BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 389|
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THIRD READING
Bill No: SB 389
Author: Negrete McLeod (D)
Amended: 6/1/09
Vote: 21
SENATE BUSINESS, PROF. & ECON. DEVELOP. COMM. : 9-0,
4/20/09
AYES: Negrete McLeod, Aanestad, Corbett, Correa, Florez,
Oropeza, Romero, Walters, Yee
NO VOTE RECORDED: Wyland
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/28/09
AYES: Leno, Benoit, Cedillo, Hancock, Huff, Steinberg,
Wright
SENATE APPROPRIATIONS COMMITTEE : 12-0, 5/28/09
AYES: Kehoe, Cox, Corbett, Denham, DeSaulnier, Hancock,
Leno, Oropeza, Runner, Walters, Wyland, Yee
NO VOTE RECORDED: Wolk
SUBJECT : Professions and vocations
SOURCE : Author
DIGEST : This bill requires all health related
boards under the Department of Consumers Affairs to
fingerprint all license applicants, or petitioners for
reinstatement of a revoked, surrendered, or cancelled
license for the purpose of conducting criminal
background checks; and requires, beginning January 1,
CONTINUED
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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. This bill 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 agency on the license renewal form if he or
she, or any member of the personnel of record of the
license has been convicted of a felony or misdemeanor
since the last license renewal.
ANALYSIS : Existing law:
1. Creates the Department of Consumer Affairs (DCA) 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 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
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Federal Bureau of Investigation (FBI).
6. 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.
7. 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.
8. 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
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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 complete the process necessary for a state
and federal level criminal offender record information
search, as specified.
4. Requires licensees to certify compliance with the
requirement as a condition of license renewal on a form
provided by the agency, and subjects a licensee to
disciplinary action for making a false certification.
Failure to provide the required certification renders an
application for license renewal incomplete.
5. Specifies that #2 and #3 above, as they apply to the
Contractors' State License Board (CSLB), only become
operative on the date on which an appropriation is made
to fund the activities to accommodate a criminal history
record check. If these provisions, relative to the
CSLB, become operative on or before July 1, 2012, this
bill allows the CSLB phase in the requirements over six
years, as specified.
6. Requires a licensee, as a condition of license renewal,
to notify the agency on the license renewal form if he
or she, or any member of the personnel record of the
licensee, has been convicted, as defined, of a felony or
misdemeanor since the license was last renewed, or since
the license was initially issued if it has not been
previously renewed.
Background
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
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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 continue to have spotless licenses, even
while jailed or imprisoned.
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.
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.
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.
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SB 136 (Figueroa, Chapter 909, Statutes of 2004), among
other things, required CSLB to obtain fingerprints and
criminal history information from applicants on the date on
which sufficient funds are available to CSLB and 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2009-10 2010-11
2011-12 Fund
New fingerprinting/criminal
$8,318$14,306Special*
background check requirement ($7,153)($14,306)
(revenue)
2012-13
$7,788
($7,153)
Expansion of existing finger- $598
$1,068Special**
printing/criminal background
check requirement
2012-13 unknown
$532 ongoing
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* State Dentistry Fund, State Dental Auxiliary Fund,
Professional Fiduciaries Fund, Osteopathic Medical Board of
California Contingent Fund, Chiropractic Examiners Fund;
Fingerprint Fees Account, which pays for workload
expenditures incurred by DOJ for providing summary criminal
information
** Reflects CSLB, Contractors' License Fund) costs; other
Department of Consumer Affairs boards, bureaus and
committees costs significantly less. The implementation
date for the CSLB would be delayed until sufficient funds
are available.
SUPPORT : (Verified 5/29/09)
California Association of Nurse Practitioners
California Board of Accountancy
California Chiropractic Association
Medical Board of California
OPPOSITION : (Verified 5/29/09) (prior version)
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
California Medical Association
Southern California Contractors Association
Construction Industry Legislative Council
ARGUMENTS IN SUPPORT : 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
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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 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.
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.
JA:nl 6/1/09 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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