BILL ANALYSIS
SB 892
Page 1
Date of Hearing: June 29, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 892 (Alquist) - As Amended: April 27, 2010
SUMMARY : Adds to the list of non-exemptible crimes to which
the Department of Social Services (DSS) is prohibited from
granting an exemption for applicants of a license, special
permit, or certificate of approval to operate a residential care
facility for the elderly. Specifically, this bill :
1)Provides that the Director of DSS cannot grant an exemption
from disqualification for a license for employment, residence,
or presence in a residential care facility for the elderly for
the following convictions:
a) Murder; voluntary manslaughter; mayhem; aggravated
mayhem; torture, kidnapping, kidnapping for ransom,
extortion by posing as a kidnapper, false imprisonment for
purposes of protection from an arrest or use as a shield,
robbery, assault with intent to commit mayhem, rape,
sodomy, or oral copulation, administering drugs to assist
in the commission of a felony, sexual battery, rape, rape
of a spouse, rape by a foreign object, abduction for
marriage, defilement, or prostitution, pimping or pandering
a minor, willful harm or injury to a child, corporal
punishment or injury to a child, incest, lewd or lascivious
acts, oral copulation, continuous sexual abuse of a child,
forcible acts of sexual penetration, fleeing sex offender
registration, willfully poisoning or adulterating food,
crime against and elder or dependent adult, drawing or
exhibiting a loaded firearm in a rude, angry, or
threatening manner, or arson with the intent to cause great
bodily injury.
b) Sexual exploitation by a physician, surgeon,
psychotherapist or alcohol and drug abuse counselors.
2)Allows the following convictions to be granted an exemption
from disqualification for a license for employment, residence,
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or presence in a residential care facility for the elderly if
said conviction is not within 10 years of the date the person
was convicted of the offense or the date the person was
released from incarceration for the offense, whichever is
later: robbery, assault with a deadly weapon, willful
infliction of corporal injury, burglary, forgery, theft,
diversion of funds received to obtain or pay for services,
publication of an access card number with the intent to
defraud another, grand theft, petty theft, receipt of stolen
property, embezzlement, extortion, or petty theft with a
prior.
3)States the aforementioned shall not be retroactively applied.
EXISTING LAW :
1)States the Legislature recognizes the need to generate timely
and accurate positive fingerprint identification of applicants
as a condition of issuing licenses, permits, or certificates
of approval for persons to operate or provide direct care
services in a residential care facility for the elderly. It
is the intent of the Legislature in enacting this section to
require the fingerprints of those individuals whose contact
with clients of residential care facilities for the elderly
may pose a risk to the clients' health and safety. An
individual shall be required to obtain either a criminal
record clearance or a criminal record exemption from DSS
before his or her initial presence in a residential care
facility for the elderly. [Health and Safety Code (HSC)
Section 1569.17.]
2)Requires before issuing a license to any person or persons to
operate or manage a residential care facility for the elderly,
DSS shall secure from an appropriate law enforcement agency a
criminal record to determine whether the applicant or any
other person specified in this section has ever been convicted
of a crime other than a minor traffic violation or arrested
for a sex offense, assault with a deadly weapon, willful
infliction of corporal injury, willful harm or injury to a
child, or for any crime for which DSS cannot grant an
exemption if the person was convicted and the person has not
been exonerated. [HSC Section 1569.17(a)(1).]
3)Mandates criminal history information to include the full
criminal record, if any, of those persons, and subsequent
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arrest information pursuant to existing law. [HSC Section
1569.17(a)(2).]
4)Provides the following shall apply to the criminal record
information:
a) If DSS finds that the applicant or any other person has
been convicted of a crime, other than a minor traffic
violation, the application shall be denied, unless the
director grants an exemption pursuant to this section.
b) If DSS finds that the applicant, or any other person is
awaiting trial for a crime other than a minor traffic
violation, DSS may cease processing the application until
the conclusion of the trial.
c) If no criminal record information has been recorded, the
Department of Justice (DOJ) shall provide the applicant and
DSS with a statement of that fact.
d) If the DSS finds after licensure that the licensee, or
any other person, has been convicted of a crime other than
a minor traffic violation, the license may be revoked,
unless the director grants an exemption pursuant to this
section.
