BILL ANALYSIS �
AB 2632
Page A
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
AB 2632 (Maienschein) - As Amended: March 28, 2014
SUBJECT : Care facilities: criminal background clearances
SUMMARY : Prohibits the Department of Social Services (DSS) from
providing a criminal record clearance for a person applying for
employment in a Community Care Facility (CCF), Residential Care
Facility for the Elderly (RCFE), and Child Day Care Facilities
(CDCF) with a record of an arrest prior to the completion of an
evaluation of the person's arrest record for employment.
EXISTING LAW
1)Establishes the California Community Care Facilities Act
(CCFA) to provide a comprehensive statewide service system of
quality community care for people who have a mental illness, a
developmental or physical disability, and children and adults
who require care or services by a facility or organization.
(H&S Code 1500 and 1501)
2)Defines a CCF as a facility, place, or building maintained and
operated to provide nonmedical residential care, day
treatment, adult day care, or foster family agency services
for children, adults, or children and adults, including, but
not limited to, the physically handicapped, mentally impaired,
incompetent persons, and abused or neglected children. (H&S
Code 1502)
3)Establishes the California RCFE Act, which requires facilities
that provide personal care and supervision, protective
supervision or health related services for persons 60 years of
age or older who voluntarily choose to reside in those
facilities to be licensed by DSS. (H&S Code 1569 and 1569.1)
4)Establishes the California CDCFA to provide a comprehensive,
quality system for licensing child day care facilities to
ensure that working families have access to healthy and safe
child care providers and that child care programs contribute
positively to a child's emotional, cognitive, and educational
development, and are able to respond to and provide for the
unique characteristics and needs of children. (H&S Code
AB 2632
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1596.70 and 1596.72)
5)Requires applicants to undergo a state and federal criminal
background check prior to employment in a licensed CCF, RCFE,
or CDCF and requires DSS to deny the applicant eligibility for
employment if it finds that the applicant has been convicted
of a serious or otherwise violent or heinous, as specified.
(H&S Codes 1522(b), 1568.09(b), 1569.17(b), and 1596.871(b))
6)Prohibits DSS from using any record of arrest to deny, revoke,
or terminate any application, license, employment, or
residence unless DSS investigates the incident that led to the
arrest and obtains evidence, as specified, that indicates the
person may post a risk to the health and safety of the person
for whom they would be providing care. (H&S Codes 1522(e),
1568.09(e), 1569.17(e), and 1596.871(e))
FISCAL EFFECT : Unknown
COMMENTS :
DSS Community Care Licensing Division (CCLD) : Initially
administered by the Department of Health upon its establishment
in 1973, the CCFA became the jurisdiction the Health and Human
Services Agency, under which a number of departments were
placed, including the Departments of Social Services and Health
Services. Under today's structure, the responsibility for the
licensing of community care facilities sits with DSS, and the
duty to license health care facilities is with the Department of
Health Care Services (DHCS).
Facilities licensed by CCLD typically provide non-medical care
and supervision for children and adults in need, which includes
persons with disabilities, seniors in need of residential care,
children in foster care and at-risk children needing shelter
services, families in need of early childhood education (child
care), and adult care services. CCLD is responsible for the
licensing of all care facilities, including conducting criminal
background check reviews and clearances, and for investigating
all complaints against facilities.
According to DSS, as of April 1, 2014 there are 76,603 licensed
facilities in the state, with a licensed capacity of 1,395,275
individuals.
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Consideration of convictions and arrests : Under current law, a
person who wishes to be employed by a care facility must undergo
a state and federal criminal background check. This requires
applicants to submit their fingerprints in order to discover
whether they have any convictions that may preclude them from
working in care facilities, which serve some of California's
most vulnerable populations, such as foster youth, the elderly,
and the disabled. If it is discovered that a person has been
convicted of a crime, other than a minor traffic violation, the
applicant cannot receive a criminal background clearance from
DSS until a further investigation is conducted. If it is
discovered that an individual has been convicted of a
non-exemptible crime, such as rape, a sex offense, murder, or
fiscal malfeasance, then a criminal background clearance cannot
be provided.
Additionally, a person's arrest record is permitted to be taken
into account. However, current law specifically forbids an
arrest record from being used to deny or terminate a prospective
or current employee or licensee. Still, DSS may use an
incidence of arrest as reason to conduct a further investigation
into the applicant's background to determine whether the
individual may pose a threat to the health and safety of clients
or residents of a care facility. In conducting the
investigation, DSS is required to obtain information relating to
the nature and cause of the arrest and any other information or
evidence that may be used in an administrative hearing to make
the determination that the individual does or does not pose a
threat. This results in DSS having to acquire arrest record
information from the responsible law enforcement agency. For
applicants who have been arrested in other states, this can
result in time consuming and labor intensive investigative
efforts to track down the arrest record in a local jurisdiction
out of state.
