BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 1384
AUTHOR: Mitchell
INTRODUCED: February 21, 2014
HEARING DATE: April 24, 2014
CONSULTANT: Marchand
SUBJECT : Certified nurse assistants.
SUMMARY : Eliminates provisions of law that require the
California Department of Public Health (CDPH) to deny or revoke
a certificate of a certified nurse assistant based on the
conviction of specified offenses, and limits the ability of CDPH
to deny or revoke a certificate due to a criminal conviction
using its discretionary ability by establishing a presumption of
rehabilitation if three years has passed since the applicant has
been released from prison and any parole or probation has been
completed.
Existing law:
1.Establishes CDPH, which certifies and regulates certified
nurse assistants (CNAs).
2.Establishes a scope of practice for CNAs as performing basic
patient care services directed at the safety, comfort,
personal hygiene, and protections of patients, and prohibits
CNAs from performing any services which can only be performed
by a licensed person, and requires all services to be
performed under the supervision of a licensed registered nurse
or a licensed vocational nurse.
3.Requires an applicant for certification as a CNA to be at
least 16 years of age, have successfully completed a
CDPH-approved training program that includes at least 60
classroom hours and 100 hours of supervised on-the-job
training, and have obtained a criminal record clearance.
4.Requires the criminal record clearance for CNAs to be
conducted by submission of fingerprint images and related
information for processing at the Department of Justice.
5.Requires CNA certificates to be renewed every two years, and
requires the certificate holder to obtain another criminal
record clearance in order to have their certificate renewed.
Continued---
SB 1384 | Page 2
6.Requires CDPH to deny, suspend, or revoke a CNA certificate if
the applicant or certificate holder has been convicted of
violating any of one of a number of specified criminal laws,
including: murder; robbery; assault; kidnapping; various
sexual offenses; elder or dependent abuse; theft; and
extortion, among other offenses, unless the person has
obtained a certificate of rehabilitation, as specified, or the
accusation or conviction has been dismissed or otherwise set
aside pursuant to specified provisions of law. However, if the
certificate holder had previously disclosed the fact of each
conviction to CDPH, and CDPH has made a determination the the
conviction does not disqualify the applicant from
certification, CDPH is permitted to renew the certificate.
7.Permits CDPH to deny, suspend, or revoke a CNA certificate for
certain specified reasons, including the following:
a. Unprofessional conduct, as specified;
b. Conviction of a crime substantially related to
the qualifications, functions, and duties of a CNA,
even if the conviction has been dismissed or set aside
pursuant to specified provisions of law, where CDPH
has determined that the applicant or certificate
holder has not adequately demonstrated that he or she
has been rehabilitated and will present a threat to
the health, safety, or welfare of patients; and,
c. Conviction for, or use of, any controlled
substance, as defined, or any prescription drug, or
alcoholic beverages, to an extent or in a manner
dangerous or injuries to the CNA or any other person,
or to the extent it would impair the ability to
practice as a CNA.
8.Requires CDPH, in determining whether or not to deny the
application for certification or renewal under 7) above, to
take into consideration specified factors as evidence of good
character and rehabilitation, including: the nature and
seriousness of the conduct or crime and its relationship to
their employment duties; activities since conviction that
would indicated changed behavior; the time that has elapsed
since commission of the conduct or crime; the extent to which
the person has complied with any terms of parole, probation,
or restitution; and, any rehabilitation evidence, including
SB 1384 | Page
3
character references, submitted by the person.
This bill:
1.Eliminates the provisions of law that require CDPH, except
under specified circumstances, to deny, suspend, or revoke a
certificate as a CNA if the applicant or certificate holder
has been convicted of one of a number of specified criminal
offenses, including murder, robbery, assault, kidnapping,
various sexual offenses, elder or dependent abuse, various
larceny and extortion offense, and others.
