BILL ANALYSIS Ó
SB 466
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Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Susan Bonilla, Chair
SB 466(Hill) - As Amended June 18, 2015
SENATE VOTE: 40-0
SUBJECT: Nursing: Board of Registered Nursing.
SUMMARY: Implements the Board of Registered Nursing's (BRN)
Sunset Review Oversight Hearings, including clarifying the law
related to crediting experiential learning, requiring a board
monitor to oversee the BRN's enforcement program, and requiring
the BRN to deny schools that do not provide credit for military
experience.
EXISTING LAW:
1)Establishes, until January 1, 2016, the BRN within the
Department of Consumer Affairs (DCA) to license and regulate
the practice of nursing. (Business and Professions Code (BPC)
§ 2701)
2)Authorizes the BRN, until January 1, 2016, to appoint an
executive officer to perform the duties delegated by the BRN.
The executive officer must be a registered nurse (RN) licensed
by the BRN and have other qualifications as determined by the
BRN. (BPC § 2708)
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3)Requires the BRN to provide for methods of evaluating
education, training, and experience obtained in the armed
services. (BPC § 35)
4)Requires the BRN's rules and regulations to provide for
methods of evaluating education, training, and experience
obtained in military service if the training is applicable to
the BRN's requirements. (BPC § 710)
5)Requires the Chancellor of the California Community Colleges,
by July 1, 2015, to determine which courses credit should be
awarded for prior military experience. The Chancellor must
use common course descriptors and the American Council on
Education standards. (Education Code § 66025.7)
6)Requires the BRN to evaluate the training record submitted by
an applicant who (1) has served on active duty in the medical
corps of any of the Armed Forces, (2) completed the course of
instruction required to qualify the applicant for rating as a
medical service technician, independent duty, or other
equivalent rating in the particular branch, and (3) whose
service in the armed forces has been under honorable
conditions. (BPC § 2736.5)
7)Permits a person who has served on active duty in the medical
corps of any of the armed forces, in which no less than an
aggregate of 12 months was spent in rendering bedside patient
care, and who has completed the basic course of instruction in
nursing required by his or her particular branch of the armed
forces, and whose service in the armed forces has been under
honorable conditions, to sit for an licensed vocational nurse
(LVN) license exam. (BPC § 2873.5)
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8)Establishes grounds for the denial of a license based on
certain factors, including:
a) Knowingly making a false statement of material fact, or
knowingly omitting to state a material fact, in an
application for a license;
b) Conviction of a crime;
c) Commission of any act involving dishonesty, fraud or
deceit with the intent to substantially benefit himself or
another, or substantially injure another; and,
d) Commission of any act which, if done by a licentiate of
the business or profession in question, would be grounds
for suspension or revocation of license. (BPC § 475)
9)Requires the BRN to determine, by regulation, the subjects an
applicant must complete at an approved school, including the
minimum units of theory and clinical experience necessary to
achieve essential clinical competency at the entry level of a
RN. The BRN's standards must require all schools to provide
clinical instruction in all phases of the educational process.
(BPC § 2786 (c))
10)Requires the BRN to deny or revoke the approval of a school
that does not give (1) nursing credit for previous education
and (2) an opportunity to obtain credit for other acquired
knowledge by the use of challenge examinations or other
methods of evaluation. (BPC § 2786.6(a))
11)Requires the BRN to require, by regulation, the education for
which credit is to be given and the amount of credit which is
to be given for each type of education. "Credit" means credit
for licensure only. The BRN may not prescribe the credit
which an approved school may give toward an academic
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certificate or degree. (BPC § 2786.6(b))
THIS BILL:
12)Requires the Director of Consumer Affairs to appoint a board
enforcement program monitor no later than March 31, 2016. The
director may retain an independent contractor for the
appointment by a personal services contract.
13)Declares that the enforcement program monitor services are a
new state function, pursuant to § 19130 of the Government
Code.
