BILL ANALYSIS �
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|Hearing Date:May 2, 2011 |Bill No:SB |
| |538 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 538Author:Price
As Amended:April 25, 2011 Fiscal:Yes
SUBJECT: Nursing.
SUMMARY: Makes a number of changes to the Nursing Practice Act
pursuant to a review of the Board of Registered Nursing (BRN) by this
Committee on March 14, 2011. They include:
(1) Granting the BRN the authority to hire investigators and to have
such investigators designated as peace officers; (2) Specifying the
intent of the Legislature to audit the BRN's substance abuse diversion
program; (3) Granting the BRN authority to be the only agency
responsible for approving schools of nursing and to receive an
appropriate fee from applicants, and for renewal of the school of
nursing's authorization; (4) Authorizing the BRN to issue a cease and
desist order to a school of nursing that has not been approved by the
BRN and to inform the Attorney General of a school which continues to
operate illegally; (5) Preventing the Governor from borrowing from
the special fund of the BRN; and, (6) Extending the BRN's sunset date
for 4 years to January 1, 2016.
Existing law, the Business and Professions Code (BPC):
1) Provides for the regulation of various health professions by
regulatory boards within the Department of Consumer Affairs
(DCA).
2) Establishes the Nursing Practice Act which provides for the
certification and regulation of registered nurses, nurse
practitioners and advanced practice nurses by the BRN within
the DCA.
3) Establishes within the DCA, the Division of Investigation (DOI), to
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investigate alleged misconduct by licensees of boards. Allows the
Director of the DCA to employ such investigators, inspectors, and
deputies as are necessary to investigate and prosecute all
violations of any law. States Legislative intent that inspectors
used by boards are not required to be employees of the DOI, but may
be either employees, or under contract to the boards. (BPC ��
154.2, 155, 159.5)
4) Provides that investigators of the DOI and the Medical Board of
California and Dental Board of California have the authority of
peace officer and that those entities are also authorized to employ
individuals who are not peace officers to provide investigative
services. (BPC � 160)
5) Specifies that the BRN consists of nine members and that as of
January 1, 2012, the BRN will sunset (is repealed), unless a later
enacted statute is enacted prior to January 1, 2012. The BRN is
subject to review by the Legislature prior to its sunset date. (BPC
� 2701)
6) Specifies that the provision which provides for the appointment of
the Executive Officer for the BRN shall be repealed as of January
1, 2012, unless a later enacted statute is enacted before January
1, 2012. (BPC � 2708)
7) States that it is the intent of the Legislature that the BRN shall
implement a diversion program for registered nurses whose
competency may be impaired due to abuse of alcohol and other drugs,
or due to mental illness, as a voluntary alternative to traditional
disciplinary actions and so that registered nurses so afflicted may
be rehabilitated and returned to the practice of nursing in a
manner which will not endanger the public health and safety. (BPC �
2770)
8) Requires the BRN to establish criteria for the acceptance, denial,
or termination of registered nurses in the diversion program and
that only those nurses who have voluntarily requested to
participate in the diversion program shall participate in the
program. (BPC � 2770.7)
9) Provides that the BRN shall produce reports which include, but are
not limited to, the information concerning the number of cases
accepted, denied, or terminated with compliance or noncompliance
and to conduct a periodic cost analysis of the program. (BPC �
2770.14)
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10)Requires the BRN to approve and regulate registered nursing schools
that are institutions of higher education, as defined, or
affiliated with an institution of higher education, as specified.
Requires a school of nursing that is not affiliated with an
institution of higher education to make an agreement with such an
institution for purposes of awarding nursing degrees.
(BPC � 2786)
11)Provides that it is unlawful for anyone to conduct a school of
nursing unless the school has been approved as an accredited school
by the BRN, or is exempt as specified.
(BPC �� 2789, 2798)
Existing law, the Education Code (EC):
1)Establishes the Bureau of Private Postsecondary Education (Bureau)
within the Department of Consumer Affairs (DCA) and provides for
Bureau oversight and regulation of California private postsecondary
institutions pursuant to the Private Postsecondary Education Act of
2009 (Act).
