BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE COMMITTEE ON HEALTH
                          Senator Ed Hernandez, O.D., Chair

          BILL NO:       AB 1960
          AUTHOR:        Perea
          AMENDED:       April 21, 2014
          HEARING DATE:  June 18, 2014
          CONSULTANT:    Diaz

           SUBJECT :  State summary criminal history information: state  
          hospitals.
           
          SUMMARY  :  Requires a director of a state hospital or a  
          clinician, as defined, to obtain state summary criminal history  
          information on patients only to be used for the purposes  
          specified, including a patient's violence risk and appropriate  
          treatment planning.

          Existing law:
          1.Allows the state Department of Justice (DOJ) to furnish state  
            summary criminal history information (CHI) to specified  
            entities and, when authorized, federal-level CHI, upon a  
            showing of a compelling need.  

          2.Establishes the California Law Enforcement Telecommunications  
            System (CLETS), whereby qualified law enforcement agencies can  
            obtain information directly from federal, state, and local  
            computerized information files.

          3.Requires CHI to be furnished by the court to the director of a  
            state hospital to which a person: is committed for treatment  
            after 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 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. Requires inclusion of  
            the request for evaluation or the order committing the person  
            to a treatment facility. Allows the director of a state  
            hospital to receive the CHI from the law enforcement agency  
            that referred the person for evaluation and treatment, as  
            specified. Provides that CHI obtained under this provision is  
            not to be included in any document that will become part of a  
                                                         Continued---



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            public record. 

          4.Punishes as a misdemeanor any person authorized by law to  
            receive CHI who knowingly furnishes CHI to a person who is not  
            authorized by law to receive it.  
          
          This bill:
          1.Requires a director of a state hospital or a clinician to  
            obtain CHI for a patient committed to a state hospital.  
            Defines "clinician" as a state-licensed mental health  
            professional working within the Department of State Hospitals  
            (DSH) who has received, and is current in, CLETS training as  
            required by DOJ, as specified.

          2.Allows CHI to be obtained through CLETS by a law enforcement  
            officer. Requires law enforcement to cooperate with requests  
            for CHI and requires the CHI to be provided to the requesting  
            entity in a timely manner. Allows DSH law enforcement  
            personnel to act as law enforcement personnel allowed to  
            obtain CHI through CLETS.

          3.Requires CHI obtained through CLETS 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 to courts as required by  
            statute; or, to determine a patient's progress or fitness for  
            release.

          4.Requires CHI to be placed in a patient's confidential file, to  
            be accessed only by a director of a state hospital or a  
            clinician, and to be removed from the file and destroyed  
            within 30 days of a patient's discharge from a state hospital.

           FISCAL EFFECT  : According to the Assembly Appropriations  
          Committee, negligible cost to DSH, as a CLETS terminal used by  
          DSH police is proximate, and in minor, absorbable costs for  
          clinician CLETS training.     

           PRIOR VOTES  :  
          Assembly Public Safety:7- 0
          Assembly Appropriations:17- 0
          Assembly Floor:     74- 2
           
          COMMENTS  :  
           1.Author's statement. According to the author, even though more  
            than 96 percent of new admissions are committed via the  




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            criminal justice system, currently DSH clinicians do not have  
            comprehensive access to up-to-date criminal history  
            information for all of these patients. This bill will provide  
            properly licensed and trained clinicians at state hospitals  
            with the information necessary to perform accurate violence  
            risk assessments; place patients appropriately within the  
            system; create better patient 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  
            state hospitals, as well as create better treatment outcomes  
            for patients. 
            
          2.Background. According to DSH, the state hospital patient  
            population has shifted over the past 20 years, from a 20  
            percent forensic population in 1994 to the current 96 percent.  
            Forensic patients are committed for a variety of reasons,  
            including: IST; NGI; mentally disordered offenders (MDO); and,  
            sexually violent predators (SVP). There are 4,967 patients at  
            Atascadero, Coalinga, Metropolitan, Napa, and Patton state  
            hospitals comprising 1,350 NGI; 1,283 IST; 1,154 MDO; 897 SVP;  
            258 mentally ill California Department of Corrections and  
            Rehabilitation commitments; and 25 mentally disordered sex  
            offenders. 
               
            DSH states that despite the significant change, there is no  
            current legal, regulatory, or physical infrastructure in place  
            for state hospitals to effectively and safely treat patients  
            who have demonstrated severe psychiatric instability or  
            extremely aggressive behavior. DSH also states that currently  
            state hospitals are authorized to receive CHI for patients  
            committed as IST and NGI. However, the information must be  
            forwarded by the courts and is only obtained about 60 percent  
            of the time, is often not updated, and cannot be shared with  
            clinicians, who perform assessments for patient treatment,  
            placement, and violence risk.

