BILL ANALYSIS �
AB 2632
Page A
CONCURRENCE IN SENATE AMENDMENTS
AB 2632 (Maienschein)
As Amended August 5, 2014
Majority vote
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|ASSEMBLY: |77-0 |(May 27, 2014) |SENATE: |34-0 |(August 19, |
| | | | | |2014) |
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Original Committee Reference: HUM. S.
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 for a non-exemptible crime, as
specified, prior to the completion of an evaluation of the
person's arrest record for employment. Specifically, this bill:
1)Requires DSS to conduct a full investigation into an applicant
who has been arrested for the following crimes to determine
whether they may receive a criminal record clearance to be
employed in a CCF, RCFE, or CDCF:
a) Crimes that require registration pursuant to the Sex
Offender Registry Act;
b) Assault with a deadly weapon or firearm;
c) Felony/misdemeanor domestic violence;
d) Felony/misdemeanor child abuse under conditions not
likely to produce great bodily harm or death.
2)Makes technical clarifying changes to the criminal record
clearance process for community care facilities, RCFEs,
certified family homes, and child care facilities.
The Senate amendments :
1)Delete the provision limiting the requirement that DSS conduct
a full investigation into an applicant with a pending arrest
for a non-exemptible crime, as specified.
AB 2632
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2)Amend the bill to require that any person who has been
arrested for a non-exemptible crime, as specified, but not
charged or convicted, undergo a full investigation to
determine whether they may receive a criminal record clearance
to be employed in a CCF, RCFE, or CDCF
AS PASSED BY THE ASSEMBLY , this bill prohibited the DSS from
providing a criminal record clearance for a person applying for
employment in a CCF, RCFE, or a CDCF with a pending arrest for a
non-exemptible crime, as specified, prior to the completion of
an evaluation of the person's arrest.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
Negligible state costs. DSS indicates this bill corresponds
with the process they implemented in March of this year.
COMMENTS :
DSS Community Care Licensing Division (CCLD): 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 June 30, 2014 there are 76,416 licensed
facilities in the state, with a licensed capacity of 1,395,185
individuals.
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
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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, this can result in time
consuming and labor intensive investigative efforts to track
down the arrest record and conduct the required thorough review
before the person has the opportunity to be employed. This can
result in problematic delays that can present potential
challenges to the applicant's constitutional right to due
process.
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.
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
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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.
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089
FN: 0004604
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<1>.
http://www.kcra.com/news/state-clears-daycare-nursing-home-workers-before-background-checks/24697902