December
31, 1986.
(2) At the election of the taxpayer, any individual whose annuity
starting date is after July 1, 1986, and before January 1, 1987.
(b) The amount of a distribution from an individual retirement
account or annuity or employee trust or employee annuity that is
includable in gross income for federal purposes shall be reduced for
purposes of this part by the lesser of either of the following:
(1) An amount equal to the amount includable in federal gross
income for the taxable year.
(2) An amount equal to the basis in the account or annuity allowed
by Section 17507 (relating to individual retirement accounts and
simplified employee pensions), the increased basis allowed by
Sections 17504 and 17506 (relating to plans of self-employed
individuals), the increased basis allowed by Section 17501, or the
increased basis allowed by Section 17551 that is remaining after
adjustment for reductions in gross income under this provision in
prior taxable years.
(c) (1) Except as provided in paragraph (2), the amount of the
additional tax imposed under this part shall be computed in
accordance with Sections 72(m), (q), (t), and (v) of the Internal
Revenue Code, as applicable for federal income tax purposes for the
same taxable year, using a rate of 21/2 percent, in lieu of the rate
provided in those sections.
(2) In the case where Section 72(t)(6) of the Internal Revenue
Code, relating to special rules for simple retirement accounts, as
applicable for federal income tax purposes for the same taxable year,
applies, the rate in paragraph (1) shall be 6 percent in lieu of the
21/2 percent rate specified therein.
(d) Section 72(f)(2) of the Internal Revenue Code shall be
applicable without applying the exceptions which immediately follow
that paragraph.
(e) The amendments made by Section 844 of the federal Pension
Protection Act of 2006 (P.L. 109-280) to Section 72(e) of the
Internal Revenue Code, shall not apply.
SEC. 170. Section 17131.10 of the Revenue and Taxation Code, as
added by Section 15 of Chapter 727 of the Statutes of 2011, is
amended and renumbered to read:
17131.14. (a) For taxable years beginning on or after January 1,
2011, Section 125(j) of the Internal Revenue Code, relating to simple
cafeteria plans for small businesses, as added by Section 9022 of
the federal Patient Protection and Affordable Care Act (P.L.
111-148), shall apply, except as otherwise provided.
(b) For taxable years beginning on or after January 1, 2014,
Section 125(f) of the Internal Revenue Code, relating to qualified
benefits defined, as amended by Section 1515 of the federal Patient
Protection and Affordable Care Act (P.L. 111-148), shall apply,
except as otherwise provided.
SEC. 171. Section 17282 of the Revenue and Taxation Code is
amended to read:
17282. (a) In computing taxable income, deductions, including
deductions for cost of goods sold, shall not be allowed to any
taxpayer from any of his or her gross income directly derived from
any act or omission of criminal profiteering activity, as defined in
Section 186.2 of the Penal Code, or as defined in Chapter 6
(commencing with Section 11350) of Division 10 of the Health and
Safety Code, or Article 5 (commencing with Section 750) of Chapter 1
of Part 2 of Division 1 of the Insurance Code; and deductions shall
not be allowed to any taxpayer from any of his or her gross income
derived from any other activities which directly tend to promote or
to further, or are directly connected or associated with, those acts
or omissions.
(b) A prior, final determination by a court of competent
jurisdiction of this state in any criminal proceedings or any
proceeding in which the state, county, city and county, city, or
other political subdivision was a party thereto on the merits of the
legality of the activities of a taxpayer, or predecessor in interest
of a taxpayer, shall be required in order for subdivision (a) to
apply and shall be binding upon the Franchise Tax Board and the State
Board of Equalization.
(c) (1) Except as provided in paragraphs (2) and (3), this section
shall be applied with respect to taxable years that have not been
closed by a statute of limitations, res judicata, or otherwise as of
September 14, 1982.
(2) The amendments made to this section by Chapter 962 of the
Statutes of 1984 shall be applied with respect to taxable years that
have not been closed by a statute of limitations, res judicata, or
otherwise as of January 1, 1985.
(3) The amendments made to this section by Chapter 454 of the
Statutes of 2011 shall be applied with respect to taxable years that
have not been closed by a statute of limitations, res judicata, or
otherwise as of the effective date of that act.
SEC. 172. Section 19191 of the Revenue and Taxation Code is
amended to read:
19191. (a) The Franchise Tax Board may enter into a voluntary
disclosure agreement with any qualified entity, qualified
shareholder, qualified member, or qualified beneficiary as defined in
Section 19192, that is binding on both the Franchise Tax Board and
the qualified entity, qualified shareholder, qualified member, or
qualified beneficiary.
(b) The Franchise Tax Board shall do all of the following:
(1) Provide guidelines and establish procedures for qualified
entities and their qualified shareholders, qualified members, or
qualified beneficiaries to apply for voluntary disclosure agreements.
(2) Accept applications on an anonymous basis from qualified
entities and their qualified shareholders, qualified members, or
qualified beneficiaries for voluntary disclosure agreements.
(3) Implement procedures for accepting applications for voluntary
disclosure agreements through the National Nexus Program administered
by the Multistate Tax Commission.
(4) For purposes of considering offers from qualified entities and
their qualified shareholders, qualified members, or qualified
beneficiaries to enter into voluntary disclosure agreements, take
into account the following criteria:
(A) The nature and magnitude of the qualified entity's previous
presence and activity in this state and the facts and circumstances
by which the nexus of the qualified entity or qualified shareholder,
qualified member, or qualified beneficiary was established.
(B) The extent to which the weight of the factual circumstances
demonstrates that a prudent business person exercising reasonable
care would conclude that the previous activities and presence in this
state were or were not immune from taxation by this state by reason
of Public Law 86-272 or otherwise.
(C) Reasonable reliance on the advice of a person in a fiduciary
position or other competent advice that the qualified entity or
qualified shareholder, qualified member, or qualified beneficiary
activities were immune from taxation by this state.
(D) Lack of evidence of willful disregard or neglect of the tax
laws of this state on the part of the qualified entity or qualified
shareholder, qualified member, or qualified beneficiary.
(E) Demonstrations of good faith on the part of the qualified
entity.
(F) Benefits that will accrue to the state by entering into a
voluntary disclosure agreement.
(5) Act on any application of a voluntary disclosure agreement
within 120 days of receipt.
(6) Enter into voluntary disclosure agreements with qualified
entities, qualified shareholders, qualified members, or qualified
beneficiaries, as authorized in subdivision (a) and based on the
criteria set forth in paragraph (4).
(c) Before any voluntary disclosure agreement becomes binding, the
Franchise Tax Board, itself, shall approve the agreement in the
following manner:
(1) The Executive Officer and Chief Counsel of the Franchise Tax
Board shall recommend and submit the voluntary disclosure agreement
to the Franchise Tax Board for approval.
(2) Each voluntary disclosure agreement recommendation shall be
submitted in a manner as to maintain the anonymity of the taxpayer
applying for the voluntary disclosure agreement.
(3) Any recommendation for approval of a voluntary disclosure
agreement shall be approved or disapproved by the Franchise Tax
Board, itself, within 45 days of the submission of that
recommendation to the board.
(4) Any recommendation of a voluntary disclosure agreement that is
not either approved or disapproved by the board within 45 days of
the submission of that recommendation shall be deemed approved.
(5)
Disapproval of a recommendation of a voluntary disclosure agreement
shall be made only by a majority vote of the Franchise Tax Board.
(6) The members of the Franchise Tax Board shall not participate
in any voluntary disclosure agreement except as provided in this
subdivision.
(d) The voluntary disclosure agreement entered into by the
Franchise Tax Board and the qualified entity, qualified shareholder,
qualified member, or qualified beneficiary as provided for in
subdivision (a) shall to the extent applicable specify that:
(1) The Franchise Tax Board shall with respect to a qualified
entity, qualified shareholder, qualified member, or qualified
beneficiary, except as provided in paragraph (4), (6), or (9) of
subdivision (a) of Section 19192:
(A) Waive its authority under this part, Part 10 (commencing with
Section 17001), or Part 11 (commencing with Section 23001) to assess
or propose to assess taxes, additions to tax, fees, or penalties with
respect to each taxable year ending prior to six years from the
signing date of the voluntary disclosure agreement.
(B) With respect to each of the six taxable years ending
immediately preceding the signing date of the voluntary disclosure
agreement, based on its discretion, agree to waive any or all of the
following:
(i) Any penalty related to a failure to make and file a return, as
provided in Section 19131.
(ii) Any penalty related to a failure to pay any amount due by the
date prescribed for payment, as provided in Section 19132.
(iii) Any addition to tax related to an underpayment of estimated
tax, as provided in Section 19136.
(iv) Any penalty related to Section 6810 or subdivision (a) of
Section 8810 of the Corporations Code, as provided in Section 19141
of this code.
(v) Any penalty related to a failure to furnish information or
maintain records, as provided in Section 19141.5.
(vi) Any addition to tax related to an underpayment of tax imposed
under Part 11 (commencing with Section 23001), as provided in
Section 19142.
(vii) Any penalty related to a partnership required to file a
return under Section 18633, as provided in Section 19172.
(viii) Any penalty related to a failure to file information
returns, as provided in Section 19183.
(ix) Any penalty related to relief from contract voidability, as
provided in Section 23305.1.
(2) The qualified entity, qualified shareholder, qualified member,
or qualified beneficiary shall:
(A) With respect to each of the six taxable years ending
immediately preceding the signing date of the written agreement:
(i) Voluntarily and fully disclose on the qualified entity's
application all material facts pertinent to the qualified entity's,
shareholder's, member's, or beneficiary's liability for any taxes
imposed under Part 10 (commencing with Section 17001) or Part 11
(commencing with Section 23001).
(ii) Except as provided in paragraph (3), within 30 days from the
signing date of the voluntary disclosure agreement:
(I) File all returns required under this part, Part 10 (commencing
with Section 17001), or Part 11 (commencing with Section 23001).
(II) Pay in full any tax, interest, fee, and penalties, other than
those penalties specifically waived by the Franchise Tax Board under
the terms of the voluntary disclosure agreement, imposed under this
part, Part 10 (commencing with Section 17001), or Part 11 (commencing
with Section 23001) in a manner as may be prescribed by the
Franchise Tax Board. Paragraph (1) of subdivision (f) of Section
23153 shall not apply to qualified entities admitted into the
voluntary disclosure program.
(B) Agree to comply with all franchise and income tax laws of this
state in subsequent taxable years by filing all returns required and
paying all amounts due under this part, Part 10 (commencing with
Section 17001), or Part 11 (commencing with Section 23001).
(3) The Franchise Tax Board may extend the time for filing returns
and paying amounts due to 120 days from the signing date of the
voluntary disclosure agreement or to the latest extended due date of
the return for a taxable year for which relief is granted, whichever
is later.
(e) No addition to tax under Section 19136 or 19142 shall be made
for any underpayment of estimated tax attributable to the
underpayment of an installment of estimated tax due before the
signing date of the voluntary disclosure agreement.
(f) The amendments to this section made by Chapter 954 of the
Statutes of 1996 shall apply to taxable years beginning on or after
January 1, 1997.
(g) The amendments to this section made by Chapter 543 of the
Statutes of 2001 shall apply to voluntary disclosure agreements
entered into on or after January 1, 2002.
(h) The amendments to this section made by Chapter 543 of the
Statutes of 2001 shall apply to voluntary disclosure agreements
entered into on or after January 1, 2005.
(i) The amendments to this section made by Chapter 296 of the
Statutes of 2011 shall apply to voluntary disclosure agreements
entered into on or after January 1, 2011.
SEC. 173. Section 24436.1 of the Revenue and Taxation Code is
amended to read:
24436.1. (a) In computing net income, deductions, including
deductions for cost of goods sold, shall not be allowed to any
taxpayer from any of its gross income directly derived from any act
or omission of criminal profiteering activity, as defined in Section
186.2 of the Penal Code, or as defined in Chapter 6 (commencing with
Section 11350) of Division 10 of the Health and Safety Code, or
Article 5 (commencing with Section 750) of Chapter 1 of Part 2 of
Division 1 of the Insurance Code; and deductions shall not be allowed
to any taxpayer on any of its gross income derived from any other
activities which directly tend to promote or to further, or are
directly connected or associated with, those acts or omissions.
(b) A prior, final determination by a court of competent
jurisdiction of this state in any criminal proceedings or any
proceeding in which the state, county, city and county, city, or
other political subdivision was a party thereto on the merits of the
legality of the activities of a taxpayer, or predecessor in interest
of a taxpayer, shall be required in order for subdivision (a) to
apply and shall be binding upon the Franchise Tax Board and the State
Board of Equalization.
(c) (1) Except as provided in paragraphs (2) and (3), this section
shall be applied with respect to taxable years that have not been
closed by a statute of limitations, res judicata, or otherwise as of
September 14, 1982.
(2) The amendments made to this section by Chapter 962 of the
Statutes of 1984 shall be applied with respect to taxable years that
have not been closed by a statute of limitations, res judicata, or
otherwise as of January 1, 1985.
(3) The amendments made to this section by Chapter 454 of the
Statutes of 2011 shall be applied with respect to taxable years that
have not been closed by a statute of limitations, res judicata, or
otherwise as of the effective date of that act.
SEC. 174. Section 30459.15 of the Revenue and Taxation Code, as
amended by Section 575 of Chapter 15 of the Statutes of 2011, is
amended to read:
30459.15. (a) (1) The executive director and chief counsel of the
board, or their delegates, may compromise any final tax liability
where the reduction of tax is seven thousand five hundred dollars
($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final tax liability involving a reduction in tax in
excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final tax liability in which the reduction of tax is in excess of
seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final tax liability" means
any final tax liability arising under Part 13 (commencing with
Section 30001), or related interest, additions to tax, penalties, or
other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated by the following:
(1) A business that has been discontinued or transferred, where
the taxpayer making the offer no longer has a controlling interest or
association with the transferred business or has a controlling
interest or association with a similar type of business as the
transferred or discontinued business.
(2) A taxpayer that has purchased untaxed cigarettes or tobacco
products from out-of-state vendors for their own use or consumption.
(d) Offers in compromise shall not be considered under the
following conditions:
(1) The taxpayer has been convicted of felony tax evasion under
this part during the liability period.
(2) The taxpayer has filed a statement under paragraph (3) of
subdivision (e) and continues to purchase untaxed cigarettes or
tobacco products from out-of-state vendors for the taxpayer's own use
or consumption.
(e) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The taxpayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the taxpayer's present assets or
income.
(B) The taxpayer does not have reasonable prospects of acquiring
increased income or assets that would enable the taxpayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(3) For liabilities generated in the manner described in paragraph
(2) of subdivision (c), the taxpayer shall file with the board a
statement, under penalty of perjury, that he or she will no longer
purchase untaxed cigarettes or tobacco products from out-of-state
vendors for his or her own use or consumption.
(f) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final tax liability shall not be subject to
administrative appeal or judicial review.
(g) (1) Offers for liabilities with a fraud or evasion penalty
shall require a minimum offer of the unpaid tax and fraud or evasion
penalty.
(2) The minimum offer may be waived if it can be shown that the
taxpayer making the offer was not the person responsible for
perpetrating the fraud or evasion. This authorization to waive only
applies to partnership accounts where the intent to commit fraud or
evasion can be clearly attributed to a partner of the taxpayer.
(h) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the taxpayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the taxpayer.
(i) When more than one taxpayer is liable for the debt, such as
with spouses or partnerships or other business combinations,
including, but not limited to, taxpayers who are liable through dual
determination or successor's liability, the acceptance of an offer in
compromise from one liable taxpayer shall reduce the amount of the
liability of the other taxpayers by the amount of the accepted offer.
(j) Whenever a compromise of tax or penalties or total tax and
penalties in excess of five hundred dollars ($500) is approved, there
shall be placed on file for at least one year in the office of the
executive director of the board a public record with respect to that
compromise. The public record shall include all of the following
information:
(1) The name of the taxpayer.
(2) The amount of unpaid tax and related penalties, additions to
tax, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the taxpayer or violate the confidentiality
provisions of Section 30455. No list shall be prepared and no
releases distributed by the board in connection with these
statements.
(k) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished, without regard to any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any taxpayer or other person liable for the tax.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable for the tax.
(2) The taxpayer fails to comply with any of the terms and
conditions relative to the offer.
(l) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned pursuant to subdivision (h)
of Section 1170 of the Penal Code, or both, together with the costs
of investigation and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a taxpayer or other person liable
in respect of the tax.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the taxpayer or other person
liable in respect of the tax.
(m) For purposes of this section, "person" means the taxpayer, any
member of the taxpayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the taxpayer, or any other corporation or entity owned or
controlled by the taxpayer, directly or indirectly, or that owns or
controls the taxpayer, directly or indirectly.
(n) This section shall become operative on January 1, 2013.
SEC. 175. Section 50156.18 of the Revenue and Taxation Code, as
amended by Section 591 of Chapter 15 of the Statutes of 2011, is
amended to read:
50156.18. (a) (1) The executive director and chief counsel of the
board, or their delegates, may compromise any final fee liability in
which the reduction of the fee is seven thousand five hundred
dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final fee liability involving a reduction in the fee
in excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final fee liability in which the reduction of the fee is in excess
of seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final fee liability" means
any final fee liability arising under Part 26 (commencing with
Section 50101), or related interest, additions to the fee, penalties,
or other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from a business that has been discontinued or
transferred, where the feepayer making the offer no longer has a
controlling interest or association with the transferred business or
has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The feepayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the feepayer's present assets or
income.
(B) The feepayer does not have reasonable prospects of acquiring
increased income or assets that would enable the feepayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(e) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final fee liability shall not be subject to
administrative appeal or judicial review.
(f) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the feepayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the feepayer.
(g) When more than one feepayer is liable for the debt, such as
with spouses or partnerships or other business combinations, the
acceptance of an offer in compromise from one liable feepayer shall
not relieve the other feepayers from paying the entire liability.
However, the amount of the liability shall be reduced by the amount
of the accepted offer.
(h) Whenever a compromise of the fee or penalties or total fees
and penalties in excess of five hundred dollars ($500) is approved,
there shall be placed on file for at least one year in the office of
the executive director of the board a public record with respect to
that compromise. The public record shall include all of the following
information:
(1) The name of the feepayer.
(2) The amount of unpaid fees and related penalties, additions to
fees, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the feepayer or violate the confidentiality
provisions of Chapter 8 (commencing with Section 50159). No list
shall be prepared and no releases distributed by the board in
connection with these statements.
(i) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished (without regard to any
statute of limitations that otherwise may be applicable), and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any feepayer or other person liable for the fee.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the feepayer or other person
liable for the fee.
(2) The feepayer fails to comply with any of the terms and
conditions relative to the offer.
(j) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned pursuant to subdivision (h)
of Section 1170 of the Penal Code, or both, together with the costs
of investigation and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a feepayer or other person liable
in respect of the fee.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the feepayer or other person
liable in respect of the fee.
(k) For purposes of this section, "person" means the feepayer, any
member of the feepayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the feepayer, or any other corporation or entity owned or
controlled by the feepayer, directly or indirectly, or that owns or
controls the feepayer, directly or indirectly.
(l) This section shall become operative on January 1, 2013.
SEC. 176. The heading of Article 9 (commencing with Section 6850)
of Chapter 6 of Part 1 of Division 2 of the Revenue and Taxation Code
is amended to read:
Article 9. Collection of Tax Debts Due to the Internal Revenue
Service or Other States
SEC. 177. Section 1962.4 of the Streets and Highways Code is
amended to read:
1962.4. If the County of Riverside or any city in the county
adopts a NEV transportation plan for the plan area pursuant to
Section 1962.2, it shall do all of the following:
(a) Establish minimum general design criteria for the development,
planning, and construction of separated NEV lanes, including, but
not limited to, the design speed of the facility, the space
requirements of the NEV, and roadway design criteria, if the plan
envisions separated NEV lanes.
(b) In cooperation with the department, establish uniform
specifications and symbols for signs, markers, and traffic control
devices to control NEV traffic; to warn of dangerous conditions,
obstacles, or hazards; to designate the right-of-way as between NEVs,
other vehicles, and bicycles, as may be applicable; to state the
nature and destination of the NEV lane; and to warn pedestrians,
bicyclists, and motorists of the presence of NEV traffic.
(c) Submit the transportation plan to the director for approval
following a review and recommendation by the California Traffic
Control Devices Committee.
SEC. 178. Section 679 of the Unemployment Insurance Code is
amended to read:
679. (a) Notwithstanding Sections 606.5 and 678, for the purposes
of this code, "employer" means any employing unit that is a motion
picture payroll services company that pays and controls the payment
of wages of a motion picture production worker for services either to
a motion picture production company or to an allied motion picture
services company, and files a timely statement of its intent to be
the employer of motion picture production workers pursuant to
subdivision (b).
(b) (1) Any employing unit meeting the requirements of a motion
picture payroll services company that intends to be treated as an
employer of motion picture production workers pursuant to subdivision
(a) shall file a statement with the department that declares its
intent to be the employer of motion picture production workers,
pursuant to this section, within 15 days after first paying wages to
the workers. The statement shall include identification of each
affiliated entity.
(2) Any employing unit operating as a motion picture payroll
services company as of January 1, 2007, that intends to be treated as
an employer of motion picture production workers pursuant to this
section, shall file a statement with the department that declares its
intent to be the employer of motion picture production workers,
pursuant to this section, by January 15, 2007. The statement shall
include identification of each affiliated entity.
(3) Any motion picture payroll company that quits business shall:
(A) Within 10 days of quitting business:
(i) File with the director a final return and report of wages of
its workers, as required by Section 1116.
(ii) File all statements required by this subdivision.
(B) Forty-five days in advance of quitting business, notify each
motion picture production company and allied motion picture services
company, with respect to which they have been treated as the employer
of the motion picture production workers, of its intent to quit
business.
(4) The director may prevent a motion picture payroll services
company that fails to file a timely statement from being treated as
an employer of motion picture production workers, for a period not to
exceed the period for which the statement is required.
(5) Any statement filed by a motion picture payroll services
company pursuant to this subdivision shall be applied to each
affiliated entity of the motion picture payroll services company in
existence at the time the statement is filed.
(c) For each rating period beginning on or after January 1, 2007,
in which an employer operating as a motion picture payroll services
company obtains or attempts to obtain a more favorable rate of
contributions under this section in a manner that is due to
deliberate ignorance, reckless disregard, fraud, intent to evade,
misrepresentation, or willful nondisclosure, the director shall
assign the maximum contribution rate plus 2 percent for each
applicable rating period, the current rating period, and the
subsequent rating period. Contributions paid in excess of the maximum
rate under this section shall not be credited to the employing unit'
s reserve account.
(d) (1) On and after January 1, 2007, whenever a motion picture
payroll services company creates or acquires a motion picture payroll
services company, or acquires substantially all of the assets of a
motion picture payroll services company, the created or acquired
motion picture payroll services company shall:
(A) Constitute a separate employing unit, notwithstanding Sections
135.1 and 135.2.
(B) Have its reserve account and rate of contributions determined
in accordance with subdivision (e).
(C) Notify the department of the entity being created or acquired
and the nature of its affiliation to that entity.
(2) The department may promulgate regulations requiring a motion
picture payroll services company, prior to the creation or
acquisition of a motion picture payroll services company that will be
an affiliated entity, to seek the approval of the department to
apply this section to the created or
acquired entity.
(e) When a motion picture payroll services company transfers all
or part of its business or payroll to another motion picture payroll
services company the reserve account attributable to the transferor
shall be transferred to the transferee motion picture payroll
services company, and the transferee's rate of contribution shall be
determined in accordance with Section 1052. The transferee shall
notify the department within 15 days of the transfer of the business
or payroll.
(f) For purposes of this section:
(1) "Affiliated entity" means any one or more motion picture
payroll services company or companies that are united by factors of
common ownership, management, or control as prescribed by Section
1061.
(2) "Allied motion picture services company" means any person
engaged in an industry closely allied with, and whose work is
integral to, a motion picture production company in the development,
production, or postproduction of a motion picture, excluding the
distribution of the completed motion picture and any activity
occurring thereafter, and who hires from the same pool of craft and
guild or union workers, actors, or extras as a motion picture
production company.
(3) "Motion picture" means a motion picture of any type,
including, but not limited to, a theatrical motion picture, a
television production, a television commercial, or a music video,
regardless of its theme or the technology used in its production or
distribution.
(4) (A) "Motion picture payroll services company" means any
employing unit that directly or through its affiliated entities meets
all of the following criteria:
(i) Contractually provides the services of motion picture
production workers to a motion picture production company or to an
allied motion picture services company.
(ii) Is a signatory to a collective bargaining agreement for one
or more of its clients.
(iii) Controls the payment of wages to the motion picture
production workers and pays those wages from its own account or
accounts.
(iv) Is contractually obligated to pay wages to the motion picture
production workers without regard to payment or reimbursement by the
motion picture production company or allied motion picture services
company.
(v) At least 80 percent of the wages paid by the motion picture
payroll services company each calendar year are paid to workers
associated between contracts with motion picture production companies
and motion picture payroll services companies.
(B) If the director determines that any employing unit is
operating as a motion picture payroll services company but is failing
to comply with any of the provisions of subparagraph (A) of
paragraph (4), the employing unit is subject to determination of the
employer-employee relationship pursuant to this code. When the
director's ruling becomes final, the director may preclude the
employing unit from being classified as a motion picture payroll
services company pursuant to this section for up to three years from
the date of the determination.
(5) "Motion picture production company" means any employing unit
engaged in the development, production, and postproduction of a
motion picture, excluding the distribution of the completed motion
picture and any activities occurring thereafter.
(6) "Motion picture production worker" means an individual who
provides services to a motion picture production company or allied
motion picture services company and who, with regard to those
services, is reported under this part as an employee by the motion
picture payroll services company. An individual who has been reported
as an employee by the motion picture payroll services company,
without regard to the individual's status as an employee or
independent contractor, shall be the employee of the motion picture
payroll services company for the purposes of this code throughout the
contractual period with the motion picture payroll services company.
(7) "Wages" shall have the same meaning given the term in Article
2 (commencing with Section 926) of Chapter 4 of Part 1 of Division 1,
and shall include residual payments.
(g) If the director determines that an entity does not meet any
requirement of this section, the director shall give notice of its
determination to that entity pursuant to Section 1206. The notice
shall contain a statement of the facts and circumstances upon which
the determination was made. The entity so noticed shall have the
right to petition for review of the director's determination within
30 days of the notice, as provided in Section 1222.
(h) The director shall prescribe the form and manner of the
statements and information required to be filed or reported by this
section.
SEC. 179. Article 2 (commencing with Section 10521) of Chapter 4.5
of Part 1 of Division 3 of the Unemployment Insurance Code is
repealed.
SEC. 180. Section 11713.3 of the Vehicle Code is amended to read:
11713.3. It is unlawful and a violation of this code for a
manufacturer, manufacturer branch, distributor, or distributor branch
licensed pursuant to this code to do, directly or indirectly through
an affiliate, any of the following:
(a) To refuse or fail to deliver in reasonable quantities and
within a reasonable time after receipt of an order from a dealer
having a franchise for the retail sale of a new vehicle sold or
distributed by the manufacturer or distributor, a new vehicle or
parts or accessories to new vehicles as are covered by the franchise,
if the vehicle, parts, or accessories are publicly advertised as
being available for delivery or actually being delivered. This
subdivision is not violated, however, if the failure is caused by
acts or causes beyond the control of the manufacturer, manufacturer
branch, distributor, or distributor branch.
(b) To prevent or require, or attempt to prevent or require, by
contract or otherwise, a change in the capital structure of a
dealership or the means by or through which the dealer finances the
operation of the dealership, if the dealer at all times meets
reasonable capital standards agreed to by the dealer and the
manufacturer or distributor, and if a change in capital structure
does not cause a change in the principal management or have the
effect of a sale of the franchise without the consent of the
manufacturer or distributor.
(c) To prevent or require, or attempt to prevent or require, a
dealer to change the executive management of a dealership, other than
the principal dealership operator or operators, if the franchise was
granted to the dealer in reliance upon the personal qualifications
of that person.
(d) (1) Except as provided in subdivision (t), to prevent or
require, or attempt to prevent or require, by contract or otherwise,
a dealer, or an officer, partner, or stockholder of a dealership, the
sale or transfer of a part of the interest of any of them to another
person. A dealer, officer, partner, or stockholder shall not,
however, have the right to sell, transfer, or assign the franchise,
or a right thereunder, without the consent of the manufacturer or
distributor except that the consent shall not be unreasonably
withheld.
(2) (A) For the transferring franchisee to fail, prior to the
sale, transfer, or assignment of a franchisee or the sale,
assignment, or transfer of all, or substantially all, of the assets
of the franchised business or a controlling interest in the
franchised business to another person, to notify the manufacturer or
distributor of the franchisee's decision to sell, transfer, or assign
the franchise. The notice shall be in writing and shall include all
of the following:
(i) The proposed transferee's name and address.
(ii) A copy of all of the agreements relating to the sale,
assignment, or transfer of the franchised business or its assets.
(iii) The proposed transferee's application for approval to become
the successor franchisee. The application shall include forms and
related information generally utilized by the manufacturer or
distributor in reviewing prospective franchisees, if those forms are
readily made available to existing franchisees. As soon as
practicable after receipt of the proposed transferee's application,
the manufacturer or distributor shall notify the franchisee and the
proposed transferee of information needed to make the application
complete.
(B) For the manufacturer or distributor, to fail, on or before 60
days after the receipt of all of the information required pursuant to
subparagraph (A), or as extended by a written agreement between the
manufacturer or distributor and the franchisee, to notify the
franchisee of the approval or the disapproval of the sale, transfer,
or assignment of the franchise. The notice shall be in writing and
shall be personally served or sent by certified mail, return receipt
requested, or by guaranteed overnight delivery service that provides
verification of delivery and shall be directed to the franchisee. A
proposed sale, assignment, or transfer shall be deemed approved,
unless disapproved by the franchisor in the manner provided by this
subdivision. If the proposed sale, assignment, or transfer is
disapproved, the franchisor shall include in the notice of
disapproval a statement setting forth the reasons for the
disapproval.
(3) In an action in which the manufacturer's or distributor's
withholding of consent under this subdivision or subdivision (e) is
an issue, whether the withholding of consent was unreasonable is a
question of fact requiring consideration of all the existing
circumstances.
(e) To prevent, or attempt to prevent, a dealer from receiving
fair and reasonable compensation for the value of the franchised
business. There shall not be a transfer or assignment of the dealer's
franchise without the consent of the manufacturer or distributor,
which consent shall not be unreasonably withheld or conditioned upon
the release, assignment, novation, waiver, estoppel, or modification
of a claim or defense by the dealer.
(f) To obtain money, goods, services, or another benefit from a
person with whom the dealer does business, on account of, or in
relation to, the transaction between the dealer and that other
person, other than for compensation for services rendered, unless the
benefit is promptly accounted for, and transmitted to, the dealer.
(g) (1) Except as provided in paragraph (3), to obtain from a
dealer or enforce against a dealer an agreement, provision, release,
assignment, novation, waiver, or estoppel that does any of the
following:
(A) Modifies or disclaims a duty or obligation of a manufacturer,
manufacturer branch, distributor, distributor branch, or
representative, or a right or privilege of a dealer, pursuant to
Chapter 4 (commencing with Section 11700) of Division 5 or Chapter 6
(commencing with Section 3000) of Division 2.
(B) Limits or constrains the right of a dealer to file, pursue, or
submit evidence in connection with a protest before the board.
(C) Requires a dealer to terminate a franchise.
(D) Requires a controversy between a manufacturer, manufacturer
branch, distributor, distributor branch, or representative and a
dealer to be referred to a person for a binding determination.
However, this subparagraph does not prohibit arbitration before an
independent arbitrator, provided that whenever a motor vehicle
franchise contract provides for the use of arbitration to resolve a
controversy arising out of, or relating to, that contract,
arbitration may be used to settle the controversy only if, after the
controversy arises, all parties to the controversy consent in writing
to use arbitration to settle the controversy. For the purpose of
this subparagraph, the terms "motor vehicle" and "motor vehicle
franchise contract" shall have the same meaning as defined in Section
1226 of Title 15 of the United States Code. If arbitration is
elected to settle a dispute under a motor vehicle franchise contract,
the arbitrator shall provide the parties to the arbitration with a
written explanation of the factual and legal basis for the award.
(2) An agreement, provision, release, assignment, novation,
waiver, or estoppel prohibited by this subdivision shall be
unenforceable and void.
(3) This subdivision does not do any of the following:
(A) Limit or restrict the terms upon which parties to a protest
before the board, civil action, or other proceeding can settle or
resolve, or stipulate to evidentiary or procedural matters during the
course of, a protest, civil action, or other proceeding.
(B) Affect the enforceability of any stipulated order or other
order entered by the board.
(C) Affect the enforceability of any provision in a contract if
the provision is not prohibited under this subdivision or any other
law.
(D) Affect the enforceability of a provision in any contract
entered into on or before December 31, 2011.
(E) Prohibit a dealer from waiving its right to file a protest
pursuant to Section 3065.1 if the waiver agreement is entered into
after a franchisor incentive program claim has been disapproved by
the franchisor and the waiver is voluntarily given as part of an
agreement to settle that claim.
(F) Prohibit a voluntary agreement supported by valuable
consideration, other than granting or renewing a franchise, that does
both of the following:
(i) Provides that a dealer establish or maintain exclusive
facilities, personnel, or display space or provides that a dealer
make a material alteration, expansion, or addition to a dealership
facility.
(ii) Contains no waiver or other provision prohibited by
subparagraph (A), (B), (C), or (D) of paragraph (1).
(G) Prohibit an agreement separate from the franchise agreement
that implements a dealer's election to terminate the franchise if the
agreement is conditioned only on a specified time for termination or
payment of consideration to the dealer.
(H) (i) Prohibit a voluntary waiver agreement, supported by
valuable consideration, other than the consideration of renewing a
franchise, to waive the right of a dealer to file a protest under
Section 3062 for the proposed establishment or relocation of a
specific proposed dealership, if the waiver agreement provides all of
the following:
(I) The approximate address at which the proposed dealership will
be located.
(II) The planning potential used to establish the proposed
dealership's facility, personnel, and capital requirements.
(III) An approximation of projected vehicle and parts sales, and
number of vehicles to be serviced at the proposed dealership.
(IV) Whether the franchisor or affiliate will hold an ownership
interest in the proposed dealership or real property of the proposed
dealership, and the approximate percentage of any franchisor or
affiliate ownership interest in the proposed dealership.
(V) The line-makes to be operated at the proposed dealership.
(VI) If known at the time the waiver agreement is executed, the
identity of the dealer who will operate the proposed dealership.
(VII) The date the waiver agreement is to expire, which may not be
more than 30 months after the date of execution of the waiver
agreement.
(ii) Notwithstanding the provisions of a waiver agreement entered
into pursuant to the provisions of this subparagraph, a dealer may
file a protest under Section 3062 if any of the information provided
pursuant to clause (i) has become materially inaccurate since the
waiver agreement was executed. Any determination of the
enforceability of a waiver agreement shall be determined by the board
and the franchisor shall have the burden of proof.
(h) To increase prices of motor vehicles that the dealer had
ordered for private retail consumers prior to the dealer's receipt of
the written official price increase notification. A sales contract
signed by a private retail consumer is evidence of the order. In the
event of manufacturer price reductions, the amount of the reduction
received by a dealer shall be passed on to the private retail
consumer by the dealer if the retail price was negotiated on the
basis of the previous higher price to the dealer. Price reductions
apply to all vehicles in the dealer's inventory that were subject to
the price reduction. Price differences applicable to new model or
series motor vehicles at the time of the introduction of new models
or series shall not be considered a price increase or price decrease.
This subdivision does not apply to price changes caused by either of
the following:
(1) The addition to a motor vehicle of required or optional
equipment pursuant to state or federal law.
(2) Revaluation of the United States dollar in the case of a
foreign-make vehicle.
(i) To fail to pay to a dealer, within a reasonable time following
receipt of a valid claim by a dealer thereof, a payment agreed to be
made by the manufacturer or distributor to the dealer by reason of
the fact that a new vehicle of a prior year model is in the dealer's
inventory at the time of introduction of new model vehicles.
(j) To deny the widow, widower, or heirs designated by a deceased
owner of a dealership the opportunity to participate in the ownership
of the dealership or successor dealership under a valid franchise
for a reasonable time after the death of the owner.
(k) To offer refunds or other types of inducements to a person for
the purchase of new motor vehicles of a certain line-make to be sold
to the state or a political subdivision of the state without making
the same offer to all other dealers in the same line-make within the
relevant market area.
(l) To modify, replace, enter into, relocate, terminate, or refuse
to renew a franchise in violation of Article 4 (commencing with
Section 3060) of Chapter 6 of Division 2.
(m) To employ a person as a representative who has not been
licensed pursuant to Article 3 (commencing with Section 11900) of
Chapter 4 of Division 5.
(n) To deny a dealer the right of free association with another
dealer for a lawful purpose.
(o) (1) To compete with a dealer in the same line-make operating
under an agreement or franchise from a manufacturer or distributor in
the relevant market area.
(2) A manufacturer, branch, or distributor or an entity that
controls or is controlled by, a manufacturer, branch, or distributor,
shall not, however, be deemed to be competing in the following
limited circumstances:
(A) Owning or operating a dealership for a temporary period, not
to exceed one year at the location of a former dealership of the same
line-make that has been out of operation for less than six months.
However, after a showing of good cause by a manufacturer, branch, or
distributor that it needs additional time to operate a dealership in
preparation for sale to a successor independent franchisee, the board
may extend the time period.
(B) Owning an interest in a dealer as part of a bona fide dealer
development program that satisfies all of the following requirements:
(i) The sole purpose of the program is to make franchises
available to persons lacking capital, training, business experience,
or other qualities ordinarily required of prospective franchisees and
the dealer development candidate is an individual who is unable to
acquire the franchise without assistance of the program.
(ii) The dealer development candidate has made a significant
investment subject to loss in the franchised business of the dealer.
(iii) The program requires the dealer development candidate to
manage the day-to-day operations and business affairs of the dealer
and to acquire, within a reasonable time and on reasonable terms and
conditions, beneficial ownership and control of a majority interest
in the dealer and disassociation of any direct or indirect ownership
or control by the manufacturer, branch, or distributor.
(C) Owning a wholly owned subsidiary corporation of a distributor
that sells motor vehicles at retail, if, for at least three years
prior to January 1, 1973, the subsidiary corporation has been a
wholly owned subsidiary of the distributor and engaged in the sale of
vehicles at retail.
