by Bradley J. Muldrow 
Staff Attorney
The Therapist
January/February 2021

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The complex application process to become a registered associate marriage and family therapist in the state of California can be even more stressful for applicants with criminal convictions and applicants who have received formal discipline from other licensing boards. CAMFT regularly receives calls from trainees and post-grads who are concerned that mistakes from their pasts may serve as roadblocks on their journey to licensure. A new law known as AB 2138 offers much-needed relief and hope to many applicants facing these circumstances.

Prior to AB 2138, with limited exceptions, the BBS had the authority to deny, revoke, or suspend a license or registration on the grounds that the practitioner had received a criminal conviction or has been subject to formal discipline by another licensing board. As of July 1, 2020, the date AB 2138 went into effect, the Board is no longer able to deny, suspend, or revoke licenses and registrations based on most criminal convictions and acts of formal discipline occurring more than seven years ago. This article will address how the new AB 2138 regulations have impacted the associate registration application process and key issues applicants should consider when determining which criminal convictions and acts of formal discipline to disclose in their applications.

CRIMINAL CONVICTION REPORTING DURING THE ASSOCIATE APPLICATION PROCESS

The New AB 2138 Requirements
The BBS is not authorized to deny an associate application based on an applicant’s criminal conviction unless:

• The conviction occurred during the seven-year period immediately preceding the date of the application; and
• The crime resulting in the conviction is substantially related to the qualifications, functions, or duties of the MFT profession.

The BBS is permitted to deny associate applications if the applicant is presently incarcerated or if the applicant was released from incarceration during the seven-year period preceding the date of the application so long as the conviction resulting in incarceration is substantially related to the qualifications, functions, or duties of the MFT profession.

“Substantially Related”
The BBS provides the following information regarding how it determines which convictions (and formal disciplinary actions) are substantially related to the qualifications, functions, or duties of the MFT profession:

A conviction or formal disciplinary action is “substantially related” to a profession if to a substantial degree, it evidences present or potential unfitness of the license holder to perform…the functions authorized by the license in a manner that is consistent with public health, safety or welfare. (emphasis added)

In determining whether a conviction or formal disciplinary action meets the substantial relation criteria, the Board is required to consider the following factors: 1) the nature and gravity of the offense; 2) the number of years elapsed since the offense; and 3) the nature and duties of the profession.⁷

Note: AB 2138 regulations related to formal disciplinary actions will be discussed later in this article.

Exceptions to the Seven-Year Period Limitation
The BBS is permitted to deny applications based on the following convictions regardless of whether the convictions occurred during the seven-year period immediately preceding the date of the application:

• Convictions for “serious felonies,” as defined in California Penal Code Section 1192.7; or
  • E.g. murder, voluntary manslaughter, mayhem, rape, arson, first degree burglary, robbery, kidnapping, selling heroin, cocaine, or PCP to a minor, grand theft involving a firearm, carjacking, etc.
• Convictions of crimes for which individuals must register as sex offenders, pursuant to California Penal Code Section 290.

Additional Limitations on the Board’s Authority to Deny Applications Based on Convictions
The Board is not authorized to deny an application based on a conviction even if the conviction occurred within the last seven years if:

• The applicant has obtained a certificate of rehabilitation under Chapter 3.5 of "Title 6 of Part 3 of the Penal Code;"
• The applicant has been granted clemency or a pardon by a state or federal executive;
• The applicant has made a showing of rehabilitation under Business and Professions Code Section 482; or
• The applicant’s conviction was dismissed under Penal Code Sections 1203.4, 1203.4(a), 1203.41, 1203.42, or 1203.425 or under an equivalent law in another state.¹²

Additionally, the Board will not deny an application under the following circumstances:

• The applicant was convicted prior to their 18th birthday (unless the applicant was tried for the offense as an adult);
• Charges against the applicant were dismissed under Penal Code Section 1000.3;
• The applicant was convicted under Health and Safety Code Section(s) 11357(b), (c), (d), (e), or Section 11360(b) two or more years ago;
  • These convictions generally relate to possessing, transferring, or giving away certain quantities of cannabis.
• The applicant was convicted of a traffic violation resulting in a fine of $500 or less; or
• The applicant was convicted of an infraction.
  • E.g. possession of less than one ounce of marijuana, fishing without a license, certain boating violations, etc.

Criminal Convictions and the Associate Application Process
Following the enactment of AB 2138, the BBS updated the application process for post-grads to become registered associates. Most notably, associate applicants are no longer required to disclose criminal convictions or any other criminal history information in their applications. Instead, the Board will receive each applicant’s Criminal Offender Record Information (CORI) from the California Department of Justice.