e) An applicant and any other person shall submit
fingerprint images and related information to the DOJ and
the Federal Bureau of Investigation (FBI), through the DOJ,
for a state and federal level criminal offender record
information search, in addition to the search required by
existing law. If an applicant meets all other conditions
for licensure, except receipt of the FBI's criminal history
information for the applicant and persons, the DSS may
issue a license if the applicant and each person described
has signed and submitted a statement that he or she has
never been convicted of a crime in the United States, other
than a traffic infraction. If, after licensure, DSS
determines that the licensee or person has a criminal
record, the license may be revoked. DSS may also suspend
the license pending an administrative hearing. [HSC
Section 1569.17(a)(3).]
5)Requires in addition to the applicant, the provisions of this
section shall apply to criminal convictions of the following
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persons:
a) Adults responsible for administration or direct
supervision of staff.
b) Any person, other than a client, residing in the
facility. Residents of unlicensed independent senior
housing facilities that are located in contiguous buildings
on the same property as a residential care facility for the
elderly shall be exempt from these requirements.
c) Any person who provides client assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse
assistant or home health aide, who is not employed,
retained, or contracted by the licensee, and who has been
certified or recertified on or after July 1, 1998, shall be
deemed to meet the criminal record clearance requirements
of this section. A certified nurse assistant (CNA) and
certified home health aide who will be providing client
assistance and who falls under this exemption shall provide
one copy of his or her current certification, prior to
providing care, to the residential care facility for the
elderly. The facility shall maintain the copy of the
certification on file as long as the care is being provided
by the CNA or certified home health aide at the facility.
Nothing in this paragraph restricts the right of DSS to
exclude a certified nurse assistant or certified home
health aide from a licensed residential care facility for
the elderly.
d) Any staff person, volunteer, or employee who has contact
with the clients.
e) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person
serving in a similar capacity.
f) Additional officers of the governing body of the
applicant or other persons with a financial interest in the
applicant, as determined necessary by DSS by regulation.
The criteria used in the development of these regulations
shall be based on the person's capability to exercise
substantial influence over the operation of the facility.
[HSC Section 1569.17(b)(1).]
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6)Exempts the following persons from the aforementioned
requirements:
a) A spouse, relative, significant other, or close friend
of a client shall be exempt if this person is visiting the
client or provides direct care and supervision to that
client only.
b) A volunteer to whom all of the following apply:
i) The volunteer is at the facility during normal
waking hours.
ii) The volunteer is directly supervised by the
licensee or a facility employee with a criminal record
clearance or exemption.
iii) The volunteer spends no more than 16 hours per
week at the facility.
iv) The volunteer does not provide clients with
assistance in dressing, grooming, bathing, or personal
hygiene.
v) The volunteer is not left alone with clients in
care.
c) A third-party contractor retained by the facility if the
contractor is not left alone with clients in care.
d) A third-party contractor or other business professional
retained by a client and at the facility at the request or
by permission of that client. These individuals may not be
left alone with other clients.
e) Licensed or certified medical professionals are exempt
from fingerprint and criminal background check requirements
imposed by community care licensing. This exemption does
not apply to a person who is a community care facility
licensee or an employee of the facility.
f) Employees of licensed home health agencies and members
of licensed hospice interdisciplinary teams who have
contact with a resident of a residential care facility at
the request of the resident or resident's legal decision
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maker are exempt from fingerprint and criminal background
check requirements imposed by community care licensing.
This exemption does not apply to a person who is a
community care facility licensee or an employee of the
facility.
g) Clergy and other spiritual caregivers who are performing
services in common areas of the residential care facility,
or who are advising an individual resident at the request
of, or with permission of, the resident, are exempt from
fingerprint and criminal background check requirements
imposed by community care licensing. This exemption does
not apply to a person who is a community care facility
licensee or an employee of the facility.
h) Any person similar to those described in this
subdivision, as defined by DSS in regulations.
i) Nothing in this paragraph shall prevent a licensee from
requiring a criminal record clearance of any individual
exempt from the requirements of this section, provided that
the individual has client contact. [HSC Section
1569.17(b).]