14)Requires the director to:
a) Advertise the availability of the enforcement program
monitor position.
b) Include in the requirements for the position performance
audit experience and familiarity with state laws,
regulations, and administrative procedures pertaining to
the BRN.
c) Ensure the enforcement program monitor does not have a
pecuniary interest, outside of the direct compensation for
services, in reviewing the BRN or any recommendations made.
15)Requires the enforcement program monitor to:
a) Monitor and evaluate the nursing disciplinary system and
procedures and specifically concentrate recommendations on
improving the enforcement program.
b) Develop recommendations that acknowledge the BRN's right
to exercise reasonable discretion in applying disciplinary
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standards to particular circumstances and in deciding
individual cases.
16)Requires the monitoring duty to be on a continuing basis for
a period of no more than two years from the date of the
enforcement program monitor's appointment. The duty must
include the following areas:
a) Improving the quality and consistency of complaint
processing and investigation.
b) Ensuring consistency in the application of BRN sanctions
or discipline imposed on licensees.
c) Ensuring the accurate and consistent implementation of
the laws and rules affecting discipline, including
adherence to the Division of Investigation Case Acceptance
Guidelines, Consumer Protection Enforcement Initiative
Model (CPEI), as revised July 1, 2014.
d) Reducing the timeframes for completing complaint
processing and investigation.
e) Addressing staff concerns regarding disciplinary matters
or procedures.
f) Reviewing the appropriate use of licensed professionals
to investigate complaints.
g) Reviewing the board's cooperation with other
governmental entities charged with enforcing related laws
and regulations regarding nurses.
h) Generally assessing the adequacy of staffing,
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operations, and fiscal resources of other governmental
entities as they affect the board's enforcement functions
and identifying any delays caused by these other entities.
i) Assessing the adequacy of BRN staffing and fiscal
resources to perform its enforcement functions.
17)Requires the enforcement program monitor to perform the
monitoring duties as a state function.
18)Requires the enforcement program monitor to exercise no
authority over the BRN's discipline operations or staff.
However, the BRN and its staff must cooperate with the
enforcement program monitor, and the BRN must provide data,
information, and case files requested by the enforcement
program monitor to perform the monitoring duties.
19)Declares that the enforcement program monitor shall have
access to all records and full and complete data in all
official matters that are in possession of the BRN and the
BRN's members, officers, and employees.
20)Requires the enforcement program monitor to submit an initial
written report of his or her findings and recommendations to
the BRN within six months after the enforcement program
monitor begins the review process, and shall submit a report
every six months after the initial report with a final report
to be submitted on or before December 31, 2018. The BRN shall
be given 30 days to review and prepare a response to each
written report beginning from the time the report is submitted
to the BRN. After the 30 days expire, the program enforcement
monitor shall submit each written report to the department and
the Legislature. The enforcement program monitor shall make
the reports and the BRN's response to the reports available to
the public when the reports are submitted to the department
and the Legislature. The enforcement program monitor shall
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make every effort to provide the BRN with an opportunity
throughout the entire review process to reply to any facts,
findings, issues, or recommendations in his or her reports
with which the BRN may disagree.
21)Requires the final report to include final findings and
recommendations on the topics addressed in the prior reports
submitted by the program enforcement monitor.
22)Requires the BRN to pay for all of the costs associated with
the employment of an enforcement program monitor.
23)Makes the enforcement monitor provisions inoperative on March
31, 2018, and repeals them January 1, 2019.
24)Makes permissive, rather than mandatory, the requirement that
the BRN develop regulations designed to require all schools to
provide clinical instruction as part of the educational
process.
25)Deletes the phrase "all phases" from the requirement that the
BRN develop standards requiring schools to provide clinical
instruction in all phases of the educational process.
26)Deletes existing provisions of law that requires the BRN to
evaluate for RN licensure the training record submitted by any
person who has served on active duty in the medical corps of
any of the Armed Forces, and completed the course of
instruction required to qualify him or her for rating as a
medical service technician-independent duty, or other
equivalent rating in his particular branch, and whose service
in the armed forces has been under honorable conditions.
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27)Requires the BRN to deny the application for approval made
by, and revoke the approval given to, any school of nursing
that does not give student applicants credit in the field of
nursing for military education and experience by the use of
challenge examinations or other methods of evaluation.
28)Requires the BRN to promulgate regulations by January 1,
2017, requiring schools to have a process to evaluate and
grant credit for military education and experience. The word
"credit," as used in the preceding sentence, is limited to
credit for licensure only. The BRN will not be authorized to
prescribe the credit that an approved school of nursing must
give toward an academic certificate or degree.
29)Requires the BRN to review a school's policies and practices
regarding granting credit for military education and
experience at least once every five years to ensure
consistency in evaluation and application across schools. The
BRN must post on its website information related to the
acceptance of military coursework and experience at each
approved school.
FISCAL EFFECT: According to the Senate Appropriations Committee
analysis, dated May 28, 2015, this bill will have one-time
costs of about $350,000 over three years to contract for an
enforcement program monitor. This bill will also have ongoing
costs of about $400,000 per year for evaluations of
educational standards.
COMMENTS:
Purpose. This bill is author sponsored. According to the
author, "The Sunset Report identified many issues, and the [BRN]
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is actively working to resolve many of them. I look forward to
seeing the Enforcement Monitor's reports and maintaining
engagement with the [BRN] to protect California consumers."
Background. In March of this year, the Assembly Business and
Professions Committee and the Senate Business, Professions and
Economic Development Committee (Committees) conducted joint
oversight hearings to review 12 regulatory entities: California
Accountancy Board, California Architects Board and Landscape
Architects Committee, California State Athletic Commission,
Board of Barbering and Cosmetology, Cemetery and Funeral Bureau,
Contractors State License Board, Dental Board of California,
Board for Professional Engineers, Land Surveyors and Geologists,
BRN, Bureau of Security and Investigative Services, and BVNPT.
This bill is one of several sunset bills that are intended to
implement the legislative changes recommended by Committee
staff. The recommendations are reflected in the background
papers prepared by Committee staff for each agency and program
reviewed.
Experiential Learning. Current law requires the BRN to require
approved schools to "give student applicants credit, in the
field of nursing, for previous education and the opportunity to
obtain credit for other acquired knowledge by the use of
challenge examinations or other methods of evaluation." It also
requires the BRN to develop regulations to determine the types
of education and "the amount of credit which is to be given for
each type of education," which appears to include education
beyond the classroom.
However, instead of making its own determination, the BRN
promulgated regulations delegating the responsibility to
determine credit to the approved schools. Despite the
delegation, the BRN has stated that it does not believe any
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schools grant credit or allow testing to prove skills or
knowledge based on prior professional experience.
Therefore, this bill requires the BRN to promulgate regulations
requiring schools to have a process to evaluate and grant credit
for previous education and clinical and theoretical knowledge
acquired through prior experience. This bill also requires the
BRN to review school policies and practices at least once every
four years to ensure consistency in evaluation and application
across schools.
Military Experience. Existing law requires the BRN to evaluate
and credit military experience and training towards a RN
license. In response, in 1976 and 1985 the BRN adopted
regulations that identified military titles and supplemental
experience that would be exhaustive of the BRN requirements.
However, in 2000 the BRN determined that the military coursework
had changed and was no longer directly transferrable. The BRN
then updated the regulations for evaluating military training in
an overly-broad manner, which made identifying specific relevant
military coursework difficult. The BRN has not evaluated
military coursework since, although the BRN states that it was
told by military representatives in 2010 that the military does
not have a directly comparable RN training program.
Therefore, the BRN has effectively delegated the duty of
identifying eligible military coursework to approved RN
programs, for which the BRN is required to approve the
curriculum. However, the BRN has never spoken to schools about
accepting military coursework and experience for credit, nor has
the BRN suggested which military coursework may be
transferrable.
