BILL ANALYSIS
AB 1240
Page 1
Date of Hearing: May 1, 2003
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Lois Wolk, Chair
AB 1240 (Mullin) - As Amended: April 28, 2003
SUBJECT : Community Care Facilities: Criminal Background Checks
and Exemptions.
SUMMARY : Makes numerous changes to the criminal background
check provisions governing community care facilities, child care
facilities, and residential care facilities. Specifically, this
bill :
1)Adds the following crimes to the list of crimes which are
"non-exemptible" and automatically disqualify a person from
being able to obtain a license or special permit to operate a
licensed care facility, or to be employed or volunteer at, or
reside or be present in such a facility: false imprisonment
of elder or dependent adult by use of violence, child abuse
causing death, felony spousal abuse with a prior, misdemeanor
exhibiting or drawing a firearm at a day care center,
manufacturing a controlled substance, procuring a person by
force or false inducement for the purposes of prostitution,
rape under false pretenses, first degree burglary, or any
crime of violence specified in any regulation.
2)Provides that all crimes of violence defined in the Penal Code
are non-exemptible, not just crimes of violence "against the
individual."
3)Finding that live-scan technology is "operational" as defined
by statute, prohibits the initial presence of any individual
in a child care facility, residential care facility,
residential care facility for the elderly (RCFE), or community
care facility prior to receiving a criminal background
clearance from the Department of Justice (DOJ) or an exemption
from the Department of Social Services (DSS). (All further
references to "care facilities" include child care facilities,
residential care facilities, RCFEs, or community care
facilities, unless otherwise specified.)
4)Recasts the requirement that DSS secure criminal history
information to determine if any applicant or other person has
a conviction for a crime "other than a minor traffic
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violation." The bill instead requires DSS to secure
information on whether the person has a conviction for a crime
other than an infraction.
5)Requires the statement signed by the applicant for a license
or special permit, pending DSS' receipt of criminal history
information from the Federal Bureau of Investigation (FBI),
that he or she has never been convicted of any crime in the
United States, be signed under penalty of perjury.
6)Authorizes DSS, if after licensure it receives information
from the FBI that the applicant has been convicted of a crime,
other than an infraction, to revoke or suspend the license.
7)Authorizes DSS to allow an individual to be employed by,
reside at, or be present in a care facility pending receipt of
criminal history information from the FBI if the person signs
a declaration under penalty of perjury that he or she has
never been convicted of a crime in the United States. If DSS
subsequently receives information from the FBI that the
individual has been convicted of a crime, other than an
infraction, DSS shall determine if the person should be
removed or excluded from the facility.
8)Increases from $100 per violation to $100 per violation per
day , for a maximum of 50 days, civil penalties assessed
against licensees and permitholders for failure to submit
fingerprints or failure to exclude or remove individuals from
the care facility.
9)Eliminates the ability of an individual who has been
terminated from employment at a care facility because the
person has been convicted of, or is awaiting trial for various
enumerated offenses, to seek an exemption as an individual.
The bill instead provides that only an applicant for licensure
or a license may require an exemption on behalf of an
individual seeking employment, or to reside at or be present
in a care facility.
10)Deletes the authority of DSS to grant an exemption for
individuals seeking employment in a community care facility
who have been convicted of specified violent crimes when the
employee or prospective employee has a certificate of
rehabilitation and a recommendation from the district
attorney.
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EXISTING LAW :
1)Defines child day care facility as a facility that provides
nonmedical care to children under 18 years of age in need of
personal services, supervision, or assistance essential for
sustaining the activities of daily living or for the
protection of the individual on less than a 24-hour basis.
The term child day care facility includes day care centers,
employer-sponsored child care centers, and family day care
homes.
2)Defines residential care facility for the elderly (RCFE) as a
housing arrangement chosen voluntarily by persons 60 years of
age or over, or their authorized representative, where varying
levels and intensities of care and supervision, protective
supervision, or personal care are provided, based upon their
varying needs.
3)Defines community care facility as any facility, place, or
building that is maintained and operated to provide nonmedical
residential care, day treatment, adult day care, or foster
family agency services for children, adults, or children and
adults. "Residential care facility" means a residential care
facility for persons with chronic, life-threatening illness
who are 18 years of age or older or are emancipated minors,
and for family units.
4)Requires DSS, before issuing a license or special permit to
any person to operate or manage a child care facility,
residential care facility, RCFE, or community care facility,
to secure a criminal record to determine whether the applicant
has ever been convicted of a crime other than a minor traffic
violation, or has been arrested for specified crimes,
including assault with a deadly weapon, willful infliction of
corporal injury, or any sex crime for which registration with
law enforcement is required.
