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AB-89 IHSS: Medi-Cal: criminal record checks.(2001-2002)

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AB89:v98#DOCUMENT

Amended  IN  Assembly  April 16, 2001

CALIFORNIA LEGISLATURE— 2001–2002 REGULAR SESSION

Assembly Bill
No. 89

Introduced  by  Assembly Member Bates, Ashburn, Bill Campbell, Cogdill, Cox, Leach, Robert Pacheco
 (Coauthor(s): Senator Johannessen, Margett)

January 09, 2001

An act to amend Section 15660 of, and to add Section 15661 to, the Welfare and Institutions Code, relating to human services.


LEGISLATIVE COUNSEL'S DIGEST


AB 89, as amended, Bates. IHSS: Medi-Cal: criminal record checks.
Existing law provides for the In-Home Supportive Services (IHSS) program, under which, either through employment by the recipient, or by or through contract by the county, qualified aged, blind, and disabled persons receive services enabling them to remain in their own homes. Counties are responsible for the administration of the IHSS program.
Existing law provides for the Medi-Cal program, administered by the State Department of Health Services, under which qualified low-income persons are provided with health care services. Services known as personal care option services, and that are similar to those provided under the IHSS program, are provided to certain Medi-Cal recipients. Various IHSS program requirements, including those relating to the manner in which each county may provide in-home supportive services, are applicable to the provision of personal care option services.
Existing law requires the Department of Justice to secure any criminal record of a person to determine whether the person has been convicted within the last 10 years of any felony or of specified offenses if an employer of the person requests the determination and submits fingerprints of the person to the Department of Justice.
Existing law includes within the definition of “employer” recipients of in-home supportive services and recipients of personal care services under the Medi-Cal program, among others. Existing law permits any local law enforcement agency or officer to take fingerprints for that purpose.
This bill would, on or after July 1, 2002 2003, prohibit persons convicted of specified crimes from being employed as providers of services for IHSS recipients or for any recipient of personal care services under the Medi-Cal program. This bill would require local law enforcement agencies to take the fingerprints secure certain information through certain procedures of any provider of services. This bill would prescribe a procedure for searching the criminal records of the Department of Justice and the Federal Bureau of Investigation and would provide for a clearance if the search reveals that the provider of services has not been convicted of any of the specified crimes. The bill would also authorize the department to exempt persons convicted of certain crimes from the prohibition if the person is of good character. This bill would also require that any service provider update his or her background check, and present it to his or her employer, every 5 years. This bill would also make related changes.
This bill would impose a state-mandated local program by requiring local law enforcement agencies to take the fingerprints of service providers. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

Section 15660 of the Welfare and Institutions

SECTION 1.

 The Legislature finds and declares there is a need to generate timely and accurate positive fingerprint identification of applicants for employment as a condition of employment under the In-Home Supportive Services Program.

SEC. 2.

 It is the intent of the Legislature, in enacting this act, to require the use of either fingerprint livescan technology, the Department of Justice Bureau of Criminal Identification and Information criminal background check procedure, as defined in Section 11105.3 of the Penal Code, or any other statewide criminal background check procedure provided through the Attorney General, the Department of Justice, or the Federal Bureau of Investigation.
Section 15660 of the Welfare and Institutions Code is amended to read:

