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Report Number : 2016-126

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

Responses to the Audit

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California Department of Social Services

February 23, 2017

Ms. Elaine M. Howle, CPA
State Auditor
621 Capitol Mall, Suite 1200
Sacramento, CA 95814

Subject: Response to Report 2016-126

Dear Ms. Howle:

SUBJECT: CALIFORNIA STATE AUDITOR'S OFFICE REPORT 2016-126:
CALIFORNIA DEPARTMENT OF SOCIAL SERVICES: ITS CAREGIVER BACKGROUND CHECK BUREAU LACKS CRIMINAL HISTORY INFORMATION IT NEEDS TO PROTECT VULNERABLE POPULATIONS IN LICENSED CARE FACILITIES

This letter provides the California Department of Social Services' (CDSS) initial response to the California State Auditor's Office draft of the above entitled report.

If you have any questions concerning the enclosed CDSS response, please contact me at (916) 657-2598 or Cynthia Fair, Audits Bureau Chief, at (916) 651-9923.

Sincerely,

 

WILL LIGHTBOURNE
Director

Encosure

California Department of Social Services (CDSS)
RESPONSES TO AUDIT RECOMMENDATIONS

California State Auditor (CSA)

Audit #:                            2016-126

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

Recommendations for Social Services:

Recommendation 1:

To ensure that it more effectively shares, receives, and uses administrative action information, Social Services should do the following:

CDSS Initial Response: 

1

CDSS agrees that the timely sharing and consideration of administrative actions is vitally important to ensuring that individuals are prevented from moving between facility types as necessary to protect the health and safety of persons in care. The Department is updating all its data sharing agreements with other agencies to be indefinite, and to include timeframes for data exchange of not less than once per month. These agreements will be complete by July 2017.

To ensure timely sharing of information, the Department will disseminate, not less than once per month, to other agencies all administrative actions, including the department’s and those reported by other agencies, including counties. The Department has also already directed its exemption analysts to document that they have reviewed and considered any administrative actions as part of their background check reviews.

Recommendation 2:

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.

CDSS Initial Response: 

CDSS agrees with this recommendation.  By April 2017, the Department will have revised the procedures for processing other department administrative actions by analysts as recommended. These revisions include specific timeframes for the various steps of the process.  By June 2017, any needed changes to the Evaluator Manual will be identified, staff will have been trained, and the process implemented.

 

Recommendation 3:

To comply with state law and better protect vulnerable populations in California’s licensed care facilities, Social Service 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 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.

CDSS Initial Response: 

2
CDSS has an extensive process for reviewing the criminal background of individuals seeking to work in community care facilities including information regarding arrests, misdemeanors and felonies.  The Department’s current process focuses on evaluating risks posed by criminal offenders, and the Department believes that it is neither feasible nor effective at this time to include review of thousands of infractions.  Penal Code section 19.8 provides legislative intent that most criminal infractions shall not be used to deny licensure.   

Recommendation 4:

To comply with state regulations and its policies, the Caregiver Background Check Bureau (CBCB) should immediately take the following actions:

CDSS Initial Response: 

CDSS agrees with this recommendation.  All necessary documentation will be required prior to Analyst action.  To monitor the implementation of this policy, beginning in March 2017, managers in the Caregiver Background Check Bureau will regularly review samples of cases from their staff to ensure that the case files contain complete information that supports exemption decisions at the time the exemption is approved, including decision summaries and all supporting documents.  At the Bureau level, expectations and accountability for complete decision summaries and supporting documents will be reinforced through Bureau and unit meetings and regularly scheduled mandatory exemption analyst trainings. Work has also already begun to update the criminal record exemption letters to applicants to identify the specific documentation necessary to complete the exemption analysis.

Recommendation 5:

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.

CDSS Initial Response:

3
CDSS agrees with this recommendation and in February 2017, issued an All Staff Memo to the exemption analysts instructing them to request arrest reports from a law enforcement agency when an exemption request is received.  

Recommendation 6:

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:

CDSS Initial Response: 

4

CDSS agrees that all applicants should submit a self-disclosure form.  The Department is implementing a change to the procedures for conducting criminal exemptions to require that self-disclosure forms are submitted to the Department (in addition to the licensee, if applicable).  Currently these forms are only submitted to facility licensees, who then forward to the Department any self-disclosed criminal record history.  In addition, by April 2017, the Department will have also notified providers of the new requirement to provide the Department with all self-disclosure forms.  By requiring that applicants send the forms directly to the Department, CDSS will receive and can act on this information in a more timely and consistent manner.

By March 2017, the Regional Offices will provide the self-disclosure forms to the exemption analysts for review prior to any exemption being granted. 