7)Provides subsequent to initial licensure, any person required
to be fingerprinted shall, as a condition to employment,
residence, or presence in a residential facility for the
elderly, be fingerprinted and sign a declaration under penalty
of perjury regarding any prior criminal convictions. The
licensee shall submit these fingerprint images and related
information to the DOJ and the FBI, through the DOJ, for a
state and federal level criminal offender record information
search, or to comply the person's employment, residence, or
initial presence in the residential care facility for the
elderly. [HSC Section 1569.17(c)(1)(A).]
8)Requires the fingerprint images and related information to be
electronically transmitted in a manner approved by DSS and
DOJ. A licensee's failure to submit fingerprint images and
related information to DOJ, or to comply as required in this
section, shall result in the citation of a deficiency and an
immediate assessment of civil penalties in the amount of $100
per violation per day for a maximum of five days, unless the
violation is a second or subsequent violation within a
12-month period in which case the civil penalties shall be in
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the amount of $100 per violation for a maximum of 30 days, and
shall be grounds for disciplining the licensee. The DSS may
assess civil penalties for continued violations as permitted
under existing law. The licensee shall then submit these
fingerprint images to DSS for processing. Documentation of
the individual's clearance or exemption shall be maintained by
the licensee and be available for inspection. The DOJ shall
notify DSS, as required, and notify the licensee by mail
within 14 days of electronic transmission of the fingerprints
to DOJ, if the person has no criminal record. A violation of
the regulations shall result in the citation of a deficiency
and an immediate assessment of civil penalties in the amount
of $100 per violation per day for a maximum of five days,
unless the violation is a second or subsequent violation
within a 12-month period in which case the civil penalties
shall be in the amount of $100 per violation for a maximum of
30 days, and shall be grounds for disciplining the licensee.
The DSS may assess civil penalties for continued violations.
[HSC Section 1569.17(c)(1)(B).]
9)Provides within 14 calendar days of the receipt of the
fingerprint images, DOJ shall notify DSS of the criminal
record information. If no criminal record information has
been recorded, DOJ shall provide the licensee and DSS with a
statement of that fact within 14 calendar days of receipt of
the fingerprint images. If new fingerprint images are
required for processing, DOJ shall, within 14 calendar days
from the date of receipt of the fingerprint images, notify the
licensee that the fingerprint images were illegible. [HSC
Section 1569.17(c)(2).]
10) Specifies that a licensee shall endeavor to ascertain the
previous employment history of persons required to be
fingerprinted under this subdivision. If DSS determines, on
the basis of the fingerprint images submitted to DOJ, that the
person has been convicted of a sex offense against a minor, an
offense specified in Section 243.4, 273a, 273d, 273g, or 368
of the Penal Code, or a felony, DSS shall notify the licensee
in writing within 15 calendar days of the receipt of the
notification from the DOJ to act immediately to terminate the
person's employment, remove the person from the residential
care facility for the elderly, or bar the person from entering
the residential care facility for the elderly. DSS may
subsequently grant an exemption. If the conviction was for
another crime, except a minor traffic violation, the licensee
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shall, upon notification by DSS, act immediately to either:
(a) terminate the person's employment, remove the person from
the residential care facility for the elderly, or bar the
person from entering the residential care facility for the
elderly, or (b) seek an exemption. DSS shall determine if the
person shall be allowed to remain in the facility until a
decision on the exemption is rendered. A licensee's failure
to comply with DSS's prohibition of employment, contact with
clients, or presence in the facility as required by this
paragraph shall result in a citation of deficiency and an
immediate assessment of civil penalties by DSS against the
licensee, in the amount of $100 per violation per day for a
maximum of five days, unless the violation is a second or
subsequent violation within a 12-month period in which case
the civil penalties shall be in the amount of $100 per
violation for a maximum of 30 days, and shall be grounds for
disciplining the licensee. [HSC Section 1569.17(c)(3).]
11) Allows DSS to issue an exemption on its own motion if the
person's criminal history indicates that the person is of good
character based on the age, seriousness, and frequency of the
conviction or convictions. DSS, in consultation with
interested parties, shall develop regulations to establish the
criteria to grant an exemption pursuant to this paragraph.
[HSC Section 1569.17(c)(4).]