(EC � 194820)
2)Establishes numerous unfair business practices for institutions
covered by the Act, including prohibiting an institution from
promising employment or otherwise overstating the availability of
jobs or making untrue or misleading statements regarding student
completion, placement or expected salary rates. (EC � 94897)
3)Sets forth certain disclosure requirements pertaining to completion,
placement, licensure, and earning potential. (EC � 94910)
Existing law, the Government Code (GC): Provides that when the
General Fund will be exhausted, the Governor is authorized to transfer
all of any part of moneys needed in other funds or account to the
General Fund and that such funds transferred shall be returned as soon
as there are sufficient funds in the General Fund for repayment.
Prohibits the transfer of those loans if the transfer will interfere
with the object for which a special fund was created or any transfer
from the certain programs as specified.
Existing law, the Penal Code (PC): Provides that persons employed by
the Division of Investigation of the DCA and investigators of the
Medical Board and the Dental Board may be peace officers if designated
as such by the Director of DCA, and that the primary duty of these
peace officers shall be the enforcement of the law as that duty is set
forth in Section 160 of the BPC.
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This bill:
1) Authorizes the BRN to hire or designate investigators of the BRN as
peace officers and to also employ individuals who are not peace
officers to provide investigative services.
2) Extends the sunset and repeal of the BRN to January 1, 2016, and
provides that notwithstanding any other provision of law, the BRN
shall be subject to review by the appropriate policy committees of
the Legislature prior to January 1, 2016.
3) Extends the repeal of the provision for the appointment of the
Executive Officer by the BRN to January 1, 2016.
4) Provides that if requested by the Legislature through the Joint
Legislative Audit Committee in 2012, the Bureau of State Audits
shall conduct a thorough performance audit of the BRN's diversion
program to evaluate the effectiveness and efficiency of the
program, and make recommendations regarding the continuation of the
program and any changes or reforms required to ensure that
licensees participating in the program are appropriately monitored
and that the public is protected from licensees who are impaired
due to alcohol or drug abuse or mental or physical illness.
Requires this audit to be paid for with moneys from the Board of
Registered Nursing Fund.
5) Subjects a school of nursing that is not an institution of higher
education, or affiliated with an institution of higher education,
to the requirements set forth in the Private Postsecondary
Education Act of 2009 (Act), and would subject all approved
institutions of higher education and those schools regulated under
the Act to specified fees for approval by the BRN.
6) Authorizes the BRN to issue cease and desist orders to a school of
nursing that is not approved by the BRN and would require the BRN
to notify the Attorney General of such a school and would provide
that it is unprofessional conduct for any registered nurse to
violate this provision.
7) Provides that persons employed by the BRN may be peace officers if
designated as such by the Director of DCA, and that the primary
duty of these peace officers shall be the enforcement of the law as
that duty is set forth in Section 160 of the BPC.
8) Adds the BRN Fund to the enumerated funds for which a transfer or
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loan may not be made to the General Fund.
FISCAL EFFECT: Unknown. This bill is keyed "'fiscal" by Legislative
Counsel.
COMMENTS:
1.Purpose. This measure is sponsored by the Author. According to the
Author, in 2011, this Committee conducted oversight hearings to
review 7 boards: the Board of Registered Nursing, the Board of
Vocational Nursing and Psychiatric Technicians, the Dental Board of
California, the Board of Accountancy, the Contractors State License
Board, the Board for Professional Engineers, Land Surveyors and
Geologists, the California Architects Board (and the Landscape
Architects Committee). The Committee also reviewed the Athletic
Commission and the Professional Fiduciaries Bureau and conducted
oversight hearings of the Department of Real Estate and the Office
of Real Estate Appraisers. The Committee began its review of these
licensing agencies in March and conducted three days of hearings.
This bill, and the accompanying sunset bills, are intended to
implement legislative changes as recommended in the Committee's
Background/Issue Papers for all of the agencies reviewed by the
Committee this year.
This bill is one of the seven "sunset bills" authored by the Chair of
this Committee. Under current law, the provisions which create the
BRN and provides for the appointment of the Executive Officer, will
sunset on January 1, 2012. According to the Author, this measure's
primary purpose is to extend this sunset date of these provisions to
January 1, 2016, but it also makes necessary statutory changes based
on the review of the BRN by this Committee on March 14, 2011.