5)Provides that, in addition to the applicant for a license or
special permit, criminal background checks must also be
conducted for any adult responsible for administration or
direct supervision of staff, any adult residing in the
facility, any person who provides care and supervision of the
clients, and any staff person, volunteer, or employee who has
contact with the clients.
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6)Prohibits DSS from granting a license to operate or manage a
care facility to an individual who has been convicted of any
crime other than a minor traffic violation. Similarly, others
who are required to have background checks are prohibited from
being employed by, residing in, or being present in a care
facility if the background check reveals the individual to
have been convicted of any such crime.
7)Authorizes DSS to deny any application for, or suspend or
revoke, any license for conduct that is found by DSS to be
inimical to the health, morals, welfare, or safety of either
an individual in, or receiving services from, the facility or
the people of the State of California.
8)Prohibits DSS from using a record of arrest which has not
resulted in a conviction as a basis for denying, revoking, or
terminating 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.
9)Authorizes the director of DSS to grant an exemption from the
disqualification for a license or special permit, or for
employment, residence, or presence in a care facility if the
director has substantial and convincing evidence to support a
reasonable belief that the applicant and the person convicted
is of good character so as to justify granting of the
exemption.
10)Identifies more than 50 crimes which are "non-exemptible,"
and for which no license or permit, or authorization to work,
reside or be present in a care facility shall issue. Included
in the non-exemptible crimes are murder, kidnapping,
carjacking, robbery, sexual battery, rape, contributing to the
delinquency of a minor, aggravated assault of a child, sex
related crimes, and transporting, distributing or possessing
child related pornography.
11)Defines "violent felony" in the Penal Code as including:
murder or voluntary manslaughter, including attempt, mayhem,
rape, sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
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person, oral copulation by force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the victim or
another person, lewd acts on a child under the age of 14 years
any felony in which the defendant inflicts great bodily injury
on any person, any robbery, arson, and a host of other crimes.
12)Requires, in addition to the criminal record search conducted
by DOJ, that a second set of fingerprints be submitted so that
DOJ may search the criminal records of the FBI for applicants
for a license. If the applicant has met all other
requirements for licensure, but DSS has not yet received the
criminal record information from the FBI, DSS may issue the
license, pending receipt, if the individual submits a
statement that he or she has never been convicted of a crime
in the United States.
13)Provides that when live-scan technology for the automated
processing of fingerprints is operational, individuals will be
required to obtain either a criminal record clearance from
DOJ, or an exemption from DSS, before their initial presence
in a care facility. Live-scan technology is deemed
"operational" when the Department of Justice and the district
offices of the Community Care Licensing Division of DSS
live-scan sites are operational and DSS is receiving from DOJ,
within 3 days, 95 percent of its total responses (indicating
there either is or is not evidence of recorded criminal
information.)
FISCAL EFFECT : Unknown.
COMMENTS : DSS conducts a criminal background check on all care
facility license applicants, employees, volunteers, and adults
residing in or present at the these facilities. If the
individual has a criminal conviction for anything other than a
minor traffic offense clearance will not be granted for a
license, or to be employed at, reside or be present in, the
facility. The director of DSS has the authority to grant
exemptions, on a case-by-case basis, for individuals who have
various criminal convictions. However, state law defines more
than 50 offenses which are "non-exemptible." If an individual
has an arrest which has not resulted in a conviction, but DSS
has conducted an independent investigation and determined by a
preponderance of the evidence that the individual's conduct is
inimical to the health, morals, welfare, or safety of either an
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individual in, or receiving services from, the facility or the
people of the State of California, the individual will not be
granted a license, or allowed to be employed at, reside or be
present in the care facility.
Background . A series of articles in the Orange County Register
in 2002 spurred substantial activity in the area of criminal
background checks, and the granting of exemptions by DSS. The
article was praised by some as highlighting gaps in the system,
and denounced by others, because for all the problems with the
system identified in the articles, there was no indication of
any harm having occurred as the result of any individual with a
criminal record exemption who was allowed to operate, work in,
or otherwise be present at a care facility.
Governor's Directive . In March 2002, Governor Davis issued a
directive to DSS which was in response to the Orange County
Register series. The Governor's letter stated that "[d]espite
expanded background checks and tougher standards established in
1999 and 2000, the investigation [by the Orange County Register]
found that individuals were working in child care facilities who
should not be granted an exemption under any circumstances. In
many cases providers ignore the law or applicants lied about
past criminal records. State and Federal criminal databases
used by DSS for background checks are woefully incomplete, with
as much as 30% of crimes not reported to the State Department of
Justice by local courts." The letter therefore directed DSS to
take the following three (3) actions:
1)Suspend processing of any new exemption requests for a period
of six months. (Although the six months has long expired,
committee staff has been informed that this moratorium is
still in effect.)