12) Requires DSS to notify the affected individual of his or
her right to seek an exemption. The individual may seek an
exemption only if the licensee terminates the person's
employment or removes the person from the facility after
receiving notice from DSS. [HSC Section 1569.17(c)(5).]
13) Gives the director of DSS the power to grant an exemption
from disqualification for a license, or for employment,
residence, or presence in a residential care facility for the
elderly if the director has substantial and convincing
evidence to support a reasonable belief that the applicant and
the person convicted of the crime, if other than the
applicant, are of such good character as to justify issuance
of the license or special permit or granting an exemption.
However, an exemption may not be granted pursuant to this
subdivision if the conviction was for any of the following
offenses:
a) Assault with intent to commit mayhem; rape, sodomy, oral
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copulation, or other specified offend in the course of a
first degree burglary; sexual battery; rape or penetration
of genital or anal openings by foreign object; felonious
harm or injury to a child; corporal injury or punishment of
a child; lewd or lascivious acts; forcible acts of sexual
penetration; a registerable sex offense; a crime against an
elder or dependent adult; or any "violent felony" against
an individual.
b) A felony conviction for sexual exploitation by a
physician, surgeon, psychotherapists, or alcohol and drug
abuse counselors; or torture; or carjacking; poisoning or
adulterating food, drink medicine; exhibiting or using a
firearm in a rude, angry or threatening manner; or arson
that causes great bodily injury. [HSC Section
1569.17(f)(1).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "By adding more
crimes to the DSS statute governing backgrounds checks for
caregivers working in residential care facilities for the
elderly (RCFEs), SB 892 would protect vulnerable seniors and
disabled adults living in these facilities with the same
principles governing the protection of skilled nursing
facility residents. In particular, dangerous nurse
assistants, whose certification has been revoked by DPH
[Department of Public Health], would no longer be able to work
in RCFEs due to a more lax background check process under DSS.
"SB 892 would add those crimes that DPH considers as
non-exemptible to work as a certified nurse assistant in a
skilled nursing facility to DSS' list of non-exemptible crimes
to work in RCFEs. For less serious criminal convictions, SB
892 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.
"This bill would bring greater consistency to the two
departments that perform background checks on direct care
workers in the State's most utilized long-term care and
residential care facilities: skilled nursing facilities and
residential care facilities for the elderly."
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2)Background : According to information provided by 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 (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 (HSC section 1569.17) allows DSS to
approve (or 'exempt') caregivers to work in RCFEs even though
they have been 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
(HSC section 1337.9), thus requiring DPH's denial or
revocation of a nurse assistant's certificate to work in a
skilled nursing facility."
3)Non-Exemptible Offenses : Criminal record exemption statutes
establish procedures for screening applicants who seek to
operate, work, or be present in different types of community
care facilities.
An applicant seeking to operate or work in a community care
facility must submit his or her fingerprints to the DOJ and
disclose any criminal convictions. [Id. 1569.17(c)(1)(A).]
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The DSS receives criminal rap sheets from DOJ and FBI
identifying the applicant's criminal history. DSS and at
least 42 counties use these records, along with court
documents and information from the applicant's self-disclosure
form, to determine if a person is eligible for a criminal
record exemption.
DSS regulates and licenses community care facilities such as
residential group homes, adult day care facilities, foster
family agencies, and foster child facilities. [Id. Section
1502 (a).] DSS is also responsible for regulating and
licensing other categories of care facilities governed by
separate statutory provisions, including residential care
facilities that care for the elderly. (Id. Section 1569 et
seq.)
Persons convicted of crimes other than minor traffic offenses
are presumptively disqualified from working in licensed
community care facilities, which provide care and services to
the elderly. [See gen. Id. Sections 1502(a) and 1522(c)(3).]
The DDS Director has discretion to allow persons convicted of
certain offenses to work in community care facilities,
although the Director has no discretion to grant such a
criminal record exemption to persons convicted of specified
non-exemptible offenses. However, the Director has no
discretion to grant an exemption for persons convicted of
designated crimes (non-exemptible offenses), including
offenses such as sexual battery, certain crimes affecting
children or the elderly. (See Id. Section 1569.17(f)(1)(A).]
At present, HSC Section 1569.7 also prohibits exemptions for
all "violent felonies" committed against an individual. [See
Id. Section 1569.17(f)(1)(A) and Penal Code Section 667.5(c).]
