BILL ANALYSIS
SB 389
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Date of Hearing: July 7, 2009
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 389 (Negrete-McLeod) - As Amended: June 1, 2009
SUMMARY : Adds specified licensees to the existing list of
licensees required to furnish to the licensing agency a full set
of fingerprints for purposes of conducting criminal history
record checks, and imposes these requirements on a petitioner
for reinstatement of a revoked or cancelled license.
Specifically, this bill :
1)Makes fingerprinting requirements also applicable to the
Dental Board, the Dental Hygiene Committee, the Professional
Fiduciaries Bureau, the Osteopathic Medical Board, the Board
of Podiatric Medicine, and the Board of Chiropractic
Examiners.
2)Requires new applicants and petitioners for reinstatement of a
revoked, surrendered, or canceled license to successfully
complete a state and federal level criminal record information
search.
3)Commencing January 1, 2011, requires licensees who have not
previously submitted fingerprints, or for whom a record of the
submission of fingerprints no longer exists, to complete the
process necessary for a state and federal criminal offender
record information search, as specified.
4)Provides that, as a condition of license renewal, a licensee,
as specified, shall complete the process necessary for a state
and federal criminal offender record information search to be
conducted as described, through the Department of Justice and
the Federal Bureau of Investigation (FBI). States that
failure to provide the necessary information on the search
renders an application for licensure incomplete.
5)States that no license shall be renewed until certification by
the licensee is received by the agency verifying that the
licensee has complied with the specified requirements. States
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that the certification shall be made on a form provided by the
agency not later than the renewal date of the license.
Requires the licensee to retain, for at least three years,
specified evidence that the certification was made.
6)Subjects to disciplinary action a licensee who falsely
certifies completion of a state and federal level criminal
record information search.
7)Requires licensees, as a condition of renewal of the license,
to notify the Board if the licensee, or any member of the
personnel of record of the licensee, has been convicted of a
felony or misdemeanor since the last renewal, or, if this is
the first renewal, since the initial license has been issued.
8)Specifically requires the Contractors' State License Board to
implement the provisions pertaining to license renewal on the
date on which an appropriation is made in the Annual Budget
Act to fund the Board's activities to accommodate a criminal
history record check. States that if these provisions become
applicable to the Contractors' State License Board on or
before July 1, 2012, it shall implement this bill according to
a specified schedule. States that if the provisions become
applicable after July 1, 2012, the specified license renewal
commencement dates shall be delayed for one year.
EXISTING LAW :
1)Creates the Department of Consumer Affairs (DCA) within the
State and Consumer Services Agency. Provides that the
Director of the Department of Consumer Affairs is appointed by
the Governor and serves at the pleasure of the Governor.
[Business and Professions (B&P) Code Section 151.]
2)States that each board within the DCA shall establish such
license periods and renewal dates for all licenses in such
manner as best to distribute the renewal work of all boards
throughout each year. (B&P Code Section 152.6.)
3)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.
(B&P Code Section 480.)
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4)Provides that in any criminal proceedings against a person who
has been issued a license to engage in a business or
profession by a state agency pursuant to the B&P Code, the
Education Code, or the Chiropractic Initiative Act, the state
agency which issued the license may voluntarily appear to
furnish pertinent information, make recommendations regarding
specific conditions of probation, or provide any other
assistance necessary to promote the interests of justice and
protect the interests of the public, or may be ordered by the
court to do so, if the crime charged is substantially related
to the qualifications, functions, or duties of a licensee.
(Penal Code Section 23.)
5)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. (B&P Code Section 803.)
6)Requires city attorneys and district attorneys to report to a
health board any filings charging a felony and requires the
clerk of the court to 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. (B&P Code Section
803.5.)
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.
(B&P Code Section 802.1.)
8)Requires the following agencies to require applicants to
furnish to the agency a full set of fingerprints for the
purposes of conducting criminal history record checks.
Further states that any such agency may, at its discretion,
obtain and receive criminal history information from the
California DOJ and the FBI [B&P Code Section 144(a)(b)]:
a) The California Board of Accountancy;
b) State Athlete Commission;
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c) Board of Behavioral Science;
d) Court Reporters Board of California;
e) State Board of Guide Dogs for the Blind;
f) California State Board of Pharmacy;
g) Veterinary Medical Board;
h) Registered Veterinary Technician Committee;
i) Board of Vocational Nursing and Psychiatric Technicians;
j) Respiratory Care Board of California;
aa) Hearing Aid Dispensers Advisory Committee;
bb) Physical Therapy Board of California;
cc) Physician Assistant Committee of the Medical Board of
California;
dd) Speech-Language Pathology and Audiology Board;
ee) Medical Board of California;
ff) State Board of Optometry;
gg) Acupuncture Board;
hh) Cemetery and Funeral Board;
ii) Bureau of Security and Investigative Services;
jj) Division of Investigation;
aaa) Board of Psychology;
bbb) The California Board of Occupational Therapy;
ccc) Structural Pest Control Board;
ddd) Contractors' State License Board; and,
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eee) Bureau of Naturopathic Medicine.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill
protects consumers by requiring all health-related boards
under the DCA to fingerprint all license applicants for the
purpose of conducting criminal background checks; and
requiring, 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 this bill, the requirement to fingerprint existing
licensees would apply not only to health-related boards but
also to other licensing boards subject to the general
fingerprint requirement of B&P Code Section 144. This 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.