As indicated by the Author, these changes will provide better
oversight of the BRN's current substance abuse diversion program and
also give the BRN complete authority over the approval of nursing
schools and the ability to offset costs of the BRN in both approving
and regulating nursing schools. It will also ensure that licensing
fees collected for purposes of providing the necessary staffing and
resources for the BRN are not diverted from their Special Fund to
the General Fund.
2.Background. The BRN is responsible for regulating the practice of
registered nurses (RNs) in California. Currently, there are almost
380,000 licensed RNs in California, with over 23,000 new licenses
issued annually, and more than 170,000 licenses renewed annually.
The BRN also regulates interim permittees, i.e., applicants who are
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pending licensure by examination, and temporary licensees, i.e.,
out-of-state applicants who are pending licensure by endorsement.
The interim permit allows the applicant to practice while under the
supervision of an RN while awaiting examination results. Similarly,
the temporary license enables the applicant to practice registered
nursing pending a final decision on the licensure application. The
BRN also issues certificates to Clinical Nurse Specialists, Nurse
Anesthetists, Nurse Practitioners, Nurse-Midwives and Public Health
Nurses. These titles are those most commonly used by the California
RNs and use of the titles is protected under the Business and
Professions Code.
The BRN also issues furnishing numbers to nurse practitioners and
nurse midwives to administer prescriptions and lists
psychiatric/mental health nurses. In addition to its licensing and
certification functions, the BRN also regulates and approves the
following entities:
California Pre-licensure Registered Nursing Programs.
Nurse-Midwifery Programs.
Nurse Practitioner Programs.
Registered Nursing Continuing Education Providers.
The BRN is responsible for implementation and enforcement of the
Nursing Practice Act; the laws and regulations related to nursing
education, licensure, practice and discipline. The BRN implements
regulatory programs and performs a variety of activities to protect
the public. These programs and activities include, setting
registered nurse educational standards for pre-licensure and
advanced practice nursing programs, issuing and renewing registered
nurse licenses, issuing certificates for advanced practice nurses
and public health nurses, taking disciplinary action for violation
of the Nursing Practice Act, and managing a Diversion Program for
registered nurses whose practice may be impaired due to chemical
dependency or mental illness.
The BRN also recognizes registered nursing is an integral component
of the health care delivery system. The BRN affects public policy
by collaborating and interacting with legislators, consumers,
health care providers, health care insurers, professional
organizations, and other state agencies. The BRN takes a proactive
role in structuring health care and evaluating nursing trends in
order to make sound policy decisions. According to the BRN, this
enhances the Board's ability to interpret the Nursing Practice Act
and establish policies for its regulatory programs and activities,
which are then implemented by the BRN staff.
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The current composition of the BRN is seven members who are
appointed by the Governor, one by the Senate Rules Committee and
one by the Assembly Speaker. The current make-up of the BRN
includes four public members, two registered nurses in direct
patient care practice, an advanced practice registered nurse, a
registered nurse educator and a registered nurse administrator.
1.Former Sunset Reviews of the BRN. The BRN was last reviewed by the
former Joint Legislative Sunset Review Committee (JLSRC) six years
ago (2002-2003). During the previous sunset review, the JLSRC
raised 29 issues initially and then an additional 7 later in the
process for a total of 36. The DCA raised 9 issues and the BRN
identified 5 issues and developed a set of recommendations to
address the issues. On October 1, 2010, the Board submitted its
required sunset report to the Committee. In this report, the BRN
described actions it has taken since the Board's prior review to
address the recommendations of the JLSRC. The following are some of
the more important programmatic and operational changes and
enhancements which the BRN has taken and other important policy
decisions or regulatory changes it has adopted:
In 2003, the composition of the BRN was changed to add one
more public member and included one nurse who is in advanced
practice.
Because of a projected deficit in the BRN's budget and the
need for increased staffing, the BRN recently promulgated
regulations increasing specified fees effective January 1, 2011.
The BRN enhanced its Internet capabilities adding more
information to its Website and updated its Website daily and
included disciplinary actions and the status of the nurses
license on its Website. Licensing data and the ability to do
on-line license renewals is also provided.
