BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 389 (Negrete McLeod)
As Introduced February 26, 2009
Hearing date: April 28, 2009
Business and Professions Code
MK:br
PROFESSIONS AND VOCATIONS
HISTORY
Source: Author
Prior Legislation: SB 1402 (Corbett) - vetoed, 2008
SB 136 (Figueroa) - Ch. 909, Stats. 2004
SB 1346 (B&P Committee) - Ch. 758, Stats. 1997
Support: Medical Board of California; California Board of
Accountancy; California Chiropractic Association
Opposition:California Medical Association; Contractors State
License Board; Golden State Builders Exchanges;
Engineering & Utility Contractors Association;
Engineering Contractors' Association; Marin Builders'
Association; Flasher/Barricade Association; California
Chapter of the American Fence Contractors' Association;
Southern California Contractors Association
KEY ISSUE
SHOULD THE LAW REQUIRE THAT SPECIFIED LICENSEES BE REQUIRED TO GET A
CRIMINAL BACKGROUND CHECK BEFORE RECEIVING OR RENEWING A LICENSE?
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SB 389 (Negrete McLeod)
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PURPOSE
The purpose of this bill is to require applicants for specified
licenses to have a criminal background check completed before a
license is granted or renewed.
Existing law creates the Department of Consumer Affairs (DCA)
within the State and Consumer Services Agency.
Existing law provides that DCA consists of various boards and
bureaus that license and regulate members of various professions
and vocations.
Existing law authorizes a board to suspend or revoke a
license on various grounds including that the licensee has
been convicted of a crime, if the crime is substantially
related to the qualifications, functions or duties of the
licensed activity. (Business and Professions Code 480.)
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. (Business and Professions Code 803.)
Existing law 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. (Business and Profession Code
803.5.)
Existing law 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.
(Business and Professions Code 802.1.)
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Existing law 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 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
This bill adds the following to those licensing applicants and
mandates that in addition to those listed above they will be
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required to get a criminal background check:
Dental Board of California
Dental Hygiene Committee of California
Professional Fiduciaries Bureau
California Board of Podiatric Medicine
Osteopathic Medical Board of California
State Board of Chiropractic Examiners
This bill provides that each agency shall direct applicants for
a license to submit to the DOJ fingerprint images and related
information required by the DOJ for purposes of obtaining
information as to the existence and content of the state or
federal record. The agency shall request subsequent arrest
information from the DOJ.
This bill would require a person who has not previously
submitted fingerprints to submit them as a condition of license
renewal.
This bill provides that a licensee shall as a condition of
license renewal, certify on the renewal application that he or
she has successfully completed a state and federal level
criminal background check.
This bill provides that each agency shall direct licensees to
submit to the DOJ fingerprint images and related information
required by the DOJ for the purpose of obtaining information as
to the existence and content of a state or federal record.
This bill provides that an agency may waive the requirements of
this section if the license is inactive or retired or if the
licensee is actively serving in the military.
This bill provides that if the licensee is a business entity,
each agency shall by regulation determine which owners,
officers, directors, shareholders, members, agents, employees
etc. who are representatives of the business entity are required
to submit finger prints.
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This bill provides that the specified agencies shall require as
a condition of renewal to notify the board on the license
renewal form if he or she has been convicted of a felony or
misdemeanor since his or her last renewal.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
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period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
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
online databases, newspaper clippings, and conducted
interviews with nurses and experts in several states.
The articles reported finding 115 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 continued to have
spotless license records, even while jailed or
imprisoned.
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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The investigation revealed two significant flaws in the
boards' screening processes:
First, it allows a large 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.
Second, renewal of a license every two years
does not require another fingerprint check or
the ability for the board to ask the licensee if
they had a criminal conviction since their
initial license or last renewal.
In response to these articles, the DCA indicated that it
is 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 about the authority of a board
which currently fingerprints new applicants to also
require fingerprints from existing licensees.
