BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1960
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          Date of Hearing:  April 1, 2014
          Counsel:       Shaun Naidu


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    AB 1960 (Perea) - As Amended:  March 27, 2014


           SUMMARY  :  Requires, notwithstanding any other law, a state  
          hospital director or clinician to obtain the state summary  
          criminal history information, and provides a means to access to  
          this information, whenever a patient is committed to the State  
          Department of State Hospitals (DSH) to be used as specified.   
          Specifically,  this bill  :

          1)Requires, notwithstanding any other law, whenever a patient is  
            committed to DSH, a director of a state hospital or a  
            clinician, as defined, to obtain the state summary criminal  
            history information for the patient to be used to assess the  
            violence risk of a patient, to assess the appropriate  
            placement of a patient, for treatment purposes of a patient,  
            for use in preparing periodic reports as required by statute,  
            or to determine the patient's progress or fitness for release.  
             Prohibits the use of this information for any purpose other  
            than those described here. 

          2)States that the information may be obtained through use of the  
            California Law Enforcement Telecommunications System (CLETS)  
            and requires law enforcement personnel to cooperate with  
            requests for state summary criminal history information  
            authorized pursuant to this bill and to provide the  
            information to the requesting entity in a timely manner.

          3)Punishes as a misdemeanor a law enforcement officer or person  
            authorized by this bill to receive state summary criminal  
            history information who obtains the information in the record  
            and knowingly provides the information to a person not  
            authorized by law to receive the information.

          4)States that for purposes of this bill, DSH law enforcement  
            personnel, as specified, may act as the governmental criminal  
            justice agency as described elsewhere in this bill.









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          5)Defines, for purposes of this bill, "clinician" to mean a  
            state licensed mental health professional working within DSH.

          6)Requires the summary criminal history information to be placed  
            in the patient's confidential file for the duration of his or  
            her commitment.  Requires this information to remain  
            confidential and access limited to the director of the state  
            hospital or the clinician and removed from the patient's file  
            and destroyed within 30 days of discharge from the state  
            hospital.

           EXISTING LAW  : 

          1)Requires DOJ to furnish state summary criminal history  
            information to specified entities, 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,  
            specified restrictions listed in the Labor Code are followed.   
            (Pen. Code,  11105, subd. (b).)

          2)Allows DOJ to furnish state summary criminal history  
            information to specified entities and, when specifically  
            authorized, federal-level criminal history information, upon a  
            showing of a compelling need, 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, specified restrictions listed in the Labor Code are  
            followed.  (Pen. Code,  11105, subd. (c).)

          3)Allows local law enforcement agencies to provide state  
            criminal summary history information obtained through 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, operates housing at which  
            children under the age of 18 years reside, or operates housing  
            for persons categorized as aged, blind, or disabled.  In  
            releasing the information authorized by this provision, local  
            law enforcement agencies are subject to all of the following  
            conditions:  








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             a)   Prohibits local law enforcement agencies from releasing  
               any information unless it relates to a conviction for any  
               of the following offense:

               i)     a "serious felony," as defined;

               ii)    specified offenses relative to paying or receiving  
                 money relating to an adoption, interfering with the  
                 exercise of civil rights because of actual or perceived  
                 characteristics of the victim (including hate crimes, as  
                 defined);

               iii)   an offense concerning firearm access rules relating  
                 to persons convicted of specified offenses;

               iv)    an offense relating to a "generally prohibited  
                 weapon," as defined;

               v)     any intentional and knowing violation of a  
                 protective order, as specified;

               vi)     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,

               vii)   any offense that involves "domestic violence," as  
                 defined;

             b)   Prohibits local law enforcement agencies from releasing  
               information concerning an arrest for an offense that did  
               not result in a conviction.

             c)   Prohibits local law enforcement agencies from releasing  
               information concerning an offense committed by a person who  
               was under 18 years of age at the time he or she committed  
               the offense.

             d)   Requires local law enforcement agencies to 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, except as follows:









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               i)     For a conviction that 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,  
                 local law enforcement agencies are required to release  
                 information concerning these convictions if the  
                 conviction occurred within 5 years of the date on which a  
                 request for information was submitted; or,

               ii)    If the information reveals a conviction for an  
                 offense listed in 3a above, local law enforcement  
                 agencies are required to release all summary criminal  
                 history information concerning the person whether or not  
                 the information meets this requirement, provided,  
                 however, that the information meets all the other  
                 requirements (3a-3c).

             e)   Information released to the local public housing  
               authority also is to be released to parole or probation  
               officers at the same time.  (Pen. Code,  11105.03, subds.  
               (a) and (b).)

          4)Provides that any information obtained from state summary  
            criminal history information pursuant to the above provision  
            is confidential and the recipient public housing authority is  
            prohibited from disclosing or using the information for any  
            purpose other than that authorized by the provision. Requires  
            that the state summary criminal history information in the  
            possession of the authority and all copies made from it are to  
            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.  (Pen. Code,   
            11105.03, subd. (f).)

          5)Provides that the use of the information allowed by the  
            provision above (#3) is to be consistent with specified  
            federal law and the current regulations adopted by the housing  
            authority using the information.  (Pen. Code,  11105.03,  
            subd. (h).)

          6)Provides that state summary criminal history information is to  
            be furnished to the director of a state hospital to which a  
            person is committed for treatment because he or she pleads not  
            guilty by reason of insanity (NGI); is found mentally  
            incompetent to stand trial (IST); is found to be, as a result  








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            of mental disorder or impairment by chronic alcoholism,  
            gravely disabled or a danger to himself, herself, or others;  
            has attempted or inflicted physical harm to another person, or  
            has made a serious threat of substantial harm against another  
            person, as a result of mental disorder or defect while  
            committed for treatment; or is a mentally disordered sex  
            offender, as specified.  (Pen. Code,  11105.1, subd. (a)(1).)

          7)Provides that the criminal history record required to be  
            furnished to a state hospital director described above shall  
            be transmitted by the court with the request for evaluation or  
            with the order committing the person to a treatment facility,  
            except that the director of a state hospital may receive the  
            state summary criminal history information from the law  
            enforcement agency that referred the person for evaluation and  
            treatment, as specified.  Provides that information obtained  
            under this provision is not to be included in any document  
            that will become part of a public record.  (Pen. Code,   
            11105.1, subd. (b).)

          8)Punishes as a misdemeanor any person authorized by law to  
            receive a record or information obtained from a record who  
            knowingly furnishes the record or information to a person who  
            is not authorized by law to receive the record or information.  
             (Pen. Code,  11142.)

           FISCAL EFFECT :  Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Currently, even  
            though more than 96 percent of State Hospital new admissions  
            are committed via the criminal justice system, State Hospital  
            clinicians do not have comprehensive access to up-to-date  
            criminal history information for all of these patients.  
            Assembly Bill 1960 will provide State Hospital clinicians with  
            the information necessary to perform accurate violence risk  
            assessments, create patient [sic] better treatment plans, and  
            provide reports to the court on the patient's progress or  
            fitness for release. This bill will help decrease the level of  
            violence in our state hospitals as well as create better  
            treatment outcomes for patients."

           2)Background  :  According to the Legislative Analyst's Office  
            (LAO), "The state's five state hospitals-Atascadero, Coalinga,  








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            Metropolitan, Napa, and Patton-provide treatment to a combined  
            patient population of over 5,000. ?  State hospitals treat  
            patients under several forensic commitment classifications,  
            including [NGI], [IST], [Sexually Violent Predators], and  
            Mentally Disordered Offenders.  State hospitals also treat  
            mentally ill persons referred by the counties under civil  
            commitments. Additionally, two psychiatric programs located on  
            the grounds of state prisons at Vacaville and Salinas Valley  
            have a combined inmate patient population of less than 700.   
            In the last decade, state hospitals have seen a shift in their  
            population-with the forensic population[, that is, those with  
            mental illness who are involved in the court system,]  
            increasing steadily and the civil commitments in decline. The  
            [Department of Mental Health] reports the forensic population  
            [was] approximately 92 percent of the state-wide hospital  
            system [in 2012]."  (LAO, The 2012-13 Budget: Oversight and  
            Accountability at State Hospitals (Mar. 1, 2012).)  According  
            to the DHS, the forensic population of the state hospitals has  
            increased to over 96 percent in 2013.  

             Coinciding with the shift of the patient population in the  
            state hospitals, incidences of violence towards patients and  
            staff have increased.  Since the death of a psychiatric  
            technician at the Napa State Hospital in October 2010, much  
            attention has been focused on the level of assaults on state  
            hospital staff and patients.  (See Lee Romney, California  
            mental hospitals are dangerous, legislators told, L.A. Times  
            (Aug. 24, 2011).)  According to data that the Department of  
            Mental Health (DMH) reported to the Assembly Budget  
            Subcommittee on Health and Human Services, patients at the  
            Napa State Hospital committed 75 physically-aggressive acts  
            against staff in 2010-11, and there were nearly four times as  
            many patient-on-staff assaults and twice as many  
            patient-on-patient aggressive incidents than in 2009.  DMH  
            reports that, in 2010, there were almost 4,600 aggressive acts  
            against staff and nearly 9,400 aggressive acts against others  
            system-wide.  Consequently, DSH has implemented measures, such  
            as personal duress alarm systems and pre-admission violence  
            risk assessments, in attempts to stem the violence taking  
            place in these facilities.  

          3)State Summary Criminal History Information  :  State "summary  
            criminal history information" is the master record of  
            information compiled by DOJ pertaining to the identification  
            and criminal history of any person, such as name, date of  








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            birth, physical description, fingerprints, photographs,  
            arrests, dispositions and similar data.  (Pen. Code,  11105,  
            subd. (a).)  State summary criminal history information  
            commonly is referred to by the acronym "RAP sheet," which is  
            short for Record of Arrests and Prosecutions.  
                 
            4)Criminal Records and Healthcare Utilization  :  A  
            recently-released evaluation studied the effects of a known  
            criminal past on receiving healthcare and whether there was a  
            discriminatory impact.  (Frank et al., Discrimination based on  
            criminal record and healthcare utilization among men recently  
            released from prison: a descriptive study (2014) 2:6 Health &  
            Justice.)  The study revealed the following findings: 
                 
                Overall, 42% of participants reported a lifetime  
               history of criminal record discrimination by  
               healthcare workers (Table 1). Among those reporting  
               criminal record discrimination by healthcare workers,  
               68% also attributed racial/ethnic discrimination to  
               healthcare workers (p < .001).  Individuals reporting  
               criminal record discrimination by healthcare workers  
               were significantly older (mean age, 42.3 vs. 38.6, p =  
               0.01), more likely to have obtained postsecondary  
               education (26% vs. 11%, p = 0.03) and had a more  
               extensive incarceration history (median years  
               incarcerated, 16 vs. 9, p = 0.002) compared with  
               individuals reporting no criminal record  
               discrimination. Criminal record discrimination varied  
               across racial/ethnic groups as 56% of White  
               participants reported discrimination based on criminal  
               record compared to 41% of Black participants and 39%  
               of those of other race/ethnicities, respectively (p =  
               0.48). Finally, individuals reporting criminal record  
               discrimination by healthcare workers were more likely  
               to report a psychiatric diagnosis (45% vs. 38%, p =  
               0.43) and to report a healthcare visit during their  
               most recent incarceration (75% vs. 62%, p = 0.07)  
               though these associations were not statistically  
               significant.

               ?

               In conclusion, in a sample of 172 recently released  
               male prisoners, we found that self-reported criminal  
               record discrimination by healthcare workers was  








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               associated with increased ED utilization after  
               adjusting for reported racial/ethnic discrimination  
               and other potential confounders. We also identified a  
               non-significant trend toward an association between  
               this experience of discrimination and decreased  
               utilization of primary care services. We believe our  
               findings may have implications for both providers as  
               well as for policy makers. ?  More than 40% of  
               ex-prisoners in this study reported a history of  
               healthcare discrimination based on criminal record,  
               and patterns of healthcare utilization varied based on  
               participants' experiences with discrimination.  For  
               healthcare workers and policymakers alike, greater  
               understanding of criminal record discrimination may  
               offer opportunities to increase patient engagement and  
               improve access for this vulnerable population.

            (Ibid.)

            While this study focused on use of primary healthcare  
            services, it may serve to shed light on possible  
            discriminatory impact people's criminal record have on a  
            person receiving psychiatric treatment or other forms of  
            healthcare services.
           
            5)Practical Considerations  :  Current law already requires that  
            the courts furnish to the director of a state hospital a  
            person's state summary criminal history information when that  
            person has been committed to that facility for treatment for  
            specified reasons, including if the person is committed for  
            being dangerous to himself, herself, or others; for pleading  
            not guilty by reason of insanity for a charged offense; or  
            because he or she is found mentally incompetent to stand  
            trial.  According to DSH, the requirement to furnish the  
            information is not always met, as sometimes the criminal  
            history information is not submitted with the commitment order  
            or the information is incomplete.  (Interview with the Asst.  
            Director, Office of Legislation, Dept. of State Hospitals  
            (Mar. 7, 2014).)  This committee may wish to examine if an  
            administrative or other non-legislative remedy was explored,  
            and whether that would be more appropriate, to resolve this  
            issue.  
                
            This bill seeks to expand DSH's access to state summary  
            criminal history information for all patients committed to a  








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            state hospital, regardless of whether there is a finding that  
            a patient poses a risk of violence.  When accessing state  
            summary criminal history information in other situations like  
            participation in youth sports, employment, licensing, and  
            housing-practically, all situations not involving criminal  
            investigation or prosecution-the subject of the criminal  
            history information gives his or her voluntary consent to have  
            the information furnished to the requesting entity.  Patients  
            at state hospitals, however, are committed to the institution  
            over any objections they may have about the placement.   
            Therefore, it is argued that there should be, at the very  
            least, a suspicion that patients placed in these involuntary  
            commitments pose a risk of violence before this sensitive  
            information is examined, because, as discussed above, of the  
            possible negative effect that the release of this information  
            will have on the patient accessing services.  
                 
             Moreover, this bill provides a state hospital director or  
            clinician access to a patient's summary criminal history  
            information in an unrestricted manner, what is known as a "raw  
            rap sheet" among those familiar with this area, which includes  
            arrests that did not lead to charges being filed let alone a  
            conviction, charges that were dropped for a lack of evidence,  
            and court dispositions that did not result in a conviction.   
            Consequently, this committee may wish to explore how  
            clinicians are going handle these types of entries in the  
            summary criminal history information and what type of bearing  
            they would have in determining the appropriate treatment or  
            security level, as some of these entries could be decades old  
            or irrelevant.  Another concern raised by providing patient  
            summary criminal history information to all DSH clinicians,  
            who as licensed mental health professionals do not necessarily  
            have law enforcement or related experience or training, is  
            whether they are trained to understand the nuances within the  
            information, as data in summary criminal history information  
            is formatted for the specific purpose of law enforcement  
            record keeping and consequently contains specific jargon that  
            is likely not familiar to individuals without the appropriate  
            background.
             
             In discussion with the author's office and representatives  
            from DSH, they have agreed to continue fine tuning this bill  
            if it advanced out of this committee to address the issue of  
            who within DSH has access to state summary criminal history  
            information and limit it to a select few individuals who have  








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            the proper training and understanding of how to read this  
            information and be able to use it to formulate a risk  
            assessment that other DSH clinicians and personnel could use  
            to establish appropriate treatment and security measures  
            without direct access to the summary criminal history  
            information.  
                 
            6)Drafting issue  :  In subdivision (e) of this bill, it states  
            that DSH law enforcement personnel may act as the  
            "governmental criminal justice agency" described in  
            subdivision (a).  Subdivision (a), however, does not describe  
            or make mention of a governmental criminal justice agency.   
            Subdivision (b), on the other hand, makes reference to "law  
                                                             enforcement personnel."  The author may wish to address this  
            drafting issue to correct this confusion. 
           