(3) (A) A manufacturer, branch, and distributor that owns or
operates a dealership in the manner described in subparagraph (A) of
paragraph (2) shall give written notice to the board, within 10 days,
each time it commences or terminates operation of a dealership and
each time it acquires, changes, or divests itself of an ownership
interest.
(B) A manufacturer, branch, and distributor that owns an interest
in a dealer in the manner described in subparagraph (B) of paragraph
(2) shall give written notice to the board, annually, of the name and
location of each dealer in which it has an ownership interest, the
name of the bona fide dealer development owner or owners, and the
ownership interests of each owner expressed as a percentage.
(p) To unfairly discriminate among its franchisees with respect to
warranty reimbursement or authority granted to its franchisees to
make warranty adjustments with retail customers.
(q) To sell vehicles to a person not licensed pursuant to this
chapter for resale.
(r) To fail to affix an identification number to a park trailer,
as described in Section 18009.3 of the Health and Safety Code, that
is manufactured on or after January 1, 1987, and that does not
clearly identify the unit as a park trailer to the department. The
configuration of the identification number shall be approved by the
department.
(s) To dishonor a warranty, rebate, or other incentive offered to
the public or a dealer in connection with the retail sale of a new
motor vehicle, based solely upon the fact that an autobroker arranged
or negotiated the sale. This subdivision shall not prohibit the
disallowance of that rebate or incentive if the purchaser or dealer
is ineligible to receive the rebate or incentive pursuant to any
other term or condition of a rebate or incentive program.
(t) To exercise a right of first refusal or other right requiring
a franchisee or an owner of the franchise to sell, transfer, or
assign to the franchisor, or to a nominee of the franchisor, all or a
material part of the franchised business or of the assets of the
franchised business unless all of the following requirements are met:
(1) The franchise authorizes the franchisor to exercise a right of
first refusal to acquire the franchised business or assets of the
franchised business in the event of a proposed sale, transfer, or
assignment.
(2) The franchisor gives written notice of its exercise of the
right of first refusal no later than 45 days after the franchisor
receives all of the information required pursuant to subparagraph (A)
of paragraph (2) of subdivision (d).
(3) The sale, transfer, or assignment being proposed relates to
not less than all or substantially all of the assets of the
franchised business or to a controlling interest in the franchised
business.
(4) The proposed transferee is neither a family member of an owner
of the franchised business, nor a managerial employee of the
franchisee owning 15 percent or more of the franchised business, nor
a corporation, partnership, or other legal entity owned by the
existing owners of the franchised business. For purposes of this
paragraph, a "family member" means the spouse of an owner of the
franchised business, the child, grandchild, brother, sister, or
parent of an owner, or a spouse of one of those family members. This
paragraph does not limit the rights of the franchisor to disapprove a
proposed transferee as provided in subdivision (d).
(5) Upon the franchisor's exercise of the right of first refusal,
the consideration paid by the franchisor to the franchisee and owners
of the franchised business shall equal or exceed all consideration
that each of them were to have received under the terms of, or in
connection with, the proposed sale, assignment, or transfer, and the
franchisor shall comply with all the terms and conditions of the
agreement or agreements to sell, transfer, or assign the franchised
business.
(6) The franchisor shall reimburse the proposed transferee for
expenses paid or incurred by the proposed transferee in evaluating,
investigating, and negotiating the proposed transfer to the extent
those expenses do not exceed the usual, customary, and reasonable
fees charged for similar work done in the area in which the
franchised business is located. These expenses include, but are not
limited to, legal and accounting expenses, and expenses incurred for
title reports and environmental or other investigations of real
property on which the franchisee's operations are conducted. The
proposed transferee shall provide the franchisor a written
itemization of those expenses, and a copy of all nonprivileged
reports and studies for which expenses were incurred, if any, within
30 days of the proposed transferee's receipt of a written request
from the franchisor for that accounting. The franchisor shall make
payment within 30 days of exercising the right of first refusal.
(u) (1) To unfairly discriminate in favor of a dealership owned or
controlled, in whole or in part, by a manufacturer or distributor or
an entity that controls or is controlled by the manufacturer or
distributor. Unfair discrimination includes, but is not limited to,
the following:
(A) The furnishing to a franchisee or dealer that is owned or
controlled, in whole or in part, by a manufacturer, branch, or
distributor of any of the following:
(i) A vehicle that is not made available to each franchisee
pursuant to a reasonable allocation formula that is applied
uniformly, and a part or accessory that is not made available to all
franchisees on an equal basis when there is no reasonable allocation
formula that is applied uniformly.
(ii) A vehicle, part, or accessory that is not made available to
each franchisee on comparable delivery terms, including the time of
delivery after the placement of an order. Differences in delivery
terms due to geographic distances or other factors beyond the control
of the manufacturer, branch, or distributor shall not constitute
unfair competition.
(iii) Information obtained from a franchisee by the manufacturer,
branch, or distributor concerning the business affairs or operations
of a franchisee in which the manufacturer, branch, or distributor
does not have an ownership interest. The information includes, but is
not limited to, information contained in financial statements and
operating reports, the name, address, or other personal information
or buying, leasing, or service behavior of a dealer customer, and
other information that, if provided to a franchisee or dealer owned
or controlled by a manufacturer or distributor, would give that
franchisee or dealer a competitive advantage. This clause does not
apply if the information
is provided pursuant to a subpoena or court order, or to aggregated
information made available to all franchisees.
(iv) Sales or service incentives, discounts, or promotional
programs that are not made available to all California franchises of
the same line-make on an equal basis.
(B) Referring a prospective purchaser or lessee to a dealer in
which a manufacturer, branch, or distributor has an ownership
interest, unless the prospective purchaser or lessee resides in the
area of responsibility assigned to that dealer or the prospective
purchaser or lessee requests to be referred to that dealer.
(2) This subdivision does not prohibit a franchisor from granting
a franchise to prospective franchisees or assisting those franchisees
during the course of the franchise relationship as part of a program
or programs to make franchises available to persons lacking capital,
training, business experience, or other qualifications ordinarily
required of prospective franchisees.
(v) (1) To access, modify, or extract information from a
confidential dealer computer record, as defined in Section 11713.25,
without obtaining the prior written consent of the dealer and without
maintaining administrative, technical, and physical safeguards to
protect the security, confidentiality, and integrity of the
information.
(2) Paragraph (1) does not limit a duty that a dealer may have to
safeguard the security and privacy of records maintained by the
dealer.
(w) (1) To use electronic, contractual, or other means to prevent
or interfere with any of the following:
(A) The lawful efforts of a dealer to comply with federal and
state data security and privacy laws.
(B) The ability of a dealer to do either of the following:
(i) Ensure that specific data accessed from the dealer's computer
system is within the scope of consent specified in subdivision (v).
(ii) Monitor specific data accessed from or written to the dealer'
s computer system.
(2) Paragraph (1) does not limit a duty that a dealer may have to
safeguard the security and privacy of records maintained by the
dealer.
(x) (1) To unfairly discriminate against a franchisee selling a
service contract, debt cancellation agreement, maintenance agreement,
or similar product not approved, endorsed, sponsored, or offered by
the manufacturer, manufacturer branch, distributor, or distributor
branch or affiliate. For purposes of this subdivision, unfair
discrimination includes, but is not limited to, any of the following:
(A) Express or implied statements that the dealer is under an
obligation to exclusively sell or offer to sell service contracts,
debt cancellation agreements, or similar products approved, endorsed,
sponsored, or offered by the manufacturer, manufacturer branch,
distributor, or distributor branch or affiliate.
(B) Express or implied statements that selling or offering to sell
service contracts, debt cancellation agreements, maintenance
agreements, or similar products not approved, endorsed, sponsored, or
offered by the manufacturer, manufacturer branch, distributor, or
distributor branch or affiliate, or the failure to sell or offer to
sell service contracts, debt cancellation agreements, maintenance
agreements, or similar products approved, endorsed, sponsored, or
offered by the manufacturer, manufacturer branch, distributor, or
distributor branch or affiliate will have any negative consequences
for the dealer.
(C) Measuring a dealer's performance under a franchise agreement
based upon the sale of service contracts, debt cancellation
agreements, or similar products approved, endorsed, sponsored, or
offered by the manufacturer, manufacturer branch, distributor, or
distributor branch or affiliate.
(D) Requiring a dealer to actively promote the sale of service
contracts, debt cancellation agreements, or similar products
approved, endorsed, sponsored, or offered by the manufacturer,
manufacturer branch, distributor, or distributor branch or affiliate.
(E) Conditioning access to vehicles or parts, or vehicle sales or
service incentives upon the sale of service contracts, debt
cancellation agreements, or similar products approved, endorsed,
sponsored, or offered by the manufacturer, manufacturer branch,
distributor, or distributor branch or affiliate.
(2) Unfair discrimination does not include, and nothing shall
prohibit a manufacturer from, offering an incentive program to
vehicle dealers who voluntarily sell or offer to sell service
contracts, debt cancellation agreements, or similar products
approved, endorsed, sponsored, or offered by the manufacturer,
manufacturer branch, distributor, or distributor branch or affiliate,
if the program does not provide vehicle sales or service incentives.
(3) This subdivision does not prohibit a manufacturer,
manufacturer branch, distributor, or distributor branch from
requiring a franchisee that sells a used vehicle as "certified" under
a certified used vehicle program established by the manufacturer,
manufacturer branch, distributor, or distributor branch to provide a
service contract approved, endorsed, sponsored, or offered by the
manufacturer, manufacturer branch, distributor, or distributor
branch.
(4) Unfair discrimination does not include, and nothing shall
prohibit a franchisor from requiring a franchisee to provide, the
following notice prior to the sale of the service contract if the
service contract is not provided or backed by the franchisor and the
vehicle is of the franchised line-make:
"Service Contract Disclosure
The service contract you are purchasing is not provided or backed by
the manufacturer of the vehicle you are purchasing. The manufacturer
of the vehicle is not responsible for claims or repairs under this
service contract.
_____________________
Signature of Purchaser"
(y) As used in this section, "area of responsibility" is a
geographic area specified in a franchise that is used by the
franchisor for the purpose of evaluating the franchisee's performance
of its sales and service obligations.
SEC. 181. 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 Fire
Apparatus Driver/Operator 1A 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) Submit a report of medical examination on a form approved by
the department. The report shall be dated within four years preceding
the application date, except as required by paragraph (2) of
subdivision (a) of Section 12804.9. Holders of a restricted
firefighter's license as of January 1, 2011, are not subject to the
requirement for a medical exam until he or she renews his or her
license.
(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
any emergency situation, or to transport equipment used in the
control of any 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. 182. Section 23575 of the Vehicle Code is amended to read:
23575. (a) (1) In addition to any other law, the court may
require that a person convicted of a first offense violation of
Section 23152 or 23153 install a certified ignition interlock device
on any vehicle that the person owns or operates and prohibit that
person from operating a motor vehicle unless that vehicle is equipped
with a functioning, certified ignition interlock device. The court
shall give heightened consideration to applying this sanction to a
first offense violator with 0.15 percent or more, by weight, of
alcohol in his or her blood at arrest, or with two or more prior
moving traffic violations, or to persons who refused the chemical
tests at arrest. If the court orders the ignition interlock device
restriction, the term shall be determined by the court for a period
not to exceed three years from the date of conviction. The court
shall notify the Department of Motor Vehicles, as specified in
subdivision (a) of Section 1803, of the terms of the restrictions in
accordance with subdivision (a) of Section 1804. The Department of
Motor Vehicles shall place the restriction in the person's records in
the Department of Motor Vehicles.
(2) The court shall require a person convicted of a violation of
Section 14601.2 to install an ignition interlock device on any
vehicle that the person owns or operates and prohibit the person from
operating a motor vehicle unless the vehicle is equipped with a
functioning, certified ignition interlock device. The term of the
restriction shall be determined by the court for a period not to
exceed three years from the date of conviction. The court shall
notify the Department of Motor Vehicles, as specified in subdivision
(a) of Section 1803, of the terms of the restrictions in accordance
with subdivision (a) of Section 1804. The Department of Motor
Vehicles shall place the restriction in the person's records in the
Department of Motor Vehicles.
(b) The court shall include on the abstract of conviction or
violation submitted to the Department of Motor Vehicles under Section
1803 or 1816 the requirement and term for the use of a certified
ignition interlock device. The records of the department shall
reflect mandatory use of the device for the term ordered by the
court.
(c) The court shall advise the person that installation of an
ignition interlock device on a vehicle does not allow the person to
drive without a valid driver's license.
(d) A person whose driving privilege is restricted by the court
pursuant to this section shall arrange for each vehicle with an
ignition interlock device to be serviced by the installer at least
once every 60 days in order for the installer to recalibrate and
monitor the operation of the device. The installer shall notify the
court if the device is removed or indicates that the person has
attempted to remove, bypass, or tamper with the device, or if the
person fails three or more times to comply with a requirement for the
maintenance or calibration of the ignition interlock device. There
is no obligation for the installer to notify the court if the person
has complied with all of the requirements of this article.
(e) The court shall monitor the installation and maintenance of an
ignition interlock device restriction ordered pursuant to
subdivision (a) or (l). If a person fails to comply with the court
order, the court shall give notice of the fact to the department
pursuant to Section 40509.1.
(f) (1) If a person is convicted of a violation of Section 23152
or 23153 and the offense occurred within 10 years of one or more
separate violations of Section 23152 or 23153 that resulted in a
conviction, or if a person is convicted of a violation of Section
23103, as specified in Section 23103.5, and is suspended for one year
under Section 13353.3, the person may apply to the Department of
Motor Vehicles for a restricted driver's license pursuant to Section
13352 or 13353.3 that prohibits the person from operating a motor
vehicle unless that vehicle is equipped with a functioning ignition
interlock device, certified pursuant to Section 13386. The
restriction shall remain in effect for at least the remaining period
of the original suspension or revocation and until all reinstatement
requirements in Section 13352 or 13353.4 are met.
(2) Pursuant to subdivision (g), the Department of Motor Vehicles
shall immediately terminate the restriction issued pursuant to
Section 13352 or 13353.3 and shall immediately suspend or revoke the
privilege to operate a motor vehicle of a person who attempts to
remove, bypass, or tamper with the device, who has the device removed
prior to the termination date of the restriction, or who fails three
or more times to comply with any requirement for the maintenance or
calibration of the ignition interlock device ordered pursuant to
Section 13352 or 13353.3. The privilege shall remain suspended or
revoked for the remaining period of the originating suspension or
revocation and until all reinstatement requirements in Section 13352
or 13353.4 are met.
(g) A person whose driving privilege is restricted by the
Department of Motor Vehicles pursuant to Section 13352 or 13353.3
shall arrange for each vehicle with an ignition interlock device to
be serviced by the installer at least once every 60 days in order for
the installer to recalibrate the device and monitor the operation of
the device. The installer shall notify the Department of Motor
Vehicles if the device is removed or indicates that the person has
attempted to remove, bypass, or tamper with the device, or if the
person fails three or more times to comply with any requirement for
the maintenance or calibration of the ignition interlock device.
There is no obligation on the part of the installer to notify the
department or the court if the person has complied with all of the
requirements of this section.
(h) Nothing in this section permits a person to drive without a
valid driver's license.
(i) The Department of Motor Vehicles shall include information
along with the order of suspension or revocation for repeat offenders
informing them that after a specified period of suspension or
revocation has been completed, the person may either install an
ignition interlock device on any vehicle that the person owns or
operates or remain with a suspended or revoked driver's license.
(j) Pursuant to this section, an out-of-state resident who
otherwise would qualify for an ignition interlock device restricted
license in California shall be prohibited from operating a motor
vehicle in California unless that vehicle is equipped with a
functioning ignition interlock device. An ignition interlock device
is not required to be installed on any vehicle owned by the defendant
that is not driven in California.
(k) If a person has a medical problem that does not permit the
person to breathe with sufficient strength to activate the device,
then that person shall only have the suspension option.
(l) This section does not restrict a court from requiring
installation of an ignition interlock device and prohibiting
operation of a motor vehicle unless that vehicle is equipped with a
functioning, certified ignition interlock device for a person to whom
subdivision (a) or (b) does not apply. The term of the restriction
shall be determined by the court for a period not to exceed three
years from the date of conviction. The court shall notify the
Department of Motor Vehicles, as specified in subdivision (a) of
Section 1803, of the terms of the restrictions in accordance with
subdivision (a) of Section 1804. The Department of Motor Vehicles
shall place the restriction in the person's records in the Department
of Motor Vehicles.
(m) For the purposes of this section, "vehicle" does not include a
motorcycle until the state certifies an ignition interlock device
that can be installed on a motorcycle. Any person subject to an
ignition interlock device restriction shall not operate a motorcycle
for the duration of the ignition interlock device restriction period.
(n) For the purposes of this section, "owned" means solely owned
or owned in conjunction with another person or legal entity. For
purposes of this section, "operates" includes operating a vehicle
that is not owned by the person subject to this section.
(o) For the purposes of this section, "bypass" includes, but is
not limited to, either of the following:
(1) A combination of failing or not taking the ignition interlock
device rolling retest three consecutive times.
(2) An incidence of failing or not taking the ignition interlock
device rolling retest, when not followed by an incidence of passing
the ignition interlock rolling retest prior to turning off the
vehicle's engine.
SEC. 183. Section 40240 of the Vehicle Code is amended to read:
40240. (a) The City and County of San Francisco may install
automated forward facing parking control devices on city-owned public
transit vehicles, as defined by Section 99211 of the Public
Utilities Code, for the purpose of video imaging of parking
violations occurring in transit-only traffic lanes. Citations shall
be issued only for violations captured during the posted hours of
operation for a transit-only traffic lane. The devices shall be
angled and focused so as to capture video images of parking
violations and not unnecessarily capture identifying images of other
drivers, vehicles, and pedestrians. The devices shall record the date
and time of the violation at the same time as the video images are
captured.
(b) Prior to issuing notices of parking violations pursuant to
subdivision (a) of Section 40241, the City and County of San
Francisco shall commence a program to issue only warning notices for
30 days. The City and County of San Francisco shall also make a
public announcement of the program at least 30 days prior to
commencement of issuing notices of parking violations.
(c) A designated employee of the City and County of San Francisco,
who is qualified by the city and county to issue parking citations,
shall review video image recordings for the purpose of determining
whether a parking violation occurred in a transit-only traffic lane.
A violation of a statute, regulation, or ordinance governing vehicle
parking under this code, under a federal or state statute or
regulation, or under an ordinance enacted by the City and County of
San Francisco occurring in a transit-only traffic lane observed by
the designated employee in the recordings is subject to a civil
penalty.
(d) The registered owner shall be permitted to review the video
image evidence of the alleged violation during normal business hours
at no cost.
(e) (1) Except as it may be included in court records described in
Section 68152 of the Government Code, or as provided in paragraph
(2), the video image evidence may be retained for up to six months
from the date the information was first obtained, or 60 days after
final disposition of the citation, whichever date is later, after
which time the information shall be destroyed.
(2) Notwithstanding Section 26202.6 of the Government Code, video
image evidence from forward facing automated enforcement devices that
does not contain evidence of a parking violation occurring in a
transit-only traffic lane shall be destroyed within 15 days after the
information was first obtained.
(f) Notwithstanding Section 6253 of the Government Code, or any
other provision of law, the video image records are confidential.
Public agencies shall use and allow access to these records only for
the purposes authorized by this article.
(g) For purposes of this article, "local agency" means the City
and County of San Francisco.
(h) For purposes of this article, "transit-only traffic lane"
means any designated transit-only lane on which use is restricted to
mass transit vehicles, or other designated vehicles including taxis
and vanpools, during posted times.
SEC. 184. Section 1486 of the Water Code is amended to read:
1486. (a) The Sacramento Regional County Sanitation District, and
any successor thereto, with respect to treated wastewater produced
by the sanitation district that meets the requirements of the Central
Valley Regional Water Quality Control Board, as may be amended or
modified, and that is discharged into the Sacramento River, may file
an application for a permit to appropriate an amount of water up to
the amount of treated wastewater that is discharged into the
Sacramento River, less diminution by seepage, evaporation,
transportation, or other natural causes between the point of
discharge from its wastewater treatment plant and the point of
diversion out of the Sacramento River or the Sacramento-San Joaquin
Delta.
(b) Upon application for a permit to appropriate water pursuant to
subdivision (a), the board may grant the permit subject to the terms
and conditions as in the board's judgment are necessary for the
protection of the rights of any legal user of the water.
(c) Prior to the board granting a permit under subdivision (b),
the board shall comply with the provisions of this part, and other
applicable law, and may impose terms and conditions authorized
thereunder.
(d) Water appropriated in accordance with this section may be sold
or utilized for any beneficial purpose.
SEC. 185. Section 10753 of the Water Code is amended to read:
10753. (a) Any local agency, whose service area includes a
groundwater basin, or a portion of a groundwater basin, that is not
subject to groundwater management pursuant to other provisions of law
or a court order, judgment, or decree, may, by ordinance, or by
resolution if the local agency is not authorized to act by ordinance,
adopt and implement a groundwater management plan pursuant to this
part within all or a portion of its service area.
(b) Notwithstanding subdivision (a), a local public agency, other
than an agency defined in subdivision (g) of Section 10752, that
provides flood control, groundwater management, or groundwater
replenishment, or a local agency formed pursuant to this code for the
principal purpose of providing water service that has not yet
provided that service, may exercise the authority of this part within
a groundwater basin that is located within its boundaries within
areas that are either of the following:
(1) Not served by a local agency.
(2) Served by a local agency whose governing body, by a majority
vote, declines to exercise the authority of this part and enters into
an agreement with the local
public agency pursuant to Section 10750.7 or 10750.8.
(c) Except as provided in subdivision (b), this chapter does not
authorize a local agency to manage groundwater planning within the
service area of another local agency.
(d) Except as otherwise provided in this part, the process for
developing and adopting a revised groundwater management plan shall
be the same as the process for developing and adopting a new
groundwater management plan.
SEC. 186. Section 74209 of the Water Code is amended to read:
74209. (a) A district with a board consisting of seven directors
may reduce the number of directors to five pursuant to this section.
A reduction in the number of directors shall not be made within 180
days preceding the election of a director.
(b) In order to reduce the number of directors pursuant to this
section, the board shall adopt, by a recorded vote of two-thirds of
the total membership of the board, a resolution proposing to reduce
the number of directors from seven to five. The resolution shall
contain a map and description of the boundaries for the five
divisions proposed to be established.
(c) The secretary of the district shall set a date for a public
hearing on the proposal to reduce the number of directors, which
shall be not less than 30 days and not more than 60 days after the
date on which the board adopted the resolution described in
subdivision (b). The secretary shall give notice of the hearing,
which shall include a description of the proposal and shall contain a
map and general description of the proposed boundaries of the five
divisions. The secretary shall give notice of the hearing by
publishing a notice pursuant to Section 6063 of the Government Code
in at least one newspaper of general circulation within the
jurisdiction of the district at least 10 days before the hearing. In
addition, the secretary shall mail the notice to a person who has
filed a written request for notice with the secretary at least 10
days before the hearing.
(d) At the hearing, the board shall receive and consider any
written or oral comments regarding the proposed reduction in the
number of directors. After receiving and considering those comments,
the board, by a recorded vote of two-thirds of the total membership
of the board, shall do either of the following:
(1) Disapprove the proposal.
(2) Adopt a resolution that orders the reduction in the number of
members of the board.
(e) The adoption of a resolution that orders a reduction in the
number of members of the board pursuant to this section is a
legislative act that is subject to referendum pursuant to Article 2
(commencing with Section 9340) of Chapter 4 of Division 9 of the
Elections Code.
(f) A reduction in the number of directors and a change in
division boundaries pursuant to this section shall not affect the
term of office of any director. A director of a division for which
boundaries have been changed shall continue to be the director of the
division bearing the number of his or her division until the office
becomes vacant by means of term expiration or otherwise, whether or
not the director is a resident within the boundaries of the division
as changed. The successor to the office of a director of a division
for which boundaries have been changed shall be a resident and voter
of that division.
(g) This section does not apply to districts within the County of
Ventura, which are subject to the provisions of Chapter 4 (commencing
with Section 74450) of Part 4.
SEC. 187. Section 319 of the Welfare and Institutions Code is
amended to read:
319. (a) At the initial petition hearing, the court shall examine
the child's parents, guardians, or other persons having relevant
knowledge and hear the relevant evidence as the child, the child's
parents or guardians, the petitioner, or their counsel desires to
present. The court may examine the child, as provided in Section 350.
(b) The social worker shall report to the court on the reasons why
the child has been removed from the parent's physical custody, the
need, if any, for continued detention, the available services and the
referral methods to those services that could facilitate the return
of the child to the custody of the child's parents or guardians, and
whether there are any relatives who are able and willing to take
temporary physical custody of the child. The court shall order the
release of the child from custody unless a prima facie showing has
been made that the child comes within Section 300, the court finds
that continuance in the parent's or guardian's home is contrary to
the child's welfare, and any of the following circumstances exist:
(1) There is a substantial danger to the physical health of the
child or the child is suffering severe emotional damage, and there
are no reasonable means by which the child's physical or emotional
health may be protected without removing the child from the parent's
or guardian's physical custody.
(2) There is substantial evidence that a parent, guardian, or
custodian of the child is likely to flee the jurisdiction of the
court.
(3) The child has left a placement in which he or she was placed
by the juvenile court.
(4) The child indicates an unwillingness to return home, if the
child has been physically or sexually abused by a person residing in
the home.
(c) If the matter is continued pursuant to Section 322 or for any
other reason, the court shall find that the continuance of the child
in the parent's or guardian's home is contrary to the child's welfare
at the initial petition hearing or order the release of the child
from custody.
(d) (1) The court shall also make a determination on the record,
referencing the social worker's report or other evidence relied upon,
as to whether reasonable efforts were made to prevent or eliminate
the need for removal of the child from his or her home, pursuant to
subdivision (b) of Section 306, and whether there are available
services that would prevent the need for further detention. Services
to be considered for purposes of making this determination are case
management, counseling, emergency shelter care, emergency in-home
caretakers, out-of-home respite care, teaching and demonstrating
homemakers, parenting training, transportation, and any other child
welfare services authorized by the State Department of Social
Services pursuant to Chapter 5 (commencing with Section 16500) of
Part 4 of Division 9. The court shall also review whether the social
worker has considered whether a referral to public assistance
services pursuant to Chapter 2 (commencing with Section 11200) and
Chapter 7 (commencing with Section 14000) of Part 3, Chapter 1
(commencing with Section 17000) of Part 5, and Chapter 10 (commencing
with Section 18900) of Part 6 of Division 9 would have eliminated
the need to take temporary custody of the child or would prevent the
need for further detention.
(2) If the child can be returned to the custody of his or her
parent or guardian through the provision of those services, the court
shall place the child with his or her parent or guardian and order
that the services shall be provided. If the child cannot be returned
to the physical custody of his or her parent or guardian, the court
shall determine if there is a relative who is able and willing to
care for the child, and has been assessed pursuant to paragraph (1)
of subdivision (d) of Section 309.
(e) If a court orders a child detained, the court shall state the
facts on which the decision is based, specify why the initial removal
was necessary, reference the social worker's report or other
evidence relied upon to make its determination whether continuance in
the home of the parent or legal guardian is contrary to the child's
welfare, order temporary placement and care of the child to be vested
with the county child welfare department pending the hearing held
pursuant to Section 355 or further order of the court, and order
services to be provided as soon as possible to reunify the child and
his or her family if appropriate.
(f) (1) If the child is not released from custody, the court may
order that the child shall be placed in the assessed home of a
relative, in an emergency shelter or other suitable licensed place,
in a place exempt from licensure designated by the juvenile court, or
in the assessed home of a nonrelative extended family member as
defined in Section 362.7 for a period not to exceed 15 judicial days.
(2) As used in this section, "relative" means an adult who is
related to the child by blood, adoption, or affinity within the fifth
degree of kinship, including stepparents, stepsiblings, and all
relatives whose status is preceded by the words "great,"
"great-great," or "grand," or the spouse of any of these persons,
even if the marriage was terminated by death or dissolution. However,
only the following relatives shall be given preferential
consideration for placement of the child: an adult who is a
grandparent, aunt, uncle, or sibling of the child.
(3) The court shall consider the recommendations of the social
worker based on the assessment pursuant to paragraph (1) of
subdivision (d) of Section 309 of the relative's home, including the
results of a criminal records check and prior child abuse
allegations, if any, prior to ordering that the child be placed with
a relative. The court shall order the parent to disclose to the
social worker the names, residences, and any known identifying
information of any maternal or paternal relatives of the child. The
social worker shall initiate the assessment pursuant to Section 361.3
of any relative to be considered for continuing placement.
(g) (1) At the initial hearing upon the petition filed in
accordance with subdivision (c) of Rule 5.520 of the California Rules
of Court or anytime thereafter up until the time that the minor is
adjudged a dependent child of the court or a finding is made
dismissing the petition, the court may temporarily limit the right of
the parent or guardian to make educational or developmental services
decisions for the child and temporarily appoint a responsible adult
to make educational or developmental services decisions for the child
if all of the following conditions are found:
(A) The parent or guardian is unavailable, unable, or unwilling to
exercise educational or developmental services rights for the child.
(B) The county placing agency has made diligent efforts to locate
and secure the participation of the parent or guardian in educational
or developmental services decisionmaking.
(C) The child's educational and developmental services needs
cannot be met without the temporary appointment of a responsible
adult.
(2) If the court cannot identify a responsible adult to make
educational decisions for the child and the appointment of a
surrogate parent, as defined in subdivision (a) of Section 56050 of
the Education Code, is not warranted, the court may, with the input
of any interested person, make educational decisions for the child.
If the child is receiving services from a regional center, the
provision of any developmental services related to the court's
decision must be consistent with the child's individual program plan
and pursuant to the provisions of the Lanterman Developmental
Disabilities Services Act (Division 4.5 (commencing with Section
4500)). If the court cannot identify a responsible adult to make
developmental services decisions for the child, the court may, with
the input of any interested person, make developmental services
decisions for the child. If the court makes educational or
developmental services decisions for the child, the court shall also
issue appropriate orders to ensure that every effort is made to
identify a responsible adult to make future educational or
developmental services decisions for the child.
(3) Any temporary appointment of a responsible adult and temporary
limitation on the right of the parent or guardian to make
educational or developmental services decisions for the child shall
be specifically addressed in the court order. Any order made under
this section shall expire at the conclusion of the hearing held
pursuant to Section 361 or upon dismissal of the petition. Upon the
entering of disposition orders, any additional needed limitation on
the parent's or guardian's educational or developmental services
rights shall be addressed pursuant to Section 361.
(4) If the court appoints a developmental services decisionmaker
pursuant to this section, he or she shall have the authority to
access the child's information and records pursuant to subdivision
(u) of Section 4514 and subdivision (y) of Section 5328, and to act
on the child's behalf for the purposes of the individual program plan
process pursuant to Sections 4646, 4646.5, and 4648 and the fair
hearing process pursuant to Chapter 7 (commencing with Section 4700),
and as set forth in the court order.
SEC. 188. Section 366.21 of the Welfare and Institutions Code, as
amended by Section 3 of Chapter 59 of the Statutes of 2011, 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 in counties that are not
served by a county adoption agency or by a licensed 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 licensed 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 in counties that are not
served by a county adoption agency or by a licensed 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, 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
of services provided, taking into account the particular barriers to
an incarcerated or institutionalized parent 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 permit a meaningful response, and
the best interest of each child in the sibling group. The court shall
specify the factual basis for its finding that it is in the best
interest of each child to schedule a hearing pursuant to Section
366.26 in 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 or institutionalization. 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. 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 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 or institutionalized parent 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) 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.
(3) 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 in counties that are not served by a county adoption agency or
by a licensed 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 interest 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 in counties that are not served by a county adoption agency or
by a licensed county adoption agency that adoption is not in the
best interest 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 licensed county
adoption agency, or the State Department of Social Services when it
is acting as an adoption agency in counties that are not served by a
county 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) 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.
(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.
(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.
(n) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 189. Section 366.21 of the Welfare and Institutions Code, as
amended by Section 4 of Chapter 59 of the Statutes of 2011, 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 in counties that are not
served by a county adoption agency or by a licensed 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, 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 licensed 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 in counties
that are not served by a county adoption agency or by a licensed
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, 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
of services provided, taking into account the particular barriers to
an incarcerated or institutionalized parent 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 permit a meaningful response, and
the best interest of each child in the sibling group. The court shall
specify the factual basis for its finding that it is in the best
interest of each child to schedule a hearing pursuant to Section
366.26 in 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 or institutionalization. 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. 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 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 or institutionalized parent 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) 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 or after January 1,
2012, a hearing pursuant to Section 366.26 shall not be ordered if
the child is a nonminor dependent.
(3) 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 in counties that are not served by a county adoption agency or
by a licensed 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 interest 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 in counties that are not served by a county adoption agency or
by a licensed county adoption agency that adoption is not in the
best interest 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 shall be held, it shall direct the agency supervising the
child and the licensed county adoption agency, or the State
Department of Social Services when it is acting as an adoption agency
in counties that are not served by a county 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,
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.
(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) 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.
(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.
(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.
(n) This section shall become operative on January 1, 2014.
SEC. 190. Section 391 of the Welfare and Institutions Code is
amended to read:
391. (a) The dependency court shall not terminate jurisdiction
over a nonminor unless a hearing is conducted pursuant to this
section.
(b) At any hearing for a nonminor at which the court is
considering termination of the jurisdiction of the juvenile court,
the county welfare department shall do all of the following:
(1) Ensure that the dependent nonminor is present in court, unless
the nonminor does not wish to appear in court, and elects a
telephonic appearance, or document reasonable efforts made by the
county welfare department to locate the nonminor when the nonminor is
not available.
(2) Submit a report describing whether it is in the nonminor's
best interests to remain under the court's dependency jurisdiction,
which includes a recommended transitional independent living case
plan for the nonminor when the report describes continuing dependency
jurisdiction as being in the nonminor's best interest.
(3) If the county welfare department recommends termination of the
court's dependency jurisdiction, submit documentation of the
reasonable efforts made by the department to provide the nonminor
with the assistance needed to meet or maintain eligibility as a
nonminor dependent, as defined in paragraphs (1) to (5), inclusive,
of subdivision (b) of Section 11403.
(4) If the nonminor has indicated that he or she does not want
dependency jurisdiction to continue, the report shall address the
manner in which the nonminor was advised of his or her options,
including the benefits of remaining in foster care, and of his or her
right to reenter foster care and to file a petition pursuant to
subdivision (e) of Section 388 to resume dependency jurisdiction
prior to attaining 21 years of age.
(c) (1) The court shall continue dependency jurisdiction over a
nonminor who meets the definition of a nonminor dependent as
described in subdivision (v) of Section 11400 unless the court finds
either of the following:
(A) That the nonminor does not wish to remain subject to
dependency jurisdiction.
(B) That the nonminor is not participating in a reasonable and
appropriate transitional independent living case plan.
(2) In making the findings pursuant to paragraph (1), the court
must also find that the nonminor has been informed of his or her
options including the benefits of remaining in foster care and the
right to reenter foster care by filing a petition pursuant to
subdivision (e) of Section 388 to resume dependency jurisdiction and
by completing a voluntary reentry agreement pursuant to subdivision
(z) of Section 11400, and has had an opportunity to confer with his
or her counsel if counsel has been appointed pursuant to Section 317.
(d) (1) The court may terminate its jurisdiction over a nonminor
if the court finds after reasonable and documented efforts the
nonminor cannot be located.
(2) When terminating dependency jurisdiction the court shall
maintain general jurisdiction over the nonminor to allow for the
filing of a petition to resume dependency jurisdiction under
subdivision (e) of Section 388 until the nonminor attains 21 years of
age, although no review proceedings shall be required. A nonminor
may petition the court pursuant to subdivision (e) of Section 388 to
resume dependency jurisdiction at any time before attaining 21 years
of age.
(e) The court shall not terminate dependency jurisdiction over a
nonminor dependent who has attained 18 years of age until a hearing
is conducted pursuant to this section and the department has
submitted a report verifying that the following information,
documents, and services have been provided to the nonminor, or in the
case of a nonminor who, after reasonable efforts by the county
welfare department, cannot be located, verifying the efforts made to
make the following available to the nonminor:
(1) Written information concerning the nonminor's dependency case,
including any known information regarding the nonminor's Indian
heritage or tribal connections, if applicable, his or her family
history and placement history, any photographs of the nonminor or his
or her family in the possession of the county welfare department,
other than forensic photographs, the whereabouts of any siblings
under the jurisdiction of the juvenile court, unless the court
determines that sibling contact would jeopardize the safety or
welfare of the sibling, directions on how to access the documents the
nonminor is entitled to inspect under Section 827, and the date on
which the jurisdiction of the juvenile court would be terminated.
(2) The following documents:
(A) Social security card.
(B) Certified copy of his or her birth certificate.
(C) Health and education summary, as described in subdivision (a)
of Section 16010.
(D) Driver's license, as described in Section 12500 of the Vehicle
Code, or identification card, as described in Section 13000 of the
Vehicle Code.
(E) A letter prepared by the county welfare department that
includes the following information:
(i) The nonminor's name and date of birth.
(ii) The dates during which the nonminor was within the
jurisdiction of the juvenile court.
(iii) A statement that the nonminor was a foster youth in
compliance with state and federal financial aid documentation
requirements.
(F) If applicable, the death certificate of the parent or parents.
(G) If applicable, proof of the nonminor's citizenship or legal
residence.
(H) An advance healthcare directive form.
(I) The Judicial Council form that the nonminor would use to file
a petition pursuant to subdivision (e) of Section 388 to resume
dependency jurisdiction.
(J) The written 90-day transition plan prepared pursuant to
Section 16501.1.
(3) Assistance in completing an application for Medi-Cal or
assistance in obtaining other health insurance.
(4) Referrals to transitional housing, if available, or assistance
in securing other housing.
(5) Assistance in obtaining employment or other financial support.
(6) Assistance in applying for admission to college or to a
vocational training program or other educational institution and in
obtaining financial aid, where appropriate.
(7) Assistance in maintaining relationships with individuals who
are important to a nonminor who has been in out-of-home placement for
six months or longer from the date the nonminor entered foster care,
based on the nonminor's best interests.
(8) For nonminors between 18 and 21 years of age, assistance in
accessing the Independent Living Aftercare Program in the nonminor's
county of residence, and, upon the nonminor's request, assistance in
completing a voluntary reentry agreement for care and placement
pursuant to subdivision (z) of Section 11400 and in filing a petition
pursuant to subdivision (e) of Section 388 to resume dependency
jurisdiction.
