BILL ANALYSIS                                                                                                                                                                                                    







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        |Hearing Date:April 20, 2009    |Bill No:SB                            |
        |                               |389                                   |
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          SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
                         Senator Gloria Negrete McLeod, Chair

                      Bill No:        SB 389Author:Negrete McLeod
                   As Introduced:     February 26, 2009 Fiscal: Yes

        
        SUBJECT:   Professions and vocations:  fingerprinting.
        
        SUMMARY:  Requires all health related boards under the Department  
        of Consumers Affairs to fingerprint all license applicants for the  
        purpose of conducting criminal background checks; and requires,  
        beginning January 1, 2011, all licensees who have not previously  
        submitted fingerprints, or for whom a record of the submission of  
        fingerprints no longer exists, to submit fingerprints for these  
        purposes, prior to license renewal.  Applies this fingerprinting  
        requirement to  existing   licensees  of the other non-health related  
        licensing boards which are currently subject to the general  
        fingerprint requirement for license applicants only.  Requires  
        licensees, as a condition of license renewal, to notify the board  
        on the license renewal form if he or she has been convicted of a  
        felony or misdemeanor since the last license renewal.

        Existing law:

        1)Creates the Department of Consumer Affairs within the State and  
          Consumer Services Agency. 

        2)Provides that DCA consists of various boards and bureaus that  
          license and regulate members of various professions and  
          vocations.

        3)Authorizes a board to  deny  a license on various grounds  
          including that the applicant has been convicted of a crime only  
          if the crime is substantially related to the qualifications,  
          functions or duties of the licensed activity.

        4)Authorizes a board to  suspend or revoke  a license on various  
          grounds including that the licensee has been convicted of a  





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          crime, if the crime is substantially related to the  
          qualifications, functions or duties of the licensed activity.

        5)Pursuant to a general provision of the Business and Professions  
          Code, requires the licensing  applicants  of specified boards to  
          submit a full set of fingerprints for the purposes of conducting  
          criminal history record checks, and  authorizes  the licensing  
          boards to obtain and receive, at its discretion, criminal  
          history information from the Department of Justice (DOJ) and the  




        6)Federal Bureau of Investigation (FBI).  The boards subject to  
          this requirement are:

           a)   California Board of Accountancy
           b)   Athletic Commission
           c)   Board of Behavioral Sciences
           d)   Court Reporters Board
           e)   Board of Guide Dogs for the Blind
           f)   Board of Pharmacy
           g)   Board of Registered Nursing
           h)   Veterinary Medical Board
           i)   Registered Veterinary Technician Committee
           j)   Board of Vocational Nursing and Psychiatric Technicians
           aa)  Respiratory Care Board
           bb)  Hearing Aid Dispensers Advisory Commission
           cc)  Physical Therapy Board
           dd)  Physician Assistant Committee
           ee)  Speech-Language Pathology and Audiology Board
           ff)  Medical Board of California
           gg)  Board of Optometry
           hh)  Acupuncture Board
           ii)  Cemetery and Funeral Bureau
           jj)  Bureau of Security and Investigative Services
           aaa) Division of Investigation
           bbb) Board of Psychology
           ccc) Board of Occupational Therapy
           ddd) Structural Pest Control Board
           eee) Contractors State License Board
           fff) Bureau of Naturopathic Medicine

        7)Requires the clerk of the court to report to the respective  
          health board any judgment by a court that a licensee has  
          committed a crime, or is liable for any death or personal injury  





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          resulting in a judgment for an amount in excess of $30,000.

        8)Requires city attorneys and district attorneys to report to a  
          health board any filings charging a felony and the clerk of the  
          court shall report a conviction of a crime within 48 hours after  
          the conviction, and to also transmit any felony preliminary  
          hearing transcript or probation report on a licensee to the  
          respective health board.

        9)Requires a physician and surgeon, osteopathic physician and  
          surgeon, and a doctor of podiatric medicine to self-report to  
          the licensing board any charge of a misdemeanor or felony within  
          30 days, and provides that failure to report this information is  
          subject to a $5,000 fine for non-reporting.


