Board of Registered Nursing Continues to Undergo Contentious Sunset Review

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By Hamdy M. Masri

On March 14, 2022, the California Board of Registered Nursing (BRN) published its 2022 Sunset Review Report in preparation for its third Sunset Review Oversight Hearing before the Assembly Business and Professions Committee and the Senate Business, Professions and Economic Development Committee (the Committees) in the past year. After the 2021 sunset review process, the Board’s enabling act, section 2700, et seq., the Business and Professions Code was extended for only a year, instead of the typical four years, due to outstanding issues. [27:1 CRLR 93–98; 26:2 CRLR 80–85] Currently, the Board’s statutory authority to continue operating is scheduled to be repealed on January 1, 2023, if it is not extended during the review. The review is a comprehensive process that allows the Committees to review all current policies and procedures of BRN and determine the Board’s effectiveness at both licensee regulation and consumer protection.

BRN’s 2022 report includes a history and summary of the Board’s activities over the past year and an overview of the Board’s leadership. The bulk of the report illustrates the Board’s efforts to identify process improvements and implement strategies to achieve enhanced efficiencies by reducing redundancies and streamlining their licensing process. Of note, the Board has improved application processing times by transitioning to fully online applications; all applications are now available electronically through BreEZe. Furthermore, during its November 17, 2021 meeting, the Board voted to utilize NURSYS®, an online verification system provided through the National Council of State Boards of Nursing (NCBSN) to provide the license verification service for RNs licensed in California. This aligns the BRN with other states using NURSYS® allowing for streamlined license verifications of out-of-state nurses. Finally, the Board removed the requirement for the submission of a “passport-like photo” from applicants as a means of establishing identity.

The 2022 Sunset Review Report also provides the legislature with an update on its progress to implement recommendations made by the California State Auditor in a series of audits– an issue of particular interest to the Committees following the Board’s March 2021 Sunset Review hearing during which then Deputy State Auditor Mike Tilden reported that BRN executives had falsified data and misrepresented its caseloads to the State Auditor when reporting on implementing recommendations from past audits. [26:2 CRLR 83–84] In preparation for BRN’s most recent Joint Sunset Review Oversight hearing, the Committees published an updated background paper for the 2022 sunset hearing. This paper is substantially identical to the background paper published for the 2021 hearing, with updates reflecting changes to the Board’s staffing and statistics. All 38 issues identified in the 2022 paper are identical to the issues in the 2021 paper. Legislative staff again concluded that while BRN has made progress concerning enforcement processes, the “progress was undermined by the misconduct of prior BRN executives,” yet ultimately recommends that BRN should continue to regulate licensees with future legislative review of their regulation process.

The Board’s Joint Sunset Review Oversight Hearing on March 18, 2022, was quite contentious, particularly regarding education issues and the artificial restriction on the supply of nurses through regulation. Committee members, as well as representatives from the State Auditor, commented on and asked the Board to address issues regarding attaining clinical hours for nursing students, noting the Board’s significant oversight authority over these healthcare facilities.  Committee members also expressed concerns over the Board’s restrictions on increases to nursing faculty. BRN requires all new faculty members to receive Board approval. When questioned, the Board representatives cited quality assurance as the reason for their approval requirements, while Committee members commented that the faculty shortage is cause for some flexibility, and noted that the approval requirements appeared to be duplicative for accredited schools whose deans and administrators have prior accreditation and would therefore select qualified educators.

Perhaps the greatest point of contention at the hearing was the Board’s workforce vacancy analysis policy in approving nursing school expansions and new programs. According to testimony at the hearing, BRN is unique in conducting regional workplace vacancy analyses when schools seek expansion or the creation of new nursing programs. When asked why nursing education requires this unique analysis, BRN’s Executive Officer responded that the policy is based on studies showing that students typically wish to stay within a 50-mile radius of their school to serve their communities. Committee members questioned the continued validity of this policy in light of current circumstances where hospitals are filled with travel nurses and struggling to secure nurses to fulfill shifts while also having to comply with strict nurse-to-patient ratios. The Chair of the Senate Business, Professions, and Economic Development Committee commented that there seems to be a disconnect between the Board’s policy and the economic reality, particularly considering the current nursing shortage, and expressed his wish to continue this conversation in the future.

At this writing, the Board has not issued a written response to the legislature’s concerns articulated in the updated background paper, and the legislature has not yet amended the Board’s enabling act to extend the Board’s existence past the January 1, 2023 sunset date.

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