2.Revises and restricts the ability of CDPH to determine whether
an applicant has adequately demonstrated rehabilitation, for
purposes of CDPH's discretionary ability to deny, suspend or
revoke a certificate as a CNA based on the conviction of a
crime substantially related to the qualifications, functions,
and duties of a CNA, in the following ways:
a. Establishing a presumption of sufficient
rehabilitation if the applicant or certificate holder
has both completed any probation, mandatory
supervision, or parole, and three years have elapsed
after final discharge or release from any term of
imprisonment without a subsequent conviction;
b. Adding an order from a superior court, as
specified, relating to the dismissal or setting aside
of criminal convictions, to the list of factors that
are evidence of rehabilitation, and deleting the
ability of CDPH to disregard these same orders when
determining whether an applicant has adequately
demonstrated rehabilitation.
3.Makes other technical and conforming changes.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1.Author's statement. According to the author, current law
mandates denial of CNA applicants who have been convicted of
certain enumerated offenses, regardless of the passage of time
or an applicant's transformation. This automatic bar unfairly
denies rehabilitated people necessary access to a growing
industry of accessible, living-wage jobs. It also ignores
SB 1384 | Page 4
evidence-based information showing that the likelihood of
recidivism declines over time to a level near or equal to a
person who has never been arrested. This bill provides all CNA
applicants with a conviction history a discretionary review of
their application and consideration of all evidence of
rehabilitation - thereby modeling the provisions that apply to
registered nurses. It also recognizes that certain conditions
- such as the passage of time and no contact with law
enforcement - constitute actual evidence that a person has
changed. This commonsense measure protects public safety by
preserving the discretion to deny an application on the basis
of a conviction, and it more aptly reflects California's
commitment to increasing opportunities for rehabilitated
people who seek to earn a living wage, support their family,
and contribute to society.
2.Background on CNAs. There are an estimated 160,000 CNAs
working in California. A person may only use the title, and
hold themselves out as, a CNA if they are working in a health
facility licensed by CDPH. The majority of CNAs work in
skilled nursing facilities. CNAs perform a variety of basic
duties for the patient's comfort and recovery. These tasks
vary depending on the employment setting but typically
include: taking temperatures; pulse; respiration; blood
pressure; helping patients with range-of-motion exercises;
assisting patients with their daily living needs; serving
meals; making beds; and, helping patients eat, dress and
bathe. CNAs are paid, on average, approximately $14 dollars
per hour, although the sponsor of this bill, Equal Rights
Advocates, states that the average pay for CNAs in San
Francisco is more than $19 per hour, and nearly $17 per hour
in Alameda County. The United States Bureau of Labor
Statistics projects that, between 2008 and 2018, the demand
for CNAs will increase by about 19 percent. As a growing
occupation with low education and training requirements, the
CNA profession has been a target for welfare-to-work and other
training programs.
3.Comparison with other professions, and with other states. In
California, most health care professionals, including
registered nurses and licensed vocational nurses, are licensed
by various boards under the Department of Consumer Affairs.
The ability to deny or revoke a license based on the
conviction of a crime is discretionary - boards have the
ability, but not a requirement, to deny or revoke a license if
the applicant has been convicted of a crime that is
SB 1384 | Page
5
substantially related to the qualifications, functions, or
duties of the profession. Additionally, licensing boards are
prohibited from denying a license solely on the basis of a
conviction if the applicant has obtained a certificate of
rehabilitation, as specified, or has met all applicable
requirements of the rehabilitation criteria developed by the
licensing board. Licensing boards are required to develop
criteria to evaluate the rehabilitation of a person when
considering the denial or revocation of a license, and to take
into account all competent evidence of rehabilitation
furnished by the applicant or licensee.
A "presumption of rehabilitation," as proposed by this bill,
would be unique to California health professionals. However,
the sponsor of this bill has identified four other states
where this presumption of rehabilitation has been enacted:
Minnesota, New Mexico, Arkansas, and North Dakota. In each of
these four states, the presumption of rehabilitation is in
regards to the ability of a person to obtain a license or
certificate for any trade or profession, and is not limited to
CNAs. The New Mexico statute is very similar to what is
proposed by this bill, in which three years after final
discharge or release creates a presumption of sufficient
rehabilitation. In Arkansas and North Dakota, the law
specifies that a completion of a period of five years after
final discharge or release from any term of probation, parole
or imprisonment shall be deemed prima facie evidence of
sufficient rehabilitation. In Minnesota, competent evidence of
sufficient rehabilitation may be established by evidence
showing that at least one year has elapsed since release from
imprisonment without subsequent conviction, and the applicant
has shown compliance with all terms and conditions of
probation or parole.