(9) Written information notifying the child that current or former
dependent children who are or have been in foster care are granted a
preference for student assistant or internship positions with state
agencies pursuant to Section 18220 of the Government Code. The
preference shall be granted to applicants up to 26 years of age.
(f) At the hearing closest to and before a dependent minor's 18th
birthday and every review hearing thereafter for nonminors, the
department shall submit a report describing efforts toward completing
the items described in paragraph (2) of subdivision (e).
(g) The Judicial Council shall develop and implement standards,
and develop and adopt appropriate forms necessary to implement this
provision.
(h) This section shall become operative on January 1, 2012.
SEC. 191. Section 712 of the Welfare and Institutions Code is
amended to read:
712. (a) The evaluation ordered by the court under Section 711
shall be made, in accordance with the provisions of Section 741 and
Division 4.5 (commencing with Section 4500), by either of the
following, as applicable:
(1) For minors suspected to be developmentally disabled, by the
director of a regional center or his or her designee, pursuant to
subdivision (f) of Section 709.
(2) For all other minors, by an appropriate and licensed mental
health professional who meets one or more of the following criteria:
(A) The person is licensed to practice medicine in the State of
California and is trained and actively engaged in the practice of
psychiatry.
(B) The person is licensed as a psychologist under Chapter 6.6
(commencing with Section 2900) of Division 2 of the Business and
Professions Code.
(b) The evaluator selected by the court shall personally examine
the minor, conduct appropriate psychological or mental health
screening, assessment, or testing, according to a uniform protocol
developed by the county mental health department, and prepare and
submit to the court a written report indicating his or her findings
and recommendations to guide the court in determining whether the
minor has a serious mental disorder or is seriously emotionally
disturbed, as described in Section 5600.3. If the minor is detained,
the examination shall occur within three court days of the court's
order of referral for evaluation, and the evaluator's report shall be
submitted to the court not later than five court days after the
evaluator has personally examined the minor, unless the submission
date is extended by the court for good cause shown.
(c) Based on the written report by the evaluator or the regional
center, the court shall determine whether the minor has a serious
mental disorder or is seriously emotionally disturbed, as described
in Section 5600.3, or has a developmental disability, as defined in
Section 4512. If the court determines that the minor has a serious
mental disorder, is seriously emotionally disturbed, or has a
developmental disability, the case shall proceed as described in
Section 713. If the court determines that the minor does not have a
serious mental disorder, is not seriously emotionally disturbed, or
does not have a developmental disability, the matter shall proceed
without the application of Section 713 and in accordance with all
other applicable provisions of law.
(d) This section shall not be construed to interfere with the
legal authority of the juvenile court or of any other public or
private agency or individual to refer a minor for mental health
evaluation or treatment as provided in Section 370, 635.1, 704, 741,
5150, 5694.7, 5699.2, 5867.5, or 6551 of this code, or in Section
4011.6 of the Penal Code.
SEC. 192. Section 912 of the Welfare and Institutions Code, as
added by Section 77 of Chapter 36 of the Statutes of 2011, is amended
to read:
912. (a) Commencing on and after January 1, 2012, counties from
which persons are committed to the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities, shall pay to the
state an annual rate of one hundred twenty-five thousand dollars
($125,000) for the time those persons remain in any institution under
the direct supervision of the division, or in any institution,
boarding home, foster home, or other private or public institution in
which they are placed by the division, on parole or otherwise, and
cared for and supported at the expense of the division, as provided
in this section. This section applies to any person committed to the
division by a court, including persons committed to the division
prior to January 1, 2012, who, on or after January 1, 2012, remain in
or return to the facilities described in this section.
(b) The Department of Corrections and Rehabilitation, Division of
Juvenile Facilities, shall present to the county, not more frequently
than monthly, a claim for the amount due the state under this
section, which the county shall process and pay pursuant to Chapter 4
(commencing with Section 29700) of Division 3 of Title 3 of the
Government Code.
SEC. 193. Section 4512 of the Welfare and Institutions Code is
amended to read:
4512. As used in this division:
(a) "Developmental disability" means a disability that originates
before an individual attains age 18 years, continues, or can be
expected to continue, indefinitely, and constitutes a substantial
disability for that individual. As defined by the Director of
Developmental Services, in consultation with the Superintendent of
Public Instruction, this term shall include mental retardation,
cerebral palsy, epilepsy, and autism. This term shall also include
disabling conditions found to be closely related to mental
retardation or to require treatment similar to that required for
individuals with mental retardation, but shall not include other
handicapping conditions that are solely physical in nature.
(b) "Services and supports for persons with developmental
disabilities" means specialized services and supports or special
adaptations of generic services and supports directed toward the
alleviation of a developmental disability or toward the social,
personal, physical, or economic habilitation or rehabilitation of an
individual with a developmental disability, or toward the achievement
and maintenance of independent, productive, normal lives. The
determination of which services and supports are necessary for each
consumer shall be made through the individual program plan process.
The determination shall be made on the basis of the needs and
preferences of the consumer or, when appropriate, the consumer's
family, and shall include consideration of a range of service options
proposed by individual program plan participants, the effectiveness
of each option in meeting the goals stated in the individual program
plan, and the cost-effectiveness of each option. Services and
supports listed in the individual program plan may include, but are
not limited to, diagnosis, evaluation, treatment, personal care, day
care, domiciliary care, special living arrangements, physical,
occupational, and speech therapy, training, education, supported and
sheltered employment, mental health services, recreation, counseling
of the individual with a developmental disability and of his or her
family, protective and other social and sociolegal services,
information and referral services, follow-along services, adaptive
equipment and supplies, advocacy assistance, including self-advocacy
training, facilitation and peer advocates, assessment, assistance in
locating a home, child care, behavior training and behavior
modification programs, camping, community integration services,
community support, daily living skills training, emergency and crisis
intervention, facilitating circles of support, habilitation,
homemaker services, infant stimulation programs, paid roommates, paid
neighbors, respite, short-term out-of-home care, social skills
training, specialized medical and dental care, supported living
arrangements, technical and financial assistance, travel training,
training for parents of children with developmental disabilities,
training for parents with developmental disabilities,
vouchers, and transportation
services necessary to ensure delivery of services to persons with
developmental disabilities. Nothing in this subdivision is intended
to expand or authorize a new or different service or support for any
consumer unless that service or support is contained in his or her
individual program plan.
(c) Notwithstanding subdivisions (a) and (b), for any organization
or agency receiving federal financial participation under the
federal Developmental Disabilities Assistance and Bill of Rights Act
of 2000, as amended, "developmental disability" and "services for
persons with developmental disabilities" mean the terms as defined in
the federal act to the extent required by federal law.
(d) "Consumer" means a person who has a disability that meets the
definition of developmental disability set forth in subdivision (a).
(e) "Natural supports" means personal associations and
relationships typically developed in the community that enhance the
quality and security of life for people, including, but not limited
to, family relationships, friendships reflecting the diversity of the
neighborhood and the community, associations with fellow students or
employees in regular classrooms and workplaces, and associations
developed through participation in clubs, organizations, and other
civic activities.
(f) "Circle of support" means a committed group of community
members, who may include family members, meeting regularly with an
individual with developmental disabilities in order to share
experiences, promote autonomy and community involvement, and assist
the individual in establishing and maintaining natural supports. A
circle of support generally includes a plurality of members who
neither provide nor receive services or supports for persons with
developmental disabilities and who do not receive payment for
participation in the circle of support.
(g) "Facilitation" means the use of modified or adapted materials,
special instructions, equipment, or personal assistance by an
individual, such as assistance with communications, that will enable
a consumer to understand and participate to the maximum extent
possible in the decisions and choices that effect his or her life.
(h) "Family support services" means services and supports that are
provided to a child with developmental disabilities or his or her
family and that contribute to the ability of the family to reside
together.
(i) "Voucher" means any authorized alternative form of service
delivery in which the consumer or family member is provided with a
payment, coupon, chit, or other form of authorization that enables
the consumer or family member to choose his or her own service
provider.
(j) "Planning team" means the individual with developmental
disabilities, the parents or legally appointed guardian of a minor
consumer or the legally appointed conservator of an adult consumer,
the authorized representative, including those appointed pursuant to
subdivision (d) of Section 4548 and subdivision (e) of Section 4705,
one or more regional center representatives, including the designated
regional center service coordinator pursuant to subdivision (b) of
Section 4640.7, any individual, including a service provider, invited
by the consumer, the parents or legally appointed guardian of a
minor consumer or the legally appointed conservator of an adult
consumer, or the authorized representative, including those appointed
pursuant to subdivision (d) of Section 4548 and subdivision (e) of
Section 4705, and including a minor's, dependent's, or ward's
court-appointed developmental services decisionmaker appointed
pursuant to Section 319, 361, or 726.
(k) "Stakeholder organizations" means statewide organizations
representing the interests of consumers, family members, service
providers, and statewide advocacy organizations.
(l) "Substantial disability" means the existence of significant
functional limitations in three or more of the following areas of
major life activity, as determined by a regional center, and as
appropriate to the age of the person:
(1) Self-care.
(2) Receptive and expressive language.
(3) Learning.
(4) Mobility.
(5) Self-direction.
(6) Capacity for independent living.
(7) Economic self-sufficiency.
Any reassessment of substantial disability for purposes of
continuing eligibility shall utilize the same criteria under which
the individual was originally made eligible.
SEC. 194. Section 4514 of the Welfare and Institutions Code is
amended to read:
4514. All information and records obtained in the course of
providing intake, assessment, and services under Division 4.1
(commencing with Section 4400), this division, Division 6 (commencing
with Section 6000), or Division 7 (commencing with Section 7100) to
persons with developmental disabilities shall be confidential.
Information and records obtained in the course of providing similar
services to either voluntary or involuntary recipients prior to 1969
shall also be confidential. Information and records shall be
disclosed only in any of the following cases:
(a) In communications between qualified professional persons,
whether employed by a regional center or state developmental center,
or not, in the provision of intake, assessment, and services or
appropriate referrals. The consent of the person with a developmental
disability, or his or her guardian or conservator, shall be obtained
before information or records may be disclosed by regional center or
state developmental center personnel to a professional not employed
by the regional center or state developmental center, or a program
not vendored by a regional center or state developmental center.
(b) When the person with a developmental disability, who has the
capacity to give informed consent, designates individuals to whom
information or records may be released, except that nothing in this
chapter shall be construed to compel a physician and surgeon,
psychologist, social worker, marriage and family therapist,
professional clinical counselor, nurse, attorney, or other
professional to reveal information that has been given to him or her
in confidence by a family member of the person unless a valid release
has been executed by that family member.
(c) To the extent necessary for a claim, or for a claim or
application to be made on behalf of a person with a developmental
disability for aid, insurance, government benefit, or medical
assistance to which he or she may be entitled.
(d) If the person with a developmental disability is a minor,
dependent, ward, or conservatee, and his or her parent, guardian,
conservator, limited conservator with access to confidential records,
or authorized representative, designates, in writing, persons to
whom records or information may be disclosed, except that nothing in
this chapter shall be construed to compel a physician and surgeon,
psychologist, social worker, marriage and family therapist,
professional clinical counselor, nurse, attorney, or other
professional to reveal information that has been given to him or her
in confidence by a family member of the person unless a valid release
has been executed by that family member.
(e) For research, provided that the Director of Developmental
Services designates by regulation rules for the conduct of research
and requires the research to be first reviewed by the appropriate
institutional review board or boards. These rules shall include, but
need not be limited to, the requirement that all researchers shall
sign an oath of confidentiality as follows:
"" ____________________________
Date
As a condition of doing research concerning persons with
developmental disabilities who have received services from ____ (fill
in the facility, agency or person), I, ____, agree to obtain the
prior informed consent of persons who have received services to the
maximum degree possible as determined by the appropriate
institutional review board or boards for protection of human subjects
reviewing my research, or the person's parent, guardian, or
conservator, and I further agree not to divulge any information
obtained in the course of the research to unauthorized persons, and
not to publish or otherwise make public any information regarding
persons who have received services so those persons who received
services are identifiable.
I recognize that the unauthorized release of confidential
information may make me subject to a civil action under provisions of
the Welfare and Institutions Code.
________________________''
Signed
(f) To the courts, as necessary to the administration of justice.
(g) To governmental law enforcement agencies as needed for the
protection of federal and state elective constitutional officers and
their families.
(h) To the Senate Committee on Rules or the Assembly Committee on
Rules for the purposes of legislative investigation authorized by the
committee.
(i) To the courts and designated parties as part of a regional
center report or assessment in compliance with a statutory or
regulatory requirement, including, but not limited to, Section 1827.5
of the Probate Code, Sections 1001.22 and 1370.1 of the Penal Code,
Section 6502 of this code, and Section 56557 of Title 17 of the
California Code of Regulations.
(j) To the attorney for the person with a developmental disability
in any and all proceedings upon presentation of a release of
information signed by the person, except that when the person lacks
the capacity to give informed consent, the regional center or state
developmental center director or designee, upon satisfying himself or
herself of the identity of the attorney, and of the fact that the
attorney represents the person, shall release all information and
records relating to the person except that nothing in this article
shall be construed to compel a physician and surgeon, psychologist,
social worker, marriage and family therapist, professional clinical
counselor, nurse, attorney, or other professional to reveal
information that has been given to him or her in confidence by a
family member of the person unless a valid release has been executed
by that family member.
(k) Upon written consent by a person with a developmental
disability previously or presently receiving services from a regional
center or state developmental center, the director of the regional
center or state developmental center, or his or her designee, may
release any information, except information that has been given in
confidence by members of the family of the person with developmental
disabilities, requested by a probation officer charged with the
evaluation of the person after his or her conviction of a crime if
the regional center or state developmental center director or
designee determines that the information is relevant to the
evaluation. The consent shall only be operative until sentence is
passed on the crime of which the person was convicted. The
confidential information released pursuant to this subdivision shall
be transmitted to the court separately from the probation report and
shall not be placed in the probation report. The confidential
information shall remain confidential except for purposes of
sentencing. After sentencing, the confidential information shall be
sealed.
(l) Between persons who are trained and qualified to serve on
"multidisciplinary personnel" teams pursuant to subdivision (d) of
Section 18951. The information and records sought to be disclosed
shall be relevant to the prevention, identification, management, or
treatment of an abused child and his or her parents pursuant to
Chapter 11 (commencing with Section 18950) of Part 6 of Division 9.
(m) When a person with a developmental disability dies from any
cause, natural or otherwise, while hospitalized in a state
developmental center, the State Department of Developmental Services,
the physician and surgeon in charge of the client, or the
professional in charge of the facility or his or her designee, shall
release information and records to the coroner. The State Department
of Developmental Services, the physician and surgeon in charge of the
client, or the professional in charge of the facility or his or her
designee, shall not release any notes, summaries, transcripts, tapes,
or records of conversations between the resident and health
professional personnel of the hospital relating to the personal life
of the resident that is not related to the diagnosis and treatment of
the resident's physical condition. Any information released to the
coroner pursuant to this section shall remain confidential and shall
be sealed and shall not be made part of the public record.
(n) To authorized licensing personnel who are employed by, or who
are authorized representatives of, the State Department of Health
Care Services, and who are licensed or registered health
professionals, and to authorized legal staff or special investigators
who are peace officers who are employed by, or who are authorized
representatives of, the State Department of Social Services, as
necessary to the performance of their duties to inspect, license, and
investigate health facilities and community care facilities, and to
ensure that the standards of care and services provided in these
facilities are adequate and appropriate and to ascertain compliance
with the rules and regulations to which the facility is subject. The
confidential information shall remain confidential except for
purposes of inspection, licensing, or investigation pursuant to
Chapter 2 (commencing with Section 1250) and Chapter 3 (commencing
with Section 1500) of Division 2 of the Health and Safety Code, or a
criminal, civil, or administrative proceeding in relation thereto.
The confidential information may be used by the State Department of
Health Care Services or the State Department of Social Services in a
criminal, civil, or administrative proceeding. The confidential
information shall be available only to the judge or hearing officer
and to the parties to the case. Names which are confidential shall be
listed in attachments separate to the general pleadings. The
confidential information shall be sealed after the conclusion of the
criminal, civil, or administrative hearings, and shall not
subsequently be released except in accordance with this subdivision.
If the confidential information does not result in a criminal, civil,
or administrative proceeding, it shall be sealed after the State
Department of Health Care Services or the State Department of Social
Services decides that no further action will be taken in the matter
of suspected licensing violations. Except as otherwise provided in
this subdivision, confidential information in the possession of the
State Department of Health Care Services or the State Department of
Social Services shall not contain the name of the person with a
developmental disability.
(o) To any board which licenses and certifies professionals in the
fields of mental health and developmental disabilities pursuant to
state law, when the Director of Developmental Services has reasonable
cause to believe that there has occurred a violation of any
provision of law subject to the jurisdiction of a board and the
records are relevant to the violation. The information shall be
sealed after a decision is reached in the matter of the suspected
violation, and shall not subsequently be released except in
accordance with this subdivision. Confidential information in the
possession of the board shall not contain the name of the person with
a developmental disability.
(p) To governmental law enforcement agencies by the director of a
regional center or state developmental center, or his or her
designee, when (1) the person with a developmental disability has
been reported lost or missing or (2) there is probable cause to
believe that a person with a developmental disability has committed,
or has been the victim of, murder, manslaughter, mayhem, aggravated
mayhem, kidnapping, robbery, carjacking, assault with the intent to
commit a felony, arson, extortion, rape, forcible sodomy, forcible
oral copulation, assault or battery, or unlawful possession of a
weapon, as provided in any provision listed in Section 16590 of the
Penal Code.
This subdivision shall be limited solely to information directly
relating to the factual circumstances of the commission of the
enumerated offenses and shall not include any information relating to
the mental state of the patient or the circumstances of his or her
treatment unless relevant to the crime involved.
This subdivision shall not be construed as an exception to, or in
any other way affecting, the provisions of Article 7 (commencing with
Section 1010) of Chapter 4 of Division 8 of the Evidence Code, or
Chapter 11 (commencing with Section 15600) and Chapter 13 (commencing
with Section 15750) of Part 3 of Division 9 of this code.
(q) To the Division of Juvenile Facilities and Department of
Corrections and Rehabilitation or any component thereof, as necessary
to the administration of justice.
(r) To an agency mandated to investigate a report of abuse filed
pursuant to either Article 2.5 (commencing with Section 11164) of
Chapter 2 of Title 1 of Part 4 of the Penal Code or Section 15630 of
this code for the purposes of either a mandated or voluntary report
or when those agencies request information in the course of
conducting their investigation.
(s) When a person with developmental disabilities, or the parent,
guardian, or conservator of a person with developmental disabilities
who lacks capacity to consent, fails to grant or deny a request by a
regional center or state developmental center to release information
or records relating to the person with developmental disabilities
within a reasonable period of time, the director of the regional or
developmental center, or his or her designee, may release information
or records on behalf of that person provided both of the following
conditions are met:
(1) Release of the information or records is deemed necessary to
protect the person's health, safety, or welfare.
(2) The person, or the person's parent, guardian, or conservator,
has been advised annually in writing of the policy of the regional
center or state developmental center for release of confidential
client information or records when the person with developmental
disabilities, or the person's parent, guardian, or conservator, fails
to respond to a request for release of the information or records
within a reasonable period of time. A statement of policy contained
in the client's individual program plan shall be deemed to comply
with the notice requirement of this paragraph.
(t) (1) When an employee is served with a notice of adverse
action, as defined in Section 19570 of the Government Code, the
following information and records may be released:
(A) All information and records that the appointing authority
relied upon in issuing the notice of adverse action.
(B) All other information and records that are relevant to the
adverse action, or that would constitute relevant evidence as defined
in Section 210 of the Evidence Code.
(C) The information described in subparagraphs (A) and (B) may be
released only if both of the following conditions are met:
(i) The appointing authority has provided written notice to the
consumer and the consumer's legal representative or, if the consumer
has no legal representative or if the legal representative is a state
agency, to the clients' rights advocate, and the consumer, the
consumer's legal representative, or the clients' rights advocate has
not objected in writing to the appointing authority within five
business days of receipt of the notice, or the appointing authority,
upon review of the objection has determined that the circumstances on
which the adverse action is based are egregious or threaten the
health, safety, or life of the consumer or other consumers and
without the information the adverse action could not be taken.
(ii) The appointing authority, the person against whom the adverse
action has been taken, and the person's representative, if any, have
entered into a stipulation that does all of the following:
(I) Prohibits the parties from disclosing or using the information
or records for any purpose other than the proceedings for which the
information or records were requested or provided.
(II) Requires the employee and the employee's legal representative
to return to the appointing authority all records provided to them
under this subdivision, including, but not limited to, all records
and documents or copies thereof that are no longer in the possession
of the employee or the employee's legal representative because they
were from any source containing confidential information protected by
this section, and all copies of those records and documents, within
10 days of the date that the adverse action becomes final except for
the actual records and documents submitted to the administrative
tribunal as a component of an appeal from the adverse action.
(III) Requires the parties to submit the stipulation to the
administrative tribunal with jurisdiction over the adverse action at
the earliest possible opportunity.
(2) For the purposes of this subdivision, the State Personnel
Board may, prior to any appeal from adverse action being filed with
it, issue a protective order, upon application by the appointing
authority, for the limited purpose of prohibiting the parties from
disclosing or using information or records for any purpose other than
the proceeding for which the information or records were requested
or provided, and to require the employee or the employee's legal
representative to return to the appointing authority all records
provided to them under this subdivision, including, but not limited
to, all records and documents from any source containing confidential
information protected by this section, and all copies of those
records and documents, within 10 days of the date that the adverse
action becomes final, except for the actual records and documents
that are no longer in the possession of the employee or the employee'
s legal representatives because they were submitted to the
administrative tribunal as a component of an appeal from the adverse
action.
(3) Individual identifiers, including, but not limited to, names,
social security numbers, and hospital numbers, that are not necessary
for the prosecution or defense of the adverse action, shall not be
disclosed.
(4) All records, documents, or other materials containing
confidential information protected by this section that have been
submitted or otherwise disclosed to the administrative agency or
other person as a component of an appeal from an adverse action
shall, upon proper motion by the appointing authority to the
administrative tribunal, be placed under administrative seal and
shall not, thereafter, be subject to disclosure to any person or
entity except upon the issuance of an order of a court of competent
jurisdiction.
(5) For purposes of this subdivision, an adverse action becomes
final when the employee fails to answer within the time specified in
Section 19575 of the Government Code, or, after filing an answer,
withdraws the appeal, or, upon exhaustion of the administrative
appeal or of the judicial review remedies as otherwise provided by
law.
(u) To the person appointed as the developmental services
decisionmaker for a minor, dependent, or ward pursuant to Section
319, 361, or 726.
SEC. 195. Section 4640.6 of the Welfare and Institutions Code is
amended to read:
4640.6. (a) In approving regional center contracts, the
department shall ensure that regional center staffing patterns
demonstrate that direct service coordination is the highest priority.
(b) Contracts between the department and regional centers shall
require that regional centers implement an emergency response system
that ensures that a regional center staff person will respond to a
consumer, or individual acting on behalf of a consumer, within two
hours of the time an emergency call is placed. This emergency
response system shall be operational 24 hours per day, 365 days per
year.
(c) Contracts between the department and regional centers shall
require regional centers to have service coordinator-to-consumer
ratios, as follows:
(1) An average service coordinator-to-consumer ratio of 1 to 62
for all consumers who have not moved from the developmental centers
to the community since April 14, 1993. In no case shall a service
coordinator for these consumers have an assigned caseload in excess
of 79 consumers for more than 60 days.
(2) An average service coordinator-to-consumer ratio of 1 to 45
for all consumers who have moved from a developmental center to the
community since April 14, 1993. In no case shall a service
coordinator for these consumers have an assigned caseload in excess
of 59 consumers for more than 60 days.
(3) Commencing January 1, 2004, the following
coordinator-to-consumer ratios shall apply:
(A) All consumers three years of age and younger and for consumers
enrolled in the Home and Community-based Services Waiver program for
persons with developmental disabilities, an average service
coordinator-to-consumer ratio of 1 to 62.
(B) All consumers who have moved from a developmental center to
the community since April 14, 1993, and have lived continuously in
the community for at least 12 months, an average service
coordinator-to-consumer ratio of 1 to 62.
(C) All consumers who have not moved from the developmental
centers to the community since April 14, 1993, and who are not
described in subparagraph (A), an average service
coordinator-to-consumer ratio of 1 to 66.
(4) For purposes of paragraph (3), service coordinators may have a
mixed caseload of consumers three years of age and younger,
consumers enrolled in the Home and Community-based Services Waiver
program for persons with developmental disabilities, and other
consumers if the overall average caseload is weighted proportionately
to ensure that overall regional center average service
coordinator-to-consumer ratios as specified in paragraph (3) are met.
For purposes of paragraph (3), in no case shall a service
coordinator have an assigned caseload in excess of 84 for more than
60 days.
(d) For purposes of this section, "service coordinator" means a
regional center employee whose primary responsibility includes
preparing, implementing, and monitoring consumers' individual program
plans, securing and coordinating consumer services and supports, and
providing placement and monitoring activities.
(e) In order to ensure that
caseload ratios are maintained pursuant to this section, each
regional center shall provide service coordinator caseload data to
the department, annually for each fiscal year. The data shall be
submitted in the format, including the content, prescribed by the
department. Within 30 days of receipt of data submitted pursuant to
this subdivision, the department shall make a summary of the data
available to the public upon request. The department shall verify the
accuracy of the data when conducting regional center fiscal audits.
Data submitted by regional centers pursuant to this subdivision
shall:
(1) Only include data on service coordinator positions as defined
in subdivision (d). Regional centers shall identify the number of
positions that perform service coordinator duties on less than a
full-time basis. Staffing ratios reported pursuant to this
subdivision shall reflect the appropriate proportionality of these
staff to consumers served.
(2) Be reported separately for service coordinators whose caseload
includes any of the following:
(A) Consumers who are three years of age and older and who have
not moved from the developmental center to the community since April
14, 1993.
(B) Consumers who have moved from a developmental center to the
community since April 14, 1993.
(C) Consumers who are younger than three years of age.
(D) Consumers enrolled in the Home and Community-based Services
Waiver program.
(3) Not include positions that are vacant for more than 60 days or
new positions established within 60 days of the reporting month that
are still vacant.
(4) For purposes of calculating caseload ratios for consumers
enrolled in the Home and Community-based Services Waiver program,
vacancies shall not be included in the calculations.
(f) The department shall provide technical assistance and require
a plan of correction for any regional center that, for two
consecutive reporting periods, fails to maintain service coordinator
caseload ratios required by this section or otherwise demonstrates an
inability to maintain appropriate staffing patterns pursuant to this
section. Plans of correction shall be developed following input from
the local area board, local organizations representing consumers,
family members, regional center employees, including recognized labor
organizations, and service providers, and other interested parties.
(g) Contracts between the department and regional center shall
require the regional center to have, or contract for, all of the
following areas:
(1) Criminal justice expertise to assist the regional center in
providing services and support to consumers involved in the criminal
justice system as a victim, defendant, inmate, or parolee.
(2) Special education expertise to assist the regional center in
providing advocacy and support to families seeking appropriate
educational services from a school district.
(3) Family support expertise to assist the regional center in
maximizing the effectiveness of support and services provided to
families.
(4) Housing expertise to assist the regional center in accessing
affordable housing for consumers in independent or supportive living
arrangements.
(5) Community integration expertise to assist consumers and
families in accessing integrated services and supports and improved
opportunities to participate in community life.
(6) Quality assurance expertise, to assist the regional center to
provide the necessary coordination and cooperation with the area
board in conducting quality-of-life assessments and coordinating the
regional center quality assurance efforts.
(7) Each regional center shall employ at least one consumer
advocate who is a person with developmental disabilities.
(8) Other staffing arrangements related to the delivery of
services that the department determines are necessary to ensure
maximum cost-effectiveness and to ensure that the service needs of
consumers and families are met.
(h) Any regional center proposing a staffing arrangement that
substantially deviates from the requirements of this section shall
request a waiver from the department. Prior to granting a waiver, the
department shall require a detailed staffing proposal, including,
but not limited to, how the proposed staffing arrangement will
benefit consumers and families served, and shall demonstrate clear
and convincing support for the proposed staffing arrangement from
constituencies served and impacted, that include, but are not limited
to, consumers, families, providers, advocates, and recognized labor
organizations. In addition, the regional center shall submit to the
department any written opposition to the proposal from organizations
or individuals, including, but not limited to, consumers, families,
providers, and advocates, including recognized labor organizations.
The department may grant waivers to regional centers that
sufficiently demonstrate that the proposed staffing arrangement is in
the best interest of consumers and families served, complies with
the requirements of this chapter, and does not violate any
contractual requirements. A waiver shall be approved by the
department for up to 12 months, at which time a regional center may
submit a new request pursuant to this subdivision.
(i) From February 1, 2009, to June 30, 2010, inclusive, the
following shall not apply:
(1) The service coordinator-to-consumer ratio requirements of
paragraph (1), and subparagraph (C) of paragraph (3), of subdivision
(c).
(2) The requirements of subdivision (e). The regional centers
shall, instead, maintain sufficient service coordinator caseload data
to document compliance with the service coordinator-to-consumer
ratio requirements in effect pursuant to this section.
(3) The requirements of paragraphs (1) to (6), inclusive, of
subdivision (g).
(j) From July 1, 2010, to June 30, 2012, inclusive, the following
shall not apply:
(1) The service coordinator-to-consumer ratio requirements of
paragraph (1), and subparagraph (C) of paragraph (3), of subdivision
(c).
(2) The requirements of paragraphs (1) to (6), inclusive, of
subdivision (g).
(k) (1) Any contract between the department and a regional center
entered into on and after January 1, 2003, shall require that all
employment contracts entered into with regional center staff or
contractors be available to the public for review, upon request. For
purposes of this subdivision, an employment contract or portion
thereof may not be deemed confidential nor unavailable for public
review.
(2) Notwithstanding paragraph (1), the social security number of
the contracting party may not be disclosed.
(3) The term of the employment contract between the regional
center and an employee or contractor shall not exceed the term of the
state's contract with the regional center.
SEC. 196. Section 4641.5 of the Welfare and Institutions Code is
amended to read:
4641.5. (a) Effective July 1, 2011, regional centers shall begin
transitioning all vendors of all regional center services to
electronic billing for services purchased through a regional center.
All vendors and contracted providers shall submit all billings
electronically for services provided on or after July 1, 2012, with
the exception of the following:
(1) A vendor or provider whose services are paid for by vouchers,
as that term is defined in subdivision (i) of Section 4512.
(2) A vendor or provider who demonstrates that submitting billings
electronically for services presents a substantial financial
hardship for the provider.
(b) For purposes of this section, "electronic billing" is defined
as the Regional Center e-Billing System Web application provided by
the department.
SEC. 197. Section 4646.5 of the Welfare and Institutions Code is
amended to read:
4646.5. (a) The planning process for the individual program plan
described in Section 4646 shall include all of the following:
(1) Gathering information and conducting assessments to determine
the life goals, capabilities and strengths, preferences, barriers,
and concerns or problems of the person with developmental
disabilities. For children with developmental disabilities, this
process should include a review of the strengths, preferences, and
needs of the child and the family unit as a whole. Assessments shall
be conducted by qualified individuals and performed in natural
environments whenever possible. Information shall be taken from the
consumer, his or her parents and other family members, his or her
friends, advocates, authorized representative, if applicable,
providers of services and supports, and other agencies. The
assessment process shall reflect awareness of, and sensitivity to,
the lifestyle and cultural background of the consumer and the family.
(2) A statement of goals, based on the needs, preferences, and
life choices of the individual with developmental disabilities, and a
statement of specific, time-limited objectives for implementing the
person's goals and addressing his or her needs. These objectives
shall be stated in terms that allow measurement of progress or
monitoring of service delivery. These goals and objectives should
maximize opportunities for the consumer to develop relationships, be
part of community life in the areas of community participation,
housing, work, school, and leisure, increase control over his or her
life, acquire increasingly positive roles in community life, and
develop competencies to help accomplish these goals.
(3) When developing individual program plans for children,
regional centers shall be guided by the principles, process, and
services and support parameters set forth in Section 4685.
(4) A schedule of the type and amount of services and supports to
be purchased by the regional center or obtained from generic agencies
or other resources in order to achieve the individual program plan
goals and objectives, and identification of the provider or providers
of service responsible for attaining each objective, including, but
not limited to, vendors, contracted providers, generic service
agencies, and natural supports. The individual program plan shall
specify the approximate scheduled start date for services and
supports and shall contain timelines for actions necessary to begin
services and supports, including generic services.
(5) When agreed to by the consumer, the parents, legally appointed
guardian, or authorized representative of a minor consumer, or the
legally appointed conservator of an adult consumer or the authorized
representative, including those appointed pursuant to subdivision (d)
of Section 4548, subdivision (b) of Section 4701.6, and subdivision
(e) of Section 4705, a review of the general health status of the
adult or child, including medical, dental, and mental health needs,
shall be conducted. This review shall include a discussion of current
medications, any observed side effects, and the date of last review
of the medication. Service providers shall cooperate with the
planning team to provide any information necessary to complete the
health status review. If any concerns are noted during the review,
referrals shall be made to regional center clinicians or to the
consumer's physician, as appropriate. Documentation of health status
and referrals shall be made in the consumer's record by the service
coordinator.
(6) (A) The development of a transportation access plan for a
consumer when all of the following conditions are met:
(i) The regional center is purchasing private, specialized
transportation services or services from a residential, day, or other
provider, excluding vouchered service providers, to transport the
consumer to and from day or work services.
(ii) The planning team has determined that a consumer's community
integration and participation could be safe and enhanced through the
use of public transportation services.
(iii) The planning team has determined that generic transportation
services are available and accessible.
(B) To maximize independence and community integration and
participation, the transportation access plan shall identify the
services and supports necessary to assist the consumer in accessing
public transportation and shall comply with Section 4648.35. These
services and supports may include, but are not limited to, mobility
training services and the use of transportation aides. Regional
centers are encouraged to coordinate with local public transportation
agencies.
(7) A schedule of regular periodic review and reevaluation to
ascertain that planned services have been provided, that objectives
have been fulfilled within the times specified, and that consumers
and families are satisfied with the individual program plan and its
implementation.
(b) For all active cases, individual program plans shall be
reviewed and modified by the planning team, through the process
described in Section 4646, as necessary, in response to the person's
achievement or changing needs, and no less often than once every
three years. If the consumer or, where appropriate, the consumer's
parents, legal guardian, authorized representative, or conservator
requests an individual program plan review, the individual program
shall be reviewed within 30 days after the request is submitted.
(c) (1) The department, with the participation of representatives
of a statewide consumer organization, the Association of Regional
Center Agencies, an organized labor organization representing service
coordination staff, and the Organization of Area Boards shall
prepare training material and a standard format and instructions for
the preparation of individual program plans, which embodies an
approach centered on the person and family.
(2) Each regional center shall use the training materials and
format prepared by the department pursuant to paragraph (1).
(3) The department shall biennially review a random sample of
individual program plans at each regional center to ensure that these
plans are being developed and modified in compliance with Section
4646 and this section.
SEC. 198. Section 4659.13 of the Welfare and Institutions Code is
amended to read:
4659.13. (a) If a consumer or child under 36 months of age who is
eligible for the California Early Intervention Program pursuant to
Title 14 (commencing with Section 95000) of the Government Code, the
department, or a regional center brings an action or claim against a
third party or carrier, the consumer, child, regional center, or
department, within 30 days of filing the action, shall provide the
other persons or entities specified in this subdivision with written
notice by personal service or registered mail of the action or claim,
and of the name of the court or state or local agency in which the
action or claim is brought. Proof of the notice shall be filed in the
action or claim. If an action or claim is brought by the department,
the regional center, the child, or the consumer, any of the other
persons or entities described in this subdivision, at any time before
trial on the facts, may become a party to, or shall consolidate
their action or claim with, another action or claim if brought
independently.
(b) If an action or claim is brought by the department or the
regional center pursuant to subdivision (a) of Section 4659.11,
written notice to the child, consumer, guardian, conservator,
personal representative, estate, or survivor given pursuant to this
section shall advise him or her of his or her right to intervene in
the proceeding, his or her right to obtain a private attorney of his
or her choice, and the department's right to recover the reasonable
value of the services provided.
SEC. 199. Section 4659.23 of the Welfare and Institutions Code is
amended to read:
4659.23. In order to assess overlapping or duplicate health
coverage, every health insurer, self-insured plan, group health plan,
as defined in Section 607(1) of the federal Employee Retirement
Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), service
benefit plan, managed care organization, including a health care
service plan as defined in subdivision (f) of Section 1345 of the
Health and Safety Code, 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), pharmacy benefit
manager, or other party that is, by statute, contract, or agreement,
legally responsible for payment of a claim for a health care item or
service shall maintain a centralized file of the subscribers',
policyholders', or enrollees' names, mailing addresses, and social
security numbers or dates of birth, and where available, for all
other covered persons, the names and social security numbers or dates
of birth. This information shall be made available to the department
or a regional center upon reasonable request. Notwithstanding
Section 20230 of the Government Code, the Board of Administration of
the Public Employees' Retirement System and affiliated systems or
contract agencies shall permit data matches with the state department
to identify consumers with third-party health coverage or insurance.
SEC. 200. Section 4688.21 of the Welfare and Institutions Code is
amended to read:
4688.21. (a) The Legislature places a high priority on
opportunities for adults with developmental disabilities to choose
and customize day services to meet their individualized needs; have
opportunities to further the development or maintenance of employment
and volunteer activities; direct their services; pursue
postsecondary education; and increase their ability to lead
integrated and inclusive lives. To further these goals, a consumer
may choose a tailored day service or vouchered community-based
training service, in lieu of any other regional center vendored day
program, look-alike day program, supported employment program, or
work activity program.
(b) (1) A tailored day service shall do both of the following:
(A) Include an individualized service design, as determined
through the individual program plan (IPP) and approved by the
regional center, that maximizes the consumer's individualized choices
and needs. This service design may include, but may not be limited
to, the following:
(i) Fewer days or hours than in the program's approved day
program, look-alike day program, supported employment program, or
work activity program design.
(ii) Flexibility in the duration and intensity of services to meet
the consumer's individualized needs.
(B) Encourage opportunities to further the development or
maintenance of employment, volunteer activities, or pursuit of
postsecondary education; maximize consumer direction of the service;
and increase the consumer's ability to lead an integrated and
inclusive life.