"The most important part of this bill is to assure that the 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. The
absence of fingerprints on file with DOJ leaves open the
opportunity for licensees of California to continue their
trade or practice even after committing serious crimes and
endangering consumers.
"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 California 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 the
agencies."
2)Background : 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
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and were still licensed by the Board of Registered Nursing
(BRN) and the Board of Vocational Nursing and Psychiatric
Technicians (BVNPT). The Los Angeles Times' investigation, in
a joint effort with the non-profit 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
BRN did not seek to revoke or restrict licenses until nurses
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.
"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 of the board to ask
the licensee if they had a criminal conviction since their
initial license or last renewal.
"In response to those 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. (B&P Code Section 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
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report a conviction of a crime within 48 hours of the
conviction. (B&P Code Section 803.5.) The clerk must
transmit any felony preliminary hearing transcript or
probation report on a licensee to the respective health board.
(B&P Code Section 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 requires only a
physician and surgeon or doctor of podiatric medicine to
report this information, and [these people] can be fined
$5,000 for non-reporting. (B&P Code Section 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 DCA
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
this purpose prior to license renewal."
3)This Bill Appears To Be Intended to Correct the Flaws
Disclosed in the Los Angeles Times Article : This bill
mandates that the current licensing boards who, under existing
law may, but are not required to, obtain criminal background
checks for potential licensees, to get the background checks.
This bill also adds six new boards to this requirement and
mandates that the boards get subsequent arrest information.
This bill also requires the licensee applying for license
renewal to certify that he or she has already had a background
check or submitted fingerprints. There could be potential
problems with this self-certification process. For example,
there could have been a problem with the fingerprints
submitted or the person's background check may not have
cleared without problems. Additionally, a person could be
confused because he or she may have had a background check for
another purpose, such as being a scout leader or assisting at
their child's school; that person may not understand that a
background check conducted on him or her with respect to his
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or her role as a scout leader does not automatically cross
over to other areas, such as license renewal.
Self-certification is not necessarily a workable process to
correct the flaws disclosed by the newspaper articles; i.e.,
that the boards have not maintained consistent records.
According to background information piece provided by the
author, "Regarding licensees self-reporting of a charge of a
misdemeanor or felony, the B&P Code requires only a physician
and surgeon or doctor of podiatric medicine to report this
information . . . All licensees should be required to report
convictions to the board that licenses and regulates them."
4)DCA Director's Statement regarding the Fingerprinting of
Licensees : A December 2008 statement from the DCA Director
was included with the author's background information. The
Director states in part, "The DCA has instructed all of the
healing arts boards and bureaus to quickly move forward with a
number of administrative and policy changes to further
strengthen the screening of existing licensees, initiate
appropriate disciplinary actions, and create transparency for
the public concerning questionable licensees. Actions taken
include:
a) "Collection of fingerprints from all active healing arts
licensees not fingerprinted. DCA has established a
timeline of no more than one renewal cycle (two years) in
order for this to be accomplished.
b) "Inclusion on all healing arts renewal forms a question
requiring licensee to disclose any conviction or
administrative action taken against them by a government
agency since their last renewal.
c) "The Internet posting of the entire text of formal
accusations filed against a licensee for those currently
pending and for any new accusations filed by each board or
bureau.
d) "A thorough review of all pending complaints and
accusations to identify any cases that require immediate
action to suspend a license in order to ensure public
safety.
e) "The fingerprinting directive currently applies to
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health boards and bureaus, but will be expanded to include
all of the DCA's boards and bureaus. Consumer public
safety is the DCA's No. 1 priority and it has been
determined that those boards and bureaus that put licensees
indirect contact with consumers will have priority when it
comes to financial and personnel resources.
f) "DCA has reaffirmed and amplified its expectation that
all regulatory programs seek interim suspension orders and
[Penal Code Section] 23 intervention for those licenses
posing a clear and imminent threat to the public if allowed
to practice."
5)Arguments in Support :
a) According to the Medical Board of California , "This bill
would require a licensee who has not been previously
fingerprinted or for whom a record does not exist, to
successfully complete a fingerprint record search at time
of renewal. It will require notification by the licensee
at time of renewal if he or she has been convicted of a
felony or misdemeanor since the last renewal.
