BILL ANALYSIS Ó
SB 570
Page 1
Date of Hearing: August 13, 2013
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
SB 570 (DeSaulnier) - As Amended: August 6, 2013
SENATE VOTE : Not relevant.
SUBJECT : Alcohol and other drug counselors.
SUMMARY : Requires the Department of Health Care Services (DHCS)
to require organizations that certify alcohol or other drug
(AOD) counselors to require counselors to submit to a criminal
background check. Specifically, this bill :
1)Requires DHCS to require organizations that certify AOD
counselors to require each person who is registered or
certified, or who applies to become registered or certified,
as an AOD counselor to submit to a criminal background check
via LiveScan, identifying DHCS as the recipient, effective
January 1, 2015.
2)Requires DHCS to electronically submit to the Department of
Justice (DOJ) fingerprint images and related information for
the purpose of obtaining any record of state or federal
convictions or arrests, including arrests for which the person
is free on bail or own recognizance pending trial or appeal.
3)Requires DOJ to forward requests for federal criminal history
information to the Federal Bureau of Investigation and
subsequently compile and disseminate a response to DHCS.
4)Requires DHCS to request notification of subsequent arrests or
convictions from DOJ, as specified.
5)Requires DOJ to charge a reasonable fee sufficient to cover
its costs under this bill.
6)Authorizes DHCS to establish, by regulation, criteria to
implement this bill, as specified, including standards,
exemptions, and terms of rehabilitation for counselors with
prior criminal convictions.
7)Authorizes DHCS to establish, by regulation, a reasonable
application fee to be charged to the certifying organization
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for each applicant or AOD counselor requesting a background
check, not to exceed DHCS's reasonable costs.
8)Requires DHCS to establish a Director's Advisory Panel (DAP)
with membership selected by the Director of DHCS. Requires
DAP members to be certified AOD counselors and have at least
five years of experience in AOD treatment services.
9)Requires DAP members to submit to a LiveScan criminal
background check for review by the Director of DHCS prior to
being selected for the panel.
10)Allows DAP to do all of the following:
a) Advise DHCS on the development of criteria, as
specified, for baseline decisions regarding AOD counselors,
as these decisions relate to criminal background checks,
consistent with DHCS regulations established in 6) above;
b) Review an applicant's or AOD counselor's LiveScan
results and provide a recommendation to the DHCS Director
regarding an applicant's or AOD counselor's qualifications
to receive a registration or certification, upon request of
DHCS; and,
c) Make recommendations to DHCS regarding criteria for
disciplinary guidelines.
11)Requires an AOD counselor certifying organization to do the
following:
a) Report complaints made against an AOD counselor to DHCS
and assist in documenting these complaints;
b) Comply with DHCS's decisions regarding disciplinary
actions, including initial denial of a registration or
certification; and,
c) Report any known criminal convictions of an AOD
counselor to DHCS.
12)Requires DHCS to report any complaints made to DHCS against
an AOD counselor to the counselor's approved certifying
organization and to assist that organization in documenting
the complaint.
EXISTING LAW :
1)Establishes the Department of Drug and Alcohol Programs (DADP)
as the lead state agency for AOD programs and requires DADP to
prepare a master plan to eliminate drug and alcohol abuse in
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California.
2)Requires all adult alcoholism or drug abuse recovery or
treatment facilities to be licensed by DADP.
3)Grants DADP the sole authority in state government to
establish appropriate minimum qualifications, including
education, skills, life experience, and training for
licensees, designated administrators, and staff.
4)Requires all AOD programs to register with the county drug and
alcohol program administrator in the county in which the
program is located in order to coordinate efforts in that
county. Provides that registration does not constitute
approval or endorsement by the county or by DADP.
5)Establishes, in state regulations, 10 counselor organizations
approved by DADP to register and certify AOD counselors who
provide counseling services in an AOD program, as defined.
6)Requires, in state regulations, all non-licensed staff
providing counseling services in an AOD program to be
certified or registered to obtain certification from an AOD
counselor certifying organization. For purposes of this
requirement, an AOD program includes a driving under the
influence program (DUI), a licensed narcotic treatment
program, a licensed residential AOD recovery or treatment
program, an AOD recovery or treatment program certified to
receive Medi-Cal reimbursement, and other AOD recovery or
treatment programs, as specified.
