BILL ANALYSIS �
SB 1384
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Date of Hearing: June 24, 2014
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
SB 1384 (Mitchell) - As Amended: June 19, 2014
SENATE VOTE : 23-12
SUBJECT : Certified nurse assistants.
SUMMARY : Deletes the requirement that the Department of Public
Health (DPH) deny a training and examination application and
deny, suspend, or revoke a certificate if the applicant or
certificate holder has been convicted of a violation or
attempted violation of one or more specified crimes.
Specifically, this bill :
1)Eliminates the provisions of law that require DPH, except
under specified circumstances, to deny, suspend, or revoke a
certificate as a certified nurse assistant (CNA) if the
applicant or certificate holder has been convicted of one of a
number of specified criminal offenses, including murder,
robbery, assault, kidnapping, various sexual offenses, elder
or dependent abuse, various larceny and extortion offense, and
others.
2)Limits DPH's discretion to determine whether an applicant has
adequately demonstrated rehabilitation, for purposes of
denying, suspending or revoking a certificate as a CNA based
on the conviction of a crime related to the qualifications,
functions, and duties of a CNA, by adding an order from a
superior court relating to the dismissal or setting aside of
criminal convictions to the list of factors that are evidence
of rehabilitation. Deletes the ability of DPH to disregard
these orders when determining whether an applicant has
adequately demonstrated rehabilitation.
3)Makes other technical and conforming changes, and various
findings and declarations regarding reducing recidivism.
EXISTING LAW :
1)Establishes DPH, which certifies and regulates CNAs.
2)Establishes a scope of practice for CNAs as performing basic
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patient care services directed at the safety, comfort,
personal hygiene, and protections of patients, and prohibits
CNAs from performing any services which can only be performed
by a licensed person, and requires all services to be
performed under the supervision of a licensed registered nurse
or a licensed vocational nurse.
3)Requires an applicant for certification as a CNA to be at
least 16 years of age, have successfully completed a
CDPH-approved training program that includes at least 60
classroom hours and 100 hours of supervised on-the-job
training, and have obtained a criminal record clearance.
4)Requires the criminal record clearance for CNAs to be
conducted by submission of fingerprint images and related
information for processing at the Department of Justice.
5)Requires CNA certificates to be renewed every two years, and
requires the certificate holder to obtain another criminal
record clearance in order to have their certificate renewed.
6)Requires DPH to deny, suspend, or revoke a CNA certificate if
the applicant or certificate holder has been convicted of
violating any of one of a number of specified criminal laws,
including: murder; robbery; assault; kidnapping; various
sexual offenses; elder or dependent abuse; theft; and,
extortion, among other offenses, unless the person has
obtained a certificate of rehabilitation, as specified, or the
accusation or conviction has been dismissed or otherwise set
aside pursuant to specified provisions of law. However, if
the certificate holder had previously disclosed the fact of
each conviction to DPH, and DPH has made a determination that
the conviction does not disqualify the applicant from
certification, DPH is permitted to renew the certificate.
7)Permits DPH to deny, suspend, or revoke a CNA certificate for
certain specified reasons, including the following:
a) Unprofessional conduct, as specified;
b) Conviction of a crime substantially related to the
qualifications, functions, and duties of a CNA, even if the
conviction has been dismissed or set aside pursuant to
specified provisions of law, where DPH has determined that
the applicant or certificate holder has not adequately
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demonstrated that he or she has been rehabilitated and will
present a threat to the health, safety, or welfare of
patients; and,
c) Conviction for, or use of, any controlled substance, as
defined, or any prescription drug, or alcoholic beverages,
to an extent or in a manner dangerous or injuries to the
CNA or any other person, or to the extent it would impair
the ability to practice as a CNA.
8)Requires DPH, in determining whether or not to deny the
application for certification or renewal under 7) above, to
take into consideration specified factors as evidence of good
character and rehabilitation, including: the nature and
seriousness of the conduct or crime and its relationship to
their employment duties; activities since conviction that
would indicated changed behavior; the time that has elapsed
since commission of the conduct or crime; the extent to which
the person has complied with any terms of parole, probation,
or restitution; and, any rehabilitation evidence, including
character references, submitted by the person.