15660.
 (a) The Department of Justice shall secure any criminal record of a person to determine whether the person has been convicted or incarcerated within the last 10 years as the result of committing a sex offense against a minor, a violation of Section 243.4, 273a, 273d, or subdivision (a) or (b) of Section 368, of the Penal Code, theft, robbery, burglary, or any felony, if both of the following conditions are met:
(1) An employer of the person requests the determination and submits fingerprints of the person to the Department of Justice. For purposes of this paragraph, “employer” includes, but is not limited to, does not include an in-home supportive services recipient, as defined by Section 12302.2 and any recipient of personal care services under the Medi-Cal program pursuant to Section 14132.95.
(2) The person is unlicensed and provides nonmedical domestic or personal care to an aged or disabled adult in the adult’s own home.
(b) (1) If it is found that the person has been convicted or incarcerated within the last 10 years as the result of committing a sex offense against a minor, a violation of Section 243.4, 273a, 273d, or subdivision (a) or (b) of Section 368, of the Penal Code, theft, robbery, burglary, or any felony, the Department of Justice shall notify the employer of that fact. If no criminal record information has been recorded, the Department of Justice shall provide the employer with a statement of that fact.
(2) Any employer may deny employment to any person who is the subject of a report under paragraph (1) when the report indicates that the person has committed any of the crimes identified in paragraph (1).
(3) Nothing in this section shall be construed to require any employer to hire any person who is the subject of a report under paragraph (1) when the report indicates that the person has not committed any of the crimes indicated in paragraph (1).
(c) (1) Fingerprints shall be on a card provided by the Department of Justice for the purpose of obtaining a set of fingerprints. The employer shall submit the fingerprints to the Department of Justice. Within 30 calendar days of the receipt of the fingerprints, the Department of Justice shall notify the employer of the criminal record information, as provided in this subdivision. If no criminal record information has been recorded, the Department of Justice shall provide the employer with a statement of that fact as soon as possible, but not later than 30 calender days of receipt of the fingerprints. If new fingerprints are required for processing, the Department of Justice shall, as soon as possible, but not later than 30 calendar days from the date of receipt of the fingerprints, notify the employer that the fingerprints were illegible.
(2) Fingerprints may be taken by any local law enforcement officer or agency for purposes of paragraph (1).

(3)Counties shall notify any recipient of, or applicant for, in-home supportive services or personal care services under the Medi-Cal program, upon his or her application for in-home supportive services or personal care services or during his or her annual redetermination, or upon the recipient’s changing providers, that a criminal record check is available, and that the check can be performed by the Department of Justice.

(d) The Department of Justice shall charge a fee to the employer to cover the costs of administering this section.
(e) It is the intent of the Legislature that the Department of Justice charge a fee to cover its cost in providing services in accordance with this section to comply with the 30-calendar day requirement for provision to the department of the criminal record information, as contained in subdivision (c).

Code is amended to read:

15660.

(a)The Department of Justice shall secure any criminal record of a person to determine whether the person has been convicted within the last 10 years of a sex offense against a minor, a violation of Section 243.4, 273a, 273d, or subdivision (a) or (b) of Section 368, of the Penal Code, theft, robbery, burglary, or any felony, if both of the following conditions are met:

(1)An employer of the person requests the determination and submits fingerprints of the person to the Department of Justice. For purposes of this section, “employer” does not include an in-home supportive services recipient, as defined by Section 12302.2 and any recipient of personal care services under the Medi-Cal program pursuant to Section 14132.95.

(2)The person is unlicensed and provides nonmedical domestic or personal care to an aged or disabled adult in the adult’s own home.

(b)(1)If it is found that the person has been convicted within the last 10 years of a sex offense against a minor, a violation of Section 243.4, 273a, 273d, or subdivision (a) or (b) of Section 368, of the Penal Code, theft, robbery, burglary, or any felony, the Department of Justice shall notify the employer of that fact. If no criminal record information has been recorded, the Department of Justice shall provide the employer with a statement of that fact.

(2)Any employer may deny employment to any person who is the subject of a report under paragraph (1) when the report indicates that the person has committed any of the crimes identified in paragraph (1).

(3)Nothing in this section shall be construed to require any employer to hire any person who is the subject of a report under paragraph (1) when the report indicates that the person has not committed any of the crimes indicated in paragraph (1).

(c)(1)Fingerprints shall be on a card provided by the Department of Justice for the purpose of obtaining a set of fingerprints. The employer shall submit the fingerprints to the Department of Justice. Within 30 calendar days of the receipt of the fingerprints, the Department of Justice shall notify the employer of the criminal record information, as provided in this subdivision. If no criminal record information has been recorded, the Department of Justice shall provide the employer with a statement of that fact as soon as possible, but not later than 30 calendar days of receipt of the fingerprints. If new fingerprints are required for processing, the Department of Justice shall, as soon as possible, but not later than 30 calendar days from the date of receipt of the fingerprints, notify the employer that the fingerprints were illegible.