2)Conduct an immediate and comprehensive review of the DSS
childcare background check process, including the process for
criminal record exemptions, denials and staff responsible for
oversight.
3)Adopt emergency regulations to require child care providers to
inform parents if their facility employs workers with criminal
exemptions, including the nature of the exempt employee's job
responsibilities, and to allow parents to review the most
recent licensing report completed for the facility. (DSS
adopted these regulations, and informed providers of their
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responsibilities effective August 2002.)
Author's Statement . In support of the need for this bill, the
author comments that "[a]s a result of the Governor's directive
in March 2002, the Department of Social Services conducted a
thorough review of the caregiver background check process.
Numerous alternatives were considered in the conduct the review.
The review resulted in recommendations for system improvements
that increase safeguards for vulnerable adults and children in
out of home care. The improvements that require statutory
change are included in this legislative proposal." Even though
the moratorium on processing new requests for exemptions that
was imposed by the Governor was supposed to last six (6) months,
the moratorium has not been lifted to date. Presumably, by
enacting this legislation which implement DSS' review, the
moratorium will be lifted, and licensed providers will again be
able to hire individuals who are qualified but who have a minor
offense on their record that has been standing in their way.
The author notes that the bill addresses the following problems
identified by DSS' review of the criminal background check and
exemption granting processes:
1)Non-Exemptible Crimes. State statute "does not include all of
the criminal offenses for which the Department believes an
individual should not be eligible for an exemption [from
disqualification for a license, employment, etc in a child
care facility]. This proposal identifies the offenses to be
added. These crimes are very serious and represent a
substantial risk to persons in licensed facilities."
2)Civil Penalties. "Ongoing civil penalties are needed to more
seriously impress on licensees the importance of not
permitting those persons without a criminal record clearance
or exemption to be present in licensed facilities."
3)Individuals, Not Facilities Applying for Exemptions. State
statute "permits individuals to seek an exemption on their own
behalf. . . . This is inappropriate since Department
exemptions are specific to facility type and job function and
must be requested by each licensee and approved by the
Department even if the individual has received an exemption on
their own behalf."
4)Technical changes. "Technical changes are required for
clarity in the provisions identifying for whom the Department
must secure a criminal record and the provisions identifying
for whom the Department must maintain active files. While
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current statute identifies all persons that require a
clearance or a criminal record exemption, clarification is
needed specifically related to securing the criminal record.
The Health and Safety Code requires the Department to maintain
criminal record clearances for two years after an employee is
no longer employed. This proposal changes the requirement to
include all persons with a criminal record clearance, to be
consistent with current Department practice."
This Bill's Expansive Addition to the Non-Exemptible Crimes . In
addition to the list of crimes which are non-exemptible, and the
additional crimes added by this bill, the bill also provides
that "any crime of violence specified in any regulation" shall
be non-exemptible. This "catchall" gives DSS broad authority to
define other crimes as crimes of violence. Since the list of
non-exemptible crimes already includes all crimes identified
under Penal Code section 667.5 as violent crimes, the Committee
may conclude that this broad authority to legislate what other
crimes are going to be deemed non-exemptible goes too far. The
Committee may therefore wish to amend the bill to delete this
catchall each place it appears in the bill.
The Committee may also wish to consider whether the addition of
first degree burglary to the list of non-exemptible crimes is
appropriate, especially in cases in which the burglary did not
involve any violence or threat to an individual.
Inconsistent Understanding of Arrests For Which Application Can
Be Denied or Revoked . The statute provides that, before issuing
a license to any person to operate or manage a facility, or to
permit an individual to work, reside, or be present in a
facility, DSS shall secure from an appropriate law enforcement
agency criminal record information to determine whether the
person has a conviction of a crime other than a minor traffic
violation or an arrest for one of several specific enumerated
offenses, including assault with a deadly weapon, willful
infliction of corporal injury, or any sex crime for which
registration with law enforcement is required.
It appears there may be a pervasive misunderstanding among those
outside of DSS that this provision means that the only arrests
that DSS may investigate to determine if an application,
license, employment, etc. may be granted are arrests for those
enumerated offenses. According to DSS, they investigate arrests
for any offenses, not just the enumerated offenses, and,
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pursuant to Health and Safety Code section 1550, if they
determine the conduct "is inimical to the health, morals,
welfare, or safety of either an individual in, or receiving
services from, the facility or the people of the State of
California" then the application, license, etc. may be denied or
revoked.
It is unclear whether this approach is consistent with the
Legislature's understanding of the criminal background
check/exemption process. The Committee may therefore wish to
seek a commitment from the author that he will convene all
interested parties, including representatives from DSS, the care
facility community, consultants of this committee, the Senate
Health and Human Services Committee, and Senate Public Safety,
to further explore this issue.