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Instead of approving military education or experience directly,
the BRN requires military applicants to become a licensed
vocational nurse (LVN) under the Board of Vocational Nurses and
Psychiatric Technicians (BVNPT). For military applicants, the
BVNPT identifies which courses the applicant still needs to be
eligible for the LVN licensing exam. After becoming licensed as
an LVN, the applicant must then apply to a school that offers an
LVN to RN bridge program. The LVN bridge program provides the
RN coursework missing from LVN program and allows the applicant
to sit for the RN exam.
Enforcement Concerns and Enforcement Monitor. According to the
author, the BRN is not meeting its CPEI enforcement targets.
After the release of the 2015 Sunset Report, a staff member, an
attorney who represented multiple licensees, and 1 sanctioned
licensee, contacted the author with information that raised
concerns about the BRN's enforcement program. Because the BRN
has not demonstrated consistency in its administration of
discipline or adherence to its disciplinary guidelines, this
bill requires that a monitor observe the BRN's enforcement
program until March 31, 2016.
An enforcement monitor offers an opportunity for an objective
third party, experienced with the operation of state agencies,
to investigate and evaluate the operations of a state licensing
entity over a period of time (typically 2 years). The monitor
provides a long-term, in-depth look at the operations of the
entity. This allows the Legislature an opportunity to determine
how well a licensing agency is performing its mission and
provides periodic reports on the findings and recommendations
for resolving problems that the monitor observes.
Five times in the recent past, the Senate Business, Professions
and Economic Development Committee utilized an enforcement
monitor to review the operations of boards and bureaus and to
make recommendations to the Legislature for needed changes and
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improvements. In every situation, the monitor was agreed on by
both the DCA and the Administration. In some circumstances, the
DCA also recommended the monitor.
The Senate Committee on Business, Professions and Economic
Development has noted that the monitors at the Contractors State
License Board (CSLB), the Board of Dental Examiners (BDE), the
Medical Board of California (MBC), the Bureau of Automotive
Repair (BAR), and the Bureau of Private Postsecondary and
Vocational Education (BPPVE) have been effective. The five
prior instances are discussed in more detail under the prior
related legislation section below.
Current Related Legislation. AB 178 (Bonilla) of this
legislative session would, among other things, remove the
requirement that the executive officer the BVNPT be an LVN and
require that the DCA appoint a board monitor to oversee the
operations of the BVNPT. STATUS: This bill is pending in the
Senate Appropriations Committee.
Prior Related Legislation. SB 538 (Price) of 2011 would have,
among other things, extended the BRN's sunset date and provided
the BRN's investigators the authority of peace officers to
improve enforcement efforts. NOTE: This bill was vetoed by
Governor Brown.
SB 1544 (Figueroa), Chapter 740, Statutes of 2004, placed a
monitor within the BPPVE from 2005 to 2007. The bill also
required the monitor to report back to the Legislature and DCA
by October 1, 2005 and provide other reports as needed to April
1, 2006. The monitor was the result of the Joint Sunset Review
Committee recommendation that a "BPPVE Operations and
Administrative Monitor" be appointed by the DCA. The monitor's
reports were the basis for changes to the BPPVE Act in AB 48
(Portantino), Chapter 310, Statutes of 2009.
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SB 1542 (Figueroa), Chapter 572, Statutes of 2004, placed a
monitor within the BAR from 2005 to 2007. The bill also required
the monitor to report back to the Legislature and the DCA every
six months until December 31, 2006. The monitor was the result
of the 2003 Joint Sunset Review Committee recommendation that an
"Administrative and Enforcement Monitor" be appointed by the
Secretary of State and Consumer Services Agency to the BAR. The
monitor's reports resulted in changes to the BAR's operations
over several years.
