BILL ANALYSIS                                                                                                                                                                                                    Ó






                                  SENATE HUMAN
                               SERVICES COMMITTEE
                            Senator Jim Beall, Chair


          BILL NO:       AB 2632                                      
          A
          AUTHOR:        Maienschein                                  
          B
          VERSION:       June 18, 2014
          HEARING DATE:  June 24, 2014                                
          2
          FISCAL:        Yes                                          
          6
                                                                      
          3
          CONSULTANT:    Sara Rogers                                  
          2

                                        
                                     SUBJECT
                                         
                                Care facilities

                                     SUMMARY  

          This bill prohibits CDSS from issuing a criminal record  
          clearance prior to conducting an investigation, to a person  
          who is subject to a criminal record check as a condition of  
          licensure, employment, or presence in, a community care  
          facility, foster home, residential care facility for the  
          elderly, or child care facility or home, and who has been  
          arrested for specified serious or violent crimes.


                                     ABSTRACT  

           Existing Law: 


           1)Enacts the Community Care Facilities Act, which provides  
            for the licensure and oversight of residential facilities  
            for children and adults. (HSC 1500 et seq.)



                                                         Continued---




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          2)Requires CDSS and county agencies with Foster Family Home  
            licensing authority to secure both California and Federal  
            Bureau of Investigation (FBI) criminal history  
            information to determine whether the applicant or other  
            specified non-exempt persons, including other adults  
            residing in a licensed community care facility, licensed  
            or certified foster home, residential care facility for  
            the elderly, or child care facility or home have ever  
            been convicted of any crime other than a minor traffic  
            violation or arrested for the following crimes (HSC 1522,  
            1568.09, 1569.17, and 1596.871):


                     Crimes that require registration pursuant to  
                 the Sex Offender Registry Act (PEN 290 (c));
                     Assault with a deadly weapon or firearm (PEN  
                 245);
                     Felony/misdemeanor domestic violence (PEN  
                 273.5); 
                     Felony/misdemeanor child abuse under conditions  
                 not likely to produce great bodily harm or death  
                 (PEN 273a (b));
                     Any crime for which the department cannot grant  
                 an exemption (see below).


          1)Requires the California Department of Justice (DOJ) to  
            maintain state summary criminal history information and  
            provides for DOJ to furnish state and federal summary  
            criminal history information to any authorized agency or  
            organization as specified, when the information is used  
            for employment, licensing or certification purposes.  
            Information provided under this paragraph is redacted to  
            include only the following ((PEN 11105(m)):


                     All convictions rendered against the applicant;
                     Any arrest for which the applicant is currently  
                 awaiting trial;
                     All arrests for which CDSS is required to  
                 determine whether an applicant has been arrested,  
                 except those in which CDSS does not receive  
                 information pertaining to arrests subsequently  
                 deemed a detention or arrests that resulted in  
                 successful diversion or exoneration.





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          1)Provides that CDSS may grant an exemption to a criminal  
            conviction exclusion (except as specified below) if the  
            director has substantial and convincing evidence to  
            support a reasonable belief that the person convicted of  
            the crime is of good character in order to justify  
            granting the exemption. ((HSC 1522 (g)) 


          2)Provides that the director may not grant exemptions to  
            convictions of more than 58 Penal Code violations  
            including<1> (HSC 1522 (g)):


                     All crimes that require registration pursuant  
                 to the Sex Offender Registry Act including lewd and  
                 lascivious conduct with a child, child pornography,  
                 sexual battery, rape, sexual exploitation of  
                 children, and others.
                     Felony/misdemeanor child abuse under conditions  
                 likely to produce great bodily harm or death,  
                 torture, kidnapping.
                     Cruel and inhumane corporal punishment on a  
                 child.
                     Elder abuse.
                     Drawing, exhibiting or using a firearm or  
                 deadly weapon on the grounds of a day care center.
                     Attempted murder.
                     Arson with great bodily injury.
                     Any felony punishable by death or life in  
                 prison without parole.
                     Weapons of mass destruction.


          1)For foster care providers, provides that the following  
            felony convictions shall also be non-exemptible (HSC 1522  
            (g)(1)(C)):


          -------------------------
          <1> "Non-Exemptible Crimes. Revised 4/10"  
           http://www.ccld.ca.gov/res/pdf/non_exempt.pdf  







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                     A felony conviction for child abuse and  
                 neglect, spousal abuse, crimes against a child,  
                 including child pornography, or for a crime  
                 involving violence, including rape, sexual assault,  
                 or homicide, but not including other physical  
                 assault and battery.
                     A felony conviction within the last five years  
                 for physical assault, battery, or a drug or alcohol  
                 related offence. 