        



        This bill:

        1)Additionally makes the general fingerprinting requirement  
          applicable to: 

           a)   Dental Board of California
           b)   Dental Hygiene Committee of California
           c)   Professional Fiduciary Bureau
           d)   Osteopathic Medical Board of California
           e)   California Board of Podiatric Medicine
           f)   State Board of Chiropractic Examiners

        2)Recasts the existing discretionary authority for a board to  
          obtain  criminal history information  from the DOJ and FBI,  to  
          instead require  the submission of fingerprint images to the DOJ  
          in order to obtain state and federal criminal history  
          information, and subsequent arrest notification, as specified,  
          which  shall be  disseminated to that board.  

        3)Requires applicants for a license and, beginning January 1,  
          2011, licensees  who have not previously submitted fingerprints  ,  
          or for whom a record of the submission of fingerprints no longer  
          exists, as a condition of license renewal, to successfully  
          complete a state and federal level criminal offender record  
          information (CORI) search, as specified.






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        4)Requires licensees to certify compliance with the requirement as  
          a condition of license renewal on the renewal application, and  
          subjects a licensee to disciplinary action for making a false  
          certification.

        5)Requires a licensee, as a condition of license renewal, to  
          notify the Board on the license renewal form if he or she has  
          been convicted, as defined, of a felony or misdemeanor since the  
          last renewal, or if the first renewal, since the initial license  
          was issued.


        FISCAL EFFECT:  Unknown.  This bill has been keyed "fiscal" by  
        Legislative Counsel.

        COMMENTS:
        
        1.Purpose.  This bill is sponsored by the Author to require all  
          health related boards under the Department of Consumers Affairs  
          to fingerprint all license applicants for the purpose of  
          conducting criminal background checks; and requires, beginning  
          January 1, 2011, all licensees who have not previously submitted  
          fingerprints, or for whom a record of the submission of  
          fingerprints no longer exists, to submit fingerprints for these  
          purposes, prior to license renewal.  Under the bill, the  
          requirement to fingerprint existing licensees would apply not  
          only to health related boards but also to the other licensing  
          boards subject to the general fingerprint requirement of B&P  
          Code  144.  The bill further requires licensees, as a condition  
          of license renewal, to notify the Board on the license renewal  
          form if he or she has been convicted of a felony or misdemeanor  
          since the last license renewal. 

        2.Background.

           a.   LA Times Investigative Series.  In the fall of 2008, the  
             Los Angeles Times published several articles which focused on  
             nurses and licensed vocational nurses who had prior criminal  
             convictions and were still licensed by the California Board  
             of Registered Nursing (BRN) and the Board of Vocational  
             Nursing and Psychiatric Technicians (BVNPT).  The LA Times  
             investigation in a joint effort with the nonprofit  
             investigative reporting agency Pro Publica, reviewed nursing  
             board files and court pleadings, consulted on-line databases,  
             newspaper clippings, and conducted interviews with nurses and  
             experts in several states.  The articles reported finding 115  





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             cases in which the board didn't seek to revoke or restrict  
             licenses until nurses had had three or more criminal  
             convictions.  Twenty-five nurses had at least five  
             convictions.  In some cases, nurses with felony records  
             continue to have spotless licenses, even while jailed or  
             imprisoned.

           b.   Flaws in the Board Screening Processes.  The investigation  
             revealed two significant flaws in the boards' screening  
             processes: (1) It allows a larger portion of the 343,000  
             active registered nurses to escape scrutiny.  In 1990 the BRN  
             began to fingerprint applicants, but the law was not  
             retroactive so about 146,000 were never fingerprinted.  (2)  
             Renewal of a license every two years does not require another  
             fingerprint check nor the ability for the board to ask the  
             licensee if they had a criminal conviction since their  
             initial license or last renewal. 

