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) PageB 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) PageC 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) PageD 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)) STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein) PageE 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) PageF 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) PageG 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 STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein) PageH 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) PageI 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 STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein) PageJ STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein) PageK 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) PageL 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. STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein) PageM 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)) STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein) PageN 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 -- STAFF ANALYSIS OF ASSEMBLY BILL 2632 (Maienschein) PageO