BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair A
2003-2004 Regular Session B
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AB 1240 (Mullin) 0
As Amended April 22, 2004
Hearing date: June 1, 2004
Health and Safety Code
MK:mc
CARE FACILITIES: CRIMINAL RECORD CLEARANCES
HISTORY
Source: Department of Social Services
Prior Legislation: SB 1335 (Dunn) - died on Inactive File Senate
Floor 2002
AB 1545 (Florez) - (final version) not referred out
of Senate Rules 2002
Support: The California Assisted Living Association (if amended)
Opposition:None known
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUE
SHOULD THE CIVIL PENALTIES FOR A FAILURE TO GET A CRIMINAL RECORDS
CLEARANCE OR EXEMPTION OR FAILURE TO FOLLOW REGULATIONS BY A PERSON
OPERATING OR PROVIDING CARE IN A COMMUNITY CARE FACILITY,
RESIDENTIAL CARE FACILITY FOR PERSONS WITH CHRONIC LIFE-THREATENING
ILLNESS, RESIDENTIAL CARE FACILITY FOR THE ELDERLY OR DAY CARE
FACILITY BE INCREASED FROM $100 TO $100 PER DAY FOR UP TO 30 DAYS
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AND GROUNDS FOR DENYING, SUSPENDING OR REVOKING A LICENSE?
PURPOSE
The purpose of this bill is to increase the penalties for
failure to comply with the background check requirements and
related regulations by a person with a license to provide care
in a community care facility, residential care facility or day
care center.
Existing law 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. (Health and Safety Code 1502(a).)
Existing law 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. (Health and Safety Code 1596.750.)
Existing law 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. (Health and Safety Code 1569.145.)
Existing law requires DSS, before issuing a license or special
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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. (Health and Safety Code 1522(a)(1);
1568.09(a)(1); 1569.17(a)(1); 1596.871(a)(1).)
Existing law 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. (Health and Safety Code 1522(b)(1);
1568.09(b)(1); 1569.17(b)(1); 1596.871(b)(1).)
Existing law prohibits DSS from granting a license to operate or
manage a child care facility, residential care facility, RCFE,
or community 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. (Health
and Safety Code 1522(a)(4); 1568.09(a)(3); 1569.17(a)(3);
1596.871(a)(4).)
Existing law 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 child
care facility, residential care facility, RCFE, or community
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. (Health and Safety Code
1522(c)(4); 1568.09(c)(5); 1569.17(c)(4); 1596.871(c)(3).)
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Existing law requires, in addition to the criminal record search
conducted by Department of Justice (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. (Health and Safety
Code 1522(a)(4)(E); 1568.09(a)(3)(E); 1569.17(a)(3)(E);
1596.871(a)(4)(E).)
Existing law provides that DSS may deny an application for, or
suspend or revoke any community care license or any
administrator certificate upon any of the following grounds:
Violation by the licensee or holder of a special permit of
this chapter or of the rules and regulations promulgated under
this chapter.
Aiding, abetting, or permitting the violation of this chapter
or of the rules and regulations promulgated under this chapter
or of the rules and regulations promulgated under this
chapter.
Conduct which 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.
The conviction of a licensee or other person required to be
checked at any time before or during the licensure of a crime.
The licensee of any facility or the person providing direct
care or supervision knowingly allows any child to have illegal
drugs or alcohol.
Engaging in acts of financial malfeasance concerning the
operation of a facility. (Health and Safety Code 1550.)
Existing law provides that DSS may deny an application for or
suspend or revoke any day care license, registration, or special
permit upon any of the following grounds:
Violation by the licensee, registrant, or holder of a special
permit of this act or the rules and regulations promulgated
under this act.
Aiding, abetting, or permitting the violation of this act or
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the rules and regulations promulgated under this act.
Conduct which is inimical to the health, morals, welfare or
safety of either an individual in or receiving services from
the facility or the people of this state.
The conviction of a licensee, or other person specified at any
time before or during licensure of a crime.
Engaging in acts of financial malfeasance concerning the
operation of a facility. (Health and Safety Code 1596.885.)
Existing law provides that the director may temporarily
suspend any license, registration, or special permit prior to
any hearing, when in the opinion of the director, the action
is necessary to protect any child of a child day care facility
from physical or mental abuse, abandonment, or any other
substantial threat to health or safety. (Health and Safety
Code
1596.886.)
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Existing law provides that a licensee's failure to submit
fingerprints to the DOJ, a violation of the regulations
regarding fingerprints or failure to follow laws regarding the
employment or presence of persons who have failed the background
checks requirements shall result in the citation of a deficiency
and immediate assessment of civil penalties in the amount of
$100 per violation. (Health and Safety Code 1522 (c)(1), (2),
(6)(A); 1568.09(c)(1)(B), (2), (4); 1569.17(c)(1)(B), (3);
1596.871(c)(1)(B), (c)(2).)
This bill provides that the $100 penalty shall be per day for a
maximum of 30 days and shall also be grounds for disciplining
the license pursuant to the Health and Safety Code.
COMMENTS
1. Need for This Bill
According to the author, "[o]ngoing civil penalties are needed
to more seriously impress on licensees the importance of not
permitting those persons without criminal record clearance or
exemption to be present in licensed facilities."
2. Increase in Fines
Existing law provides for a civil fine of $100 for a failure of
a child care facility, residential care facility, residential
care facility for the elderly or community care facility to
comply with background check requirements, DSS regulations or
laws prohibiting specified persons associated with the
facilities from having criminal convictions.
This bill increases the fines by providing that the $100 fine
shall be per day for up to 30 days. According to the author,
"[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 of the review. The review resulted in
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recommendations for system improvements that increase the
safeguards for vulnerable adults and children in out of home
care."
This bill also provides that to comply with background check
requirements, DSS regulations or laws prohibiting specified
persons associated with the facilities may also be grounds for
license denial, suspension or revocation under existing laws.
3. Suggested Amendments by CALA
The California Assisted Living Association notes that this bill
reflects an increase of 3000% over existing fines. CALA states:
CALA supports strong criminal background check laws and
would support a reasonable increase in the penalty for
failure to comply. However, imposing a 3000% higher
penalty for any mistake in this area is unreasonable.
At the same time the Department of Social Services is
also proposing licensing fee increases of up to 2000%.
While we appreciate the financial situation in which the
state finds itself, piling up fees for residential care
services is a disservice to the hundreds of thousands of
elderly residents in these communities who pay the bill.
We urge you to take a more measured approach to this
penalty increase and propose a $500 fine which amounts
to a 500% increase from the current level.
IS THE 3000% INCREASE IN THE FINE REASONABLE?
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