FISCAL EFFECT : According to the Senate Appropriations Committee
based on the April 30, 2014 version of the bill, potential
one-time costs up to $150,000 to revise existing regulations
(Licensing and Certification Program Fund) and unknown increase
in staff costs to review applications for a certificate
(Licensing and Certification Program Fund).
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, current law
mandates denial of CNA applicants who have been convicted of
certain enumerated offenses, regardless of the passage of time
or an applicant's transformation and this automatic bar
unfairly denies rehabilitated people necessary access to a
growing industry of accessible, living-wage jobs. The author
states that it also ignores evidence-based information showing
that the likelihood of recidivism declines over time to a
level near or equal to a person who has never been arrested.
The author argues that this bill provides all CNA applicants
with a conviction history discretionary review of their
application and consideration of all evidence of
rehabilitation-thereby modeling the provisions that apply to
registered nurses. Finally, the author states that this
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commonsense measure protects public safety by preserving the
discretion to deny an application on the basis of a
conviction, and it more aptly reflects California's commitment
to increasing opportunities for rehabilitated people who seek
to earn a living wage, support their family, and contribute to
society.
2)BACKGROUND .
a) CNAs. There are an estimated 160,000 CNAs working in
California. A person may only use the title, and hold
themselves out as a CNA if they are working in a health
facility licensed by DPH. The majority of CNAs work in
skilled nursing facilities. CNAs perform a variety of
basic duties for the patient's comfort and recovery. These
tasks vary depending on the employment setting but
typically include: taking temperatures; pulse; respiration;
blood pressure; helping patients with range-of-motion
exercises; assisting patients with their daily living
needs; serving meals; making beds; and, helping patients
eat, dress, and bathe. CNAs are paid, on average,
approximately $14 dollars per hour. The United States
Bureau of Labor Statistics projects that, between 2008 and
2018, the demand for CNAs will increase by about 19%. As a
growing occupation with low education and training
requirements, the CNA profession has been a target for
welfare-to-work and other training programs.
b) Criminal background checks. More than 80% of U.S.
employers perform criminal background checks on prospective
employees. The issue of employing ex-offenders has become
even more complicated with advances in information
technology and growing concerns about employer liability.
According to a report by the National Employment Law
Project (NELP), entitled, "65 Million "Need Not Apply," The
Case for Reforming Criminal Background Checks for
Employment," an estimated 65 million adults, or one in four
of all adults, have criminal records. According to NELP,
the irony is that employers' attempts to safeguard the
workplace are not only barring many people who pose little
to no risk, but they also are compromising public safety.
NELP states that as studies have shown, providing
individuals the opportunity for stable employment actually
lowers crime recidivism rates.
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c) Equal Employment Opportunity Enforcement (EEOC)
Guidance. In April 2012, the EEOC published "Enforcement
Guidance on the Consideration of Arrest and Conviction
Records in Employment Decisions Under Title VII of the
Civil Rights Act of 1964" regarding the use of arrest or
conviction records in employment decisions under Title VII
of the Civil Rights Act of 1964 (Title VII). The EEOC
Guidance states that an employer's use of an individual's
criminal history in making employment decisions, may, in
some instances, violate the prohibition against employment
discrimination under Title VII.
d) Concerns about regulation and enforcement of CNAs. Last
September, the Center for Investigative Reporting (CIR)
published a report describing a mass dismissal of open
complaints against CNAs in 2009 in order to address what
was then a large backlog of investigations (Quick Dismissal
of Caregiver Abuse Cases Puts California Patients at Risk,
September 2013). According to the CIR report, between 2004
and 2008, DPH accumulated more than 900 cases in Southern
California alone. In 2009, CIR reported that DPH ordered
its investigators to dismiss nearly 1,000 pending cases of
abuse and theft, "often with a single phone call from
Sacramento headquarters." The CIR report went on to
describe the current practice as one in which investigators
are opened and closed investigations into suspected abuse
without leaving their desks, resulting in a much lower
percentage of complaints that lead to revocation of a CNA
certificate. According to CIR, in 2006, DPH revoked or
denied a certification in 27% of the complaints it
investigated. In 2009, as DPH eliminated the backlog, only
7% of the complaints resulted in a revoked or denied
certificate. In 2006, 58% of cases were closed without
taking any action against a certificate holder. In 2012,
this figure had risen to 81% of all cases.
