BILL ANALYSIS �
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UNFINISHED BUSINESS
Bill No: SB 1384
Author: Mitchell (D), et al.
Amended: 7/2/14
Vote: 21
SENATE HEALTH COMMITTEE : 7-1, 4/24/14
AYES: Hernandez, Beall, De Le�n, DeSaulnier, Evans, Monning,
Wolk
NOES: Morrell
NO VOTE RECORDED: Nielsen
SENATE APPROPRIATIONS COMMITTEE : 5-2, 5/23/14
AYES: De Le�n, Hill, Lara, Padilla, Steinberg
NOES: Walters, Gaines
SENATE FLOOR : 23-12, 5/29/14
AYES: Beall, Block, Corbett, De Le�n, DeSaulnier, Evans,
Galgiani, Hancock, Hernandez, Hill, Jackson, Lara, Leno, Lieu,
Liu, Mitchell, Monning, Padilla, Pavley, Roth, Steinberg,
Torres, Wolk
NOES: Anderson, Berryhill, Cannella, Fuller, Gaines, Huff,
Knight, Morrell, Nielsen, Vidak, Walters, Wyland
NO VOTE RECORDED: Calderon, Correa, Hueso, Wright, Yee
ASSEMBLY FLOOR : 48-26, 8/20/14 - See last page for vote
SUBJECT : Certified nurse assistants
SOURCE : Equal Rights Advocates
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DIGEST : This bill deletes the requirement that the
Department of Public Health (DPH) deny, suspend, or revoke a
certificate of a certified nurse assistant (CNA) if the
applicant or certificate holder has been convicted of a
violation or attempted violation of one or more of the specified
crimes. This bill makes other related and conforming changes to
these provisions, and makes findings and declarations.
Assembly Amendments add findings and declarations; and add
coauthors.
ANALYSIS : Existing law:
1.Establishes DPH, which certifies and regulates CNAs.
2.Establishes a scope of practice for CNAs as performing basic
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
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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 the 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
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.
1.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.
This bill:
1.Eliminates the provisions of law that requires DPH, except
under specified circumstances, to deny, suspend, or revoke a
certificate as a CNA if the applicant or certificate holder
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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.Permits DPH, in determining whether or not to deny an
applicant, to take an order from a superior court, as
specified, relating to the dismissal or setting aside of
criminal convictions, to the list of factors that are evidence
of good character and rehabilitation.
3.Makes findings and declarations regarding criminal offender
recidivism and rehabilitation.
4.Makes other technical and conforming changes.
Background
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, although the sponsor of this bill, Equal
Rights Advocates, states that the average pay for CNAs in San
Francisco is more than $19 per hour, and nearly $17 per hour in
Alameda County. 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.
Comparison with other professions, and with other states . In
California, most health care professionals, including registered
nurses and licensed vocational nurses, are licensed by various
boards under the Department of Consumer Affairs. The ability to
deny or revoke a license based on the conviction of a crime is
discretionary, boards have the ability, but not a requirement,
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to deny or revoke a license if the applicant has been convicted
of a crime that is substantially related to the qualifications,
functions, or duties of the profession. Additionally, licensing
boards are prohibited from denying a license solely on the basis
of a conviction if the applicant has obtained a certificate of
rehabilitation, as specified, or has met all applicable
requirements of the rehabilitation criteria developed by the
licensing board. Licensing boards are required to develop
criteria to evaluate the rehabilitation of a person when
considering the denial or revocation of a license, and to take
into account all competent evidence of rehabilitation furnished
by the applicant or licensee.
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 seven percent 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.
In a related article, CIR detailed an incident involving a CNA
at an assisted living facility licensed by the Department of
Social Services (Elderly Woman's Suspicious Death Largely
Ignored by State Regulators, CIR, September 2013). In 2006, a
95-year-old resident at Claremont Place Assisted Living was
rushed to the hospital after she was found with a broken arm,
black eyes and her upper lip cut open. The resident died three
weeks later. According to CIR's report, a CNA who was working
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at the assisted living facility was in the room with the
resident at the time, and reported to other staff that the
resident hurt herself when she fell down in her room. According
to the CIR report, other staff members at Claremont Place
believed the CNA had physically abused the resident, and the
facility director notified the family of the resident that abuse
may have been involved. The attending physician at the hospital
where the resident was treated alerted DPH and local police to
the possibility of abuse, based in part to concerns relayed to
him by Claremont Place staff. According to CIR, in 2007, a
notation in DPH's log showed the case was assigned to an
investigator. DPH finally closed the case in February of 2013,
seven years after the resident died, calling the allegation of
abuse unsubstantiated.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Potential one-time costs up to $150,000 to revise existing
regulations (Licensing and Certification Program Fund).