Note: Circumstances in which applicants should consider voluntarily disclosing conviction-related information when submitting their applications are discussed later this article.

The Board will review each applicant’s CORI in compliance with the AB 2138 limitations discussed above. For example, an applicant’s CORI may reveal that the applicant was convicted of shoplifting in 2004. However, pursuant to AB 2138, the BBS is not authorized to deny the application based on this conviction because: 1) the conviction occurred more than seven years ago; 2) shoplifting is not classified as a “serious felony”; and 3) individuals convicted of shoplifting are not required to register as sex offenders.

Requests for Additional Information Regarding Convictions
The Board may reach out to applicants with certain criminal convictions to request additional information about the convictions. For instance, if an applicant was convicted of shoplifting three years ago, the Board may need additional information to determine whether the conviction is substantially related to the qualifications, functions, or duties of the MFT profession. Further information about the conviction can also help the Board to determine whether the applicant has undergone personal growth following the conviction (i.e. rehabilitation), such that allowing the applicant to practice as an associate would not endanger patients, the public, etc.

Should the BBS request additional information from an applicant regarding their conviction(s), the applicant should strongly consider providing the requested information as well as evidence of the applicant’s rehabilitation. The Board provides the following examples of information and documentation applicants can provide to demonstrate rehabilitation:

• Letters of recommendation (from a supervisor, volunteer organization, pastor, colleague, etc.);
• Evidence of community service;
• Evidence of participation in a support group;
• Evidence of participation in a rehabilitation program (e.g. Alcoholics Anonymous), if applicable;
• Evidence of completion of subsequent coursework or degree programs; and
• Evidence of participating in psychotherapy.¹⁴

It should be noted that applicants are not required to provide the Board with information about their convictions or evidence of rehabilitation even if the Board requests such information. However, if an applicant fails to provide the Board with information it needs to determine whether the applicant’s conviction is substantially related to the qualifications, functions, or duties of the MFT profession, the Board will have to make this determination without considering the applicant’s side of the story or how the applicant has changed since the conviction occurred. /

Voluntary Disclosure of Criminal Convictions and Evidence of Rehabilitation
Although the Board no longer requires associate applicants to disclose criminal convictions during the application process, the Board invites applicants with convictions to reduce their application processing times by voluntarily disclosing criminal conviction information with their applications. The next few sections will help applicants recognize the situations in which it may be prudent to voluntarily disclose this information to the Board:

Scenario 1: The applicant has been convicted of a serious felony or an offense requiring sex offender registration. 

Recall that, under AB 2138, the Board is authorized to deny associate applications based on these types of convictions even if the convictions occurred more than seven years ago. Accordingly, applicants with these kinds of convictions should consider voluntarily disclosing information about the convictions when submitting their applications by completing Part A of the BBS’ Background Statement Form and providing evidence of rehabilitation.

Scenario 2: Over seven years ago, the applicant was convicted of an offense that: 1) is not classified as a serious felony; and 2) does not require sex offender registration.

Pursuant to AB 2138, the Board is not authorized to deny licenses based on these kinds of convictions. Accordingly, there is no reason for applicants to voluntarily disclose these convictions when submitting their associate applications.

Scenario 3: Within the past seven years, the applicant was convicted of an offense that: 1) is not classified as a serious felony; and 2) does not require sex offender registration.

AB 2138 authorizes the Board to deny applications based on these types of convictions. Consequently, applicants with such convictions should consider voluntarily disclosing information about the convictions when submitting their applications by completing Part A of the BBS’ Background Statement Form and providing evidence of rehabilitation.

Scenario 4: The applicant has been convicted of an offense, but one of the following circumstances apply:

1. The applicant has obtained a certificate of rehabilitation related to the offense;
2. The applicant was pardoned or granted clemency for the offense;
3. The applicant made a showing of rehabilitation related to the offense;
4. he applicant’s conviction was dismissed;
5. The conviction occurred when the applicant was a minor and the applicant was not tried as an adult for the offense;
6. The applicant was convicted under Health and Safety Code Section(s) 11357(b), (c), (d), (e), or Section 11360(b) two or more years ago (These convictions generally relate to possessing, transferring, or giving away certain quantities of cannabis);
7. The applicant was convicted of a traffic violation resulting in a fine of $500 or less; or
8. The applicant was convicted of an infraction.