To deal with the nursing workforce shortage as identified some
years ago, the BRN has been in the forefront of obtaining
information and data on the practice of nursing and school
programs. They have also approved 52 new nursing programs since
2003, with the majority (38) being approved within the past four
years. Student completion for RN programs has almost doubled
since 2003, with 11,512 graduates in 2009-2010 , compared with
5,623 in 2002-2003. It also continues to support the Health
Professions Education Foundation scholarship and loan repayment
programs for RN students and graduates and other sources of
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funding. The BRN continues to recognize that the nursing
shortage is a high priority for the BRN and continues to work
closely with the Legislature, the Administration, nursing
organizations, educational institutions, clinical agencies and
health facilities in identifying nursing workforce and student
needs.
The BRN improved its approval process for nursing educational
programs. According to the BRN, the nursing consultants utilized
by the BRN have kept current in performing both the initial and
ongoing pre-licensure nursing program reviews and continue to
visit about 16 schools per semester, including new programs
seeking BRN's approval and recently approved and continuing
programs. The BRN recently updated their pre-licensure nursing
program regulations to ensure potential program applicants are
fully aware of the requirements for approval by the BRN of their
nursing educational programs. The BRN indicates that the average
length of time from beginning to completing the initial BRN
approval process is about 18 months. The BRN also participated
in efforts by the California Community Colleges (CCC), California
State University (CSU) and the University of California (UC) to
improve student transfer from one school to the next and
establish consistent prerequisite courses for admission.
The BRN improved the timeframe for its application and
licensing process and as such, there are currently no licensing
application backlogs. In 2001/02, it took almost 6 months to
obtain a license. It is now down to less than three months.
When delays now occur in processing an application, it is
basically due to checking on the educational background and
program attended by the applicant (especially if from
out-of-state or a foreign country) or due to the fingerprint
check by the Department of Justice (DOJ) where there may be
questions as to a prior criminal background of the applicant.
In 2002/03, the BRN was experiencing declining pass rates on
its national licensing examination (NCLEX-RN) for candidates
applying for licensure. The BRN took steps to improve the
examination process and reach out to school programs to keep them
better abreast of examination requirements. The BRN also closely
monitors each programs' annual pass rates and contact programs if
their pass rate falls below 70%. The current regulations of the
BRN also require that nursing programs must maintain an NCLEX-RN
pass rate of 75% or higher for "first-time" test takers. The BRN
also took steps to also improve on the testing of international
graduates since there was also a very low pass rate for foreign
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students. There is still a low pass rate, 37% to 47%, but
improvements continue to be made.
Increases were made to the Board's scholarship and loan
repayment programs from $579,410 in FY 2003/04 to $1,474,975 in
FY 2009/10, pursuant to Legislation supported by the BRN.
Although improvements have been made in the BRN's enforcement
program, there are still extreme delays in the handling of
disciplinary cases. To deal with this problem, the BRN worked
closely with the DCA and its DOI and with the Attorney General's
Office (AG) to work on handling the backlogs of cases,
prioritizing cases, drafting pleadings, creating a case
management system for tracking cases, and accessing state and
national data bases for criminal and disciplinary information.
It also requested and had Budget approval for increased staffing
levels. It is the goal of the BRN with all of these changes to
eventually improve discipline case processing timeframes so that
cases are completed in an average of 12 to 18 months .
The Board also proposed a number of legislative and regulatory
changes to improve its overall operations and functions of both
its licensing and enforcement programs and to deal with nursing
shortages and workforce issues for the nursing profession.
4. This Measure Includes the Following Statutory Changes as
Identified by This Committee During Its Oversight Hearings of
March, 2011:
a) Grants the BRN the authority to hire investigators and to have
such investigators designated as peace officers. For the BRN,
the average number of years it takes from receipt of a complaint
to the final disposition of a case, where disciplinary action is
taken, has not changed to any significant degree for several
years. It takes on average 16 months to complete an
investigation, 7.5 months for the AG to file an accusation and
another 12 months for the AG to prosecute a case or reach a
stipulated settlement; a little over 3 years. This does not take
into account cases which may go well over three years to
complete. There are a number of reasons for the extremely
lengthy process for taking disciplinary action against a nurse
who may have violated the Nursing Practice Act or been involved
in criminal activity.
Possibly the most critical issue which must be addressed to improve
the disciplinary case timeframe is the shortage of investigators
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for the BRN. The BRN received 7,483 complaints in 2009-2010,
over 1,689 more complaints than it received in 2008-2009 (5,794),
and has steadily increased over the past four years when in
2006-2007 it received less than half as many cases (3,361). The
primary reason for the substantial increase is that all nurses
are now fingerprinted and the BRN receives criminal history
information on the applicant for an RN license and the current
licensee upon renewal of their license. There is also an
increase, and will continue to be an increase, in the information
that the BRN receives regarding nurses who may have violated the
law or been disciplined by a licensing authority in another
state. In March 2010, the BRN contracted with the National
Council of State Board of Nursing (NCSBN) to complete a
comparison of the BRN's licensing data base with that of the
NURSYS database, which provides information on prior disciplinary
action of state boards. The BRN is also requesting that it be
able to participate with the DOJ and with the FBI to participate
in a program that will provide subsequent arrest and conviction
information for nurses from other states who may now be
practicing in California.
With the increased complaint activity, the BRN is still doing a
good job of moving complaints along expeditiously without any
additional staffing. Complaint processing time on average has
dropped from 100 days in 2006-2007, to 40 days in 2009-2010.
Delays in moving the case forward begin to occur once the case
moves to investigation, either by BRN staff or the DOI. Because
of a severe lack of investigators within the BRN, the backlog of
cases and the timeframe for investigating cases will only
increase, and substantially increase because of the large number
of complaints the BRN is now receiving. The BRN originally
requested 63 positions but was granted 37 new positions in the
current budget year. However, these new positions are now in
jeopardy because of the recent hiring freeze and a $15 million
loan which will be taken from the BRN's reserve funds for the
General Fund purposes. One of the goals of BRN in obtaining its
own investigative staff was to handle more investigations by
their own staff and not rely on DOI for many of its
investigations. For example, out of the 7,864 cases handled by
BRN staff investigation, 6,453 or 82% were closed within one year
by. The DOI has also had problems in pursuing its cases. DOI
has seen increased caseloads but a decrease in staffing levels.
DOI also had problems with lack of management and prioritization
of cases and communication with client boards regarding the
status of their case. Although the circumstances for DOI have
improved somewhat, thanks to the efforts of the DCA's
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California's Protection Enforcement Initiative (CPEI) from last
year, the DOI is still taking on average about 20 months to
investigate BRN cases. Providing the opportunity for the BRN to
assume major responsibility for investigating cases should have a
significant impact on the overall time it is taking to complete
investigations.
It was recommended that the BRN should be granted statutory
authority to hire its own investigators and not always have to
rely on DOI, and to have the ability for some of its
investigators to be designated as peace officers with arrest and
subpoena powers.
b) Grants the BRN authority to be the only agency responsible for
approving schools of nursing. Approval of pre-licensure nursing
programs is an integral component of the BRN's operation. The
purpose of approval is to ensure the program's compliance with
statutory and regulatory requirements. Approval of advanced
practice nursing (i.e., nurse practitioner and nurse-midwifery)
programs is voluntary and at the request of the program. BRN
approval of advanced practice programs is advantageous to program
graduates because it facilitates their obtaining BRN
certification as a nurse practitioner or nurse-midwife.
Currently, there are 148 approved pre-licensure nursing programs
and 26 approved advanced practice nursing programs, as follows:
Pre-licensure Programs
90 associate degree (ADN)
39 baccalaureate degree programs (BSN)
19 entry-level master's degree programs (ELM)
110 Public Programs
38 Private Programs
Advanced Practice Nursing Programs
22 nurse practitioner programs
4 nurse-midwifery programs
The approval process begins with a Letter of Intent from the
school or institution of higher education which is trying to
establish and offer a nursing program and must be submitted at
least one year in advance of the anticipated date for admission
of students. After a Letter of Intent is submitted, the
applicant must then submit a Feasibility Study to the BRN
documenting the need for the program and the program applicant's
ability to develop, implement, and sustain a viable pre-licensure
RN program. The feasibility study is rather extensive and
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usually requires the applicant to seek the assistance of a
consultant familiar with providing the information needed by the
BRN in determining the feasibility of the program. Once the
feasibility study is accepted by the BRN, the program applicant
must then appoint a Program Director . The Program Director will
have responsibility for preparing a Self-Study for the proposed
program and coordinate any site visits by the BRN. The
Self-Study describes how the proposed program plans to comply
with all BRN nursing program related rules and regulations. The
BRN will assign a Nursing Education Consultant (NEC) who verifies
that the Self-Study satisfactorily addresses the rules and
regulations regarding a nursing program, and will also make
on-site visits where the program will be maintained and the
selected clinical sites. Once the Self-Study is completed, the
NEC will then complete a report to be submitted to the BRN and
recommend that the BRN either grant or deny approval, or defer
action to grant the program additional time to resolve areas of
noncompliance. Once the program is approved by the BRN, it
receives a certificate of approval.
An applicant of a private postsecondary school or program must
then go through a secondary process that requires approval from
the Bureau of Private Postsecondary Education (BPPE) if they are
not accredited by the Western Association of Schools and Colleges
(WASC) or by a Regional accreditor. This approval process can
also take some time to complete and it is not clear what
advantage it provides in performing similar requirements for
feasibility and self-study which are already required by the BRN.
(It should be noted that currently both the Medical Board of
California and the Dental Board are the only agencies that
respectively approve either medical schools or dental schools in
California, as well as other states and in foreign countries.)
The BRN indicated that the average length of time from beginning
to completing the initial BRN approval process is about 18
months, but there have been instances in which this approval
process has taken almost four to five years for particular
programs, especially if they are private postsecondary schools.
Data has shown that these schools are a growing sector in the
training of health care workers. From 2001 to 2009, the
percentage of nursing degrees awarded by private postsecondary
schools throughout the U.S. grew from 4 % to 11 % of the national
total, while nursing awards from public colleges shrank from 78
to 70 %. In California, the share of public nursing programs has
decreased from its high of 85.6% to its current share of 76.1%.
It is anticipated that this growth of private nursing programs
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will continue, particularly in California. Private programs in
California grew from just 14 programs in 2001, to now over 38 in
2010. Also, student enrollment grew from 951 students in 2001,
to 4,607 in 2010.
It was indicated in this Committee's Report, that the involvement
of the BPPE in the approval of nursing school programs seems
unnecessary and therefore the BRN should assume all
responsibility regarding approval of these programs. In doing
so, the BRN should be given authority to charge an appropriate
fee to cover their costs for reviewing documents, consulting with
the program and conducting site visits. This fee should be
similar to fees currently assessed by the BPPE for approval of
school programs. Current student protections provided under the
Act will continue to apply to those nursing programs which are
currently approved by BPPE and the BRN would now assume the
responsibility of responding to student complaints regarding a
nursing program.
a) Authorizes the BRN to issue a cease and desist order to a
school of nursing that has not been approved by the BRN and to
inform the Attorney General of a school which continues to
operate illegally. As indicated, the BRN has primary
responsibility for approval of pre-licensure nursing programs and
when a program is not approved it is not permitted to operate in
California and should not be able to open its doors to potential
nursing students. The BRN provides a notice on its Website about
the increasing number of "unaccredited" nursing programs within
California. The BRN's notice indicates that they will not
qualify an applicant to take the National Council Licensing
Examination (NCLEX), for nursing students, or to be licensed,
after completion of an "unaccredited" nursing program. "If any
portion of the instruction is completed at or through an
unapproved program, it is considered unaccredited," as stated by
the BRN. The BRN goes on to explain some of the indicators of a
program that may be unaccredited and to caution students to
verify whether such a program is accredited by seeing the listing
of the BRN's Website of approved nursing programs. The BRN also
specifically lists those programs which are "approved." However,
it does not appear as if it lists those programs which may have
not been approved by the BRN.
According to this Committee's Report, the efforts of the BRN to
only inform students of "unaccredited" programs may not be
sufficient. Recently, there was a nursing program that continued
to operate for over two years, even though the BRN did not grant
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approval and in 2007 had ordered the school to close. As many as
300 students paid $20,000 each to enroll and attend classes at
this school, some attending for over two years. If potential
students had checked the BRN Website they would not have found
this school listed as an approved program, but sadly many
potential students do not know that the BRN provides this
information and warning. The AG was able to assure that the
institution was finally shut down and reached a settlement
agreement with the owner and operators of the school for $500,000
as restitution to the former students. According to the then AG
Edmund G. Brown, Jr., this sham nursing school created "the
illusion it was training future nurses by pretending to offer an
accredited nursing program and tricking graduates into believing
they had qualified to become nurses."