7)Requires, in state regulations, the certification of AOD
counselors to be based on specific addiction counseling
competencies, including understanding addiction, knowledge of
treatment methods, and professional readiness.
8)Effective July 1, 2013, transfers the administration of
prevention, treatment, and recovery services for alcohol and
drug abuse from DADP to DHCS.
FISCAL EFFECT : This bill, as amended, has not been analyzed by
a fiscal committee.
COMMENTS :
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1)PURPOSE OF THIS BILL . The author writes that the California
Senate Office of Oversight and Outcomes (SOOO) recently
published a report titled "Suspect Treatment: State's lack of
scrutiny allows unscreened sex offenders and unethical
counselors to treat addicts." The report indicates that a
lack of criminal background checks is resulting in the
certification of AOD counselors who are a danger to their
patients. The report recommends, at a minimum, that criminal
background checks be completed for all individuals seeking
certification as an AOD counselor.
2)BACKGROUND . AOD dependency is a treatable condition, but no
one treatment modality is successful with all persons who
exhibit chemical dependency problems. Most treatments focus
on helping people discontinue their AOD intake, followed by
life training and/or social support in order to help them
resist a return to substance use. Since chemical dependency
involves multiple factors which encourage a person to continue
using, they must all be addressed in order to successfully
prevent a relapse. An example of this kind of treatment is
detoxification, followed by a combination of supportive
therapy, attendance at self-help groups, and ongoing
development of coping mechanisms.
In April 2005, DADP adopted counselor certification regulations
that apply to non-licensed individuals providing counseling
services in an AOD program licensed by DADP. (Many licensed
professionals also provide AOD counseling, including licensed
marriage and family therapists, licensed clinical social
workers, psychologists, and physicians and surgeons, including
psychiatrists. All of these professionals are licensed by
boards overseen by the Department of Consumer Affairs [DCA].)
To meet counselor certification requirements, individuals must
be certified by one of the certifying entities approved by
DADP (currently a list of six organizations accredited by the
National Commission for Certifying Agencies). In order for a
certifying entity to issue counselor certification, its
requirements must meet minimum standards that have been
established by DADP. These standards require the certifying
entity to, among other things, require individuals to complete
at least 155 hours of formal classroom education, as defined;
document at least 160 hours of supervised AOD program
counseling and 2,080 or more hours of work experience; and
obtain a score of at least 70% on an approved exam. DADP
certification is valid for two years and a counselor is
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required to complete 40 hours of continuing education every
two years for renewal. An individual who is registered to
become a certified AOD counselor is currently permitted to
work as a counselor for up to five years while he or she
fulfills the requirements of certification.
About 36,000 registered or certified counselors work in over
2,500 private and publicly funded AOD programs, ranging from
luxury residential rehabs to DUI and outpatient programs.
Demand for the services of AOD counselors is expected to grow
as people newly insured under the federal Patient Protections
and Affordable Care Act seek help for substance dependence.
3)SOOO REPORT . The 2013 SOOO report presents evidence that
California's system for addiction treatment allows registered
sex offenders and other serious felons, as well as counselors
facing current drug and alcohol charges and those already
revoked for misconduct, to provide treatment. The report
finds that counselors can easily flout education and training
requirements; that the system does not allow for criminal
background checks for counselors; and that the system contains
gaps that can be exploited by counselors who move between
private organizations that register and certify counselors.
The SOOO investigation found 23 sex offenders who were permitted
to work as counselors, and notes that the actual number is
likely much higher. According to the report, most of these
sex offenders are convicted of crimes involving rape or
pedophilia. For example, the report notes that one individual
who was convicted of 110 counts of lewd acts upon a child
signed up with one of the state's certification organizations
when he was released from prison in 2005. In addition to sex
offenses, the report outlines other instances of individuals
with criminal convictions working as AOD counselors. For
example, one woman with four prior theft convictions became a
counselor and stole $55,000 from a client. Finally, the
report describes four individuals who were convicted of fraud
and subsequently registered to work as AOD counselors.
The SOOO report indicates that California is one of only two
states among the nation's 15 largest that makes no attempt to
review counselors' criminal backgrounds. Within California,
AOD counseling is the only health-related profession not
required to undergo background checks. Among those who submit
to screening are acupuncturists, dental hygienists,
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optometrists, and veterinarians. The report indicates that,
among the other large states, various methods are used to
obtain information about serious convictions before
credentialing AOD counselors. Some of these states bar
applicants if they've been convicted of certain crimes; others
look at each case individually. Some do fingerprint-based
computer searches; others trust applicants to report their own
criminal histories. According to the report, only California
and Pennsylvania make no attempt to screen out individuals
whose criminal background could put clients at risk.
