BILL ANALYSIS �
SB 538
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Date of Hearing: July 5, 2011
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Mary Hayashi, Chair
SB 538 (Price) - As Amended: June 27, 2011
SENATE VOTE : 31-5
SUBJECT : Nursing
SUMMARY : This bill extends the sunset date of the Board of
Registered Nursing (BRN) and makes a number of changes to the
BRN's authority and operations, and to the Nursing Practice Act
(NPA). Specifically, 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 operating date of the BRN and its authority to
appoint and executive officer to January 1, 2016, and subjects
the BRN to review by the appropriate policy committees of the
Legislature.
3)Requires the BRN to hold its meetings in the northern and
southern parts of the state.
4)Requires a school of nursing that is not an institution of
higher education or that is affiliated with an institution of
higher education as required by the BRN, and that is subject
to the California Private Postsecondary Education Act (PPE
Act), to be approved by the BRN to grant an associate of arts
or associate of science degree to individuals who graduate
from the school of nursing or to grant a baccalaureate degree
in nursing with successful completion of an additional course
of study as approved by the BRN and the institution involved.
5)Provides that, if an institution of higher education, an
affiliated institution, or an institution subject to the PPE
Act applies for approval of a new school of nursing, the
school of nursing shall be required to be recognized or
approved by an accrediting agency recognized by the United
States Department of Education.
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6)Specifies that the BRN's educational standards for licensure
shall be designed to require, rather than encourage, all
schools to provide clinical instruction in all phases of the
educational process.
7)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 PPE Act.
8)Provides that a BRN-approved institution of higher education
or private postsecondary school of nursing shall remit fees
for deposit into the BRN Fund, as follows:
a) A fee of $5,000 for approval of a school of nursing;
b) A fee of $3,500 for continuing approval of a new nursing
program; and,
c) A fee of $500 for processing authorization of a
substantive change to an approval of a school of nursing.
9)Specifies that, in addition to any of the fees specified in
8), above, each school that is approved by BRN shall remit an
annual institutional fee to the Bureau for Private
Postsecondary Education (BPPE), in an amount equal to
three-quarters of 1% of the school's annual revenues derived
from students in California, with a cap of $25,000 annually,
to be deposited in the Private Postsecondary and Vocational
Education Administration (PPVEA) Fund.
10)Specifies that, if BRN determines that the annual cost of
providing oversight and review of a school of nursing as
required by this bill is less than the amount of any fees
required to be paid by that institution, the BRN may decrease
the fees applicable to that institution to an amount that is
proportional to the BRN's costs.
11)Requires the BRN to order a school to cease and desist from
offering students the ability to enroll if the BRN has a
reasonable belief that the school is allowing students to
apply for a nursing program that has not been approved by the
BRN. The BRN must also notify the Attorney General's (AG)
office that the school is offering students the ability to
enroll in a nursing program that does not have BRN approval.
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12)Provides that it is unprofessional conduct for any registered
nurse (RN) to violate, attempt to violate, or assist or abet
the violation of 11), above.
13)Provides that persons employed by the BRN may be peace
officers if designated as such by the Director of the
Department of Consumer Affairs (DCA).
14)Redefines "institution of higher education" to include, but
not be limited to, community colleges offering an associate of
arts or associate of science degree, or an entry-level
master's degree, and private postsecondary institutions
offering an associate of arts, associate of science, or
baccalaureate degree and not subject to the Act.
EXISTING LAW
1)Provides for the regulation of various health professions by
regulatory boards within DCA.
2)Establishes the NPA, which provides for the certification and
regulation of RNs, nurse practitioners (NPs) and advanced
practice nurses by BRN within DCA.
3)Establishes within DCA the Division of Investigation (DOI) to
investigate alleged misconduct by licensees of DCA boards.
Allows the Director of 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.
4)Provides that investigators of the DOI and the Medical Board
of California (MBC) and Dental Board of California have the
authority of peace officers and that those entities are also
authorized to employ individuals who are not peace officers to
provide investigative services.
5)Sunsets the BRN and its authority to appoint an executive
officer on January 1, 2012.
6)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
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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.
7)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.
8)Establishes the BPPE within DCA to provide oversight and
regulation of California private postsecondary institutions
pursuant to the PPE Act.
9)Establishes numerous unfair business practices for
institutions covered by the PPE 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. Sets forth certain disclosure requirements
pertaining to completion, placement, licensure, and earning
potential.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of this bill . According to the author's office, "The
primary purpose of this measure is to extend the sunset date of
the BRN to January 1, 2016?The Author and the BRN (also) believe
that the following changes will provide improvements to the
BRN's nursing school approval process: (1) Grant complete
authority over the approval of nursing schools rather than
requiring a duplicative process under BPPE and to offset costs
of the BRN in approving and regulating nursing schools; (2)
Provide the BRN with the ability to issue a cease and desist
order to a school of nursing which has not been approved by the
BRN and to inform the AG of a school which continues to operate
illegally; (3) Provide for an accreditation requirement for the
educational institutions which provide nursing school programs.
"The measure will also make some other clarifying and technical
changes regarding the nursing school approval process and to
meetings of the BRN. Finally, this measure will grant the BRN
authority to hire their own in-house investigators and to have
some of those investigators designated as peace officers so they
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do not have to depend on the DOI of the DCA under all
circumstances in investigating complaints."
Background . The BRN is responsible for regulating the practice
of nursing in California. There are nearly 380,000 licensed RNs
in California, with more than 23,000 new licenses issued and
more than 170,000 licenses renewed annually. The BRN also
regulates interim permittees (applicants who are pending
licensure by examination), and temporary licensees (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, NPs,
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 NPs 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 California
pre-licensure RN programs, nurse-midwifery programs, NP
Programs, and RN continuing education (CE) providers.