4.Criminal background checks and employment. According to the
Society for Human Resource Management, more than 80 percent of
U.S. employers perform criminal background checks on
prospective employees. The issue of employing ex-offenders has
become even more complicated with advances in information
technology and growing concerns about employer liability.
According to a report by the National Employment Law Project
(NELP), entitled 65 Million "Need Not Apply," The Case for
Reforming Criminal Background Checks for Employment, an
estimated 65 million adults, or 1 in 4 of all adults, have
criminal records. According to NELP, the irony is that
SB 1384 | Page 6
employers' attempts to safeguard the workplace are not only
barring many people who pose little to no risk, but they also
are compromising public safety. NELP states that as studies
have shown, providing individuals the opportunity for stable
employment actually lowers crime recidivism rates. According
to NELP, research indicates that lifetime employment bans on
people with criminal records are not correlated to risk. For
example, NELP states that a major study of people with felony
convictions found that 18-year-olds arrested for burglary had
the same risk of being arrested as same-aged individuals in
the general population after 3.8 years had passed since the
first arrest. In short, within a narrow period of time, an
individual's criminal record can be shown to be irrelevant as
a hiring factor.
5.Equal Employment Opportunity Enforcement (EEOC) Guidance. In
April 2012, the EEOC published "Enforcement Guidance on the
Consideration of Arrest and Conviction Records in Employment
Decisions Under Title VII of the Civil Rights Act of 1964"
regarding the use of arrest or conviction records in
employment decisions under Title VII of the Civil Rights Act
of 1964 (Title VII). The EEOC Guidance states that an
employer's use of an individual's criminal history in making
employment decisions, may, in some instances, violate the
prohibition against employment discrimination under Title VII.
A violation may occur when an employer treats criminal history
information differently for different applicants or employees,
based on their race or national origin (disparate treatment
liability). An employer's neutral policy (e.g., excluding
applicants from employment based on certain criminal conduct)
may disproportionately impact some individuals protected under
Title VII, and may violate the law if not job related and
consistent with business necessity (disparate impact
liability).
6.Concerns about regulation and enforcement of CNAs. Last
September, the Center for Investigative Reporting (CIR)
published a report describing a mass dismissal of open
complaints against CNAs in 2009 in order to address what was
then a large backlog of investigations (Quick Dismissal of
Caregiver Abuse Cases Puts California Patients at Risk,
September 2013). According to the CIR report, between 2004
and 2008, CDPH accumulated more than 900 cases in Southern
California alone. In 2009, CIR reported that CDPH ordered its
investigators to dismiss nearly 1,000 pending cases of abuse
and theft, "often with a single phone call from Sacramento
SB 1384 | Page
7
headquarters." The CIR report went on to describe the current
practice as one in which investigators are opened and closed
investigations into suspected abuse without leaving their
desks, resulting in a much lower percentage of complaints that
lead to revocation of a CNA certificate. According to CIR, in
2006, CDPH revoked or denied a certification in 27 percent of
the complaints it investigated. In 2009, as CDPH eliminated
the backlog, only seven percent of the complaints resulted in
a revoked or denied certificate. In 2006, 58 percent of cases
were closed without taking any action against a certificate
holder. In 2012, this figure had risen to 81 percent of all
cases.
In a related article, CIR detailed an incident involving a CNA
at an assisted living facility licensed by the Department of
Social Services (Elderly Woman's Suspicious Death Largely
Ignored by State Regulators, CIR, September 2013). In 2006, a
95-year-old resident at Claremont Place Assisted Living was
rushed to the hospital after she was found with a broken arm,
black eyes and her upper lip cut open. The resident died
three weeks later. According to CIR's report, a CNA who was
working at the assisted living facility was in the room with
the resident at the time, and reported to other staff that the
resident hurt herself when she fell down in her room.
According to the CIR report, other staff members at Claremont
Place believed the CNA had physically abused the resident, and
the facility director notified the family of the resident that
abuse may have been involved. The attending physician at the
hospital where the resident was treated alerted CDPH and local
police to the possibility of abuse, based in part to concerns
relayed to him by Claremont Place staff. According to CIR, in
2007, a notation in CDPH's log showed the case was assigned to
an investigator. CDPH finally closed the case in February of
2013, seven years after the resident died, calling the
allegation of abuse unsubstantiated.
