Existing law provides for the licensing and regulation of alcoholism or drug abuse recovery or treatment facilities, as defined, by the State Department of Health Care Services. Existing law requires the Department of Justice to furnish state or federal summary criminal history information to authorized agencies and organizations for employment, licensing, or certification purposes.

This bill would require the department to conduct a secure state and federal level criminal history background check information for the applicant before issuing a license for an alcoholism or drug abuse recovery or treatment facility. The bill would provide that a past criminal conviction or pending criminal charge does not serve as an automatic exclusion for licensure and would require the department to evaluate the circumstances of the conviction or pending charge and determine if the applicant meets all other requirements for licensure. The bill would authorize the department, after conducting this review, to grant a license if the department determines that the applicant is capable of complying with all statutes and regulations regarding licensure and that granting the license will not endanger the public health, safety, or welfare. The bill would generally prohibit the department from issuing a license to an applicant who has been convicted of specified offenses or who has voluntarily surrendered his or her medical license, or had his or her medical license revoked, but would authorize the department to grant a waiver for an applicant after evaluating the circumstances leading to his or her conviction or loss of a medical license and evaluating the applicants behavior and circumstances after the conviction or loss of a medical license, as specified. The bill would require the department to grant a waiver for an applicant if he or she participated in the Offender Mentor Certification Program offered by the Department of Corrections and Rehabilitation and has received a counseling certificate.

Existing law provides for the licensing and regulation of alcoholism or drug abuse recovery or treatment facilities, as defined, by the State Department of Health Care Services.

This bill would require the department to conduct a state and federal level criminal history background check for the applicant before issuing a license and, subsequent to initial licensure, for any manager, consultant, or employee of a facility before his or her employment, residence, or initial presence in the facility. for an alcoholism or drug abuse recovery or treatment facility. The bill would require the department to deny an application for licensure, or suspend or revoke a license, of an applicant, and would require the facility to refuse or terminate the employment, residence, or presence of a manager, consultant, or employee of the facility, if the department determines that the applicant, manager, consultant, or employee has a criminal conviction or criminal charge pending for an alcohol- or drug-related offense and does not grant a waiver, as specified. The bill would require an applicant, manager, consultant, or employee to notify the department of any subsequent arrests or convictions after obtaining a criminal history background check clearance or a waiver thereof. provide that a past criminal conviction or pending criminal charge does not serve as an automatic exclusion for licensure and would require the department to evaluate the circumstances of the conviction or pending charge and determine if the applicant meets all other requirements for licensure. The bill would authorize the department, after conducting this review, to grant a license if the department determines that the applicant is capable of complying with all statutes and regulations regarding licensure and that granting the license will not endanger the public health, safety, or welfare. The bill would generally prohibit the department from issuing a license to a person an applicant who has been convicted of specified offenses or who has voluntarily surrendered his or her medical license, or had his or her medical license revoked, as specified. but would authorize the department to grant a waiver for an applicant after evaluating the circumstances leading to his or her conviction or loss of a medical license and evaluating the applicants behavior and circumstances after the conviction or loss of a medical license, as specified.

Existing law provides for the licensing and regulation of alcoholism or drug abuse recovery or treatment facilities, as defined, by the State Department of Health Care Services.

This bill would require the department to conduct a state and federal level criminal history background check for the applicant before issuing a license and, subsequent to initial licensure, for any manager, consultant, or employee of a facility before his or her employment, residence, or initial presence in the facility. The bill would require the department to deny an application for licensure, or suspend or revoke a license, of an applicant, and would require the facility to refuse or terminate the employment, residence, or presence of a manager, consultant, or employee of the facility, if the department determines that the applicant, manager, consultant, or employee has a criminal conviction or criminal charge pending for an alcohol- or drug-related offense and does not grant a waiver, as specified. The bill would require an applicant, manager, consultant, or employee to notify the department of any subsequent arrests or convictions after obtaining a criminal history background check clearance or a waiver thereof. The bill would prohibit the department from issuing a license to a person who has been convicted of specified offenses or who has voluntarily surrendered his or her medical license, or had his or her medical license revoked, as specified.

Existing law provides for the licensing and regulation of alcoholism or drug abuse recovery or treatment facilities, as defined, by the State Department of Health Care Services.

This bill would make technical, nonsubstantive changes to that provision. require the department to conduct a state and federal level criminal history background check for the applicant before issuing a license and, subsequent to initial licensure, for any manager, consultant, or employee of a facility before his or her employment, residence, or initial presence in the facility. The bill would require the department to deny an application for licensure, or suspend or revoke a license, of an applicant, and would require the facility to refuse or terminate the employment, residence, or presence of a manager, consultant, or employee of the facility, if the department determines that the applicant, manager, consultant, or employee has a criminal conviction or criminal charge pending for an alcohol- or drug-related offense and does not grant a waiver, as specified. The bill would require an applicant, manager, consultant, or employee to notify the department of any subsequent arrests or convictions after obtaining a criminal history background check clearance or a waiver thereof.

Existing law provides for the licensing and regulation of alcoholism or drug abuse recovery or treatment facilities, as defined, by the State Department of Health Care Services.

This bill would make technical, nonsubstantive changes to that provision.

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 902 (Bates) - Alcoholism or drug abuse recovery or treatment facilities

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

Senate Bill 902 requires the Department of Health Care Services (DHCS) to conduct a state and federal criminal history background check for specified individuals prior to issuing an initial license for an alcoholism or drug abuse recovery or treatment facility. The bill would also prohibit specified individuals from being issued a license at, or from working at, a recovery or treatment facility.

Fiscal Impact:

The DHCS anticipates total cost for resources required to comply with the requirements would be $3,269,000 for Fiscal Year (FY) 2019-20 and $3,062,000 for FY 2020-21 and ongoing. In addition, it would cost DHCS at minimum $1,000,000 to design, create, implement, operate, and maintain a secure integrated database system. DHCS also notes that the fees would likely need to be paid by the State General Fund. For more information about fund source and access issues, please see staff comments.

Background:

The DHCS licenses recovery or treatment facilities (RTF) that provide 24-hour residential non-medical services to adults who are recovering from problems related to alcohol, drug, or alcohol and drug misuse or abuse, and who need alcohol, drug, or alcohol and drug recovery, treatment, or detoxification services. DHCS must determine the qualifications, including the appropriate skills, education, training, and experience of personnel working within licensed or certified alcoholism or drug abuse recovery and treatment programs.

RTFs licensed by DHCS, based on what is commonly referred to as the social model, provide recovery, treatment, or detoxification services. The services provided by these social model RTFs include group and individual counseling, educational sessions, and alcoholism or drug abuse recovery and treatment planning. Social model RTFs are allowed to provide clients first aid and emergency care, and since the passage of AB 848 (Stone, Chapter 744, Statutes of 2015), RTFs can apply to DHCS for an additional license to provide incidental medical services by a licensed physician and surgeon or other health care practitioner, as specified. DHCS currently licenses about 1,020 RTFs. As part of their licensing functions, DHCS conducts reviews of licensed RTFs at least once every two years, or as necessary; checks for compliance with statute and regulations to ensure the health and safety of clients; investigates all complaints; and has the authority to suspend or revoke an RTF’s license for a violation of statute or regulations.