Recommendation 7:

To ensure that Social Services processes criminal history reviews, investigations, 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:

 

CDSS Initial Response: 

CDSS agrees with this recommendation, and has committed to making continued improvements to the process for conducting criminal record exemptions.  By May 2017, the Department will develop a formal work plan that will identify specific timeframes for processing criminal history reviews, investigations and legal actions.  The plan will include tracking and monitoring activities and progress notes.  All managers will use the established timeframes to assess analyst workloads and training needs.  Additionally, this process will include the provision of quarterly reports to the Deputy Director.  These processing timeframes will be added to all training materials and will be communicated to all staff via an All Staff Memo. 

The Department has already implemented changes to its case intake and legal triage process; tripling the staff assigned.  The department had previously identified the need for updated procedures and monitoring and several new procedures had been developed which will be fully implemented as of March 2017.
 
The Department also agrees with the recommendation to establish internal management time frames for assigned attorneys to cases and that cases should be filed within 120 days. The updated procedures will clearly set forth expectations and require that if the timeframe is exceeded, the reason for the variance must be documented and Supervisor approval must be noted.

 

Recommendation 8:

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 after 150 days of receiving a RAP sheet and closing the cases in its database where Social Services already performed its final exemption decision action.

CDSS Initial Response: 

5

CDSS agrees that implementing a formal process to monitor pending cases is necessary.  Establishment of processing timeframes and regular monitoring as described earlier will effectively identify pending cases and prioritization of analyst workloads.  System data quality issues identified during the audit will also be addressed, which will provide the program a more accurate picture of existing or impending backlogs. As recommended, a work plan will be initiated by September 2017, to address the current backlog.  Data system change requests will be identified and initiated prior to May 2017.

Recommendation 9:

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 processes.

CDSS Initial Response: 

CDSS agrees with this recommendation and initiated the current arrest only process to ensure that a person’s ability to work or be licensed is not delayed.  The Department’s arrest-only processing procedures must, above all, ensure the safety of vulnerable care facility residents and children. As a result, the Department is currently requiring managers in the Caregiver Background Check Bureau to actively monitor these cases.

6

It is important to note that some delays are beyond the Department’s control.  A thorough evaluation of prior arrest conduct involves obtaining arrest reports, locating and interviewing witnesses, and evaluated any mitigating/rehabilitative evidence.  The Department must request record information (arrest reports) from over 500 law enforcement jurisdictions in California alone.  Each has its own policies and procedures for providing this information, including whether fees must be paid by the state in advance, record retention and destruction polices, and timelines for responding to records requests. As a result of past delays, the Department has been required to utilize the subpoena process to obtain records from many jurisdictions.

 

Recommendation 10:

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 the exclusion order.  In addition, it should formalize the verification process it develops in its procedures, train all regional offices, and monitor compliance with the process.

CDSS Initial Response: 

CDSS agrees with this recommendation to establish a process to ensure that excluded individuals are no longer present at licensed facilities.  Effective April 1, 2017 in person visits will be made to all facilities following an exclusion order.  During the month of March, staff training and monitoring procedures will be established to ensure compliance.

Recommendation 11:

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.

CDSS Initial Response: 

CDSS agrees with this recommendation and by July 2017, each Program Administrator will monitor, track and report to the Deputy Director the status of the legal cases in their program. 

Other Areas Reviewed Additional Recommendations:

Additional Recommendation 1:
The CBCB should update its procedures manual so that it is a centralized document that staff can use for the most up-to-date guidance in performing their duties.  In addition, it should update the CBCB-specific policies and combine them into a centralized document.

CDSS initial response:
This recommendation has already been partially implemented, and will be fully implemented by July 2017.  The Bureau is reorganizing the SharePoint site where the procedures are located to assist staff with easily locating information.  The Evaluator Manual is being revised and where appropriate internal policies are being combined. 

 

Additional Recommendation 2:

To ensure that its procedures are consistent and clear, the Investigations Branch should update its arrest-only case procedures and develop procedures for subsequent arrest-only cases.

CDSS initial response:

7

In October 2016, the Investigations Branch fully implemented the procedure changes to include information related to subsequent arrest-only cases.

 

Additional Recommendation 3:
The CBCB should follow its new schedule for its refresher training sessions on the exemption process and continue to offer sessions as managers and staff identify a need.

The CBCB’s arrest-only unit should develop and periodically conduct trainings on the aspects of the arrest-only process for which analyst have not yet received training.

CDSS initial response:

3
These recommendations have been implemented in February 2017. The Caregiver Background Check Bureau has developed refresher training which is provided bi-monthly.  The arrest procedures have been developed and incorporated into the refresher training.  There will also be a separate training specific for the arrest unit to be held in April 2017.

Additional Recommendation 4:

The CBCB should implement its planned changes for ensuring that files in the file room are in the appropriate place and filed correctly.

CDSS initial response:

3
This recommendation has been fully implemented in January 2017.  Additional shelving was installed in the file room which houses all case files that are appropriately filed.  With the filling of vacant Office Technician positions, the Caregiver Background Check Bureau is redirecting one existing Office Technician to be the designated File Clerk to ensure the case files are appropriately tracked in and out of the file room.

 

 






Comments

CALIFORNIA STATE AUDITOR’S COMMENTS ON THE RESPONSE FROM SOCIAL SERVICES

To provide clarity and perspective, we are commenting on the response to our audit from Social Services. The numbers below correspond to the numbers we placed in the margin of Social Services’ response.

1

 Social Services states that it is updating its interagency agreements to specify a time frame for data exchange of not less than once per month. However, this does not sufficiently address the concern we raise in the report. As we describe in the report, and as shown in Figure 4, in fiscal year 2015–16, Social Services and the four other departments did not always promptly submit administrative actions to each other. During our review, we observed several instances in which departments did not transmit information about administrative actions to Social Services until more than one month after the actions became final. As a result, our recommendation is for the 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. Amending its agreements in this way would ensure all agencies transmit information soon after the administrative action becomes final, thus minimizing the risk to vulnerable populations in its licensed care facilities. We look forward to learning of Social Services’ revision to the interagency agreements to address our concern in its 60‑day, six‑month, and one‑year responses to this recommendation.

2

We shared our concerns about how Social Services handles infraction convictions multiple times with Social Services throughout the audit. As we describe in the report, we observed that some infractions Social Services receives are related to theft, selling liquor to a minor, and leaving a child under six years of age in a vehicle without supervision. We stand by our recommendation and believe that Social Services’ reference to Penal Code section 19.8 is misleading. If, as Social Services believes, there were legislative intent that most criminal infractions shall not be used to deny licensure, the clearest way to express that intent would have been to use the term infraction in Health and Safety Code section 1522(a)(1), which identifies the crimes that Social Services must evaluate. However, we note that the Legislature has consistently limited the exception to “a crime other than a minor traffic violation” since it first enacted the statute in 1973. Finally, as we recommend in the report, 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 a change to state law.

3

Social Services refers to an action it has only recently taken. We look forward to learning more about Social Services’ implementation of this recommendation and receiving supporting documentation in its 60‑day response to this report.

4

Social Services asserts that self‑disclosure forms are submitted to facility licensees who then forwards to Social Services any self‑disclosed criminal record history. We acknowledge in the report that this is what Social Services’ policy suggests should occur. However, as we discuss in the report, this process is not functioning as intended. Specifically, staff at Social Services informed us that some regional offices do not collect self‑disclosure forms for individuals applying for employment. In order for the department to comply with state law, Social Services must obtain a self‑disclosure form from any individual it allows to be present in a licensed facility in advance of receiving that individual’s federal criminal history.

5

Social Services’ response suggests that our report presents inaccurate information about its backlogged cases. In the report, we state our conclusion that as of June 30, 2016, the CBCB’s database showed that more than 2,500 open cases were backlogged. We stand by the accuracy of this conclusion. As we note in the report, when we reviewed 10 backlogged cases, we found the status of some cases to be troubling. For example, we found two individuals among these 10 backlogged cases that were present in licensed facilities without adequate background checks for seven and 13 years, respectively.

6

Although Social Services is correct that some delays in the arrest‑only investigation process are beyond its control, the delays we discuss in our report, are within Social Services control, such as delays in conducting preliminary reviews of RAP sheets. We look forward to reviewing documentation as to how Social Services is following its arrest‑only policies and monitoring against associated time frames in its 60‑day, six‑month, and one‑year responses.

7

We agree that Social Services’ Investigations Branch updated its procedures to address how it handles subsequent arrest‑only cases. Our concern was that Social Services did not document its process for subsequent arrest‑only cases, as it did for initial arrest‑only cases. Therefore, we have made adjustments to the text of our report and the corresponding recommendation.


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Department of Justice

February 23, 2017

Elaine M. Howle, CPA
California State Auditor
621 Capitol Mall, Suite 1200
Sacramento, CA  95814

Re:       CSA Audit Report 2016-126

Dear Ms. Howle,

The Department of Justice (DOJ) has reviewed the California State Auditor’s (CSA) draft CSA Audit Report 2016-126 and appreciates the opportunity to respond to the report. 

1

CSA has made recommendations to both Justice (DOJ) and the Legislature with regard to criminal record background checks.  By July 2017, DOJ will be charged with ensuring it sends Social Services criminal history information within the 14-day timeframe required by state law.

In response to the CSA’s specific recommendations to DOJ identified in the draft report, DOJ submits the following responses:

CSA Recommendation: 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 exemption reviews.

DOJ Response:

DOJ agrees with this recommendation. Express authority from the Legislature is needed before DOJ can implement the recommendations made by the CSA.

CSA Recommendation: 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:

DOJ Response:

DOJ agrees with the recommendation and is committed to convening a group of the largest applicant agency stakeholders to examine the fiscal aspects of State participation in the federal RAP back program. However, additional resources and funding will be needed to enable DOJ to adequately assess and determine the full impact of statewide participation in the program.

CSA Recommendation: To ensure that Social Services receives all appropriate criminal history information, Justice should immediately update its procedures to accurately reflect that staff should disseminate non-referable arrests when there is a corresponding conviction and ensure that staff follow these updated procedures.

DOJ Response:

2

DOJ agrees with the recommendation and completed the update to its procedures to reflect the recommendation of the CSA—provided to the CSA via email on February 15, 2017.

CSA Recommendation: 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.

DOJ Response:

DOJ agrees with this recommendation and has begun analyzing its program processes, including delayed fingerprint image transmissions, to respond to a Social Services background check request within 14 days of receiving an individual’s fingerprint information, as state law requires.

CSA Recommendation: 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 convene 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.

DOJ Response:

DOJ agrees with the recommendation and has started planning for an Attorney General’s Advisory Committee meeting in the Spring/Summer of 2017.

Over the course of several years, DOJ has explored various means to identify, retrieve, and match incoming criminal record information as a way to improve the completeness of the State’s criminal history repository.  In addition to refining arrest to disposition matching criteria, DOJ has worked hand-in-hand with courts, local enforcement agencies, and district attorney offices to obtain complete criminal record information.  Process improvement efforts have included both manual (business) and electronic processes.

CSA Recommendation: 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 is determines may not be reporting all required information, it should request that the agency forward all required arrest information.

DOJ Response:

3

DOJ is not currently charged with enforcing arrest and disposition-reporting requirements imposed on the courts and local enforcement agencies, nor does it have a program or resources in place or any practical means of ensuring that the courts and local enforcement agencies report arrests and dispositions in a timely manner.

CSA Audit Report 2016-126 states, “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.”  The Penal Code obligates courts and local enforcement agencies to report arrests and dispositions to DOJ.  DOJ is required to collect, compile, and disseminate that information, but has no obligation to ensure that courts and local enforcement agencies comply with their reporting obligations in the first instance.  Nor does DOJ have any practical means of ensuring that courts and local enforcement agencies report arrests and (complete) dispositions on a timely basis.  DOJ is nevertheless open to any statewide reforms that would improve compliance system-wide, and already works with the Judicial Council and the law enforcement community to improve the flow of information. 

Again, thank you for the opportunity to review and comment on the draft audit report. If you have any questions or concerns regarding this matter, you may contact me at the telephone number listed above.

Sincerely,

               Joe Dominic, Director
California Justice Information Services Division

cc:   Sean McCluskie, Chief Deputy Attorney General
Paul Stein, Deputy Attorney General
Tammy Lopes, Director, Division of Administrative Support
Victoria Sawyer, Special Assistant to the Chief Deputy





Comments

CALIFORNIA STATE AUDITOR’S COMMENTS ON THE RESPONSE FROM JUSTICE

To provide clarity and perspective, we are commenting on the response to our audit from Justice. The numbers below correspond to the numbers we placed in the margin of Justice’s response.

1

It is unclear what Justice means by this statement. Justice states that by July 2017 it will be charged with ensuring it sends Social Services criminal history information within the 14‑day time frame. However, as it acknowledges in its response, this time frame is already required by state law.

2

Justice’s new procedures address the concern we raised in the report., that Justice was removing nonreferable arrests from RAP sheets it sent Social Services when there was an associated conviction. We look forward to reviewing documents supporting its efforts to ensure that staff follow these updated procedures in its 60‑day, six‑month, and one‑year responses.

3

Justice’s response repeats perspective that we already included in our report. We acknowledge in the report. that Justice does not have a statutory requirement to monitor courts’ compliance with their reporting requirement. We also state in the report. that law enforcement agencies are required to report arrest information to Justice. Finally, in the report. we include a deputy attorney general’s perspective that Justice is not obligated to ensure courts and local law enforcement agencies comply with their reporting obligations. However, as we state in the report., as the recipient of the information reported by courts and local law enforcement agencies, Justice is the only entity that is aware of the extent to which courts and local law enforcement agencies are reporting and the timeliness of the reporting. Therefore, Justice needs to participate in any effort to identify noncompliance with state law and remind those courts and law enforcement agencies that may not be reporting, or that may not be promptly reporting, about their obligations.



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