In addition, 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 (BPC 803). 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
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the conviction ( 803.5), and the clerk must transmit
any felony preliminary hearing transcript or probation
report on a licensee to the respective health board (
803.6). There is no assurance that health boards are
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.
Regarding health care practitioners self-reporting of a
charge of a misdemeanor or felony, the B&P Code only
requires a physician and surgeon or doctor of podiatric
medicine to report this information and can be fined
$5,000 for non-reporting (BPC 802.1). All licensees
should be required to report convictions to the board
that licenses and regulates them.
This bill would 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 a licensee, as a
condition of license renewal, to notify the board or
bureau on the license renewal form if he or she has been
convicted of a felony or misdemeanor since the last
license renewal.
2. Background Check for Licensees
This bill is intended to take care of "flaws" in the criminal
background check requirements for specified licensees that were
raised by the Los Angeles Times article. It mandates that the
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current licensing boards who may obtain criminal background
checks for potential licensees get the background checks and
adds six new boards to this requirement. It also mandates that
the boards get subsequent arrest information.
a. Mandate
While many boards are currently authorized to background
check their potential licensees, this bill would mandate the
background checks upon licensure or renewal. The bill also
requires the boards to request subsequent arrest information
on those background checks, something not all the boards
currently get.
b. Additional boards
In addition to those boards already permitted to get
background checks, this bill adds the following boards to
the new mandate:
Dental Board of California
Dental Hygiene Committee of California
Professional Fiduciaries Bureau
California Board of Podiatric Medicine
Osteopathic Medical Board of California
State Board of Chiropractic Examiners
c. Self-certification regarding past background check
This bill provides that when a person is up for a license
renewal they shall self certify that he or she has already
had a criminal background check or submitted fingerprints.
This is not really workable because even if a person submits
fingerprints it does not mean a background check was
completed. For example, there could have been a problem
with the fingerprints submitted. Nor does it mean the
person's background check cleared without problems. A
person could also be confused because he or she may have had
a background check for another purpose, such as for their
child's school, being a scout leader etc., and may not
understand that such background checks do not cross to other
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areas. It is the boards who should have a record of past
checks, which apparently is part of the existing problem;
consistent records have not been kept. In the future, with
the subsequent arrest notification in place the boards
should have no problem knowing whether a person has had
incidents subsequent to their licensure. Having a person
self-certify is not the correct solution to any problem that
may exist.
WILL SELF-CERTIFICATION BY THE LICENSEE WORK?
d. Background check for renewal
This bill will require a background check for a person who
has not previously been background checked or who cannot
prove he or she has had a background check. This would
apply whether a person has been licensed for one year or for
40 years. The CMA expresses concern that this requirement
could cause some physicians to retire instead of having to
resubmit prints. They suggest that boards that have done
background checks be exempted from this requirement.
Another approach could be to allow boards to grandfather in
licensees who have had clean licenses for a specified period
of time. This would also cut down on the costs associated
with rechecking all the licensees.
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SHOULD LICENSEES BE REQUIRED TO BE BACKGROUND CHECKED ON
RENEWAL NO MATTER HOW LONG THEY HAVE BEEN LICENSED?
e. Contractors
The Southern California Contractors Association notes that
contractors are different than other licensees because they
are the business owners and they would be required to be
background checked while their employees who do the work
would not. They argue that contractors' licenses should be
treated differently.
SHOULD ALL LICENSEES BE TREATED THE SAME?
3. Author's Response to Opposition and Concerns
According to the author:
The author is willing 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 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.
4. DOJ Amendments
The DOJ would like the author to make the following amendments
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to make the bill accurate for their purposes:
On page 3, lines 29-30 and page 4, lines 29-30 delete "state or
federal criminal record" and insert "record of state or federal
convictions and state or federal arrests and also information as
to the existence and content of a record of state or federal
arrests for which the Department of Justice establishes that the
person is free on bail or on his or her recognizance pending
trial or appeal."
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