"The Board has been fingerprinting its licensees for many
years and is in the process of verifying records to
determine if any licensees have not been fingerprinted.
The Board feels that access to fingerprint records is
important for consumer protection. We support the
authority to work with the DOJ to complete the
fingerprinting process for all licensees.
"Although current law includes reporting requirements, the
additional requirement for licensees to report felonies or
misdemeanors at the time of renewal is an added protection
for consumers."
b) According to the California Board of Accountancy , "SB
389 requires applicants for a license and licensees who
have not previously submitted fingerprints to successfully
complete a state and federal level criminal offender record
information search. It requires a licensee, as a condition
of license renewal, to notify the Board on the license
renewal form, of a felony or misdemeanor conviction since
his or her last renewal.
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"[T]he Board believes that ensuring all licensees undergo a
criminal offender record information search will be a
benefit to California consumers."
c) According to the California Association for Nurse
Practitioners , "SB 389, which would ensure that all
licensees of the DCA are fingerprinted, ensuring that the
licensing boards are aware of future convictions.
"The California Association for Nurse Practitioners believes
this is a reasonable measure to ensure that all nurses
practicing in California are held to the highest standard.
The BRN should have this basis information about licensees
who may have committed serious crimes that may endanger
consumers. Nurse practitioners are advanced practice
registered nurses who have additional education and
training in diagnosis and management of medical conditions
and are authorized to perform healthcare services beyond
those of a registered nurse. All nurse practitioners are
registered nurses and hold a license issued by the
California BRN."
6)Arguments in Opposition :
a) According to the Construction Industry Legislative
Council (CILC), a consortium of over 40 subcontractor trade
associations, "This bill would require applicants for a
specified license to have a criminal background check
completed before a license is granted or renewed.
"Contractors that enter consumer's homes to perform repairs
are usually employees of the contractor and would not be
subject to background checks. Furthermore, current law
already requires the Contractor's State Licensing Board
(CSLB) to fingerprint for a new license. Since the
implementation of the fingerprinting requirement in 2005,
CSLB workload has been heavy and they are already behind on
fingerprinting new licenses. This bill would further
exacerbate an already overburdened system."
b) According to the Southern California Contractors
Association (SCCA), "SCAA was established in 1974 as an all
union contractor association; most SCCA members are heavy
engineering contractors - they build some of our roads,
bridges, and highways.
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"SB 389 requires that every board, bureau, and commission
under the DCA to require a criminal history background
check for every license renewal. For purposes of this
bill, SCCA is only concerned with the CSLB.
"The natural progression of applications to replace the
qualifying individual, add license classifications and new
applications for original licenses is a fair and just time
to administer criminal history background checks. In time,
all licensees will have completed one. There is no reason
to increase this natural progression.
"Moreover, SCCA is an association of commercial construction
contractors that do not participate in home improvement
construction projects. SCCA members have no contact with
consumers. Additionally, contractor licenses are unique in
that one person qualifies and licenses an entire business.
Most licensees under DCA license individuals. This is a
significant difference when examining licenses under B&P
Code Section 144; not all licenses should be treated in the
same way."
7)Prior Legislation :
a) SB 136 (Figueroa), Chapter 909, Statutes of 2004,
required, among other things, CSLB to obtain fingerprints
and criminal history information from applicants on the
date on which sufficient funds were available to the Board
and the DOJ, or on July 1, 2005, whichever occurred first.
b) SB 1346 (Business & Professions Committee), Chapter 758,
Statutes of 1997, established the general fingerprinting
authority under the B&P Code.
c) AB 1025 (Bass), of the 2007-08 Legislative Session,
would have provided that an applicant for a license could
not be denied licensure, or have the license suspended or
revoked, on the basis of a conviction of a misdemeanor or
felony if that person has obtained a certificate of
rehabilitation, and if the felony or misdemeanor has been
dismissed. AB 1025 would have established a presumption
that the applicant or licensee had been rehabilitated
unless the Board proved otherwise. AB 1025 was vetoed by
the Governor, stating that expungement is not intended to
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be indicative of rehabilitation, and this bill places the
burden of proof on licensing agencies to show that an
individual is not rehabilitated, which would result in
increased litigation and extensive investigations.
d) SB 1402 (Corbett), of the 2007-08 Legislative Session,
would have added the Board of Chiropractic Examiners and
specified other healing arts boards and bureaus to the
entities required to provide licensing status information.
SB 1402 was vetoed by the Governor, citing the delay in
passing the 2008-09 budget which forced him to sign bills
that are the highest priority for California. "This bill
does not meet that standard, and I cannot sign it."
REGISTERED SUPPORT / OPPOSITION :
Support
California Association for Nurse Practitioners
California Board of Accountancy
California Chiropractic Association
Medical Board of California
Opposition
Construction Industry Legislative Council
Southern California Contractors Association
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744