           c.   DCA Takes Action to Fingerprint Licensees.  In response to  
             the LA Times articles, the DCA indicated that it was taking  
             swift action to provide additional consumer protections by  
             making sure that all health related boards implement a plan  
             to obtain fingerprints from all licensees regardless of when  
             they were first licensed.  Both the BRN and the BVNPT have  
             already adopted emergency regulations to require the  
             fingerprinting of existing licensees, and the other licensing  
             boards that do not already have this requirement have begun  
             the rulemaking process to do so.  This bill establishes  
             statutory affirmation of this authority and removes any  
             ambiguity that may exist on the authority of a board which  
             currently fingerprints new applicants to also require  
             fingerprints from existing licensees.

           d.   Requirements for Court Clerks and Prosecutors to Report  
             Criminal Convictions.  Existing law requires the clerk of the  
             court to report to the respective health board any judgment  
             by a court that a licensee has committed a crime, or is  
             liable for any death or personal injury resulting in a  
             judgment for an amount in excess of $30,000.  Further, city  
             attorneys and district attorneys must report to a health  
             board any filings charging a felony and the clerk of the  
             court must report a conviction of a crime within 48 hours of  
             the conviction, and the clerk must transmit any felony  
             preliminary hearing transcript or probation report on a  
             licensee to the respective health board.  The Author states  
             that there is no assurance that health boards are  





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             consistently receiving this information and there appears to  
             be lax reporting by prosecuting attorneys and the courts to  
             the health boards in complying with these reporting  
             requirements.

           e.   Self-Reporting Criminal Convictions by Licensees.   
             Currently, the Business and Professions Code requires only a  
             physician and surgeon or doctor of podiatric medicine to  
             report a charge of a misdemeanor or felony to the licensing  
             board.  Under current law, physicians and surgeons and  
             doctors of podiatric medicine can be fined $5,000 for not  
             reporting.  The Author believes that licensees should be  
             required to report convictions to the board that licenses and  
             regulates them.

        3.DOJ Criminal History Checks.  The California Department of  
          Justice provides various agencies in the state, including the  
          consumer agencies under DCA with criminal history information  
          regarding licensing.  It is important to have an understanding  
          about where the criminal history information comes from, how DOJ  
          gets the information, how the information is disseminated to the  
          licensing boards, the number of agencies the DOJ provides the  
          information to, and what types of information is provided. 

           a.   The source of the information reported.  The applicant  
             agency provides the applicant with a Live Scan Request form  
             or fingerprint cards (if the person is out-of-state/country)  
             for use in submitting fingerprints to DOJ.  The prints are  
             searched in the Integrated Automated Fingerprint  
             Identification System (IAFIS) a national fingerprint and  
             criminal history system maintained by the FBI.  Prints are  
             searched electronically, if possible, or if the prints are  
             not legible, then they are searched by an Identification  
             Specialist.  The fingerprints are tied to criminal offender  
             record information (CORI) in the Automated Criminal History  
             System (ACHS).

           b.   How DOJ gets the CORI.  The CORI may be submitted by the  
             arresting agency, the DA's office, the courts, the jail or  
             correctional facility, and the Probation Department either  
             manually or electronically.  The CORI is added to the ACHS.

           c.   How information is disseminated to licensing boards.  The  
             fingerprint transactions go into an Applicant Processor and  
             land in a variety of queues to be worked.  Depending on what  
             the board has established with the DOJ, the responses may be  





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             sent electronically via a secure mail server system or  
             grouped together and send daily via a file transfer protocol.  
              Or in some instances responses may be printed out and sent  
             through the U.S. Mail.

           d.   How many agencies does DOJ provide the information to?    
             According to DOJ, over 25,000 authorized agencies receive  
             CORI information.  These include state-wide agencies, local  
             and county agencies.

           e.   What kinds of criminal history information is given.  DOJ  
             has indicated that the CORI that is disseminated depends on  
             the type of agency making the information request and the  
             purpose for which it is requested.  There are more than 200  
             applicant types.  In general, the boards under the DCA such  
             as the Board of Registered Nursing receive CORI pursuant to  
             Penal Code  11105 (p), which specifies "every conviction  
             rendered against the applicant" and "every arrest for an  
             offense for which the applicant is presently awaiting trial."

