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---
STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein)
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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.
STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein)
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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
STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein)
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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
STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein)
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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,
STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein)
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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
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<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
STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein)
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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
STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein)
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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
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<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
STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein)
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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:
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<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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