In addition, current law permits DHCS to grant a waiver to a licensed RTF to serve adolescents 14 years of age and older, when the licensee documents in writing that a need for such services exists and adolescent-specific services are otherwise unavailable in the county. RTFs that apply for an adolescent waiver are required to include a plan for the adolescent’s continuing education and supervised study time; intake policies and procedures; a copy of the admission agreement used for adolescent residents; policies and procedures for removal and/or discharge of an adolescent from the RTF; policies and procedures for disciplining the adolescent resident; a need for the services in the county; and a CBC for all employees of the RTF who have supervisory responsibility for adolescent residents or frequent or routine contact with adolescent residents. DHCS is required to determine the suitability of individuals who have been convicted of previous crimes, ranging from previous convictions of any alcohol- or drug-related crimes to felony or misdemeanor crimes perpetrated against a child. Any person who has been convicted of a felony or misdemeanor perpetrated against a child is permanently prohibited from participating in an RTF that serves adolescents. DHCS is required to monitor all subsequent conviction data received from the California Department of Justice (DOJ) for individuals with an approved or conditional CBC.

According to the California Attorney General’s (AG) Web site, DOJ is mandated to maintain the statewide criminal record repository for the State of California. Local sheriff, police and probation departments, district attorney offices, and courts submit arrest and corresponding disposition information, and DOJ uses this information to compile records of arrest and prosecution, known as “RAP sheets,” for individuals and disseminates the information for law enforcement and regulatory purposes. The AG’s Web site states that today there are over 45,000 agencies authorized to perform CBCs. DOJ technicians process approximately two million state-level CBCs and 1.2 million federal-level CBCs annually. Securing a CBC prior to employment, licensure, or certification provides a hiring or licensing authority an important resource, which aids in the evaluation of the applicant. These applicants are often candidates for positions that place them in a position of trust for some of California’s most vulnerable citizenry, elderly, and dependent adults and children. If a Federal Bureau of Investigation (FBI) CBC is requested, the fingerprint images are forwarded to the FBI to perform a fingerprint-based search of records in the national criminal history database. If the applicant’s fingerprints match fingerprints in the national criminal history database, the FBI sends DOJ a cumulative RAP sheet that contains criminal history information from any states or federal agencies that have reported the information to the FBI. Agencies authorized to submit fingerprints and receive FBI identification records must provide written notification to the individuals fingerprinted that the fingerprints will be used to check the criminal history records of the FBI and are required to provide applicants the opportunity to complete, or challenge the accuracy of, the information contained in the FBI identification record.

Proposed Law:

The bill would require DHCS to conduct a state and federal criminal history background check for the applicant before issuing a license for an alcoholism or drug abuse recovery treatment facility.

This bill would individuals convicted of specified offenses from getting a license to run an alcoholism or drug abuse recovery treatment facility, unless a waiver is granted. The prohibited offenses are:

• A person who has voluntarily surrendered his or her medical license, or who has had his or her medical license revoked.
• A person who has been convicted of: Medi-Cal fraud; fraud for a health care benefit; making a fraudulent claim.
• A person who has been convicted of assault to commit rape; sexual battery; rape in concert; child abuse; felony child abuse on a child under the age of 8; corporal injury on a child; lewd act on a child; foreign object rape; any offense for which a person has to register as a sex offender; elder abuse; or a violent felony under 667.5.
• A person who has been convicted of sexual abuse by a doctor, psychotherapist or drug and alcohol abuse counselor; torture; carjacking; poisoning; brandishing a firearm; arson.

The bill requires DHCS to take certain factors into consideration as evidence of good character and rehabilitation.

The bill authorizes DHCS to grant a waiver for applicants after evaluating the circumstances after the conviction or loss of a medical license. In addition, the bill would require the department to grant a waiver for an applicant that participated in the Department of Corrections and Rehabilitation’s Offender Mentor Certification Program and received a certificate.

The bill also provides that if DHCS denies an application for licensure on the basis of a criminal history background check conducted pursuant to this section, the applicant may appeal the department’s decision.

Staff Comments:

Currently, DHCS licenses about 1,020 RTFs. As part of their licensing functions, DHCS conducts reviews of licensed RTFs at least once every two years, or as necessary; checks for compliance with statute and regulations to ensure the health and safety of clients; investigates all complaints; and has the authority to suspend or revoke an RTF’s license for a violation of statute or regulations.

According to the department, DHCS does not currently conduct broad-scale state and federal criminal background checks, although the department does license RTFs that serve adolescents 14 years of age and older, when the licensee documents in writing that a need for such services exists and adolescent-specific services are otherwise unavailable in the county. RTFs that apply for an adolescent waiver are required to include a plan for the adolescent’s continuing education and supervised study time; intake policies and procedures; a copy of the admission agreement used for adolescent residents; policies and procedures for removal and/or discharge of an adolescent from the RTF; policies and procedures for disciplining the adolescent resident; a need for the services in the county; and a CBC for all employees of the RTF who have supervisory responsibility for adolescent residents or frequent or routine contact with adolescent residents. DHCS is required to determine the suitability of individuals who have been convicted of previous crimes, ranging from previous convictions of any alcohol- or drug-related crimes to felony or misdemeanor crimes perpetrated against a child. Any person who has been convicted of a felony or misdemeanor perpetrated against a child is permanently prohibited from participating in an RTF that serves adolescents. DHCS is required to monitor all subsequent conviction data received from the California Department of Justice (DOJ) for individuals with an approved or conditional CBC.

DHCS notes significant resources would be needed to implement the bill’s provisions. In addition, the department provides that although facility licensing fees are meant to capture the cost of oversight, the significant costs to implement SB 902 could lead to access issues, as many facilities may not be able to afford the increase in fees.  DHCS feels that these costs would most likely need to be paid for from the State General Fund.  SB 902 could have an adverse impact, as it could be cost prohibitive for programs, which would negatively impact the need for more substance use disorder treatment options.

With respect to resources, the department notes no staffing, nor the expertise, to relate to conducting broad-scale state and federal criminal background checks. The ability to financially sponsor the requirements of this bill would be entirely contingent on the procurement of an appropriation from the State General Fund.

The following resources would be needed to implement the bill:

• One (1) Staff Services Manager III (SSM III):  This position would oversee the overall implementation of SB 902.  This position would be full time and permanent with a cost of $177,000 for FY 2019-20 and $168,000 for FY 2020-21 and ongoing.
• One (1) Staff Services Manager II (SSM II): This position would oversee the requirements of SB 902, provide guidance and expertise to the Staff Services Manager I (SSM I), assist Staff Counsel, represent DHCS in hearings as necessary, review staff work, and monitor the background check process.  This position would be full time and permanent with a cost of $158,000 for FY 2019-20 and $149,000 for FY 2020-21 and ongoing.
• Three (3) Staff Service Manager I (SSM I): These positions would be required to supervise the staff and oversee the overall DHCS/Substance Use Disorder Compliance Division’s compliance with the requirements of SB 902.  These positions would be full time and permanent with a cost of $452,000 for FY 2019-20 and $425,000 for FY 2020-21 and ongoing.
  
