BILL ANALYSIS
AB 1409
Page 1
Date of Hearing: May 30, 2001
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Carole Migden, Chairwoman
AB 1409 (Chan) - As Amended: May 24, 2001
Policy Committee: HealthVote:13-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill transfers the authority to license and regulate
nursing home administrators (NHAs) from the Department of
Consumer Affairs (DCA) to the Department of Health Services
(DHS) and makes other related changes. Specifically, this bill:
1)Establishes the Nursing Home Administrator Program (NHAP)
within DHS and repeals a statute relating to licensure by DCA.
Codifies existing regulations on NHA licensure.
2)Requires applicants for NHA licensure to submit fingerprints
for a criminal clearance by the Department of Justice. Based
on the results, requires the program to:
a) Deny any application for a license, and to suspend or
revoke an existing license, if the applicant or licensee
has been convicted of any specified crimes (known as
mandatory exclusions). These crimes are generally crimes
against persons, but include such property crimes as first
degree burglary, petty theft, and receiving stolen
property. No appeal is permitted, unless the person has
obtained a certificate of rehabilitation, has had the
conviction dismissed, and meets other specified conditions.
b) Approve or deny the application, at the discretion of
the department, if the person has been convicted of any
crime other than a minor traffic violation or a crime that
is not a mandatory exclusion. Specifies factors for DHS to
consider as evidence of good character and rehabilitation.
1)Authorizes various licensing and examination fees to be
AB 1409
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charged applicants, and permits DHS to increase the fee to
reflect increases in the California Consumer Price Index.
2)Requires fees collected to be deposited in the renamed Nursing
Home Administrator's State License Examining Fund, the
proceeds of which are continuously appropriated to operate the
NHA licensing program.
FISCAL EFFECT
Negligible fiscal impact on the state. The current licensing
program is budgeted at $479,000 (Nursing Home Administrator's
State License Examining Board Fund) for five positions. This
bill continues the program at its current level, but transfers
position and expenditure authority from DCA to DHS.
COMMENTS
1)Purpose . DHS has been licensing NHAs pursuant to an
interagency agreement with DCA that is due to expire on June
30, 2001. In June 1998, when the Board of Nursing Home
Administrators within DCA sunset, the Board was renamed the
Nursing Home Administrator Program. In effect, DHS has been
licensing NHAs in the absence of a regulatory board to provide
oversight. In order to have clear state administrative
accountability for the program, this bill designates DHS as
the agency responsible for licensing nursing home
administrators.
The bill also gives DHS authority to charge a fee for the
national Nursing Home Administrator Licensing Examination,
which every NHA must pass as a condition of licensure. Since
current law restricts the state's ability to charge a fee,
California residents must take the examination in other
states. By permitting DHS to charge a fee, this bill will
allow Californians to take the licensing exam in-state.
2)Mandatory Exclusions from Licensure . This bill is based on
requirements currently used to license administrators of
intermediate care facilities. It broadens the types of
convictions that would bar a person from NHA licensure and
requires automatic denials for certain types of criminal
convictions. The list of crimes includes misdemeanors and
wobblers (e.g., receiving stolen property, illegal use of an
ATM card). If a person has been convicted of any of these
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mandatory exclusion crimes, NHA licensure would be denied
except in very narrow circumstances. If the applicant has a
certificate of rehabilitation and has had the conviction
dismissed by a court, a license may be granted. Otherwise, it
must be denied.
Current law, in contrast, gives discretion in deciding whether
or not to deny a license. A license may be denied "only if
the crime or act is substantially related to the
qualifications, functions or duties of the business or
profession for which application is made." This language is
consistent with the Fourteenth Amendment, which requires that
employment requirements be directly related to the
individual's capacity and fitness to perform the duties.
3) Opposition . The American Civil Liberties Union (ACLU) is
opposed because: (a) the bill violates the Fourteenth
Amendment regarding employment requirements being directly
related to a person's fitness to perform the duties; (b)
people denied a license should be given an opportunity to
appeal the denial by presenting evidence in opposition to the
denial; and (c) the bill requires applicants to present proof
of U.S. citizenship or evidence of legal residence status,
both of which exceed federal immigration requirements.
ACLU recommends making this a two-year bill to allow time to
develop consistent standards among this bill and three
others-AB 829 (Cohn), also set for hearing May 30, and AB 1454
(Thomson) and SB 1095 (Escutia), both of which are two-year
bills. As an alternative, ACLU suggests amendments to: (a)
give DHS more flexibility in deciding whether or not to grant
a license; (b) limit the mandatory exclusions to felonies; (c)
allow an opportunity to rebut a proposed denial; and (d)
delete the documentation requirements for citizenship.
Given that there are three other related bills, some of which
are two-year measures, should a one-year sunset be placed on
the mandatory exclusion provisions to allow time during the
interim to develop a uniform approach to the issue?
Analysis Prepared by : Joyce Iseri / APPR. / (916) 319-2081