Unknown increase in staff costs to review applications for
a certificate (Licensing and Certification Program Fund).
While the bill would eliminate the mandatory denial of a
certificate for specified offenses, DPH still has the
ability to use discretion to deny an application for
conviction of a crime related to the duties of a CNA.
Workload for DPH to review such cases is expected to
increase because additional scrutiny will be needed by DPH
to determine whether the circumstances of a conviction are
sufficient to rebut the presumption of rehabilitation
included in the bill. In addition, the current automatic
denial of an application based on specified convictions most
likely discourages potential applicants with criminal
convictions. Therefore, removal of the requirement for
automatic denial will very likely increase the number of
applicants with criminal convictions.
SUPPORT : (Verified 8/20/14)
Equal Rights Advocates (source)
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A New Way of Life Reentry Project
American Civil Liberties Union of California
Arriba Juntos
California Attorneys for Criminal Justice
East Bay Community Law Center
Friends Committee on Legislation of California
Greenlining Institute
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Services for Prisoners with Children
National Center for Lesbian Rights
National Employment Law Project
PICO CA
Policy Link
Root and Rebound
Rubicon Programs
San Francisco Human Rights Commission
San Francisco Public Defender's Office
SEIU - United Long Term Care Workers
Women's Foundation
Youth ALIVE!
ARGUMENTS IN SUPPORT : This bill is sponsored by Equal Rights
Advocates (ERA), which states that this bill will expand
opportunities for qualified, rehabilitated individuals to access
living-wage jobs in the growing health care industry by
providing all CNA applicants with discretionary review of their
criminal record and by recognizing that certain conditions
constitutes actual evidence of rehabilitation. ERA states that
to categorically ban individuals from entering this career
solely on the basis of a past conviction denies many families a
real chance to climb out of poverty. ERA states that
California's commitment to reducing recidivism, which remains
high at 63.5%, must include measures that increase access to
living wage jobs for those with criminal records.
Numerous other organizations support this bill. The National
Employment Law Project states in support that mandatory
rejection of prospective CNAs, even for decades-old convictions
and low-level offenses like petty theft, disregards studies
showing that the passage of time reduces the likelihood of
recidivism. A New Way of Life Reentry Project states that it
sees firsthand the importance of being able to access better
paying employment to help clients and their families find
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economic stability, and that mandatory bars to licensure such as
those in place for CNAs erect unreasonable barriers to such
employment, often with no true benefit to public safety. The
American Civil Liberties Union states in support that studies
show that stable employment decreases the likelihood of
recidivism by as much as 62%, yet California continues to impose
stringent barriers on the hundreds of licensed occupations that
would provide stability and increased mobility for persons who
most need it.
ASSEMBLY FLOOR : 48-26, 08/20/14
AYES: Alejo, Ammiano, Bloom, Bocanegra, Bonilla, Bonta,
Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau,
Chesbro, Cooley, Dababneh, Daly, Dickinson, Eggman, Fong,
Frazier, Garcia, Gatto, Gonzalez, Gordon, Gray, Hall, Roger
Hern�ndez, Holden, Jones-Sawyer, Levine, Lowenthal, Medina,
Mullin, Perea, John A. P�rez, V. Manuel P�rez, Quirk,
Quirk-Silva, Rendon, Ridley-Thomas, Skinner, Stone, Ting,
Weber, Wieckowski, Williams, Yamada, Atkins
NOES: Achadjian, Allen, Bigelow, Ch�vez, Conway, Dahle,
Donnelly, Fox, Beth Gaines, Gorell, Hagman, Harkey, Jones,
Linder, Logue, Maienschein, Mansoor, Melendez, Muratsuchi,
Nestande, Olsen, Patterson, Salas, Wagner, Waldron, Wilk
NO VOTE RECORDED: Gomez, Grove, Nazarian, Pan, Rodriguez,
Vacancy
JL:nl 8/20/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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