• Fifteen (15) Associate Governmental Program Analysts (AGPA): These positions would develop criteria to implement background checks.  The AGPAs would review and ensure compliance with the requirements of SB 902 by conducting periodic reviews, site visits, and auditing of referral documentation.  These positions would also be responsible for investigating complaints as required by SB 902.  These positions would be full time and permanent with a cost of $2,012,000 for FY 2019-20 and $1,877,000 for FY 2020-21 and ongoing.
• One (1) Office Technician (OT): This position would provide support and assistance to the unit for administrative needs related to the implementation of SB 902. This position would be full time and permanent with a cost of $91,000 for FY 2019-20 and $82,000 for FY 2020-21 and ongoing.
• One (1) Attorney I position in Mental Health and Substance Use Disorder Services (MHSUDS) – Office of Legal Services (OLS): This position would be required to review and provide legal support for complaints, and investigations of those complaints made directly to DHCS, provide legal support, and coordination with the Administrative Litigation team for administrative hearings based on revocations of certification and/or licenses of alcohol and drug treatment programs.  This position would be full time and permanent and have a cost of $165,000 for FY 2019-20 and $156,000 for FY 2020-21 and ongoing.
• One (1) Attorney III position in MHSUDS OLS: This position would be required to review and provide legal support for complaints, and investigations of those complaints made directly to DHCS, provide legal support, and coordination with the Administrative Litigation team for administrative hearings based on revocations of certification and/or licenses of alcohol and drug treatment programs.  This position would be full time and permanent and have a cost of $214,000 for FY 2019-20 and $205,000 for FY 2020-21 and ongoing.

Although facility licensing fees are meant to capture the cost of oversight, the department notes that costs associated to implement SB 902 could lead to access issues, as many facilities may not be able to afford the increase in fees, in which case, the costs would then need to be paid with State General Fund.

In addition, DHCS does not currently have the technology platform or infrastructure in place to support the background checks required by SB 902.  Significant resources are required to purchase, operate and maintain a secure integrated background check database system.  As verified through the Enterprise Architecture Office, Technology costs can include:

• Business analysis report development - resource capability/skills/knowledge analysis, training and organizational change management, enterprise architecture, secure data management, stakeholder identification, and governance principles. Estimated one-time cost: $500,000.
• Hardware/software purchases and upgrade costs. Estimated annual cost: $100,000.
• Infrastructure implementation - includes secure storage and back-up mechanisms. Estimated one-time cost: $500,000.
• Infrastructure maintenance and operations – DHCS’s Information Technology Services Division (ITSD) would govern maintenance and operations (Software Systems Specialist I and II). Estimated annual cost: $100,000.

It would cost DHCS at minimum $1,000,000 to design, create, implement, operate, and maintain a secure integrated database system.  

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 902 Hearing Date: April 24, 2018

Subject: Alcoholism or Drug Abuse Recovery or Treatment Facilities

HISTORY

Source: Author

Prior Legislation: None

Support: Advocates for Responsible Treatment

Opposition: American Civil Liberties Union; California Association of Alcohol and Drug Program Executives, INC.; California Consortium of Addiction Programs and Professionals; County Behavioral Health Directors Association

PURPOSE

The purpose of this bill is to require a background check before issuing a license for an alcohol or drug abuse recovery or treatment facility and prohibit people convicted of specified offenses from obtaining a license unless a waiver is granted.

Existing law requires the Department of Justice (DOJ) to maintain state summary criminal history information and requires the Attorney General to furnish state summary criminal history information to authorized entities or individuals for employment, licensing, volunteering etc. (Penal Code § 11105)

Existing law requires the Department of Health Care Services (DHCS) to license RTFs that provide 24-hour residential non-medical services to adults who are recovering from problems related to alcohol, drug, or alcohol and drug misuse or abuse, and who need alcohol, drug, or alcohol and drug recovery, treatment, or detoxification services. (HSC §11834.01 et seq.)

Existing law requires RTF licensees to provide at least one of the following nonmedical services: recovery, treatment, or detoxification services. Requires DHCS to adopt regulations requiring records and procedures appropriate for the type of service provided. Permits the records and procedures to include all of the following: admission criteria; intake process; assessments; recovery, treatment, or detoxification planning; referral; documentation of provision of recovery, treatment, or detoxification services; discharge and continuing care planning; or indicators of recovery, treatment, or detoxification outcomes. (HSC §11834.26)

Existing law grants DHCS sole authority in state government to determine the qualifications, including the appropriate skills, education, training, and experience of personnel working within licensed or certified alcoholism or drug abuse recovery and treatment programs. (HSC §11833)

Existing law requires, through regulations, all employees of an RTF with an adolescent waiver, who have supervisory responsibility for adolescent residents or frequent or routine contact with adolescent residents, to be subject to a CBC prior to their involvement in the provision of services to adolescents. Prohibits this requirement from applying to a resident of the RTF. (9 CCR §10624)

Existing law requires every person who possesses any controlled substance in Schedule I, II, or III, that includes opiates, opium derivatives, depressants, cocaine base, mescaline, peyote, tetrahydrocannabinol, hallucinogenic substances, or any controlled substance in Schedule III, IV, or V that is a narcotic drug, unless by a written prescription of a licensed physician, dentist, podiatrist, or veterinarian to be punished by imprisonment in a county jail for not more than one year, or punished by a term of imprisonment in a county jail or state prison for 16 months, or for two or three years for one or more prior convictions, as specified. (HSC §11350)

Existing law requires every person who possesses for sale or purchases for purpose of sale any controlled substance or narcotic drug specified in 5) above to be punished by imprisonment in county jail or state prison for two, three, or four years, as specified. (HSC §11351)

Existing law requires every person who transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance or narcotic drug specified in 5) above, unless prescribed by those licensed as specified in 5) above, to be punished by imprisonment in county jail or state prison for three, four, or five years, as specified. (HSC §11352)

Existing law requires every person who agrees, consents, or in any manner offers to unlawfully sell, furnish, transport, administer, or give any controlled substance or narcotic drug specified in 5) above, to any person, or who offers, arranges, or negotiates to have any such controlled substance unlawfully sold, delivered, transported, furnished, administered, or given to any person and who then sells, delivers, furnishes, transports, administers, or gives, or offers, arranges, or negotiates to have sold, delivered, transported, furnished, administered, or given to any person any other liquid, substance, or material in lieu of any such controlled substance to be punished by imprisonment in county jail for not more than one year, or to be punished by imprisonment in county jail or state prison for two, three, or four years, as specified. (HSC §11355)

Existing law requires any person receiving health care for which he or she was not eligible based on false declarations, or any person making false declarations as to eligibility, as specified, to be liable for repayment and to be guilty of a misdemeanor or felony, as specified. Requires any person who willfully and knowingly counsels or encourages any person to make false statements or otherwise causes false statements to be made on an application in order to receive health care services, as specified, to be liable for damages incurred, as specified. (WIC §14014)

