It’s a common licensing deficiency–a teacher has a criminal background clearance, but they’re not “associated with the facility” in Guardian, so the facility gets issued a citation. While the LPA is still there, the director goes into Guardian to associate the teacher, and the LPA “clears” the deficiency. But the Type A or Type B citation is still issued, and it apparently doesn’t matter that the proof of the criminal background clearance was in the teacher’s file, because the LPA says Title 22 requires staff to be associated with the facility.
I don’t think that’s actually true. There is no regulation in Title 22 that says staff have to be associated with the facility.
By its plain wording, the section of Title 22 that gets cited–section 101170(e)–provide two separate options to meet the section’s requirement about a criminal background clearance:
According to the section, staff working in a licensed facility have to “obtain a California clearance” or they can “Request a transfer of a criminal record clearance.” The first option is going and getting fingerprinted and LiveScanned. That second option is association in Guardian. In other words, a staff member who has already been LiveScanned doesn’t need to do the whole LiveScan again, the facility can just have their existing LiveScanned transferred over.
Nothing in this section or in any other section of Title 22 or the Health and Safety Code specifically states that facilities are required to have all individual on staff associated in Guardian.
It seems to me that over time, licensing has taken this section of Title 22 (which provides one of two ways to comply), and treated it as a standalone regulation. But that is not how regulations work.
To be clear, I like Guardian. I think it’s a useful, efficient, fairly intuitive tool, and it makes sense for facilities to keep Guardian up to date with their staff. But if a teacher has a background clearance, and the facility has proof of that in their file, then not also associating the teacher in Guardian is not an “immediate or substantial threat” or even a “potential threat” to health or safety. Because it’s not a standalone requirement in Guardian, I think licensing is wrong when they issue citations for not having staff associated in Guardian (if the staff member’s file had documentation of their criminal record clearance).
This is an issue I would like to take into court. To do so, though, a facility has to be cited for the issue, and their first- and second-level appeals have to be denied.
If you think you might be in this situation, please let me know, as I want to help challenge what I believe is licensing’s incorrect interpretation of this rule. And if you are dealing with any other licensing or legal issues, please feel free to reach out directly.