(2)Fingerprints may be taken by any local law enforcement officer or agency for purposes of paragraph (1).

(d)The Department of Justice shall charge a fee to the employer to cover the costs of administering this section.

(e)It is the intent of the Legislature that the Department of Justice charge a fee to cover its cost in providing services in accordance with this section to comply with the 30-calendar day requirement for provision to the department of the criminal record information, as contained in subdivision (c).

SEC. 2.

Section 15661 is added to the Welfare and Institutions Code, to read:

15661.
 (a) On or after July 1, 2002 2003, no person who has been convicted of a sex offense against a minor, a violation of Section 243.4, 273a, 273d, or subdivision (a) or (b) of Section 368, of the Penal Code, theft, robbery, burglary, or any felony, shall provide convicted of any crime specified in any of the following paragraphs unless rehabilitation is authorized by law, or for any crime, other than crimes listed in this subdivision, identified as a serious and referable crime by the Community Care Licensing Division of the State Department of Social Services for which no exemption has been given under this section, or who is required to register with law enforcement agencies pursuant to subdivision (a) of Section 290 of the Penal Code shall provide: services for an in-home supportive services recipient as defined by Section 12302.2 or for any recipient of personal care services under the Medi-Cal program pursuant to Section 14132.95.
(1) Any felony conviction under Section 729 of the Business and Professions Code.
(2) Sections 136.1, 186.22 (when a felony for gang related conduct), 187, 190, 190.03, 190.05, 190.1, 190.2, 190.25, 190.3, 190.4, 203, 206, 207, 208, 209, 209.5, 210, 211, 212, 212.5, 213, 214, 215, 220, 243.4, 264.1, 266, 266c, 266j, 267, 269, 272, 273d (if convicted prior to January 1, 1978, for child abuse), 285, 286, 288, 288a, 288.2, 288.5, 289, 311.3, 311.4, 311.10, 311.11, 368, 518 (when a felony for gang related conduct), 647.6, or 664 (if an attempt to commit any crime specified in that section) of the Penal Code.
(3) Subdivision (a) of Section 192 of the Penal Code.
(4) Paragraph (1),(2),(3),(4), or (6) of subdivision (a) of Section 261 of the Penal Code.
(5) Paragraph (1) or (4) of subdivision (a) of Section 262 of the Penal Code.
(6) Subdivision (b) of Section 266h of the Penal Code.
(7) Subdivision (b) of Section 266i of the Penal Code.
(8) Subdivision (a) of Section 273 of the Penal Code, if convicted prior to January 1, 1994.
(9) Subdivision (a) of Section 290 of the Penal Code.
(10) Subdivision (b), (c), or (d) of Section 311.2 of the Penal Code.
(11) Paragraph (1) or (2) of Section 314 of the Penal Code.
(12) Subdivision (a) of Section 347 of the Penal Code.
(M) Subdivision (b) of Section 417 of the Penal Code.
(13) Subdivision (a) or (b) of Section 417 of the Penal Code.
(14) Subdivision (b) of Section 460 of the Penal Code.
(15) Section 647a of the Penal Code, if convicted prior to January 1, 1987.
(16) Subdivision (c) of Section 653f of the Penal Code.
(17) Paragraph (7) of subdivision (c) of Section 667.5 of the Penal Code, unless the underlying felony is exempted, in which case an exemption may be granted for employment under this section if the individual is rehabilitated under paragraph (1) of subdivision (g) of Section 1522 of the Health and Safety Code. On or after July 1, 1977, only if a felony is charged and Sections 12022.7 or 12022.9 of the Penal Code. Prior to July 1, 1977, only if a felony is charged and a conviction results pursuant to Sections 213, 264, and 461 or any felony in which the defendant used a firearm which use was charged and proved under Section 12022.5 or 12022.55 of the Penal Code.
(18) Paragraph (13) of subdivision (c) of Section 667.5 of the Penal Code, as an enhancement of Section 12308, 12309, or 12310 of the Penal Code.
(19) Paragraph (14) of subdivision (c) of Section 667.5 of the Penal Code.
(20) Paragraph (22) of subdivision (c) of Section 667.5 of the Penal Code, as an enhancement of a violation of Section 12022.53 of the Penal Code, for a felony where there is use of a firearm.
(b) (1) No person shall provide the services described in subdivision (a) without first obtaining from the Department of Justice a clearance, as described in subdivision (c), stating that the person has not been convicted of any crime listed in subdivision (a).