(2) The type and amount of tailored day service shall be
determined through the IPP process, pursuant to Section 4646. The IPP
shall contain, but not be limited to, the following:
(A) A detailed description of the consumer's individualized
choices and needs and how these choices and needs will be met.
(B) The type and amount of services and staffing needed to meet
the consumer's individualized choices and needs, and unique health
and safety and other needs.
(3) The staffing requirements set forth in Section 55756 of Title
17 of the California Code of Regulations and subdivision (r) of
Section 4851 of this code shall not apply to a tailored day service.
(4) For currently vendored programs wishing to offer a tailored
day service option, the regional center shall vendor a tailored day
service option upon negotiating a rate and maximum units of service
design that includes, but is not limited to, the following:
(A) A daily or hourly rate and maximum units of service design
that does not exceed the equivalent cost of four days per week of the
vendor's current rate, if the vendor has a daily day program rate.
(B) A rate and maximum units of service design that does not
exceed the equivalent cost of four-fifths of the hours of the vendor'
s current rate, if the vendor has an hourly rate.
(5) The regional center shall ensure that the vendor is capable of
complying with, and will comply with, the consumer's IPP, individual
choice, and health and safety needs.
(6) For new programs wishing to offer a tailored day service
option, the regional center shall vendor a tailored day service
option upon negotiating a rate and maximum units of service design.
The rate paid to the new vendor shall not exceed four-fifths of the
temporary payment rate or the median rate, whichever is applicable.
(7) Effective July 1, 2011, and prior to the time of development,
review, or modification of a consumer's IPP, regional centers shall
provide information about tailored day service to eligible adult
consumers. A consumer may request information about tailored day
services from the regional center at any time and may request an IPP
meeting to secure those services.
(c) (1) A vouchered community-based training service is defined as
a consumer-directed service that assists the consumer in the
development of skills required for community integrated employment or
participation in volunteer activities, or both, and the assistance
necessary for the consumer to secure employment or volunteer
positions or pursue secondary education.
(2) Implementation of vouchered community-based training service
is contingent upon the approval of the federal Centers for Medicare
and Medicaid Services.
(3) Vouchered community-based training service shall be provided
in natural environments in the community, separate from the consumer'
s residence.
(4) A consumer, parent, or conservator vendored as a vouchered
community-based training service shall utilize the services of a
financial management services (FMS) entity. The regional center shall
provide information about available financial management services
and shall assist the consumer in selecting a FMS vendor to act as
coemployer.
(5) A parent or conservator shall not be the direct support worker
employed by the vouchered community-based training service vendor.
(6) If the direct support worker is required to transport the
consumer, the vouchered community-based training service vendor shall
verify that the direct support worker can transport the consumer
safely and has a valid California driver's license and proof of
insurance.
(7) The rate for vouchered community-based training service shall
not exceed thirteen dollars and forty-seven cents ($13.47) per hour.
The rate includes employer-related taxes and all transportation
needed to implement the service, except as described in paragraph
(8). The rate does not include the cost of the FMS.
(8) A consumer vendored as a vouchered community-based training
service shall also be eligible for a regional center-funded bus pass,
if appropriate and needed.
(9) Vouchered community-based training service shall be limited to
a maximum of 150 hours per quarter. The services to be provided and
the service hours shall be documented in the consumer's IPP.
(10) A direct support worker of vouchered community-based training
service shall be an adult who possesses the skill, training, and
experience necessary to provide services in accordance with the IPP.
(11) Effective July 1, 2011, and prior to the time of development,
review, or modification of a consumer's IPP, regional centers shall
provide information about vouchered community-based training service
to eligible adult consumers. A consumer may request information about
vouchered community-based training service from the regional center
at any time and may request an IPP meeting to secure those services.
(12) The type and amount of vouchered community-based training
service shall be determined through the IPP process pursuant to
Section 4646. The IPP shall contain, but not be limited to, the
following:
(A) A detailed description of the consumer's individualized
choices and needs and how these choices and needs will be met.
(B) The type and amount of services and staffing needed to meet
the consumer's individualized choices and unique health and safety
and other needs.
(d) The department may adopt emergency regulations for tailored
day service or vouchered community-based training service. The
adoption, amendment, repeal, or readoption of a regulation authorized
by this subdivision is deemed to be necessary for the immediate
preservation of the public peace, health and 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 specific facts showing the need for
immediate action. A certificate of compliance for these implementing
regulations shall be filed within 24 months following the adoption of
the first emergency regulations filed pursuant to this subdivision.
SEC. 201. Section 4689 of the Welfare and Institutions Code is
amended to read:
4689. Consistent with state and federal law, the Legislature
places a high priority on providing opportunities for adults with
developmental disabilities, regardless of the degree of disability,
to live in homes that they own or lease with support available as
often and for as long as it is needed, when that is the preferred
objective in the individual program plan. In order to provide
opportunities for adults to live in their own homes, the following
procedures shall be adopted:
(a) The department and regional centers shall ensure that
supported living arrangements adhere to the following principles:
(1) Consumers shall be supported in living arrangements which are
typical of those in which persons without disabilities reside.
(2) The services or supports that a consumer receives shall change
as his or her needs change without the consumer having to move
elsewhere.
(3) The consumer's preference shall guide decisions concerning
where and with whom he or she lives.
(4) Consumers shall have control over the environment within their
own home.
(5) The purpose of furnishing services and supports to a consumer
shall be to assist that individual to exercise choice in his or her
life while building critical and durable relationships with other
individuals.
(6) The services or supports shall be flexible and tailored to a
consumer's needs and preferences.
(7) Services and supports are most effective when furnished where
a person lives and within the context of his or her day-to-day
activities.
(8) Consumers shall not be excluded from supported living
arrangements based solely on the nature and severity of their
disabilities.
(b) Regional centers may contract with agencies or
individuals to assist consumers in securing their own homes and to
provide consumers with the supports needed to live in their own
homes.
(c) The range of supported living services and supports available
include, but are not limited to, assessment of consumer needs;
assistance in finding, modifying, and maintaining a home;
facilitating circles of support to encourage the development of
unpaid and natural supports in the community; advocacy and
self-advocacy facilitation; development of employment goals; social,
behavioral, and daily living skills training and support; development
and provision of 24-hour emergency response systems; securing and
maintaining adaptive equipment and supplies; recruiting, training,
and hiring individuals to provide personal care and other assistance,
including in-home supportive services workers, paid neighbors, and
paid roommates; providing respite and emergency relief for personal
care attendants; and facilitating community participation. Assessment
of consumer needs may begin before 18 years of age to enable the
consumer to move to his or her own home when he or she reaches 18
years of age.
(d) Regional centers shall provide information and education to
consumers and their families about supported living principles and
services.
(e) Regional centers shall monitor and ensure the quality of
services and supports provided to individuals living in homes that
they own or lease. Monitoring shall take into account all of the
following:
(1) Adherence to the principles set forth in this section.
(2) Whether the services and supports outlined in the consumer's
individual program plan are congruent with the choices and needs of
the individual.
(3) Whether services and supports described in the consumer's
individual program plan are being delivered.
(4) Whether services and supports are having the desired effects.
(5) Whether the consumer is satisfied with the services and
supports.
(f) The planning team, established pursuant to subdivision (j) of
Section 4512, for a consumer receiving supported living services
shall confirm that all appropriate and available sources of natural
and generic supports have been utilized to the fullest extent
possible for that consumer.
(g) Regional centers shall utilize the same supported living
provider for consumers who reside in the same domicile, provided that
each individual consumer's particular needs can still be met
pursuant to his or her individual program plans.
(h) Rent, mortgage, and lease payments of a supported living home
and household expenses shall be the responsibility of the consumer
and any roommate who resides with the consumer.
(i) A regional center shall not make rent, mortgage, or lease
payments on a supported living home, or pay for household expenses of
consumers receiving supported living services, except under the
following circumstances:
(1) If all of the following conditions are met, a regional center
may make rent, mortgage, or lease payments as follows:
(A) The regional center executive director verifies in writing
that making the rent, mortgage, or lease payments or paying for
household expenses is required to meet the specific care needs unique
to the individual consumer as set forth in an addendum to the
consumer's individual program plan, and is required when a consumer's
demonstrated medical, behavioral, or psychiatric condition presents
a health and safety risk to himself or herself, or another.
(B) During the time period that a regional center is making rent,
mortgage, or lease payments, or paying for household expenses, the
supported living services vendor shall assist the consumer in
accessing all sources of generic and natural supports consistent with
the needs of the consumer.
(C) The regional center shall not make rent, mortgage, or lease
payments on a supported living home or pay for household expenses for
more than six months, unless the regional center finds that it is
necessary to meet the individual consumer's particular needs pursuant
to the consumer's individual program plan. The regional center shall
review a finding of necessity on a quarterly basis and the regional
center executive director shall annually verify in an addendum to the
consumer's individual program plan that the requirements set forth
in subparagraph (A) continue to be met.
(2) A regional center that has been contributing to rent,
mortgage, or lease payments or paying for household expenses prior to
July 1, 2009, shall at the time of development, review, or
modification of a consumer's individual program plan determine if the
conditions in paragraph (1) are met. If the planning team determines
that these contributions are no longer appropriate under this
section, a reasonable time for transition, not to exceed six months,
shall be permitted.
(j) All paid roommates and live-in support staff in supported
living arrangements in which regional centers have made rent,
mortgage, or lease payments, or have paid for household expenses
pursuant to subdivision (i) shall pay their share of the rent,
mortgage, or lease payments or household expenses for the supported
living home, subject to the requirements of Industrial Welfare
Commission Order No. 15-2001 and the Housing Choice Voucher Program,
as set forth in Section 1437f of Title 42 of the United States Code.
(k) Regional centers shall ensure that the supported living
services vendors' administrative costs are necessary and reasonable,
given the particular services that they are providing and the number
of consumers to whom the vendor provides services. Administrative
costs shall be limited to allowable costs for community-based day
programs, as defined in Section 57434 of Title 17 of the California
Code of Regulations, or its successor.
(l) Regional centers shall ensure that the most cost-effective of
the rate methodologies is utilized to determine the negotiated rate
for vendors of supported living services, consistent with Section
4689.8 and Title 17 of the California Code of Regulations.
(m) For purposes of this section, "household expenses" means
general living expenses and includes, but is not limited to,
utilities paid and food consumed within the home.
(n) A supported living services provider shall provide assistance
to a consumer who is a Medi-Cal beneficiary in applying for in-home
supportive services, as set forth in Section 12300, within five days
of the consumer's moving into a supported living services
arrangement.
(o) For consumers receiving supported living services who share a
household with one or more adults receiving supported living
services, efficiencies in the provision of service may be achieved if
some tasks can be shared, meaning the tasks can be provided at the
same time while still ensuring that each person's individual needs
are met. These tasks shall only be shared to the extent they are
permitted under the Labor Code and related regulations, including,
but not limited to, Industrial Welfare Commission Wage Order No. 15.
The planning team, as defined in subdivision (j) of Section 4512, at
the time of development, review, or modification of a consumer's
individual program plan (IPP), for housemates currently in a
supported living arrangement or planning to move together into a
supported living arrangement, or for consumers who live with a
housemate not receiving supported living services who is responsible
for the task, shall consider, with input from the service provider,
whether any tasks, such as meal preparation and cleanup, menu
planning, laundry, shopping, general household tasks, or errands can
appropriately be shared. If tasks can be appropriately shared, the
regional center shall purchase the prorated share of the activity.
Upon a determination of a reduction in services pursuant to this
section, the regional center shall inform the consumer of the reason
for the determination, and shall provide a written notice of fair
hearing rights pursuant to Section 4701.
(p) To ensure that consumers in supported living arrangements
receive the appropriate amount and type of supports, an independent
assessment shall be required for consumers currently receiving, or
initially entering, supported living who have supported living
services costs, or have an initial recommendation for service costs,
that exceeds 125 percent of the annual statewide average cost of
supported living services, as published by the department commencing
June 30, 2011. Notwithstanding any other provision of law, commencing
July 1, 2011, regional centers shall identify consumers currently
receiving supported living services, pursuant to this section, whose
annual supported living service costs exceed 125 percent of the
annual statewide average cost of supported living services. The
regional center shall also identify consumers who have an initial
recommendation for supported living service costs that exceeds 125
percent of the annual statewide average cost of supported living
services. For those consumers identified pursuant to this
subdivision, the regional center shall arrange for an independent
assessment to be completed prior to the next scheduled IPP for
consumers currently in a supported living arrangement and within 30
days of identification of consumers with an initial recommendation
for services. The independent assessment shall be completed by an
impartial entity or individual other than the supported living
services agency providing, or planning to provide, the service and
shall be used during IPP meetings to assist the team to determine
whether the services provided or recommended are necessary and
sufficient and that the most cost-effective methods of service are
utilized. Decisions about supported living shall be made by the IPP
team. The independent assessment process shall adhere to all of the
following:
(1) Supported living service providers shall conduct comprehensive
assessments for the purpose of getting to know the consumer they
will be supporting and developing a support plan congruent with the
choices and needs of the individual and consistent with the
principles of supported living set forth in this section and in
Subchapter 19 (commencing with Section 58600) of Chapter 3 of
Division 2 of Title 17 of the California Code of Regulations. The
independent assessment required by this paragraph is not intended to
take the place of or repeat the service provider's comprehensive
assessment. The purpose of the independent assessment is to provide
an additional look at whether the supported living services being
provided, or being proposed for a person initially entering supported
living, are necessary, sufficient, or cost effective to meet the
person's choices and needs, as determined by the comprehensive
assessment and the planning team. The independent needs assessment
may include, but is not limited to, use of natural and generic
support, technology that provides support otherwise necessary through
direct staffing hours, shared housing, support alternatives,
learning methods, lifting and transferring, bathroom, grooming,
meals, communication, transportation, mobility, emergency procedures,
medication management, household responsibilities, personal needs,
interpersonal relationships, and behavioral, medical, and overnight
supports.
(2) A consumer shall not be excluded from supported living
services based on an independent assessment.
(3) The entity or individual conducting independent assessments
shall not be an employee of a regional center or the consumer's
service provider. Current supported living providers may conduct
independent assessments for consumers being supported, or about to be
supported, by other providers. However a provider who conducts an
independent assessment may not provide direct services to a consumer
it has assessed for a period of one year. Each regional center shall
publicly identify the entities and individuals it will use to conduct
independent assessments. Regional centers shall ensure there are
sufficient independent assessors so that assessments can be provided
when required without undue delay.
(4) Initial entry into supported living shall not be delayed for
more than 30 days following the determination to request an
independent assessment due to the need for an independent assessment
pursuant to this section. If the independent assessment cannot be
conducted within that time period, the individual may move into
supported living with the amount of supports recommended by the
service provider's comprehensive assessment and an additional IPP to
consider the results of the independent assessment shall be conducted
when that assessment becomes available, if necessary. For
individuals currently in a supported living arrangement, supports
shall continue at the same level while the independent assessment is
being conducted.
(5) Independent assessors shall meet all of the following
qualifications:
(A) Have a demonstrated understanding of the foundation of
supported living as a service that assists an individual to live in
his or her own home with supports as needed to be part of their
community and of the principles and operational requirements of
supported living set forth in this section and in Subchapter 19
(commencing with Section 58600) of Chapter 3 of Division 2 of Title
17 of the California Code of Regulations.
(B) Have a demonstrated understanding of the IPP process and the
legal rights of people with developmental disabilities in California.
(C) Have experience with the provision of supported living
services in California.
(6) The department shall establish a rate of payment for an
independent assessment.
(7) The planning team, as defined in subdivision (j) of Section
4512, shall consider the independent assessment along with the
provider's assessment, if available, and any other relevant
information in determining whether there should be any adjustment to
the amount or type of supports currently being received by
individuals in supported living arrangement or recommended for
individuals initially entering supported living arrangement. Any
decisions to reduce supports shall not be applied retroactively.
(8) A consumer shall be reassessed as described in this
subdivision every three years in conjunction with the consumer's IPP
review to determine whether all services are necessary and sufficient
and to ensure that the most cost-effective methods of service are
being utilized.
(9) Individuals who are moving to a supported living arrangement
or have moved to a supported living arrangement from a developmental
center or state-operated community facility shall not be required to
have an additional assessment during the first 12 months following
placement.
(10) Upon a determination of a reduction in services pursuant to
this section, the regional center shall inform the consumer of the
reason for the determination, and shall provide a written notice of
fair hearing rights pursuant to Section 4701.
(11) Nothing in this section precludes the completion of an
independent assessment for other purposes.
SEC. 202. Section 5720 of the Welfare and Institutions Code, as
added by Section 4 of Chapter 651 of the Statutes of 2011, is amended
to read:
5720. (a) Notwithstanding any other provision of law, the
director, in the 1993-94 fiscal year and fiscal years thereafter,
subject to the approval of the Director of Health Care Services,
shall establish the amount of reimbursement for services provided by
county mental health programs to Medi-Cal eligible individuals. For
purposes of federal reimbursement to counties that have certified to
the state that certified public expenditures have been incurred, the
reimbursement amounts shall be consistent with federal Medicaid
requirements for calculating federal upper payment limits, as
specified in the approved Medicaid state plan and waivers.
(b) If the reimbursement methodology utilizes federal upper
payment limits and the total cost of services exceeds the state
maximum rates in effect for the 2011-12 fiscal year, a county may use
certified public expenditures to claim the costs of services that
exceed the state maximum rates, up to the federal upper payment
limits. If a county chooses to claim costs that exceed the state
maximum rates with certified public expenditures, the county shall
use only local funds, and not state funds, to claim the portion of
the costs over the state maximum rates. As a condition of receiving
reimbursement up to the federal upper payment limits, a county shall
enter into and maintain an agreement with the department implementing
this subdivision.
(c) Notwithstanding subdivisions (a) and (b), in the event that a
health facility has entered into a negotiated rate agreement pursuant
to Article 2.6 (commencing with Section 14081) of Chapter 7 of Part
3 of Division 9, the facility's rates shall be governed by that
agreement.
(d) This section shall become operative on July 1, 2012.
SEC. 203. Section 8103 of the Welfare and Institutions Code is
amended to read:
8103. (a) (1) No person who after October 1, 1955, has been
adjudicated by a court of any state to be a danger to others as a
result of a mental disorder or mental illness, or who has been
adjudicated to be a mentally disordered sex offender, shall purchase
or receive, or attempt to purchase or receive, or have in his or her
possession, custody, or control any firearm or any other deadly
weapon unless there has been issued to the person a certificate by
the court of adjudication upon release from treatment or at a later
date stating that the person may possess a firearm or any other
deadly weapon without endangering others, and the person has not,
subsequent to the issuance of the certificate, again been adjudicated
by a court to be a danger to others as a result of a mental disorder
or mental illness.
(2) The court shall immediately notify the Department of Justice
of the court order finding the individual to be a person described in
paragraph (1). The court shall also notify the Department of Justice
of any certificate issued as described in paragraph (1).
(b) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of murder, mayhem, a violation of
Section 207, 209, or 209.5 of the Penal Code in which the victim
suffers intentionally inflicted great bodily injury, carjacking or
robbery in which the victim suffers great bodily injury, a violation
of Section 451 or 452 of the Penal Code involving a trailer coach, as
defined in Section 635 of the Vehicle Code, or any dwelling house, a
violation of paragraph (1) or (2) of subdivision (a) of Section 262
or paragraph (2) or (3) of subdivision (a) of Section 261 of the
Penal Code, a violation of Section 459 of the Penal Code in the first
degree, assault with intent to commit murder, a violation of Section
220 of the Penal Code in which the victim suffers great bodily
injury, a violation of Section 18715, 18725, 18740, 18745, 18750, or
18755 of the Penal Code, or of a felony involving death, great bodily
injury, or an act which poses a serious threat of bodily harm to
another person, or a violation of the law of any other state or the
United States that includes all the elements of any of the above
felonies as defined under California law, shall purchase or receive,
or attempt to purchase or receive, or have in his or her possession
or under his or her custody or control any firearm or any other
deadly weapon.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1).
(c) (1) No person who has been found, pursuant to Section 1026 of
the Penal Code or the law of any other state or the United States,
not guilty by reason of insanity of any crime other than those
described in subdivision (b) shall purchase or receive, or attempt to
purchase or receive, or shall have in his or her possession,
custody, or control any firearm or any other deadly weapon unless the
court of commitment has found the person to have recovered sanity,
pursuant to Section 1026.2 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be a person described in
paragraph (1). The court shall also notify the Department of Justice
when it finds that the person has recovered his or her sanity.
(d) (1) No person found by a court to be mentally incompetent to
stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code or
the law of any other state or the United States, shall purchase or
receive, or attempt to purchase or receive, or shall have in his or
her possession, custody, or control, any firearm or any other deadly
weapon, unless there has been a finding with respect to the person of
restoration to competence to stand trial by the committing court,
pursuant to Section 1372 of the Penal Code or the law of any other
state or the United States.
(2) The court shall immediately notify the Department of Justice
of the court order finding the person to be mentally incompetent as
described in paragraph (1). The court shall also notify the
Department of Justice when it finds that the person has recovered his
or her competence.
(e) (1) No person who has been placed under conservatorship by a
court, pursuant to Section 5350 or the law of any other state or the
United States, because the person is gravely disabled as a result of
a mental disorder or impairment by chronic alcoholism, shall purchase
or receive, or attempt to purchase or receive, or shall have in his
or her possession, custody, or control, any firearm or any other
deadly weapon while under the conservatorship if, at the time the
conservatorship was ordered or thereafter, the court which imposed
the conservatorship found that possession of a firearm or any other
deadly weapon by the person would present a danger to the safety of
the person or to others. Upon placing any person under
conservatorship, and prohibiting firearm or any other deadly weapon
possession by the person, the court shall notify the person of this
prohibition.
(2) The court shall immediately notify the Department of Justice
of the court order placing the person under conservatorship and
prohibiting firearm or any other deadly weapon possession by the
person as described in paragraph (1). The notice shall include the
date the conservatorship was imposed and the date the conservatorship
is to be terminated. If the conservatorship is subsequently
terminated before the date listed in the notice to the Department of
Justice or the court subsequently finds that possession of a firearm
or any other deadly weapon by the person would no longer present a
danger to the safety of the person or others, the court shall
immediately notify the Department of Justice.
(3) All information provided to the Department of Justice pursuant
to paragraph (2) shall be kept confidential, separate, and apart
from all other records maintained by the Department of Justice, and
shall be used only to determine eligibility to purchase or possess
firearms or other deadly weapons. Any person who knowingly furnishes
that information for any other purpose is guilty of a misdemeanor.
All the information concerning any person shall be destroyed upon
receipt by the Department of Justice of notice of the termination of
conservatorship as to that person pursuant to paragraph (2).
(f) (1) No person who has been (A) taken into custody as provided
in Section 5150 because that person is a danger to himself, herself,
or to others, (B) assessed within the meaning of Section 5151, and
(C) admitted to a designated facility within the meaning of Sections
5151 and 5152 because that person is a danger to himself, herself, or
others, shall own, possess, control, receive, or purchase, or
attempt to own, possess, control, receive, or purchase any firearm
for a period of five years after the person is released from the
facility. A person described in the preceding sentence, however, may
own, possess, control, receive, or purchase, or attempt to own,
possess, control, receive, or purchase any firearm if the superior
court has, pursuant to paragraph (5), found that the people of the
State of California have not met their burden pursuant to paragraph
(6).
(2) (A) For each person subject to this subdivision, the facility
shall immediately, on the date of admission, submit a report to the
Department of Justice, on a form prescribed by the Department of
Justice, containing information that includes, but is not limited to,
the identity of the person and the legal grounds upon which the
person was admitted to the facility.
Any report submitted pursuant to this paragraph shall be
confidential, except for purposes of the court proceedings described
in this subdivision and for determining the eligibility of the person
to own, possess, control, receive, or purchase a firearm.
(B) Commencing July 1, 2012, facilities shall submit reports
pursuant to this paragraph exclusively by electronic means, in a
manner prescribed by the Department of Justice.
(3) Prior to, or concurrent with, the discharge, the facility
shall inform a person subject to this subdivision that he or she is
prohibited from owning, possessing, controlling, receiving, or
purchasing any firearm for a period of five years. Simultaneously,
the facility shall inform the person that he or she may request a
hearing from a court, as provided in this subdivision, for an order
permitting the person to own, possess, control, receive, or purchase
a firearm. The facility shall provide the person with a form for a
request for a hearing. The Department of Justice shall prescribe the
form. Where the person requests a hearing at the time of discharge,
the facility shall forward the form to the superior court unless the
person states that he or she will submit the form to the superior
court.
(4) The Department of Justice shall provide the form upon request
to any person described in paragraph (1). The Department of Justice
shall also provide the form to the superior court in each county. A
person described in paragraph (1) may make a single request for a
hearing at any time during the five-year period. The request for
hearing shall be made on the form prescribed by the department or in
a document that includes equivalent language.
(5) Any person who is subject to paragraph (1) who has requested a
hearing from the superior court of his or her county of residence
for an order that he or she may own, possess, control, receive, or
purchase firearms shall be given a hearing. The clerk of the
court shall set a hearing date
and notify the person, the Department of Justice, and the district
attorney. The people of the State of California shall be the
plaintiff in the proceeding and shall be represented by the district
attorney. Upon motion of the district attorney, or on its own motion,
the superior court may transfer the hearing to the county in which
the person resided at the time of his or her detention, the county in
which the person was detained, or the county in which the person was
evaluated or treated. Within seven days after the request for a
hearing, the Department of Justice shall file copies of the reports
described in this section with the superior court. The reports shall
be disclosed upon request to the person and to the district attorney.
The court shall set the hearing within 30 days of receipt of the
request for a hearing. Upon showing good cause, the district attorney
shall be entitled to a continuance not to exceed 14 days after the
district attorney was notified of the hearing date by the clerk of
the court. If additional continuances are granted, the total length
of time for continuances shall not exceed 60 days. The district
attorney may notify the county mental health director of the hearing
who shall provide information about the detention of the person that
may be relevant to the court and shall file that information with the
superior court. That information shall be disclosed to the person
and to the district attorney. The court, upon motion of the person
subject to paragraph (1) establishing that confidential information
is likely to be discussed during the hearing that would cause harm to
the person, shall conduct the hearing in camera with only the
relevant parties present, unless the court finds that the public
interest would be better served by conducting the hearing in public.
Notwithstanding any other law, declarations, police reports,
including criminal history information, and any other material and
relevant evidence that is not excluded under Section 352 of the
Evidence Code shall be admissible at the hearing under this section.
(6) The people shall bear the burden of showing by a preponderance
of the evidence that the person would not be likely to use firearms
in a safe and lawful manner.
(7) If the court finds at the hearing set forth in paragraph (5)
that the people have not met their burden as set forth in paragraph
(6), the court shall order that the person shall not be subject to
the five-year prohibition in this section on the ownership, control,
receipt, possession, or purchase of firearms. A copy of the order
shall be submitted to the Department of Justice. Upon receipt of the
order, the Department of Justice shall delete any reference to the
prohibition against firearms from the person's state mental health
firearms prohibition system information.
(8) Where the district attorney declines or fails to go forward in
the hearing, the court shall order that the person shall not be
subject to the five-year prohibition required by this subdivision on
the ownership, control, receipt, possession, or purchase of firearms.
A copy of the order shall be submitted to the Department of Justice.
Upon receipt of the order, the Department of Justice shall, within
15 days, delete any reference to the prohibition against firearms
from the person's state mental health firearms prohibition system
information.
(9) Nothing in this subdivision shall prohibit the use of reports
filed pursuant to this section to determine the eligibility of
persons to own, possess, control, receive, or purchase a firearm if
the person is the subject of a criminal investigation, a part of
which involves the ownership, possession, control, receipt, or
purchase of a firearm.
(g) (1) No person who has been certified for intensive treatment
under Section 5250, 5260, or 5270.15 shall own, possess, control,
receive, or purchase, or attempt to own, possess, control, receive,
or purchase, any firearm for a period of five years.
Any person who meets the criteria contained in subdivision (e) or
(f) who is released from intensive treatment shall nevertheless, if
applicable, remain subject to the prohibition contained in
subdivision (e) or (f).
(2) (A) For each person certified for intensive treatment under
paragraph (1), the facility shall immediately submit a report to the
Department of Justice, on a form prescribed by the department,
containing information regarding the person, including, but not
limited to, the legal identity of the person and the legal grounds
upon which the person was certified. Any report submitted pursuant to
this paragraph shall only be used for the purposes specified in
paragraph (2) of subdivision (f).
(B) Commencing July 1, 2012, facilities shall submit reports
pursuant to this paragraph exclusively by electronic means, in a
manner prescribed by the Department of Justice.
(3) Prior to, or concurrent with, the discharge of each person
certified for intensive treatment under paragraph (1), the facility
shall inform the person of that information specified in paragraph
(3) of subdivision (f).
(4) Any person who is subject to paragraph (1) may petition the
superior court of his or her county of residence for an order that he
or she may own, possess, control, receive, or purchase firearms. At
the time the petition is filed, the clerk of the court shall set a
hearing date and notify the person, the Department of Justice, and
the district attorney. The people of the State of California shall be
the respondent in the proceeding and shall be represented by the
district attorney. Upon motion of the district attorney, or on its
own motion, the superior court may transfer the petition to the
county in which the person resided at the time of his or her
detention, the county in which the person was detained, or the county
in which the person was evaluated or treated. Within seven days
after receiving notice of the petition, the Department of Justice
shall file copies of the reports described in this section with the
superior court. The reports shall be disclosed upon request to the
person and to the district attorney. The district attorney shall be
entitled to a continuance of the hearing to a date of not less than
14 days after the district attorney was notified of the hearing date
by the clerk of the court. The district attorney may notify the
county mental health director of the petition, and the county mental
health director shall provide information about the detention of the
person that may be relevant to the court and shall file that
information with the superior court. That information shall be
disclosed to the person and to the district attorney. The court, upon
motion of the person subject to paragraph (1) establishing that
confidential information is likely to be discussed during the hearing
that would cause harm to the person, shall conduct the hearing in
camera with only the relevant parties present, unless the court finds
that the public interest would be better served by conducting the
hearing in public. Notwithstanding any other provision of law, any
declaration, police reports, including criminal history information,
and any other material and relevant evidence that is not excluded
under Section 352 of the Evidence Code, shall be admissible at the
hearing under this section. If the court finds by a preponderance of
the evidence that the person would be likely to use firearms in a
safe and lawful manner, the court may order that the person may own,
control, receive, possess, or purchase firearms. A copy of the order
shall be submitted to the Department of Justice. Upon receipt of the
order, the Department of Justice shall delete any reference to the
prohibition against firearms from the person's state mental health
firearms prohibition system information.
(h) For all persons identified in subdivisions (f) and (g),
facilities shall report to the Department of Justice as specified in
those subdivisions, except facilities shall not report persons under
subdivision (g) if the same persons previously have been reported
under subdivision (f).
Additionally, all facilities shall report to the Department of
Justice upon the discharge of persons from whom reports have been
submitted pursuant to subdivision (f) or (g). However, a report shall
not be filed for persons who are discharged within 31 days after the
date of admission.
(i) Every person who owns or possesses or has under his or her
custody or control, or purchases or receives, or attempts to purchase
or receive, any firearm or any other deadly weapon in violation of
this section shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code or in a county jail
for not more than one year.
(j) "Deadly weapon," as used in this section, has the meaning
prescribed by Section 8100.
SEC. 204. Section 10980 of the Welfare and Institutions Code is
amended to read:
10980. (a) Any person who, willfully and knowingly, with the
intent to deceive, makes a false statement or representation or
knowingly fails to disclose a material fact in order to obtain aid
under the provisions of this division or who, knowing he or she is
not entitled thereto, attempts to obtain aid or to continue to
receive aid to which he or she is not entitled, or to receive a
larger amount than that to which he or she is legally entitled, is
guilty of a misdemeanor, punishable by imprisonment in a county jail
for a period of not more than six months, by a fine of not more than
five hundred dollars ($500), or by both imprisonment and fine.
(b) Any person who knowingly makes more than one application for
aid under the provisions of this division with the intent of
establishing multiple entitlements for any person for the same period
or who makes an application for that aid for a fictitious or
nonexistent person or by claiming a false identity for any person is
guilty of a felony, punishable by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for a period of 16
months, two years, or three years, by a fine of not more than five
thousand dollars ($5,000), or by both that imprisonment and fine; or
by imprisonment in a county jail for a period of not more than one
year, or by a fine of not more than one thousand dollars ($1,000), or
by both imprisonment and fine.
(c) Whenever any person has, willfully and knowingly, with the
intent to deceive, by means of false statement or representation, or
by failing to disclose a material fact, or by impersonation or other
fraudulent device, obtained or retained aid under the provisions of
this division for himself or herself or for a child not in fact
entitled thereto, the person obtaining this aid shall be punished as
follows:
(1) If the total amount of the aid obtained or retained is nine
hundred fifty dollars ($950) or less, by imprisonment in a county
jail for a period of not more than six months, by a fine of not more
than five hundred dollars ($500), or by both imprisonment and fine.
(2) If the total amount of the aid obtained or retained is more
than nine hundred fifty dollars ($950), by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for a period of 16
months, two years, or three years, by a fine of not more than five
thousand dollars ($5,000), or by both that imprisonment and fine; or
by imprisonment in a county jail for a period of not more than one
year, by a fine of not more than one thousand dollars ($1,000), or by
both imprisonment and fine.
(d) Any person who knowingly uses, transfers, acquires, or
possesses blank authorizations to participate in the federal
Supplemental Nutrition Assistance Program in any manner not
authorized by Chapter 10 (commencing with Section 18900) of Part 6
with the intent to defraud is guilty of a felony, punishable by
imprisonment pursuant to subdivision (h) of Section 1170 of the Penal
Code for a period of 16 months, two years, or three years, by a fine
of not more than five thousand dollars ($5,000), or by both that
imprisonment and fine.
(e) Any person who counterfeits or alters or knowingly uses,
transfers, acquires, or possesses counterfeited or altered
authorizations to participate in the federal Supplemental Nutrition
Assistance Program or to receive CalFresh benefits or electronically
transferred benefits in any manner not authorized by the federal Food
Stamp Act of 1964 (P.L. 88-525 and all amendments thereto) or the
federal Food and Nutrition Act of 2008 (7 U.S.C. Sec. 2011 et seq.)
or the federal regulations pursuant to the act is guilty of forgery.
(f) Any person who fraudulently appropriates CalFresh benefits,
electronically transferred benefits, or authorizations to participate
in the federal Supplemental Nutrition Assistance Program with which
he or she has been entrusted pursuant to his or her duties as a
public employee is guilty of embezzlement of public funds.
(g) Any person who knowingly uses, transfers, sells, purchases, or
possesses CalFresh benefits, electronically transferred benefits, or
authorizations to participate in the federal Supplemental Nutrition
Assistance Program in any manner not authorized by Chapter 10
(commencing with Section 18900), of Part 6, or by the federal Food
Stamp Act of 1977 (P.L. 95-113 and all amendments thereto) or the
federal Food and Nutrition Act of 2008 (7 U.S.C. Sec. 2011 et seq.)
(1) is guilty of a misdemeanor if the face value of the food stamp
benefits or the authorizations to participate is nine hundred fifty
dollars ($950) or less, and shall be punished by imprisonment in a
county jail for a period of not more than six months, by a fine of
not more than five hundred dollars ($500), or by both imprisonment
and fine, or (2) is guilty of a felony if the face value of the
CalFresh benefits or the authorizations to participate exceeds nine
hundred fifty dollars ($950), and shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code for a
period of 16 months, two years, or three years, by a fine of not more
than five thousand dollars ($5,000), or by both that imprisonment
and fine, or by imprisonment in a county jail for a period of not
more than one year, or by a fine of not more than one thousand
dollars ($1,000), or by both imprisonment and fine.
(h) (1) If the violation of subdivision (f) or (g) is committed by
means of an electronic transfer of benefits, in addition and
consecutive to the penalties for the violation, or attempted
violation, of those subdivisions, the court shall impose the
following punishment:
(A) If the electronic transfer of benefits exceeds fifty thousand
dollars ($50,000), an additional term pursuant to subdivision (h) of
Section 1170 of the Penal Code of one year.
(B) If the electronic transfer of benefits exceeds one hundred
fifty thousand dollars ($150,000), an additional term pursuant to
subdivision (h) of Section 1170 of the Penal Code of two years.
(C) If the electronic transfer of benefits exceeds one million
dollars ($1,000,000), an additional term pursuant to subdivision (h)
of Section 1170 of the Penal Code of three years.
(D) If the electronic transfer of benefits exceeds two million
five hundred thousand dollars ($2,500,000), an additional term of
four years.
(2) In any accusatory pleading involving multiple charges of
violations of subdivision (f) or (g), or both, committed by means of
an electronic transfer of benefits, the additional terms provided in
paragraph (1) may be imposed if the aggregate losses to the victims
from all violations exceed the amounts specified in this paragraph
and arise from a common scheme or plan.
(i) A person who is punished by an additional term of imprisonment
under another provision of law for a violation of subdivision (f) or
(g) shall not receive an additional term of imprisonment under
subdivision (h).
SEC. 205. Section 11451.5 of the Welfare and Institutions Code, as
added by Section 20 of Chapter 501 of the Statutes of 2011, is
amended to read:
11451.5. (a) Except as provided by subdivision (f) of Section
11322.6, the following income, determined for the semiannual period
pursuant to Sections 11265.2 and 11265.3, shall be exempt from the
calculation of the income of the family for purposes of subdivision
(a) of Section 11450:
(1) If disability-based unearned income does not exceed two
hundred twenty-five dollars ($225), both of the following amounts:
(A) All disability-based unearned income, plus any amount of not
otherwise exempt earned income not in excess of the lesser of the
following:
(i) One hundred twelve dollars ($112).
(ii) The amount of the difference between the amount of
disability-based unearned income and two hundred twenty-five dollars
($225).
(B) Fifty percent of all not otherwise exempt earned income in
excess of the amount applied to meet the differential applied in
subparagraph (A).
(2) If disability-based unearned income exceeds two hundred
twenty-five dollars ($225), both of the following amounts:
(A) All of the first two hundred twenty-five dollars ($225) in
disability-based unearned income.
(B) Fifty percent of all earned income.
(b) For purposes of this section:
(1) Earned income means gross income received as wages, salary,
employer-provided sick leave benefits, commissions, or profits from
activities such as a business enterprise or farming in which the
recipient is engaged as a self-employed individual or as an employee.
(2) Disability-based unearned income means state disability
insurance benefits, private disability insurance benefits, temporary
workers' compensation benefits, and social security disability
benefits.