Changing DSS policy on arrest clearances : Prior to 2011,
pursuant to its statutory authority to consider arrest records,
DSS conducted applicant reviews for individuals who had an
arrest for a non-exemptible crime. However, in 2011, in
response to delays in conducting timely reviews of applicants
with an arrest record, which can take anywhere from several
weeks to more than six months, DSS changed its policy to clear
all individuals who have arrests, but not convictions on their
record.
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In early 2014, in response to this change in policy, a DSS
licensing analyst reported to the media that he or she provided
clearances to individuals "who were arrested for assault and
battery, attempted murder, robbery, kidnapping, things like
arson [and] child abuse."<1> This caused concern that DSS was
not properly implementing its authority under current law. As a
result, DSS changed its policy again, but this time to conduct a
review of applicants who have an arrest for a "referable"
alleged crime. However, it is unclear what is considered a
"referable" versus "non-referable" alleged crime. For referable
arrests, DSS's Investigative Bureau, which handles
investigations into criminal background checks, and its Legal
Counsel conduct a multi-tiered review, which could take anywhere
from five days to several months depending on how much
information is needed to evaluate a referable arrest.
Need for the bill : Stating the need for the bill, the author
writes:
This legislative fix is necessary to ensure that the State
of California upholds its responsibility to adequately
protect Californians from the threat of potentially
dangerous individuals gaining employment in DSS-licensed
care facilities. The government should apply the highest
standard of care when dealing with our most vulnerable
populations, and this bill clarifies that each and every
DSS applicant's arrest record be investigated in a diligent
and timely manner before the applicant is allowed to gain
employment caring for those most at risk for abuse and
exploitation.
Writing in support of the bill as the sponsor, the Children's
Advocacy Institute states:
California has a moral and legal obligation to protect our
foster youth who, by force of law, we have removed from
their own homes and for whose well-being and safety we have
taken responsibility. [This bill] would protect
California's foster youth, and other vulnerable
populations, by amending applicable sections of California
Health and Safety Code. This bill clarifies that when an
individual applies for employment in a DSS-licensed care
-------------------------
<1>
http://www.kcra.com/news/state-clears-daycare-nursing-home-worker
s-before-background-checks/24697902
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facility, no criminal record clearance shall be issued to
an applicant with an arrest record prior to completion of a
complete background investigation.
Opposition : Writing in opposition to the bill, the Youth Law
Center states:
The proposed amendments apply to all arrests, regardless of
the date of the arrest or the seriousness of the alleged
offense. They do not define what investigation is required
or impose any timelines for the investigation. Current
Community Care Licensing policies include detailed
instructions for processing background checks when records
indicate an arrest with no conviction. (California
Department of Social Services, Evaluator Manual ��7- 1535
through 1550) These procedures recognize that arrest
records can indicate a wide variety of circumstances from
arrests for minor offenses that were never prosecuted to
pending allegations of serious crimes. The Manual defines
which arrests do not need to be investigated, which may be
investigated, and which must be investigated.
The social worker and the court are in the best position to
determine whether a placement is appropriate for a
particular child, but this amendment would delay
consideration of a placement pending investigation of any
arrest record, even when the relative caregiver, or someone
else living in the home, has a record of an arrest for a
minor offense that occurred years ago.
Staff comments : This measure seeks to help resolve what has
been a back-and-forth state policy on how to take into
consideration an arrest record of a person applying for
employment in a care facility. However, by providing a blanket
requirement that every person shall undergo a full investigative
review, regardless of the nature of the arrest or when the
arrest occurred, would unfairly limit employment to anyone who
has been arrested and is seeking to help serve clients or
residents of a care facility.
RECOMMENDED AMENDMENTS:
Rather than provide a blanket application, accommodation should
be considered for those whose arrests have been resolved or
whose arrests are not pending and do not involve a
AB 2632
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non-exemptible crime. Specifically, an individual whose arrest
for a non-exemptible crime is still undergoing adjudication
should be taken into account because the investigation and
potential legal charges are being pursued through the judicial
process.
Committee staff recommends deleting the current language in the
bill and replacing it with language requiring DSS to conduct an
investigative review of pending arrests related to allegations
of a non-exemptible crime. Non-exemptible crimes would be those
specified in Section 1522(a) of the Health and Safety Code.
It should be noted that this amendment would not change DSS'
current authority to conduct investigations of individuals with
arrest records. It would only clarify that a person with an
arrest for an alleged non-exemptible crime could not be provided
a clearance without further investigation.
REGISTERED SUPPORT / OPPOSITION :
Support
The Arc
United Cerebral Palsy
Children Advocacy Institute (CAI)
Opposition
American Civil Liberties Union (ACLU)
Youth Law Center
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089