BILL ANALYSIS
SB 389
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Date of Hearing: June 30, 2009
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Mary Hayashi, Chair
SB 389 (Negrete McLeod) - As Amended: June 1, 2009
SENATE VOTE : 37-1
SUBJECT : Professions and vocations.
SUMMARY : Requires applicants for licensure, reinstatement, or
reactivation to submit fingerprints for purposes of conducting
state and federal criminal history record checks, as specified.
Specifically, this bill :
1)Requires applicants for licensure and petitioners for
reinstatement of a revoked, surrendered, or canceled license
from the following licensing entities to furnish fingerprints
for purposes of conducting criminal history record checks:
a) California Board of Accountancy;
b) State Athletic Commission;
c) Board of Behavioral Sciences;
d) Court Reporters Board of California;
e) State Board of Guide Dogs for the Blind;
f) California State Board of Pharmacy;
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g) Board of Registered Nursing (BRN);
h) Veterinary Medical Board;
i) Registered Veterinary Technician Committee;
j) Board of Vocational Nursing and Psychiatric Technicians
(BVNT);
aa) Respiratory Care Board of California;
bb) Hearing Aid Dispensers Bureau;
cc) Physical Therapy Board of California;
dd) Physician Assistant Committee of the Medical Board of
California (MBC);
ee) Speech-Language Pathology and Audiology Board;
ff) MBC;
gg) State Board of Optometry;
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hh) Acupuncture Board;
ii) Cemetery and Funeral Bureau;
jj) Bureau of Security and Investigative Services;
aaa) Division of Investigation;
bbb) Board of Psychology;
ccc) California Board of Occupational Therapy;
ddd) Structural Pest Control Board;
eee) Contractors' State License Board (CSLB);
fff) Bureau of Naturopathic Medicine;
ggg) Dental Board of California;
hhh) Dental Hygiene Committee of California;
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iii) Professional Fiduciaries Bureau;
jjj) California Board of Podiatric Medicine;
aaaa)Osteopathic Medical Board of California; and,
bbbb)State Board of Chiropractic Examiners.
1)Requires the applicants or petitioners from the entities
listed above to successfully complete a state and federal
level criminal offender record information search conducted
through the Department of Justice (DOJ), as specified.
2)Requires the DOJ to forward the fingerprint images and related
information received to the Federal Bureau of Investigation
(FBI) and request federal criminal history information.
3)Requires the DOJ to compile and disseminate the state and
federal responses to the requesting licensing entity, as
specified.
4)Requires the specified licensing entities to request
subsequent arrest notification services from the DOJ on each
licensee, and requires the DOJ to charge a fee sufficient to
cover the cost of processing such requests.
5)Requires the specified licensing entities to require a
licensee who has not previously submitted fingerprints or for
whom a record of the submission of fingerprints no longer
exists to, as a condition of license renewal, to complete the
criminal offender record information search described above,
commencing on January 1, 2011.
6)Requires a state and federal criminal offender record
information search as a condition of license renewal for the
specified licensing entities, and declares that failure to
provide the necessary information for the search renders an
application for licensure incomplete.
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7)Prohibits specified licensing entities from renewing a
license, activating an inactive license, or returning a
retired license to full licensure status for an individual who
has not previously submitted fingerprints or for whom a record
of the submission of fingerprints no longer exists until the
entity can verify that the licensee has complied with the
fingerprint and record information search, as indicated by a
certification form, as specified.
8)Requires licensees to retain either of the following for at
least three years:
a) The receipt showing that the fingerprint images required
by this section were electronically transmitted to the DOJ;
or,
b) For those licensees who did not use an electronic
fingerprinting system, the receipt evidencing that the
fingerprint images required by this section were taken.
9)Permits the designated licensing entities to waive the
requirements regarding current licensees without fingerprints
if the license is inactive or retired, or if the licensee is
actively serving in the military.
10)States that a licensee who falsely certifies completion of a
state and federal level criminal record information search
shall be subject to disciplinary action.
