Background Check Bill May Affect Exchange Deadline

Covered California board members say the timely rollout of the health insurance exchange relies heavily on two bills in the state Legislature spelling out the details of hiring 20,000 health reform workers. The board expressed concern about controversy surrounding one of the bills that excludes felons.

The bills — SB 509 and AB 1428 — would require new employees to undergo background checks and fingerprinting and disqualify any applicant with a felony conviction.  

Though both are expected to pass this summer, AB 1428, authored by Assembly member Connie Conway (R-Tulare), is being met with resistance. Health policy experts and civil rights groups are taking issue with the provision in the bill prohibiting the state from hiring new employees with a felony conviction, arguing that it violates potential employees’ equal opportunity employment rights.

“The reason we got involved in the background check issue in the first place is because there are great job opportunities under the new health exchange,” said Carla Saporta, health policy director at the Greenlining Institute, a racial justice and advocacy organization based in Berkeley. “We work with many people who may have committed a crime in their past, but since have become a valuable member of their community, have contributed to society and have been rehabilitated. We believe these people should have access to these employment opportunities.”

Saporta said her organization is actively speaking out against Conway’s legislation, arguing that it violates the U.S. Equal Opportunity Employment Commission and specifically, the Civil Rights Act of 1964, a law enforced by the commission.

“We want to make sure the background checks are fair and equitable,” Saporta said. “AB 1428 does not take into account the time passed since the person’s offense, the conduct thereafter, completion of the sentence and nature of the job sought — which is required under the Civil Rights Act.”

Proponents of the legislation say fingerprinting of new employees and conducting background checks are critical to ensure consumer protections. Conway went further, noting that her law is important because health benefits exchange workers, called “assisters,” will have access to sensitive data, such as health records and financial information.

“We must ensure that California’s strong privacy protections are applied to those who are working with sensitive data about citizens,” Conway said in a news release. “Passing our legislation is essential to protecting Californians from becoming victims of identity theft when they sign up for health coverage and ensure that there are no incidents of fraud in our new state health care program.”

There seems to be consensus that the second bill — SB 509 co-authored by Senators Mark DeSaulnier (D-Concord) and Bill Emmerson (R-Redlands) — will pass without much resistance. It would require health exchange officials to submit fingerprint images and related criminal background information for prospective Covered California employees to the Department of Justice for review. An amendment is in the works to clarify that the federal guidance for background checks  applies only to applicants who would have access to sensitive health care information, according to legislative staffers.

Legal and advocacy organizations clarified that their concern lies with the potential disqualification of employees with a criminal past.

Both bills require a two-thirds vote. If passed by the Legislature and signed by Gov. Jerry Brown (D), the laws would take effect immediately, officials said. Both are “urgency” bills.

‘We’ve Got a Deadline To Meet’

Robert Ross — a Covered California board member and CEO of California Endowment — said he and other health experts deliberated the details of AB 1428 for months before deciding to move forward with the proposal.

“We’ve got a deadline to meet, and the clock is ticking,” Ross said. “We on the board are managing a few different tensions — one is speed. We’ve never been asked to implement something as big as the health care law so quickly, so we’re working as hard as we can to get thousands of workers hired and trained by Oct. 1.”

Ross said delaying the passage of the bills could derail rollout of the state’s health insurance exchange, where an estimated 5.3 million Californians will be eligible to purchase health insurance later this year. 

Ross said he raised questions in early March about disqualifying some populations from being eligible for work in the exchange.  

“My concern was that we didn’t impede on the job opportunities for someone who may have had trouble with the law but who has turned their life around,” Ross said. “It’s clear that many of these communities — whether they’re in East Los Angeles, or Central Fresno, or East Oakland, or the Iron Triangle in Richmond — need access to decent jobs. Career pathways are already severely limited for many of the people who live there.”

Maurice Emsellem, co-director of policy for the National Employment Law Project’s Oakland office, echoed the concerns of Covered California’s board, noting that balancing employment rights with concerns about patient privacy is critical. His top concern, he said, is ensuring that AB 1428 meets legal requirements under the state’s equal employment laws and that there are job opportunities for populations who need them most.

“The Equal Opportunity Employment Commission, the federal agency that enforces discrimination laws, has said that criminal background checks have a disparate impact on people of color and that employers can’t have blanket restrictions on who they hire,” Emsellem said. “They have to look at the nature of the offense. That’s why we think it’s important to have stronger standards and an appeal procedure for someone who has a record, so they have the opportunity to show they’ve been rehabilitated.”

Emsellem pointed to higher unemployment rates in underserved communities. The most recent employment data show that in Oakland, for example, the city’s jobless rate is 10.8%, compared to the Alameda County average of 7%. A few miles north in Richmond, the city is experiencing an 11.6% unemployment rate, compared with Contra Costa County’s 7%.

“We’re still struggling with high unemployment rates in lower income communities of California,” Emsellem said. “There’s a real opportunity to create some good jobs where they’re desperately needed.”

Conway said ensuring privacy for the state’s residents trumps the need for jobs, adding that many private companies require employees to go through criminal screenings.

“While I understand the challenges of finding employment following incarceration, consumer protection must come first,” she said. “We need to be sure that these employees, who will handle sensitive personal and health data, have no criminal histories.”

Both Arguments Have Merit, Experts Say

Outside experts say concerns raised by the Greenlining Institute and others are fair. Nadereh Pourat — director of research for the UCLA Center for Health Policy Research who is familiar with the details of Conway’s bill — said both arguments have merit.

She and others pointed out that the people who are going to be enrolling Californians in the health exchange will often come from the very population the exchange is trying to reach — the unemployed or underemployed.

“The problem is Covered California is trying to gain support and participation from underserved populations who often times have had negative experiences with the health care system and the government in general,” Pourat said. “So I can see concerns on both sides.”

Pourat said, however, that the state must guard against risk for fraud and abuse when it comes to patients’ confidential information.

“Asking people for their Social Security number, for example, is a very sensitive issue,” she added. “It is very important that people understand that there is some form of oversight and supervision, so I think it is reasonable to ask for background checks.”

The Assembly Committee on Health approved Conway’s fingerprinting and background check legislation. It must pass the same committee in the Senate before it makes its way through both Appropriations Committees, to the Legislature and finally to Brown for final approval. Meanwhile, SB 509 passed through the Senate Committee on Health last week, and now must pass the health committee in the Assembly.

The bills have until the close of the legislative calendar year this September to become law. Policy analysts said they expect SB 509 and AB 1428 to pass early this summer.

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