(3) Unearned income means any income not described in paragraph
(1) or (2).
(c) (1) This section shall become operative on April 1, 2013. A
county shall implement the semiannual reporting requirements in
accordance with the act that added this section no later than October
1, 2013.
(2) Upon implementation described in paragraph (1), each county
shall provide a certificate to the director certifying that
semiannual reporting has been implemented in the county.
(3) Upon filing the certificate described in paragraph (2), a
county shall comply with the semiannual reporting provisions of this
section.
SEC. 206. Section 11461 of the Welfare and Institutions Code is
amended to read:
11461. (a) For children or, on and after January 1, 2012,
nonminor dependents placed in a licensed or approved family home with
a capacity of six or fewer, or in an approved home of a relative or
nonrelated legal guardian, or the approved home of a nonrelative
extended family member as described in Section 362.7, or, on and
after January 1, 2012, a supervised independent living setting, as
defined in subdivision (w) of Section 11400, the per child per month
basic rates in the following schedule shall be in effect for the
period July 1, 1989, to December 31, 1989, inclusive:
Age Basic rate
0-4................................ $294
5-8................................ 319
9-11............................... 340
12-14............................... 378
15-20............................... 412
(b) (1) Any county that, as of October 1, 1989, has in effect a
basic rate that is at the levels set forth in the schedule in
subdivision (a), shall continue to receive state participation, as
specified in subdivision (c) of Section 15200, at these levels.
(2) Any county that, as of October 1, 1989, has in effect a basic
rate that exceeds a level set forth in the schedule in subdivision
(a), shall continue to receive the same level of state participation
as it received on October 1, 1989.
(c) The amounts in the schedule of basic rates in subdivision (a)
shall be adjusted as follows:
(1) Effective January 1, 1990, the amounts in the schedule of
basic rates in subdivision (a) shall be increased by 12 percent.
(2) Effective May 1, 1990, any county that did not increase the
basic rate by 12 percent on January 1, 1990, shall do both of the
following:
(A) Increase the basic rate in effect December 31, 1989, for which
state participation is received by 12 percent.
(B) Increase the basic rate, as adjusted pursuant to subparagraph
(A), by an additional 5 percent.
(3) (A) Except as provided in subparagraph (B), effective July 1,
1990, for the 1990-91 fiscal year, the amounts in the schedule of
basic rates in subdivision (a) shall be increased by an additional 5
percent.
(B) The rate increase required by subparagraph (A) shall not be
applied to rates increased May 1, 1990, pursuant to paragraph (2).
(4) Effective July 1, 1998, the amounts in the schedule of basic
rates in subdivision (a) shall be increased by 6 percent.
Notwithstanding any other provision of law, the 6-percent increase
provided for in this paragraph shall, retroactive to July 1, 1998,
apply to every county, including any county to which paragraph (2) of
subdivision (b) applies, and shall apply to foster care for every
age group.
(5) Notwithstanding any other provision of law, any increase that
takes effect after July 1, 1998, shall apply to every county,
including any county to which paragraph (2) of subdivision (b)
applies, and shall apply to foster care for every age group.
(6) The increase in the basic foster family home rate shall apply
only to children placed in a licensed foster family home receiving
the basic rate or in an approved home of a relative or nonrelative
extended family member, as described in Section 362.7, a supervised
independent living setting, as defined in subdivision (w) of Section
11400, or a nonrelated legal guardian receiving the basic rate. The
increased rate shall not be used to compute the monthly amount that
may be paid to licensed foster family agencies for the placement of
children in certified foster homes.
(d) (1) (A) Beginning with the 1991-92 fiscal year, the schedule
of basic rates in subdivision (a) shall be adjusted by the percentage
changes in the California Necessities Index, computed pursuant to
the methodology described in Section 11453, subject to the
availability of funds.
(B) In addition to the adjustment in subparagraph (A) effective
January 1, 2000, the schedule of basic rates in subdivision (a) shall
be increased by 2.36 percent rounded to the nearest dollar.
(C) Effective January 1, 2008, the schedule of basic rates in
subdivision (a), as adjusted pursuant to subparagraph (B), shall be
increased by 5 percent, rounded to the nearest dollar. The increased
rate shall not be used to compute the monthly amount that may be paid
to licensed foster family agencies for the placement of children in
certified foster family homes, and shall not be used to recompute the
foster care maintenance payment that would have been paid based on
the age-related, state-approved foster family home care rate and any
applicable specialized care increment, for any adoption assistance
agreement entered into prior to October 1, 1992, or in any subsequent
reassessment for adoption assistance agreements executed before
January 1, 2008.
(2) (A) Any county that, as of the 1991-92 fiscal year, receives
state participation for a basic rate that exceeds the amount set
forth in the schedule of basic rates in subdivision (a) shall receive
an increase each year in state participation for that basic rate of
one-half of the percentage adjustments specified in paragraph (1)
until the difference between the county's adjusted state
participation level for its basic rate and the adjusted schedule of
basic rates is eliminated.
(B) Notwithstanding subparagraph (A), all counties for the
1999-2000 fiscal year and the 2007-08 fiscal year shall receive an
increase in state participation for the basic rate of the entire
percentage adjustment described in paragraph (1).
(3) If a county has, after receiving the adjustments specified in
paragraph (2), a state participation level for a basic rate that is
below the amount set forth in the adjusted schedule of basic rates
for that fiscal year, the state participation level for that rate
shall be further increased to the amount specified in the adjusted
schedule of basic rates.
(e) (1) As used in this section, "specialized care increment"
means an approved amount paid with state participation on behalf of
an AFDC-FC child requiring specialized care to a home listed in
subdivision (a) in addition to the basic rate. Notwithstanding
subdivision (a), the specialized care increment shall not be paid to
a nonminor dependent placed in a supervised independent living
setting as defined in subdivision (w) of Section 11400. On the
effective date of this section, the department shall continue and
maintain the current ratesetting system for specialized care.
(2) Any county that, as of the effective date of this section, has
in effect specialized care increments that have been approved by the
department, shall continue to receive state participation for those
payments.
(3) Any county that, as of the effective date of this section, has
in effect specialized care increments that exceed the amounts that
have been approved by the department, shall continue to receive the
same level of state participation as it received on the effective
date of this section.
(4) (A) Except for subparagraph (B), beginning January 1, 1990,
specialized care increments shall be adjusted in accordance with the
methodology for the schedule of basic rates described in subdivisions
(c) and (d). No county shall receive state participation for any
increases in a specialized care increment which exceeds the
adjustments made in accordance with this methodology.
(B) Notwithstanding subdivision (e) of Section 11460, for the
1993-94 fiscal year, an amount equal to 5 percent of the State
Treasury appropriation for family homes shall be added to the total
augmentation for the AFDC-FC program in order to provide incentives
and assistance to counties in the area of specialized care. This
appropriation shall be used, but not limited to, encouraging counties
to implement or expand specialized care payment systems, to recruit
and train foster parents for the placement of children with
specialized care needs, and to develop county systems to encourage
the placement of children in family homes. It is the intent of the
Legislature that in the use of these funds, federal financial
participation shall be claimed whenever possible.
(C) (i) Notwithstanding subparagraph (A), the specialized care
increment shall not receive a cost-of-living adjustment in the
2011-12 or 2012-13 fiscal years.
(ii) Notwithstanding clause (i), a county may choose to
apply a cost-of-living adjustment to its specialized care increment
during the 2011-12 or 2012-13 fiscal years. To the extent that a
county chooses to apply a cost-of-living adjustment during that time,
the state shall not participate in the costs of that adjustment.
(iii) To the extent that federal financial participation is
available for a cost-of-living adjustment made by a county pursuant
to clause (ii), it is the intent of the Legislature that the federal
funding shall be utilized.
(f) (1) As used in this section, "clothing allowance" means the
amount paid with state participation in addition to the basic rate
for the provision of additional clothing for an AFDC-FC child,
including, but not limited to, an initial supply of clothing and
school or other uniforms.
(2) Any county that, as of the effective date of this section, has
in effect clothing allowances shall continue to receive the same
level as it received on the effective date of this section.
(3) (A) Commencing in the 2007-08 fiscal year, for children whose
foster care payment is the responsibility of Colusa, Plumas, and
Tehama Counties, the amount of the clothing allowance may be up to
two hundred seventy-four dollars ($274) per child per year.
(B) Each county listed in subparagraph (A) that elects to receive
the clothing allowance shall submit a Clothing Allowance Program
Notification to the department within 60 days after the effective
date of the act that adds this paragraph.
(C) The Clothing Allowance Program Notification shall identify the
specific amounts to be paid and the disbursement schedule for these
clothing allowance payments.
(4) (A) Beginning January 1, 1990, except as provided in paragraph
(5), clothing allowances shall be adjusted annually in accordance
with the methodology for the schedule of basic rates described in
subdivisions (c) and (d). No county shall be reimbursed for any
increases in clothing allowances which exceed the adjustments made in
accordance with this methodology.
(B) (i) Notwithstanding subparagraph (A), the clothing allowance
shall not receive any cost-of-living adjustment in the 2011-12 or
2012-13 fiscal years.
(ii) Notwithstanding paragraph (1), a county may choose to apply a
cost-of-living adjustment to its clothing allowance during the
2011-12 or 2012-13 fiscal years. To the extent that a county chooses
to apply a cost-of-living adjustment during that time, the state
shall not participate in the costs of that adjustment.
(iii) To the extent that federal financial participation is
available for a cost-of-living adjustment made by a county pursuant
to paragraph (2), it is the intent of the Legislature that the
federal funding shall be utilized.
(5) (A) For the 2000-01 fiscal year and each fiscal year
thereafter, without a county share of cost, notwithstanding
subdivision (c) of Section 15200, each child shall be entitled to
receive a supplemental clothing allowance of one hundred dollars
($100) per year subject to the availability of funds. The clothing
allowance shall be used to supplement, and not supplant, the clothing
allowance specified in paragraph (1).
(B) Notwithstanding subparagraph (A), the state shall no longer
participate in the supplemental clothing allowance commencing with
the 2011-12 fiscal year.
(g) (1) Notwithstanding subdivisions (a) to (d), inclusive, for a
child, or on and after January 1, 2012, a nonminor dependent, placed
in a licensed or approved family home with a capacity of six or less,
or placed in an approved home of a relative or the approved home of
a nonrelative extended family member as described in Section 362.7,
or placed on and after January 1, 2012, in a supervised independent
living setting, as defined in subdivision (w) of Section 11400, the
per child per month basic rate in the following schedule shall be in
effect for the period commencing July 1, 2011, or the date specified
in the final order, for which the time to appeal has passed, issued
by a court of competent jurisdiction in California State Foster
Parent Association v. William Lightbourne, et al. (U.S. Dist. Ct. C
07-08056 WHA), whichever is earlier, through June 30, 2012:
Age Basic rate
0-4................................ $609
5-8................................ $660
9-11............................... $695
12-14............................... $727
15-20............................... $761
(2) Commencing July 1, 2011, the basic rate set forth in this
subdivision shall be annually adjusted on July 1 by the annual
percentage change in the California Necessities Index applicable to
the calendar year within which each July 1 occurs.
(3) Subdivisions (e) and (f) shall apply to payments made pursuant
to this subdivision.
SEC. 207. Section 11463 of the Welfare and Institutions Code is
amended to read:
11463. (a) (1) The department, with the advice, assistance, and
cooperation of the counties and foster care providers, shall develop,
implement, and maintain a ratesetting system for foster family
agencies.
(2) No county shall be reimbursed for any percentage increases in
payments, made on behalf of AFDC-FC funded children who are placed
with foster family agencies, that exceed the percentage
cost-of-living increase provided in any fiscal year beginning on
January 1, 1990, as specified in subdivision (c) of Section 11461.
(b) The department shall develop regulations specifying the
purposes, types, and services of foster family agencies, including
the use of those agencies for the provision of emergency shelter
care. A distinction, for ratesetting purposes, shall be drawn between
foster family agencies that provide treatment of children in foster
families and those that provide nontreatment services.
(c) The department shall develop and maintain regulations
specifying the procedure for the appeal of department decisions about
the setting of an agency's rate.
(d) On and after July 1, 1998, the schedule of rates, and the
components used in the rate calculations specified in the department'
s regulations, for foster family agencies shall be increased by 6
percent, rounded to the nearest dollar. The resultant amounts shall
constitute the new schedule of rates for foster family agencies.
(e) (1) On and after July 1, 1999, the schedule of rates and the
components used in the rate calculations specified in the department'
s regulations for foster family agencies shall be adjusted by an
amount equal to the California Necessities Index computed pursuant to
Section 11453, rounded to the nearest dollar, subject to the
availability of funds. The resultant amounts shall constitute the new
schedule of rates for foster family agencies, subject to further
adjustment pursuant to paragraph (2).
(2) In addition to the adjustment specified in paragraph (1),
commencing January 1, 2000, the schedule of rates and the components
used in the rate calculations specified in the department's
regulations for foster family agencies shall be increased by 2.36
percent, rounded to the nearest dollar. The resultant amounts shall
constitute the new schedule of rates for foster family agencies.
(f) For the 1999-2000 fiscal year, foster family agency rates that
are not determined by the schedule of rates set forth in the
department's regulations shall be increased by the same percentage as
provided in subdivision (e).
(g) For the 2000-01 fiscal year and each fiscal year thereafter,
without a county share of cost, notwithstanding subdivision (c) of
Section 15200, the foster family agency rate shall be supplemented by
one hundred dollars ($100) for clothing per year per child in care,
subject to the availability of funds. The supplemental payment shall
be used to supplement, and shall not be used to supplant, any
clothing allowance paid in addition to the foster family agency rate.
(h) In addition to the adjustment made pursuant to subdivision
(e), the component for social work activities in the rate calculation
specified in the department's regulations for foster family agencies
shall be increased by 10 percent, effective January 1, 2001. This
additional funding shall be used by foster family agencies solely to
supplement staffing, salaries, wages, and benefit levels of staff
performing social work activities. The schedule of rates shall be
recomputed using the adjusted amount for social work activities. The
resultant amounts shall constitute the new schedule of rates for
foster family agencies. The department may require a foster family
agency receiving this additional funding to certify that the funding
was utilized in accordance with the provisions of this section.
(i) The increased rate provided by subparagraph (C) of paragraph
(1) of subdivision (d) of Section 11461 shall not be used to compute
the monthly amount that may be paid to licensed foster family
agencies for the placement of children in certified foster homes.
(j) The total foster family agency rate by age group in effect as
of January 1, 2008, paid to licensed foster family agencies for the
placement of children in certified foster family homes, shall be
reduced by 10 percent, effective October 1, 2009. The foster family
agency shall have flexibility in applying the reduction; however, no
more than 10 percent shall be deducted from the child base and
increment, as defined in departmental regulations. When the rate is
restored to at least the rate in effect on September 1, 2009, the
director shall issue the declaration described in Section 1506.3 of
the Health and Safety Code.
(k) Effective October 1, 2009, the total foster family agency rate
by age group, in effect for those agency rates that are not
determined by the schedule of rates set forth in the department's
regulations, shall be reduced by the same percentage and in the same
manner as provided for in subdivision (j).
(l) (1) The department shall determine, consistent with the
requirements of this section and other relevant requirements under
law, the rate category for each foster family agency on a biennial
basis. Submission of the biennial rate application shall be according
to a schedule determined by the department.
(2) The department shall adopt regulations to implement this
subdivision. The adoption, amendment, repeal, or readoption of a
regulation authorized by this subdivision is deemed to be necessary
for the immediate preservation of the public peace, health and
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 to describe specific facts showing the need for
immediate action.
SEC. 208. Section 12301.03 of the Welfare and Institutions Code is
amended to read:
12301.03. (a) (1) The Legislature finds and declares as follows:
(A) Authorized hours under the In-Home Supportive Services program
were reduced in the 1992-93 fiscal year, and included a supplemental
assessment process that was intended to ensure that recipients
remained safely in their homes.
(B) The reduction in authorized hours as provided for in Chapter 8
of the Statutes of 2011 includes a supplemental assessment process
that is similarly intended to ensure that recipients remain safely in
their homes.
(2) Notwithstanding any other provision of law, if the Department
of Finance determines that a reduction in authorized hours of service
is necessary, pursuant to subdivision (d) of Section 14132.957, the
State Department of Social Services shall implement a reduction in
authorized hours of service to each in-home supportive services
recipient as specified in this section, which shall be applied to the
recipient's hours as authorized pursuant to his or her most recent
assessment.
(3) The reduction required by this section shall not preclude any
reassessment to which a recipient would otherwise be entitled.
However, hours authorized pursuant to a reassessment shall be subject
to the reduction required by this section.
(4) For those recipients who have a documented unmet need,
excluding protective supervision, because of the limitations
contained in Section 12303.4, this reduction shall be applied first
to the unmet need before being applied to the authorized hours. If
the recipient believes he or she will be at serious risk of
out-of-home placement as a consequence of the reduction, the
recipient may apply for a restoration of the reduction of authorized
service hours, pursuant to Section 12301.05.
(5) A recipient of services under this article may direct the
manner in which the reduction of hours is applied to the recipient's
previously authorized services.
(6) The reduction in service hours made pursuant to paragraph (2)
shall not apply to in-home supportive services recipients who also
receive services under Section 9560, subdivision (t) of Section
14132, and Section 14132.99.
(b) The department shall work with the counties to develop a
process to allow for counties to preapprove IHSS Care Supplements
described in Section 12301.05, to the extent that the process is
permissible under federal law. The preapproval process shall be
subject to the following conditions:
(1) The preapproval process shall rely on the criteria for
assessing IHSS Care Supplement applications, developed pursuant to
Section 12301.05.
(2) Preapproval shall be granted only to individuals who would
otherwise be granted a full restoration of their hours pursuant to
Section 12301.05.
(3) With respect to existing recipients as of the effective date
of this section, all efforts shall be made to ensure that counties
complete the process on or before a specific date, as determined by
the department, in consultation with counties in order to allow for
the production, printing, and mailing of notices to be issued to
remaining recipients who are not granted preapproval and who thereby
are subject to the reduction pursuant to this section.
(4) The department shall work with counties to determine how to
apply a preapproval process with respect to new applicants to the
IHSS program who apply after the effective date of this section.
(c) The notice of action informing each recipient who is not
preapproved for an IHSS Care Supplement pursuant to subdivision (b)
shall be mailed at least 15 days prior to the reduction going into
effect. The notice of action shall be understandable to the recipient
and translated into all languages spoken by a substantial number of
the public served by the In-Home Supportive Services program, in
accordance with Section 7295.2 of the Government Code. The notice
shall not contain any recipient financial or confidential identifying
information other than the recipient's name, address, and Case
Management Information and Payroll System (CMIPS) client
identification number, and shall include, but not be limited to, all
of the following information:
(1) The aggregate number of authorized hours before the reduction
pursuant to paragraph (2) of subdivision (a) and the aggregate number
of authorized hours after the reduction.
(2) That the recipient may direct the manner in which the
reduction of authorized hours is applied to the recipient's
previously authorized services.
(3) How all or part of the reduction may be restored, as set forth
in Section 12301.05, if the recipient believes he or she will be at
serious risk of out-of-home placement as a consequence of the
reduction.
(d) The department shall inform providers of any reduction to
recipient hours through a statement on provider timesheets, after
consultation with counties.
(e) The IHSS Care Supplement application process described in
Section 12301.05 shall be completed before a request for a state
hearing is submitted. If the IHSS Care Supplement application is
filed within 15 days of the notice of action required by subdivision
(c), or before the effective date of the reduction, the recipient
shall be eligible for aid paid pending. A revised notice of action
shall be issued by the county following evaluation of the IHSS Care
Supplement application.
(f) (1) Notwithstanding the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code),
the department may implement and administer this section through
all-county letters or similar instruction from the department until
regulations are adopted. The department shall adopt emergency
regulations implementing this section no later than October 1, 2013.
The department may readopt any emergency regulation authorized by
this section that is the same as or substantially equivalent to an
emergency regulation previously adopted under this section.
(2) The initial adoption of emergency regulations implementing
this section and the one readoption of emergency regulations
authorized by this subdivision shall be deemed an emergency and
necessary for the immediate preservation of the public peace, health,
safety, or general welfare. Initial emergency regulations and the
one readoption of emergency regulations authorized by this section
shall be exempt from review by the Office of Administrative Law. The
initial emergency regulations and the one readoption of emergency
regulations authorized by this section shall be submitted to the
Office of Administrative Law for filing with the Secretary of State
and each shall remain in effect for no more than 180 days, by which
time final regulations may be adopted.
(g) If the Director of Health Care Services determines that
federal approval is necessary to implement this section, Section
12301.05, or both, these sections shall be implemented only after any
state plan amendments required pursuant to Section 14132.95 are
approved.
(h) This section shall become operative on the first day of the
first month following 90 days after the effective date of Chapter 8
of the Statutes of 2011, or October 1, 2012, whichever is later.
SEC. 209. Section 12301.07 of the Welfare and Institutions Code is
amended to read:
12301.07. (a) (1) Notwithstanding any other provision of law, if
subdivision (b) of Section 3.94 of the Budget Act of 2011 is
operative, the department shall implement a 20-percent reduction in
authorized hours of service to each in-home supportive services
recipient as specified in this section, effective January 1, 2012,
which shall be applied to the recipient's hours as authorized
pursuant to his or her most recent assessment.
(2) The reduction required by this section shall not preclude any
reassessment to which a recipient would otherwise be entitled.
However, hours authorized pursuant to a reassessment shall be subject
to the reduction required by this section.
(3) For those recipients who have a documented unmet need,
excluding protective supervision, because of the limitations
contained in Section 12303.4, this reduction shall be applied first
to the unmet need before being applied to the authorized hours. If
the recipient believes he or she will be at serious risk of
out-of-home placement as a consequence of the reduction, the
recipient may apply for a restoration of the reduction of authorized
service hours, pursuant to subdivision (f).
(4) A recipient of services under this article may direct the
manner in which the reduction of hours is applied to the recipient's
previously authorized services.
(5) The reduction in service hours made pursuant to paragraph (1)
shall not apply to in-home supportive services recipients who also
receive services under Section 9560, subdivision (t) of Section
14132, and Section 14132.99.
(b) The department shall work with the counties to develop a
process to allow for counties to preapprove IHSS Care Supplements
described in subdivision (f), to the extent that the process is
permissible under federal law. The preapproval process shall be
subject to the following conditions:
(1) The preapproval process shall rely on the criteria for
assessing IHSS Care Supplement applications, developed pursuant to
subdivision (f).
(2) Preapproval shall be granted only to individuals who would
otherwise be granted a full restoration of their hours pursuant to
subdivision (f).
(3) With respect to existing recipients as of the effective date
of this section, all efforts shall be made to ensure that counties
complete the process on or before a specific date, as determined by
the department, in consultation with counties in order to allow for
the production, printing, and mailing of notices to be issued to
remaining recipients who are not granted preapproval and who thereby
are subject to the reduction pursuant to this section.
(4) The department shall work with counties to determine how to
apply a preapproval process with respect to new applicants to the
IHSS program who apply after the effective date of this section.
(c) The notice of action informing each recipient who is not
preapproved for an IHSS Care Supplement pursuant to subdivision (b)
shall be mailed at least 15 days prior to the reduction going into
effect. The notice of action shall be understandable to the recipient
and translated into all languages spoken by a substantial number of
the public served by the In-Home Supportive Services program, in
accordance with Section 7295.2 of the Government Code. The notice
shall not contain any recipient financial or confidential identifying
information other than the recipient's name, address, and Case
Management Information and Payroll System (CMIPS) client
identification number, and shall include, but not be limited to, all
of the following information:
(1) The aggregate number of authorized hours before the reduction
pursuant to paragraph (1) of subdivision (a) and the aggregate number
of authorized hours after the reduction.
(2) That the recipient may direct the manner in which the
reduction of authorized hours is applied to the recipient's
previously authorized services.
(3) How all or part of the reduction may be restored, as set forth
in subdivision (f), if the recipient believes he or she will be at
serious risk of out-of-home placement as a consequence of the
reduction.
(d) The department shall inform providers of any reduction to
recipient hours through a statement on provider timesheets, after
consultation with counties.
(e) The IHSS Care Supplement application process described in
subdivision (f) shall be completed before a request for a state
hearing is submitted. If the IHSS Care Supplement application is
filed within 15 days of the notice of action required by subdivision
(c), or before the effective date of the reduction, the recipient
shall be eligible for aid paid pending. A revised notice of action
shall be issued by the county following evaluation of the IHSS Care
Supplement application.
(f) (1) Any aged, blind, or disabled individual who is eligible
for services under this article who receives a notice of action
indicating that his or her services will be reduced under subdivision
(a) but who believes he or she is at serious risk of out-of-home
placement unless all or part of the reduction is restored may submit
an IHSS Care Supplement application. When a recipient submits an IHSS
Care Supplement application within 15 days of receiving the
reduction notice or prior to the implementation of the reduction, the
recipient's in-home supportive services shall continue at the level
authorized by the most recent assessment, prior to any reduction,
until the county finds that the recipient does or does not require
restoration of any hours through the IHSS Care Supplement. If the
recipient disagrees with the county's determination concerning the
need for the IHSS Care Supplement, the recipient may request a
hearing on that determination.
(2) The department shall develop an assessment tool, in
consultation with stakeholders, to be used by the counties to
determine if a recipient is at serious risk of out-of-home placement
as a consequence of the reduction of services pursuant to this
section. The assessment tool shall be developed utilizing standard of
care criteria for relevant out-of-home placements that serve
individuals who are aged, blind, or who have disabilities and who
would qualify for IHSS if living at home, including, but not limited
to, criteria set forth in Chapter 7.0 of the Manual of Criteria for
Medi-Cal Authorization published by the State Department of Health
Care Services, as amended April 15, 2004, and the IHSS uniform
assessment guidelines.
(3) Counties shall give a high priority to prompt screening of
persons specified in this section to determine their need for an IHSS
Care Supplement.
(g) (1) Notwithstanding the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code),
the department may implement and administer this section through
all-county letters or similar instruction from the department until
regulations are adopted. The department shall adopt emergency
regulations implementing this section no later than March 1, 2013.
The department may readopt any emergency regulation authorized by
this section that is the same as or substantially equivalent to an
emergency regulation previously adopted under this section.
(2) The initial adoption of emergency regulations implementing
this section and one readoption of emergency regulations authorized
by this subdivision shall be deemed an emergency and necessary for
the immediate preservation of the public peace, health, safety, or
general welfare. Initial emergency regulations and the one readoption
of emergency regulations authorized by this section shall be exempt
from review by the Office of Administrative Law. The initial
emergency regulations and the one readoption of emergency regulations
authorized by this section shall be submitted to the Office of
Administrative Law for filing with the Secretary of State and each
shall remain in effect for no more than 180 days, by which time final
regulations may be adopted.
(h) If the Director of Health Care Services determines that
federal approval is necessary to implement this section, this section
shall be implemented only after any state plan amendments required
pursuant to Section 14132.95 are approved.
SEC. 210. Section 12305.87 of the Welfare and Institutions Code is
amended to read:
12305.87. (a) (1) Commencing 90 days following the effective date
of the act that adds this section, a person specified in paragraph
(2) shall be subject to the criminal conviction exclusions provided
for in this section, in addition to the exclusions required under
Section 12305.81.
(2) This section shall apply to a person who
satisfies either of the following conditions:
(A) He or she is a new applicant to provide services under this
article.
(B) He or she is an applicant to provide services under this
article whose application has been denied on the basis of a
conviction and for whom an appeal of that denial is pending.
(b) Subject to subdivisions (c), (d), and (e), an applicant
subject to this section shall not be eligible to provide or receive
payment for providing supportive services for 10 years following a
conviction for, or incarceration following a conviction for, any of
the following:
(1) A violent or serious felony, as specified in subdivision (c)
of Section 667.5 of the Penal Code and subdivision (c) of Section
1192.7 of the Penal Code.
(2) A felony offense for which a person is required to register
under subdivision (c) of Section 290 of the Penal Code. For purposes
of this paragraph, the 10-year time period specified in this section
shall commence with the date of conviction for, or incarceration
following a conviction for, the underlying offense, and not the date
of registration.
(3) A felony offense described in paragraph (2) of subdivision (c)
or paragraph (2) of subdivision (g) of Section 10980.
(c) Notwithstanding subdivision (b), an application shall not be
denied under this section if the applicant has obtained a certificate
of rehabilitation under Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code or if the information
or accusation against him or her has been dismissed pursuant to
Section 1203.4 of the Penal Code.
(d) (1) Notwithstanding subdivision (b), a recipient of services
under this article who wishes to employ a provider applicant who has
been convicted of an offense specified in subdivision (b) may submit
to the county an individual waiver of the exclusion provided for in
this section. This paragraph shall not be construed to allow a
recipient to submit an individual waiver with respect to a conviction
or convictions for offenses specified in Section 12305.81.
(2) The county shall notify a recipient who wishes to hire a
person who is applying to be a provider and who has been convicted of
an offense subject to exclusion under this section of that applicant'
s relevant criminal offense convictions that are covered by
subdivision (b). The notice shall include both of the following:
(A) A summary explanation of the exclusions created by subdivision
(b), as well as the applicable waiver process described in this
subdivision and the process for an applicant to seek a general
exception, as described in subdivision (e). This summary explanation
shall be developed by the department for use by all counties.
(B) An individual waiver form, which shall also be developed by
the department and used by all counties. The waiver form shall
include both of the following:
(i) A space for the county to include a reference to any Penal
Code sections and corresponding offense names or descriptions that
describe the relevant conviction or convictions that are covered by
subdivision (b) and that the provider applicant has in his or her
background.
(ii) A statement that the service recipient, or his or her
authorized representative, if applicable, is aware of the applicant's
conviction or convictions and agrees to waive application of this
section and employ the applicant as a provider of services under this
article.
(3) To ensure that the initial summary explanation referenced in
this subdivision is comprehensible for recipients and provider
applicants, the department shall consult with representatives of
county welfare departments and advocates for, or representatives of,
recipients and providers in developing the summary explanation and
offense descriptions.
(4) The individual waiver form shall be signed by the recipient,
or by the recipient's authorized representative, if applicable, and
returned to the county welfare department by mail or in person.
Except for a parent, guardian, or person having legal custody of a
minor recipient, a conservator of an adult recipient, or a spouse or
registered domestic partner of a recipient, a provider applicant
shall not sign his or her own individual waiver form as the recipient'
s authorized representative. The county shall retain the waiver form
and a copy of the provider applicant's criminal offense record
information search response until the date that the convictions that
are the subject of the waiver request are no longer within the
10-year period specified in subdivision (b).
(5) An individual waiver submitted pursuant to this subdivision
shall entitle a recipient to hire a provider applicant who otherwise
meets all applicable enrollment requirements for the In-Home
Supportive Services program. A provider hired pursuant to an
individual waiver may be employed only by the recipient who requested
that waiver, and the waiver shall only be valid with respect to
convictions that are specified in that waiver. A new waiver shall be
required if the provider is subsequently convicted of an offense to
which this section otherwise would apply. A provider who wishes to be
listed on a provider registry or to provide supportive services to a
recipient who has not requested an individual waiver shall be
required to apply for a general exception, as provided for in
subdivision (e).
(6) Nothing in this section shall preclude a provider who is
eligible to receive payment for services provided pursuant to an
individual waiver under this subdivision from being eligible to
receive payment for services provided to one or more additional
recipients who obtain waivers pursuant to this same subdivision.
(7) The state and a county shall be immune from any liability
resulting from granting an individual waiver under this subdivision.
(e) (1) Notwithstanding subdivision (b), an applicant who has been
convicted of an offense identified in subdivision (b) may seek from
the department a general exception to the exclusion provided for in
this section.
(2) Upon receipt of a general exception request, the department
shall request a copy of the applicant's criminal offender record
information search response from the applicable county welfare
department. Notwithstanding any other provision of law, the county
shall provide a copy of the criminal offender record information
search response, as provided to the county by the Department of
Justice, to the department. The county shall provide this information
in a manner that protects the confidentiality and privacy of the
criminal offender record information search response. The state or
federal criminal history record information search response shall not
be modified or altered from its form or content as provided by the
Department of Justice.
(3) The department shall consider the following factors when
determining whether to grant a general exception under this
subdivision:
(A) The nature and seriousness of the conduct or crime under
consideration and its relationship to employment duties and
responsibilities.
(B) The person's activities since conviction, including, but not
limited to, employment or participation in therapy, education, or
community service, that would indicate changed behavior.
(C) The number of convictions and the time that has elapsed since
the conviction or convictions.
(D) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed against the person.
(E) Any evidence of rehabilitation, including character
references, submitted by the person, or by others on the person's
behalf.
(F) Employment history and current or former employer
recommendations. Additional consideration shall be given to employer
recommendations provided by a person who has received or has
indicated a desire to receive supportive or personal care services
from the applicant, including, but not limited to, those services,
specified in Section 12300.
(G) Circumstances surrounding the commission of the offense that
would demonstrate the unlikelihood of repetition.
(H) The granting by the Governor of a full and unconditional
pardon.
(f) If the department makes a determination to deny an application
to provide services pursuant to a request for a general exception,
the department shall notify the applicant of this determination by
either personal service or registered mail. The notice shall include
the following information:
(1) A statement of the department's reasons for the denial that
evaluates evidence of rehabilitation submitted by the applicant, if
any, and that specifically addresses any evidence submitted relating
to the factors in paragraph (3) of subdivision (e).
(2) A copy of the applicant's criminal offender record information
search response, even if the applicant already has received a copy
pursuant to Section 12301.6 or 12305.86. The department shall provide
this information in a manner that protects the confidentiality and
privacy of the criminal offender record information search response.
(A) The state or federal criminal history record shall not be
modified or altered from its form or content as provided by the
Department of Justice.
(B) The department shall retain a copy of each individual's
criminal offender record information search response until the date
that the convictions that are the subject of the exception are no
longer within the 10-year period specified in subdivision (b), and
shall record the date the copy of the response was provided to the
individual and the department.
(C) The criminal offender record information search response shall
not be made available by the department to any individual other than
the provider applicant.
(g) (1) Upon written notification that the department has
determined that a request for exception shall be denied, the
applicant may request an administrative hearing by submitting a
written request to the department within 15 business days of receipt
of the written notification. Upon receipt of a written request, the
department shall hold an administrative hearing consistent with the
procedures specified in Section 100171 of the Health and Safety Code,
except where those procedures are inconsistent with this section.
(2) A hearing under this subdivision shall be conducted by a
hearing officer or administrative law judge designated by the
director. A written decision shall be sent by certified mail to the
applicant.
(h) The department shall revise the provider enrollment form
developed pursuant to Section 12305.81 to include both of the
following:
(1) The text of subdivision (c) of Section 290 of the Penal Code,
subdivision (c) of Section 667.5 of the Penal Code, subdivision (c)
of Section 1192.7 of the Penal Code, and paragraph (2) of
subdivisions (c) and (g) of Section 10980 of this code.
(2) A statement that the provider understands that if he or she
has been convicted, or incarcerated following conviction for, any of
the crimes specified in the provisions identified in subdivision (b)
in the last 10 years, and has not received a certificate of
rehabilitation or had the information or accusation dismissed, as
provided in subdivision (c), he or she shall only be authorized to
receive payment for providing in-home supportive services under an
individual waiver or general exception as described in this section,
and upon meeting all other applicable criteria for enrollment as a
provider in the program.
(i) (1) Notwithstanding the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code),
the department may implement and administer this section through
all-county letters or similar instructions from the department until
regulations are adopted. The department shall adopt emergency
regulations implementing these provisions no later than July 1, 2011.
The department may readopt any emergency regulation authorized by
this section that is the same as or substantially equivalent to an
emergency regulation previously adopted under this section.
(2) The initial adoption of emergency regulations pursuant to this
section and one readoption of emergency regulations shall be deemed
an emergency and necessary for the immediate preservation of the
public peace, health, safety, or general welfare. Initial emergency
regulations and the one readoption of emergency regulations
authorized by this section shall be exempt from review by the Office
of Administrative Law. The initial emergency regulations and the one
readoption of emergency regulations authorized by this section shall
be submitted to the Office of Administrative Law for filing with the
Secretary of State and each shall remain in effect for no more than
180 days, by which time final regulations may be adopted.
(j) In developing the individual waiver form and all-county
letters or information notices or similar instructions, the
department shall consult with stakeholders, including, but not
limited to, representatives of the county welfare departments, and
representatives of consumers and providers. The consultation shall
include at least one in-person meeting prior to the finalization of
the individual waiver form and all-county letters or information
notices or similar instructions.
SEC. 211. Section 14053.8 of the Welfare and Institutions Code is
amended to read:
14053.8. (a) Notwithstanding any other provision of law, the
department shall develop a process to allow counties to receive any
available federal financial participation for acute inpatient
hospital services and inpatient psychiatric services provided to
juvenile inmates who are admitted as inpatients in a medical
institution off the grounds of the correctional facility, and who,
but for their institutional status as inmates, are otherwise eligible
for Medi-Cal benefits pursuant to this chapter. This process shall
be coordinated, to the extent possible, with the processes and
procedures established pursuant to Section 14053.7 of this code and
Section 5072 of the Penal Code. This subdivision shall not be
construed to alter or abrogate any obligation of the state pursuant
to an administrative action or a court order that is final and no
longer subject to appeal to fund and reimburse counties for any
medical services provided to a juvenile inmate.
(b) A juvenile inmate who is an inpatient in a medical institution
off the grounds of the correctional facility shall not be denied
eligibility for Medi-Cal benefits under this section because of his
or her institutional status as an inmate of a public institution.
(c) The department shall consult with counties in the development
of the process pursuant to this section.
(d) This section shall not be construed to limit the department's
authority to suspend or terminate Medi-Cal eligibility pursuant to
Section 14011.10, except during such times that the juvenile inmate
is receiving acute inpatient hospital services or inpatient
psychiatric services pursuant to subdivision (b).
(e) This section shall be implemented only if and to the extent
that existing levels of federal financial participation are not
otherwise jeopardized. To the extent that the department determines
that existing levels of federal financial participation are
jeopardized, this section shall no longer be implemented.
(f) The department shall seek any federal approvals necessary to
implement the process developed pursuant to this section. This
section shall be implemented only if and to the extent that any
necessary federal approvals have been obtained, and only to the
extent that federal financial participation is available.
(g) Notwithstanding any other provision of law, as part of the
process developed pursuant to this section, the department may exempt
juvenile inmates from enrollment into new or existing managed care
health plans.