Existing requires any person, as specified, who intends to defraud for payment, knowingly submits false information as specified, or knowingly and willfully executes or attempts to execute a scheme against the Medi-Cal program or any other state health care program, as specified, to be punishable by imprisonment in a county jail or state prison for two, three, or four years; a fine; or, both a fine and imprisonment. (WIC §14107)

Existing law requires any person who solicits or received any remuneration, as specified, in return for the referral or promised referral of any individual to a person for the furnishing or arranging for the furnishing of any service or merchandise, as specified; in return for the purchasing, leasing, ordering, or arranging for or recommending the purchasing, leasing, or ordering of any goods, facility, service, or merchandise, as specified, to be punished by imprisonment in county jail for not longer than a year, a fine, or both a fine and imprisonment. Requires a second or subsequent conviction to be punishable by imprisonment in county jail or state prison for two, three, or four years, as specified. (WIC §14107.2)

Existing law makes it a wobbler for every person who commits, or aids, abets, solicits, or conspires with any person to knowingly prepare, make, or subscribe in writing with the intent to present or use it in support of any false or fraudulent claim; to knowingly make or cause to be made any false or fraudulent claim for payment of a health care benefit; or knowingly submit a claim for a health care benefit that was not used by, or on behalf of, the claimant, and to be punished by imprisonment to county jail or state prison for two, three, or five years, and by a fine not to exceed $50,000, as specified. (Penal Code §550]

Existing law makes it a crime for any person to assault; touch an intimate part of; rape, abduct, or seduce; cause great bodily harm or death; inflict cruel or inhumane corporal punishment against; commit lewd or lascivious acts upon; commit sexual penetration upon; commit an act that requires registration as a sex offender upon; commit a crime upon elders, dependent adults, or persons with disabilities; commit a violent felony against; cause cruel or extreme pain and suffering upon; carjack; willfully poison or mingle a harmful substance in food, drink, or medicine; brandish a loaded firearm in a threatening manner against; or commit arson resulting in great bodily injury upon another person, as specified. (PC §206, 215, 220, 243.4, 264.1, 273a, 273ab, 273d, 288, 289, 290(c), 347(a), 368, 417(b), 451(a) and (b), and 667.5(c)]

Existing law makes it a crime for any physician and surgeon, psychotherapist, alcohol and drug abuse counselor, or any person holding himself or herself out as such to engage in a sexual act with a patient or client, or with a former patient or client, and requires imprisonment or a fine, or both imprisonment and fine, as specified. (BPC §729)

This bill provides that before issuing a license for an alcoholism or drug abuse recovery treatment facility, the DHCS shall conduct a state and federal criminal history background check for the applicant.

This bill provides that the applicant shall submit a set of fingerprints to the DHCS at a date determined by, and in a manner determined by, the department.

This bill provides that an applicant who has a criminal conviction or pending criminal charge shall request the appropriate entities to provide documentation regarding the conviction or charge directly to the DHCS with sufficient specificity to enable the department to make a determination as to whether they should grant a waiver. DHCS may grant a waiver if the department determines that the applicant is capable of complying with all statute and regulations regarding licensure for an alcoholism or drug recovery or treatment facility and granting the waiver will not endanger the public health, safety or welfare.

This bill provides that a past criminal conviction or pending criminal charge shall not serve as an automatic exclusion for licensure. The department shall evaluate the circumstances leading to a criminal conviction or pending criminal charge and determine if the applicant meets all other requirements in determining approval or denial of the application for licensure.

This bill provides that the following persons shall not be issued a license pursuant to this chapter:

• A person who has voluntarily surrendered his or her medical license, or who has had his or her medical license revoked.
• A person who has been convicted of: Medi-Cal fraud; fraud for a health care benefit; making a fraudulent claim.
• A person who has been convicted of assault to commit rape; sexual battery; rape in concert; child abuse; felony child abuse on a child under the age of 8; corporal injury on a child; lewd act on a child; foreign object rape; any offense for which a person has to register as a sex offender; elder abuse; or a violent felony under 667.5.
• A person who has been convicted of sexual abuse by a doctor, psychotherapist or drug and alcohol abuse counselor; torture; carjacking; poisoning; brandishing a firearm; arson.

This bill provides that DHCS may grant a waiver for applicants who have been convicted of a listed offense after evaluation of the circumstances leading to a conviction and behavior and circumstances post-conviction.

This bill provides that in determining whether or not to grant a waiver DHCS shall take into consideration the following factors as evidence of good character and rehabilitation:

• The nature and seriousness of the conduct or crime under consideration and its relationship to their licensure duties and responsibilities.
• Activities since conviction, including employment or participation in therapy or education, that would indicate changed behavior.
• The period of time that has elapsed since the commission of the conduct or offense and the number of offenses.
• The extent to which the person has complied with any terms of parole, probation, restitution, or any other sanction lawfully imposed against the person.
• Any rehabilitation evidence, including character references, submitted by the applicant.
• Circumstances surrounding the commission of the offense that would demonstrate the unlikelihood of repetition.
• An order from a superior court where the conviction has been dismissed or expunged.
• The granting by the Governor of a fully and unconditional pardon.
• A certificate of rehabilitation from a superior court.

This bill provides that if DHCS denies an application for licensure on the basis of a criminal history background check conducted pursuant to this section, the applicant may appeal the department’s decision.

COMMENTS

1. Need for This Bill

According to the author:

As the opioid crisis has expanded nationally, addiction has soared and unscrupulous rehab operators have rushed in to exploit mandatory mental health treatment coverage required by the Affordable Care Act.^[1] In a comprehensive investigation by the Southern California News Group (SCNG), it found that the state's difficulty in regulating the industry makes it too easy for almost anyone to open a treatment center and charge health insurers for hundreds of thousands of dollars per client, without any requirements to ensure qualified people are providing safe care and treatment.

According to the SCNG, the following are complaints and issues that they’ve specifically identified in this industry:

• “Drug counselors and others can run sober living homes and some types of treatment centers without passing any kind of criminal background check. Even people convicted of drug crimes are allowed, under current state law, to get a license to own and/or operate drug and alcohol rehab centers.
• Addicts and families considering rehab have no easy way to check the records of treatment centers, recovery homes or their owners or staff.
• The state lags behind others in adopting reforms to crack down on treatment center operators who exploit vulnerable addicts and focus more on profits than on effective care.”^[2]

Existing law provides for the licensure and regulation of alcoholism or drug abuse recovery or treatment facilities, as defined, by the State Department of Health Care Services (DHCS). DHCS has sole authority to license facilities providing 24-hour residential nonmedical services to eligible adults who are recovering from problems related to alcohol or other drug abuse.

Licensure is required when at least one of the following services is provided: detoxification, group sessions, individual sessions, educational sessions, or alcoholism or drug abuse recovery or treatment planning. Existing law does not require owners, operators, or employees of RTFs to receive a criminal record clearance.