Live-Scan . According to the author, "because LiveScan is fully
operational, the Department is mandated by statute to require
clearance before presence in a facility" is permitted.
There is current authority in the Health and Safety Code that
requires the Department to develop regulations that require all
persons to obtain either a criminal record clearance or
exemption before their initial presence in a facility once
LiveScan is fully operational. LiveScan is now fully
operational. . . . This proposal conforms all of the pertinent
sections of the Health and Safety Code to require criminal
record clearance or exemption prior to initial presence in a
facility." DSS' determination that Live-Scan is fully
operational is based on a letter from DOJ dated September 16,
2002.
Current statute provides that live-scan shall be deemed
operational when DSS is receiving from DOJ, within 3 days, 95
percent of its total responses (indicating there either is or is
not evidence of recorded criminal information.) However, DOJ's
letter suggests that only 85% of the total responses are
received within 3 days. The additional 15% of DOJ's responses
to DSS were delayed beyond three business days. Therefore, the
Committee may conclude that the statutory definition of
operational has not been met and the related changes made to the
codes by this bill should be deleted.
In the alternative, the Committee may wish to explore with the
author amending the bill consistent with the recommendations of
the California Association for Adult Day Services (CAADS).
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CAADS notes that there are categories of individuals who are
exempt from the fingerprint requirement, including volunteers.
Since no background check is done, these individuals must be
supervised by the licensee or facility employee with a criminal
record clearance or exemption, must never be left alone with any
clients, never provide assistance with dressing, grooming,
bathing or personal hygiene other than washing of hands, etc.
CAADS asserts that a reasonable compromise would be, instead of
prohibiting the initial presence of an individual in the
facility until the background check is completed, to instead
allow their presence, but subject to the same conditions as
those who do not require a background check at all.
Certificate of Rehabilitation . Existing law provides DSS with
the authority to grant an exemption for individuals seeking
employment in community care facilities who have been convicted
of specified violent crimes when the employee or prospective
employee has a certificate of rehabilitation and a
recommendation from the district attorney. The specific crimes
to which this statute applies are murder, voluntary
manslaughter, mayhem, any felony punishable by death or life
imprisonment, and any felony in which the defendant inflicts
great bodily injury or any felony in which the defendant uses a
firearm. DSS asserts that virtually no exemptions are granted
for individuals who have been convicted of these crimes,
regardless of the certificate of rehabilitation. DSS also notes
that this provision only applies to community care facilities,
and not child care facilities, residential care facilities for
the elderly, and residential care facilities for persons with
chronic, life-threatening illnesses. The author therefore is
offering an amendment to the bill to delete this provision. DSS
provides, however, that in reviewing an individual request for
an exemption, they consider evidence of rehabilitation, whether
or not the individual has provided a certificate of
rehabilitation, therefore this provision is not necessary.
Technical Amendments .
1) The bill changes references in existing law from "child day
care facility" to "child care facility." However, this is only
done for the sections amended by this bill. Other sections,
including Health and Safety Code section 1596..750 which defines
the term "child day care facility," but not "child care
facility," are not similarly amended. The Committee may
therefore wish to amend the bill to extend the code's definition
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of "child day care facility" to also expressly define the term
"child care facility."
2) In addition to the amendment regarding the certificate of
rehabilitation discussed above, the author has submitted 16
technical amendments which simply clean-up the drafting of the
latest amendments made to the bill to provide consistency
throughout the bill.
Arguments in Opposition . The California Association for Adult
Day Services wrote the committee in opposition to the bill,
raising objections to the prohibition on individuals being
"present" in a facility prior to being fingerprint cleared. The
opponents suggest that, as alternative, prior to being cleared,
the individual should be permitted presence in the facility, but
subject to the supervision of the licensee or employee with a
criminal record clearance, never left alone with clients, and
never allowed to provide any client with assistance with
dressing, grooming, bathing or personal hygiene.
Protection and Advocacy, Inc. also opposes this bill, arguing
that "the bill is too inclusive in its language and results in
denying licensing to facilities that employ or otherwise utilize
the services of people that have committed misdemeanors in the
past or been arrested but never charged with certain felonies.
This measure exacerbates the staffing shortage problem in
facilities and causes additional unnecessary hurdles in the
licensing process for newer facilities.
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REGISTERED SUPPORT / OPPOSITION :
Support
Department of Social Services (Sponsor)
Opposition
California Association for Adult Day Services
Protection and Advocacy, Inc.
Outreach Independence Social Day Care (oppose unless amended)
The Triple "R" Adult Day Program (oppose unless amended)
One individual
Analysis Prepared by : Donna S. Hershkowitz / HUM. S. / (916)
319-2089