11)As it relates to the CSLB:
a) States that the provisions relating to a license renewal
for a licensee who has not previously submitted
fingerprints or for whom a record of the submission of
fingerprints no longer exists will become operative on the
date on which an appropriation is made in the annual Budget
Act to fund the criminal history record check.
b) Provides that if this bill becomes operative on or
before July 1, 2012, CSLB is required to implement this
bill according to the following schedule, using the fees
under its fee cap:
i) For licenses initially issued between January 1,
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2000, and December 31, 2005, inclusive, certification is
required during the license renewal period commencing on
January 1, 2013;
ii) For licenses initially issued between January 1,
1990, and December 31, 1999, inclusive, certification is
required during the license renewal period commencing on
January 1, 2015; and,
iii) For licenses initially issued prior to January 1,
1990, certification is required during the license
renewal period commencing on January 1, 2017.
c) Provides that if this bill becomes operative after July
1, 2012, the license renewal period commencement dates
specified above shall be delayed one year at a time until
this section becomes operative.
12)Requires the specified licensing entities to require a
licensee, as a condition of license renewal, to notify the
entity on the license renewal form if he or she, or any member
of the personnel of record of the licensee, has been
convicted, 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.
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.
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5)Requires the licensing of 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 DOJ and the FBI.
6)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.
7)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.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of this bill . According to the author's office, "This
bill establishes statutory affirmation of this authority [to
require fingerprinting] 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."
Background . In the fall of 2008, the Los Angeles Times
published several articles highlighting nurses and licensed
vocational nurses with prior criminal convictions who held
current licenses from the BRN and the BVNPT. The articles
reported 115 cases in which the boards did not seek to revoke or
restrict licenses until nurses had had three or more criminal
convictions. In some cases, nurses with felony records continue
to have spotless licenses, even while jailed or imprisoned.
The investigation revealed two significant flaws in the boards'
screening processes. First, it allowed a larger portion of the
343,000 active registered nurses to escape scrutiny because
although the BRN began to fingerprint applicants in 1990, the
law was not retroactive. Secondly, license renewal does not
trigger a fingerprint check, nor was the BRN able to ask the
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licensee about any criminal convictions since the initial
license or last renewal.
In response to the Los Angeles Times articles, the DCA indicated
that it was taking action to provide additional consumer
protections by making sure that all health related boards
implement a plan to obtain fingerprints from all licensees.
Both the BRN and the BVNPT have adopted emergency regulations to
require the fingerprinting of existing licensees, and other
licensing boards without this requirement have begun the
rulemaking process. 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.
Arguments in support : The California Board of Accountancy
writes, "In the fall of 2008, there were a series of news
articles that exposed a problem in some of the Department of
Consumer Affairs' health boards in which licensees who had not
been fingerprinted prior to licensure were subsequently
convicted of crimes that were not reported to the boards. In
order to better protect consumers, the Board supports your
efforts to ensure that all licensees are fingerprinted and that
all convictions are disclosed."
Arguments in opposition : The California Medical Association is
opposed to this bill because "The MBC has required fingerprints
to be submitted at the time of licensure for criminal background
checks since 1968. Virtually all physicians in California have
submitted fingerprints. The MBC estimates that less than one
tenth of licensed physicians will not have already complied with
the provisions of this bill. In face, those that were not
required to submit fingerprints will have had a valid license
for over 40 years.
"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. Due to these facts,
this bill is not necessary as a way to protect the people of
California."
Prior Legislation. SB 1402 (Corbett) of 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
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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, required the
CSLB to obtain fingerprints and criminal history information
from applicants on the date on which sufficient funds are
available to CSLB and the DOJ, or on July 1, 2005, whichever
occurs first.
SB 1346 (Senate Business and Professions Committee), Chapter
758, Statutes of 1997, established the general fingerprinting
authority under the B&P Code.
AB 1025 (Bass) of 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,
citing his concern for public health, safety, and welfare of
permitting individuals convicted of crimes to work in a
regulated profession.
Double referred : This bill is double-referred to the Assembly
Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association for Nurse Practitioners
California Board of Accountancy
California Chiropractic Association
Medical Board of California
Opposition
American Fence Contractors' Association, California Chapter
California Fence Contractors' Association
California Medical Association
Construction Industry Legislative Council
Engineering Contractors' Association
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Flasher/Barricade Association
Marin Builders' Association
Southern California Contractors Association
Analysis Prepared by : Sarah Huchel / B. & P. / (916) 319-3301