(h) The process developed pursuant to this section shall be
implemented in only those counties that elect to provide the
nonfederal share of the state's administrative costs associated with
implementation of this section and the nonfederal share of
expenditures for acute inpatient hospital services and inpatient
psychiatric services provided to eligible juvenile inmates described
in subdivision (a).
(i) The federal financial participation received pursuant to the
process implemented under this section shall be paid to the
participating counties for services rendered to the juvenile inmates.
If a federal audit disallowance and interest results from claims
made under the process created pursuant to this section, the
department shall recoup from the county that received the disallowed
funds the amount of the disallowance and any applicable interest.
(j) (1) 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 (CMS), that
disallows, defers, or alters the implementation of this section or,
to the extent applicable, Section 14053.7 of this code or Section
5072 of the Penal Code, including the rate methodology or payment
process established by the department that limits or affects the
department's authority to select the facilities used to provide acute
inpatient hospital services and inpatient psychiatric services to
juvenile inmates, then any provision of this section that is
inconsistent with the final judicial or CMS determination shall have
no force or effect.
(2) In addition, the department may, at its discretion, cease to
implement any other part of this section that is implicated by the
final judicial or CMS determination.
(k) For the purposes of Medi-Cal eligibility pursuant to this
section, "juvenile inmate" means an individual under 21 years of age
who is involuntarily residing in a public institution, including
state and local institutions.
(l) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department may, without taking any further regulatory action,
implement this section by means of all-county letters or similar
instructions.
SEC. 212. Section 14053.9 of the Welfare and Institutions Code is
amended to read:
14053.9. (a) Notwithstanding any other provision of law, the
department shall develop a process to allow the Department of
Corrections and Rehabilitation, Division of Juvenile Facilities, or
any successor, to receive any available federal financial
participation for acute inpatient hospital services and inpatient
psychiatric services provided to any juvenile inmates in the Division
of Juvenile Facilities who are admitted as inpatients in a medical
institution off the grounds of the correctional facility, and who,
but for their institutional status as juvenile inmates, are otherwise
eligible for Medi-Cal benefits pursuant to this chapter. This
process shall be coordinated, to the extent possible, with the
processes and procedures established pursuant to Section 14053.7 of
this code and Section 5072 of the Penal Code.
(b) Any juvenile inmate in the Division of Juvenile Facilities who
is an inpatient in a medical institution off the grounds of the
correctional facility shall not be denied eligibility for Medi-Cal
benefits under this section because of his or her institutional
status as an inmate in the Division of Juvenile Facilities.
(c) The department shall consult with the Division of Juvenile
Facilities in the development of the process pursuant to this
section.
(d) The department shall seek any federal approvals necessary to
implement the process developed pursuant to this section. This
section shall be implemented only if and to the extent that any
necessary federal approvals have been obtained, and only to the
extent that federal financial participation is available.
(e) Notwithstanding any other provision of law, as part of the
process developed pursuant to this section, the department may exempt
any juvenile inmate in a facility operated by the Division of
Juvenile Facilities from enrollment into new or existing managed care
health plans.
(f) The process developed pursuant to this section shall be
implemented only to the extent that the Division of Juvenile
Facilities agrees voluntarily to provide the nonfederal share of any
costs to the department associated with the administration of this
section and the nonfederal share of expenditures for acute inpatient
hospital services and inpatient psychiatric services provided off the
grounds of the correctional facility to any juvenile inmate of the
Division of Juvenile Facilities who is eligible for Medi-Cal benefits
pursuant to this section.
(g) The federal financial participation received pursuant to this
section shall be paid to the Department of Corrections and
Rehabilitation for services rendered to any juvenile inmate in the
Division of Juvenile Facilities.
(h) Reimbursement pursuant to this section shall be limited to
only those services for which federal financial participation is
available.
(i) (1) 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 (CMS), that
disallows, defers, or alters the implementation of this section or,
to the extent applicable, Section 14053.7 of this code or Section
5072 of the Penal Code, including the rate methodology or payment
process established by the department that limits or affects the
department's authority to select the facilities used to provide acute
inpatient hospital services and inpatient psychiatric services to
juvenile inmates in the Division of Juvenile Facilities, then any
provision of this section that is inconsistent with the final
judicial or CMS determination shall have no force or effect.
(2) In addition, the department may, at its discretion, cease to
implement any other part of this section that is implicated by the
final judicial or CMS determination.
(j) For the purposes of Medi-Cal eligibility pursuant to this
section, "juvenile inmate" means an individual under 21 years of age
who is involuntarily residing in a public institution, including
state and local institutions.
(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, without taking any further regulatory action,
implement this section by means of all-county letters or similar
instructions.
SEC. 213. Section 14105.09 of the Welfare and Institutions Code is
amended to read:
14105.09. Notwithstanding any other provision of law, if
subdivision (b) of Section 3.94 of the Budget Act of 2011 is
operative, effective on or after January 1, 2012, the payment
reductions in Sections 14105.07, 14105.192, 14126.033, 14131.05, and
14131.07 shall apply to managed care health plans that contract with
the department pursuant to Chapter 8.75 (commencing with Section
14591) and to contracts with the Senior Care Action Network and AIDS
Healthcare Foundation, to the extent that the services are provided
through any of these contracts, payments shall be reduced by the
actuarial equivalent amount of the payment reductions pursuant to
contract amendments or change orders effective on July 1, 2011, or
thereafter.
SEC. 214. Section 14105.193 of the Welfare and Institutions Code
is amended to read:
14105.193. (a) (1) Notwithstanding paragraph (7) of subdivision
(j) of Section 14105.192 and any other law, beginning June 1, 2011,
reimbursement rates for freestanding pediatric subacute care units,
as defined in Section 51215.8 of Title 22 of the California Code of
Regulations, shall be the applicable rate for the 2008-09 rate year,
reduced by 5.75 percent, plus the projected cost of complying with
new state or federal mandates.
(2) The department shall recalculate and publish the rates
specified in paragraph (1) for any of the following reasons:
(A) If the federal Centers for Medicare and Medicaid Services
(CMS) does not approve exemption changes to the facilities subject to
the skilled nursing facility quality assurance fee pursuant to
paragraph (4) of subdivision (c) of Section 1324.20 of the Health and
Safety Code.
(B) If CMS does not approve any proposed modification to the
methodology for calculation of the skilled nursing quality assurance
fee pursuant to Article 7.6 (commencing with Section 1324.20) of
Chapter 2 of Division 2 of the Health and Safety Code.
(C) To ensure that the state does not incur any additional General
Fund expenses for reimbursement to pediatric subacute care units for
dates of service on and after June 1, 2011.
(D) If the difference in the projected skilled nursing quality
assurance fee collections for the 2011-12 rate year, pursuant to
Article 7.6 (commencing with Section 1324.20) of Chapter 2 of
Division 2 of the Health and Safety Code, would result in any
additional General Fund expense to pay for the 2011-12 rate year
reimbursement rate.
(b) The reductions described in this section shall apply only to
payments for services when the General Fund share of the payment is
paid with funds directly appropriated to the department in the annual
Budget Act and shall not apply to payments for services paid with
funds appropriated to other departments or agencies.
(c) 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 and administer this section by means of
provider bulletins, or similar instructions, without taking
regulatory action.
(d) The payment reductions and adjustments provided for in this
section shall be implemented only if the director determines that the
payments that result from the application of this section will
comply with applicable federal Medicaid requirements and that federal
financial participation will be available.
(1) In determining whether federal financial participation is
available, the director shall determine whether the payments comply
with applicable federal Medicaid requirements, including those set
forth in Section 1396a(a)(30)(A) of Title 42 of the United States
Code.
(2) To the extent that the director determines that the payments
do not comply with the federal Medicaid requirements or that federal
financial participation is not available with respect to any payment
that is reduced pursuant to this section,
the director retains the discretion not to implement
the particular payment reduction or adjustment and may adjust the
payment as necessary to comply with federal Medicaid requirements.
(e) The department shall seek any necessary federal approvals for
the implementation of this section.
(f) This section shall not be implemented until federal approval
is obtained. When federal approval is obtained, the payments
resulting from the application of this section shall be implemented
retroactively to June 1, 2011, or on any other date or dates as may
be applicable.
SEC. 215. Section 14132.957 of the Welfare and Institutions Code
is amended to read:
14132.957. (a) (1) It is the intent of the Legislature to adopt
measures that will assist individuals who are living in the community
to remain within their home environment and avoid unnecessary
emergency room usage and hospital and nursing facility admissions due
to those individuals' not taking medications as prescribed.
(2) The Legislature finds and declares that certain seniors,
persons with disabilities, and other Medi-Cal recipients are at high
risk of not taking medications as prescribed and that measures to
assist them in taking prescribed medications will advance the state's
objectives to save lives, reduce health care costs, and assist
individuals to continue living independently in their homes.
(3) The Legislature has determined that the achievement of these
objectives will result in a net annual savings of one hundred forty
million dollars ($140,000,000) to the General Fund, after fully
offsetting costs for implementing and administrating the pilot
project.
(4) The Legislature therefore authorizes the establishment of the
Home and Community Based Medication Dispensing Machine Pilot Project
for utilization of an automated medication dispensing machine with
associated monitoring and telephonic reporting services to assist
Medi-Cal recipients with taking prescribed medications. All Medi-Cal
recipients who participate in the pilot project shall do so
voluntarily and shall be selected using criteria that demonstrates
their susceptibility to not taking their medications as prescribed
without monitoring or assistance.
(b) On and after the effective date of this section, the
department, in consultation with the State Department of Social
Services, shall begin implementation of the pilot project described
in subdivision (a) and shall do all of the following:
(1) Establish criteria to identify at-risk Medi-Cal recipients who
demonstrate susceptibility to not taking medications as prescribed.
These criteria shall be based on Medi-Cal, In-Home Supportive
Services program, and Medicare data and may include factors such as
age, disability, multiple prescribed medications, and experience with
or a high risk of experience with, numerous emergency department
visits or hospital or nursing facility admissions within a specified
time period as a result of not taking medications as prescribed.
(2) Identify an at-risk portion of Medi-Cal recipients of a
sufficient number to achieve the intended savings. Recipients
identified for this pilot project shall be limited to individuals who
obtain Medi-Cal benefits through fee for service, who are not
required to be enrolled on a mandatory basis in a Medi-Cal managed
care health plan, and who are able to manage the medication
dispensing machine independently or with the assistance of a family
member or care provider and have a home environment capable of
supporting the machine and associated telephonic reporting service
that includes an active telephone line.
(3) To the extent necessary, the department shall do all of the
following:
(A) Select and procure the automated medication dispensing
machines, including costs for installation in a participant's home,
as well as monitoring and repair services associated with operation
of the machines.
(B) Provide an in-home, automated medication dispensing machine
with telephonic reporting service for monitoring and assisting with
taking medication, including installation, maintenance, alerts,
training, and supplies at no cost to the recipient.
(4) Seek federal funding from the federal Centers for Medicare and
Medicaid Services Innovation Center for the cost of the pilot
project and other expenses, and to receive Medicare shared savings
realized from the pilot project.
(5) Assess the potential for federal financial participation for
these machines and any other expenses associated with this pilot
project as well as receipt of federal reimbursement for savings
accrued to the Medicare program. If the department determines that
federal financial participation is available under Title XI or XIX of
the federal Social Security Act, the department shall seek a waiver
or other federal approval, or submit a Medicaid State Plan amendment
to implement the pilot project.
(c) (1) The department shall provide quarterly reports, beginning
October 1, 2011, to the Department of Finance and the appropriate
fiscal and policy committees of the Legislature, describing the
number of recipients participating in the pilot project, the number
of medication dispensing machines in use, costs of implementing and
administering the pilot project, and any available data regarding
medical and pharmacy utilization.
(2) The department shall also conduct an evaluation of the pilot
project, including effects on service utilization, spending,
outcomes, projected savings to the Medi-Cal program and the federal
Medicare program, recommendations for improving the pilot project and
maximizing savings to the state, and identification of other means
of General Fund savings related to improving quality and
cost-effectiveness of care, and shall report the evaluation to the
appropriate policy and fiscal committees of the Legislature by
December 31, 2013.
(3) (A) If the Department of Finance determines that the quarterly
reports do not demonstrate the ability of the pilot project to
achieve at least the estimated net annual savings of one hundred
forty million dollars ($140,000,000) to the General Fund, after fully
offsetting implementation and administrative costs, the Director of
Finance shall notify the Chairperson of the Senate Committee on
Budget and Fiscal Review and the Chairperson of the Assembly
Committee on Budget of this determination, in writing, by April 10,
2012. Within 10 days following this notification, the Department of
Finance shall convene a meeting with legislative staff to review the
estimates related to its determination.
(B) Subsequent to the meeting pursuant to subparagraph (A), the
Department of Finance shall request that the Legislature enact
legislation on or before July 1, 2012, to either modify the pilot
project, if necessary, or provide alternative options to achieve the
balance of the net annual savings of one hundred forty million
dollars ($140,000,000) to the General Fund, after fully offsetting
implementation and administrative costs, or both.
(d) (1) Notwithstanding any other provision of law, if the
Department of Finance determines after July 1, 2012, that the actions
pursuant to subdivisions (b) and (c) will fail to achieve the net
annual savings of one hundred forty million dollars ($140,000,000) to
the General Fund, after fully offsetting implementation and
administrative costs, the Department of Finance shall notify the
State Department of Social Services and the department, and the State
Department of Social Services, in consultation with the department,
shall implement a reduction in authorized hours for in-home
supportive services recipients beginning October 1, 2012, in
accordance with Section 12301.03, to achieve a net annual savings of
one hundred forty million dollars ($140,000,000) to the General Fund,
after fully offsetting implementation and administrative costs of
the pilot project and after taking into account any savings achieved
pursuant to subdivisions (b) and (c).
(2) No earlier than 30 days after submission of the evaluation
required by paragraph (2) of subdivision (c), the Department of
Finance may adjust the amount of the reduction to meet net annual
savings of one hundred forty million dollars ($140,000,000) to the
General Fund after fully offsetting implementation and administrative
costs and after taking into account any savings achieved pursuant to
subdivisions (b) and (c). The calculations shall be based on updated
data contained in the evaluation.
(e) For the purpose of implementing this section, the director may
enter into exclusive or nonexclusive contracts on a bid or
negotiated basis, or utilize existing provider enrollment or payment
mechanisms. Any contract, contract amendment, or change order entered
into for the purpose of implementing this section shall be exempt
from Chapter 5.6 (commencing with Section 11545) of Part 1 of
Division 3 of Title 2 of the Government Code, the Public Contract
Code, and any associated policies, procedures, or regulations under
these provisions, and shall be exempt from review or approval by any
division of the Department of General Services and the California
Technology Agency.
(f) 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 this section through all-county letters,
provider bulletins, or similar instructions, without taking
regulatory action.
(g) (1) Notwithstanding paragraph (2) of subdivision (c), the
department may terminate operation of the pilot project if and to the
extent that any of the following events occurs:
(A) Funding to implement and administer the pilot project is not
appropriated in the 2012-13 fiscal year or annually thereafter.
(B) The Director of Finance notifies the Legislature that the
pilot project is not projected to achieve a net annual savings or
results in an overall increased cost.
(C) The pilot project conflicts with one or more provisions of
state or federal law necessary to implement the pilot project.
(D) The department is unable to obtain from the Medicare program
the data necessary to implement this pilot project, and the high-risk
Medi-Cal only population is insufficient to conduct the pilot
project.
(E) The department receives substantiated reports of adverse
clinical outcomes indicating that continuing the pilot project poses
unacceptable health risks to participants.
(2) Termination of the pilot project pursuant to paragraph (1)
does not provide the department or the State Department of Social
Services with authority to implement a reduction in authorized hours
pursuant to Section 12301.03. Any reduction in authorized hours
pursuant to Section 12301.03 shall comply with the requirements of
subdivision (d).
(3) The department shall notify the appropriate fiscal and policy
committees of the Legislature 30 days prior to terminating the pilot
project.
SEC. 216. Section 14165 of the Welfare and Institutions Code is
amended to read:
14165. (a) There is hereby created in the Governor's office the
California Medical Assistance Commission, for the purpose of
contracting with health care delivery systems for the provision of
health care services to recipients under the California Medical
Assistance program.
(b) Notwithstanding any other provision of law, the commission
created pursuant to subdivision (a) shall continue through June 30,
2012, after which, it shall be dissolved and the term of any
commissioner serving at that time shall end.
(1) Upon dissolution of the commission, all powers, duties, and
responsibilities of the commission shall be transferred to the
Director of Health Care Services. These powers, duties, and
responsibilities shall include, but are not limited to, those
exercised in the operation of the selective provider contracting
program pursuant to Article 2.6 (commencing with Section 14081).
(2) On or before July 1, 2012, the position of executive director
described in Section 14165.5 and all other staff positions serving
the commission shall be transferred to the State Department of Health
Care Services. The State Department of Health Care Services shall
consult with the commission, the Department of Finance, and the
Department of Personnel Administration to develop a staff transition
plan that will be included in the 2012-13 Governor's Budget. The
transition plan shall outline the transition of staff positions
serving the commission to the State Department of Health Care
Services.
(3) Upon a determination by the Director of Health Care Services
that a payment system based on diagnosis-related groups as described
in Section 14105.28 that is sufficient to replace the contract-based
payment system described in subdivision (a) has been developed and
implemented, the powers, duties, and responsibilities conferred on
the commission and transferred to the Director of Health Care
Services shall no longer be exercised.
(4) Protections afforded to the negotiations and contracts of the
commission by the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) shall be applicable to the negotiations and
contracts conducted or entered into pursuant to this section by the
State Department of Health Care Services.
(c) 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 provision of law, the State
Department of Health Care Services may implement and administer this
section by means of provider bulletins or other similar instructions,
without taking regulatory action. The authority to implement this
section as set forth in this subdivision shall include the authority
to give notice by provider bulletin or other similar instruction of a
determination made pursuant to paragraph (3) of subdivision (b) and
to modify or supersede existing regulations in Title 22 of the
California Code of Regulations that conflict with implementation of
this section.
SEC. 217. Section 14165.56 of the Welfare and Institutions Code is
amended to read:
14165.56. (a) The department shall establish, implement, and
maintain the Nondesignated Public Hospital Intergovernmental Transfer
Program to provide supplemental payments to nondesignated public
hospitals in a manner that maximizes federal financial participation
in the resulting supplemental payments. The department shall develop
and implement the program subject to receiving all federal approvals.
(b) Upon receiving federal approval, the department shall fully
implement this section beginning with the 2010-11 fiscal year. The
department shall perform all acts necessary to secure the maximum
level of federal financial participation for payments resulting from
the Nondesignated Public Hospital IGT Pool. The department shall make
every effort to implement this section for the 2010-11 fiscal year
so that all allocations will be determined, all intergovernmental
transfers will be received by the state, and federal financial
participation will be drawn in order for the department to make
payments due to each nondesignated public hospital prior to July 1,
2011.
(c) By August 1 of each fiscal year, beginning with the 2011-12
fiscal year and every year thereafter, the department shall provide
an estimate of the Non-State Government Owned Hospital (Inpatient)
UPL associated with the inpatient fee-for-service payments to
nondesignated public hospitals in order to establish both the UPL and
the available room under the UPL. The department may make
supplemental inpatient fee-for-service payments to nondesignated
public hospitals using some or all of the shortfall level below the
UPL. The amount identified by the department as available for those
payments shall be multiplied by 100 percent minus the annual federal
medical assistance percentage, as defined in Part 433 of Title 42 of
the Code of Federal Regulations and shall be the amount available in
the Nondesignated Public Hospital Intergovernmental Transfer Pool.
The payments made pursuant to this article may be funded using public
entity intergovernmental transfers and associated federal financial
participation.
(d) Once the department has estimated the UPL and the potential
supplemental payment relating to nondesignated public hospitals, the
department shall use the IGT allocation formula described in Section
14165.57 to determine the estimated IGT allocation for each
nondesignated public hospital from the Nondesignated Public Hospital
IGT Pool using the most recent data publicly available from the
federal Centers for Medicare and Medicaid Services (CMS), and the
federal Health Resources and Services Administration (HRSA).
SEC. 218. Section 14165.57 of the Welfare and Institutions Code is
amended to read:
14165.57. (a) The IGT allocation formula shall use data from each
nondesignated public hospital's latest Hospital Annual Financial
Disclosure Report on file with OSHPD as of March 1 of each prior
fiscal year and shall be as follows:
(1) The Nondesignated Public Hospital IGT Pool shall be allocated
into two allocations: the Contract Hospitals allocation and the
Non-Contract Hospitals allocation. This allocation shall be made to
each group, respectively, based upon the ratio of Medi-Cal
fee-for-service acute patient days listed in the latest OSHPD Annual
Financial Disclosure Report for Contract Hospitals and Non-Contract
Hospitals to the total Medi-Cal fee-for-service acute patient days
provided by all Contract Hospitals and Non-Contract Hospitals.
Medi-Cal fee-for-service acute patient days for converted hospitals
and new hospitals will not be included in this allocation.
(2) The department shall determine if a nondesignated public
hospital provides services in either a federally recognized Health
Professional Shortage Area or to a federally recognized Medically
Underserved Area or Population. The department shall also determine
if the nondesignated public hospital is federally recognized as
either a Critical Access Hospital or a Sole Community Provider. If
any of these conditions apply, the hospital shall score one point.
Otherwise, the hospital shall score zero points.
(3) The department shall calculate for each nondesignated public
hospital the charity care charges as a percentage of the hospital's
total gross revenue. If the charity care charges are greater than or
equal to 3 percent of the total gross revenue, the hospital shall
score three points. If the charity care charges are less than 3
percent, but more than or equal to 1 percent, of the total gross
revenue, the hospital shall score two points. If the charity care
charges are less than 1 percent, but greater than 0 percent, of the
total gross revenue, the hospital shall score one point. If charity
care charges are less than or equal to 0 percent, of the total gross
revenue, the hospital shall score zero points.
(4) The department shall calculate for each nondesignated public
hospital the bad debt charges as a percentage of the hospital's other
payer's gross revenue, as disclosed in the Hospital Annual Financial
Disclosure Report. If the bad debt charges are greater than or equal
to 40 percent of the other gross revenue, the hospital shall score
two points. If the bad debt charges are less than 40 percent, but
greater than 0 percent, of the other gross revenue, the hospital
shall score one point. If the bad debt charges are less than or equal
to 0 percent, of the other gross revenue, the hospital shall score
zero points.
(5) The department shall calculate for each nondesignated public
hospital the Medi-Cal charges as a percentage of the hospital's total
gross revenue. If the Medi-Cal charges are greater than or equal to
25 percent of the total gross revenue, the hospital shall score three
points. If the Medi-Cal charges are less than 25 percent, but more
than or equal to 12 percent, of the total gross revenue, the hospital
shall score two points. If the Medi-Cal charges are less than 12
percent, but greater than 0 percent, of the total gross revenue, the
hospital shall score one point. If the Medi-Cal charges are less than
or equal to 0 percent of total gross revenue, the hospital shall
score zero points.
(6) The sum of each nondesignated public hospital's points
accumulated pursuant to paragraphs (2) to (5), inclusive, shall
constitute the hospital's IGT Formula Score. The IGT Formula Score
for a new hospital or a converted hospital shall be equal to zero.
(7) The Contract Hospital allocation shall be allocated among
Contract Hospitals and the Non-Contract Hospital allocation shall be
allocated among Non-Contract Hospitals to determine preliminary
allocations in accordance with the following:
(A) Each Contract Hospital that has an IGT Formula Score of
between seven and nine, inclusive, shall be allocated three times the
amount of the Contract Hospital allocation that is allocated to each
Contract Hospital that has a score of one to three, inclusive.
(B) Each Contract Hospital that has an IGT Formula Score of
between four and six, inclusive, shall be allocated two times the
amount of the Contract Hospital allocation that is allocated to each
Contract Hospital that has an IGT Formula Score of one to three,
inclusive.
(C) Each Non-Contract Hospital that has an IGT Formula Score of
between seven and nine, inclusive, shall be allocated three times the
amount of the Non-Contract Hospital allocation that is allocated to
each Non-Contract Hospital that has an IGT Formula Score of one to
three, inclusive.
(D) Each Non-Contract Hospital that has an IGT Formula Score of
between four and six, inclusive, shall be allocated two times the
amount of the Non-Contract Hospital allocation that is allocated to
each Non-Contract Hospital that has an IGT Formula Score of one to
three, inclusive.
(E) No amount shall be allocated to a nondesignated public
hospital with an IGT Formula Score of zero points.
(8) The sum of the preliminary allocation determined under
paragraph (7) for all hospitals within each IGT Formula Group shall
be reallocated among the hospitals within each IGT Formula Group
based on the ratio of each hospital's staffed acute beds listed in
the latest OSHPD Annual Financial Disclosure Report, to the total
staffed acute beds of all hospitals in the IGT Formula Group.
(b) By no later than September 1 of the 2011-12 fiscal year or as
soon thereafter as federal approvals are obtained, and by no later
than September 1 of each fiscal year thereafter, the department shall
provide each nondesignated public hospital with an estimated IGT
allocation notice that includes the calculations and data sources
used to calculate the estimated IGT allocation, as described in this
section.
(c) Each nondesignated public hospital shall have 30 days from
receipt of the estimated IGT allocation notice from the department to
review the department's hospital-specific estimated IGT allocation
and to notify the department of any data or calculation errors. If
the hospital does not respond within 30 days, the information will be
deemed accurate. No later than November 30 of each fiscal year, the
department shall incorporate all appropriate corrections or data
updates for all of the nondesignated public hospitals and then
recalculate the IGT allocations using the IGT allocation formula to
obtain a final IGT allocation for each nondesignated public hospital.
(d) Beginning with the 2011-12 fiscal year, on or before December
1 or as soon thereafter as federal approvals are obtained, and by no
later than December 1 of each fiscal year thereafter, the department
shall send each nondesignated public hospital a notice of eligibility
indicating the final IGT allocation for the nondesignated public
hospital. The nondesignated public hospital shall have 20 business
days after receipt of the notice to either accept or decline the
offer. If a nondesignated public hospital accepts the offer, the
nondesignated public hospital may enter into an IGT agreement with
the department. If the department receives no response, the offer
will be considered declined.
(e) Before the later of December 31 of the 2011-12 fiscal year,
the date upon which all federal approvals are obtained, and by no
later than January 15 of each state fiscal year thereafter, the
department shall document all nondesignated public hospital IGT
allocation offers that are either accepted or declined. After the
department has recorded all IGT allocations as being either accepted
or declined, any remaining unsubscribed IGT allocations will be
allocated to all the other participating nondesignated public
hospitals on a pro rata basis based on the final IGT allocations
calculated pursuant to subdivision (b) during January of each fiscal
year. The department shall inform each nondesignated public hospital
participating in the program of the revised final IGT allocation
assigned to that hospital by January 30. At that time, the department
shall give each nondesignated public hospital participant five days
to accept or decline participation in the program.
(f) The state may accept all public funds in the amount of the
final IGT allocation from a transferring entity pursuant to this
section, provided that any funds from a transferring entity must be
permitted by law to be used for these purposes. The transferring
entity shall certify to the department that the funds it proposes to
transfer satisfy the requirements of this subdivision, and are in
compliance with all federal rules and regulations.
(g) The state shall deposit the funds received from the
transferring entities pursuant to this article into the Medi-Cal
Inpatient Payment Adjustment Fund established in accordance with
Section 14163.
(h) Nondesignated public hospitals participating in the program
shall inform the public entity funding the IGT to transfer the
appropriate IGT allocation, by February 5 of each fiscal year, to the
state according to the time schedule specified in the written
agreement specified in subdivision (d). By March 31 of each fiscal
year, the department shall make the supplemental payment to the
nondesignated public hospital including the associated federal
financial participation. The deadlines set forth in this subdivision
shall be implemented beginning with the 2011-12 fiscal year or as
soon thereafter as federal approvals are obtained.
(i) The department shall establish written policies and procedures
for transferring entity intergovernmental transfers and payments
made to nondesignated public hospitals pursuant to this section. The
department shall effectively communicate these policies and
procedures to nondesignated public hospitals and the public entities
that will be funding the IGTs in order to facilitate a smooth
process using local public entity
moneys for purposes of drawing down federal financial participation
for supplemental payments to nondesignated public hospitals.
(j) The state shall retain 9 percent of each IGT amount to
reimburse the department, or transfer to the General Fund, for the
administrative costs of operating the Nondesignated Public Hospital
Intergovernmental Transfer Program and for the benefit of Medi-Cal
children's health care programs.
(k) Participation in the intergovernmental transfers under this
article is voluntary on the part of the transferring entities for the
purpose of all applicable federal laws.
(l) (1) The department shall report annually to the Legislature on
the Nondesignated Public Hospital Intergovernmental Transfer
Program. This report shall include, but not be limited to, the amount
of funds available within the UPL, the total amount of IGT
allocation funds transferred by public entities, the total amount of
federal financial participation received by nondesignated public
hospitals, and information on the effectiveness of the IGT allocation
formula to distribute available federal matching funds among
participating nondesignated public hospitals.
(2) The requirement for submitting a report to the Legislature on
the Nondesignated Public Hospital Intergovernmental Transfer Program
imposed under paragraph (1) is inoperative four years after the date
the first report is due.
(3) A report to be submitted pursuant to paragraph (1) shall be
submitted in compliance with Section 9795 of the Government Code.
(m) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department shall implement this article by means of policy letters or
similar instructions, without taking further regulatory action.
SEC. 219. Section 14166.12 of the Welfare and Institutions Code is
amended to read:
14166.12. (a) The California Medical Assistance Commission shall
negotiate payment amounts, in accordance with the selective provider
contracting program established pursuant to Article 2.6 (commencing
with Section 14081), from the Private Hospital Supplemental Fund
established pursuant to subdivision (b) for distribution to private
hospitals that satisfy the criteria of Section 14085.6, 14085.7,
14085.8, or 14085.9.
(b) The Private Hospital Supplemental Fund is hereby established
in the State Treasury. For purposes of this section, "fund" means the
Private Hospital Supplemental Fund.
(c) Notwithstanding Section 13340 of the Government Code, the fund
shall be continuously appropriated to the department for the
purposes specified in this section.
(d) Except as otherwise limited by this section, the fund shall
consist of all of the following:
(1) One hundred eighteen million four hundred thousand dollars
($118,400,000), which shall be transferred annually from General Fund
amounts appropriated in the annual Budget Act for the Medi-Cal
program, except as follows:
(A) For the 2008-09 fiscal year, this amount shall be reduced by
thirteen million six hundred thousand dollars ($13,600,000) and by an
amount equal to one-half of the difference between eighteen million
three hundred thousand dollars ($18,300,000) and the amount of any
reduction in the additional payments for distressed hospitals
calculated pursuant to subparagraph (B) of paragraph (3) of
subdivision (b) of Section 14166.20.
(B) For the 2012-13 fiscal year, this amount shall be reduced by
seventeen million five hundred thousand dollars ($17,500,000).
(C) For the 2013-14 fiscal year, this amount shall be reduced by
eight million seven hundred fifty thousand dollars ($8,750,000).
(2) Any additional moneys appropriated to the fund.
(3) All stabilization funding transferred to the fund pursuant to
paragraph (2) of subdivision (a) of Section 14166.14.
(4) Any moneys that any county, other political subdivision of the
state, or other governmental entity in the state may elect to
transfer to the department for deposit into the fund, as permitted
under Section 433.51 of Title 42 of the Code of Federal Regulations
or any other applicable federal Medicaid laws.
(5) All private moneys donated by private individuals or entities
to the department for deposit in the fund as permitted under
applicable federal Medicaid laws.
(6) Any interest that accrues on amounts in the fund.
(e) Any public agency transferring moneys to the fund may, for
that purpose, utilize any revenues, grants, or allocations received
from the state for health care programs or purposes, unless otherwise
prohibited by law. A public agency may also utilize its general
funds or any other public moneys or revenues for purposes of
transfers to the fund, unless otherwise prohibited by law.
(f) The department may accept or not accept moneys offered to the
department for deposit in the fund. If the department accepts moneys
pursuant to this section, the department shall obtain federal
financial participation to the full extent permitted by law. With
respect to funds transferred or donated from private individuals or
entities, the department shall accept only those funds that are
certified by the transferring or donating entity that qualify for
federal financial participation under the terms of the Medicaid
Voluntary Contribution and Provider-Specific Tax Amendments of 1991
(P.L. 102-234) or Section 433.51 of Title 42 of the Code of Federal
Regulations, as applicable. The department may return any funds
transferred or donated in error.
(g) Moneys in the fund shall be used as the source for the
nonfederal share of payments to hospitals under this section.
(h) Any funds remaining in the fund at the end of a fiscal year
shall be carried forward for use in the following fiscal year.
(i) Moneys shall be allocated from the fund by the department and
shall be applied to obtain federal financial participation in
accordance with customary Medi-Cal accounting procedures for purposes
of payments under this section. Distributions from the fund shall be
supplemental to any other Medi-Cal reimbursement received by the
hospitals, including amounts that hospitals receive under the
selective provider contracting program (Article 2.6 (commencing with
Section 14081)), and shall not affect provider rates paid under the
selective provider contracting program.
(j) Each private hospital that was a private hospital during the
2002-03 fiscal year, received payments for the 2002-03 fiscal year
from any of the prior supplemental funds, and, during the project
year, satisfies the criteria in Section 14085.6, 14085.7, 14085.8, or
14085.9 to be eligible to negotiate for distributions under any of
those sections, shall receive no less from the Private Hospital
Supplemental Fund for the project year than 100 percent of the amount
the hospital received from the prior supplemental funds for the
2002-03 fiscal year. Each private hospital described in this
subdivision shall be eligible for additional payments from the fund
pursuant to subdivision (k).
(k) All amounts that are in the fund for a project year in excess
of the amount necessary to make the payments under subdivision (j)
shall be available for negotiation by the California Medical
Assistance Commission, along with corresponding federal financial
participation, for supplemental payments to private hospitals, which
for the project year satisfy the criteria under Section 14085.6,
14085.7, 14085.8, or 14085.9 to be eligible to negotiate for
distributions under any of those sections, and paid for services
rendered during the project year pursuant to the selective provider
contracting program established under Article 2.6 (commencing with
Section 14081).
(l) The amount of any stabilization funding transferred to the
fund, or the amount of intergovernmental transfers deposited to the
fund pursuant to subdivision (o), together with the associated
federal reimbursement, with respect to a particular project year,
may, in the discretion of the California Medical Assistance
Commission, be paid for services furnished in the same project year
regardless of when the stabilization funds or intergovernmental
transfer funds, and the associated federal reimbursement, become
available, provided the payment is consistent with other applicable
federal or state law requirements and does not result in a hospital
exceeding any applicable reimbursement limitations.
(m) The department shall pay amounts due to a private hospital
from the fund for a project year, with the exception of stabilization
funding, in up to four installment payments, unless otherwise
provided in the hospital's contract negotiated with the California
Medical Assistance Commission, except that hospitals that are not
described in subdivision (j) shall not receive the first installment
payment. The first payment shall be made as soon as practicable after
the issuance of the tentative disproportionate share hospital list
for the project year, and in no event later than January 1 of the
project year. The second and subsequent payments shall be made after
the issuance of the final disproportionate hospital list for the
project year, and shall be made only to hospitals that are on the
final disproportionate share hospital list for the project year. The
second payment shall be made by February 1 of the project year or as
soon as practicable after the issuance of the final disproportionate
share hospital list for the project year. The third payment, if
scheduled, shall be made by April 1 of the project year. The fourth
payment, if scheduled, shall be made by June 30 of the project year.
This subdivision does not apply to hospitals that are scheduled to
receive payments from the fund because they meet the criteria under
Section 14085.7 and do not meet the criteria under Section 14085.6,
14085.8, or 14085.9, which shall be paid in accordance with the
applicable contract or contract amendment negotiated by the
California Medical Assistance Commission.
(n) The department shall pay stabilization funding transferred to
the fund in amounts negotiated by the California Medical Assistance
Commission and shall pay the scheduled payments in accordance with
the applicable contract or contract amendment.
(o) Payments to private hospitals that are eligible to receive
payments pursuant to Section 14085.6, 14085.7, 14085.8, or 14085.9
may be made using funds transferred from governmental entities to the
state, at the option of the governmental entity. Any payments funded
by intergovernmental transfers shall remain with the private
hospital and shall not be transferred back to any unit of government.
An amount equal to 25 percent of the amount of any intergovernmental
transfer made in the project year that results in a supplemental
payment made for the same project year to a project year private DSH
hospital designated by the governmental entity that made the
intergovernmental transfer shall be deposited in the fund for
distribution as determined by the California Medical Assistance
Commission. An amount equal to 75 percent shall be deposited in the
fund and distributed to the private hospitals designated by the
governmental entity.
(p) A private hospital that receives payment pursuant to this
section for a particular project year shall not submit a notice for
the termination of its participation in the selective provider
contracting program established pursuant to Article 2.6 (commencing
with Section 14081) until the later of the following dates:
(1) On or after December 31 of the next project year.
(2) The date specified in the hospital's contract, if applicable.
(q) (1) For the 2007-08, 2008-09, and 2009-10 project years, the
County of Los Angeles shall make intergovernmental transfers to the
state to fund the nonfederal share of increased Medi-Cal payments to
those private hospitals that serve the South Los Angeles population
formerly served by Los Angeles County Martin Luther King, Jr.-Harbor
Hospital. The intergovernmental transfers required under this
subdivision shall be funded by county tax revenues and shall total
five million dollars ($5,000,000) per project year, except that, in
the event that the director determines that any amount is due to the
County of Los Angeles under the demonstration project for services
rendered during the portion of a project year during which Los
Angeles County Martin Luther King, Jr.-Harbor Hospital was
operational, the amount of intergovernmental transfers required under
this subdivision shall be reduced by a percentage determined by
reducing 100 percent by the percentage reduction in Los Angeles
County Martin Luther King, Jr.-Harbor Hospital's baseline, as
determined under subdivision (c) of Section 14166.5 for that project
year.
(2) Notwithstanding subdivision (o), an amount equal to 100
percent of the county's intergovernmental transfers under this
subdivision shall be deposited in the fund and, within 30 days after
receipt of the intergovernmental transfer, shall be distributed,
together with related federal financial participation, to the private
hospitals designated by the county in the amounts designated by the
county. The director shall disregard amounts received pursuant to
this subdivision in calculating the OBRA 1993 payment limitation, as
defined in paragraph (24) of subdivision (a) of Section 14105.98, for
purposes of determining the amount of disproportionate share
hospital replacement payments due a private hospital under Section
14166.11.