(c)Any local law enforcement officer or agency shall take the fingerprints to be submitted to the Department of Justice. The local law enforcement agency taking the fingerprints shall submit to the Department of Justice, on a card provided by the Department of Justice for the purpose of obtaining fingerprints, two sets of fingerprints, one of which shall be used by the department to search the criminal records under its control and one of which the department shall submit to the Federal Bureau of Investigation for

(2) Any person who has been convicted of a crime that is not listed in subdivision (a) may seek an exemption from the prohibitions of this section pursuant to rules and regulations adopted by the State Department of Social Services. The State Department of Social Services may exempt any person eligible to seek an exemption under this subdivision if the department determines that the person is of good character according to criteria established by the State Department of Social Services.
(3) Any recipient of in-home supportive services as defined in Section 12302.2 or Section 14132.95 shall be informed of the existence of a criminal record of any potential provider, except minor traffic violations.
(c) Local law enforcement agencies shall secure information, through the use of either fingerprint technology, the Department of Justice Bureau of Criminal Identification and Information criminal background check procedure specified in Section 11105.3 of the Penal Code, or any other statewide criminal background check procedure provided through the Attorney General, the Department of Justice, or the Federal Bureau of Investigation, and submit the information to the State Department of Social Services. The State Department of Social Services shall submit a copy of that information to the Federal Bureau of Investigation for the purpose of searching the criminal records of the Federal Bureau of Investigation. After the Department of Justice has completed its search and has received search results from the Federal Bureau of Investigation, the Department of Justice shall provide to the service provider the criminal record, if any, of that person. If no criminal record information has been recorded, or if the record contains only crimes not listed in subdivision (a), the Department of Justice shall provide the service provider or prospective service provider with a clearance stating that fact.

(d)Every service provider shall obtain a criminal history or clearance, in accordance with the procedures prescribed by this section, at least every five years, and present the clearance to his or her employer.

(d) This section shall not apply to an individual providing services under this article for his or her spouse, sister-in-law, brother-in-law, minor or adult child or stepchild, grandchild or stepgrandchild, parent or stepparent, grandparent or stepgrandparent, sibling or stepsibling, niece, nephew, aunt, uncle, conservator, or legal guardian.
(e) This section shall not apply to anyone providing services under this article on January 1, 2003, with no lapse in the provision of care.
(f) If a person has submitted to the criminal background check process for the purposes of IHSS employment, the individual may, upon showing proof of the submission to the process, provide services under this article and receive compensation for those services during the period from the date he or she has submitted fingerprints until he or she is notified of the results of the criminal background check.
(g) Nothing in this section is to be construed to establish or imply an employer-employee relationship between the state or a county and in-home support services providers. Notwithstanding any other provision of law, the department and the county in which a recipient under this article resides shall not be liable to the recipient for any act or omission relating to the implementation of this section.
(h) No fees shall be charged for criminal background checks under this section, except that an in-home supportive services provider or prospective provider shall be assessed a fee for the cost of the rolling of the fingerprints or local scan. There shall be no fee charged to the provider, recipient, or any local agency to cover the cost related to administering the requirements under this section or the cost to the Department of Justice, or any law enforcement agency, for processing the criminal background check.
(i) All background checks administered under this section shall be subject to subsequent arrest notification from the Department of Justice.

SEC. 5.

 Sections 3 and 4 of this act shall become operative July 1, 2003.

SEC. 6.

 Notwithstanding Section 17610 of the Government Code, if the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. If the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund.