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- Justice and other state departments do not send Social Services certain information it needs to protect vulnerable clients.
- Social Services does not always obtain or review all appropriate information before allowing individuals access to facilities.
- Delays at Justice and Social Services prolong the time it takes to issue exemption decisions.
- Other Areas We Reviewed
- Scope and Methodology
Justice and Other State Departments Do Not Send Social Services Certain Information It Needs to Protect Vulnerable Clients
- In early 2016, Justice stopped forwarding sentencing information to Social Services because it determined that it was not explicitly allowed by state law to provide this element of an individual’s criminal history. It also did not forward information about certain convictions because it believed it was not authorized to share that information. As a result, Social Services does not receive information that is valuable to the analysts in the CBCB who make exemption decisions.
- Although a change to state law in 2013 allows Justice to provide entities with subsequent criminal history information from the Federal Bureau of Investigation (FBI), Justice has not begun to develop the framework to receive this information. This means that Social Services—and other entities in California that rely on this information—are not aware of critical criminal history information.
- Social Services and four other state departments are not effectively sharing information about administrative actions they take against individuals, although state law intends for them to do so. Therefore, these five departments do not have access to information that could help them protect vulnerable populations. In addition, Social Services is not always timely in evaluating whether an individual who has been subject to an administrative action should be allowed to remain present in a licensed facility.
Justice Is Not Forwarding All Critical Information to Social Services
Statutory Requirements Justice Uses to Determine What Criminal History Information to Send Social Services
Initial Background Checks
Justice shall provide the following:
- Every conviction.
- Every arrest for which the individual is awaiting trial.
- Every arrest for crimes specified in the Health and Safety Code section 1522(a)(1), which includes murder, elder abuse, and assault. If Justice does not have records of a disposition for the arrest, it must make a genuine effort to determine the disposition.
- Sex offender registration status.
Justice shall not disseminate the following:
Any arrest subsequently deemed a detention only or that resulted in the successful completion of a diversion program or exoneration.
Subsequent Criminal History
For criminal activity that occurs after an individual has been fingerprinted and he or she has access to a licensed facility, Justice may disseminate the following:
- Every arrest.
- Every disposition that results in a conviction.
- Dispositions that do not result in a conviction, only if Justice has already received notification of the arrest and has previously notified Social Services of the pending status of the related arrest.
Sources: Penal Code sections 11105(m) and 11105.2(a).
State law prescribes what criminal history information Justice can provide to Social Services, as summarized in the text box. In early 2016, Justice stopped its practice of providing sentencing information to Social Services. The director of Justice’s Information Services Division (information services director) indicated that Justice stopped providing sentencing information to entities in California because it determined that state law does not provide for disseminating sentencing information. He stated that Justice routinely monitors its work processes and, in one such review, discovered that it was disseminating sentencing information. According to the information services director, Justice regarded this dissemination as an error because it violated statutory criteria, and Justice immediately corrected the error.
However, Justice’s removal of all sentencing information has negatively affected the CBCB’s ability to make informed exemption decisions regarding individuals whom the CBCB is evaluating for the first time. Although state law does not require Justice to send sentencing information, and it is permissible for Justice to remove sentencing information, state regulations related to granting exemptions require Social Services to consider whether an individual is on probation or parole, as well as the amount of time that has passed since the end of parole, probation, or incarceration, which are aspects of sentencing information. Because Justice began removing sentencing information from Social Services’ RAP sheets, the CBCB’s exemption analysts cannot easily determine whether these important time frames have been met.
Further, according to the chief of the CBCB, in 2016 Justice began removing some arrest information from the RAP sheets it sends to Social Services. State law identifies specific charges for which arrest information must be disseminated; arrests for any other charge are known as nonreferable arrests. According to the chief of the CBCB, Justice began removing some nonreferable arrests from RAP sheets when there was an associated conviction. We also observed this occurring on one of the federal RAP sheets we reviewed during our audit. When we questioned Justice officials about the removal of arrest information, an assistant bureau chief within the Bureau of Criminal Information and Analysis (assistant bureau chief) stated that nonreferable arrests should be disseminated when there is a corresponding conviction, that the removal of any such arrests was an error, and that procedures will be updated to reflect that staff should disseminate arrests in these circumstances.
When Justice does not provide nonreferable arrest information with the accompanying conviction, the CBCB cannot determine whether the conviction was for a lesser charge than the arrest. This can occur as the result of the defendant pleading guilty to a lesser charge in plea bargaining. This lack of information prevents the CBCB exemption analysts from evaluating whether a conviction involved plea bargaining, which can affect the type of information Social Services requires to process an exemption.
Our testing also found that Justice is omitting juvenile criminal information from RAP sheets it sends Social Services, which is information that Social Services used to receive. The assistant chief of the CBCB stated that the CBCB had previously received juvenile criminal information, but that it stopped receiving this information approximately five years ago. Justice’s assistant bureau chief stated that Justice had determined that none of the sections of state law pertaining to dissemination permit the disclosure of juvenile criminal justice information. Additionally, she stated that juvenile criminal information involves what are known as sustained petitions, which are not equivalent to convictions against adults. Although an individual’s juvenile criminal history is generally considered separate from his or her adult criminal record, courts can already consider some serious juvenile offenses, such as serious and violent felonies, when making sentencing decisions related to adult convictions. If Social Services received this type of information from Justice, it would likely enhance the quality of Social Services’ criminal history reviews.
During our review of files for this audit, we identified an exemption case in which Justice omitted juvenile criminal information that contained a serious offense. In this case, the individual was found to have committed assault with intent to murder as a minor. Following its practice of omitting juvenile information, Justice did not include the charge on the RAP sheet it sent to Social Services. Instead, the individual submitted a criminal history self‑disclosure form to the CBCB that included the juvenile offense, and the CBCB was able to use the juvenile charge as additional support in denying the individual’s exemption. However, the CBCB cannot rely on individuals to voluntarily alert them to serious offenses that have been removed from their RAP sheets.
We also found multiple instances in which Justice did not provide Social Services with subsequent RAP sheets for criminal history occurring in California for individuals the CBCB had already authorized to be present with vulnerable populations. Specifically, through our review of 10 individuals who had received an administrative action from other state departments, we identified six instances of convictions occurring in 2014 and 2015 in which Justice did not notify the CBCB about a subsequent conviction. Instead, Social Services learned of these convictions as a result of administrative action information that other departments shared with it. On average, the time between when Justice learned of these convictions and when the respective department notified Social Services of the related administrative action was 181 days. Two of these individuals were convicted of nonexemptible crimes—one for child abuse and the other for inflicting pain on an elderly or dependent adult. This conviction information is essential to help protect vulnerable populations in Social Services’ licensed facilities.
According to the manager of its applicant response unit, Justice did not forward five of the six convictions to Social Services because Social Services did not receive the arrest information related to these convictions, and Justice is not authorized to share subsequent conviction information if the arrest information was not originally shared with Social Services. In contrast, for the sixth conviction, Justice reported the arrest to Social Services when the individual was fingerprinted, but did not report the resulting conviction. The manager of the applicant response unit explained that Justice did not share this individual’s subsequent conviction information with Social Services because Justice only shares subsequent conviction information if an agency received a notice of the arrest as a subsequent arrest. In other words, because Justice shared information about this individual’s arrest on the first RAP sheet it provided Social Services and not on a subsequent RAP sheet, Justice did not forward the conviction information.
When we questioned Justice’s understanding of what information state law authorizes it to share, the assistant bureau chief asserted that the law was unclear, but agreed that Justice likely has the authority to disseminate a subsequent conviction without having first disseminated the preceding arrest. As a result of our discussion, the assistant bureau chief stated that it has begun taking steps to align its practices to disseminate subsequent conviction information to agencies authorized to receive subsequent arrest and disposition information, even if it has not shared the preceding arrest. Receiving all subsequent conviction information can help protect vulnerable populations, and the cases we reviewed demonstrate why it is crucial for Justice to share all subsequent conviction information with agencies authorized to receive this information. To ensure that Justice shares subsequent conviction information on an ongoing basis, we believe a change to state law is needed.
Although Justice facilitates the transmittal of federal criminal history information to various California entities—including criminal justice employers and transportation companies—when an individual is initially fingerprinted, Justice has not pursued obtaining subsequent federal RAP sheets on behalf of these entities, even though the Legislature provided it the authority to do so in 2013. As a result, no entity in California that relies on RAP sheet information receives subsequent federal criminal history. At Social Services, this lack of complete information makes it possible for an individual who is already allowed to be present in a licensed facility to be arrested or convicted in another state without Social Services being alerted and taking necessary action to consider the individual’s removal.
When we first asked Justice about subsequent federal RAP sheets, the information services director stated that Justice had not heard about any interest in the service from the relevant entities in California. However, in response to our inquiry, the assistant bureau chief also acknowledged that Justice did not take any steps to educate these entities that subsequent federal RAP service was a possibility. Despite this, the assistant bureau chief stated in January 2017 that some of the entities in California that receive RAP sheets recently indicated an interest in this service, and Justice plans to begin working with the FBI on this issue in the spring of 2017. She further stated that Justice is committed to engaging with privacy and social justice advocates and inviting statewide public opinion related to this issue. She stated that Justice needs to engage in preliminary analysis and outreach before it can estimate how long it will take to implement this service. It is essential that Justice obtain federal subsequent RAP sheets so that Social Services and other entities in California that rely on this information have the criminal history information necessary to protect the clients they serve.
An administrative action is a formal action taken by a state department against an individual that can affect his or her ability to be present in a licensed facility. These actions can result from a department’s background check or assessment that an individual’s unprofessional conduct poses a risk to the clients the department is charged with protecting. To protect the health and safety of persons receiving care or services from individuals or facilities licensed or certified by the State, state law allows certain departments to share administrative action information with one another. Specifically, since July 2006, state law has allowed Social Services and four departments that are also in the California Health and Human Services Agency—the California Department of Aging (Department of Aging), California Department of Public Health (Public Health), Department of Health Care Services (Health Care Services), and Emergency Medical Services Authority (Medical Services)—to share administrative action information with one another.3 Further, state law requires Social Services, contingent on funding, to maintain a centralized database that these departments can use to access this information. It is important that these five departments share their administrative action information with each other, because an individual who is associated with one department may also be certified or present in a facility licensed by another of these departments.
Social Services has not developed a centralized database of administrative action information because it has not obtained funding for this purpose. According to the former chief of the Licensing Division’s central operations branch, Social Services explored creating a database, but the funding that would have been necessary to implement the system was never successfully included in the state budget. In lieu of this database, to fulfill the intent of the law, Social Services entered into interagency agreements with each of the four other departments specifying that each department will share administrative action information with Social Services on a monthly basis.
However, although they facilitate some information sharing, these interagency agreements are an insufficient replacement for a centralized database. Specifically, they do not allow Social Services to act as a central resource from which the other departments could obtain administrative action information. This is because the interagency agreements prevent Social Services from sharing the information it receives with the other departments. Figure 3 demonstrates the difference between the information state law envisioned would be shared through a centralized database and the information departments are currently sharing with one another.
Sources: California State Auditor’s analysis of Health and Safety Code section 1522.08; interagency agreements between Social Services, Public Health, Department of Aging, Health Care Services, and Medical Services; Social Services’ memorandums of understanding with county agencies; and interviews with Social Services’ management.
* Contingent on funding, state law requires Social Services to maintain a centralized database for monitoring and tracking final administrative actions.
† Social Services does not forward the other state departments’ administrative actions information to county agencies.
‡ Social Services has delegated its authority to 39 counties to perform certain licensing duties for foster family homes and to two counties to perform certain licensing duties for family child care homes, such as background checks for licensed facilities. These county agencies may recommend that Social Services take administrative actions against individuals.
When we asked why Social Services does not share the administrative action information with the other departments as the law intends, the chief of the CBCB stated that the other departments have agreements with one another to share this information. However, we contacted the four departments and learned that only Public Health and the Department of Aging have such an agreement with each other. Therefore, despite the chief of the CBCB’s belief, the four other departments are likely not aware of all the administrative actions that each is taking against individuals.
Further, Social Services has had lapses in its own interagency agreements that have prevented it from accomplishing the intent of the law. Specifically, in 2016 Social Services’ interagency agreements with Health Care Services and the Department of Aging expired. Social Services was able to reinstate its agreement with the Department of Aging almost four months after the previous agreement expired, and despite its expired agreement, the Department of Aging continued to share administrative action information with Social Services during the lapse. However, as of early January 2017, Social Services had not yet reinstated its agreement with Health Care Services. As a result, according to the analyst who was responsible for processing administrative actions from other departments, as of January 2017, Health Care Services had not shared administrative action information with Social Services for approximately 10 months. A deputy director at Health Care Services stated that an interagency agreement would not be necessary for exchanging information about administrative actions except for the purpose of establishing a routine reporting process between departments. Nevertheless, in the absence of an interagency agreement, Health Care Services has not shared such information. This highlights the importance of interagency agreements that establish that departments will share this information with one another.
The chief of the CBCB stated that she was not certain why the agreement with the Department of Aging expired, but she explained that the renewal of Health Care Services’ agreement was delayed because she had concerns regarding changes Health Care Services requested to the agreement and did not follow up on her concerns in a timely manner. She also stated that she believed that the CBCB continued to receive and send administrative action information for the months that these agreements lapsed. However, as we previously stated, the analyst assigned to processing administrative actions from other departments asserted that Health Care Services did not send administrative action information for approximately 10 months. Therefore, the interagency agreements do not achieve the administrative action sharing that the law intended. Sharing this important information continually among all five departments would help the departments protect the health and safety of people receiving care in licensed or certified facilities in the State.
In addition, although state law allows county child welfare agencies to learn about other state departments’ administrative actions, Social Services has not been sharing this critical information with them. When we asked the assistant chief of the CBCB why the counties are not getting this information, he stated that it is not feasible to do so because the CBCB would not know which county office to send an individual’s administrative action to. However, he stated that Social Services is considering sending the entire list of individuals with administrative actions to all counties that perform licensing functions. Social Services should implement this proposal, because these counties perform background checks for individuals seeking to be present in foster family homes—and for two counties, family child care homes—and who will have contact with vulnerable individuals on behalf of Social Services. Because Social Services does not share administrative action information with the counties, counties may unknowingly allow an individual who poses a risk to clients to continue to work or be present in a licensed facility.
Further, as shown in Figure 4, in fiscal year 2015–16, Social Services and the other four departments did not always promptly submit administrative action information to each other. Delays in departments receiving information about administrative actions can prolong the length of time that an individual who poses a risk to clients remains in a facility. For example, in May 2016 Social Services learned that Public Health had taken administrative actions against 59 individuals in March 2016. Of these 59 individuals, five were identified by Social Services as being allowed to be present in its licensed facilities. Because administrative actions may relate to individuals who are already present around vulnerable populations, we believe the departments should take no more than five business days from the end of the month in which the action became final to submit their administrative action information lists to Social Services.
The delayed notifications between the departments are occurring partly because Social Services’ agreements with the departments do not stipulate deadlines for them to submit their monthly administrative action information to one another. Although the interagency agreements state that the departments are to provide administrative action information monthly, the agreements do not specify the date by which departments should share the information. The chief of the CBCB, who is also the project manager for these agreements, stated that she had not considered adding a timeline for providing the administrative action information because she did not see the need for that level of specificity. However, it is important for Social Services to define expectations for when departments should transmit this important information. Doing so would make clear that the information should be submitted in a timely fashion and would let Social Services know when it should expect to receive information about administrative actions taken by other departments.
The Departments Did Not Promptly Provide Their Monthly Administrative Action Lists in Fiscal Year 2015–16
Sources: California State Auditor’s analysis of the departments’ monthly administrative action transmittals, administrative action reports, and Social Services’ interagency agreement with Health Care Services.
Note: As stated in Table 8, we determined that the administrative action reports are not sufficiently reliable because of pervasive weaknesses in general controls over Social Services’ information systems. However, we present these data in the report because they represent the best source available.
* This figure does not include the Department of Aging’s administrative action information for the month of October 2015 because we were unable to find documentation that the Department of Aging shared its administrative actions with Social Services for this month. Although a representative from the Department of Aging claimed the department did share the October 2015 information with Social Services in January 2016, documentation regarding the Department of Aging’s January 2016 transmittal does not support his statement.
† By contract, Health Care Services has two divisions—Substance Use Disorder Compliance Division and Mental Health Services Division—which provide administrative action information to Social Services. Health Care Services’ timeliness information reflects only the seven and eight months respectively for which these divisions submitted their administrative action information to Social Services. Because most of the Mental Health Services Division’s transmittals to Social Services did not clearly indicate in what month the reported actions were finalized, we assumed for the purposes of this analysis that those transmittals reported actions finalized in the prior month.
‡ This figure represents Medical Services’ timeliness of reporting its administrative action information to Social Services for the months of April 2016 through June 2016. From July 2015 through March 2016, Medical Services did not forward its monthly administrative action lists to Social Services. In April 2016, Medical Services acknowledged its lack of reporting, informed Social Services it had corrected the issue, and sent Social Services its administrative action information since July 2015. Therefore, we did not include Medical Services’ April 2016 transmittal of its July 2015 through March 2016 administrative action information in our calculation of the department’s timeliness.
Similarly, Social Services did not promptly share its administrative actions with the other state departments in fiscal year 2015–16. As Figure 4 indicates, Social Services took an average of 40 business days after the end of the month in which the actions occurred to share its administrative action information with other state departments in fiscal year 2015–16. When we asked the individual responsible for getting Social Services’ administrative action information ready to share with the four departments about the delays, she stated that she cannot generate a list of administrative actions until she has closure information for each case, including a closure code. A closure code indicates what type of action Social Services took against the individual. She also informed us that legal staff can take varying amounts of time to prepare the closure information, depending on a case’s circumstances. However, in response to our questioning its timeliness, in late January 2017 Social Services issued a directive to its staff to prepare its administrative action information in a timelier manner. Sharing its administrative action information with the other state departments more promptly will help the other departments protect the health and safety of the persons receiving care or services from individuals or facilities licensed or certified by the state.
Social Services Fails to Obtain the Full Value From Administrative Action Information
Social Services does not always follow up promptly on cases in which an individual with an administrative action from another department is working or allowed to be present in a licensed facility. Records kept by Social Services indicate that in fiscal year 2015–16, it found that almost 90 individuals who received administrative actions from other departments were already allowed to be present in facilities it licensed. As of September 2016, according to those same records, 20 of these individuals had pending cases, meaning that Social Services had not reached a final determination regarding whether to take an action, such as an exclusion from its facilities, against these individuals. As of December 2016, we confirmed with Social Services that it was still determining how to proceed with most of these cases. According to the CBCB analyst who was responsible for tracking administrative action information, in seven of these cases Social Services was waiting for additional documentation from other departments to make its decision. We also noted that another seven of these cases were pending for at least six months.
Two cases we reviewed during our audit demonstrate why it is important for Social Services to quickly make decisions about individuals who received administrative actions from other departments. In one of these cases, Social Services took almost one year to conclude that the individual posed a risk to vulnerable populations and revoke the individual’s home care aide registration. In March 2016, Social Services learned that an individual registered to be a home care aide received an administrative action from another department for the individual’s conduct. In June 2016, the analyst responsible for processing administrative actions from other departments forwarded all the necessary case files to the Home Care Services Bureau (Home Care Services) to evaluate whether the individual posed a risk to individuals receiving or seeking to receive home care services.
However, it was not until January 2017—less than two weeks after our questioning about the case—that Home Care Services revoked the individual’s registration. This means that Home Care Services did not make a decision on the case for seven months. According to the chief of Home Care Services, her bureau was delayed in processing this individual’s case because it was implementing a new program, developing policies and procedures, training staff, and developing written directives for the program. Nevertheless, because Home Care Services had all of the information it needed to make the decision seven months before it revoked the individual’s home care aide registration, we believe it should have made a decision much sooner than it did.
In the other administrative action case, Social Services took nearly four months to reach a decision about an individual associated with one of its elder care facilities. In October 2014, Social Services learned that an individual approved to be in this type of licensed facility had received an administrative action from another department for sexually abusing a resident in a nursing facility. However, Social Services allowed this individual to remain in the facility until February 2015. Because Social Services took nearly four months to remove this individual from its care facility, it failed to fully protect the clients of the facility. Furthermore, the chief of the CBCB stated that if the CBCB received this case now, it would have obtained additional information about the administrative action earlier than it did. This case demonstrates why it is important for Social Services to review administrative action cases from other departments as soon as possible to identify serious offenses such as sexual abuse, so that it can better protect vulnerable populations.
Social Services also does not adequately use the administrative action information it receives from other departments as part of its background check process. When Social Services receives administrative action information from another department, it cross‑checks the information with its record of individuals who were fingerprinted to be in licensed facilities. However, as a result of this point‑in‑time review, Social Services does not identify individuals who later attempt to be present in a licensed facility as already having had administrative actions taken against them. Figure 5 illustrates how Social Services’ point‑in‑time review of administrative actions can allow individuals who have been subject to these actions in the past to be present in its licensed facilities.
Illustrative Example Demonstrating That the California Department of Social Services’ Point‑in‑Time Method of Reviewing Administrative Action Information Does Not Adequately Protect Vulnerable Populations
Sources: California State Auditor’s analysis of Social Services’ administrative actions information exchange procedures and interviews with relevant staff.
According to the CBCB analyst who maintained the lists of administrative actions Social Services receives, other exemption analysts within Social Services do not typically ask to see the lists while performing their exemption reviews. He explained that exemption analysts ask to see a list if they become aware through the background check process that an individual had an affiliation with another department, such as being certified as a nurse assistant through Public Health.
The chief of the CBCB cited the amount of time needed to check the lists as a reason for not routinely reviewing them. She explained that it would be very time‑consuming to habitually check each department’s administrative action list, because staff would have to manually look up each individual in each department’s list. She stated that if a centralized database containing the administrative actions for all of the departments were available, there might be a way to have the CBCB’s database, which contains background check information, check the administrative actions on a regular basis. Despite not having an automated system to check the CBCB’s database, it is important for the CBCB to review these lists regularly to identify individuals with administrative actions who apply to be present in Social Services’ licensed facilities.
To ensure that Social Services receives all necessary information for making exemption decisions, the Legislature should amend state law to require Justice to send Social Services all available sentencing information for all convictions. Additionally, the Legislature should amend state law to require Justice to send juvenile criminal history information related to serious and violent felony offenses as well as any other juvenile criminal history that Social Services identifies as valuable to its exemption reviews.
To ensure that any entity authorized by state or federal law to receive state or federal criminal history information subsequent to receiving the initial RAP sheet is informed of all criminal activity of an individual, the Legislature should do the following:
- Amend state law to clearly direct Justice to transmit all convictions it receives to the entities authorized to receive subsequent criminal history.
- Require Justice to obtain and transmit subsequent federal RAP sheets to all entities authorized to receive subsequent California criminal history information and to report to the Legislature periodically about its implementation efforts.
To ensure that all applicable entities share their administrative actions with each other as state law intends, the Legislature should amend state law to require that Social Services, the Department of Aging, Public Health, Health Care Services, Medical Services, and county agencies provide each other their administrative action information.
To ensure that Social Services receives all appropriate criminal history information, Justice should immediately update its procedures to accurately reflect that staff should disseminate nonreferable arrests when there is a corresponding conviction and ensure that staff follow these updated procedures.
To ensure that it more effectively shares, receives, and uses administrative action information, Social Services should do the following:
- Develop and maintain a centralized database containing its own administrative actions and those received from other state departments, in order to share this information among these departments as required by state law. Social Services should seek funding if it believes additional resources are necessary.
- Until a centralized database can facilitate real‑time information transmittal, amend its interagency agreements to specify that the departments should share their administrative action information as soon as possible after the action is final, but no later than five business days after the end of the month in which it became final. It should begin amending its interagency agreements by July 2017.
- Amend its interagency agreements so that the agreements remain in effect indefinitely. It should begin amending its interagency agreements by July 2017.
- As it receives administrative action information from other departments, share this information with the county agencies that perform licensing duties on its behalf.
- Direct its exemption analysts to review the administrative action information as part of their background check reviews.
To ensure that Social Services evaluates the risk individuals may pose to vulnerable populations in its licensed care facilities as quickly as possible, by July 2017 Social Services should establish time frames for staff to evaluate individuals who are present in their facilities and who have received administrative actions from other departments. In addition, it should monitor and follow up with the appropriate staff regarding the status of their assessments of these individuals and their final decisions.
Social Services Does Not Always Obtain or Review All Appropriate Information Before Allowing Individuals Access to Facilities
- Social Services has implemented a policy to clear individuals to be present in licensed facilities without evaluating convictions for relatively minor crimes known as infractions that it is required by law to review. As a result, from fiscal years 2013–14 through 2015–16, the CBCB cleared more than 3,300 individuals with RAP sheets that contained only infraction convictions.
- The CBCB’s background check case files lack essential information to support its decisions to grant exemptions. The files we reviewed did not always contain evidence that exemption analysts had obtained and reviewed required documents that would help inform them about an individual’s character. Also, the CBCB allowed individuals access to facilities without obtaining self disclosure forms that could indicate whether the individual had criminal convictions.
- We identified eight crimes—such as variations of rape charges—that state law provides Social Services discretion to exempt that are similar in nature to nonexemptible crimes. Adding the eight crimes to state law as nonexemptible would ensure that individuals convicted of those crimes are not allowed in facilities and also require Social Services to investigate the circumstances of arrests for these crimes.
Social Services Inappropriately Clears All Infraction Convictions
Types of Convictions
Infraction: Crimes that are punishable by a fine imposed by a court. These fines are collected by an entity other than Social Services. Infractions can include theft, leaving a child under six years of age in a vehicle without supervision, and selling liquor to a minor.
Misdemeanor: Crimes that are punishable by imprisonment in county jail for up to a year. Misdemeanors can include driving under the influence, battery, and forgery.
Felony: Generally, crimes that are punishable by death or by imprisonment in state prison or county jail. Felonies can include burglary, conspiracy, and carrying a concealed firearm in certain circumstances.
Source: California State Auditor’s analysis of the Penal Code and RAP sheets we reviewed as part of this audit.
Contrary to requirements in state law, the CBCB clears individuals to be present in licensed facilities without reviewing convictions for relatively minor crimes known as infractions. State law requires that Social Services deny an individual’s ability to be present in a licensed facility if the individual has been convicted of a crime—other than a minor traffic violation—unless Social Services grants the individual an exemption. However, Social Services’ background check procedures direct its staff to review only convictions for misdemeanors or felonies, and not infraction convictions, when they consider whether to grant an individual an exemption. The text box identifies the differences among the three conviction types and lists some of the crimes that could result in those types of convictions. Social Services has interpreted “minor traffic violation” to include all infractions, traffic or otherwise. We believe that this interpretation is overly broad.
As a result of Social Services’ interpretation, the CBCB has not evaluated the circumstances of thousands of infraction convictions it has received. In fiscal years 2013–14 through 2015–16, the CBCB cleared more than 3,300 individuals whose RAP sheets contained only infraction convictions. Although some of these convictions related to minor traffic violations, we observed that others did not, such as theft, selling liquor to a minor, and leaving a child under six years of age in a vehicle without supervision.
If the CBCB evaluated infraction convictions, it would better protect vulnerable populations in licensed facilities. For example, we reviewed a RAP sheet from 2016 for an individual who had two recent infraction convictions related to arrests for dangerous driving. The CBCB cleared this individual to work in a residential care facility for the elderly. However, if the CBCB had evaluated these convictions as the law requires, it would have required the individual to seek an exemption, and in granting the exemption it may have chosen to restrict the individual’s role in the facility by specifying that the individual is not allowed to transport clients of the facility.
Social Services also ignores infraction convictions when they appear on RAP sheets alongside misdemeanor or felony convictions. For example, we observed in a background check case file that the individual’s RAP sheet included a misdemeanor conviction for assault and battery and an infraction conviction for disorderly conduct. In the corresponding exemption decision summary, the analyst discussed her evaluation of the misdemeanor but did not analyze the infraction conviction.
As we describe in the Introduction, state law allows the CBCB to grant an individual with criminal convictions an exemption to be present in a licensed facility if the CBCB determines that the individual is of good character. In addition, state regulations require that Social Services maintain the written reason for why any exemption was granted or denied. The CBCB implements these regulations by requiring its exemption analysts to write decision summaries for the exemptions it grants and denies. According to information contained in the CBCB’s training materials and policy manual, a decision summary must include, among other things, an analysis of how the individual’s description of his or her crimes compares to law enforcement reports, which is used to determine the individual’s truthfulness, as well as a description of the evidence the individual submits to demonstrate his or her rehabilitation and good character. The training materials further state that the exemption decision summaries must be objective, factual, and written so that anyone who is unfamiliar with the case can understand and be persuaded by the analyst’s recommendation to grant or deny an exemption.
We expected to find that the CBCB fully justified its exemption decisions by maintaining background check case records and decision summaries in accordance with these requirements. However, it sometimes did not. We reviewed background check case records related to 20 individuals to whom the CBCB granted exemptions between fiscal years 2002–03 through 2015–16.4 Of these 20 exemptions, the CBCB did not have decision summaries to support four of the exemptions it granted. When we asked about the missing decision summaries, CBCB staff members could not provide definitive explanations for why they were missing. According to the chief of the CBCB, the missing decision summaries demonstrate inappropriate case management, because the summaries are how the CBCB defends its decisions to grant or deny exemptions. Without the documented reasons for its exemption decisions, the CBCB cannot effectively defend these decisions.
Further, we found that exemption analysts did not always demonstrate that they considered all the information they are required to evaluate when making exemption decisions. Specifically, the analysts did not appropriately address the character references the CBCB received in five of the decision summaries we reviewed. The CBCB’s training materials state that exemption analysts must document the receipt of character references and explain whether the references are positive or not in the decision summary. In one of these five decision summaries, the exemption analyst indicated that she had concerns regarding the individual’s character references, but she did not explain her concerns in the assessment. The analyst’s manager stated that he would have expected to see an explanation of the analyst’s concerns in the decision summary. Because she did not explain her concerns in the decision summary, it is unknown how the exemption analyst factored the concerns into her decision to grant the exemption, which could lead to questions about the overall quality of the exemption decision.
In two other exemptions we reviewed, the CBCB’s exemption analysts did not properly document an analysis of the individual’s truthfulness. State regulations specify that Social Services shall consider the individual’s honesty and truthfulness (truthfulness) as revealed in exemption application documents when determining whether to grant an exemption. Social Services’ policies related to granting exemptions indicate that the assessment of truthfulness is important because it helps provide evidence of the individual’s rehabilitation. In one of these two cases, an analyst marked that the individual was truthful, despite the analyst lacking the documents to make this assessment. In the second of these cases, the individual made light of and did not accurately describe his arrest for soliciting sex, but the analyst did not address his dishonesty in the exemption summary. The analyst told us she did not consider the lack of truthfulness crucial to her decision to grant an exemption, in part because at least 14 years had passed since the individual had committed his crimes. However, the analyst should have documented her reasons for disregarding this individual’s lack of truthfulness, because Social Services must have evidence of good character in order to grant an exemption and truthfulness is one source of evidence of good character.
The chief of the CBCB explained that truthfulness in an individual’s description of his or her crimes is one of many factors the CBCB analysts evaluate when determining whether to grant an exemption. She further stated that for individuals with criminal histories involving relatively old crimes, the CBCB may choose not to deny an exemption based only on discrepancies between the individual’s description of the crime and the law enforcement report, because an administrative law judge would likely not uphold the CBCB’s decision to deny the exemption on that basis if the individual appealed the decision. Nevertheless, the exemption analysts should thoroughly document their reasoning for exemption decisions, including the element of truthfulness, which the CBCB directs its staff to review as part of an assessment of an individual’s rehabilitation.
In addition, the CBCB does not always receive or obtain all of the documents it requires exemption analysts to consider when granting exemptions. Specifically, we found that for 17 of the 18 background check cases we reviewed from fiscal years 2013–14 through 2015–16, the CBCB did not receive all of the required documents, such as law enforcement reports or proof of restitution, before deciding whether to grant an exemption. Despite the missing documents, the CBCB granted exemptions for 13 of these 17 exemption requests. Table 1 identifies what items the CBCB did not obtain for these 13 cases. These documents are important for the CBCB to obtain because they help demonstrate an individual’s character and level of risk to a licensed facility’s clients.
|Background Check Case||Self‑Disclosure Form*||Documentation indicating that the individual’s current or last period of probation was unsupervised or that supervised probation was successfully completed†||Verification of Completion of Any Training, Classes, Courses, Treatment, or Counseling||Copy of All law enforcement Reports Involving the Crime(s) for Which the Individual Was Convicted or a Letter From a Law Enforcement Agency Stating That a Report no Longer Exists†||Proof of Restitution‡|
Sources: California State Auditor’s analysis of the CBCB background check case files, policies, and state regulations.
No = The CBCB did not receive or obtain the document.
Yes = The CBCB received or obtained the document.
* Regulations require individuals who apply to be present in a licensed facility to sign a criminal history self‑disclosure form. A person signing the criminal history self‑disclosure form must declare whether he or she has been convicted of a crime other than a minor traffic violation.
† Social Services may attempt to obtain law enforcement reports or documents that indicate probation sentencing, such as court documents, on behalf of an individual who does not submit them on his or her own. For the purposes of this table, if Social Services attempted but was unable to obtain law enforcement reports or probation documents, we did not consider the document to be missing.
‡ Restitution is monetary compensation, generally ordered by a judge, for a crime. For example, state law requires judges to order an offender to pay restitution when a victim of a crime has suffered an economic loss as a result of the offender’s conduct. For the cases that we show as missing proof of restitution, we confirmed through sentencing information that the individual was required to pay restitution.
For example, in one of these 13 cases, the individual submitted an unsigned certificate to prove that he or she completed a court‑ordered first offender drinking and driving program. The exemption analyst stated that she did not request additional proof of completion because it is general practice in the CBCB to consider court‑ordered courses to be completed by the individual if the individual submits court documents as proof that his or her probation has ended. However, we found no evidence in the case file we reviewed that showed that the individual had submitted court documents indicating that probation ended. As a result, the CBCB analyst’s decision to grant an exemption relies on an assumption that the individual completed probation and the rehabilitation course without evidence that this actually occurred.
The CBCB’s background check case files are incomplete in part because the CBCB does not require individuals to submit all relevant documents. As previously presented in the text box, the CBCB requires individuals or facilities seeking an exemption to submit specific documents. The CBCB includes a request for these documents in the letter it uses to inform individuals and licensed facilities that an exemption is needed (exemption‑needed letter). However, the exemption‑needed letters the CBCB uses do not ask individuals to submit other documents that the CBCB’s regulations and policy direct its exemption analysts to consider. These are documents that demonstrate successful completion of supervised probation, criminal history self‑disclosure forms for individuals requesting exemptions on their own, and proof of court‑ordered payment to persons who suffer losses, such as property loss, as a result of the crime (restitution).5 State law generally requires the courts to order restitution as part of an individual’s sentence when a victim suffers economic loss as a result of an individual’s conduct. As a result of its incomplete exemption‑needed letters, the CBCB did not always obtain these additional documents in the cases we reviewed.
Another reason why the CBCB did not obtain all required documents is that, contrary to Social Services’ policy, the CBCB’s exemption analysts did not always follow up to obtain missing documents. Social Services’ policy is to issue follow‑up letters to inform the licensed facility and the individual of what items are missing from an exemption request. We evaluated the CBCB’s response to 10 individuals who submitted incomplete exemption requests for fiscal year 2013–14 through 2015–16. We found that in six of the 10 cases we reviewed, exemption analysts did not request all of the missing items in a follow‑up letter.
In many of the exemption cases we reviewed, instead of asking for the missing documents, the CBCB exemption analysts themselves obtained or attempted to obtain information that individuals or facilities were required to submit. Of the 29 exemption cases we reviewed throughout our audit, analysts attempted to obtain law enforcement or court documents in 22 cases. Officials at Social Services asserted that it is not useful for an individual to provide these law enforcement reports because the reports can be redacted, preventing the CBCB from assessing the individual’s actions related to the arrest. These officials stated that it is necessary for exemption analysts to obtain law enforcement reports because the reports are needed to assess the circumstances of the arrest. However, this practice is contrary to Social Services’ policy, as identified in the exemption‑needed letter, which asks the individual or facility to submit law enforcement or court documents. As a result of these requests, the CBCB incurs costs for documents that its policy suggests an individual should have provided. Social Services’ records show that in fiscal year 2015–16 the CBCB spent about $6,500 to obtain these records.6 Because Social Services’ policy and direction to individuals requesting exemptions is not aligned with the CBCB’s practice, individuals requesting exemptions may obtain and submit documents that Social Services cannot use.
When we asked the chief of the CBCB why its background check case files do not contain all of the required documents, she stated that, depending on the circumstances, analysts may not need all of the required items to make an exemption decision. For example, the chief stated that CBCB staff often does not obtain or request the court documents, such as court transcripts, unless the CBCB needs information about the individual’s sentence or documentation to support an individual’s statement. In addition, when we asked why the CBCB does not require individuals seeking their own exemptions to submit criminal history self‑disclosure forms, the chief of the CBCB stated that individuals do not generally have access to the self‑disclosure form they submitted to a facility during the application process.
However, regulations require the CBCB to evaluate court documents and the criminal history self‑disclosure form for every exemption decision. Further, the chief of the CBCB did not provide an explanation for why the CBCB exemption‑needed letter does not ask for support that an individual completed formal probation, but she stated that the letter does not ask the individual to submit proof of restitution because restitution does not apply to all cases. Nevertheless, restitution did apply to the cases in Table 1, and the CBCB did not always obtain proof that it was paid. Additionally, the CBCB’s policy requires the analyst to evaluate both of these items if applicable when making exemption decisions. If the letter does not ask for documentation of whether restitution applies, it could be difficult to know whether it does. Regulations allow the CBCB to deny an exemption request if the individual fails to provide the necessary documents. Despite that authority, we reviewed numerous cases in which the CBCB continued to process exemption decisions without complete documentation. When the CBCB does not obtain all of the required documentation before making exemption decisions, it risks that its exemption analysts may miss a critical piece of information that would change a decision.
Social Services’ practice related to obtaining an individual’s signed self‑disclosure form identifying his or her convictions is not aligned with state law. Under state law, Social Services can initially allow an individual to be present in a licensed facility based on his or her in‑state criminal history before the federal RAP sheet is received, only if the individual has submitted a self‑disclosure form attesting that he or she has never been convicted of a crime, other than a minor traffic violation, in the United States.7 Contrary to state law, however, Social Services does not obtain self‑disclosure forms for all individuals it allows to access licensed facilities in advance of receiving their federal criminal history. Social Services’ policy related to these disclosures suggests that a licensed facility should send its regional office a copy of an individual’s self‑disclosure form only if the individual discloses convictions.8 In turn, the regional office must submit the form to the CBCB. In other words, Social Services’ policy presumes that if the CBCB does not have an individual’s self‑disclosure form, the form indicated no convictions. However, it is also possible that the individual never completed a self‑disclosure form. Social Services’ approach to self‑disclosure forms thus defers its responsibility to verify that individuals did not disclose any convictions to the facilities it licenses.
Further, Social Services’ approach to self‑disclosure forms is not functioning as intended. According to our conversations with staff at Social Services, some regional offices do not collect self‑disclosure forms for individuals applying for employment. One assistant program administrator who oversees five regional offices explained that her regional offices do not expect to receive self‑disclosure forms for individuals applying for employment who disclose criminal convictions, because these individuals will require an exemption before they can work in a licensed facility. A regional manager under the direction of a different program administrator also confirmed this practice. He informed us that instead of receiving self‑disclosure forms, his office asks the licensed facilities to maintain the forms in their personnel files. Because some regional offices do not receive any self‑disclosure forms for individuals applying for employment, some of whom disclose convictions, the CBCB is incorrectly assuming that a lack of a self‑disclosure form means that the individual did not disclose any convictions.
When the CBCB does not obtain self‑disclosure forms before allowing individuals to be present in facilities, it may allow individuals with federal criminal histories into facilities prematurely. For example, we identified a background check case from 2014 in which the CBCB cleared an individual without a criminal history in California to be present in a licensed facility, although the CBCB had not yet received the individual’s federal criminal history or self‑disclosure form. More than a month later, the CBCB received the individual’s federal RAP sheet, which showed that the individual did have an out‑of‑state conviction. Had the CBCB obtained a self‑disclosure form for this individual, the form may have indicated that the individual had out‑of‑state convictions and should not be allowed in a facility without a full exemption review. Because it did not obtain a self‑disclosure form, the CBCB should have waited for the federal criminal history before allowing the individual to be in a facility. The CBCB eventually issued an exemption for this individual’s out‑of‑state conviction, but it did so five months after originally clearing the individual to be in a facility. Because the CBCB did not require a self‑disclosure form and it did not wait for the federal RAP sheet for this individual before granting a clearance, it allowed an individual with a criminal history to be present in a facility without any review, which may have risked the safety of the facility’s clients.
A change to state law to prohibit the CBCB from allowing an individual to be present in a licensed facility until it receives information from Justice about California and out‑of‑state convictions would mitigate the risk associated with Social Services not always receiving self‑disclosure forms. Specifically, it would ensure that Social Services is knowledgeable of individuals’ complete criminal histories before it allows them to be present in licensed facilities. Changing the law would not unreasonably delay the background check process for individuals with convictions because, in fiscal year 2015–16, Justice provided both California and federal criminal history reports to Social Services within one month, on average. For the same fiscal year, when individuals did not have any convictions in the United States, Justice notified Social Services within two days, on average, after the individuals submitted their fingerprints to Justice. Therefore, a change to state law to require that Social Services receive both state and federal criminal history information before allowing individuals to be present in facilities would not unduly delay Social Services’ exemption process, and it would eliminate the risk of initially allowing individuals into facilities before learning of their entire criminal history.
The List of Nonexemptible Crimes in State Law Should Be Expanded
State law’s list of crimes that are nonexemptible should be augmented with similar crimes to reduce risk to the safety of clients in Social Services’ licensed facilities. As discussed previously, state law specifies crimes for which the CBCB cannot grant an individual an exemption, such as convictions for murder, kidnapping, and incest. If an individual has a conviction for one of these crimes, the CBCB cannot allow the individual to be in a licensed facility. Similarly, Social Services must investigate any arrests for these same crimes if there is no corresponding conviction. However, as shown in Table 2, we identified eight crimes that the CBCB can issue exemptions for despite their similarity to nonexemptible crimes. For example, the CBCB cannot grant an exemption to an individual convicted of rape of a spouse by means of force or by threatening retaliation. However, the CBCB can grant an exemption if the spouse was unconscious during the act. It is important that these similar crimes are added to the nonexemptible list to better protect the safety of clients in Social Services’ licensed facilities.
(An individual cannot be present in a licensed facility)
|Similar Crimes that Can be Exempted
(The CBCB can allow an individual to be present in a licensed facility)
|Penal Code sections 261(a)(1)(2)(3)(4) or (6): Rape under a variety of circumstances, including: accomplished by means of violence, when the person is unconscious, or when the person is prevented from resisting by an intoxicating substance.||Penal Code section 261(a)(5): Rape where the person submits under the belief the person committing the act is someone known to the victim other than the accused.|
|Penal Code section 261(a)(7): Rape where the act is accomplished by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another and the victim has a reasonable belief that the perpetrator is a public official.|
|Penal Code sections 262(a)(1) or (4): Rape of a spouse by means of force or by threatening retaliation.||Penal Code section 262(a)(2): Rape of a spouse where the person is prevented from resisting by any intoxicating or anesthetic substance.|
|Penal Code section 262(a)(3): Rape of a spouse where the person is at the time unconscious of the nature of the act, including if the victim is asleep.|
|Penal Code section 262(a)(5): Rape of a spouse where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another.|
|Penal Code section 266h(b): Pimping a minor.||Penal Code section 266h(a): Pimping (not of a minor).|
|Penal Code section 266i(b): Pandering a minor.||Penal Code section 266i(a): Pandering (not of a minor).|
|Penal Code section 368: Elder abuse, including identity theft of an elder or dependent adult.||Penal Code section 530.5: Identity theft.|
Sources: California State Auditor’s analysis of sections of the Penal Code as noted in the table and the Health and Safety Code section 1522(g), which enumerates the crimes that the CBCB cannot exempt.
From fiscal years 2013–14 through 2015–16, Social Services received RAP sheets that mentioned at least one of these eight crimes for more than 600 individuals. More than 97 percent of these RAP sheets contained an arrest or conviction for identity theft. During the same time frame, the CBCB allowed more than 40 individuals with arrests or convictions for one or more of these eight crimes to be present in licensed facilities. These decisions were allowable under current state law. For example, one of these 40 individuals was convicted of identity theft, yet the CBCB allowed her to be certified as an administrator of a residential care facility for the elderly. An administrator can be responsible for the overall management of a facility and could have access to residents’ sensitive personal information. As Table 2 shows, although the crime of identity theft is exemptible, identity theft involving the elderly population the individual would be working with is nonexemptible. Allowing an individual with this type of history to be present in a facility that cares for the elderly could present a risk to the facility’s clients.
Changing state law to designate these eight crimes as nonexemptible will also require Social Services to review an individual’s character when a RAP sheet identifies an arrest for one of these crimes. Social Services does not currently investigate arrests for these eight crimes as part of its exemption process, because it is not required to conduct such investigations. As a result, Social Services may allow an individual with such an arrest to be present in a licensed facility, depending on the remainder of the crimes identified on his or her RAP sheet. However, if the Legislature designated these crimes as nonexemptible, Social Services would be required to investigate the circumstances of the arrest before granting an exemption. For example, the criminal history for one of the 40 individuals we identified shows that the individual was arrested for identity theft and charged with possessing personal identifying information for 10 or more people, with the intent to defraud. At the time of Social Services’ review, the individual had not been convicted of this crime. The CBCB cleared this individual to work in an Alzheimer’s care facility because the crime is exemptible under the law. However, if the crime had been nonexemptible, the CBCB would have been required to investigate the conduct related to the arrest before determining whether to allow the individual access to the facility. Designating these eight crimes as nonexemptible will better ensure the safety of vulnerable clients in licensed facilities.
To better ensure the safety of clients in licensed facilities, the Legislature should amend state law to do the following:
- Require that Social Services receive state and federal RAP sheets for individuals before allowing them access to licensed facilities.
- Expand the list of nonexemptible crimes to include the eight crimes we identified and any other crimes it deems appropriate.
To comply with state law and better protect vulnerable populations in California’s licensed facilities, Social Services should immediately change its policy to require that its exemption analysts evaluate all infraction convictions, other than minor traffic violations, before granting exemptions to individuals. If Social Services believes it is not feasible to evaluate all of these convictions, it should report to the Legislature by June 2017 how it ensures that vulnerable populations are not at risk and should request that the Legislature change the law to eliminate infraction convictions as a crime category that Social Services must evaluate in order to grant an exemption.
To comply with state regulations and its policies, the CBCB should immediately take the following actions:
- Ensure that its background check case files support its exemption decisions by including complete decision summaries and all required supporting documents.
- Update its exemption‑needed letter to identify all of the documents its policies require exemption analysts to evaluate when deciding whether to grant an exemption. The letter should also eliminate requests for documents that Social Services does not believe can be used if the applicant obtains them, such as law enforcement reports.
To ensure that its exemption analysts are receiving information that Social Services believes is necessary and relevant to make exemption decisions, Social Services should immediately revise its policy to require that exemption analysts obtain law enforcement reports on behalf of individuals who seek exemptions.
Until the Legislature requires that Social Services receive both California and federal criminal history information before issuing a clearance or processing an exemption, Social Services should immediately do the following to better protect vulnerable populations:
- Revise its policy to require its regional offices to obtain all self‑disclosure forms for individuals who submit fingerprints to Justice as part of an application to be present in a licensed facility. The regional offices should then forward to the CBCB all self‑disclosure forms that identify a conviction.
- Change its practice of allowing individuals who have not submitted a self‑disclosure form to Social Services to have access to licensed facilities, thus reflecting the requirements of state law. In addition, the CBCB should develop a process to ensure that individuals cannot receive a clearance or an exemption without the CBCB first receiving both California and federal criminal history information if a regional office does not have a self‑disclosure form for the individual.
Delays at Justice and Social Services Prolong the Time It Takes to Issue Exemption Decisions
- Justice does not always provide Social Services with criminal history information within 14 days of receiving fingerprints for individuals who seek to be present in a licensed facility, as state law requires. Further, Justice does not always receive arrest and conviction information from the criminal justice community as state law requires. As a result, the criminal history information Justice maintains and distributes to authorized entities throughout California is incomplete. As of February 2017, Justice had not followed through with an April 2016 commitment to reconvene a committee to address this reporting problem.
- We found significant delays in Social Services’ processing of exemptions, investigations of arrest‑only cases, and pursuit of legal actions, with some of these delays being within its control. From fiscal years 2013–14 through 2015–16, it took an average of six months to make an exemption decision. In addition, at the time of our review, the CBCB had more than 1,000 cases pending that were received before 2016. Most of these cases had no recorded activity in the preceding six months.
- Social Services complied with state law—including requirements introduced recently by AB 2632—by completing investigations of arrests for specific crimes before deciding to allow or deny an individual access to a licensed facility. However, it has not consistently conducted site visits to verify that previously authorized individuals that it subsequently determined to be a risk to vulnerable populations have left those licensed facilities. In four of six cases we reviewed in which Social Services ordered the removal of an individual, it had not visited the facility to verify the removal.
As we discussed previously, the RAP sheets Social Services uses to begin to evaluate a person’s criminal history come from Justice, which retrieves them based on the individual’s fingerprints. Although state law specifies that within 14 days of receiving an individual’s fingerprints, Justice must provide criminal history information or a notification that the individual has no criminal record, Justice regularly does not meet this requirement. As shown in Table 3, in fiscal years 2013–14 through 2015–16, Justice quickly provided Social Services the notices for individuals who did not have a criminal history. However, for individuals who did have a criminal history, Justice did not consistently provide Social Services the needed information within the required period of time. On a positive note, the time for transmitting the RAP sheets significantly decreased in fiscal year 2015–16. However, Table 3 also shows there is room for improving the timeliness of the submittals. Specifically, for the three fiscal years we reviewed, Justice provided Social Services with nearly 62,000 RAP sheets after the 14‑day requirement had passed. In fact, Justice sent the RAP sheets to Social Services an average of between 30 and 66 days after fingerprinting.
Source: California State Auditor’s analysis of data obtained from Justice’s Applicant Processor system.
Note: The number of days measurement begins when Justice loads the readable fingerprints into the Applicant Processor system. Further, this table only includes the background check responses related to Social Services’ Licensing Division’s licensed facilities, excluding responses related to the Home Care Aide program.
Justice acknowledged that it does not always provide information to Social Services within the required time frames. Justice’s assistant bureau chief stated that these delays can be a result of a variety of factors, including needing to manually verify fingerprint images, but that most delays are due to complications in identifying missing criminal information. She explained that Justice has an ongoing process of reviewing its internal process for transmitting RAP sheet information to see whether any parts of the process could be automated. It is critical that Justice transmit criminal history information in a timely fashion, because delays in preparing and sending the RAP sheets cause delays in Social Services’ initiation of background checks.
Some RAP sheets may be delayed because Justice researches information from superior courts to make sure criminal history records are complete. Records kept by Justice’s Applicant Response Unit indicate that from fiscal years 2013–14 through 2015–16 Justice needed to research further information for 4 percent—or 22,978—of the RAP sheets that it prepared for individuals who were initially fingerprinted for Social Services. State law requires Justice to make a “genuine effort” to determine the final court outcome regarding an arrest—known as a disposition—such as a conviction or dismissal. To fulfill this requirement, Justice identifies instances in which an individual’s RAP sheet contains an arrest but no information on the final disposition and researches the court decision to add to the RAP sheet before sending the RAP sheet to Social Services. According to the manager of the unit that performs this work, Justice has access to some courts’ case management systems, and for other courts, Justice’s staff contact the court by fax or telephone. In addition, according to the chief of Justice’s Bureau of Criminal Identification and Investigative Services (investigative services chief), this work can also include researching district attorneys’ decisions not to formally press charges. This additional information is valuable because it allows Social Services to accurately determine how to process the criminal history for a background check.
Justice knows that it is not receiving complete information from California’s courts for all individuals who commit crimes in the State, but it has not taken adequate steps to address the problem. State law requires the courts to furnish a disposition report to Justice within 30 days of the date of the disposition. Although Justice does not have a statutory requirement to monitor compliance with the law, it is responsible for maintaining complete criminal history information because it is the central repository of this information in California. In an April 2016 letter to California’s criminal justice community, Justice acknowledged that there is an information gap, wherein it does not have a corresponding disposition report for up to 40 percent of its arrest records. The letter also states that better and more complete information will improve background checks for employment. Although Justice stated in its April 2016 letter that it would reconvene its criminal history advisory committee to enhance this data collection, the investigative services chief acknowledged in February 2017 that the committee was not yet reconvened. She explained that from April 2016 to November 2016, Justice had to make plans regarding the subject matter of the committee and who at Justice would be managing the committee meetings. She also stated that Justice plans to reconvene the committee in spring or summer 2017.
Obtaining disposition information in a timely manner is critical to allowing state entities, such as Social Services, to perform their duties more quickly and protect the clients they serve. Our review of RAP sheets Justice provided Social Services for fiscal years 2013–14 through 2015–16 found that two courts provided disposition information to Justice a year or more after they made a final determination. One court submitted conviction information to Justice more than a year after the individual’s conviction related to pimping and carrying a concealed weapon. Because the CBCB was not promptly made aware of these convictions after they occurred in June 2013, the individual was allowed to be present in multiple facilities until the CBCB ultimately learned of these convictions in February 2015, after which it denied the individual’s exemption request. In the case of another individual, a court submitted its information—a theft conviction—to Justice three years after the conviction. This delayed Social Services’ ability to protect the clients in its licensed facilities.
If Justice received disposition information in a timely manner, it could redirect the resources it uses to research this information to one of its other responsibilities. Because of the incomplete disposition records and the need to fulfill the “genuine effort” requirement for all RAP sheets it distributes to entities in California, Justice has staff who research criminal history and update its records. For the one‑year period beginning in November 2015, records provided to us by Justice indicate it had 70 staff from two units working to make the criminal history information records for individuals who fingerprinted for a background check complete. From November 2015 through October 2016, based on median salaries and the records Justice provided to us, Justice spent nearly $1.1 million for staff who worked on completing these criminal history information records. Therefore, if Justice was able to reduce this workload by 30 percent through its outreach efforts, which we discuss later, it could have saved about $325,000 in the one year for which we reviewed staffing information.
In addition to incomplete reporting by courts, as a result of administrative actions that other departments shared with Social Services, we identified four cases in which law enforcement agencies did not report original arrest information to Justice, as required by state law. Consequently, as of November 2016, Justice was unaware of the original arrests—one from 2009, two from 2014, and one from 2015. Because of this, Justice was unable to provide Social Services—as well as other entities in the State—with the complete criminal history information for these individuals. Having this information would allow Social Services to promptly evaluate these individuals and determine whether they pose a risk to clients of its licensed facilities. In fact, one of these four individuals was arrested for the nonexemptible crime of committing a lewd or lascivious act upon a dependent person. Justice did not know about this arrest and, as a result, neither did Social Services when it cleared the individual to work in a licensed facility for the elderly two months after her arrest. When Social Services finally learned of the individual’s related nonexemptible conviction seven months later, it barred her from the facility. Had Justice and Social Services been informed of the arrest when it occurred, Social Services would have investigated the crime and could have decided to deny the individual access to the facility much earlier.
Although law enforcement agencies are required to report arrest information to Justice, according to Justice’s assistant bureau chief, Justice does not monitor whether it receives all arrest reports. She stated that she believes the law enforcement agencies are submitting all arrests because the agencies electronically submit the information to Justice. However, she also informed us that Justice has a code that it uses when it receives a disposition with no associated arrest in its records. She stated that Justice believes that many of the dispositions it receives without an arrest are cite‑and‑release and detention‑only situations.9 However, as discussed previously, arrests that Justice has no record of can also be arrests that Social Services is required to investigate.
The fact that Justice has created such a code is recognition that it knows it does not receive all the arrest records that it should have as the central repository of criminal history information for the State. The absence of monitoring arrest reporting is also problematic because, as shown in the four examples we found, Justice was unaware of the original arrest and therefore did not know that it was missing the corresponding convictions. The lack of complete criminal history information affects all entities that rely on this critical information.
Justice is in a unique position to conduct outreach to the courts and local law enforcement agencies regarding increased and prompt reporting. A deputy attorney general stated that Justice is required to collect, compile, and disseminate information reported by these entities, but has no obligation to ensure that courts and local enforcement agencies comply with their reporting obligations. He further explained that Justice does not have any practical means of ensuring that courts and local enforcement agencies report arrests and dispositions on a timely basis. We disagree. As the recipient of the reported information, Justice is the only entity that is aware of the extent to which courts and law enforcement agencies statewide are reporting and the timeliness of their reporting. Therefore, Justice needs to participate in any effort to identify noncompliance with state law and remind entities that may not be reporting, or may not be promptly reporting, about their obligations. The investigative services chief stated that Justice has regularly informed the Judicial Council of California (Judicial Council)—which is the policy‑making body for California’s court system—about the disposition gap.
Justice and the Judicial Council can benefit from working together to remind the courts that state law requires them to report dispositions to Justice within 30 days. In addition, the investigative services chief told us that law enforcement representatives will be participating on the committee it plans to reconvene in 2017. Such a collaboration will ensure that Justice has done all it can to have current criminal history records.
From fiscal year 2013–14 through 2015–16, the CBCB received annually an average of almost 21,000 RAP sheets containing federal and California criminal history for which it needed to conduct background checks. The amount of time the CBCB takes to make a decision on a background check file depends on the information included in the RAP sheet, as seen in Table 4. The processing time starts when the CBCB receives the RAP sheet from Justice. The first three processes listed in Table 4 required the least amount of time for criminal history reviews. To complete these reviews, exemption staff rely solely on the information contained in the RAP sheet as the basis for their decision. In contrast, the last CBCB process in the table—standard exemption—takes the most time for the CBCB to complete, on average. To complete this process, the CBCB must evaluate the documents identified in the text box. As shown in Table 4, the CBCB took between 149 and 170 days on average—roughly five to six months—after it received a RAP sheet to decide whether to grant or deny a standard exemption. Even if we subtract the 45 days that state regulations allow for an individual or facility to submit exemption request documents to Social Services, the exemption process still takes an average of about four months.
|Fiscal Year 2013–14||Fiscal Year 2014–15||Fiscal Year 2015–16|
|CBCB Process||Number of Cases closed||Average Number of Days to close a case||Number of Cases closed||Average Number of Days to close a case||Number of Cases closed||Average Number of Days to close a case|
|Exemption process halted†||9,159||103||10,373||89||10,885||87|
|Exemption decision made||3,813||170||4,354||169||4,564||149|
Sources: California State Auditor’s analysis of data obtained from Social Services’ Licensing Information System (LIS) and Caregiver Background Check (CBC) system.
Note: As stated in Table 8, we determined that the LIS and CBC system are not sufficiently reliable because of pervasive weaknesses in general controls over Social Services’ information systems. However, we present these data in the report because they represent the best source available.
This table does not include all criminal background check cases that Social Services processed. For example, it excludes any case that ended because the individual was no longer associated with any licensed facility, or any case that was closed because the criminal history only included arrest information.
* The CBCB can grant a simplified exemption only for individuals who have one nonviolent misdemeanor for which the period of incarceration or supervised probation ended five or more years before it received the RAP sheet. In cases of unsupervised probation, five years must have elapsed since the conviction.
† This category includes cases where the case was not completed due to an incomplete application or where the facility or individual licensee did not complete the process.
Since we last audited the background check process in 2000 and again in 2002, the CBCB has eliminated from its policies its goal for the number of days it should take to process a standard exemption.10 For example, our 2002 audit report identified that the CBCB had a policy that its exemption analysts should make exemption decisions within 60 days of receiving an exemption request. The CBCB does not currently have a formal goal for the amount of time staff should spend making an exemption decision. Additionally, the CBCB now relies on informal time goals for some steps in its exemption process, such as notifying an individual or facility that an exemption is needed, and these informal expectations are not documented in any department policies.
When we asked the chief of the CBCB why her bureau no longer has a formal time goal for making an exemption decision, she stated that she was not aware of the bureau ever having this time frame and did not know why its current policies did not have such a targeted time frame. However, she agreed that it would be a good idea to add time frame goals into CBCB policy or to establish them through a management memo. If the CBCB implemented a goal of finishing exemption cases within a certain number of days, its staff could prioritize the cases they needed to work on, rather than addressing them as documents come in. This approach could potentially lessen the wait time for individuals who do not present a risk. Additionally, a time goal would provide a metric that the CBCB could use to regularly track how long it is taking to complete exemption cases and intervene where necessary.
We found that delays in the exemption process occurred for multiple reasons, some of which can be attributed to the CBCB. We reviewed 10 background check cases that the CBCB worked on in fiscal years 2013–14 through 2015–16 that were open for at least six months. Although the exemption process includes time that an analyst is waiting for an exemption request and also can include requests for additional documents from the individual, law enforcement agencies, and courts, we found significant delays in seven of the 10 cases we reviewed, partly due to inaction by the CBCB. In each of these seven cases, a significant amount of time—ranging from 33 to 189 days—passed between the receipt of new information or documents at the CBCB and the next step the analyst took. For example, in one case, although the individual returned his exemption request within the required 45 days, the exemption analyst took six months to begin requesting the necessary law enforcement documents in order to process the exemption. According to the analyst who worked on this case, the case had been transferred to her, but she did not know precisely when. She also stated that any additional delay in processing the case was due to a large caseload. Several other analysts we spoke with also indicated that a large caseload affected their ability to quickly process exemption requests.
Over the three fiscal years we reviewed, the workload that the CBCB’s analysts were assigned fluctuated. For fiscal years 2013–14 through 2015–16, the median number of background check cases an exemption analyst handled in a year ranged from a low of 353 in fiscal year 2013–14 to a high of 695 in fiscal year 2014–15.11 Table 4 shows that the CBCB’s average number of days to make exemption decisions decreased over the same three‑year period. However, the average number of days to close two of the three types of cases that do not require an individual to submit supporting documentation—those other than standard exemptions—increased in fiscal year 2015–16. This demonstrates that the CBCB’s ability to quickly process background check cases is not improving, and the number of cases per analyst suggests that workload levels may be a contributing factor. Nevertheless, until the CBCB establishes expectations for how quickly staff should process cases, it cannot know if its staffing level is sufficient to adequately process the background check cases it receives.
The CBCB has not sufficiently monitored the status of many of its cases to ensure that analysts are not neglecting cases. Although the CBCB has not formally established what it considers to be a backlog, the chief of the CBCB informed us that Social Services considers a case open longer than 150 days to be backlogged. Based on this 150‑day metric, we determined that more than 2,500 open cases were backlogged as of June 30, 2016. To identify why cases were in the backlog, we looked more closely into cases that had been open more than 400 days as of June 30, 2016, which is when we obtained Social Services’ data. The CBCB’s database showed more than 1,000 such cases. Of the 1,000 cases, only about 100 had any activity that had occurred in the preceding 200 days.
The chief of the CBCB stated that, from a review of the list of these cases, she felt that conclusions about the status of these cases could not be made based solely on the data for a variety of reasons. She believed that some of the data was factually incorrect. For example, she stated that some of the cases the CBCB’s database identified as pending had been completed but the database had not been updated to reflect that completion. She also believed that many of these cases had moved into the legal process and that actions taken by Social Services’ legal division were not reflected in the data we used to calculate the number of pending cases. The chief of the CBCB stated that this list of pending cases would be used to start a data cleanup effort, but a review of specific cases was required to accurately reflect each case’s status.
Our review of 10 cases from the backlog demonstrates that, although some cases had circumstances similar to those described by the chief of the CBCB, others were more troubling. We selected five cases with recent activity and five cases that did not have recent activity to review. The CBCB histories for three of these 10 cases indicated that the CBCB received a RAP sheet but did not initiate an exemption or clearance process. Two of these individuals have been present in licensed facilities without adequate background checks for seven and 13 years, and the third has not had an exemption processed for fingerprints she submitted in 2012. The CBCB’s assistant chief stated that he could not explain why these individuals’ criminal histories were not reviewed, and that the CBCB has begun obtaining relevant documents or processing the necessary exemptions for these individuals. For another of the 10 cases, the CBCB began processing the case in October 2013 but never finalized the review. The other cases we reviewed showed circumstances similar to those described by the chief of the CBCB. We found three cases had been referred to the legal process. Another two cases had been processed but not closed out in the database. Finally, the last case that had been open for more than 400 days was closed in August 2016 during the normal course of processing cases.
Arrest‑Only Cases Take Longer to Complete Than Social Services’ Expected Time Frames
In contrast to its process for standard exemptions, Social Services has established time frames for processing background check cases for individuals with arrest‑only cases in their criminal histories. Figure 6 presents Social Services’ processes for conducting background checks and enforcement for arrest‑only cases, which it last updated in July 2014. These procedures align with the requirement established by AB 2632 that Social Services complete an investigation before issuing a clearance when an arrest occurs for specific crimes, such as kidnapping and murder. In addition, we found through our review of Social Services’ data and a selection of arrest‑only cases that Social Services adhered to these policies in fiscal years 2014–15 and 2015–16. As identified in Figure 6, although the background check process starts with the CBCB, staff from both Social Services’ legal division and its Investigations Branch may become involved in determining the risk an individual with an arrest‑only history presents to licensed facility clients.
Overview of the Arrest‑Only Background Check and Exclusion Processes
Sources: California State Auditor’s analysis of Social Services’ policies, state law, selected arrest‑only cases we reviewed, and interviews with Social Services’ staff.
Note: If at any time in this process an individual’s arrest results in a conviction, the investigation process is over and the case is routed back to the CBCB for evaluation of the conviction. We show this process in Figure 2.
* If a trial is pending for an individual applying to be present in a facility for the first time, the CBCB stops processing the case. The CBCB takes no further action unless the individual resubmits fingerprints after the conclusion of criminal proceedings.
As shown in Table 5, we determined that Social Services did not always meet its time frames for processing arrest‑only cases during fiscal years 2014–15 through 2015–16. For example, the legal division did not always meet its three‑business‑day goal for completing legal triage, which is the process of assessing whether to further investigate, clear, or deny clearance for an arrest‑only case. Our review found that in 480 of the 4,061 arrest‑only background check cases, or nearly 12 percent, legal triage took between four and 15 business days. According to the primary attorney responsible for legal triage, the process sometimes took longer than three business days because she was also assigned other cases that took priority over triage. The attorney stated that, to address this issue, her supervisor reassigned those other responsibilities in June 2016 so that she would not be pulled away from legal triage work. She also stated that Social Services had received funding to dedicate more staff to legal triage. As shown previously in Figure 6, the legal unit’s input can lead to a decision that an individual must be immediately excluded from a licensed facility. Therefore, swift decisions are essential.
To determine why some arrest‑only cases exceeded Social Services’ expected time frames, we reviewed 10 arrest‑only background check cases from fiscal years 2014–15 and 2015–16 that took a significant amount of time for Social Services to complete. Although Table 5 shows that delays also occur when Social Services makes and finalizes its decision, our testing of the 10 cases found that delays occurred primarily at the stages of identifying the case as arrest‑only and investigating the arrest. For example, Social Services expects staff to conduct a preliminary review of the RAP sheet within one day, but staff took between three and 46 days to review the RAP sheet in four of the 10 cases we reviewed. In two of these four cases, Social Services took more than 40 days to conduct a preliminary review of the RAP sheet and identify that the background check should follow the arrest‑only process.
For one of these two cases, the RAP sheet had an error that prevented the CBCB from knowing what facility the individual wanted to be associated with, and therefore prevented the CBCB from beginning to work on the case. For the second case, the chief of the CBCB explained that the RAP sheet did not automatically populate in the electronic system when the CBCB received it, and the CBCB did not identify the case as arrest‑only until after it received a second RAP sheet with the same arrest information. The chief stated that Social Services will look into why the RAP sheet did not automatically populate the way it should have.
Sources: California State Auditor’s analysis of data obtained from the Social Services’ Arrest‑Only and Mixed RAP (RAP sheets with arrests with no conviction and separate convictions) spreadsheets, interviews with Social Services’ staff, and Social Services’ arrest‑only procedures.
Note: As stated in Table 8, we determined that these tracking data are not sufficiently reliable because of pervasive weaknesses in general controls over Social Services’ information systems. However, we present these data in the report because they represent the best source available.
* We examined cases from fiscal years 2014–15 and 2015–16 because Social Services updated its arrest‑only background check procedures for arrest‑only cases in July 2014.
As we show in Table 5, the length of Social Services’ investigations exceeded its 30‑day goal for the majority of the investigations it conducted for arrest‑only cases in fiscal years 2014–15 and 2015–16. In the 10 cases we reviewed, we observed that the lengthiest portion of the arrest‑only background check process was generally the investigation of arrests to determine whether the individual would pose a risk to clients in licensed facilities, which Social Services expects should take 30 days. Although we found that Social Services’ delays in completing most of these investigations were reasonable because investigators were actively working on the investigation, we identified four cases in which Social Services could not demonstrate that the delays in the investigations were reasonable. For three of these cases, in which the investigation took between 37 to 186 days to complete, the investigator had retired, and in each case the investigator who took over the case or the retired investigator’s supervisor could not identify from the case files why the investigations took so long to complete. For the fourth case, which took 93 days to investigate, the investigator stated that after a discussion with her manager her cases were not reassigned while she took personal leave, because other investigators’ caseloads were already large and doing so would possibly have delayed their cases as well. We believe that, in this instance, Social Services should have reassigned the cases in the investigator’s absence. According to the assistant chief of the Investigations Branch, in October 2016 the Investigations Branch implemented new procedures and redistributed its workload to help reduce the length of arrest‑only investigations. These procedures include timelines for when to complete certain elements of the investigation and emphasize that investigators should not “hold on” to cases when they have not made progress in the investigation.
Social Services Does Not Appropriately Follow Up to Verify That Excluded Individuals Are No Longer Present at Facilities
As previously discussed, if its legal staff decides Social Services should deny an individual the ability to be present in a licensed facility because of an arrest on his or her RAP sheet, Social Services can choose to pursue an immediate exclusion. We reviewed six immediate exclusions from fiscal years 2013–14 through 2015–16 that appeared to take Social Services a substantial amount of time to complete. Although the legal process to finalize some of the exclusions took a substantial amount of time, we determined that Social Services issued an immediate exclusion order within five business days of the final legal recommendation.
However, Social Services’ policy requires that a regional office follow up with the facility within 30 days of the issuance of an exclusion order to verify that the excluded individual is no longer in the facility. The policy states that the verification will most often require a visit to the facility but may be obtained by other means if approved by a manager. Of the six cases we reviewed, Social Services conducted a facility visit in only two instances to verify that the individual was no longer in the facility. For two other cases, the regional office completed the verification through a telephone call. According to regional office staff, a manager over one of these cases approved the telephone call but did not document the approval.
In the second case, a regional office analyst told us there is no documentation of the manager’s approval allowing the exclusion verification to take place with a telephone call rather than a facility visit. However we do not consider verification by telephone call to be sufficient. For example, in this case the regional office made the verification call on the same day as the service took place for the order of immediate exclusion, and the regional office confirmed only that the executive director of the facility would remove the individual, not that the removal had actually taken place.
For the final two of the cases we reviewed for follow‑up, Social Services did not take action to verify that the excluded individuals were not in the facility. In one of these cases, an individual who worked in a group home that provides residential counseling for adolescents in crisis situations was arrested for assaulting his girlfriend. After Social Services served an immediate exclusion, the regional office did not verify that the individual was no longer present in the facility. According to the regional manager, the regional office did receive an email from the facility stating that the individual was no longer present in the facility; however, the email was not printed to keep in the facility’s file and the regional office no longer has the email. The regional manager further stated that it is not her region’s practice to confirm exclusion actions from the CBCB with a site visit if the facility emails or faxes the regional office to say that the individual is no longer present, because both the facility and the individual receive the exclusion order. This practice is contrary to Social Services’ policy, which states that exclusion verification will “most often” require a facility visit and may only “sometimes” be obtained by other means.
In the second case, the excluded individual was the son of a family child care home operator who was arrested for a variety of abusive actions against minors. The regional manager for this case stated that the regional office likely did not verify that the individual was not in the facility because of an unfortunate staff oversight. He explained that making facility visits to verify that excluded individuals are no longer present is a priority for his regional office and that making a visit for this case must have been accidentally missed by staff. According to the deputy director of the Licensing Division, after we raised concerns about the exclusion verification process, the division developed a task force to develop a standardized process for all regional offices to follow to verify that excluded individuals are not in licensed facilities. The task force met for the first time in early February 2017.
In some cases, Social Services takes legal action to finalize either exemption denial or exclusion decisions it has already made. It does this when an individual appeals the CBCB’s decision to deny his or her exemption request and also when Social Services decides to exclude an individual at the conclusion of an arrest‑only investigation, as shown previously in Figure 6. These actions can result in an individual being excluded from licensed facilities for a significant amount of time, up to and including the remainder of the individual’s life. We reviewed 17 cases related to excluding individuals from licensed facilities for which Social Services finalized an exclusion or exemption denial.
We observed that a portion of the time spent to complete the legal action on these cases was due to delays within the department’s control. For exclusions made after arrest‑only investigations as well as exemption denial appeals, the CBCB is responsible for preparing a summary of relevant details of the case (statement of facts) and providing it to the legal division. We determined that for six exclusion cases resulting from arrest‑only investigations, the CBCB took between four and 25 days to provide the statement of facts to the legal division, exceeding the two calendar days required by CBCB policy. The manager of the CBCB’s arrest‑only unit explained that only one staff member processes statements of facts to provide to the legal division for arrest‑only cases and, due to the high volume of cases and limited availability of the staff member, there can be a backlog of cases waiting to go to the legal division.
We also observed that some of the delay in these legal cases was due to the amount of time it took the legal division to serve the individual a statement of the acts or omissions the individual was charged with—known as an accusation—so that the individual could prepare a defense. A Social Services memo states that the legal division expects its attorneys to file an accusation within 120 days of the division’s receipt of the case. However, we observed that the legal division took between 126 and 573 days to file an accusation for 12 of the 17 exclusion and exemption denial cases we reviewed. For two exemption denial appeals, the legal division took more than one year to file the accusation, and for a third it took nearly one year to do so.
When we inquired about the delays in filing accusations in these cases, attorneys provided various explanations. Two attorneys stated that they did not file the accusation within 120 days of when the legal division received the case because there was a delay between the legal division’s receipt of the case and the case being assigned to them. According to a senior assistant chief counsel, once a case is received by the legal division, it generally takes about three to four weeks—21 to 28 days—for it to be assigned to an attorney. He attributed the delay to the fact that the division has only one intake analyst and stated that Social Services was working on redirecting resources to shorten the intake process. Attorneys also indicated that their caseloads and other higher‑priority cases prevented them from filing accusations in a timely manner for some of the cases we reviewed.
Attorneys also identified that the delays in filing the accusations were due to waiting to receive additional law enforcement and court documents. However, for two of the six cases in which the attorney attributed the delay to time spent waiting for additional documentation, we did not find evidence in the case file that the legal division actively solicited additional documentation for the duration of the delay. For example, in one case in which the legal division took about a year to serve the accusation, there is no evidence in the case file that the legal division either requested or received additional documents for nearly six months. The senior assistant chief counsel over legal enforcement acknowledged that there were some gaps in requests in these two cases, although he stated it was likely that additional requests had been made by telephone or fax but had not been documented.
As a result of delays in serving accusations that occur within its control, Social Services is preventing individuals from receiving a timely assessment of their case, which could find them not a risk to individuals in care facilities and allow them to be present in licensed facilities. The legal process for exclusions and exemption denials allows the individual to appeal Social Services’ decision to not allow that individual to be present in a licensed facility, which can ultimately result in the overturning of Social Services’ initial decision. For example, in one of the exemption denial cases we reviewed, at the conclusion of the legal process Social Services ultimately granted the individual a conditional exemption to work in a licensed facility.
Social Services’ Headquarters Does Not Track the Status of Some Legal Actions
Social Services’ headquarters does not monitor the timeliness of its regional offices’ legal actions to exclude registered sex offenders from licensed facilities. According to its procedures, Social Services’ headquarters is responsible for matching the addresses of registered sex offenders with licensed facilities, and it assigns matched addresses to the appropriate regional field offices to investigate. If the investigation determines that the registered sex offender resides in the facility, the investigator serves the registered sex offender and the facility an order of exclusion and informs the appropriate Social Services regional office of the outcome of the investigation. The regional office is then responsible for immediately beginning the legal action process.
Social Services uses a spreadsheet to track its matches and the results of field office investigations of registered sex offenders. However, the spreadsheet does not accurately reflect the status of the regional offices’ legal actions. We reviewed the only two cases between January and May 2016 in which Social Services determined that a registered sex offender was present or resided in a licensed facility, both of which occurred in April 2016.12 In July 2016, the spreadsheet did not show the current status of these two actions. Instead, it indicated that the initial legal action to revoke the facility’s operating license for one case was still in progress, and it did not identify the status of the legal action for the other case.
For both of these cases, the field offices ensured that the registered sex offenders knew they were no longer allowed to be present at the licensed facility. One regional office manager explained to us that it did not pursue legal action immediately because the registered sex offender was no longer a risk because the licensed facility closed and, therefore, was not a top priority. The other regional manager explained that her office needed to discuss the case with legal counsel and that the regional office made a site visit to confirm that the registered sex offender was no longer in the facility. The Licensing Division’s deputy director stated that headquarters does not track the regional offices’ legal actions because the regional offices are ultimately responsible for tracking these cases for their geographic regions. However, because headquarters is responsible for matching the addresses of registered sex offenders to licensed facilities and tracking the results of the investigations, it would be a logical next step for it to ensure that the regional offices pursue the necessary legal actions. Without such tracking, Social Services lacks assurance that the regional offices have fulfilled their responsibility to take legal actions against registered sex offenders present in licensed facilities. If Social Services had monitored the regional offices, it would have been aware that these legal actions were not moving forward and could have followed up with the regional offices to make sure they fulfilled their responsibility in these cases.
To ensure that Social Services receives criminal history information within 14 days of receiving an individual’s fingerprint information, as state law requires, by July 2017 Justice should analyze its process, including delayed transmissions, implement changes to address problems it identifies, and regularly measure itself against the requirement to determine whether it is meeting its statutory requirement.
To ensure that it has complete disposition information, Justice should coordinate with the Judicial Council at least once a year to share information about court reporting gaps and to determine the need to distribute additional information to courts about reporting requirements and the manner in which to report. In addition, Justice should reconvene its advisory committee and meet on a regular basis to discuss, at a minimum, improving the frequency and timeliness with which courts report dispositions to Justice and law enforcement agencies report arrest information to Justice.
To ensure that it is receiving all arrest information from law enforcement agencies, at a minimum, Justice should consider trends in the number of arrest reports each law enforcement agency sends it and the number of reports that it might expect to receive from an agency given the agency’s size, location, and reporting history. Whenever Justice identifies a law enforcement agency that it determines may not be reporting all required information, it should request that the agency forward all required arrest information.
To ensure that Social Services processes criminal history reviews and legal actions as quickly as possible so that delays do not impede individuals whose presence in a licensed facility would pose no risk, by July 2017 the department should establish formal time frames and monitor the stages of the following processes against those time frames:
- Exemption process: At a minimum, Social Services should establish time frames for notifying individuals and facilities that a criminal history exemption is required, evaluating information it receives, and making decisions on exemptions. As part of monitoring, Social Services should identify when cases become backlogged and work to swiftly conclude those exemption reviews. In addition, if it determines that its staffing levels are insufficient to meet its time frames, it should seek additional resources.