        4.Prior Legislation.   SB 1402  (Corbett, 2008) would have provided  
          for additional health related boards within DCA to provide  
          specified information to the public over the Internet including  
          enforcement actions taken against a licensee by the boards and  
          for insurers to report to the Chiropractic Board a settlement or  
          arbitration award over $2,000.  That bill was vetoed by the  
          Governor, citing the delay in passing the Budget.

         SB 136  (Figueroa, Chapter 909, Statutes of 2004), among other  
          things, required the Contractors State License Board (CSLB) to  
          obtain fingerprints and criminal history information from  
          applicants on the date on which sufficient funds are available  
          to CSLB and the Department of Justice (DOJ), or on July 1, 2005,  
          occurs first.

         SB 1346  (B&P Committee, Chapter 758, Statutes of 1997) established  
          the general fingerprinting authority under the B&P Code.

         AB 1025  (Bass, 2007) provided that an applicant for a license may  
          not be denied licensure, or may not have the license suspended  
          or revoked, on the basis of a conviction of a felony or  
          misdemeanor if that person has obtained a certificate of  
          rehabilitation, and if the felony or misdemeanor conviction has  
          been dismissed.  The bill would have established a presumption  
          that the applicant or licensee had been rehabilitated unless the  
          Board proved otherwise.  That bill was vetoed by the Governor. 





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        5.Arguments in Support.  The Author argues that extending the  
          fingerprinting requirements to all licensees is consistent with  
          the overall statutory authority granted to boards and bureaus,  
          and therefore reasonably necessary for the boards to achieve  
          their objective of protecting consumers.  Even though the health  
          boards under DCA are already making efforts to ensure that all  
          of their licensees have been fingerprinted, this bill is  
          intended to establish a statutory affirmation of the DCA boards'  
          authority to remove any ambiguity that may exist on the  
          authority of a board, which currently fingerprints new  
          applicants, to also require fingerprints from existing  
          licensees.   

        Regarding the requirement for licensees to self-report criminal  
          convictions, the Author states that although court clerks and  
          prosecutors are required to report criminal convictions to  
          health licensing boards, there is no assurance that the boards  
          are consistently receiving this information and there appears to  
          be lax reporting by prosecuting attorneys and the courts in  
          complying with these reporting requirements.  The Author  
          believes that licensees should also be responsible for reporting  
          convictions to the board that licenses and regulates them.

        The  Medical Board of California  (MBC) writes that it has been  
          fingerprinting its licensees for many years and is in the  
          process of verifying records to determine if any licensee has  
          not been fingerprinted.  MBC feels that access to fingerprint  
          records is important for consumer protection and supports the  
          authority to work with DOJ to complete the fingerprinting  
          process for all licensees.  MBC believes that although current  
          law includes reporting requirements, the additional requirement  
          for licensees to report felonies or misdemeanors at the time of  
          renewal is an additional protection for consumers.

        The  California Board of Accountancy  (CBA) believes the bill will  
          benefit consumers, and supports the efforts to ensure that all  
          licensees are fingerprinted and that all convictions are  
          disclosed.  CBA states that its staff is currently revising its  
          renewal form to require licensees to disclose conviction and  
          license discipline information since the last renewal. 

        The  California Chiropractic Association  (CCA) states that the  
          Board of Chiropractic Examiners has fingerprinted all new  
          doctors of chiropractic for many years, and is now in the  
          process of promulgating regulations to ensure that no licensees  





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          fall through the cracks.  CCA underscores the importance of  
          licensing boards being able to conduct background checks and  
          knowing if a licensee has committed a misdemeanor or felony to  
          ensure that public health and safety is protected.