Existing law mandates that before an individual can obtain a community care license, or provide services, work or resident in a community care facility, he/she must receive a criminal record clearance from the Caregiver Background Check Bureau. An individual convicted of a crime other than minor traffic violations is disqualified unless the California Department of Social Services grants an exemption form the clearance requirement. All convictions other than minor traffic violations require an exemption, and this includes misdemeanors, felonies and convictions that occurred a long time ago.

SB 902 requires that DHCS conduct background checks before an individual can be issued a license to own or operate an RTF, or before an employee can start work in one of these facilities.

It is imperative that the owners, operators, and employees who exercise control or management of individuals seeking care or treatment in these facilities be cleared through state and federal criminal databases. Background checks for counselors, employees and rehab operators are a vital step to ensuring safe care for individuals staying in RTFs.

The goal of SB 902 is to help stop the industry's bad actors, not those with established records of helping people suffering from addiction. SB 902 allows for flexibility for those who have been convicted of specific crimes, so that the proven value of peer counseling can be protected, but only if the violation occurred more than five years ago and the individual can prove that he/she is no longer a threat to public health, safety or welfare, among other requirements.

2. RFTS

According to the Senate Health Committee Analysis:

RTFs licensed by DHCS, based on what is commonly referred to as the social model, provide recovery, treatment, or detoxification services (the Department of Public Health licenses medical model RTFs known as chemical dependency recovery hospitals). The services provided by these social model RTFs include group and individual counseling, educational sessions, and alcoholism or drug abuse recovery and treatment planning. Social model RTFs are allowed to provide clients first aid and emergency care, and since the passage of AB 848 (Stone) Chapter 744, Statutes of 2015, RTFs can apply to DHCS for an additional license to provide incidental medical services by a licensed physician and surgeon or other health care practitioner, as specified. DHCS licenses about 1,020 RTFs. As part of their licensing functions, DHCS conducts reviews of licensed RTFs at least once every two years, or as necessary; checks for compliance with statute and regulations to ensure the health and safety of clients; investigates all complaints; and has the authority to suspend or revoke an RTF’s license for a violation of statute or regulations.

Current law permits DHCS to grant a waiver to a licensed RTF to serve adolescents 14 years of age and older, when the licensee documents in writing that a need for such services exists and adolescent-specific services are otherwise unavailable in the county. RTFs that apply for an adolescent waiver are required to include a plan for the adolescent’s continuing education and supervised study time; intake policies and procedures; a copy of the admission agreement used for adolescent residents; policies and procedures for removal and/or discharge of an adolescent from the RTF; policies and procedures for disciplining the adolescent resident; a need for the services in the county; and a CBC for all employees of the RTF who have supervisory responsibility for adolescent residents or frequent or routine contact with adolescent residents. DHCS is required to determine the suitability of individuals who have been convicted of previous crimes, ranging from previous convictions of any alcohol- or drug-related crimes to felony or misdemeanor crimes perpetrated against a child. Any person who has been convicted of a felony or misdemeanor perpetrated against a child is permanently prohibited from participating in an RTF that serves adolescents. DHCS is required to monitor all subsequent conviction data received from the California Department of Justice (DOJ) for individuals with an approved or conditional CBC.

3. Background Checks

This bill provides that DHCS shall require a criminal background check before issuing a license for an alcoholism or drug abuse recovery or treatment facility.

DOJ maintains the state summary criminal history information and furnishes state summary criminal history information to authorized entities or individuals for employment, licensing, volunteering etc. This bill does not contain language authorizing DOJ to release the information in the case of licensing an alcoholism and drug recovery treatment facility and they do not fall within an existing requirement. The language also does not comply with federal requirements to release criminal background checks.

Not all authorized agencies get all criminal offenses. Some agencies get every offense, such as those employing peace officers; others such as a human resources agency or a person employing an in-home service provider only get convictions that are less than 10 years old. The bill needs to be amended to make the proper authorization and it needs to be decided what category is appropriate for these providers.

4. Prohibitions for employment at an RFT

This bill prohibits individuals convicted of specified offenses from getting a license to run an alcoholism or drug abuse recovery treatment facility, unless a waiver is granted. The prohibited offenses are:

• A person who has voluntarily surrendered his or her medical license, or who has had his or her medical license revoked.
• A person who has been convicted of: Medi-Cal fraud; fraud for a health care benefit; making a fraudulent claim.
• A person who has been convicted of assault to commit rape; sexual battery; rape in concert; child abuse; felony child abuse on a child under the age of 8; corporal injury on a child; lewd act on a child; foreign object rape; any offense for which a person has to register as a sex offender; elder abuse; or a violent felony under 667.5.
• A person who has been convicted of sexual abuse by a doctor, psychotherapist or drug and alcohol abuse counselor; torture; carjacking; poisoning; brandishing a firearm; arson.

There is some overlap in the specifically listed offenses and those that are listed as violent felonies or require sex offender registration.

As noted by some of the opposition, many counselors who work with people trying to recover from drug of alcohol abuse have their own history with abuse and criminal convictions. In addition the Department of Corrections has programs where people become peer counselors with the intent of being counselors when they leave prison. Some of these people may be incarcerated for drug offenses but often substance abuse problems can be the reason for other offenses such as burglary or robbery, a conviction of which would prohibit a person from getting a license under this bill, unless they received a waiver. Will these prohibitions limit those who can get a license for one of these programs? Should the bill explicitly exempt people who have gotten the counselor certification from CDCR?

5. Waiver

This bill appears to have two waiver provisions. The first states that a waiver can be granted after a review of the documentation or pending criminal charges if the applicant is capable of complying with all the statute and regulations regarding licensure for an alcoholism or drug abuse recover treatment facility and if granting the waiver will not endanger the public health safety or welfare. The second waiver is specific to a waiver of one of the listed offenses and requires a number of things be considered regarding the nature of the conduct and rehabilitation.

Since the second type of waiver is specific to the listed offenses, does that mean that the first type of waiver is needed for any other offense? Thus, does this bill require a waiver for any criminal offense and thus prohibit a license if there is any offense that is not granted a waiver? Or should the bill be clarified that the waiver is only intended and only required for the specified offenses?

The waiver provision provides that the department shall consider an order from a superior court where a person’s plea has been withdrawn after probation, whether the person has been granted a pardon or whether a certificate of rehabilitation has been ordered. The criminal background check from DOJ will not include things that have been pardoned or where a certificate of rehabilitation has been ordered. The bill lists some of the sections where cases have been dismissed but not all of similar sections. Some of these may not be sent by the DOJ. Some of the sections are specifically prohibited from being used for employment purposes by Labor Code Section 432.7.

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1. https://www.ocregister.com/2017/12/29/rehab-riviera-industry-struggling-to-get-clean/ ↑

2. https://www.ocregister.com/2017/12/17/urine-empire-lax-oversight-expose-flaws-in-california-rehab-laws/ ↑

SENATE COMMITTEE ON HEALTH

Senator Ed Hernandez, O.D., Chair

BILL NO: SB 902

SUBJECT: Alcoholism or drug abuse recovery or treatment facilities

SUMMARY:

Requires the Department of Health Care Services to conduct a state and federal level criminal history background check (CBC) for specified individuals prior to issuing an initial license for an alcoholism or drug abuse recovery or treatment facility (RTF). Prohibits specified individuals from being issued an RTF license or from working at an RTF, as specified, based on the results of the CBC.