7.Related legislation. AB 1689 (Conway) would require CDPH to
post on its Internet Web site a registry of all CNAs that
includes the status of their certification and additional
information as specified, including any finding of abuse,
neglect, or misappropriation of property by the CNA. AB 1689
is pending in the Assembly Committee on Health.
8.Support. This bill is sponsored by Equal Rights Advocates
(ERA), which states that this bill will expand opportunities
SB 1384 | Page 8
for qualified, rehabilitated individuals to access living-wage
jobs in the growing healthcare industry by providing all CNA
applicants with discretionary review of their criminal record
and by recognizing that certain conditions - like the passage
of time and no subsequent convictions - constitutes actual
evidence of rehabilitation. ERA states that to categorically
ban individuals from entering this career solely on the basis
of a past conviction denies many families a real chance to
climb out of poverty. ERA states that California's commitment
to reducing recidivism, which remains high at 63.5 percent,
must include measures that increase access to living wage jobs
for those with criminal records.
Numerous other organizations support this bill. The National
Employment Law Project states in support that mandatory
rejection of prospective CNAs, even for decades-old
convictions and low-level offenses like petty theft,
disregards studies showing that the passage of time reduces
the likelihood of recidivism. A New Way of Life Reentry
Project states that it sees firsthand the importance of being
able to access better paying employment to help clients and
their families find economic stability, and that mandatory
bars to licensure such as those in place for CNAs erect
unreasonable barriers to such employment, often with no true
benefit to public safety. The American Civil Liberties Union
states in support that studies show that stable employment
decreases the likelihood of recidivism by as much as 62
percent, yet California continues to impose stringent barriers
on the hundreds of licensed occupations that would provide
stability and increased mobility for persons who most need it.
9.Policy comment. In eliminating the mandatory requirement that
CDPH deny or revoke a certificate based on criminal
convictions in favor of a discretionary standard, this bill is
bringing the law pertaining to CNAs closer to what exists for
nearly every other licensed health care worker in California.
However, it goes further by establishing a presumption of
rehabilitation for applicants who have completed any parole or
probation, and have been released from prison for at least
three years. If an applicant meets the standard for the
presumption, the effect is to shift the burden to CDPH to make
the case that an individual has not been rehabilitated.
Although CDPH is required to consider specified factors in
determining whether an applicant has demonstrated
rehabilitation, including "the nature and seriousness of the
SB 1384 | Page
9
conduct or crime under consideration and its relationship to
their employment duties and responsibilities," it is unclear
whether CDPH would still have the ability to deny a
certificate based solely on the original conviction. In other
words, if an applicant was convicted of a particularly
egregious offense that was directly related to the work of a
CNA (for example, elder abuse), but the applicant met the
standard for a presumption of rehabilitation by not having a
conviction for three years after release from prison, CDPH
would need to demonstrate why this individual was not
rehabilitated in order to deny their application. Because the
presumption of rehabilitation would mean that the person had
been "rehabilitated" from their original offending behavior,
it would appear CDPH would be required to find other reasons,
not related to the original offending behavior, to deny this
application. The committee may wish to consider whether CDPH
should retain the discretion to deny an application, and
overcome a presumption of rehabilitation, based solely on the
original conviction. If so, this bill should be amended so
that this discretionary authority is clear.
SUPPORT AND OPPOSITION :
Support: Equal Rights Advocates (sponsor)
A New Way of Life Reentry Project
American Civil Liberties Union of California
Arriba Juntos
California Attorneys for Criminal Justice
East Bay Community Law Center
Greenlining Institute
Lawyers' Committee for Civil Rights of the San
Francisco Bay Area
Legal Services for Prisoners with Children
National Center for Lesbian Rights
National Employment Law Project
PICO CA
Policy Link
Root and Rebound
Rubicon Programs
San Francisco Public Defender's Office
Women's Foundation
Youth ALIVE!
16 individuals
Oppose: None received.
SB 1384 | Page 10
END --