BILL ANALYSIS
SB 892
Page 1
Date of Hearing: June 15, 2010
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall, Jr. Chair
SB 892 (Alquist) - As Amended: April 27, 2010
SENATE VOTE : 33-0
SUBJECT : Care facilities
SUMMARY : Specifies additional crimes with respect to which the
Department of Social Services (DSS) is prohibited from granting
an exemption to operators, staff and employees of residential
care facilities for the elderly (RCFEs). Specifically, this
bill :
1)Adds specified crimes, including the following, to the list of
crimes for which the director of DSS is prohibited from
granting an exemption from disqualification for a license to
operate an RCFE, or for employment, residence, or presence in
an RCFE: murder; voluntary manslaughter; mayhem; aggravated
mayhem; kidnapping; kidnapping for ransom or a sex crime;
posing as a kidnapper; taking hostages; administering a
controlled substance to assist in a felony; 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; incest; specified sodomy offenses; specified oral
copulation; continuous sexual abuse of a child; and exhibition
of a deadly weapon.
2)Adds specified crimes, including the following, to the list of
crimes for which the director of DSS is prohibited from
granting an exemption from disqualification for a license, or
for employment, residence, or presence in an RCFE if it is
within 10 years of the date the person was convicted or the
date the person was released from incarceration, whichever is
later: robbery; assault with a deadly weapon other than a
firearm; forgery and counterfeiting; larceny; embezzlement;
and extortion.
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3)Provides that the additional non-exemptible crimes in this
bill shall not apply to any person who received an exemption
prior to January 1, 2011.
EXISTING LAW
1)Under the Residential Care Facilities for the Elderly Act,
provides for the licensure and regulation of RCFEs by DSS,
Community Care Licensing Division (CCL).
2)Requires a criminal record check of applicants for a license,
special permit, or certificate of approval to operate an RCFE,
and for other persons, including non-clients who reside in
those facilities and staff and employees. (Health & Safety
(H&S) Code 1569.17(a) and (b).)
3)Provides for background checks for license applicants,
administrators, or direct care staff in specified jobs in
facilities or agencies that are licensed or otherwise overseen
by DSS or the Department of Public Health (DPH), including,
skilled nursing facilities; immediate care facilities for the
developmentally disabled; residential community care
facilities; group homes; foster family homes; foster family
agencies; small family homes; community treatment facilities;
social rehab facilities; adult day care facilities;
residential care facilities for the chronically ill or
elderly; adult day health care centers; child day care
facilities; or home health agencies.
4)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 an RCFE 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 hired. (H&S Code 1569.17 (c)(3).)
5)Provides that if the licensee or the person for whom a
background check is required to work at an RCFE 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 DSS for an exemption. (H&S Code
1569.17 (c)(3).)
6)Provides that a person may not be exempted from the following
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specified offenses to be licensed to run or to work at an
RCFE: 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.
(H&S Code 1569.17 (f)(1)(a).)
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : 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 [DPH] to work in skilled
nursing facilities, are getting approved by [DSS] to
work in [RCFEs].
Oftentimes, this happens because current law differs
with respect to the non-exemptible crimes barring work
in RCFEs, as 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 RCFEs even though they have been
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convicted of serious crimes like Drugging Someone to
Assist in a Felony.
This and other 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 skilled
nursing facility.
By adding more crimes to the DSS statute governing
residential care facilities for the elderly (RCFEs),
SB 892 will protect vulnerable seniors and disabled
adults living in these facilities with the same
principles governing the protection of skilled nursing
facility residents.
This bill would add crimes that DPH considers as non-exemptible
to work as a certified nurse assistant in a skilled nursing
facility to DSS's list of non-exemptible crimes to work in
RCFEs. For less serious criminal convictions this bill would
allow DSS to exempt someone to work in an RCFE only after 10
years from the date of conviction or the date of release from
prison, whichever is later.
The author concludes that "[t]his bill would bring greater
consistency to the two departments that oversee direct care
workers in the State's most utilized long-term care facilities:
skilled nursing facilities and residential care facilities for
the elderly." This bill would result in consistency. It
presumes that such consistency is desirable notwithstanding
differences in the populations served by skilled nursing
facilities and RCFEs, and differences in the nature of many of
the jobs. It would also remove or limit the discretion of the
director of DSS to consider individual situations on a
case-by-case basis to determine if an exemption may be
warranted.
Questions : This bill establishes a background check process
only for RCFEs. Would there be costs to DSS of having to
develop and maintain separate background check processes for
RCFEs and other CCL-licensed residential facilities? Would
there be costs to job applicants of potentially having to go
through separate background check processes for different
categories of CCL-licensed facilities?
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DOUBLE REFERRAL . This bill has been double-referred. Should
this bill pass out of this committee, it will be referred to the
Assembly Committee on Public Safety.
REGISTERED SUPPORT / OPPOSITION :
Support
Aging Services of California
American Bone Health
Alzheimer's Association
California Advocates for Nursing Home Reform (CANHR)
California Assisted Living Association (CALA)
Congress of California Seniors
Council on Aging
Crime Victims United of California
The Arc of California
Opposition
None on file.
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089