3)SUPPORT . Equal Rights Advocates is the sponsor of this bill
and writes that categorically banning individuals from
becoming CNA's solely on the basis of a past conviction denies
many families a real chance to climb out of poverty. The
sponsor further argues that studies show that the passage of
time substantially reduces the likelihood of recidivism to a
level near or equal to those who have never been arrested and
that stable employment decreases the likelihood of recidivism
by as much as 62 %. Finally, the sponsor's state that
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California's commitment to reducing recidivism must include
measures that increase access to living wage jobs for those
with criminal records.
NELP supports this bill because it eliminates the automatic
denial of CNA applicants with certain convictions and provides
discretionary review of all CNA applicant' criminal records.
4)RELATED LEGISLATION .
a) AB 1689 (Conway) would require DPH to post on its
Internet Website a registry of all CNAs that includes the
status of their certification and additional information as
specified, including any finding of abuse, neglect, or
misappropriation of property by the CNA. AB 1689 is
pending in the Assembly Committee on Health.
b) AB 1702 (Maienschein) specifies that an individual who
has satisfied the requirements for licensure while
incarcerated and who applies for licensure after being
released from incarceration shall not have his or her
application delayed or denied solely on the basis that some
or all of the requirements were completed while the
individual was incarcerated. AB 1702 exempts the Board of
Chiropractic Examiners from these requirements. AB 1702 is
pending in the Senate Appropriations Committee.
c) AB 2396 (Bonta) prohibits boards within the Department
of Consumer Affairs (DCA) from denying a professional
license based solely on a criminal conviction that has been
withdrawn, set aside, or dismissed by the court. AB 2396
is pending in the Senate Business, Professions and Economic
Development Committee.
5)PREVIOUS LEGISLATION .
a) AB 218 (Dickinson), Chapter 699, Statutes of 2013,
prohibits a state or local agency from asking an applicant
to disclose information regarding a criminal conviction,
except as specified, until the agency has determined the
applicant meets the minimum employment qualifications for
the position.
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b) AB 651 (Bradford), Chapter 787, Statutes of 2013,
authorizes a court, in its discretion and in the interests
of justice, to grant expungement relief for a conviction of
a petitioner sentenced to county jail pursuant to criminal
justice realignment if specified conditions are satisfied.
c) SB 1077 (Price), Chapter 291, Statutes of 2011, requires
the Director of DCA when considering the granting of a
probationary license, registration, certificate, or permit,
to request that an applicant with a dismissed conviction
provide proof of that dismissal, and requires that special
consideration be given to applicants with dismissed, and
that the Director take into account any other reasonable
documents or individual character references provided by
the applicant.
REGISTERED SUPPORT / OPPOSITION :
Support
Equal Rights Advocates (sponsor)
A New Way of Life Re-Entry Project
American Civil Liberties Union of California
American Nurses Association\California
Arriba Juntos
California Attorneys for Criminal Justice
East Bay Community Law Center
Friends Committee on Legislation of California
Lawyers' Committee for Civil Rights, San Francisco Bay Area
Legal Services for Prisoners with Children
National Center for Lesbian Rights
National Employment Law Project
PICO California
Policy Link
Root & Rebound
San Francisco Public Defender, Jeff Adachi
Western Center on Law & Poverty
Women's Foundation of California
Youth Alive!
Numerous individuals
Opposition
None received.
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Analysis Prepared by : Lara Flynn / HEALTH / (916) 319-2097