BILL ANALYSIS
AB 1240
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1240 (Mullin)
As Amended August 27, 2004
2/3 vote. Urgency
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|ASSEMBLY: |78-0 |(January 29, |SENATE: |33-0 |August 27, |
| | |2004) | | |2004 |
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Original Committee Reference: HUM. S.
SUMMARY : Increases civil penalties for violations of criminal
background check provisions governing various community care
facilities (CCFs), including child care facilities, foster care
facilities and residential care facilities.
The Senate amendments :
1)Revise the penalties for violations of the criminal background
check provisions to $100 per violation per day for a maximum
of five days for the first violation, up to a maximum of 30
days for a second or subsequent violation within a 12-month
period.
2)Provide that upon request by the Department of Social Services
(DSS) or a county acting as its agent, the Department of
Justice (DOJ) shall substitute either DSS or the county as an
authorized agency to receive federal and state summary
criminal history information for an applicant, including
subsequent arrest and conviction notifications.
3)Require the sharing of criminal record clearances and
exemptions between DSS and county offices with
department-delegated licensing authority.
4)Require DOJ to process requests for subsequent arrest
notification made by DSS or a county concerning persons whose
criminal record clearance was originally processed by DSS or
the county when the request is for the same applicant type as
that for which the original clearance was obtained.
5)Add language to avoid chaptering out provisions of SB 1104
(Budget and Fiscal Review Committee), Chapter 229, Statutes of
2004, the social services trailer bill.
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6)Add an urgency clause.
EXISTING LAW :
1)Requires DSS, before issuing a license or special permit to
any person to operate or manage a child care facility,
residential care facility, residential care facility for the
elderly (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.
2)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.
3)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.
4)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.
5)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
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reasonable belief that the applicant and the person convicted
is of good character so as to justify granting of the
exemption.
6)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, rape, contributing to the delinquency of
a minor, aggravated assault of a child, and sex related
crimes.
7)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.
8)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.
AS PASSED BY THE ASSEMBLY , this bill increased civil penalties
from $100 per violation to $100 per violation per day for up to
30 days for violations of criminal background check provisions
governing various CCFs, including child care facilities, foster
care facilities and residential care facilities.
FISCAL EFFECT : Minor absorbable costs to DSS to enforce the new
civil penalty structure.
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 work, 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.
After completing a comprehensive review of the DSS child care
background check process, DSS issued emergency regulations
effective July 16, 2003. Among the changes in the regulations
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is a new requirement that a person must be cleared by DOJ or be
granted an approved exemption before being allowed in a licensed
facility. Additionally, licensees must submit written
confirmation of removal of a person whom DSS has ordered removed
from a facility. Individuals who have been cleared must report
any subsequent arrest, conviction and probation or parole
violation to DSS within 48 hours. Exemption criteria are
contained in the regulations. No exemptions will be granted for
individuals convicted of violent felonies.
The revenue generated by the enhanced penalties will support
increased administrative duties mandated by the July
regulations.
Senate amendments permit the sharing of clearance and exemption
information by DSS and counties and require DOJ to process
requests for subsequent arrest notification by a different
requesting entity (e.g., a different county) when the request
relates to the same type of facility for which the original
clearance or exemption was obtained. This avoids the necessity
of requiring duplicative fingerprinting in designated situations
when such information has already been gathered and is readily
accessible.
Analysis Prepared by : Casey McKeever / HUM. S. / (916)
319-2089
FN: 0009104