SB 1950 (Figueroa), Chapter 1085, Statutes of 2002, placed a
monitor within the MBC from 2003-2005. The bill also required
the monitor to report back to the Legislature and the DCA no
later than October 1, 2003, and then every six months after.
The monitor was the result of the 2002 recommendation from the
DCA and the Joint Sunset Review Committee to appoint an
"Enforcement Program Monitor" to the MBC because of serious
problems and issues identified by the Joint Committee regarding
the MBC's enforcement program. The DCA also agreed with the
Committee that the monitor should review the MBC's Diversion
Program and evaluate whether the program should be continued and
if changes were necessary. The monitor's reports resulted in
changes to the MBC's enforcement program and the elimination of
the Diversion Program.
SB 26 (Figueroa), Chapter 615, Statutes of 2001, placed a
monitor within the BDE (now the Dental Board of California) from
2002 to 2004. The bill also required the monitor to report back
to the Legislature and the DCA no later than September 1, 2002,
and then every six months after. The monitor was the result of
the 2001 recommendation by both the DCA and the Joint Sunset
Review Committee to appoint an "Enforcement Monitor" because of
issues related to the BDE's enforcement program. As a result of
the monitor's reports, the BDE was "reconstituted" with new
board members and the major changes were made to the enforcement
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program and other BDE programs.
SB 2029 (Figueroa), Chapter 1005, Statutes of 2000, placed a
monitor within the CSLB from 2001 to 2003. The bill also
required the monitor to report back to the Legislature and the
DCA on August 1, 2001 and then every six months after. The
monitor was the result of problems identified by the Joint
Sunset Review Committee in 1999. Therefore, both the Committee
and the DCA agreed to appoint a CSLB "Enforcement Program
Monitor." The monitor's reports resulted in changes to the
enforcement program and other CSLB programs.
ARGUMENTS IN SUPPORT:
None on file.
ARGUMENTS IN OPPOSITION:
The BRN writes, "The [BRN], at its May Meeting, voted to oppose
[this bill] for the following reasons:
1)The bill does not have a continuation date for the BRN. There
are boards and bureaus, currently, going through sunset review
that take over 3 and 4 years to complete complaints, but have
been granted continuation dates and have not been required to
have an Enforcement Program Monitor; and
2)The [BRN] feels, strongly, that an Enforcement Program Monitor
is not needed or warranted because; [sic] the BRN has made
tremendous Enforcement Program improvements since the last
Sunset Review in 2011. The BRN has added Special
Investigators to conduct investigations and reorganized the
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Enforcement Division to create five major work units including
Complaint Intake, Investigations, Discipline, Probation, and
Diversion. Many procedural changes have been implemented to
streamline internal processes and cross training of staff to
be more efficient. Board members continue to be consistent in
applying the laws relative to disciplinary matters, since they
make the final decision on all disciplinary cases. All of
these advances have contributed to the progress that the BRN
has made in completing complaints within 22 months."
The California Nurses Association writes that it is opposed to
this bill unless it is amended to (1) extend the BRN to 2018,
(2) require the BRN to appoint an executive officer who is an
RN licensed by the BRN to perform the duties delegated by the
BRN, and (3) remove the enforcement monitor provisions.
The Service Employees International Union California writes that
it is opposed to the version of this bill that was amended
April 30, 2015 unless it is amended to (1) extend the BRN
until 2020, (2) require, rather than permit, the BRN to
require clinical instruction in all phases of the educational
process, (3) delete the provisions requiring the BRN to deny
schools that that do not give students credit for military
education and experience, and (4) replace the enforcement
monitor with stakeholder meetings.
POLICY ISSUES FOR CONSIDERATION:
Military Credit. At this time, the BRN does not provide a
direct way to apply military credit to its RN programs.
Therefore, given BRN's mandate to determine ways to credit
military experience and education, the committee may wish
consider whether the indirect BVNPT route for veterans is
sufficient to fulfill the mandate.
