BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
8
9
2
SB 892 (Alquist)
As Amended April 5, 2010
Hearing date: April 20, 2010
Health and Safety Code
MK:mc
CARE FACILITIES
HISTORY
Source: Author
Prior Legislation: SB 1759 (Ashburn) - Ch. 902, Stats. 2007
Support: Unknown
Opposition:None known
KEY ISSUE
SHOULD A NUMBER OF CRIMES BE ADDED TO THE CURRENT LIST FOR WHICH NO
EXEMPTION CAN BE GIVEN TO A PERSON WHO IS SEEKING TO BE LICENSED TO
RUN OR TO WORK IN A RESIDENTIAL CARE FACILITY FOR THE ELDERLY?
PURPOSE
The purpose of this bill is to add to the nonexemptable crimes
for which no exemption can be given for a person who is seeking
(More)
SB 892 (Alquist)
PageB
to be licensed to run or work in a residential care facility for
the elderly.
Existing law provides for background checks for people working
in specified jobs which are licensed or otherwise overseen by
departments under Health and Human Services Agency including
people: employed as an administrator or manager or direct care
staff or an adult living in the facility for an immediate care
facility for the developmentally disabled; a certified nursing
assistant; people who own or provide direct care at community
care facilities, group homes, foster family homes, foster family
agencies, small family homes, community treatment facilities,
social rehab facilities and adult day care facilities; who work
at residential care facilities for the chronically ill or
elderly; who work at adult day health care centers; who work at
child day care facilities; who work at home health agencies;
home health aides; private duty nurses and those who hold CPR
Training Programs. (See Health and Safety Code 1265.5;
1337.2; 1337.6; 1338.5; 1416.26; 1499; 1522; 1568.09; 1569.17;
1575.7; 1596.871; 1728.1; 1736.1; 1736.2; 1736.6; 1743.9;
1797.191; Welfare and Institutions Code 5405.)
Existing law requires that before issuing a license for a
residential care facility for the elderly, the Department of
Social Services shall require a background check of any adults
responsible for administration or direct supervision of the
staff, any person, other than a client, residing in the
facility, any person who provides client assistance in dressing,
grooming, bathing or personal hygiene, any staff person,
volunteer or employee who has contact with the clients, the
chief executive officer if the applicant is a firm, etcetera,
and any additional officers who have a financial interest in the
facility. (Health and Safety Code 1569.17 (a) and (b).)
Existing law provides that if upon a criminal background check
it is found that a licensee or person who is required to be
background checked to work at a residential care facility for
the elderly has been convicted of a sex offense against a minor,
a sexual battery, child abuse, lewd behavior in front of a
child, or elder abuse shall be immediately terminated or not
(More)
SB 892 (Alquist)
PageC
hired. (Health and Safety Code 1569.17 (c)(3).)
Existing law provides that if the licensee or the person for
whom a background check is required to work at a residential
care facility for the elderly has been convicted of any other
crime, other than a minor traffic violation, he or she shall
immediately stop working at the facility but may apply to the
Department of Social Services for an exemption. (Health and
Safety Code 1569.17 (c)(3).)
Existing law provides that a person may not be exempted from the
following specified offenses to be licensed to run or to work at
a residential care facility for the elderly: assault to commit
mayhem, rape, sodomy, oral copulation; sexual battery; rape in
concert; felony child abuse; felony corporal injury on a child;
lewd act on a child or dependant person; sexual penetration by a
foreign object; a registerable sex offense; elder abuse;
torture; carjacking; mingling poison with food or drink;
exhibition of a loaded firearm in a threatening manner; and
arson causing great bodily injury. (Health and Safety Code
1569.17 (f)(1)(a).)
This bill adds to the list of non-exemptable crimes, providing
that the following also may not be exempted: murder; voluntary
manslaughter; mayhem; aggravated mayhem; kidnapping; kidnapping
for ransom or a sex crime; posing as a kidnapper; taking
hostages; robbery; administering a controlled substance to
assist in a felony; assault with a deadly weapon; rape; spousal
rape; abduction to force marriage; procuring, assignation and
seduction; procuring person by force or false inducement;
compelling illicit relation by menace; inducing commission of a
sex act through false representation creating fear; pandering;
hiring a panderer; selling a person for illicit use;
prostituting one's wife; pimping; providing transportation for a
child for a lewd act; pimping or pandering a child under 16;
abduction for prostitution; any child abuse; domestic violence;
incest; specified sodomy offenses; specified oral copulation;
continuous sexual abuse of a child; exhibition of a deadly
weapon; arson; burglary; forgery; possessing receiving or
uttering a forged paper; theft; publishing access code number to
(More)
SB 892 (Alquist)
PageD
avoid payment or defraud; grand theft; petty theft; buying or
receiving stolen property; embezzlement; extortion; and petty
theft with a prior.
