Report Number : 2016-126

California Department of Social Services
Its Caregiver Background Check Bureau Lacks Criminal History Information It Needs to Protect Vulnerable Populations in Licensed Care Facilities

Introduction

Background

Social Services, through its Community Care Licensing Division (Licensing Division), is responsible for regulating the care facilities it licenses and protecting the health and safety of children, adults, and seniors in those facilities. The Licensing Division licenses and oversees more than 70,000 community care facilities—including child care facilities, foster family homes, and care facilities for the elderly—throughout California. To protect these vulnerable populations, state law requires all applicants, licensees, adult residents, volunteers under certain conditions, and employees of licensed facilities who have contact with clients to obtain a background check.¹ Social Services uses these background checks to determine whether individuals should be allowed to be present in a licensed facility. The CBCB conducts these background checks on behalf of the Licensing Division.

To determine whether an individual should be permitted to be present in a licensed facility, the CBCB reviews the individual’s criminal history. At a minimum, the criminal history check includes a review of the individual’s record of arrests and prosecutions (RAP sheet). Figure 1 presents the main sources of the information the CBCB receives. In fiscal year 2015–16, Justice sent the CBCB more than 366,000 background check responses to its criminal history inquiries. More than 23,000 of these inquiries—approximately 6 percent—resulted in criminal histories that the CBCB needed to evaluate.

Exemption Process for New Applicants

For an individual to be present in a licensed facility, state law requires the individual to obtain a criminal record clearance or an exemption. The text box presents the difference between a clearance and an exemption from Social Services. To receive permission to be present in a licensed facility, an individual must first submit his or her fingerprints to Justice. Justice then processes the fingerprints and either notifies Social Services that the individual has no history of arrests and convictions or sends the CBCB the individual’s criminal history, known as a RAP sheet. State law prescribes the type of criminal history information that Justice is allowed to share with the CBCB. If an individual’s RAP sheet contains information Justice is not explicitly allowed by state law to share, such as sentencing information, Justice removes this information from the RAP sheet before sending it to the CBCB.

Figure 1
Sources of Criminal History Information Received by the Caregiver Background Check Bureau

Sources: California State Auditor’s analysis of the Penal Code sections 11105 and 11105.2, Health and Safety Code section 1522.08, interagency agreements between Social Services and various departments, Justice’s website, interviews with Justice’s staff, examples of information forwarded by Justice to Social Services, and Social Services’ and Justice’s policies.

The CBCB reviews the RAP sheet to determine whether state law prohibits the individual from having contact with licensed facility clients. To safeguard clients’ health and safety, state law prohibits anyone with a criminal conviction for any crime—other than a minor traffic violation—from caring for or living with clients in a licensed facility. (We discuss the process for individuals who have RAP sheets that identify that they have been arrested but do not have an associated conviction, referred to as arrest‑only cases, in a later section.) However, state law gives Social Services the authority to grant an individual an exemption to this prohibition if it determines that the individual is of good character and therefore not a health and safety risk to vulnerable populations. Social Services cannot exempt individuals who have been convicted of certain crimes, such as kidnapping or murder. Figure 2 shows the CBCB’s exemption process for individuals who have RAP sheets with convictions.² If an individual’s RAP sheet includes a conviction for which Social Services can grant an exemption, the CBCB notifies the individual, as well as the facility that the individual is attempting to be present in, that an exemption is needed. The individual is prohibited from being present in a licensed facility until the CBCB grants him or her an exemption. To obtain an exemption, either the facility or the individual must submit an exemption request to the CBCB.

The CBCB uses the documents it asks the facility or individual to submit with the exemption request to assess whether the individual poses a risk to clients. The text box lists the required documents and some of the elements the CBCB directs its exemption analysts to consider as part of the exemption review. When reviewing an exemption request, the CBCB considers information such as the nature and number of convictions the individual has, the length of time between the end of an individual’s incarceration or probation and the exemption request, and signs of rehabilitation and remorse. The CBCB’s procedures state that an exemption may be granted if the individual has presented substantial and convincing evidence that he or she is of good character and is not a threat to the well being of clients. However, if the CBCB determines that the individual has not presented sufficient evidence that demonstrates he or she poses no threat to clients’ safety, the CBCB can deny an exemption or impose conditions on that individual’s presence or role at the licensed facility.