          1)Requires CDSS to investigate arrest-only incidents that  
            are for crimes for which the department is prohibited  
            from granting an exemption (see number 5), but does not  
            require investigation of arrests for other, potentially  
            violent or otherwise relevant, crimes. ((HSC 1522 (d) and  
            1596.871 (a)(1))


          2)Requires DOJ to act as a repository of reports of  
            suspected child abuse and severe neglect to be maintained  
            in the Child Abuse Central Index (CACI) and permits DOJ  
            to make relevant information available to child welfare  
            agencies that are conducting a child abuse investigation  
            and to make information available to county licensing  
            agencies regarding applicants for licensure, approval,  
            residence, or employment in a children's community care  
            facility. (PEN 11170)


          3)Requires CDSS to check the CACI prior to granting a  
            license to, or otherwise approving, any individual to  
            care for or reside with children, and to investigate any  
            reports received from the CACI. (HSC 1522.1 and PEN  
            11170)


          4)Prohibits CDSS from using arrest records to deny, revoke,  
            or terminate any application, license, employment or  
            residence unless the department investigates the incident  
            and secures evidence that is admissible in an  
            administrative hearing to establish conduct by the person  
            that may pose a risk to the health and safety of any  
            person who is or may become a client. ((HSC 1522 (e))






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          5)Provides that if a Foster Family Home or Certified Family  
            Home applicant, or other specified persons, have  
            convictions that would make the applicant's home unfit as  
            a FFH or CFH, the license, special permit or certificate  
            of approval shall be denied. (HSC 1522 (d))


          6)Provides that if a Foster Family Home or Certified Family  
            Home applicant, or other specified persons, are awaiting  
            trial for a crime other than a minor traffic violation,  
            CDSS or a county may cease processing the application  
            until the conclusion of the trial. (HSC 1522 (d))


           This bill:


           1)This bill prohibits CDSS from issuing a criminal record  
            clearance, prior to completing an investigation, to a  
            person who is subject to a criminal record check as a  
            condition of licensure, employment, or presence in, a  
            community care facility, foster home, residential care  
            facility for the elderly, or child care facility or home,  
            who has been arrested for the following crimes:


                     Crimes that require registration pursuant to  
                 the Sex Offender Registry Act (PEN 290 (c));
                     Assault with a deadly weapon or firearm (PEN  
                 245);
                     Felony/misdemeanor domestic violence (PEN  
                 273.5); 
                     Felony/misdemeanor child abuse under conditions  
                 not likely to produce great bodily harm or death  
                 (PEN 273a (b)).

          1)Makes technical clarifying changes to the criminal record  
            clearance process for community care facilities,  
            residential care facilities for the elderly and child  
            care facilities.
                                  FISCAL IMPACT  

          An Assembly Appropriations analysis states there are  
          negligible state costs as CDSS indicates this bill  





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          corresponds with the process they implemented in March of  
          this year.

                           BACKGROUND AND DISCUSSION

            Purpose of the bill:


           According to the author, in 2011, CDSS began issuing  
          clearances to individuals arrested of serious and violent  
          crimes pending completion of its investigation into the  
          individual's arrest record, thereby allowing the  
          individuals to find employment in any of the care  
          facilities licensed by the Department. 


          Prior to 2011, CDSS completed a full review of applicable  
          arrests prior to issuing clearances, but the department  
          changed its procedure in response to threat of legal action  
          that the investigations were taking too long, the author  
          states. Rather than expedite the process for performing  
          background investigations, the author states that CDSS  
          adopted a policy of issuing clearances before conducting an  
          investigation, reserving the option of revoking the  
          clearance once the investigation was complete, and the  
          individual was already working in a CDSS-licensed care  
          facility.  


          The author states that this bill clarifies that CDSS is  
          prohibited from issuing a criminal record clearance to a  
          person who has been arrested for a specific list of serious  
          and/or violent crimes prior to the Department's completion  
          of a background investigation, for individuals applying for  
          employment in a CDSS-licensed care facility. 


          Criminal Record Clearances for Community Care Facilities


          Federal Law pursuant to the Adam Walsh Act (P.L. 109-248)  
          as well as California statute requires background checks to  
          be performed by CDSS of all applicants, licensees,  
          non-client adult residents, volunteers under certain  
          conditions and employees of community care facilities,  





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          including foster homes, residential care facilities for the  
          elderly and child care facilities and homes who have  
          contact with clients. The Caregiver Background Check Bureau  
          (CBCB) was established in 1992 to review criminal history  
          information as well as possible matches in the Child Abuse  
          Central Index (CACI) and to render decisions for state  
          licensed community care facilities and for the TrustLine  
          Registry.<2>