- Legal process: At a minimum, Social Services should establish time frames for assigning cases to attorneys. Further, it should regularly monitor itself against the 120‑day time frame for serving an accusation after the legal division receives a case.
To ensure that it can accurately monitor its pending cases, by May 2017 Social Services should develop a work plan to identify and address its exemption process backlog by September 2017. At a minimum, the work plan should include reviewing the cases its database identifies as open without activity 150 days after receiving a RAP sheet and closing the cases in its database where Social Services already performed its final exemption decision action.
To ensure that Social Services processes arrest‑only cases as quickly as possible, it should immediately follow its arrest‑only and investigation policies, and monitor against those time frames for the various stages of the process.
To ensure that its regional offices consistently verify that excluded individuals are no longer present at licensed facilities, at a minimum, Social Services should immediately revise its policy to require that regional offices conduct site visits after it issues exclusion orders. In addition, it should formalize the verification process it develops in its procedures, train all regional offices, and monitor compliance with the process.
To ensure that regional offices pursue legal actions in a timely manner, by July 2017 Social Services’ headquarters should identify a resource—such as a unit—to monitor and follow up with the regional offices regarding the status of their legal actions related to substantiated address matches of registered sex offenders at licensed facilities.
OTHER AREAS WE REVIEWED
To address the audit objectives that the Joint Legislative Audit Committee (Audit Committee) approved, we reviewed the subject areas in Table 6. In the table, we indicate the results of our review and any associated recommendations we made that are not discussed in other sections of the report.
|Outdated Background Check Procedures|
|The CBCB Does Not Offer Training to Its Exemption Analysts Frequently Enough|
|The CBCB Is Unable to Locate Some Exemption Files|
|Social Services Funds the Background Check Process Using the State’s General Fund and Various Grants|
|Social Services Had Incomplete Nonexemptible Crimes Guidance|
|We Did Not Identify Issues with Social Services’ Investigation of Matched Registered Sex Offenders’ Addresses|
Sources: California State Auditor’s analysis of Justice’s and Social Services’ records and interviews with key staff members about the subject areas identified in the table.
SCOPE AND METHODOLOGY
The Audit Committee directed the California State Auditor (State Auditor) to review Social Services’ background check procedures. Specifically, we were directed to review Social Services’ procedures, training, and funding; the timeliness of the background check process; its efforts to resolve instances involving address matching of registered sex offenders and its licensed facilities; and the information Justice is sending to Social Services as a part of the background check process. Table 7 lists the objectives that the Audit Committee approved and the methods used to address those objectives.
|1||Review and evaluate the laws, rules, and regulations significant to the audit objectives.||Reviewed relevant state laws and regulations.|
|2||Assess whether Justice is sending all of the necessary and appropriate information to Social Services as a part of the background check performed by the Licensing Division.||
|3||For the most recent three fiscal years, evaluate the timeliness of the background check process, including the Licensing Division’s CBCB’s criminal history reviews and decisions. If this process is not timely or backlogs exist, determine the cause for this condition, including whether staffing levels are a contributing factor.||
|4||Determine whether Social Services has provided clear policies and procedures and adequate training for those involved in the background check process, including the granting of exemptions.||
|5||Evaluate whether Social Services has developed and implemented a policy, and associated training, for receiving and appropriately responding to notices of criminal history received after the initial background check.||
|6||Determine whether Social Services has established, and is adhering to, reasonable time frames for conducting initial and, if necessary, follow‑up investigations and removing from its licensed facilities individuals found to have prohibited criminal history.||
|7||Determine the status of Social Services’ efforts to detect and resolve instances where the addresses of registered sex offenders match the addresses of some of its licensed facilities.||
|8||Evaluate Social Services’ responses to individuals who do not provide required records.||
|9||Examine how the background check process is funded and whether Social Services requires applicants, licensees, and individuals to pay all appropriate fees prior to granting license clearances.||
|10||Determine the status of applicable recommendations from previous State Auditor reports.||
|11||Since its effective date of January 2015, determine whether Social Services has implemented and is adhering to AB 2632 prohibiting granting an exemption for certain arrests prior to an investigation or clearance occurring.||
|12||Review and assess any other issues that are significant to the audit.||
Sources: State Auditor’s analysis of Joint Legislative Audit Committee audit request 2016‑126, and information and documentation identified in the table column titled Method.
Assessment of Data Reliability
In performing this audit, we obtained electronic data files extracted from the information systems listed in Table 8. The U.S. Government Accountability Office, whose standards we are statutorily required to follow, requires us to assess the sufficiency and appropriateness of computer‑processed information that we use to support findings, conclusions, or recommendations. Table 8 describes the analyses we conducted using data from these information systems, our methods for testing, and the results of our assessments. Although these determinations may affect the precision of the numbers we present, there is sufficient evidence in total to support our audit findings, conclusions, and recommendations.
|INFORMATION SYSTEM||PURPOSE||METHOD AND RESULT||CONCLUSION|
Applicant Processor as of June 30, 2016
|To calculate the number and timeliness of responses to criminal history inquiries.||We performed data‑set verification procedures and found no errors. Further, we performed electronic testing of key data elements and did not identify any significant errors. We did not perform accuracy or completeness testing on these data because the source documentation is located at multiple locations throughout the State, making such testing cost‑prohibitive.||Undetermined reliability for these audit purposes. Although this determination may affect the precision of the numbers we present, sufficient evidence exists in total to support our audit findings, conclusions, and recommendations.|
Criminal Record Update Section’s and Problem Resolution Section’s Monthly Utilization Reports from November 1, 2015 through October 31, 2016
|To calculate the number of staff who worked on making criminal history information records complete and the number of hours staff spent performing this work.||
||Undetermined reliability for this audit purpose. Although this determination may affect the precision of the numbers we present, sufficient evidence exists in total to support our audit findings, conclusions, and recommendations.|
Licensing Information System as of July 3, 2016
Caregiver Background Check system as of July 18, 2016
Arrest‑Only and Mixed RAP spreadsheets as of July 21, 2016
| ||We performed data‑set verification procedures and found no errors. Further, we performed electronic testing of key data elements and did not identify any significant errors. We reviewed existing information to determine what is already known about the data and found that prior audit results indicate pervasive weaknesses in the general controls over Social Services’ information systems.||Not sufficiently reliable for these audit purposes. Although this determination may affect the precision of the numbers we present, sufficient evidence exists in total to support our audit findings, conclusions, and recommendations.|
Administrative Actions Exchange Log tracking spreadsheet from administrative action data for the period of July 2014 through June 2016
| ||We performed data-set verification procedures and electronic testing of key fields and found no errors. We reviewed existing information to determine what is already known about the data and found that prior audit results indicate pervasive weaknesses in the general controls over Social Services’ information systems.||Not sufficiently reliable for these audit purposes. Although this determination may affect the precision of the numbers we present, sufficient evidence exists in total to support our audit findings, conclusions, and recommendations.|
California Department of Public Health, Department of Health Care Services, Emergency Medical Services Authority, and Social Services administrative action reports for the period of July 2015 through June 2016
|To determine the number of administrative actions the various departments shared with Social Services, as well as how many administrative actions Social Services shared with the various departments.||We performed data-set verification procedures and found no errors. Further, we performed electronic testing of key data elements and did not identify any significant errors. We reviewed existing information to determine what is already known about the data and found that prior audit results indicate pervasive weaknesses in the general controls over Social Services’ information systems.||Not sufficiently reliable for this audit purpose. Although this determination may affect the precision of the numbers we present, sufficient evidence exists in total to support our audit findings, conclusions, and recommendations.|
Investigations Branch’s Registered Sex Offender tracking spreadsheet as of July 1, 2016
|To make a selection of registered sex offenders for review whose addresses matched those of licensed facilities from January 2016 through May 2016.||This purpose did not require a data reliability assessment. Instead, we gained assurance that the population was complete by comparing the total number of records in the spreadsheet to totals matches reported to the Investigations Branch by Social Services’ Information Systems Division.||Complete for this audit purpose.|
Source: State Auditor’s analysis of various documents, interviews, and data from the entities listed in the table.
We conducted this audit under the authority vested in the California State Auditor by Section 8543 et seq. of the California Government Code and according to generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives specified in the Scope and Methodology section of the report. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.
ELAINE M. HOWLE, CPA
Date: March 14, 2017
Bob Harris, MPP, Project Manager
Linus Li, CPA, CIA
Myriam K. Czarniecki, MPA, CIA
Michaela Kretzner, MPP
Kelly Reed, MSCJ
Michelle J. Baur, CISA, Audit Principal
Lindsay M. Harris, MBA, CISA
Richard W. Fry, MPA, ACDA
J. Christopher Dawson, Sr. Staff Counsel
For questions regarding the contents of this report, please contact Margarita Fernández, Chief of Public Affairs, at 916.445.0255.
3 Social Services has delegated its authority to 39 counties to perform certain licensing duties for foster family homes and to two counties to perform certain licensing duties for family child care homes, such as performing background checks for licensed facilities. These county agencies may also recommend that Social Services take administrative actions against individuals. Go back to text
4 We reviewed five exemptions for individuals with either an arrest or a conviction after Social Services granted an earlier exemption. One of these earlier exemptions we reviewed was from fiscal year 2002–03. Go back to text
5 If a facility does not request an exemption on behalf of an individual or chooses not to hire the individual after learning of his or her criminal history, the individual may request an exemption on his or her own behalf. The CBCB does not require individuals requesting exemptions on their own behalf to submit a criminal history self‑disclosure form. This practice is contrary to the CBCB’s policy and regulations. Go back to text
6 Approximately one‑third of this cost is attributable to a single law enforcement agency, the Los Angeles County Sheriff’s Department, which is the only law enforcement agency in the State that Social Services paid to obtain arrest records during fiscal year 2015–16. Social Services paid the remaining two‑thirds of the cost to courts and out‑of‑state law enforcement agencies. Go back to text
7 However, state law requires that Social Services obtain California and federal criminal history information before issuing a license or certificate of approval to any individual to operate a foster family home or certified family facility. Go back to text
8 Social Services has 27 regional offices that are each assigned a geographic jurisdiction for administering and ensuring the compliance of licensed facilities for the Child Care Program, Children’s Residential Program, and Adult and Senior Care programs. Go back to text
9 In general, cite‑and‑release situations occur when an individual who is arrested for an infraction or misdemeanor receives a citation—a written notice to appear in court for a violation—with the individual being released upon giving his or her written promise to appear. For detention‑only situations, in some circumstances specified in state law, an arrest will not result in a prosecution and the disposition will be deemed a detention only. Go back to text
10 California State Auditor reports 2000‑102 (August 2000), Department of Social Services: To Ensure Safe, Licensed Child Care Facilities, It Needs to More Diligently Assess Criminal Histories, Monitor Facilities, and Enforce Disciplinary Decisions, and 2002‑114 (August 2003), Department of Social Services: Continuing Weaknesses in the Department’s Community Care Licensing Programs May Put the Health and Safety of Vulnerable Clients at Risk. Go back to text
11 We chose to use the median, which is the middle value in a series of numbers, due to the extreme outliers in the caseload data. The median, unlike the average, is not affected by outlier values and therefore provides a more realistic picture of analyst caseload. Go back to text
12 We reviewed cases from between January and May 2016 because we determined that Social Services’ Licensing Division had fully implemented two recommendations from our previous audit related to matching and tracking the addresses of registered sex offenders based on its December 2015 response to the recommendations. Go back to text