(r) (1) The reductions in supplemental payments under this section
that result from the reductions in the amounts transferred from the
General Fund to the Private Hospital Supplemental Fund for the
2012-13 and 2013-14 fiscal years under subparagraphs (B) and (C) of
paragraph (1) of subdivision (d) shall be allocated equally in the
aggregate between children's hospitals eligible for supplemental
payments under this section and other hospitals eligible for
supplemental payments under this section. When negotiating payment
amounts to a hospital under this section for the 2012-13 and 2013-14
fiscal years, the California Medical Assistance Commission, or its
successor agency, shall identify both a payment amount that would
have been made absent the funding reductions in subparagraphs (B) and
(C) of paragraph (1) of subdivision (d) and the payment amount that
will be made taking into account the funding reductions under
subparagraphs (B) and (C) of paragraph (1) of subdivision (d). For
purposes of this subdivision, "children's hospital" shall have the
meaning set forth in paragraph (13) of subdivision (a) of Section
14105.98.
(2) This subdivision shall not preclude the department from
including some or all of the reductions under this section within the
payments made under a new diagnosis-related group payment
methodology for the 2012-13 fiscal year or the 2013-14 fiscal year.
In the event the department includes some or all of the amounts,
including reductions, within the payments made under a new
diagnosis-related group payment methodology for the 2012-13 fiscal
year or the 2013-14 fiscal year, the department, in implementing the
reductions in paragraph (1) of subdivision (d), shall, to the extent
feasible, utilize the allocation specified in paragraph (1).
SEC. 220. Section 14166.20 of the Welfare and Institutions Code is
amended to read:
14166.20. (a) With respect to each project year through October
31, 2010, the total amount of stabilization funding shall be the sum
of the following:
(1) (A) Federal Medicaid funds available in the Health Care
Support Fund, established pursuant to Section 14166.21, reduced by
the amount necessary to meet the baseline funding amount, or the
adjusted baseline funding amount, as appropriate, for project years
after the 2005-06 project year for each designated public hospital,
project year private DSH hospitals in the aggregate, and
nondesignated public hospitals in the aggregate as determined in
Sections 14166.5, 14166.13, and 14166.18, respectively, taking into
account all other payments to each hospital under this article. This
amount shall be not less than zero.
(B) For purposes of subparagraph (A), federal Medicaid funds
available in the Health Care Support Fund shall not include health
care coverage initiative amounts identified under paragraph (2) of
subdivision (e) of Section 14166.9.
(C) The federal financial participation amount arising from the
certified public expenditures that has been paid to designated public
hospitals, or the governmental entities with which they are
affiliated, pursuant to subdivision (g) of Section 14166.221, shall
be disregarded for purposes of this section.
(2) The state general funds that were made available due to the
receipt of federal funding for previously state-funded programs
through the safety net care pool and any federal Medicaid hospital
reimbursements resulting from these expenditures, unless otherwise
recognized under paragraph (1), to the extent those funds are in
excess of the amount necessary to meet the baseline funding amount,
or the adjusted baseline funding amount, as appropriate, for project
years after the 2005-06 project year for each designated public
hospital, for project year private DSH hospitals in the aggregate,
and for nondesignated public hospitals in the aggregate, as
determined in Sections 14166.5, 14166.13, and 14166.18, respectively.
(3) To the extent not included in paragraph (1) or (2), the amount
of the increase in state General Fund expenditures for Medi-Cal
inpatient hospital services for the project year for project year
private DSH hospitals and nondesignated public hospitals, including
amounts expended in accordance with paragraph (1) of subdivision (c)
of Section 14166.23, that exceeds the expenditure amount for the same
purpose and the same hospitals necessary to provide the aggregate
baseline funding amounts applicable to the project determined
pursuant to Sections 14166.13 and 14166.18, and any direct grants to
designated public hospitals for services under the demonstration
project.
(4) To the extent not included in paragraph (2), federal Medicaid
funds received by the state as a result of the General Fund
expenditures described in paragraph (3).
(5) The federal Medicaid funds received by the state as a result
of federal financial participation with respect to Medi-Cal payments
for inpatient hospital services made to project year private DSH
hospitals and to nondesignated public hospitals for services rendered
during the project year, the state share of which was derived from
intergovernmental transfers or certified public expenditures of any
public entity that does not own or operate a public hospital.
(6) Federal safety net care pool funds claimed and received for
inpatient hospital services rendered under the health care coverage
initiative identified under paragraph (3) of subdivision (e) of
Section 14166.9.
(b) With respect to the 2005-06, 2006-07, and subsequent project
years through October 31, 2010, the stabilization funding determined
under subdivision (a) shall be allocated as follows:
(1) Eight million dollars ($8,000,000) shall be paid to San Mateo
Medical Center. All or a portion of this amount may be paid as
disproportionate share hospital payments in addition to the hospital'
s allocation that would otherwise be determined under Section
14166.6. The amount provided for in this paragraph shall be
disregarded in the application of the limitations described in
paragraph (3) of subdivision (a) of Section 14166.6, and in paragraph
(1) of subdivision (a) of Section 14166.7.
(2) (A) Ninety-six million two hundred twenty-eight thousand
dollars ($96,228,000) shall be allocated to designated public
hospitals to be paid in accordance with Section 14166.75.
(B) Forty-two million two hundred twenty-eight thousand dollars
($42,228,000) shall be allocated to private DSH hospitals to be paid
in accordance with Section 14166.14.
(C) Five hundred forty-four thousand dollars ($544,000) shall be
allocated to nondesignated public hospitals to be paid in accordance
with Section 14166.17.
(D) In the event that stabilization funding is less than one
hundred forty-seven million dollars ($147,000,000), the amounts
allocated to designated public hospitals, private DSH hospitals, and
nondesignated public hospitals under this paragraph shall be reduced
proportionately.
(3) (A) An amount equal to the lesser of 10 percent of the total
amount determined under subdivision (a) or twenty-three million five
hundred thousand dollars ($23,500,000), but at least fifteen million
three hundred thousand dollars ($15,300,000), shall be made available
for additional payments to distressed hospitals that participate in
the selective provider contracting program under Article 2.6
(commencing with Section 14081), including designated public
hospitals, in amounts to be determined by the California Medical
Assistance Commission. The additional payments to designated public
hospitals shall be negotiated by the California Medical Assistance
Commission, but shall be paid by the department in the form of a
direct grant rather than as Medi-Cal payments.
(B) Notwithstanding subparagraph (A) and solely for the 2006-07
fiscal year, if the amount that otherwise would be made available for
additional payments to distressed hospitals under subparagraph (A)
is equal to or greater than eighteen million three hundred thousand
dollars ($18,300,000), that amount shall be reduced by eighteen
million three hundred thousand dollars ($18,300,000) and the state's
obligation to make these payments shall be reduced by this amount. In
the event the amount that otherwise would be made available under
subparagraph (A) is less than eighteen million three hundred thousand
dollars ($18,300,000), but greater than or equal to the minimum
amount of fifteen million three hundred thousand dollars
($15,300,000), then the amount available under this paragraph shall
be zero and the state's obligation to make these payments shall be
zero.
(C) Notwithstanding subparagraph (A) and solely for the 2008-09
and 2009-10 fiscal years, the amount to be made available shall be
reduced by fifteen million three hundred thousand dollars
($15,300,000) in each of the two years. The funds generated from this
reduction shall be retained in the General Fund.
(4) An amount equal to 0.64 percent of the total amount determined
under subdivision (a), to nondesignated public hospitals to be paid
in accordance with Section 14166.19.
(5) The amount remaining after subtracting the amount determined
in paragraphs (1) and (2), subparagraph (A) of paragraph (3), and
paragraph (4), without taking into account subparagraphs (B) and (C)
of paragraph (3), shall be allocated as follows:
(A) Sixty percent to designated public hospitals to be paid in
accordance with Section 14166.75.
(B) Forty percent to project year private DSH hospitals to be paid
in accordance with Section 14166.14.
(c) By April 1 of the year following the project year for which
the payment is made, and after taking into account final amounts
otherwise paid or payable to hospitals under this article, the
director shall calculate in accordance with subdivision (a), allocate
in accordance with subdivision (b), and pay to hospitals in
accordance with Sections 14166.75, 14166.14, and 14166.19, as
applicable, the stabilization funding.
(d) For purposes of determining amounts paid or payable to
hospitals under subdivision (c), the department shall apply the
following:
(1) In determining amounts paid or payable to designated public
hospitals that are based on allowable costs incurred by the hospital,
or the governmental entity with which it is affiliated, the
following shall apply:
(A) If the final payment amount is based on the hospital's
Medicare cost report, the department shall rely on the cost report
filed with the Medicare fiscal intermediary for the project year for
which the calculation is made, reduced by a percentage that
represents the average percentage change from total reported costs to
final costs for the three most recent cost reporting periods for
which final determinations have been made, taking into account all
administrative and judicial appeals. Protested amounts shall not be
considered in determining the average percentage change unless the
same or similar costs are included in the project year cost report.
(B) If the final payment amount is based on costs not included in
subparagraph (A), the reported costs as of the date the determination
is made under subdivision (c), shall be reduced by 10 percent.
(C) In addition to adjustments required in subparagraphs (A) and
(B), the department shall adjust amounts paid or payable to
designated public hospitals by any applicable deferrals or
disallowances identified by the federal Centers for Medicare and
Medicaid Services as of the date the determination is made under
subdivision (c) not otherwise reflected in subparagraphs (A) and (B).
(2) Amounts paid or payable to project year private DSH hospitals
and nondesignated public hospitals shall be determined by the most
recently available Medi-Cal paid claims data increased by a
percentage to reflect an estimate of amounts remaining unpaid.
(e) The department shall consult with hospital representatives
regarding the appropriate calculation of stabilization funding before
stabilization funds are paid to hospitals. The calculation may be
comprised of multiple steps involving interim computations and
assumptions as may be necessary to determine the total amount of
stabilization funding under subdivision (a) and the allocations under
subdivision (b). No later than 30 days after this consultation, the
department shall establish a final determination of stabilization
funding that shall not be modified for any reason other than
mathematical errors or mathematical omissions on the part of the
department.
(f) The department shall distribute 75 percent of the estimated
stabilization funding on an interim basis throughout the project
year.
(g) The allocation and payment of stabilization funding shall not
reduce the amount otherwise paid or payable to a hospital under this
article or any other provision of law, unless the reduction is
required by the demonstration project's Special Terms and Conditions
or by federal law.
(h) It is the intent of the Legislature that the amendments made
to Section 14166.12 and to this section by the act that added this
subdivision in the 2007-08 Regular Session shall not be construed to
amend or otherwise alter the ongoing structure of the department's
Medicaid Demonstration Project and Waiver approved by the federal
Centers for Medicare and Medicaid Services to begin on September
1, 2005.
(i) The provisions of this section shall only apply with respect
to the demonstration project term, and shall not apply with respect
to the successor demonstration project term.
SEC. 221. Section 14168.1 of the Welfare and Institutions Code is
amended to read:
14168.1. For the purposes of this article, the following
definitions shall apply:
(a) "Acute psychiatric days" means the total number of Short-Doyle
administrative days, Short-Doyle acute care days, acute psychiatric
administrative days, and acute psychiatric acute days identified in
the Final Medi-Cal Utilization Statistics for the 2008-09 state
fiscal year as calculated by the department on September 15, 2008.
(b) "Converted hospital" means a private hospital that becomes a
designated public hospital or a nondesignated public hospital on or
after January 1, 2011, a nondesignated public hospital that becomes a
private hospital or a designated public hospital on or after January
1, 2011, or a designated public hospital that becomes a private
hospital or a nondesignated public hospital on or after January 1,
2011.
(c) "Days data source" means the following:
(1) For a hospital that did not submit an Annual Financial
Disclosure Report to the Office of Statewide Health Planning and
Development for a fiscal year ending during 2007, but submitted that
report for a fiscal period ending in 2008 that includes at least 10
months of 2007, the Annual Financial Disclosure Report submitted by
the hospital to the Office of Statewide Health Planning and
Development for the fiscal period in 2008 that includes at least 10
months of 2007.
(2) For a hospital owned by Kaiser Foundation Hospitals that
submitted corrections to reported patient days to the Office of
Statewide Health Planning and Development for its fiscal year ending
in 2007 before July 31, 2009, the corrected data.
(3) For all other hospitals, the hospital's Annual Financial
Disclosure Report in the Office of Statewide Health Planning and
Development files as of October 31, 2008, for its fiscal year ending
during 2007.
(d) "Designated public hospital" shall have the meaning given in
subdivision (d) of Section 14166.1 as of January 1, 2011.
(e) "General acute care days" means the total number of Medi-Cal
general acute care days paid by the department to a hospital in the
2008 calendar year, as reflected in the state paid claims files on
July 10, 2009.
(f) "High acuity days" means Medi-Cal coronary care unit days,
pediatric intensive care unit days, intensive care unit days,
neonatal intensive care unit days, and burn unit days paid by the
department during the 2008 calendar year, as reflected in the state
paid claims files on July 10, 2009.
(g) "Hospital inpatient services" means all services covered under
Medi-Cal and furnished by hospitals to patients who are admitted as
hospital inpatients and reimbursed on a fee-for-service basis by the
department directly or through its fiscal intermediary. Hospital
inpatient services include outpatient services furnished by a
hospital to a patient who is admitted to that hospital within 24
hours of the provision of the outpatient services that are related to
the condition for which the patient is admitted. Hospital inpatient
services do not include services for which a managed health care plan
is financially responsible.
(h) "Hospital outpatient services" means all services covered
under Medi-Cal furnished by hospitals to patients who are registered
as hospital outpatients and reimbursed by the department on a
fee-for-service basis directly or through its fiscal intermediary.
Hospital outpatient services do not include services for which a
managed health care plan is financially responsible, or services
rendered by a hospital-based federally qualified health center for
which reimbursement is received pursuant to Section 14132.100.
(i) "Individual hospital acute psychiatric supplemental payment"
means the total amount of acute psychiatric hospital supplemental
payments to a subject hospital for a quarter for which the
supplemental payments are made. The "individual hospital acute
psychiatric supplemental payment" shall be calculated for subject
hospitals by multiplying the number of acute psychiatric days for the
individual hospital for which a mental health plan was financially
responsible by four hundred eighty-five dollars ($485) and dividing
the result by four.
(j) (1) "Managed health care plan" means a health care delivery
system that manages the provision of health care and receives prepaid
capitated payments from the state in return for providing services
to Medi-Cal beneficiaries.
(2) (A) Managed health care plans include county organized health
systems and entities contracting with the department to provide
services pursuant to two-plan models and geographic managed care.
Entities providing these services contract with the department
pursuant to any of the following:
(i) Article 2.7 (commencing with Section 14087.3).
(ii) Article 2.8 (commencing with Section 14087.5).
(iii) Article 2.81 (commencing with Section 14087.96).
(iv) Article 2.91 (commencing with Section 14089).
(B) Managed health care plans do not include any of the following:
(i) Mental health plans contracting to provide mental health care
for Medi-Cal beneficiaries pursuant to Part 2.5 (commencing with
Section 5775) of Division 5.
(ii) Health plans not covering inpatient services such as primary
care case management plans operating pursuant to Section 14088.85.
(iii) Program of All-Inclusive Care for the Elderly organizations
operating pursuant to Chapter 8.75 (commencing with Section 14591).
(k) "Medi-Cal managed care days" means the total number of general
acute care days, including well baby days, listed for the county
organized health system and prepaid health plans identified in the
Final Medi-Cal Utilization Statistics for the 2008-09 fiscal year, as
calculated by the department on September 15, 2008, except that the
general acute care days, including well baby days, for the Santa
Barbara Health Care Initiative shall be derived from the Final
Medi-Cal Utilization Statistics for the 2007-08 fiscal year.
(l) "Medicaid inpatient utilization rate" means Medicaid inpatient
utilization rate as defined in Section 1396r-4 of Title 42 of the
United States Code and as set forth in the final disproportionate
share hospital eligibility list for the 2008-09 fiscal year released
by the department on October 22, 2008.
(m) "Mental health plan" means a mental health plan that contracts
with the State Department of Mental Health to furnish or arrange for
the provision of mental health services to Medi-Cal beneficiaries
pursuant to Part 2.5 (commencing with Section 5775) of Division 5.
(n) "New hospital" means a hospital operation, business, or
facility functioning under current or prior ownership as a private
hospital that does not have a days data source or a hospital that has
a days data source in whole, or in part, from a previous operator
where there is an outstanding monetary liability owed to the state in
connection with the Medi-Cal program and the new operator did not
assume liability for the outstanding monetary obligation.
(o) "New noncontract hospital" means a private hospital that was a
contract hospital on March 1, 2011, and elects to become a
noncontract hospital at any time between March 1, 2011, and the end
of the program period.
(p) "Nondesignated public hospital" means either of the following:
(1) A public hospital that is licensed under subdivision (a) of
Section 1250 of the Health and Safety Code, is not designated as a
specialty hospital in the hospital's annual financial disclosure
report for the hospital's latest fiscal year ending in 2007, and
satisfies the definition in paragraph (25) of subdivision (a) of
Section 14105.98, excluding designated public hospitals.
(2) A tax-exempt nonprofit hospital that is licensed under
subdivision (a) of Section 1250 of the Health and Safety Code, is not
designated as a specialty hospital in the hospital's annual
financial disclosure report for the hospital's latest fiscal year
ending in 2007, is operating a hospital owned by a local health care
district, and is affiliated with the health care district hospital
owner by means of the district's status as the nonprofit corporation'
s sole corporate member.
(q) "Outpatient base amount" means the total amount of payments
for hospital outpatient services made to a hospital in the 2007
calendar year, as reflected in the state paid claims files on January
26, 2008.
(r) "Private hospital" means a hospital that meets all of the
following conditions:
(1) Is licensed pursuant to subdivision (a) of Section 1250 of the
Health and Safety Code.
(2) Is in the Charitable Research Hospital peer group, as set
forth in the 1991 Hospital Peer Grouping Report published by the
department, or is not designated as a specialty hospital in the
hospital's Office of Statewide Health Planning and Development Annual
Financial Disclosure Report for the hospital's latest fiscal year
ending in 2007.
(3) Does not satisfy the Medicare criteria to be classified as a
long-term care hospital.
(4) Is a nonpublic hospital, nonpublic converted hospital, or
converted hospital as those terms are defined in paragraphs (26) to
(28), inclusive, respectively, of subdivision (a) of Section
14105.98.
(s) "Program period" means the period from January 1, 2011, to
June 30, 2011, inclusive.
(t) "Subject fiscal quarter" means a state fiscal quarter
beginning on or after January 1, 2011, and ending before July 1,
2011.
(u) "Subject hospital" means a hospital that meets all of the
following conditions:
(1) Is licensed pursuant to subdivision (a) of Section 1250 of the
Health and Safety Code.
(2) Is in the Charitable Research Hospital peer group, as set
forth in the 1991 Hospital Peer Grouping Report published by the
department, or is not designated as a specialty hospital in the
hospital's Office of Statewide Health Planning and Development Annual
Financial Disclosure Report for the hospital's latest fiscal year
ending in 2007.
(3) Does not satisfy the Medicare criteria to be classified as a
long-term care hospital.
(v) "Subject month" means a calendar month beginning on or after
January 1, 2011, and ending before July 1, 2011.
(w) "Upper payment limit" means a federal upper payment limit on
the amount of the Medicaid payment for which federal financial
participation is available for a class of service and a class of
health care providers, as specified in Part 447 of Title 42 of the
Code of Federal Regulations.
SEC. 222. Section 14168.11 of the Welfare and Institutions Code is
amended to read:
14168.11. The department shall make disbursements from the
Hospital Quality Assurance Revenue Fund consistent with the
following:
(a) Fund disbursements shall be made periodically within 15 days
of each date on which quality assurance fees are due from hospitals.
(b) The funds shall be disbursed in accordance with the order of
priority set forth in subdivision (b) of Section 14168.33, subject to
the following:
(1) The amount disbursed for children's health coverage shall not
exceed one hundred five million dollars ($105,000,000) until at least
one-half of the aggregate supplemental payments to hospitals due
under Sections 14168.2 and 14168.3 are made.
(2) Funds may be set aside for increased capitation payments to
managed health care plans pursuant to subdivision (f) of Section
14168.5.
(c) The funds shall be disbursed in each payment cycle in
accordance with the order of priority set forth in subdivision (b) of
Section 14168.33 as modified by subdivision (b), and so that the
supplemental payments to hospitals, increased capitation payments to
managed health care plans, increased payments to mental health plans,
and direct payments to hospitals of acute psychiatric supplemental
payments are made to the maximum extent for which funds are
available.
(d) To the maximum extent possible, consistent with the
availability of funds in the quality assurance fund and the timing of
federal approvals, the supplemental payments to hospitals, increased
capitation payments to managed health care plans, and increased
payments to mental health plans under this article shall be made
before July 1, 2011.
(e) The aggregate amount of funds to be disbursed to private
hospitals shall be determined under Sections 14168.2 and 14168.3. The
aggregate amount of funds to be disbursed to managed health care
plans shall be determined under Section 14168.5.
SEC. 223. Section 14169.1 of the Welfare and Institutions Code is
amended to read:
14169.1. For the purposes of this article, the following
definitions shall apply:
(a) "Acute psychiatric days" means the total number of Short-Doyle
administrative days, Short-Doyle acute care days, acute psychiatric
administrative days, and acute psychiatric acute days identified in
the Tentative Medi-Cal Utilization Statistics for the 2011-12 state
fiscal year as calculated by the department as of July 21, 2011.
(b) "Converted hospital" means a private hospital that becomes a
designated public hospital or a nondesignated public hospital on or
after July 1, 2011.
(c) "Days data source" means the hospital's Annual Financial
Disclosure Report filed with the Office of Statewide Health Planning
and Development as of May 5, 2011, for its fiscal year ending during
2009.
(d) "Designated public hospital" shall have the meaning given in
subdivision (d) of Section 14166.1 as of July 1, 2011.
(e) "General acute care days" means the total number of Medi-Cal
general acute care days paid by the department to a hospital for
services in the 2009 calendar year, as reflected in the state paid
claims file on July 15, 2011.
(f) "High acuity days" means Medi-Cal coronary care unit days,
pediatric intensive care unit days, intensive care unit days,
neonatal intensive care unit days, and burn unit days paid by the
department during the 2009 calendar year, as reflected in the state
paid claims file prepared by the department on July 15, 2011.
(g) "Hospital inpatient services" means all services covered under
Medi-Cal and furnished by hospitals to patients who are admitted as
hospital inpatients and reimbursed on a fee-for-service basis by the
department directly or through its fiscal intermediary. Hospital
inpatient services include outpatient services furnished by a
hospital to a patient who is admitted to that hospital within 24
hours of the provision of the outpatient services that are related to
the condition for which the patient is admitted. Hospital inpatient
services do not include services for which a managed health care plan
is financially responsible.
(h) "Hospital outpatient services" means all services covered
under Medi-Cal furnished by hospitals to patients who are registered
as hospital outpatients and reimbursed by the department on a
fee-for-service basis directly or through its fiscal intermediary.
Hospital outpatient services do not include services for which a
managed health care plan is financially responsible, or services
rendered by a hospital-based federally qualified health center for
which reimbursement is received pursuant to Section 14132.100.
(i) "Individual hospital acute psychiatric supplemental payment"
means the total amount of acute psychiatric hospital supplemental
payments to a subject hospital for a quarter for which the
supplemental payments are made. The "individual hospital acute
psychiatric supplemental payment" shall be calculated for subject
hospitals by multiplying the number of acute psychiatric days for the
individual hospital for which a mental health plan was financially
responsible by the amount calculated in accordance with paragraph (2)
of subdivision (b) of Section 14169.3 and dividing the result by
four.
(j) (1) "Managed health care plan" means a health care delivery
system that manages the provision of health care and receives prepaid
capitated payments from the state in return for providing services
to Medi-Cal beneficiaries.
(2) (A) Managed health care plans include county organized health
systems and entities contracting with the department to provide
services pursuant to two-plan models and geographic managed care.
Entities providing these services contract with the department
pursuant to any of the following:
(i) Article 2.7 (commencing with Section 14087.3).
(ii) Article 2.8 (commencing with Section 14087.5).
(iii) Article 2.81 (commencing with Section 14087.96).
(iv) Article 2.91 (commencing with Section 14089).
(B) Managed health care plans do not include any of the following:
(i) Mental health plans contracting to provide mental health care
for Medi-Cal beneficiaries pursuant to Part 2.5 (commencing with
Section 5775) of Division 5.
(ii) Health plans not covering inpatient services such as primary
care case management plans operating pursuant to Section 14088.85.
(iii) Program for All-Inclusive Care for the Elderly organizations
operating pursuant to Chapter 8.75 (commencing with Section 14591).
(k) "Medi-Cal managed care days" means the total number of general
acute care days, including well baby days, listed for the county
organized health system and prepaid health plans identified in the
Tentative Medi-Cal Utilization Statistics for the 2011-12 fiscal
year, as calculated by the department as of July 21, 2011.
(l) "Medicaid inpatient utilization rate" means Medicaid inpatient
utilization rate as defined in Section 1396r-4 of Title 42 of the
United States Code and as set forth in the final disproportionate
share hospital eligibility list for the 2010-11 fiscal year released
by the department as of May 1, 2011.
(m) "Mental health plan" means a mental health plan that contracts
with the state to furnish or arrange for the provision of mental
health services to Medi-Cal beneficiaries pursuant to Part 2.5
(commencing with Section 5775) of Division 5.
(n) "New hospital" means a hospital operation, business, or
facility functioning under current or prior ownership as a private
hospital that does not have a days data source or a hospital that has
a days data source in whole, or in part, from a previous operator
where there is an outstanding monetary liability owed to the state in
connection with the Medi-Cal program and the new operator did not
assume liability for the outstanding monetary obligation.
(o) "New noncontract hospital" means a private hospital that was a
contract hospital on March 1, 2011, and elects to become a
noncontract hospital at any time between March 1, 2011, and the end
of the program period.
(p) "Nondesignated public hospital" means either of the following:
(1) A public hospital that is licensed under subdivision (a) of
Section 1250 of the Health and Safety Code, is not designated as a
specialty hospital in the hospital's Annual Financial Disclosure
Report for the hospital's latest fiscal year ending in 2009, and
satisfies the definition in paragraph (25) of subdivision (a) of
Section 14105.98, excluding designated public hospitals.
(2) A tax-exempt nonprofit hospital that is licensed under
subdivision (a) of Section 1250 of the Health and Safety Code, is not
designated as a specialty hospital in the hospital's Annual
Financial Disclosure Report for the hospital's latest fiscal year
ending in 2009, is operating a hospital owned by a local health care
district, and is affiliated with the health care district hospital
owner by means of the district's status as the nonprofit corporation'
s sole corporate member.
(q) "Outpatient base amount" means the total amount of payments
for hospital outpatient services made to a hospital in the 2009
calendar year, as reflected in the state paid claims files prepared
by the department on June 2, 2011.
(r) "Private hospital" means a hospital that meets all of the
following conditions:
(1) Is licensed pursuant to subdivision (a) of Section 1250 of the
Health and Safety Code.
(2) Is in the Charitable Research Hospital peer group, as set
forth in the 1991 Hospital Peer Grouping Report published by the
department, or is not designated as a specialty hospital in the
hospital's Office of Statewide Health Planning and Development Annual
Financial Disclosure Report for the hospital's latest fiscal year
ending in 2009.
(3) Does not satisfy the Medicare criteria to be classified as a
long-term care hospital.
(4) Is a nonpublic hospital, nonpublic converted hospital, or
converted hospital as those terms are defined in paragraphs (26) to
(28), inclusive, respectively, of subdivision (a) of Section
14105.98.
(s) "Program period" means the period from July 1, 2011, to
December 31, 2013, inclusive.
(t) "Subject fiscal quarter" means a state fiscal quarter
beginning on or after July 1, 2011, and ending before January 1,
2014.
(u) "Subject fiscal year" means a state fiscal year that ends
after July 1, 2011, and begins before January 1, 2014.
(v) "Subject hospital" means a hospital that meets all of the
following conditions:
(1) Is licensed pursuant to subdivision (a) of Section 1250 of the
Health and Safety Code.
(2) Is in the Charitable Research Hospital peer group, as set
forth in the 1991 Hospital Peer Grouping Report published by the
department, or is not designated as a specialty hospital in the
hospital's Office of Statewide Health Planning and Development Annual
Financial Disclosure Report for the hospital's latest fiscal year
ending in 2009.
(3) Does not satisfy the Medicare criteria to be classified as a
long-term care hospital.
(w) "Subject month" means a calendar month beginning on or after
July 1, 2011, and ending before January 1, 2014.
(x) "Upper payment limit" means a federal upper payment limit on
the amount of the Medicaid payment for which federal financial
participation is available for a class of service and a class of
health care providers, as specified in Part 447 of Title 42 of the
Code of Federal Regulations. The applicable upper payment limit shall
be separately calculated for inpatient and outpatient hospital
services.
SEC. 224. 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 whom 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 the
plan's 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.
(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 telephone, 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 (P.L. 111-148), as amended by the federal Health
Care and Education Reconciliation Act of 2010 (P.L. 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, Internet 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 12301.6 or
12302, 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. 225. Section 14589 of the Welfare and Institutions Code is
amended to read:
14589. (a) The Legislature finds and declares the following:
(1) During times of economic crisis, it is crucial to find areas
within the program where efficiencies can be achieved while
continuing to provide community-based services that support
independence.
(2) Adult Day Health Care (ADHC) has been vulnerable to fraud and,
despite attempts to curtail and prevent fraud, including, but not
limited to, a moratorium on new facilities and onsite treatment
authorization request review, fraud continues in this area.
(3) The state has added services and programs to enable vulnerable
populations to remain in the community, including, but not limited
to, the Money Follows the Person project, California's Section 1115
(a) Comprehensive Medi-Cal Demonstration Project Waiver: a Bridge to
Reform, and services and supports, including day programs, provided
under the Lanterman Developmental Disabilities Services Act (Division
4.5 (commencing with Section 4500)). It also continues to explore
opportunities to add additional services and programs to help
individuals remain in the community, including, but not limited to,
pilot projects to better meet the health care needs of individuals
dually eligible for both Medicare and Medicaid, and exploring the
Community First Choice Option as a Medi-Cal benefit.
(4) There are alternative services to meet the needs of Medi-Cal
beneficiaries utilizing ADHC, including in-home supportive services,
physical, occupational, and speech therapies, nonemergency medical
transportation, and home health services.
(b) Therefore, it is the intent of the Legislature for the
department to obtain federal approval to eliminate ADHC as an
optional Medi-Cal benefit.
SEC. 226. Section 14701 of the Welfare and Institutions Code is
amended to read:
14701. (a) The State Department of Health Care Services, in
collaboration with the State Department of Mental Health and the
California Health and Human Services Agency, shall create a state
administrative and programmatic transition plan, either as one
comprehensive transition plan or separately, to guide the transfer of
the Medi-Cal specialty mental health managed care and the EPSDT
Program to the State Department of Health Care Services effective
July 1, 2012.
(1) Commencing no later than July 15, 2011, the State Department
of Health Care Services, together with the State Department of Mental
Health, shall convene a series of stakeholder meetings and forums to
receive input from clients, family members, providers, counties, and
representatives of the Legislature concerning the transition and
transfer of Medi-Cal specialty mental health managed care and the
EPSDT Program. This consultation shall inform the creation of a state
administrative transition plan and a programmatic transition plan
that shall include, but is not limited to, the following components:
(A) The plan shall ensure it is developed in a way that continues
access and quality of service during and immediately after the
transition, preventing any disruption of services to clients and
family members, providers and counties, and others affected by this
transition.
(B) A detailed description of the state administrative functions
currently performed by the State Department of Mental Health
regarding Medi-Cal specialty mental health managed care and the EPSDT
Program.
(C) Explanations of the operational steps, timelines, and key
milestones for determining when and how each function or program will
be transferred. These explanations shall also be developed for the
transition of positions and staff serving Medi-Cal specialty mental
health managed care and the EPSDT Program, and how these will relate
to, and align with, positions at the State Department of Health Care
Services. The State
Department of Health Care Services and the California Health and
Human Services Agency shall consult with the Department of Personnel
Administration in developing this aspect of the transition plan.
(D) A list of any planned or proposed changes or efficiencies in
how the functions will be performed, including the anticipated fiscal
and programmatic impacts of the changes.
(E) A detailed organization chart that reflects the planned
staffing at the State Department of Health Care Services in light of
the requirements of subparagraphs (A) to (C), inclusive, and includes
focused, high-level leadership for behavioral health issues.
(F) A description of how stakeholders were included in the various
phases of the planning process to formulate the transition plans and
a description of how their feedback will be taken into consideration
after transition activities are underway.
(2) The State Department of Health Care Services, together with
the State Department of Mental Health and the California Health and
Human Services Agency, shall convene and consult with stakeholders at
least twice following production of a draft of the transition plans
and before submission of transition plans to the Legislature.
Continued consultation with stakeholders shall occur in accordance
with the requirement in subparagraph (F) of paragraph (1).
(b) The State Department of Health Care Services shall provide the
transition plans described in subdivision (a) to all fiscal
committees and appropriate policy committees of the Legislature no
later than October 1, 2011. The transition plans may also be updated
by the Governor and provided to all fiscal and applicable policy
committees of the Legislature upon its completion, but no later than
May 15, 2012.
SEC. 227. Section 15657.03 of the Welfare and Institutions Code is
amended to read:
15657.03. (a) (1) An elder or dependent adult who has suffered
abuse as defined in Section 15610.07 may seek protective orders as
provided in this section.
(2) A petition may be brought on behalf of an abused elder or
dependent adult by a conservator or a trustee of the elder or
dependent adult, an attorney-in-fact of an elder or dependent adult
who acts within the authority of the power of attorney, a person
appointed as a guardian ad litem for the elder or dependent adult, or
other person legally authorized to seek such relief.
(b) For the purposes of this section:
(1) "Conservator" means the legally appointed conservator of the
person or estate of the petitioner, or both.
(2) "Petitioner" means the elder or dependent adult to be
protected by the protective orders and, if the court grants the
petition, the protected person.
(3) "Protective order" means an order that includes any of the
following restraining orders, whether issued ex parte, after notice
and hearing, or in a judgment:
(A) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, making annoying telephone calls as described in Section
653m of the Penal Code, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, or coming within
a specified distance of, or disturbing the peace of, the petitioner,
and, in the discretion of the court, on a showing of good cause, of
other named family or household members or a conservator, if any, of
the petitioner.
(B) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded, or is in the name of the party
to be excluded and any other party besides the petitioner.
(C) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
subparagraph (A) or (B).
(4) "Respondent" means the person against whom the protective
orders are sought and, if the petition is granted, the restrained
person.
(c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if a declaration shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or dependent adult.
(d) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in paragraph (3) of subdivision (b). However, the court may
issue an ex parte order excluding a party from the petitioner's
residence or dwelling only on a showing of all of the following:
(1) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(2) That the party to be excluded has assaulted or threatens to
assault the petitioner, other named family or household member of the
petitioner, or a conservator of the petitioner.
(3) That physical or emotional harm would otherwise result to the
petitioner, other named family or household member of the petitioner,
or a conservator of the petitioner.
(e) A request for the issuance of a temporary restraining order
without notice under this section shall be granted or denied on the
same day that the petition is submitted to the court, unless the
petition is filed too late in the day to permit effective review, in
which case the order shall be granted or denied on the next day of
judicial business in sufficient time for the order to be filed that
day with the clerk of the court.
(f) Within 21 days, or, if good cause appears to the court, 25
days, from the date that a request for a temporary restraining order
is granted or denied, a hearing shall be held on the petition. If no
request for temporary orders is made, the hearing shall be held
within 21 days, or, if good cause appears to the court, 25 days, from
the date that the petition is filed.
(g) The respondent may file a response that explains or denies the
alleged abuse.
(h) The court may issue, upon notice and a hearing, any of the
orders set forth in paragraph (3) of subdivision (b). The court may
issue, after notice and hearing, an order excluding a person from a
residence or dwelling if the court finds that physical or emotional
harm would otherwise result to the petitioner, other named family or
household member of the petitioner, or conservator of the petitioner.
(i) (1) In the discretion of the court, an order issued after
notice and a hearing under this section may have a duration of not
more than five years, subject to termination or modification by
further order of the court either on written stipulation filed with
the court or on the motion of a party. These orders may be renewed
upon the request of a party, either for five years or permanently,
without a showing of any further abuse since the issuance of the
original order, subject to termination or modification by further
order of the court either on written stipulation filed with the court
or on the motion of a party. The request for renewal may be brought
at any time within the three months before the expiration of the
order.
(2) The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of
issuance.
(3) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party who
is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005 of the Code of Civil Procedure, of
the proceeding by personal service or, if the protected party has
satisfied the requirements of Chapter 3.1 (commencing with Section
6205) of Division 7 of Title 1 of the Government Code, by service on
the Secretary of State. If the party who is protected by the order
cannot be notified prior to the hearing for modification or
termination of the protective order, the court shall deny the motion
to modify or terminate the order without prejudice or continue the
hearing until the party who is protected can be properly noticed and
may, upon a showing of good cause, specify another method for service
of process that is reasonably designed to afford actual notice to
the protected party. The protected party may waive his or her right
to notice if he or she is physically present in court and does not
challenge the sufficiency of the notice.
(j) In a proceeding under this section, a support person may
accompany a party in court and, if the party is not represented by an
attorney, may sit with the party at the table that is generally
reserved for the party and the party's attorney. The support person
is present to provide moral and emotional support for a person who
alleges he or she is a victim of abuse. The support person is not
present as a legal adviser and may not provide legal advice. The
support person may assist the person who alleges he or she is a
victim of abuse in feeling more confident that he or she will not be
injured or threatened by the other party during the proceedings if
the person who alleges he or she is a victim of abuse and the other
party are required to be present in close proximity. This subdivision
does not preclude the court from exercising its discretion to remove
the support person from the courtroom if the court believes the
support person is prompting, swaying, or influencing the party
assisted by the support person.
(k) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any declarations in support of the
petition. Service shall be made at least five days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent.
(l) A notice of hearing under this section shall notify the
respondent that if he or she does not attend the hearing, the court
may make orders against him or her that could last up to five years.
(m) (1) The court may, upon the filing of a declaration by the
petitioner that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall remain in effect until the date set for the hearing.
(2) The reissued order shall state on its face the date of
expiration of the order.
(n) (1) If a respondent, named in an order issued under this
section after a hearing, has not been served personally with the
order but has received actual notice of the existence and substance
of the order through personal appearance in court to hear the terms
of the order from the court, no additional proof of service is
required for enforcement of the order.