        6.Arguments in Opposition.  The  Engineering Contractors  
          Association  ,  California Fence Contractors Association  ,  Marin  
          Builders Association  ,  Flasher/Barricade Association  , and  
           California Chapter of the American Fence Contractors Association   
          are in opposition to the bill, stating that there are over  
          300,000 licensed contractors in California, and the existing  
          live scan infrastructure could not handle the volume.  They  
          further write that unlike nurses, the majority of people who go  
          into consumers' homes are employees of the contractor and would  
          not be subject to the background checks.  Additionally the  
          concern is raised that the board would "yank" the license of a  
          contractor who had been operating without a problem for numerous  
          years when a background check reveals a criminal conviction many  
          years ago.  Finally, it is argued that unlike other licensees,  
          contractors are business entities that could well have a number  
          of qualifying persons who may be living in different areas of  
          the state, this fact will add to the 300,000 licensee number and  
          further exacerbate an already overburdened system. 

        7.Oppose Unless Amended.  The  Contractors State License Board   
          (CSLB) opposes the bill unless amended citing cost and workload  
          considerations as the reason.  CSLB states that personnel on  
          approximately 180, 000 licenses have yet to be fingerprinted  
          since it implemented the fingerprint requirement for new  
          licensees in 2005.  CSLB states that since multiple individuals  
          may be listed on a license, more than 300,000 individuals would  
          have to be fingerprinted as a result of the bill.  Historically,  
           15% of persons have a criminal conviction history  ; therefore,  
          more than 40,000 individuals would be reported as having a  
          conviction history.  Each of these histories would require  
          review by CSLB enforcement personnel.  Due to the added workload  
          costs, information technology costs, and reimbursement costs for  
          out of state licensee fingerprints, the CSLB estimates the bill  
          would cost approximately $600,000 in FY 2010/2011, $1 million in  
          FY 2011/2012, and $500,000 in FY 2012/2013.  In addition, with  
          subsequent arrest notifications, the CSLB notes that increased  
          enforcement actions through the Attorney General's Office would  
          vastly increase case processing workloads requiring additional  
          resources on an ongoing basis.   CSLB also raises a number of  
          drafting concerns with specific elements of the bill.  Finally,  
           CSLB will continue  working with the Author's office to help  





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          draft amendments that will enable the CSLB to reasonably and  
          efficiently implement the bill  .  

        The  California Medical Association  (CMA) has an oppose unless  
          amended position on the bill stating that the MBC has  
          fingerprinted new licensees since 1968, and the MBC estimates  
          that less than one tenth of licensed physicians have not  
          complied with the provisions of the bill.   In fact, those that  
          were not required to submit fingerprints will have had a valid  
          license for over 40 years.  CMA states that it is estimated to  
          cost the MBC over $100,000 to comply with the bill, and believes  
          that it is highly unlikely that a physician who has been  
          licensed for over 40 years will be found to have committed a  
          crime that requires action on the part of the MBC.   CMA is  
          requesting the bill be amended so that boards which have  
          required the submittal of fingerprints for such a substantial  
          period of time be exempted.  

        8.Authors' Willingness to Work 0n and Address Concerns.  The  
                                           Author has expressed a clear willingness to work with concerned  
          parties in order to address their concerns in such a way that  
          consumers can be best protected.  The Author understands the  
          current fiscal realities in the state for all parties involved  
          and is interested in ultimately implementing a bill which will  
          protect important consumer interests and at the same time be  
          reasonable and workable for licensees as well as for agencies.   
          The Author argues that the most important part of the bill is to  
          assure that DOJ has fingerprints on file for all licensees so  
          that if future crimes are committed, then the boards and bureaus  
          are informed in a timely manner so they can take appropriate  
          action.  Absence of fingerprints on file with DOJ leaves open  
          the opportunity for licensees of this state to continue their  
          trade or practice even after committing serious crimes and  
          endangering consumers.  

         
        NOTE  :  Double-referral to Public Safety Committee second.



        SUPPORT AND OPPOSITION:
        
         Support:   

        Medical Board of California
        California Board of Accountancy





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        California Chiropractic Association

         Opposition:  

        California Chapter of the American Fence Contractors Association
        California Fence Contractors Association
        Engineering and Utility Contractors Association
        Engineering Contractors Association
        Flasher/Barricade Association
        Golden State Builders Exchanges
        Marin Builders Association

         Oppose Unless Amended:  

        California Medical Association
        Contractors State License Board



        Consultant:G. V. Ayers