BILL ANALYSIS Ó SB 466 Page 1 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) SB 466 Page 2 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) SB 466 Page 3 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 SB 466 Page 4 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 SB 466 Page 5 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, SB 466 Page 6 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 SB 466 Page 7 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. SB 466 Page 8 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] SB 466 Page 9 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 SB 466 Page 10 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. SB 466 Page 11 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 SB 466 Page 12 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. SB 466 Page 13 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 SB 466 Page 14 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 SB 466 Page 15 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. SB 466 Page 16 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: SB 466 Page 17 (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. SB 466 Page 18 (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. SB 466 Page 19 (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 SB 466 Page 20 version) Analysis Prepared by:Vincent Chee / B. & P. / (916) 319-3301