Figure 2
Overview of the Exemption Decision Process for Individuals Who Have RAP Sheets With Convictions

Sources: Social Services’ policies, process documents, and interviews with Social Services’ staff..

 

Exemption Process for Subsequent Convictions

An individual who has been granted a clearance or an exemption is permitted to be present in a licensed facility as long as he or she continues to pose no risk to clients. State law specifies that when an individual has an arrest or conviction that occurs after he or she is associated with a licensed facility, Justice may provide a subsequent criminal history (subsequent RAP sheet) to Social Services. Justice is allowed by state law to forward subsequent criminal history information until Social Services notifies Justice that it is no longer interested in receiving criminal history information for this individual. Social Services generally notifies Justice that it is no longer interested in receiving criminal history information for an individual that has not associated with a licensed facility for three years.

When the CBCB receives a subsequent RAP sheet or information about an administrative action from another state entity, its exemption analysts make a new determination about whether the individual poses a risk to the licensed facility’s clients. An administrative action is a formal action against an individual, such as a suspension or revocation of a license. Social Services can, after reviewing the other entity’s administrative action case files, determine that the individual poses a risk to a licensed facility’s clients and remove the individual from its licensed facilities. As previously shown in Figure 2, Social Services requires an individual to be removed from a facility until it makes a new exemption determination. In addition, the red boxes in Figure 2 identify the points in the process where the CBCB can rescind an individual’s exemption or clearance and require the individual to be removed from the facility, based on a subsequent RAP sheet. If a subsequent RAP sheet contains a conviction the CBCB cannot exempt, the CBCB notifies the licensed facility that the individual may no longer work or reside in the facility.

Clearance Process for Arrest‑Only Cases

If an individual’s RAP sheet identifies an arrest‑only, without a conviction, Social Services can grant the individual a clearance to work in a facility. Assembly Bill 2632 (AB 2632), which became Chapter 824, Statutes of 2014, changed the law effective January 2015 to require Social Services to investigate arrests for specific crimes (referable arrests) before deciding whether to grant or deny a clearance. Before January 2015, state law required Social Services to investigate arrest‑only cases only if it was denying a clearance or revoking a license for an individual already granted access to a licensed facility. As a result, the CBCB was allowed to issue clearances to initial applicants whose criminal histories contained only arrests without Social Services having completed an investigation into the nature of the arrests. In addition, since AB 2632 amended state law, the CBCB has implemented a practice of not investigating arrests, and thus not issuing clearances, for initial applicants who are still awaiting trial. The CBCB closes such cases because there may be an active criminal case and an investigation by Social Services could negatively affect the criminal case. If the CBCB receives a subsequent RAP sheet with a referable arrest for an individual who is present in a licensed facility, after an evaluation of the readily available evidence Social Services can decide to issue a clearance to the individual, refer the case for additional investigation, or deny the individual the ability to be present in a licensed facility. If Social Services decides to deny the individual the ability to be present in a facility, it can choose to issue either a nonimmediate exclusion or, if it determines that the individual poses a threat to clients in a facility, an immediate exclusion.

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Footnotes

¹ State law requires that any individual who seeks to be present in a licensed facility, other than a client of a facility, shall receive a criminal record clearance or exemption.  Therefore, for the purposes of this audit report, the discussion of the background check process allowing individuals to be present in licensed facilities does not apply to clients. Go back to text

² In our report, we use the term exemption to refer to Social Services’ standard exemptions. Social Services also processes simplified exemptions, for which it does not request additional documents; we discuss these briefly in our report, but they were not the main focus of our review. Go back to text

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