          7)Arguments in Support  :  

              a)   According to the  California Association of Psychiatric  
               Technicians  , "Clinicians seeking to provide the best and  
               safest care possible currently are missing a massive piece  
               of the treatment puzzle: full, up-to-date access to  
               patients' criminal-history information.  To truly perform  
               valid assessments of patients' risks of future violence,  
               clinicians need in-depth access to their pasts.  [This]  
               legislation would make a real difference by allowing state  
               hospitals and their professional staff-under specific  
               guidelines-access to state summary criminal history  
               information throughout the duration of commitment for all  
               patients admitted through the California state-hospital  
               system, helping these patients receive more complete  
               diagnoses and the most appropriate treatments."  

              b)   As stated by the  California Psychiatric Association  ,  
               summary criminal history information "[i]n intake unit  
               evaluations within hours or days of admission to a state  
               hospital could identify inmates with histories that  
               indicate that they may need specialized treatment or  
               security measures.  In many cases without this sort of  
               information staff evaluate an inmate, develop a treatment  
               plan, place the inmate in particular housing units, only to  
               uncover later that they were missing key information in  
               their criminal histories that would have potentially  
               altered diagnosis, treatment planning or unit placement.   
               The stakes are high with so much violence in state  








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               hospitals."  
                 
            8)Arguments in Opposition  :  
                
             a)   The  American Civil Liberties Union of California  argues  
               "Current law already requires a state hospital to obtain  
               the state summary criminal history information (aka rap  
               sheet) when an individual is committed as not guilty by  
               reason of insanity, incompetent to stand trial, and when  
               there is a finding of 'danger to others' when placed on a  
               Lanterman-Petris-Short (LPS) Act conservatorship (Cal. Welf  
               & Inst. Code, sec 5000 et seq.)  
                  
               "We believe that AB 1960 takes an overly broad approach by  
               requiring that the Department of Justice provide rap sheets  
               for every patient committed to the facility for treatment  
               regardless of whether the person is violent or the  
               information is necessary for his or her treatment.

               "We suggest narrowing the bill to allow state hospitals to  
               request a Department of Justice rap sheet for individual  
               patients when:
                
                 Need for a rap sheet  :  the person is known to be  
                 violent or has acted violently in the facility or  
                 there is a specific need for the information for the  
                 individual's treatment;
                  Limit access to rap sheet  :  the access to the rap  
                 sheet should be limited to people who have been  
                 trained on understanding the rap sheets, and who are  
                 directing the treatment of the patient;
                  Destruction of rap sheet  :  the rap sheet should be  
                 destroyed after the risk has been assessed and  
                 placement and treatment have been determined.  (It  
                 does not seem necessary for the Hospital to hold the  
                 rap sheets until after the person has been  
                 discharged.)

               "We also suggest that the state hospital be required to  
               document compliance with those requirements in such a way  
               that state regulators can verify compliance."

             b)   According to  California Attorneys for Criminal Justice  ,  
               "Medical professional[s] should focus on medically-relevant  
               information.  This information is already provided to the  








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               physician.  AB 1960 would increase the likelihood of a  
               medical determination being influenced by a prior arrest  
               record, even if the facts of the case do not provide any  
               insight into the medical condition of the patient.   
               Furthermore, this ability to access a patient's criminal  
               history information can go back years and years.   
               Theoretically, a crime that occurred multiple years ago can  
               be unnecessarily considered without any reason for violence  
               risk assessment."
                
            9)Current Legislation  :  
                
             a)   AB 1511 (Beth Gaines) would allow DOJ and local criminal  
               justice agencies to furnish state and local summary  
               criminal history information to an animal control officer,  
               as specified, upon a showing of a compelling need.  AB 1511  
               is pending in the Assembly Committee on Appropriations.  

              b)   SB 1136 (Huff) would require DOJ to provide county child  
               welfare agency personnel state summary criminal history  
               information to monitor the health and safety of persons  
               receiving care, treatment, or services from state licensed  
               foster homes, foster family agencies, and group homes.  SB  
               1136 is pending in the Senate Committee on Human Services. 
           
           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Association of Psychiatric Technicians
          California Council of Community Mental Health Agencies
          California Psychiatric Association
          California Statewide Law Enforcement Association
          Department of State Hospitals
          Los Angeles County Sheriff's Department
          National Association of Social Workers

           Opposition 
           
          American Civil Liberties Union of California
          California Attorneys for Criminal Justice
           

          Analysis Prepared by  :    Shaun Naidu / PUB. S. / (916) 319-3744 









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