The California Court of Appeal in Doe v. Saenz (2006) 140
Cal.App.4th 960, 987 stated the purpose of non-exemptible
crimes "is to protect clients of community care facilities
from persons who have exhibited a propensity to commit sex
crimes or acts of violence." In Saenz, a group of job
applicants with criminal records challenged the DSS's
classification of certain crimes as nonexemptible offenses,
specifically occupied burglary. Occupied burglary has been
deemed to be a "violent felony" under Penal Code Section
677.5(c)(21). As aforementioned, a person convicted of a
"violent felony" committed against an individual is prohibited
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from obtaining an exemption under HSC Section 1569.17(f)(1).
The court found that "[w]hile occupied burglary is a serious
offense meriting punishment commensurate with the crime's
gravity, a conviction for occupied burglary does not
necessarily demonstrate a propensity for violence. In adding
occupied burglary to the list of offenses specified in Penal
Code section 667.5(c), the Legislature concluded that a
multiple violent felony offender who commits or has committed
a burglary should be punished more harshly if someone was
present at the time of the burglary. But it does not follow
that the Legislature at the same time - or at any time -
considered the presence of an occupant during a burglary as
evidence of the burglar's predisposition to violence. The
additional risk of violence created by the presence of an
occupant, even if unanticipated, justifies increasing the
offender's sentence, but it does not necessarily imply the
offender will be predisposed to commit acts of violence."
(Saenz, supra 140 Cal.App.4th at 988.)
This bill removes any reference to Penal Code Section 677.5(c)
and thereby removes occupied burglary from the non-exemptible
status. Thus, this bill improves existing law in that
perspective. On the other hand, SB 892 greatly expands the
list of non-exemptible crimes. As the case law indicates, it
is important to make sure that these additional crimes
represent those which demonstrate a person's propensity of
violence or sex crimes toward others, thereby making their
employment within an elderly care facility a safety risk.
4)Do Non-Exemptible Offenses Serve a Legitimate Governmental
Purpose ? A Child Protective Services case worker employed by
Forest/Warren County Human Services Department in Pennsylvania
won back his job after appealing his termination of
employment, based upon an aggravated assault conviction. [See
Warren County Human Servs. v. State Civ. Serv. Comm'n (Pa.
Cmwlth. March 8, 2004) No. 376 C.D. 2003.] The caseworker,
Edward Roberts (Roberts), was first hired by the Forest/Warren
Department of Human Services as a caseworker on January 2,
2001. During the job interview process, Roberts admitted that
he had pled guilty to a felony charge of aggravated assault in
1980. As a condition of employment, he provided a copy of his
Pennsylvania State Police Criminal History, which corroborated
his statement to his employers regarding his 1980 guilty plea
for aggravated assault.
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Roberts was an exemplary employee who successfully maintained
employment with the joint Forest/Warren County Human Service
Department until the agency disbanded on
December 31, 2001. When the new Warren County Department of
Human Services began hiring to fill its vacancies, Roberts
applied for and was rehired in 2002 as a caseworker, a
position that put him in direct contact with children. As a
condition of his employment with the new Warren County
Department of Human Services, Roberts was told that he would
be required to submit to new clearances, including a criminal
record history as required by the Child Protective Services
Law (CPSL). [See 23 Pa.C.S. Sections 6301 to 6385.]
When the administrator of the Forest County Children and Youth
Services learned of Roberts' aggravated assault conviction, he
determined that Roberts' employment with the agency would be
in violation of the CPSL. [See 23 Pa.C.S. Section
6344(c)(2).] The CPSL provides that if an individual's
criminal history record information reveals that an individual
has been convicted of certain provisions, that person may not
be hired into a position that involves direct contact with
children. The administrator of the Forest County Children and
Youth Services contacted the Warren County Department of Human
Services to inform them that Roberts' aggravated assault
conviction was a bar to employment under the CPSL. Warren
County thereafter terminated Roberts from his caseworker
position on June 20, 2002 due to his 1980 conviction for
aggravated assault.
Roberts appealed his termination to the Pennsylvania Civil
Service Commission where his termination was reversed. The
Civil Service Commission found that although Roberts'
termination was based upon the provisions of the CPSL, Warren
County failed to present evidence establishing a just cause
for his removal. The determination was based upon the
Commonwealth Court's holding in Nixon v. Department of Public
Welfare. [Pa. Cmwlth. 2001), 789 A.2d 376, affirmed, Nixon v.
Commonwealth (Pa. 2003) 576 Pa. 385.]
In Nixon, the Commonwealth Court found that the criminal records
provisions in the Older Adults Protective Services Act, which
prohibited the hiring of individuals in the elder care field
who had at any time in the past been convicted of certain
criminal offenses was unconstitutional because there existed
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no rational relationship between a lifetime ban on employment
in elder care and a legitimate governmental purpose. (Nixon
v. Department of Public Welfare, supra, 789 A.2d at 381.) The
Pennsylvania court recognized a "deeply ingrained public
policy . . . to avoid unwarranted stigmatization of and
unreasonable restrictions upon former offenders. This State
in recent years has been unalterably committed to
rehabilitation of those persons who have been convicted of
criminal offenses. To forever foreclose a permissible means
of gainful employment because of an improvident act in the
distant past completely loses sight of any concept of
forgiveness for prior errant behavior and adds yet another
stumbling block along the difficult road of rehabilitation."
(Ibid.)
This bill expands the list of crimes for which an exemption may
not be granted by DSS for applicants of a license, special
permit, or certificate of approval to operate a residential
care facility for the elderly. The crimes which create a
lifetime ban are presumably those which demonstrate a person's
propensity toward violence. Thus, an argument can be made
that there is a rational relationship between the prohibition
on exemptions between the applicant's criminal history and a
legitimate governmental purpose in protecting the elderly and
infirm.
The crimes which have been specified to create a 10-year ban
from exemption from the date the person was convicted of the
offense or the date the person was released from incarceration
vary wildly. Some crimes involve violence against a person,
i.e. robbery (Penal Code Section 211), corporal injury to a
spouse or cohabitant (Penal Code Section 273.5), and assault
with a deadly weapon (Penal Code Section 245). Some of the
crimes listed, however, do not involve violence at all, i.e.
burglary (Penal Code Section 459), forgery (Penal Code Section
470), theft (Penal Code Section 484), diversion of funds
received to obtain or pay for services (Penal Code Section
484b), publication of an access card number with the intent to
defraud another (Penal Code Section 484e), grand theft (Penal
Code Section 484), petty theft (Penal Code Section 488),
receipt of stolen property (Penal Code Section 496),
embezzlement (Penal Code Section 503), extortion (Penal Code
Section 518), or petty theft with a prior (Penal Code Section
666). It is questionable whether a conviction for the latter
crimes bare a rational relationship between the 10-year
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washout period and legitimate governmental interest.
5)Argument in Support : According to Disability Rights
California , "The California Residential Care Facilities for
the Elderly Act provides for the licensing of RCFEs by the
DSS. Existing law requires: (a) a criminal record check of
applicants for a license, special permit, or certificate of
approval to operate a RCFE, or for other persons, including
staff, employees, and non-residents who live in these
facilities; (b) an application can be denied if the applicant
or any of the other designated persons has been convicted of a
crime, other than a minor traffic violation; and (c) the DSS
Director is authorized to grant an exemption from
disqualification under theses provisions, but allow the
Director deny exemption for certain crimes.
"SB 892 would specify crimes for which the Director may not
grant an exemption within 10 years of either the date the
person was convicted of the offense or the date the person was
released from incarceration for the offense, whichever is
later.
"SB 892 will more closely conform the DSS criminal background
check requirements to those of DPH to avoid the problems
raised by a recent state Senate report showing that caregivers
with a documented history of abuse and neglect were being
allowed to work in RCFEs, largely because the state agencies
aware of the abuse were not sharing information or screening
caregivers as required by law. [See, "Dangerous Caregivers:
State Failed to Cross-Check Backgrounds, Exposing Elderly to
Abusive Workers" (California Senate Office of Oversight and
Outcomes, March 18, 2010).]
"The bill will increase the requirements for these checks for
nearly everyone working in a RCFE who has contact with
residents. It will also prevent nurse assistants who have
been decertified by DPH for being convicted of serious crimes
from being allowed to work in RCFEs."