Existing law:

1. Requires the Department of Health Care Services (DHCS) to license RTFs that provide 24-hour residential non-medical services to adults who are recovering from problems related to alcohol, drug, or alcohol and drug misuse or abuse, and who need alcohol, drug, or alcohol and drug recovery, treatment, or detoxification services. [HSC §11834.01 et seq.]
2. Requires RTF licensees to provide at least one of the following nonmedical services: recovery, treatment, or detoxification services. Requires DHCS to adopt regulations requiring records and procedures appropriate for the type of service provided. Permits the records and procedures to include all of the following: admission criteria; intake process; assessments; recovery, treatment, or detoxification planning; referral; documentation of provision of recovery, treatment, or detoxification services; discharge and continuing care planning; or indicators of recovery, treatment, or detoxification outcomes. [HSC §11834.26]
3. Grants DHCS sole authority in state government to determine the qualifications, including the appropriate skills, education, training, and experience of personnel working within licensed or certified alcoholism or drug abuse recovery and treatment programs. [HSC §11833]
4. Requires, through regulations, all employees of an RTF with an adolescent waiver, who have supervisory responsibility for adolescent residents or frequent or routine contact with adolescent residents, to be subject to a CBC prior to their involvement in the provision of services to adolescents. Prohibits this requirement from applying to a resident of the RTF. [9 CCR §10624]
5. Requires every person who possesses any controlled substance in Schedule I, II, or III, that includes opiates, opium derivatives, depressants, cocaine base, mescaline, peyote, tetrahydrocannabinol, hallucinogenic substances, or any controlled substance in Schedule III, IV, or V that is a narcotic drug, unless by a written prescription of a licensed physician, dentist, podiatrist, or veterinarian to be punished by imprisonment in a county jail for not more than one year, or punished by a term of imprisonment in a county jail or state prison for 16 months, or for two or three years for one or more prior convictions, as specified. [HSC §11350]
6. Requires every person who possesses for sale or purchases for purpose of sale any controlled substance or narcotic drug specified in 5) above to be punished by imprisonment in county jail or state prison for two, three, or four years, as specified. [HSC §11351]
7. Requires every person who transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance or narcotic drug specified in 5) above, unless prescribed by those licensed as specified in 5) above, to be punished by imprisonment in county jail or state prison for three, four, or five years, as specified. [HSC §11352]
8. Requires every person who agrees, consents, or in any manner offers to unlawfully sell, furnish, transport, administer, or give any controlled substance or narcotic drug specified in 5) above, to any person, or who offers, arranges, or negotiates to have any such controlled substance unlawfully sold, delivered, transported, furnished, administered, or given to any person and who then sells, delivers, furnishes, transports, administers, or gives, or offers, arranges, or negotiates to have sold, delivered, transported, furnished, administered, or given to any person any other liquid, substance, or material in lieu of any such controlled substance to be punished by imprisonment in county jail for not more than one year, or to be punished by imprisonment in county jail or state prison for two, three, or four years, as specified. [HSC §11355]
9. Requires any person receiving health care for which he or she was not eligible based on false declarations, or any person making false declarations as to eligibility, as specified, to be liable for repayment and to be guilty of a misdemeanor or felony, as specified. Requires any person who willfully and knowingly counsels or encourages any person to make false statements or otherwise causes false statements to be made on an application in order to receive health care services, as specified, to be liable for damages incurred, as specified. [WIC §14014]
10. Requires any person, as specified, who intends to defraud for payment, knowingly submits false information as specified, or knowingly and willfully executes or attempts to execute a scheme against the Medi-Cal program or any other state health care program, as specified, to be punishable by imprisonment in a county jail or state prison for two, three, or four years; a fine; or, both a fine and imprisonment. [WIC §14107]
11. Requires any person who solicits or received any remuneration, as specified, in return for the referral or promised referral of any individual to a person for the furnishing or arranging for the furnishing of any service or merchandise, as specified; in return for the purchasing, leasing, ordering, or arranging for or recommending the purchasing, leasing, or ordering of any goods, facility, service, or merchandise, as specified, to be punished by imprisonment in county jail for not longer than a year, a fine, or both a fine and imprisonment. Requires a second or subsequent conviction to be punishable by imprisonment in county jail or state prison for two, three, or four years, as specified. [WIC §14107.2]
12. Deems it a felony for every person who commits, or aids, abets, solicits, or conspires with any person to knowingly prepare, make, or subscribe in writing with the intent to present or use it in support of any false or fraudulent claim; to knowingly make or cause to be made any false or fraudulent claim for payment of a health care benefit; or knowingly submit a claim for a health care benefit that was not used by, or on behalf of, the claimant, and to be punished by imprisonment to county jail or state prison for two, three, or five years, and by a fine not to exceed $50,000, as specified. [PC §550]
13. Makes it a crime for any person to assault; touch an intimate part of; rape, abduct, or seduce; cause great bodily harm or death; inflict cruel or inhumane corporal punishment against; commit lewd or lascivious acts upon; commit sexual penetration upon; commit an act that requires registration as a sex offender upon; commit a crime upon elders, dependent adults, or persons with disabilities; commit a violent felony against; cause cruel or extreme pain and suffering upon; carjack; willfully poison or mingle a harmful substance in food, drink, or medicine; brandish a loaded firearm in a threatening manner against; or commit arson resulting in great bodily injury upon another person, as specified. [PC §206, 215, 220, 243.4, 264.1, 273a, 273ab, 273d, 288, 289, 290(c), 347(a), 368, 417(b), 451(a) and (b), and 667.5(c)]
14. Makes it a crime for any physician and surgeon, psychotherapist, alcohol and drug abuse counselor, or any person holding himself or herself out as such to engage in a sexual act with a patient or client, or with a former patient or client, and requires imprisonment or a fine, or both imprisonment and fine, as specified. [BPC §729]

This bill:

1. Requires DHCS, prior to issuing an RTF license, to conduct a state and federal level CBC on the applicant. Requires DHCS, subsequent to initial licensure, to also conduct a state and federal level CBC for any manager, consultant, or employee of an RTF before his or her employment, residence, or initial presence in the RTF.
2. Requires DHCS to deny a licensure application, or suspend or revoke a license, if DHCS determines that an applicant has a criminal conviction or criminal charge pending for an alcohol- or drug-related offense and does not grant a waiver, pursuant to 5) below.
3. Requires an RTF to refuse or terminate the employment, residence, or presence of a manager, consultant, or employee if DHCS determines the person has a criminal conviction or criminal charge pending for an alcohol- or drug-related offense and does not grant a waiver, pursuant to 5) below.
4. Requires an applicant, manager, consultant, or employee who has a criminal conviction or pending criminal charge to request the appropriate entities to provide documentation regarding the conviction or charge directly to DHCS with sufficient specificity to enable DHCS to make a waiver determination, pursuant to 5) below.
5. Permits DHCS, after review of the documentation required in 4) above, to grant a waiver of the requirements of this bill if DHCS determines all of the following:
6. For a felony conviction, more than five years has elapsed since the date of the conviction, and at the time DHCS conducts the CBC, the applicant, manager, consultant, or employee is not incarcerated, on work release, on probation, on parole, on post-release community supervision, or serving any part of a suspended sentence, and is in substantial compliance with all court orders pertaining to fines, restitution, or community service;
7. For a misdemeanor conviction, at the time DHCS conducts the CBC, the applicant, manager, consultant, or employee is not incarcerated, on work release, on probation, on parole, on post-release community supervision, or serving any part of a suspended sentence, and is in substantial compliance with all court orders pertaining to fines, restitution, or community service;
8. The applicant, manager, consultant, or employee is capable of performing his or her duties in a competent and professional manner; and,
9. Granting the waiver does not endanger the public health, safety, or welfare.
10. Prohibits the following persons from being issued an RTF license:
11. Any person who has been convicted of the sale, purchase, transport, or import of controlled substances as specified in 6), 7), or 8) of existing law above;
12. A person who has been convicted of possessing a controlled substance, as specified in 5) of exiting law above, in the previous two years or who is currently participating in a court-ordered substance abuse treatment program;
13. A person who has voluntarily surrendered his or her medical license, or who has had a medical license revoked, pursuant to the Medical Practice Act or the Nursing Practice Act, as specified;
14. A person who has been convicted of fraud involving a health care program, making false claims, or soliciting or receiving remuneration as specified in 9), 10), 11), or 12) of existing law above; and,
15. A person who has been convicted of an offense specified in 13) or 14) of existing law above.
16. Prohibits, except for offenses specified in 6) above, a past criminal conviction from serving as an automatic exclusion for licensure. Requires DHCS to evaluate the circumstances leading to a criminal conviction and determine if the applicant meets all other requirements in determining approval or denial of a licensure application.
17. Permits an applicant, if DHCS denies a licensure application based on a CBC, to appeal DHCS’s decision, as specified.
18. Requires an RTF applicant, manager, consultant, or employee to notify DHCS of any subsequent arrests or convictions after obtaining a CBC clearance or a waiver.

FISCAL EFFECT:

This bill has not been analyzed by a fiscal committee.

COMMENTS:

1. Author’s statement. According to the author, as the opioid crisis has expanded nationally, addiction has soared and unscrupulous rehab operators have rushed in to exploit mandatory mental health treatment coverage required by the Affordable Care Act. In a comprehensive investigation, the Southern California News Group found that the state's difficulty in regulating the industry makes it too easy for almost anyone to open a treatment center and charge health insurers for hundreds of thousands of dollars per client, without any requirements to ensure qualified people are providing safe care and treatment. SB 902 requires that DHCS conduct CBCs before an individual can be issued a license to own or operate an RTF, or before an employee can start work in one of these facilities. It is imperative that the owners, operators, and employees who exercise control or management of individuals seeking care or treatment in these facilities be cleared through state and federal criminal databases. CBCs for counselors, employees, and rehab operators are a vital step to ensuring safe care for individuals staying in RTFs. The goal of SB 902 is to help stop the industry’s bad actors, not those with established records of helping people suffering from addiction.
2. RTFs. RTFs licensed by DHCS, based on what is commonly referred to as the social model, provide recovery, treatment, or detoxification services (the Department of Public Health licenses medical model RTFs known as chemical dependency recovery hospitals). The services provided by these social model RTFs include group and individual counseling, educational sessions, and alcoholism or drug abuse recovery and treatment planning. Social model RTFs are allowed to provide clients first aid and emergency care, and since the passage of AB 848 (Stone, Chapter 744, Statutes of 2015), RTFs can apply to DHCS for an additional license to provide incidental medical services by a licensed physician and surgeon or other health care practitioner, as specified. DHCS licenses about 1,020 RTFs. As part of their licensing functions, DHCS conducts reviews of licensed RTFs at least once every two years, or as necessary; checks for compliance with statute and regulations to ensure the health and safety of clients; investigates all complaints; and has the authority to suspend or revoke an RTF’s license for a violation of statute or regulations.
3. RTFs with adolescent waivers. Current law permits DHCS to grant a waiver to a licensed RTF to serve adolescents 14 years of age and older, when the licensee documents in writing that a need for such services exists and adolescent-specific services are otherwise unavailable in the county. RTFs that apply for an adolescent waiver are required to include a plan for the adolescent’s continuing education and supervised study time; intake policies and procedures; a copy of the admission agreement used for adolescent residents; policies and procedures for removal and/or discharge of an adolescent from the RTF; policies and procedures for disciplining the adolescent resident; a need for the services in the county; and a CBC for all employees of the RTF who have supervisory responsibility for adolescent residents or frequent or routine contact with adolescent residents. DHCS is required to determine the suitability of individuals who have been convicted of previous crimes, ranging from previous convictions of any alcohol- or drug-related crimes to felony or misdemeanor crimes perpetrated against a child. Any person who has been convicted of a felony or misdemeanor perpetrated against a child is permanently prohibited from participating in an RTF that serves adolescents. DHCS is required to monitor all subsequent conviction data received from the California Department of Justice (DOJ) for individuals with an approved or conditional CBC.
4. Fingerprint background checks. According to the California Attorney General’s (AG) Web site, DOJ is mandated to maintain the statewide criminal record repository for the State of California. Local sheriff, police and probation departments, district attorney offices, and courts submit arrest and corresponding disposition information, and DOJ uses this information to compile records of arrest and prosecution, known as “RAP sheets,” for individuals and disseminates the information for law enforcement and regulatory purposes. The AG’s Web site states that today there are over 45,000 agencies authorized to perform CBCs. DOJ technicians process approximately two million state-level CBCs and 1.2 million federal-level CBCs annually. Securing a CBC prior to employment, licensure, or certification provides a hiring or licensing authority an important resource, which aids in the evaluation of the applicant. These applicants are often candidates for positions that place them in a position of trust for some of California’s most vulnerable citizenry, elderly, and dependent adults and children. If a Federal Bureau of Investigation (FBI) CBC is requested, the fingerprint images are forwarded to the FBI to perform a fingerprint-based search of records in the national criminal history database. If the applicant’s fingerprints match fingerprints in the national criminal history database, the FBI sends DOJ a cumulative RAP sheet that contains criminal history information from any states or federal agencies that have reported the information to the FBI. Agencies authorized to submit fingerprints and receive FBI identification records must provide written notification to the individuals fingerprinted that the fingerprints will be used to check the criminal history records of the FBI and are required to provide applicants the opportunity to complete, or challenge the accuracy of, the information contained in the FBI identification record.
5. Senate Health Committee informational hearing. On January 31, 2018, the Senate Health Committee held an informational hearing to examine the substance use disorder (SUD) treatment system with a focus on treatment and services provided in RTFs; insurance coverage; patient referrals; and the state’s regulation and oversight of the system. The hearing provided an overview of recent issues that have affected the state regarding unscrupulous facility operators, and gave an opportunity for state regulators to highlight efforts they have undertaken to combat the exploitation of the SUD system. The goal of the hearing was to examine the issues and to seek strategies and policies that will prevent unscrupulous individuals from exploiting the various industries that are supposed to help treat those with SUDs, as well as to recognize federal and state protections for those with disabilities, and to ensure that policies are not enacted, either at the local or state level, that will limit the number of treatment options for those who need them.
6. Double referral. This bill is double referred. Should this bill pass out of this Committee, it will be referred to the Senate Public Safety Committee.
7. Related legislation. SB 992 (Hernandez) requires programs licensed or certified by DHCS to disclose business relationships, as specified. Makes changes to current law for licensed RTFs to improve client treatment and provide DHCS more oversight authority over RTFs. Requires DHCS to develop a program, after stakeholder input, for the voluntary registration of recovery residences, as specified. SB 992 passed out of this Committee by a vote of 9-0 on April 11, 2018.

