Board of Registered Nursing Undergoes Sunset Review

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By Kendra J. Muller

On January 1, 2021, the Board of Registered Nursing (BRN) published its Sunset Review Report in preparation for its Sunset Review Oversight Hearing before the Assembly Business and Professions Committee and the Senate Business, Professions and Economic Development Committee. The Board’s enabling act, section 2700, et seq., of the Business and Professions Code is scheduled to be repealed on January 1, 2022, if it is not extended during the review. The review is a comprehensive process that allows the Senate to review all current policies and procedures of BRN and determine the Board’s effectiveness at both licensee regulation and consumer protection.

BRN’s report includes a history and summary of the Board’s activities over the past four years and an overview of the Board’s leadership. The bulk of the report contains performance measures and actions taken to rectify issues from the last sunset review. The report also identifies four new issues the Board would like the legislature to consider during this sunset review period. These issues include (1) implementing peace officer status, (2) providing Nursing Education Consultants with greater salaries, (3) amending Business and Professions Code section 2746.51 with non-substantive language changes, and (4) establishing additional fees. In this report, BRN indicated it is meeting the goals and objectives of its strategic plan, but also acknowledges the need for additional work regarding nursing program performance and case management time frames.

The Board seeks to provide BRN investigators with limited peace officer status. BRN requests this status for investigators as it will increase the access in which investigators can request criminal history and other evidence, as well as give the authority to criminally charge individuals who obstruct the investigative process. According to BRN, providing peace officer status will enhance the investigator’s ability to protect the public from unsafe nursing, which is the Board’s highest priority.

Of note, BRN recommends an establishment of nine different licensee fees to be statutorily constructed. These fees include a $140 re-evaluation of international graduate application, a $465 petition for early termination by stipulated settlement, and a $1,170 petition for reinstatement with an administrative law judge. Accordingly, the total projected fees will bring $1,169,306 in additional annual revenue. The new fees were recommended after an independent consultant group conducted a cost basis analysis to determine best practices for the new fees to be implemented.

In preparation for BRN’s Joint Sunset Review Oversight hearing, the Senate Committee on Business, Professions and Economic Development and Assembly Committee on Business and Professions published a background paper, which provides the Board’s framework, updates the committees on the changes and improvements BRN made regarding the 11 issues from the previous sunset review and identifies 38 new issues to raise with the Board during the sunset review process.

Among its listed concerns, the legislature asks whether BRN should be authorized to establish new fees, as the Board currently operates with a significant budget surplus. The legislature notes that in comparison to other boards, some of the proposed fees are unique to BRN, and others are much higher than other state boards.

Of particular note, the legislature asks what steps BRN has taken to rectify the State Auditor recommendations to address the prior BRN executives’ data falsification regarding the number of complaints the Board handles, and instead ensure that investigators are not assigned more than 30 investigations at a time. BRN is still in the process of fully implementing the original 2016 audit plan to eliminate the backlog of complaints.

The legislature addressed the many complaints it has received from applicants concerning extended licensing processing timelines, which has prohibited individuals from entering the profession in an efficient manner. The legislature recommends that BRN reduce licensing processing timelines, as well as streamline out-of-state transferability so that nurses who move to California can promptly begin working.

Amidst other recommendations, the legislature discussed how two recently passed pieces of legislation, AB 890 (Wood) (Chapter 265, Statutes of 2020) and SB 1237 (Dodd) (Chapter 88, Statutes of 2020), should be implemented, as questions remain regarding whether the Board has enough structure to successfully execute its part in the bill that creates greater independence for nurses to practice without physician supervision. According to AB 890, BRN must now implement an advisory committee consisting of licensees and physicians. The legislature concluded that the statute needs modified language to provide more specific instructions as to how BRN should establish such an advisory committee.

In concluding BRN’s overall sunset extension status, the committee states that while BRN has made progress concerning enforcement processes, the “progress was undermined by the misconduct of prior BRN executives” regarding the State Auditor’s recommendations. Ultimately, staff recommends that BRN should continue to regulate licensees with future legislative review of their regulation process.

At the Joint Sunset Review Oversight Hearing on March 12, 2021, Deputy State Auditor Mike Tilden gave an overview of the identified issues the Audit Report had found. Tilden discussed that after the State Audit recommended BRN resolve their backlog of license complaints, BRN falsified data and misrepresented their caseloads to the State Auditor. Tilden also reported BRN does not use sufficient data to make decisions about the number of nursing student programs needed to adequately serve the population.

After this presentation, the Auditor addressed questions from the Joint Sunset Review Committee. Committee members discussed their concerns regarding the Board’s culture that may have caused the untruthful audit behavior. They also discussed that the large number of high-priority complaints still pending does not adequately serve the public. After this discussion, the Board’s President, Loretta Melby, appeared on behalf of the Board and discussed the items found in the Board’s Sunset Report. Melby also fielded questions from the committee concerning the Board’s actions to rectify the State Auditor’s recommendations.

The committee heard comments from a number of public members as to the Board’s performance. The Center for Public Interest Law (CPIL) provided written testimony and public comment at the hearing, highlighting a number of consumer protection concerns. In addition to CPIL’s recommendation that the legislature thoroughly examine the State Auditor recommendations and charge the Board to implement them, CPIL also recommended that the Board’s Executive Officer be precluded from being a licensee to discourage anti-competitive conduct. To further prevent anti-competitive conduct, CPIL also recommended making the Board composition a public majority.

Members of the public testified that they have had difficulties with the barriers to become licensed. They urged the legislature to shorten the timeline for licensing. Another member of the public urged them to consider breaking barriers to employment for those who have expunged their criminal records from decades ago. A representative from the School of Nursing at San Francisco State University addressed the decreasing number of clinical placements and asked the committee to permanently increase the amount of non-direct patient hours to remedy the issue. The university representative cited examples of a number of studies that show that increasing the number of non-direct patient hours does not decrease the quality of the education.

The Senate Business, Professions and Economic Development Committee requested a second Sunset review meeting to discuss sunset bill revisions. This meeting has not been set as of the time of this writing. On April 9, 2021, the Board issued its written responses to the legislature’s background report.

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