The SOOO report recommends that drastic changes to California's
counselor certification system should be considered. Among a
list of many recommendations, the report recommends that the
Legislature consider putting the state, rather than the
certifying organizations, in charge of licensing and/or
certifying counselors, with a requirement for
fingerprint-based criminal background checks for anyone
working as a counselor. Alternatively, the SOOO report
suggests that the state should require certifying
organizations to perform criminal background checks. In this
case, the report suggests that the state could establish
guidelines for assessing criminal histories, and could set up
an advisory panel of experts from within the treatment
industry to evaluate and make recommendations on individual
cases. That is the approach that is being pursued by this
bill.
The report also makes numerous additional recommendations,
including the following: a) individuals applying to work as
counselors should be checked against the National Practitioner
Data Bank, with regulations that include guidelines for how
prior administrative actions against an applicant would be
evaluated; b) certifying organizations should be required to
check with their counterparts, upon registration rather than
certification, to see if a counselor's certification or
registration has ever been revoked; c) DHCS should develop a
regulation specifying the methods certifying organizations
should use to cross-check applicants, including a requirement
for certifying organizations to check with each other to see
if a registrant has already reached the five-year limit for
working without certification with another organization; and
d) DHCS should clarify through regulation its authority to
sanction certifying organizations for failing to adequately
vet those they register and certify.
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4)LIVE SCAN FINGERPRINTING . In California, DOJ provides an
automated service for criminal history background checks that
may be required as a condition of employment, licensing,
certification, foreign adoptions, or immigration clearances.
According to DOJ, approximately 35,000 entities perform
background checks through DOJ's Bureau of Criminal Information
and Analysis. Individuals who are required to be
fingerprinted must fill out a one-page form (typically
provided by their employer) entitled "Request for Live Scan
Service" that asks for information about the individual,
including name, date of birth, gender, height, weight, place
of birth, address, and Social Security number. The rolling of
the individual's fingerprints must be done by a certified Live
Scan operator (which includes public providers, such as police
departments, and private providers). Once submitted to the
DOJ by the Live Scan operator, the fingerprints are searched
against all arrest fingerprint images submitted to and
maintained by DOJ from California law enforcement agencies.
The applicant's fingerprints are retained and are searched
against all new arrest fingerprint images. Biometric matches
result in subsequent notification to the affected response
agency, generally within 48 to 72 hours. Fees for state and
federal background checks for general certification purposes
are $32 and $17, respectively. In addition, Live Scan
operators charge rolling fees to cover their costs; these fees
are typically in the $20 to $25 range, but some locations list
rolling fees as high as $80.
5)SUPPORT . The California Association of Alcohol and Drug Abuse
Counselors (CAADAC), in support, writes that there is a
documented need to improve the safety of our AOD treatment
system. CAADAC writes that, because there is no state
certification or licensure, abusive and incompetent counselors
are allowed to provide services in public and private settings
with little oversight and few consequences to unethical
behavior. CAADAC writes that this bill is a step in the
direction of professionalizing AOD counseling, a cause it has
supported for two decades.
6)RELATED LEGISLATION .
a) AB 389 (Williams) requires private, nonpublic schools,
to fingerprint all employees who will have contact with
pupils and submit two sets of the fingerprints to DOJ for
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the purpose of obtaining criminal record summary
information. AB 389 is pending in the Senate
Appropriations Committee.
b) AB 465 (Bonilla and Maienschein) authorizes a community
youth athletic program to request state and federal level
background checks for a volunteer coach or hired coach
candidate. AB 465 is on the Assembly Floor pending
concurrence in Senate amendments.
c) AB 1027 (Bonilla) authorizes a community youth athletics
program to request state and federal level background
checks for a volunteer coach or hired coach candidate. AB
1027 is pending in the Assembly Public Safety Committee.
d) SB 509 (DeSaulnier), Chapter 10, Statutes of 2013,
requires the California Health Benefit Exchange to submit
fingerprint images and related information regarding all
employees, contractors, subcontractors, volunteers, or
vendors whose duties include access to confidential
information, as specified, for the purposes of obtaining
information about state or federal criminal history and
information about state or federal arrests for which the
person is free pending trial or appeal.