The BBS is not authorized to deny associate applications based on convictions under these circumstances. However, If any of these circumstances apply, applicants should consider voluntarily disclosing their convictions to the BBS (by completing Part A of the BBS’ Background Statement Form) and providing documentation demonstrating that one of the above circumstances apply. For instance, an applicant may wish to voluntarily disclose that they were convicted of vandalism five years ago and provide documentation demonstrating that the conviction has been dismissed, pardoned, etc.

FORMAL DISCIPLINE REPORTING DURING THE ASSOCIATE APPLICATION PROCESS

The New AB 2138 Requirements
The BBS is not authorized to deny a license based on formal discipline an applicant received from a licensing board (in or outside of California) unless:

• The formal discipline occurred during the seven-year period immediately preceding the date of the application;
• The formal discipline resulted from professional misconduct that would have been cause for discipline before the BBS; and
• The formal discipline resulted from professional misconduct that is substantially related to the qualifications, functions, or duties of the MFT profession.¹⁶

Exception
Formal discipline that occurred within the seven-year period preceding the application may not serve as the basis for application denial if:

• The formal discipline resulted from a conviction that has been dismissed pursuant to California Penal Code Sections 1203.4, 1203.4a, 1203.41, or 1203.42 or a comparable dismissal or expungement.

Formal Discipline and the Associate Application Process
Applicants must answer “yes” or “no” to the following question on the AMFT application:

Within the 7 years preceding your submission of this application, were you denied a professional health care license…OR had a professional health care license privilege suspended, revoked, or otherwise disciplined, OR voluntarily surrendered any such license in California or any other state or territory of the United States, or by any other governmental agency or a foreign country?

Applicants answering “yes” to the above question have the option to voluntarily disclose information regarding their formal disciplinary action(s) to the Board by completing Part C of the Background Statement Form. These applicants should consider providing this information along with evidence of rehabilitation.

CRIMINAL CONVICTION AND FORMAL DISCIPLINE REPORTING REQUIREMENTS FOR REGISTERED ASSOCIATES AND LICENSEES

Registered associates and licensees must report new criminal convictions and formal disciplinary actions to the Board within 30 days of the convictions or disciplinary actions.

Criminal Convictions
Registered associates and licensees can report criminal convictions online via the BBS’ Criminal Convictions page.

Formal Disciplinary Actions
Registered associates and licensees can report formal disciplinary actions via letters addressed to the BBS. The Board recommends including disciplinary documentation from the other licensing boards as well.

Note: When reporting criminal convictions and formal disciplinary actions be sure to include information and documents evidencing rehabilitation.

Conclusion
AB 2138 provides numerous associate applicants with the opportunity to demonstrate their fitness to provide psychotherapy services in the state of California without being hindered by past mistakes. Where appropriate, applicants should consider voluntarily disclosing information about their criminal convictions and formal disciplinary actions against them and providing the Board with evidence of rehabilitation. CAMFT recommends that applicants who have been convicted of crimes or faced formal disciplinary actions obtain legal consultation to determine which information, if any, to provide the Board regarding these offenses.

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Brad J. Muldrow, JD, is a staff attorney for CAMFT. Brad is available to answer member calls regarding legal, ethical, and licensure issues.

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Endnotes
¹ For purposes of this article, the term “criminal conviction” refers to “a judgment following a plea or verdict of guilty or a plea of nolo contendere or finding of guilt.” (See Business and Professions Code Section 7.5(a).)
² See AB 2138
³ Id.
⁴ See Business and Professions Code Section 480(a)
⁵ Id.
⁶ See the BBS’s Criminal Conviction FAQ at p. 3
⁷ Id.
⁸ See Business and Professions Code Section 480(a)(1)(A)
⁹ See Business and Professions Code Section 480(b)
¹⁰ Id.
¹¹ Id.
¹² See Business and Professions Code Section 480(c)
¹³ See the BBS’s Criminal Convictions FAQ at p. 2
¹⁴ See the BBS’s Criminal Convictions FAQ at p. 4
¹⁵ Page 3 of the AMFT application (for in-state applicants) reads, “Providing an answer to the following [criminal conviction-related] questions is voluntary. Providing responses now, instead of waiting for the Board to receive your fingerprint results, will facilitate processing of your application. Your decision not to disclose information will not be a factor in the Board’s decision to grant or deny an application. For more information, see the Criminal Convictions FAQ.”
¹⁶ See Business and Professions Code Section 480(a)(2)
¹⁷ See the AMFT Application at p. 2, Item 3
¹⁸ See California Code of Regulations Section 1845(g)
¹⁹ See the BBS’s Criminal Convictions page

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This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.