(2) If the respondent named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based on the temporary
restraining order, but the respondent does not appear at the hearing,
either personally or by an attorney, and the terms and conditions of
the restraining order or protective order issued at the hearing are
identical to the temporary restraining order, except for the duration
of the order, then the restraining order or protective order issued
at the hearing may be served on the respondent by first-class mail
sent to the respondent at the most current address for the respondent
that is available to the court.
(3) The Judicial Council form for temporary orders issued pursuant
to this subdivision shall contain a statement in substantially the
following form:
"If you have been personally served with a temporary restraining
order and notice of hearing, but you do not appear at the hearing
either in person or by a lawyer, and a restraining order that is the
same as this temporary restraining order except for the expiration
date is issued at the hearing, a copy of the order will be served on
you by mail at the following address: ____.
If that address is not correct or you wish to verify that the
temporary restraining order was converted to a restraining order at
the hearing without substantive change and to find out the duration
of that order, contact the clerk of the court."
(o) (1) Information on any protective order relating to elder or
dependent adult abuse issued by a court pursuant to this section
shall be transmitted to the Department of Justice in accordance with
either paragraph (2) or (3).
(2) The court shall order the petitioner or the attorney for the
petitioner to deliver a copy of an order issued under this section,
or a reissuance, extension, modification, or termination of the
order, and any subsequent proof of service, by the close of the
business day on which the order, reissuance, extension, modification,
or termination was made, to each law enforcement agency having
jurisdiction over the residence of the petitioner, and to any
additional law enforcement agencies within the court's discretion as
are requested by the petitioner.
(3) Alternatively, the court or its designee shall transmit,
within one business day, to law enforcement personnel all information
required under subdivision (b) of Section 6380 of the Family Code
regarding any order issued under this section, or a reissuance,
extension, modification, or termination of the order, and any
subsequent proof of service, by either one of the following methods:
(A) Transmitting a physical copy of the order or proof of service
to a local law enforcement agency authorized by the Department of
Justice to enter orders into the California Law Enforcement
Telecommunications System (CLETS).
(B) With the approval of the Department of Justice, entering the
order or proof of service into CLETS directly.
(4) Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported abuse.
(5) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service, which the
officer shall complete and send to the issuing court.
(6) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order.
(7) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained, and the officer shall at that time
also enforce the order. The law enforcement officer's verbal notice
of the terms of the order shall constitute service of the order and
is sufficient notice for the purposes of this section and for the
purposes of Section 273.6 of the Penal Code.
(p) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(q) There is no filing fee for a petition, response, or paper
seeking the reissuance, modification, or enforcement of a protective
order filed in a proceeding brought pursuant to this section.
(r) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
of the Government Code, a petitioner shall not be required to pay a
fee for law enforcement to serve an order issued under this section.
(s) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(t) (1) A person subject to a protective order under this section
shall not own, possess, purchase, receive, or attempt to receive a
firearm or ammunition 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) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm or ammunition while subject
to a protective order issued under this section is punishable
pursuant to Section 29825 of the Penal Code.
(4) This subdivision shall not apply in a case in which the
protective order issued under this section was made solely on the
basis of financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
(u) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
(v) This section does not apply to any action or proceeding
governed by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code, by Chapter 3 (commencing with Section
525) of Title 7 of Part 2 of the Code of Civil Procedure, or by
Division 10 (commencing with Section 6200) of the Family Code.
Nothing in this section shall preclude a petitioner's right to use
other existing civil remedies.
(w) The Judicial Council shall develop forms, instructions, and
rules relating to matters governed by this section. The petition and
response forms shall be simple and concise, and their use by parties
in actions brought pursuant to this section shall be mandatory.
SEC. 228. Section 15910 of the Welfare and Institutions Code is
amended to read:
15910. (a) Subject to federal approval of a demonstration
project effective on or after November 1, 2010, the department shall,
by no later than July 1, 2011, authorize local LIHPs to provide
scheduled health care services, consistent with the Special Terms and
Conditions of the demonstration project, to eligible low-income
individuals 19 to 64 years of age, inclusive, who are not otherwise
eligible for the Medi-Cal program or the Children's Health Insurance
Program, with family incomes at or below 133 percent of the federal
poverty level. To the extent federal financial participation is made
available under the Special Terms and Conditions of the demonstration
project pursuant to Section 15910.1, LIHP health care services may
be made available to eligible individuals with family incomes above
133 percent through 200 percent of the federal poverty level.
(b) Eligible entities, consistent with the Special Terms and
Conditions of the demonstration project, may perform outreach and
enrollment activities to target populations, including, but not
limited to, people who are homeless, individuals who frequently use
hospital inpatient or emergency department services for avoidable
reasons, or people with mental health or substance abuse treatment
needs.
(c) The LIHP shall be designed and implemented with the systems
and program elements necessary to facilitate the transition of those
eligible individuals to Medi-Cal coverage, or alternatively, to
coverage through the California Health Benefit Exchange, by 2014,
pursuant to state and federal law, and the Special Terms and
Conditions of the demonstration project.
(d) The department shall authorize a LIHP that meets the
requirements set forth in this part and the Special Terms and
Conditions of the demonstration project.
(e) (1) By January 1, 2011, or alternatively, 60 days after
federal approval of the demonstration project, whichever occurs
later, the department shall notify all eligible entities of the
opportunity to elect to implement a LIHP, the applicable
requirements, and the process for submitting an application for
department approval of a LIHP application.
(2) The director shall approve or deny an eligible entity's LIHP
application within 60 days of receipt of the application. If the
director denies an application, the denial shall be in writing and
shall specify the reasons therefor.
(3) Within 10 days of a denial by the director under this
subdivision, a participating entity may submit a written request for
reconsideration. The director shall respond in writing to a request
for reconsideration within 20 days, confirming or reversing the
denial, and specifying the reasons for the reconsidered decision.
(f) If the eligible entity had in operation a Health Care Coverage
Initiative program under Part 3.5 (commencing with Section 15900) as
of November 1, 2010, and the eligible entity elects to continue
funding the program, then the existing Health Care Coverage
Initiative program shall, to the extent permitted by the Special
Terms and Conditions of the demonstration project, remain in effect
and receive federal reimbursement in accordance with the Special
Terms and Conditions of the demonstration project until the LIHP is
effective, but no later than July 1, 2011.
(g) Health care services provided pursuant to this part shall be
available to those eligible, low-income individuals enrolled in the
applicable LIHP, subject to the limitations of this part and the
Special Terms and Conditions of the demonstration project. However,
nothing in this part is intended to create an entitlement program of
any kind.
(h) Each LIHP may establish an upper income limit for eligible MCE
individuals to enroll in the LIHP, which shall be expressed as a
percentage between 0 percent and up to, and including, 133 percent of
the federal poverty level. If the LIHP elects to enroll
HCCI-eligible individuals with family incomes above 133 percent
through 200 percent of the federal poverty level, it may also
establish an upper income limit between this range. Notwithstanding
any established upper income limit, the LIHP may impose a limit on
enrollment in the LIHP, which shall be subject to all of the
following provisions:
(1) The Special Terms and Conditions required by the federal
Centers for Medicare and Medicaid Services for the approval of the
demonstration project described in Section 14180 permit a limitation
on enrollment in a LIHP.
(2) Any enrollment limitation by a LIHP shall be administered in
accordance with the Special Terms and Conditions required by the
federal Centers for Medicare and Medicaid Services.
(3) Any enrollment limitation by a LIHP is subject to approval by
the director, and notification to the federal Centers for Medicare
and Medicaid Services. A LIHP shall establish an income limit at a
level that minimizes the need for imposing a limit on enrollment for
the MCE population.
(4) Prior to applying for approval from the director, the LIHP
shall submit to the director a resolution from its governing board
approving the proposed limitation on enrollment by the LIHP.
(i) LIHPs shall be established and implemented only to the extent
that federal financial participation is available and only to the
extent that available federal financial participation is not
jeopardized.
(j) For the purposes of operating a LIHP approved under this part,
and notwithstanding Section 14181, participating entities shall be
exempt from the provisions of Chapter 2.2 (commencing with Section
1340) of Division 2 of the Health and Safety Code, shall not be
considered Medi-Cal managed care health plans subject to the
requirements applicable to the two-plan model and geographic managed
care plans, as contained in Article 2.7 (commencing with Section
14087.3), Article 2.81 (commencing with Section 14087.96), and
Article 2.91 (commencing with Section 14089) of Chapter 7 of Part 3
and the corresponding regulations, and shall not be considered
prepaid health plans as defined in Section 14251.
SEC. 229. Section 15911 of the Welfare and Institutions Code is
amended to read:
15911. (a) Funding for each LIHP shall be based on all of the
following:
(1) The amount of funding that the participating entity
voluntarily provides for the nonfederal share of LIHP expenditures.
(2) For a LIHP that had in operation a Health Care Coverage
Initiative program under Part 3.5 (commencing with Section 15900) as
of November 1, 2010, and elects to continue funding the program, the
amount of funds requested to ensure that eligible enrollees continue
to receive health care services for persons enrolled in the Health
Care Coverage Initiative program as of November 1, 2010.
(3) Any limitations imposed by the Special Terms and Conditions of
the demonstration project.
(4) The total allocations requested by participating entities for
Health Care Coverage Initiative-eligible individuals.
(5) Whether funding under this part would result in the reduction
of other payments under the demonstration project.
(b) Nothing in this part shall be construed to require a political
subdivision of the state to participate in a LIHP as set forth in
this part, and those local funds expended or transferred for the
nonfederal share of LIHP expenditures under this part shall be
considered voluntary contributions for purposes of the federal
Patient Protection and Affordable Care Act (P.L. 111-148), as amended
by the federal Health Care and Education Reconciliation Act of 2010
(P.L. 111-152), and the federal American Recovery and Reinvestment
Act of 2009 (P.L. 111-5), as amended by the federal Patient
Protection and Affordable Care Act.
(c) No state General Fund moneys shall be used to fund LIHP
services, nor to fund any related administrative costs incurred by
counties or any other political subdivision of the state.
(d) Subject to the Special Terms and Conditions of the
demonstration project, if a participating entity elects to fund the
nonfederal share of a LIHP, the nonfederal funding and payments to
the LIHP shall be provided through one of the following mechanisms,
at the option of the participating entity:
(1) On a quarterly basis, the participating entity shall transfer
to the department for deposit in the LIHP Fund established for the
participating counties and pursuant to subparagraph (A), the amount
necessary to meet the nonfederal share of estimated payments to the
LIHP for the next quarter
under subdivision (g) Section 15910.3.
(A) The LIHP Fund is hereby created in the State Treasury.
Notwithstanding Section 13340 of the Government Code, all moneys in
the fund shall be continuously appropriated to the department for the
purposes specified in this part. The fund shall contain all moneys
deposited into the fund in accordance with this paragraph.
(B) The department shall obtain the related federal financial
participation and pay the rates established under Section 15910.3,
provided that the intergovernmental transfer is transferred in
accordance with the deadlines imposed under the Medi-Cal Checkwrite
Schedule, no later than the next available warrant release date. This
payment shall be a nondiscretionary obligation of the department,
enforceable under a writ of mandate pursuant to Section 1085 of the
Code of Civil Procedure. Participating entities may request expedited
processing within seven business days of the transfer as made
available by the Controller's office, provided that the participating
entity prepay the department for the additional administrative costs
associated with the expedited processing.
(C) Total quarterly payment amounts shall be determined in
accordance with estimates of the number of enrollees in each rate
category, subject to annual reconciliation to final enrollment data.
(2) If a participating entity operates its LIHP through a contract
with another entity, the participating entity may pay the operating
entity based on the per enrollee rates established under Section
15910.3 on a quarterly basis in accordance with estimates of the
number of enrollees in each rate category, subject to annual
reconciliation to final enrollment data.
(A) (i) On a quarterly basis, the participating entity shall
certify the expenditures made under this paragraph and submit the
report of certified public expenditures to the department.
(ii) The department shall report the certified public expenditures
of a participating entity under this paragraph on the next available
quarterly report as necessary to obtain federal financial
participation for the expenditures. The total amount of federal
financial participation associated with the participating entity's
expenditures under this paragraph shall be reimbursed to the
participating entity.
(B) At the option of the participating entity, the LIHP may be
reimbursed on a cost basis in accordance with the methodology applied
to Health Care Coverage Initiative programs established under Part
3.5 (commencing with Section 15900) including interim quarterly
payments.
(e) Notwithstanding Section 15910.3 and subdivision (d) of this
section, if the participating entity cannot reach an agreement with
the department as to the appropriate rate to be paid under Section
15910.3, at the option of the participating entity, the LIHP shall be
reimbursed on a cost basis in accordance with the methodology
applied to Health Care Coverage Initiative programs established under
Part 3.5 (commencing with Section 15900), including interim
quarterly payments. If the participating entity and the department
reach an agreement as to the appropriate rate, the rate shall be
applied no earlier than the first day of the LIHP year in which the
parties agree to the rate.
(f) If authorized under the Special Terms and Conditions of the
demonstration project, pending the department's development of rates
in accordance with Section 15910.3, the department shall make interim
quarterly payments to approved LIHPs for expenditures based on
estimated costs submitted for ratesetting.
(g) Participating entities that operate a LIHP directly or through
contract with another entity shall be entitled to any federal
financial participation available for administrative expenditures
incurred in the operation of the Medi-Cal program or the
demonstration project, including, but not limited to, outreach,
screening and enrollment, program development, data collection,
reporting and quality monitoring, and contract administration, but
only to the extent that the expenditures are allowable under federal
law and only to the extent the expenditures are not taken into
account in the determination of the per enrollee rates under Section
15910.3.
(h) On and after January 1, 2014, the state shall implement
comprehensive health care reform for the populations targeted by the
LIHP in compliance with federal health care reform law, regulation,
and policy, including the federal Patient Protection and Affordable
Care Act (P.L. 111-148), as amended by the federal Health Care and
Education Reconciliation Act of 2010 (P.L. 111-152), and subsequent
amendments.
(i) Subject to the Special Terms and Conditions of the
demonstration project, a participating entity may elect to include,
in collaboration with the department, as the nonfederal share of LIHP
expenditures, voluntary intergovernmental transfers or certified
public expenditures of another governmental entity, as long as the
intergovernmental transfer or certified public expenditure is
consistent with federal law.
(j) Participation in the LIHP under this part is voluntary on the
part of the eligible entity for purposes of all applicable federal
laws. As part of its voluntary participation under this article, the
participating entity shall agree to reimburse the state for the
nonfederal share of state staffing and administrative costs directly
attributable to the cost of administering that LIHP, including, but
not limited to, the state administrative costs related to certified
public expenditures and intergovernmental transfers. This section
shall be implemented only to the extent federal financial
participation is not jeopardized.
SEC. 230. Section 15916 of the Welfare and Institutions Code is
amended to read:
15916. (a) It is the intent of the Legislature that the State
Department of Health Care Services and all other departments take all
appropriate steps to fully maximize and claim all available
expenditures for Designated State Health Programs listed in the
Special Terms and Conditions of California's Bridge to Reform Section
1115(a) Demonstration under the safety net care pool (SNCP) for an
applicable demonstration year.
(b) For the purposes of this section, the following definitions
apply:
(1) "California's Bridge to Reform Section 1115(a) Demonstration"
means the Section 1115(a) Medicaid demonstration project, No.
11-W-00193/9, as approved by the federal Centers for Medicare and
Medicaid Services (CMS), effective for the period of November 1,
2010, to October 31, 2015, inclusive.
(2) "Demonstration year" means a specific period of time during
California's Bridge to Reform Section 1115(a) Demonstration as
identified in the Special Terms and Conditions.
(3) "Designated public hospital" has the meaning given in
subdivision (d) of Section 14166.1.
(4) "Excess certified public expenditures" means the amount of
allowable uncompensated care expenditures reported and certified for
the applicable demonstration year under Section 14166.8 by designated
public hospitals (DPHs), including the governmental entities with
which they are affiliated, that is in excess of the amount necessary
to draw the maximum amount of federal funding for DPHs for
uncompensated care under the safety net care pool and for
disproportionate share hospital payments without regard to
subdivision (c) or to the amount authorized pursuant to paragraph
(5).
(5) "Reserved SNCP funds for DSHP" means the amount of SNCP
uncompensated care funds used to fund expenditures for the Designated
State Health Programs, as specified in the Special Terms and
Conditions of California's Bridge to Reform Section 1115(a)
Demonstration.
(6) "Redirected SNCP funds" means the amount of federal funding
available for a specified demonstration year that would otherwise be
restricted for expenditures associated with the Health Care Coverage
Initiative (HCCI) program, for which there are insufficient HCCI
expenditures to draw the federal funds and which CMS has authorized
to be available for uncompensated care expenditures under the safety
net care pool in either the demonstration year for which the funds
were initially reserved or a subsequent demonstration year.
(7) "Safety net care pool" or "SNCP" means the federal funds
available under the Medi-Cal Hospital/Uninsured Care Demonstration
Project and the successor demonstration project, California's Bridge
to Reform, to ensure continued government support for the provision
of health care services to uninsured populations.
(c) Notwithstanding any other provision of law, the state shall
annually seek authority from CMS under the Special Terms and
Conditions of California's Bridge to Reform Section 1115(a)
Demonstration to redirect to the uncompensated care category within
the SNCP the portion of the restricted funds used to fund
expenditures under the HCCI that will not be fully utilized by the
end of the demonstration year.
(d) Designated public hospitals may utilize the redirected SNCP
funds described in subdivision (c) as follows:
(1) Designated public hospitals may opt to utilize excess
certified public expenditures to claim the redirected SNCP funds.
(2) As a condition of exercising the option in paragraph (1), DPHs
voluntarily agree that to the extent the state is unable to fully
claim the maximum annual amount of reserved SNCP funds for DSHP, the
excess certified public expenditures are to be allocated equally
between the state and the DPHs, such that for every dollar of excess
certified public expenditure used by the DPHs, the DPHs will
voluntarily allow the state to use a corresponding excess certified
public expenditure amount for claiming purposes. The amount in excess
certified public expenditures that may be used by the state shall be
limited to that amount necessary to enable the state to receive
total SNCP uncompensated care funds, in conjunction with its claims
for expenditures for DSHP, to the maximum amount described in
paragraph (5) of subdivision (b).
(3) After the state achieves its maximum claiming amount described
in paragraph (5) of subdivision (b), or to the extent the condition
in subdivision (e) is not satisfied, the DPHs may use any remaining
excess certified public expenditures to claim SNCP uncompensated care
funds as authorized by the Special Terms and Conditions of
California's Bridge to Reform Section 1115(a) Demonstration.
(e) As a condition for the state's use of the excess certified
public expenditures pursuant to paragraph (2) of subdivision (d), the
department shall seek any necessary authorization from the federal
Centers for Medicare and Medicaid Services.
(f) Participation in the utilization of the excess certified
public expenditures and redirected SNCP funds under this section is
voluntary on the part of the DPHs for the purpose of all applicable
federal laws.
(g) The department shall consult with DPH representatives
regarding the availability of excess certified public expenditures
and the appropriate allocation of SNCP funds under paragraph (2) of
subdivision (d). The department may make interim determinations and
allocations of the SNCP funds, provided that the interim
determinations and allocations take into account adjustments to
reported expenditures for possible audit disallowances, consistent
with the type of adjustments applied in prior projects years under
Article 5.2 (commencing with Section 14166). Any interim
determinations and allocations of redirected SNCP funds based on
excess certified public expenditures shall be subject to interim and
final reconciliations.
(h) Notwithstanding any other provision of law, upon the receipt
of a notice of disallowance or deferral from the federal government
related to any certified public expenditures for uncompensated care
incurred by DPHs that are used for federal claiming under the SNCP
pursuant to California's Bridge to Reform Section 1115(a)
Demonstration after this section is implemented, and subject to the
processes described in subdivisions (a) to (d), inclusive, of Section
14166.24, the following shall apply with respect to the disallowance
or deferral:
(1) First, the DPH shall be solely responsible for the repayment
of the federal portion of any federal disallowance or deferral
related to the claiming of a certified public expenditure in a
particular year up to the amount claimed pursuant to paragraph (3) of
subdivision (d), after paragraph (2) of subdivision (d) was
satisfied for that particular year.
(2) Second, if there are additional disallowances or deferrals
beyond those described in paragraph (1), the department and the DPH
shall each be responsible for half of the repayment of the federal
portion of any federal disallowance or deferral for the applicable
demonstration year, up to the amount claimed and allocated pursuant
to paragraph (2) of subdivision (d) for that particular year.
(3) Third, if there are additional disallowances or deferrals
beyond those described in paragraphs (1) and (2) for the applicable
demonstration year, the DPH shall be solely responsible for the
repayment of the federal portion of all remaining federal
disallowances or deferrals for that particular year.
(i) The department shall obtain federal approvals or waivers as
necessary to implement this section and to obtain federal matching
funds to the maximum extent permitted by federal law. This section
shall be implemented only to the extent federal financial
participation is not jeopardized.
SEC. 231. Section 15926 of the Welfare and Institutions Code is
amended to read:
15926. (a) The following definitions apply for purposes of this
part:
(1) "Accessible" means in compliance with Section 11135 of the
Government Code, Section 1557 of the PPACA, and regulations or
guidance adopted pursuant to these statutes.
(2) "Limited-English-proficient" means not speaking English as one'
s primary language and having a limited ability to read, speak,
write, or understand English.
(3) "State health subsidy programs" means the programs described
in Section 1413(e) of the PPACA.
(b) An individual shall have the option to apply for state health
subsidy programs in person, by mail, online, by facsimile, or by
telephone.
(c) (1) A single, accessible, standardized paper, electronic, and
telephone application for state health subsidy programs shall be
developed by the department in consultation with MRMIB and the board
governing the Exchange as part of the stakeholder process described
in subdivision (b) of Section 15925. The application shall be used by
all entities authorized to make an eligibility determination for any
of the state health subsidy programs and by their agents.
(2) The application shall be tested and operational by the date as
required by the federal Secretary of California Health and Human
Services.
(3) The application form shall, to the extent not inconsistent
with federal statutes, regulations, and guidance, satisfy all of the
following criteria:
(A) Include simple, user-friendly language and instructions.
(B) Do not ask for information related to a nonapplicant that is
not necessary to determine eligibility in the applicant's particular
circumstances.
(C) Require only information necessary to support the eligibility
and enrollment processes for state health subsidy programs.
(D) May be used for, but shall not be limited to, screening.
(E) Ask, or be used otherwise to identify, if the mother of an
infant applicant under one year of age had coverage through a state
health subsidy program for the infant's birth, for the purpose of
automatically enrolling the infant into the applicable program
without the family having to complete the application process for the
infant.
(F) Include questions that are voluntary for applicants to answer
regarding demographic data categories, including race, ethnicity,
primary language, disability status, and other categories recognized
by the federal Secretary of Health and Human Services under Section
4302 of the PPACA.
(d) Nothing in this section shall preclude the use of a
provider-based application form or enrollment procedures for state
health subsidy programs or other health programs that differs from
the application form described in subdivision (c), and related
enrollment procedures.
(e) The entity making the eligibility determination shall grant
eligibility immediately whenever possible and with consent of the
applicant in accordance with the state and federal rules governing
state health subsidy programs.
(f) (1) If the eligibility, enrollment, and retention system has
the ability to prepopulate an application form for insurance
affordability programs with personal information from available
electronic databases, an applicant shall be given the option, with
his or her informed consent, to have the application form
prepopulated. Before a prepopulated renewal form or, if available,
prepopulated application is submitted to the entity authorized to
make eligibility determinations, the individual shall be given the
opportunity to provide additional eligibility information and to
correct any information retrieved from a database.
(2) All state health subsidy programs may accept self-attestation,
instead of requiring an individual to produce a document, with
respect to all information needed to determine the eligibility of an
applicant or recipient, to the extent permitted by state and federal
law.
(3) An applicant or recipient shall have his or her information
electronically verified in the manner required by the PPACA and
implementing federal regulations and guidance.
(4) Before an eligibility determination is made, the individual
shall be given the opportunity to provide additional eligibility
information and to correct information.
(5) An applicant shall not have his or her eligibility delayed or
denied for any state health subsidy program without being given a
reasonable opportunity, of at least the kind provided for under the
Medi-Cal program pursuant to Section 14007.5 and paragraph (7) of
subdivision (e) of Section 14011.2, to resolve discrepancies
concerning any information provided by a verifying entity.
(6) To the extent federal financial participation is available, an
applicant shall be provided benefits in accordance with the rules of
the state health subsidy program, as implemented in federal
regulations and guidance, for which he or she otherwise qualifies
until a determination is made that he or she is not eligible and all
applicable notices have been provided.
(g) The eligibility, enrollment, and retention system shall offer
an applicant and recipient assistance with his or her application or
renewal for a state health subsidy program in person, over the
telephone, and online, and in a manner that is accessible to
individuals with disabilities and those who are limited English
proficient.
(h) (1) During the processing of an application, renewal, or a
transition due to a change in circumstances, an entity making
eligibility determinations for a public health coverage program shall
ensure that an eligible applicant and recipient of state health
subsidy programs that meets all program eligibility requirements and
complies with all necessary requests for information moves between
programs without any breaks in coverage and without being required to
provide any forms, documents, or other information or undergo
verification that is duplicative or otherwise unnecessary. The
individual shall be informed how to obtain information about the
status of his or her application, renewal, or transfer to another
program at any time, and the information shall be promptly provided
when requested.
(2) An individual screened as not eligible for Medi-Cal on the
basis of Modified Adjusted Gross Income (MAGI) household income but
who may be potentially eligible for Medi-Cal on another basis shall
have his or her application or case forwarded to the Medi-Cal program
for an eligibility determination. During the period this application
or case is processed for a non-MAGI Medi-Cal eligibility
determination, if the applicant or recipient is otherwise eligible
for a state health subsidy program, he or she shall be determined
eligible for that program.
(3) Renewal procedures shall include all available methods for
reporting renewal information, including, but not limited to,
face-to-face, telephone, and online renewal.
(4) An applicant who is not eligible for a state health subsidy
program for a reason other than income eligibility, or for any reason
in the case of applicants and recipients residing in a county that
offers a health coverage program for individuals with income above
the maximum allowed for the Exchange premium tax credits, shall be
referred to the county health coverage program in his or her county
of residence.
(i) Notwithstanding subdivisions (e), (f), and (j), before an
online applicant who appears to be eligible for the Exchange with a
premium tax credit or reduction in cost sharing, or both, may be
enrolled in the Exchange, both of the following shall occur:
(1) The applicant shall be informed of the overpayment penalties
under the Comprehensive 1099 Taxpayer Protection and Repayment of
Exchange Subsidy Overpayments Act of 2011 (P.L. 112-9), if the
individual's annual family income increases by a specified amount or
more, calculated on the basis of the individual's current family size
and current income, and that penalties are avoided by prompt
reporting of income increases throughout the year.
(2) The applicant shall be informed of the penalty for failure to
have minimum essential health coverage.
(j) The department shall, in coordination with MRMIB and the
Exchange board, streamline and coordinate all eligibility rules and
requirements among state health subsidy programs using the least
restrictive rules and requirements permitted by federal and state
law. This process shall include the consideration of methodologies
for determining income levels, assets, rules for household size,
citizenship and immigration status, and self-attestation and
verification requirements.
(k) (1) Forms and notices developed pursuant to this section shall
be accessible and standardized, as appropriate, and shall comply
with federal and state laws, regulations, and guidance prohibiting
discrimination.
(2) Forms and notices developed pursuant to this section shall be
developed using plain language and shall be provided in a manner that
affords meaningful access to limited-English-proficient individuals,
in accordance with applicable state and federal law, and at a
minimum, provided in the same threshold languages as Medi-Cal managed
care.
(l) The department, the California Health and Human Services
Agency, MRMIB, and the Exchange board shall establish a process for
receiving and acting on stakeholder suggestions regarding the
functionality of the eligibility systems supporting the Exchange,
including the activities of all entities providing eligibility
screening to ensure the correct eligibility rules and requirements
are being used. This process shall include consumers and their
advocates, be conducted no less than quarterly, and include the
recording, review, and analysis of potential defects or enhancements
of the eligibility systems. The process shall also include regular
updates on the work to analyze, prioritize, and implement corrections
to confirmed defects and proposed enhancements, and to monitor
screening.
(m) In designing and implementing the eligibility, enrollment, and
retention system, the department, MRMIB, and the Exchange board
shall ensure that all privacy and confidentiality rights under the
PPACA and other federal and state laws are incorporated and followed,
including responses to security breaches.
(n) Except as otherwise specified, this section shall be operative
on and after January 1, 2014.
SEC. 232. Section 17600 of the Welfare and Institutions Code is
amended to read:
17600. (a) There is hereby created the Local Revenue Fund, which
shall have all of the following accounts:
(1) The Sales Tax Account.
(2) The Vehicle License Fee Account.
(3) The Vehicle License Collection Account.
(4) The Sales Tax Growth Account.
(5) The Vehicle License Fee Growth Account.
(b) The Sales Tax Account shall have all of the following
subaccounts:
(1) The Mental Health Subaccount.
(2) The Social Services Subaccount.
(3) The Health Subaccount.
(4) The CalWORKs Maintenance of Effort Subaccount.
(c) The Sales Tax Growth Account shall have all of the following
subaccounts:
(1) The Caseload Subaccount.
(2) The Base Restoration Subaccount.
(3) The Indigent Health Equity Subaccount.
(4) The Community Health Equity Subaccount.
(5) The Mental Health Equity Subaccount.
(6) The State Hospital Mental Health Equity Subaccount.
(7) The County Medical Services Subaccount.
(8) The General Growth Subaccount.
(9) The Special Equity Subaccount.
(d) Notwithstanding Section 13340 of the Government Code, the
Local Revenue Fund is hereby continuously appropriated, without
regard to fiscal years, for the purpose of this chapter.
(e) The Local Revenue Fund shall be invested in the Surplus Money
Investment Fund and all interest earned shall be distributed in
January and July among the accounts and subaccounts in proportion to
the amounts deposited into each subaccount, except as provided in
subdivision (f).
(f) If a distribution required by subdivision (e) would cause a
subaccount to exceed its limitations imposed pursuant to any of the
following, the distribution shall be made among the remaining
subaccounts in proportion to the amounts deposited into each
subaccount in the six prior months:
(1) Subdivision (a) of Section 17605.
(2) Subdivision (a) of Section 17605.05.
(3) Subdivision (b) of Section 17605.10.
(4) Subdivision (c) of Section 17605.10.
SEC. 233. Section 18220.1 of the Welfare and Institutions Code is
amended to read:
18220.1. (a) Of the amount deposited in the Local Safety and
Protection Account in the Transportation Fund authorized by Section
10752.2 of the Revenue and Taxation Code, the Controller shall
allocate 5.85 percent in the 2009-10 fiscal year and each fiscal year
thereafter. The Controller shall allocate these funds on a quarterly
basis beginning April 1, 2009, to the Department of Corrections and
Rehabilitation. The department shall allocate the funds appropriated
in the annual Budget Act and included in the Local Safety and
Protection Account among counties that operate juvenile camps and
ranches based on the number of occupied beds in each camp as of 12:01
a.m. each day, up to the Corrections Standards Authority
rated maximum capacity, as
determined by the Corrections Standards Authority.
(b) Commencing with the 2011-12 fiscal year, the Controller shall,
on a quarterly basis beginning October 1, allocate 6.47 percent of
the funds deposited in the Local Law Enforcement Services Account in
the Local Revenue Fund 2011 pursuant to a schedule provided by the
Department of Corrections and Rehabilitation. The department's
schedule shall provide for the allocation of funds appropriated in
the annual Budget Act, and included in the Local Law Enforcement
Services Account, among counties that operate juvenile camps and
ranches based on the number of occupied beds in each camp as of 12:01
a.m. each day, up to the Corrections Standards Authority rated
maximum capacity, as determined by the Corrections Standards
Authority.
SEC. 234. Section 59 of Chapter 7 of the Statutes of 2011 is
amended to read:
Sec. 59. (a) For the 2011-12 fiscal year only, Items
6440-001-0001, 6440-004-0001, and 6440-005-0001 of Section 2.00 of
the Budget Act of 2011 collectively reflect a General Fund budget
reduction of five hundred million dollars ($500,000,000), which is
offset by revenues associated with the fee increases adopted by the
Regents of the University of California (regents) in November 2010,
including an 8-percent increase for undergraduates, for a net
programmatic reduction of approximately three hundred eighty-four
million dollars ($384,000,000), excluding mandatory cost increases.
In implementing the General Fund reduction, the regents shall
minimize fee and enrollment impacts on students by targeting actions
that lower the costs of instruction and administration.
(b) The regents shall submit recommended budget options, based on
input from stakeholders, including, but not limited to, input
received as of February 18, 2011, with savings estimates for each
identified solution, for implementing the budget reductions to the
Legislature, the Governor, and stakeholders, including
representatives of students and employees, for review and comment by
June 1, 2011, prior to adoption of a final plan by the regents.
(c) The Legislature expects the university to enroll 209,977
state-supported full-time equivalent students (FTES) during the
2011-12 academic year. This enrollment target does not include
nonresident students and students enrolled in nonstate-supported
summer programs. The regents shall report to the Legislature by May
1, 2012, on whether the university has met the 2011-12 enrollment
goal. If the university does not meet its total state-supported
enrollment goal by at least 1,050 FTES, the Director of Finance shall
revert to the General Fund by May 15, 2012, the total amount of
enrollment funding associated with the total share of the enrollment
goal that was not met, using the marginal cost per student of ten
thousand eleven dollars ($10,011).
(d) Not later than September 1, 2012, the regents shall submit a
final detailed report to the Governor, the Department of Finance, and
the Legislature identifying the value of all of the solutions
implemented to achieve the intent of this provision, including the
value of any solutions that were not anticipated in the initially
approved plan pursuant to subdivision (b), including the reasons
therefor.
SEC. 235. Section 60 of Chapter 7 of the Statutes of 2011 is
amended to read:
Sec. 60. (a) For the 2011-12 fiscal year only, Items 6610-001-0001
and 6610-002-0001 of Section 2.00 of the Budget Act of 2011
collectively reflect a General Fund budget reduction of five hundred
million dollars ($500,000,000), which is offset by revenues
associated with the fee increases adopted by the Trustees of the
California State University (trustees) in November 2010, including a
10-percent increase for undergraduates, for a net programmatic
reduction of approximately three hundred fifty-three million dollars
($353,000,000), excluding mandatory cost increases. In implementing
this General Fund reduction, the trustees shall minimize fee and
enrollment impacts on students by targeting actions that lower the
costs of instruction and administration.
(b) The trustees shall submit recommended budget options, based on
input from stakeholders, including, but not limited to, input
received as of February 18, 2011, with savings estimates for each
identified solution, for implementing the budget reductions to the
Legislature, the Governor, and stakeholders, including
representatives of students and employees for review and comment by
June 1, 2011, prior to adoption of a final plan by the trustees.
(c) The Legislature expects the university to enroll 331,716
state-supported full-time equivalent students (FTES) during the
2011-12 academic year. This enrollment target does not include
nonresident students and students enrolled in nonstate-supported
summer programs. The trustees shall report to the Legislature by May
1, 2012, on whether the university has met the 2011-12 enrollment
goal. If the university does not meet its total state-supported
enrollment goal by at least 1,659 FTES, the Director of Finance shall
revert to the General Fund by May 15, 2012, the total amount of
enrollment funding associated with the total share of the enrollment
goal that was not met, using the marginal cost per student of seven
thousand three hundred five dollars ($7,305).
(d) Not later than September 1, 2012, the trustees shall submit a
final detailed report to the Governor, the Department of Finance, and
the Legislature identifying the value of all of the solutions
implemented to achieve the intent of this provision, including the
value of any solutions that were not anticipated in the initially
approved plan pursuant to subdivision (b), including the reasons
therefor.
SEC. 236. Section 9 of Chapter 136 of the Statutes of 2011 is
amended to read:
Sec. 9. (a) Section 7 of this act shall remain operative until
July 1, 2012.
(b) Section 8 of this act shall become operative on July 1, 2012.
SEC. 237. Section 34 of Chapter 136 of the Statutes of 2011 is
amended to read:
Sec. 34. An amount of one thousand dollars ($1,000) is provided to
the Department of Corrections and Rehabilitation for the purpose of
state operations in the 2011-12 fiscal year, payable from the General
Fund.
SEC. 238. Section 2 of Chapter 211 of the Statutes of 2011 is
amended to read:
Sec. 2. Section 1.5 of this bill incorporates amendments to
Section 803 of the Penal Code proposed by both this bill and Assembly
Bill 109, which has been chaptered but is conditionally operative on
October 1, 2011. Section 1.5 shall become operative only if (1) this
bill is enacted and becomes effective on or before January 1, 2012,
(2) this bill amends Section 803 of the Penal Code, and (3) Assembly
Bill 109 becomes operative, in which case Section 803 of the Penal
Code, as amended by Section 1 of this bill, shall remain operative
only until the operative date of Assembly Bill 109, at which time
Section 1.5 of this bill shall become operative.
SEC. 239. Section 1 of Chapter 404 of the Statutes of 2011 is
amended to read:
Section 1. The Legislature finds and declares all of the
following:
(a) Certain speech-generating devices are classified by the United
States Department of Health and Human Services guidelines as durable
medical equipment.
(b) The provision of durable medical equipment traditionally has
been a function of public and private health insurance programs.
(c) It is the intent of the Legislature that public and private
health insurance programs continue to be the provider of first resort
for speech-generating devices that are classified as durable medical
equipment and that the Public Utilities Commission only provide
access to those devices when funding from traditional public and
private health insurance policies and programs is unavailable.
SEC. 240. Section 17 of Chapter 13 of the Statutes of 2011, First
Extraordinary Session, is amended to read:
Sec. 17. There is hereby appropriated one thousand dollars
($1,000) from the General Fund to the California Emergency Management
Agency for program administrative costs incurred in connection with
Section 13821 of the Penal Code.
SEC. 241. Section 2 of Chapter 14 of the Statutes of 2011, First
Extraordinary Session, is amended to read:
Sec. 2. There is hereby appropriated one thousand dollars ($1,000)
from the General Fund to the California Emergency Management Agency
for program administrative costs incurred in connection with Section
13821 of the Penal Code.
SEC. 242. Any section of any act enacted by the Legislature during
the 2012 calendar year that takes effect on or before January 1,
2013, 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 2012 calendar year and takes
effect on or before January 1, 2013, amends, amends and renumbers,
adds, repeals and adds, or repeals any section contained in that
article, chapter, part, title, or division.