This bill provides that the additional non-exemptable crimes in
this bill shall not apply to any person who received an
exemption prior to January 1, 2011.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
(More)
SB 892 (Alquist)
PageE
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The
state of emergency declared by Governor Schwarzenegger
almost three years ago continues to this day,
California's prisons remain severely overcrowded, and
inmates in the California prison system continue to
languish without constitutionally adequate medical and
mental health care.<1>
----------------------
<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
(More)
SB 892 (Alquist)
PageF
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
On March 18, 2010, the California Senate Office of
Oversight and Outcomes issued a report, Dangerous
Caregivers: State Failed to Cross-Check Backgrounds,
Exposing Elderly to Abusive Workers, which was completed
at my request as Chair of the Senate Subcommittee and
Aging and Long-Term Care.
This report highlighted the problem of dangerous
caregivers being allowed to work in long-term care
facilities for the elderly and disabled because
different State departments have different standards for
approving care workers and do not share helpful
background check information with each other.
Specifically, nurse assistants with a history of a
serious criminal conviction or administrative action,
who had been decertified by the Department of Public
Health (DPH) to work in skilled nursing facilities, are
getting approved by the Department of Social Services
(DSS) to work in residential care facilities for the
elderly.
Oftentimes, this happens because current law differs
with respect to the non-exemptible crimes barring work
in residential care facilities for the elderly, as
(More)
SB 892 (Alquist)
PageG
licensed by the DSS, and the non-exemptible crimes
barring work in skilled nursing facilities, as licensed
by the DPH.
For example, existing law (Health and Safety code
section 1569.17) allows DSS to approve (or "exempt")
caregivers to work in residential care facilities for
the elderly even though they have been convicted of
serious crimes like assault with a deadly weapon or
unlawful use of a debit or credit card, among others.
These serious criminal convictions, however, are
non-exemptible under DPH's nurse assistant certification
law (Health and Safety code section 1337.9), thus
requiring DPH's denial or revocation of a nurse
assistant's certificate to work in a nursing home.
SB 892 will protect vulnerable seniors and disabled
adults living in residential care facilities for the
elderly with the same principles governing the
protection of nursing home residents.
Specifically, SB 892 will change the DSS's list of
non-exemptible crimes for approved caregivers to work in
residential care facilities for the elderly to more
closely match the DPH's non-exemptible crimes for nurse
assistants to work in skilled nursing facilities.
This will bring consistency to the background check
process for workers caring for our elderly and disabled
in the State's most utilized long-term care facilities:
skilled nursing facilities and residential care
facilities for the elderly.
2. Additional Non-exemptable Crimes
This bill adds to the current list of nonexemptable crimes for
which a person may not receive a clearance for working in or a
license for running a residential care facility for the elderly.
If a person applies for a position assisting people in the
facility with dressing, or as a certified nurse assistant and
(More)
SB 892 (Alquist)
PageH
certified home aide and they have one of these crimes, no matter
what the circumstances and no matter how old, the person may not
be hired by the facility. The author states that this new list
of crimes matches more closely to the nonexemptable crimes for
nurses' assistants who work in skilled nursing facilities.
Members may wish to consider whether a person should be banned
for life from working in a residential care center for the
elderly for these crimes. For example, should one petty theft-a
shop lifting-that occurred 10 or more years ago keep a person
from working a job where he or she bathes an elderly person?
The following list is the new crimes added by this bill.
Technically some of the sex offenses probably are already
included because the current statute references the section
containing the list of registerable sex offenses:
(More)
Murder;
Voluntary manslaughter;
Mayhem;
Aggravated mayhem;
Kidnapping;
Kidnapping for ransom or s sex crime;
Posing as a kidnapper;
Taking hostages;
Robbery;
Administering a controlled substance to assist in a
felony;
Assault with a deadly weapon;
Rape;
Spousal rape;
Abduction to force marriage;
Procuring, assignation and seduction; procuring person
by force or false inducement;
Compelling illicit relation by menace;
Inducing commission of a sex act through falls
representation creating fear;
Pandering; hiring a panderer;
Selling person for illicit use; prostituting one's wife;
pimping;
Providing transportation for a child for a lewd act;
Pimping or pandering a child under 16;
Abduction for prostitution; any child abuse;
Domestic violence;
Incest;
Specified sodomy offenses;
Specified oral copulation;
Continuous sexual abuse of a child;
Exhibition of a deadly weapon;
Arson;
Burglary;
Forgery;
Possessing receiving or uttering a forged paper;
Theft;
Publishing access code number to avoid payment or
defraud;
(More)
SB 892 (Alquist)
PageJ
Grand theft;
Petty theft;
Buying or receiving stolen property;
Embezzlement; extortion;
Petty theft with a prior.
SHOULD ALL THESE OFFENSES MAKE A PERSON INELIGIBLE FOR LIFE TO
WORK AT A RESIDENTIAL CARE FACILITY FOR THE ELDERLY?
***************