          If a criminal record check shows that an individual has  
          been convicted of any crime other than a minor traffic  
          violation, the individual is not permitted to work or be  
          present in any community care facility unless they receive  
          a written criminal record exemption from CDSS (or the  
          county, if it is the licensing entity). The department also  
          is required to examine arrest records to determine if the  
          arrests are for "referable crimes" that require  
          investigation by the bureau; referable crimes are of such  
          severity that an arrest-only nonetheless warrants an  
          investigation by the department to ensure the safety of  
          residents of community care facilities. Arrest-only  
          incidents that result in a detention only, where no  
          accusatory pleading is filed, are not referable for an  
          investigation, arrest-only incidents that result in  
          diversion may be referred pursuant to CDSS regulations  
          (although DOJ currently does not include these arrests in  
          the CDSS criminal history report), while arrest-only  
          incidents for referable crimes must be referred for  
          investigation if they resulted in the following:<3>


                           Complainant Refused Prosecution
                           Bail Exonerated
                           All Juvenile arrest only entries  
                    including those where minor was released to  
                  ---------------------
          <2> HSC 1522, 1568.08, 1569.17, and 1596.871


           ----------------------------------------------- 
          |<3> CDSS Evaluator Manual: Reference Material  |
          |for Background Check Procedures                |
           ----------------------------------------------- 
           http://www.ccld.ca.gov/res/pdf/BACKGROUNDCHECKPROCEDURES.pdf 
           




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                    parent or guardian
                           Acquitted or Not Guilty
                           Prosecutor filed a criminal complaint but  
                    later dismissed it
                           Any other disposition not otherwise  
                    exempted


          Summary criminal history information


          State summary criminal history information is defined as  
          "the master record" of information compiled by the Attorney  
          General pertaining to the identification and criminal  
          history of any person, including their name, date of birth,  
          physical description, fingerprints, photographs, dates of  
          arrests, arresting agencies and booking numbers, charges,  
          dispositions, and similar data about the person. It does  
          not include "records and data compiled by criminal justice  
          agencies other than the Attorney General, nor does it refer  
          to records of complaints to or investigations conducted by,  
          or records of intelligence information or security  
          procedures of, the office of the Attorney General and the  
          Department of Justice. (PEN 11105)


          The Criminal Offender Record Information (CORI), commonly  
          referred to as the "rap sheet," is the document provided by  
          DOJ or the FBI in response to a request for a criminal  
          record review with submitted fingerprints. For initial  
          inquiries, a CORI may contain the following information:


                 All convictions and their related arrests
                 All arrests with pending dispositions verified  
               within the last 30 days
                 Arrest information only of specific, serious  
               crimes.
                 Warrants
                 Non-retainable offenses (local ordinance  
               infraction, or a Vehicle Code violation).


          Following an initial request, a permitted entity may  
          request to receive any subsequent arrest or conviction  





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          information following an initial clearance. Subsequent  
          Arrest Notification Service (SANS) also known as "rap  
          backs" may contain: 


                 All convictions and their related arrests
                 Arrest information of all crimes
                 Warrants
                 Non-retainable offenses (local ordinance infraction  
               or a Vehicle Code violation)
                 Certain rap sheets may include both a conviction  
               and an arrest with a disposition other than a  
               conviction.


          Federal law (P.L. 92-544), permits the FBI to exchange  
          criminal history record information with officials of state  
          and local governments for employment, licensing, including  
          volunteers, and for other similar noncriminal justice  
          purposes, if authorized by a state statute which has been  
          approved by the Attorney General of the United States.


          This system, called the Interstate Identification Index  
          System (Triple III) allows for the exchange of federal and  
          multi-state information, ensuring that criminal record  
          searches include records from all participating states and  
          the federal government. To participate, states must enter  
          into compacts with the federal government and abide by  
          strict statutory and regulatory rules.<4> According to the  
          FBI, the U.S. Department of Justice has advised that a  
          state statute that establishes guidelines for a category of  
          employment or the issuance of a license must, in itself,  
          require fingerprinting and authorize the governmental  
          licensing or employing agency to exchange fingerprint data  
          directly with the FBI. A federal Final Rule regarding the  
          outsourcing of criminal records for noncriminal justice  
          purposes establishes that the use of information that is  
          requested for noncriminal justice purposes is "limited to  
          -------------------------

          -------------------------
          <4> http://www.fbi.gov/about  
          -us/cjis/cc/the-compact/the-compact






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          the purpose for which it was provided."<5>


          Arguments in Opposition


          Legal Services for Prisoners with Children writes in  
          opposition that this bill creates another layer of  
          difficulty in obtaining stable employment, which is an  
          effective and important way to reintegrate into the  
          community.  Additionally, LSPC writes that arrest records,  
          as opposed to conviction records to not indicate that  
          anyone has done anything wrong, but merely that wrongdoing  
          was suspected and never substantiated.  


