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