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Board Enforcement Program Monitor. While the recent sunset
oversight hearings revealed issues within the BRN, given the
recent retirement of the executive officer, the commitment of
the new BRN President to address the sunset issues, and the
possible financial burden the cost of the board enforcement
monitor may have on the board and its licensees, the need for
the enforcement monitor is questionable.
Due to the recent changes to the BRN's management, some of the
issues raised in the background paper may be resolved. However,
a short-term audit may help to provide a review of the BRN's
operations in order to ensure that any remaining issues are
resolved. Therefore, the author should amend the bill to remove
the requirement for an enforcement monitor and instead require
the State Auditor to conduct an audit of the BRN.
AMENDMENTS:
1)As noted above, the author should amend the bill to strike the
enforcement monitor language and instead request that the
State Auditor conduct and audit of the BRN as follows:
Pages 3-6, strike out section 1, inclusive, and insert:
(a) (1) By March 31, 2016, the board shall contract with the
California State Auditor's Office to conduct a performance
audit of the board's enforcement program. The California
State Auditor's office shall report the results of the audit,
with any recommendations, to the Department, the Governor, and
the appropriate policy committees of the Legislature by March
31, 2018.
(2) The performance audit shall include, but not be limited to,
an evaluation of the following:
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(A) The quality and consistency of complaint processing and
investigation.
(B) The consistency in the application of board sanctions or
discipline imposed on licensees.
(C) The accurate and consistent implementation of the laws and
rules affecting discipline, including adherence to the
Division of Investigation Case Acceptance Guidelines (Consumer
Protection Enforcement Initiative Model), as revised July 1,
2014.
(D) The timeframes for completing complaint processing and
investigation.
(E) Staff concerns regarding disciplinary matters or procedures.
(F) The appropriate use of licensed professionals to investigate
complaints.
(G) The board's cooperation with other governmental entities
charged with enforcing related laws and regulations regarding
nurses.
(H) The general adequacy of staffing, operations, and fiscal
resources of other governmental entities as they affect the
board's enforcement functions and identifying any delays
caused by these other entities.
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(I) The adequacy of board staffing and fiscal resources to
perform its enforcement functions.
(b) Board staff and management shall cooperate with the
California State Auditor's Office and shall provide the agency
with access to data, case files, employees, and information as
the agency may, in its discretion, require for the purposes of
this section.
2)The author should amend the bill to make the requirement that
the BRN develop regulations designed to require schools to
provide clinical instruction the educational process
mandatory, rather than permissive:
Page 6, line 29, strike out "may" and insert:
shall
3)During Sunset Review, issues with the BRN were noted that
necessitate a shorter sunset date. Therefore, in order to
ensure that the BRN continues to regulate its licensing
population, the author should amend the bill to add a two-year
sunset date:
Insert:
Section 2701 is amended to read:
(a) There is in the Department of Consumer Affairs the Board of
Registered Nursing consisting of nine members.
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(b) For purposes of this chapter, "board," or "the board,"
refers to the Board of Registered Nursing. Any reference in
state law to the Board of Nurse Examiners of the State of
California or the California Board of Nursing Education and
Nurse Registration shall be construed to refer to the Board of
Registered Nursing.
(c) The board shall have all authority vested in the previous
board under this chapter. The board may enforce all
disciplinary actions undertaken by the previous board.
(d) This section shall remain in effect only until January 1,
2016, 2018 , and as of that date, is repealed, unless a later
enacted statute that is enacted before January 1, 2016, 2018 ,
deletes or extends that date. Notwithstanding any other
provision of law, the repeal of this section renders the board
subject to review by the appropriate policy committees of the
Legislature.
REGISTERED SUPPORT:
None on file.
REGISTERED OPPOSITION:
California Board of Registered Nursing
California Nurses Association
Service Employees International Union California (4/30/15
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version)
Analysis Prepared by:Vincent Chee / B. & P. / (916) 319-3301