Something must be done to assure that once the BRN has decided
that a program should not operate in California, that school does
not then find a way to open its doors to students who ultimately
spend two to three years of their lives in a school they think
will qualify them to be a nurse, which sadly will not. Better
communication between the BRN and the AG's Office and BRN
revisiting the school site may be an option. It was recommended
that the BRN must work more closely with the AG's Office and
perform site visits to assure that a nursing program which is not
approved does not somehow continue to operate in California.
There must be a requirement for it to cease and desist operation
and there must be an IMMEDIATE shut down of this program if it
continues to operate so that students are not ultimately deceived
and waste precious years of their lives attending a bogus
program.
b) Specifies the intent of the Legislature to audit the BRN's
substance abuse diversion program. The BRN Diversion Program was
created in 1985 as an alternative to disciplinary action for RNs
whose practice may be impaired due to chemical dependency or
mental illness. The BRN relies on a contractor (MAXIMUS) to
provide the necessary oversight and treatment of its licensees.
There are several other state-run recovery programs for substance
abusing health care professionals which also rely on MAXIMUS.
Those who have substance abuse problems can avoid license
sanctions by taking part in a confidential "diversion" program of
drug testing, treatment and restrictions on their practice. The
success and effectiveness of these programs has been called into
question. For example, the Los Angeles Times detailed how the
program for nurses with drug abuse problems was largely
unsuccessful and had failed to quickly take action when nurses
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flunked out despite being internally labeled "public safety
threats." Moreover, it was pointed out that because the program
is confidential, it is impossible to know how many enrollees
relapse or harm patients and that the necessary oversight of
programs like this is lacking.
In July of 2008, the diversion program for the Medical Board was
eliminated because of its continued failures to provide the
appropriate oversight and treatment of physicians who
participated in this program. In 2010, MAXIMUS was audited by
the DCA at which time it was indicated that they were complying
with all of the requirements of their contract; however,
Committee staff had serious concerns about the completeness of
this audit and the serious deficiencies which may still exist
with this program. This came to light when it was found that
MAXIMUS was recently testing participants in the health boards'
Diversion Programs and using inexact standards (i.e.,
participants were tested at a higher standard and tested negative
when they should have been tested at a lower standard and may
have potentially tested positive). The DCA took immediate steps
to rectify this problem, but it still raises questions about the
effectiveness and efficiency of MAXIMUS and those Diversion
Programs which rely on this contractor. Also, none of the
individual health board programs have been audited, so the
success or failure of these programs is unknown. (It should be
noted the Medical Board's Diversion Program was audited 5 times ,
before the Medical Board decided to call it quits and end the
program.) The BRN does point out that there have been over 1,500
RNs who have successfully completed their Diversion Program out
of the 4,000 who have entered the program since 1985, but it is
unable to accurately determine if nurses relapse. They rely
instead on "self-reporting" of prior participants. The BRN
indicates that since 1985, there are 40 known instances of
relapse, or a 4.9% recidivism rate. The administrative costs for
the Diversion Program are borne primarily by the BRN, with
participants paying $25 a month and paying for the cost of random
drug testing. Total costs for the Division Program have risen
from $1,064,962 in FY 2006/07 to $1,436,324 in FY 2009/10.
In an attempt to at least provide uniform standards for these
programs in the way they operate, the DCA was mandated by
legislation, SB 1441 (Ridley-Thomas, Chapter 548, Statutes of
2008), to put forth "Uniform Standards Regarding
Substance-Abusing Healing Arts Licensees" (Uniform Standards).
Although this may provide these health care boards with
consistent standards in dealing with substance-abusing licensees,
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there is still the issue of the overall effectiveness, efficiency
and performance of these programs to assure that participants are
appropriately monitored, and that the public is protected from
health care practitioners who are impaired due to substance
abuse. There is also a question as to how the BRN is
implementing the Uniform Standards, especially as to the drug
testing requirements.