          East Bay Community Law Center writes in opposition that  
          this bill "runs counter to longstanding procedural  
          protections built into this statutory scheme to prevent  
          depravation of work clearance based only on arrest  
          information." EBCLC additionally states that by refusing  
          permission for individuals with Arrest Only Records to  
          begin work in community care facilities until CDSS has  
          concluded an investigation of their past arrests, this bill  
          will improperly deprive qualified community care workers of  
          jobs, and will deprive community care employers of their  
          choice of employees because community care employers  
          generally cannot hold positions open for the weeks or  
          months it will take for prospective employees with  
          Arrest-Only records to obtain work clearance. According to  
          EBCLC, when CDSS was following a practice similar to the  
          standard proposed by AB 2632, clearance investigations  
          lasted anywhere from four to six months. Further, the  
          opposition states that even under current CDSS projections  
          for pre-employment arrest investigations, CDSS will require  
          anywhere from several weeks to four months, to complete an  
          investigation.


          Arguments in Support

          -------------------------
          <5>  
          http://www.fbi.gov/foia/privacy-impact-assessments/firs-iafi 
          s






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          The Children's Advocacy Institute writes in support that  
          "recent news reports in Sacramento prompted by  
          whistleblowers from within the Department of Social  
          Services alleged that the Department was offering criminal  
          clearances to applicants for some of the most sensitive  
          jobs in state government, including working with and caring  
          for children, even though these applicants have not had  
          their backgrounds investigated by the Department and even  
          though the applicants have been arrested for serious and  
          violent felonies, including rape, arson, attempted murder  
          to name a few."


          "This failure of the Department to investigate the  
          backgrounds of these applicants before sending criminal  
          background clearances to their possible employers is not  
          only dangerous, it frustrates and defeats the whole point  
          of requiring background checks, and was likely unlawful?  
          This bill clarifies the current law in such a fashion as to  
          amplify current legislative intent that a complete  
          investigation of the criminal backgrounds of those caring  
          for our most vulnerable must precede the Department's  
          approval of them."
           
                                    COMMENTS

           1.This bill has overlap with SB 1136 and, should both  
            measures pass and be signed by the Governor, will need  
            chaptering amendments to ensure that both measures take  
            effect.


          2.As noted previously, CDSS currently uses a clearance  
            process for investigating arrests which is different from  
            the process used to exempt exclusions due to convictions.  
            While all convictions, other than minor traffic  
            violations, must be investigated and exempted in order  
            for an individual to be cleared, a far narrower list of  
            "referable" arrest crimes are investigated. This list has  
            not been recently updated and excludes significant crimes  
            including PEN 273ab, a crime which has been recently  
            added to the statute. 







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            Additionally, staff notes that following a criminal  
            record clearance, a rap-back will contain information on  
            any subsequent arrest for that individual and CDSS is  
            required to investigate all such arrests, regardless of  
            whether the arrest is non-exemptible. However for initial  
            criminal record clearances, DOJ reports it does not  
            provide CDSS with information on prior arrests that are  
            not statutorily defined as non-exemptible, excluding many  
            potentially violent and serious crimes which may have  
            significant implications for the health and safety of  
            vulnerable residents of community care facilities  
            including children, disabled adults, and seniors.<6> 


            Further, opponents of this bill argue that the current  
            list of referable arrest-only crimes may be overly broad  
            including for example, an arrest following a fight at a  
            party. Additionally opponents state that existing  
            regulation providing that arrests resulting in a  
            "detention only" is very narrow and includes arrests for  
            crimes for which there was no judicial review of any  
            sort, and which may have been dropped because it was  
            clear the individual was not guilty. Staff notes that  
            initial intent for the arrest-only investigations was to  
            capture arrests only for the most serious of offenses. 


            Staff recommends the author engage the department in a  
            subsequent conversation about these questions regarding  
                                                                   the quality of the arrest-only review prior to the bill  
            being heard in Senate Appropriations.  


           





          Related Legislation:


          -------------------------
          <6> ((HSC 1522 (d) and 1596.871 (a)(1))






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           SB 1136 (Huff, 2014) permits CDSS to share with counties a  
          summary description of convictions, arrests and exemptions,  
          including the justification for the exemption, pertaining  
          to a licensed foster care provider, as specified. This bill  
          is in Assembly Appropriations Committee.



                                   PRIOR VOTES  

          Assembly Floor      77 - 0
          Assembly Appropriations  17 - 0
          Assembly Human Services    5 - 0

                                         

                                   POSITIONS  

          Support:       Children's Advocacy Institute at the  
          University of San Diego-
                         School of Law (Sponsor)
                         Association of Regional Center Agencies
                         California Assisted Living Association
                         Legal Services for Prisoners with Children
                         The Arc and United Cerebral Palsy California  
          Collaboration
                         The Legislative & Public Policy Clinic  
          University of the Pacific,-
                         McGeorge School of Law
                         
                         

          Oppose:   American Civil Liberties Union
                         East Bay Community Law Center
                         Lawyers Committee for Civil Rights 
                         

                         






                                   -- END --





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