6)Argument in Opposition : According to the East Bay Community
Law Center , "California faces significant reentry challenges -
with one in five adults showing a criminal record on a
background check, over seven million Californians face
potential employment barriers. Employment is vital to the
successful reentry of people with a criminal record. At the
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same time, California processes about 1.4 million criminal
background checks each year pursuant to state laws regulating
hundreds of occupations. It is essential that such regulation
of career opportunities is fare and accords with due process
requirements.
"The California Supreme Court has adopted the position that the
Constitution requires that state employment requirement be
'directly related' to an individual's fitness to perform the
job duties required by the position. Specifically, the
Fourteenth Amendment of the Constitution requires that the
state employment requirements must be 'directly related' to
the individual's capacity and fitness to perform the duties
which the individual is required to perform. ( See , Morrison
v. State Board of Education, (1969 1 Cal.3d 214; Schware v.
Board of Bar Examiners (1957) 353 U.S. 232; and Hallinan v.
Committee of Bar Examiners of the State Bar (1966) 54 Cal.2d
447.) To determine an individual's fitness for a job, many
factors must be considered and evaluated, including the
severity of the underlying offense, the length of time since
the conviction occurred, and evidence of rehabilitation.
"We oppose SB 892 for the following reasons:
a) " SB 892 creates the irrational result that a worker can
get licensed as a Certified Nurse Assistant, but will be
unable to work in a Community Care Facility .
"To avoid this irrational result, SB 892 should be amended to
automatically exempt anyone licensed as a Certified Nurse
Assistant (CNA).
"The list of crimes included in SB 892 as both lifetime and
10-year bars to obtaining an exemption is almost exactly
the same as the list that can disqualify a CNA applicant.
However, a CNA applicant can overcome the disqualification
and can still become licensed in the State of California if
he or she obtains a certificate of rehabilitation or a
1203.4 dismissal.
b) " SB 892 applies to individuals who are not involved in
direct care to patients .
"SB 892 should be amended to apply only to employees with
regular, unsupervised contact with patients/residents.
SB 892
Page 17
"SB 892 is over broad and does not comply with Title VII of
the Civil Rights Act of 1965. The proposed bar to
obtaining an exemption applies to all employees including
kitchen staff, facilities staff and administrative
positions that do not involve patient contact. The listed
convictions are arguably not related to the job duties
these employees perform. In addition, SB 892 also covers
any volunteer that spends more than 16 hours per week at
the facility. If volunteers and employees doe not have
regular, unsupervised contact with patients/resident, the
bar to obtaining an exemption should not apply.
c) " The lifetime bar from obtaining an exemption in SB 892
violates federal law .
i) "To comply with Title VII of the Civil Rights Act,
SB 892 should be amended to remove any offenses that are
not job-related and provide for a time-limited bar.
ii) "The lifetime bar to obtaining an exemption must be
removed.
iii) "All of the theft and dishonestly offenses included
in the 10-year washout period should be removed from SB
892.
iv) "The 10-year washout period should apply to all
convictions that are arguably job related.
d) "Applicants should be given a copy of the DOJ RAP sheet
and other documents or reports generated in making the
fitness determination."
7)Related Legislation : SB 774 (Ashburn) would have required
county welfare departments to obtain background clearances for
employment applicants or transferees within the county welfare
department who have frequent contact with children, and would
have required the county welfare director to determine whether
or not there is convincing evidence that the person is of good
character and should be allowed frequent and direct contact
with children. SB 774 was held on the Assembly Committee on
Appropriations' Suspense File.
8)Prior Legislation : SB 1759 (Ashburn), Chapter 902, Statutes
SB 892
Page 18
of 2007, made a number of revisions to criminal clearance
provisions for departments under the jurisdiction of the
California Health and Human Services Agency, including the
Department of Health Services and DSS with regard to clearance
requirements before employment.
REGISTERED SUPPORT / OPPOSITION :
Support
Aging Services of California
Alzheimer's Association
American Bone Health
Arc of California
California Advocates for Nursing Home Reform
California Assisted Living Association
Congress of California Seniors
Council on Aging
Crime Victims United
Disability Rights of California
Opposition
East Bay Community Law Center
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744