It was recommended that the Committee should consider requiring an
audit of the BRN's Diversion Program in 2012, along with the
other health boards which have Diversion Programs, to assure that
these programs are appropriately monitoring and treating
participants, and to determine whether these programs are
effective in preventing further substance abuse.
c) Prevents the Governor from borrowing from the special fund of
the BRN. The Governor recently proposed borrowing $830 million
from 48 special funds to be transferred to the General Fund as a
way to replace the bulk of the $1.2 billion in one-time revenue
lost by the cancellation of the former Administration's proposed
sale of state office buildings. There are also more than 15 of
the regulatory boards and bureaus under the DCA tapped for
similar loans. At $15 million the BRN gives up the most . It is
proposed that this amount will be paid back during the FY
2013/2014. For the BRN, this may be too late. In FY 2002/03,
$12 million was taken from the BRN's reserve funds and in FY
2008/09, $2 million was taken, and the BRN is still owed $2
million. This means that there will be over $17 million owed to
the BRN. In an effort to hire more staff and investigators, the
BRN almost doubled the licensing fees charged to RNs on January
1, 2011, as indicated. This means that even if the BRN was
granted authority to hire the 37 positions granted to the BRN in
FY 2010/11 (because of the current hiring freeze), it is
questionable whether there will be sufficient funds available to
hire the investigative staff the BRN so badly needs.
The issue of special fund loans has been a constant problem for
this Committee and the Legislature in regards to the boards and
bureaus under the DCA. This Committee, along with the Assembly
Business and Professions Committee, has reviewed all boards over
the years (through the process of sunset review) and any
anticipated problems in the appropriate funding of their programs
has been considered and efforts have been made to either reduce
their budget or program requirements, or increase their level of
funding through license fee increases. Over the years, the
boards have been placed in a position of not being able to spend
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the revenue which has been made available to them for purposes of
properly running their enforcement programs. They have either
been denied spending authority for their increased revenue
through denial of Budget Change Proposals (BPCs) or by other
directives. This has the effect of increasing their reserve
funds only to find that rather than having any chance of using
these funds in the future to deal with increased enforcement
costs, the money reverts back to the General Fund by way of a
"loan." Unless there is a strong mandate that licensing fees
should only be used for purposes of properly operating licensee
programs at the board and bureaus, this vicious cycle will
continue. One of the outcomes of budget changes and cutbacks to
boards has been the slow-down of cases or actual holding off on
pursuing cases by DOI and the AG's Office because the board(s)
ran out of money at some in the process. For example, it appears
as if BRN had to tell the AG to slow down or stop working on its
cases for a certain amount of months for fiscal years 2003-2004,
2004-2005, 2006-2007, 2007-2008 and 2008-2009.
It was recommended that there not be any further loans from the
reserve funds of the BRN to the General Fund, especially in light
of the recent fee increase which the RN profession must now
absorb. The RN profession will see little if any return on its
investment to improve the operation of the BRN, especially in its
enforcement program and in providing the resources and staffing
it so sorely needs.
d) Extends the BRN's sunset date for 4 years to January 1, 2016.
The health and safety of consumers are protected by a
well-regulated nursing profession. In August 2009, because of
the media attention the BRN received which highlighted some
serious problems with the BRN, Governor Schwarzenegger
reconstituted the BRN and replaced it with new members. The
Executive Officer of the BRN resigned shortly thereafter. Since
the reconstitution of the BRN, new members and staff have made a
strong commitment to improve the BRN's overall efficiency and
effectiveness. As indicated in the Committee's Report, there are
still many changes which need to be made and providing the proper
resources and staffing are key, but the BRN has committed to work
cooperatively with the Legislature and this Committee to bring
about the necessary changes. It was recommended that the BRN
should be continued with a four-year extension of its sunset date
so that the Committee may review once again if the issues and
recommendations in highlighted by the Committee have been
addressed.
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1. Related Legislation. Other sunset review bills to be presented
before the Senate Business and Professions Committee include:
a) SB 539 which deals with the Board of Vocational
Nurses and Psychiatric Technicians.
b) SB 540 which deals with the Dental Board.
c) SB 541 which deal with the DCA and the contracting
for expert consultants by the boards.
d) SB 542 which deals with California Board of
Accountancy and the Professional Fiduciaries Bureau.
e) SB 543 which deals with the California Architects
Board , Contractors State License Board, Landscape
Architects Technical Committee, Board for Professional
Engineers, Land Surveyors, and Geologists, State Board of
Guide Dogs for the Blind, State Athletic Commission.
f) SB 706 which deals with the Department of Real
Estate and the Office of Real Estate Appraisers.
SUPPORT AND OPPOSITION:
Support:
California Association of Nurse Anesthetists, Inc.
California Nurse Midwives Association
Opposition: None on file as of April 27, 2011.
Consultant: Bill Gage