This bill extends the sunset date of the BRN and makes a number
of changes to the BRN's practices and regulatory programs.
According to information from the author's office, it takes the
BRN an average of three years from receipt of a complaint to the
final disposition of a case, where disciplinary action is taken.
There are a number of reasons for the extremely lengthy process
for taking disciplinary action against a nurse who may have
violated the NPA or been involved in criminal activity, the most
critical of which is a shortage of BRN investigators.
Complaints to the BRN have increased in recent years, due in
large part to the requirement that all nurses are fingerprinted
and criminal history information about initial and renewal
applicants be sent to the BRN. There is also an increase in the
information BRN receives regarding nurses who may have violated
the law or been disciplined in another state. The BRN has
contracted with the National Council of State Boards of Nursing
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(NCSBN) to complete a comparison of the BRN's licensing database
with the NCSBN's Nursys database, an online licensure
verification system that provides information on prior
disciplinary action of state boards. The BRN is also requesting
to participate with the Department of Justice (DOJ) and the FBI
in a program that provides subsequent arrest and conviction
information for nurses from other states who may be practicing
in California.
Despite increased complaint activity, the BRN is still
processing complaints expeditiously without additional staffing.
Delays in moving cases forward begin to occur when they enter
the investigation phase, 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 is
likely to increase.
One of the BRN's goals in obtaining its own investigative staff
is to handle more investigations by their own staff instead of
relying on DOI for many of its investigations, because DOI has
also had problems in pursuing its cases due to increased
caseloads and decreased staffing levels. DOI is takes 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 takes to complete investigations.
This bill allows BRN to hire or designate investigators of the
BRN as peace officers and to employ individuals who are not
peace officers to provide investigative services. It also
provides that BRN employees may be peace officers if designated
as such by the Director of DCA.
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 (NP and
nurse-midwifery) programs is voluntary. BRN approval of
advanced practice programs is advantageous to program graduates
because it facilitates their ability to obtain BRN
certification. There are 148 approved pre-licensure nursing
programs and 26 approved advanced practice nursing programs.
The BRN approval process is quite lengthy, and must begin at
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least one year before the anticipated date for admission of
students. Private postsecondary schools or programs must
complete secondary process for approval from the 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. (The MBC 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 indicates 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 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.
According to the author, 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. Current student protections provided
under the PPE Act will continue to apply to nursing programs
that are currently approved by BPPE, and the BRN would assume
the responsibility of responding to student complaints regarding
a nursing program.
This bill shifts approval of private postsecondary nursing
schools to the BRN and establishes a fee schedule for the BRN's
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administration costs, while maintaining PPE Act requirements for
these schools.
As indicated, the BRN has primary responsibility for approval of
pre-licensure nursing programs. 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
reviewing the list of approved nursing programs on the BRN's
website. The BRN also specifically lists programs that are
"approved," but does not appear to list programs that have not
been approved by the BRN.
According to the author's office, the efforts of the BRN to only
inform students of "unaccredited" programs may not be
sufficient. Recently, a nursing program continued to operate
for more than two years, even though the BRN did not grant
approval and 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 more than two years. If potential
students had checked the BRN website they would not have found
this school listed as an approved program, but 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."
The author argues that 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. Better communication between the BRN and the AG's Office
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has been suggested, as well as a requirement that such a school
cease and desist operation and be shut down immediately so that
students are not deceived and do not waste precious years of
their lives attending a bogus program.
This bill requires the BRN to order a school to cease and desist
from offering students the ability to enroll if the BRN has a
reasonable belief that the school is allowing students to apply
for a nursing program that has not been approved by the BRN.
The BRN must also notify the AG's office that the school is
offering students the ability to enroll in a nursing program
that does not have BRN approval. This bill also makes it
unprofessional conduct for any RN to violate, attempt to
violate, or assist or abet the violation of this provision.
Support . The California Nurse-Midwives Association writes, "The
BRN plays a vital role not only in the nursing profession, but
also in ensuring quality health care in our state?Without the
Board, there would not be a way to certify that nurses truly
have the set of skills needed to treat those in need, nor would
there be a way to verify that nursing educational programs are
teaching the required curriculum for students to be successful,
among other potential consequences."
Related legislation . SB 539 (Price) extends the sunset date of
the Board of Vocational Nursing and Psychiatric Technicians
(BVNPT), expands requirements for employers of licensed vocation
nurses (LVNs) and psychiatric technicians (PTs) to report
specified information to the BVNPT, and makes other changes.
This bill is pending in Assembly Appropriations Committee.
SB 540 (Price) extends the sunset date of the Dental Board of
California and makes a number of other programmatic changes.
This bill is pending in Assembly Business, Professions and
Consumer Protection Committee.
SB 541 (Price) authorizes the boards and bureaus within the
Department of Consumer Affairs, as well as the State Board of
Chiropractic Examiners and the Osteopathic Medical Board, to
continue to utilize expert consultants without having to go
through the formal contracting process. This bill is pending in
Assembly Appropriations Committee.
SB 543 (Price) extends the sunset date of a number of boards,
committees and commissions within DCA and makes programmatic and
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administrative changes to some of these entities. This bill is
pending in Assembly Business, Professions and Consumer
Protection Committee.
SB 706 (Price) makes numerous enforcement enhancements to the
Department of Real Estate and the Office of Real Estate
Appraisers. This bill is pending in Assembly Business,
Professions and Consumer Protection Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Nurse-Midwives Association
California Association of Nurse Anesthetists
Opposition
None on file.
Analysis Prepared by : Angela Mapp / B.,P. & C.P. / (916)
319-3301