SB 1228 (Lara) prohibits a licensed RTF or an employee of a licensee from referring a patient to a facility, residence, or dwelling that is not either licensed or certified, or engaging in patient brokering, as defined. Requires DHCS to establish a program to approve organizations that certify facilities, residences, or dwellings that provide SUD continuum of care, are not licensees, and meet specified requirements that include a ban on patient brokering. SB 1228 is set to be heard in the Senate Health Committee on April 18, 2018.

SB 1268 (Bradford) prohibits certain persons, programs, or entities, including a licensed RTF and persons employed by, or working for, that program, from giving or receiving remuneration or anything of value for the referral of a person who is seeking alcoholism or drug abuse recovery and treatment services, as specified. SB 1268 passed out of the Senate Health Committee by a vote of 9-0 on April 11, 2018.

SB 1290 (Bates) makes it unlawful for any licensee, operator, manager, consultant, employee, or patient of a licensed RTF, or any other person to, among other things, offer or pay a commission, benefit, bonus, rebate, kickback, or bribe, or engage in any split-fee arrangement to induce the referral of a patient or patronage to or from an RTF, or to solicit or receive a commission, benefit, bonus, rebate, kickback, or bribe in return for referring a patient or patronage to or from an RTF. Establishes the Commission on Substance Abuse and Recovery to provide comprehensive recommendations to the Legislature to create a coordinated and unified effort among state and local agencies to effectively confront the statewide addiction and substance abuse crisis. SB 1290 is set to be heard in the Senate Health Committee on April 25, 2018.

SB 1317 (Portantino) permits a city, county, or city and county to adopt by local ordinance health and safety standards and enforcement mechanisms for structured sober living homes, as specified. SB 1317 is pending in the Senate Health Committee.

AB 572 (Quirk-Silva) requires DHCS to establish a pilot program, if the City of Costa Mesa elects to participate, whereby DHCS assigns a compliance analyst to investigate complaints against licensed RTFs within the City of Costa Mesa or other local governments within Orange County, as specified. AB 572 is pending in the Senate Health Committee.

AB 2200 (Patterson) requires a person who has responsibility for residents or frequent or routine contact with residents of an RTF to be subject to a CBC prior to that person’s involvement in the provision of services, as specified. AB 2200 is set to be heard in the Assembly Health Committee on April 17, 2018.

AB 2214 (Rodriguez) establishes a voluntary certification process for recovery residences, as defined, by an organization approved by DHCS to certify a residence as a recovery residence. AB 2214 is pending in the Assembly Appropriations Committee.

AB 3162 (Friedman) requires DHCS to deny an application for a new RTF license if the proposed location is in proximity to an existing RTF that would result in overconcentration, as specified. Makes other changes to RTF licensing law, including making initial licenses for RTFs provisional, requiring all programs and medical services offered or provided by an RTF to be specified in the license application, and increasing penalties for a violation of licensing law and regulations, as specified. AB 3162 is set to be heard in the Assembly Health Committee on April 17, 2018.

1. Prior legislation. SB 636 (Bradford of 2017) contained provisions substantially similar to SB 1268 and included other provisions. SB 636 was never heard in the Senate Health Committee.
2. Support. The Association of California Cities-Orange County (ACC-OC) writes in support that residents and patients in recovery are vulnerable to the unscrupulous operators of some treatment centers, and there are too many cases of patient overdoses in facilities where the drugs were provided by staff. ACC-OC argues that CBCs are an obvious and commonsense measure to ensure reputable people with the requisite skills are providing care to patients working to overcome drug addiction. Advocates for Responsible Treatment (ART) argues that this bill appropriately targets owners, operators, staff, consultants, and doctors of licensed treatment centers for CBCs, as evidence shows that people from many different roles may be associated with crime. ART states that this bill provides appropriate safety valves, discounting former felonies that might have taken place more than five years ago and offering the opportunity for applicants to appeal the decision that precludes their hiring. ART states that this bill fairly opens the opportunity for those who have left their criminal past behind to become gainfully employed. ART further argues that this bill provides recovering addicts the basic rights to protection from abuse that are offered to other protected classes of adults under Community Care. ART states that these rights are long overdue because actively recovering addicts are also highly vulnerable adults.
3. Opposition. The California Consortium of Addiction Programs and Professionals (CCAPP) argues that CBCs should be performed for providers who work outside of licensed and certified programs. CCAPP states that DHCS regulates currently licensed programs and holds them accountable if a client is harmed by an employee, and requiring an additional CBC would be costly, delay licensure for new programs, and fail to improve the safety or quality of the workforce. CCAPP is concerned by the breadth of persons who would be subject to CBCs and the number of persons who would be excluded by the automatic exclusions proposed in the bill. CCAPP also argues that DHCS presently reviews past convictions for fraud violations via Medicaid exclusion regulations and CBCs for board members, and adding additional CBCs for fraud convictions is duplicative and would delay granting licenses at a time when people are denied treatment due to lack of access. The County Behavioral Health Directors Association of California (CBHDAC) argues that this bill is a drastic over-reach, and could result in the decimation of an already insufficient SUD workforce, as many of the counselors who work in SUD treatment programs have their own histories of alcohol and/or drug addiction, which often include involvement with the criminal justice system due to convictions for drug-related offenses. CBHDAC states that these individuals, through much hard work and treatment, have been able to achieve successful recovery from addiction, and are some of the most effective workers in SUD treatment, and to be denied the ability to work in this field because of a past criminal history would be a great disservice to this workforce. The American Civil Liberties Union of California (ACLU-CA) echoes many of the arguments made by CBHDAC and CCAPP. ACLU-CA also argues that this bill would harm successful reentry by eliminating career opportunities and increasing stigma for people with past involvement in the criminal justice system. ACLU-CA further states that this bill disparately impacts communities of color and limits their employment opportunities, as African Americans make up more than 10% of those arrested for misdemeanor drug offenses and 16.9% of those arrested for felony drug offenses, and Hispanics make up 44% of those arrested for misdemeanor drug offenses and 40.1% of those arrested for felony drug offenses.

SUPPORT AND OPPOSITION:

Support: Advocates for Responsible Treatment

Association of California Cities-Orange County

Oppose: American Civil Liberties Union of California

California Consortium of Addiction Programs and Professionals

County Behavioral Health Directors Association of California

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