7)PREVIOUS LEGISLATION .
a) SB 1014 (Committee on Budget), Chapter 36, Statutes of
2012, was a 2012-13 Budget trailer bill. SB 1014
eliminates DADP and transfers the administrative and
programmatic functions of DADP to departments within the
California Health and Human Services Agency.
b) AB 2007 (Williams) of 2012 would have established a
licensing and certification system for AOD counselors to be
administered by the Department of Public Health. AB 2007
was held in the Assembly Health Committee.
c) SB 1203 (DeSaulnier) of 2010 would have instituted a
licensing and certification system for AOD counselors
administered by DADP. SB 1203 was held in the Assembly
Rules Committee.
d) SB 707 (DeSaulnier) of 2009, substantially similar to SB
1203, was held on the Assembly Appropriations Committee
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Suspense File.
e) AB 239 (DeSaulnier) of 2008 would have established two
categories of licensed AOD counselors under the Board of
Behavioral Sciences (BBS) for counselors not working in
licensed treatment facilities; counselors in licensed
facilities would have remained under the jurisdiction of
DADP and subject to the existing certification process. AB
239 was vetoed by Governor Schwarzenegger, who stated, in
his veto message, that he was directing DADP to work to
craft a uniform standard for all AOD counselors whether in
private practice or in licensed facilities.
f) AB 1367 (DeSaulnier) of 2007 would have provided for the
licensing, registration, and regulation of AOD counselors,
as defined, by the BBS. AB 1367 was held on the suspense
file in the Assembly Appropriations Committee.
g) AB 2571 (Longville) of 2004 would have created the Board
of Alcohol and Other Drugs of Abuse Professionals in DCA
and established requirements for licensure of AOD
counselors. AB 2571 failed passage in the Assembly Health
Committee.
h) AB 1100 (Longville) of 2003 would have enacted the
Alcohol and Drug Abuse Counselors Licensing Law, to be
administered by the BBS. AB 1100 was held in the Assembly
Business and Professions Committee.
i) SB 1716 (Vasconcellos) of 2002 would have required the
BBS to license and regulate AOD counselors. SB 1716 was
held in the Assembly Business and Professions Committee.
j) SB 537 (Vasconcellos) of 2001 would have required DCA to
initiate a comprehensive review of the need for licensing
of substance abuse counselors. SB 537 was vetoed by
Governor Davis due to cost concerns. In his veto message,
the Governor directed DADP to require counselors in AOD
treatment facilities to be certified for quality assurance
purposes.
aa) SB 685 (Watson), Chapter 444, Statutes of 1995, subjects
AOD counselors to the same criminal sanctions that apply to
psychotherapists or physicians and surgeons who engage in
sexual conduct with current or former patients or clients.
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8)POLICY COMMENTS .
a) This bill requires DHCS to do two things: a) require
certifying organizations to require counselors to submit to
criminal background checks and b) create the DAP. This
bill also allows DHCS to draft regulations establishing
criteria for the review of background check information.
This bill does not require DHCS to do anything with the
criminal background check information it receives. In
order to ensure that DHCS implements this bill effectively
and has a transparent and consistent process for reviewing
background checks, the Committee may wish to amend this
bill to: i) require DHCS to review each background check
received and provide the certifying agency with a
determination of whether the application should be denied
based on the individual's criminal background; and ii)
require, rather than authorize, DHCS to draft regulations
to establish criteria for the review of background checks.
b) The DAP established by this bill is an advisory panel
composed of AOD counselors that would be authorized to
review background check information of other AOD
counselors. Given the highly sensitive and confidential
nature of information contained in an individual's criminal
background check, the Committee may wish to amend this bill
to limit the DAP's role to advising DHCS on criteria for
review of background clearances and criteria for
disciplinary guidelines.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Alcoholism and Drug Abuse Counselors
(sponsor)
California Association of Addiction Recovery Resources
California Certification Board of Alcohol and Drug Abuse
Counseling
California Foundation for the Advancement of Addiction
Professionals
County Alcohol and Drug Program Administrators Association of
California
Opposition
None on file.
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Analysis Prepared by : Ben Russell / HEALTH / (916) 319-2097