            According to DSH, in 2013, there were a total of 3,344  
            patient-on-patient assaults and 2,586 patient-on-staff  
            assaults at state hospitals. Of the total patient population,  
            62 percent are non-violent offenders, 36 percent committed 10  
            or fewer violent acts, and two percent committed 10 or more  
            violent acts. Of all the violent acts committed, 65 percent  
            are committed by those with 10 or fewer violent acts, and 35  
            percent are committed by those with 10 or more violent acts. A  
            small subset of the population, 116 people, commit the  




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            majority of aggressive acts. DSH states that the best  
            indicator of future behavior is past behavior; therefore, a  
            patient's CHI would enable them to properly assess violence  
            risk.
          
          3.CHI. According to DOJ, state and local summary CHI is  
            confidential and access is strictly regulated by statute. DOJ  
            provides an automated service for CHI checks that may be  
            required as a condition of such things as employment,  
            licensing, and certification. Digitally scanned fingerprints  
            and related information can be submitted electronically to DOJ  
            within a matter of minutes and allows CHI to be processed  
            usually within 72 hours, according to DOJ's Web site. DOJ's  
            record retention policy is to maintain CHI until the subject  
            reaches 100 years of age. State summary CHI contains the  
            identification and criminal history of a person, such as name,  
            date of birth, physical description, fingerprints,  
            photographs, arrests, dispositions, and similar data.
               
          4.CLETS. CLETS provides law enforcement and criminal justice  
            agencies access to various databases and the ability to  
            transmit and receive point-to-point administrative messages to  
            other agencies within California or via the National Law  
            Enforcement Telecommunications System. The CLETS Policies,  
            Practices, and Procedures document states that agencies  
            desiring to obtain access the system must submit an  
            application to the CLETS Executive Secretary for approval by  
            the CLETS Advisory Committee. All agencies must file a  
            subscriber agreement, which must be updated every three years,  
            when the head of an agency changes, or immediately upon  
            request from the CLETS Executive Secretary. Each subscribing  
            agency must designate an Agency Terminal Coordinator as the  
            key person to coordinate with DOJ on matters pertaining to  
            DOJ's criminal justice databases. Agencies must also designate  
            a Security Point of Contact, who is the key person to  
            coordinate with DOJ on security matters pertaining to DOJ's  
            criminal justice databases. Only authorized law enforcement,  
            criminal justice personnel, or their lawfully authorized  
            designees can use CLETS, and any information is confidential  
            and for official use only.

          5.Effect of CHI on patient care. While this bill includes  
            specific uses for, limits the access to, and requires the  
            timely destruction of CHI, DSH should ensure that the CHI does  
            not negatively influence patient treatment. One study  
            published in March 2014, Discrimination based on criminal  




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          5


          

            record and healthcare utilization among men recently released  
            from prison: a descriptive study (Frank et al), found that  
            among 172 male participants, 42 percent reported a history of  
            criminal record discrimination by health care workers. Even  
            though this study is specific to recently released prisoners,  
            it cites the possibility of discrimination while receiving  
            care in a correctional setting. 

          6.Double referral. This bill has been double referred. Should it  
            pass out of this committee, it will be referred to the Senate  
            Public Safety Committee.

          7.Related legislation. AB 1511 (Gaines),  would authorize DOJ  
            and local criminal justice agencies to provide state and local  
            summary CHI to an animal control officer employed by a city,  
            county, or city and county for the purposes of performing his  
            or her duties.
               
            SB 1136 (Huff), would require DOJ to provide county child  
            welfare agency personnel state summary CHI to monitor the  
            health and safety of persons receiving care, treatment, or  
            services from state-licensed foster homes, foster family  
            agencies, and group homes.
            
          8.Previous legislation. AB 2222 (Block), Chapter 84, Statutes of  
            2012, provides that a public prosecutor is not prohibited from  
            accessing and obtaining information from the public  
            prosecutor's case management database to respond to a request  
            for information that can be disclosed to the public under the  
            California Public Records Act.

            SB 1417 (Cox), Chapter 652, Statutes of 2010, provided access  
            to CHI to humane officers for purposes of performing duties to  
            prevent animal cruelty.

            AB 428 (Fletcher), Chapter 441, Statutes of 2009, provided  
            access to CHI to any foreign government as necessary for a  
            person's application to adopt a child from the foreign nation.
               
          9.Support.  The sponsor and other supporters of the bill argue  
            that in order to conduct accurate assessments on a patient to  
            ensure proper placement, treatment planning, and violence  
            risk, as well as to ensure the safety of both patients and  
            staff, state hospital directors and clinicians must have  
            access to patients' CHI.




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          10.Opposition. The California Attorneys for Criminal Justice  
            (CACJ) oppose this bill because it will 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.  
            CACJ argues that a crime that occurred multiple years ago can  
            be unnecessarily considered without any reason for violence  
            risk assessment.
               
           SUPPORT AND OPPOSITION  :
          Support:  California Department of State Hospitals (sponsor)
                    California Association of Psychiatric Technicians
                    California Council of Community Mental Health Agencies
                    California Statewide Law Enforcement Association
                    California State Sheriff's Association
                    Los Angeles County Sheriff's Department
                    Mental Health America of California
                    Union of American Physicians and Dentists/AFSCME-Local  
                              206

          Oppose:   California Attorneys for Criminal Justice


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