The Board of Registered Nursing (BRN) is a state regulatory entity that operates within the California Department of Consumer Affairs (Consumer Affairs). State law establishes a nine‑member board (BRN board) to serve as BRN’s decision‑making body. The BRN board is composed of five registered nurses and four members of the public. Seven of the members are appointed by the Governor and two of the public members are appointed by the Legislature. Each BRN board member serves a four‑year term and can be reappointed, although a member cannot serve more than two consecutive terms. The BRN board meets monthly to discuss and decide on nurse discipline, nurse education, legislation, and various other administrative matters. BRN’s mission is to protect and advocate for the health and safety of the public by promoting quality registered nursing care in the State.
BRN is responsible for implementing and enforcing the Nursing Practice Act (Nursing Act). The Nursing Act establishes the laws related to the licensure, practice, and discipline of nurses. According to state law, BRN’s highest priority is the protection of the public while exercising its licensing, regulatory, and disciplinary functions. According to BRN’s website, as of September 2016, BRN regulated more than 421,000 licensed nurses, who provided health care services in various settings, such as health departments, hospitals, private practices, and schools, among others.
BRN aims to protect the health and safety of consumers by enforcing the laws and regulations governing the practice of nursing. Part of this effort includes BRN’s enforcement process, through which BRN determines whether nurses have violated provisions of the Nursing Act. According to statistics BRN provided, it receives an average of about 7,500 complaints per year regarding licensed nurses and prospective nurse applicants. BRN’s enforcement unit handles these complaints. According to BRN’s 2002 and 2010 Sunset Review reports, it has struggled to resolve consumer complaints within a reasonable time frame, often taking an average of three or more years to resolve. More recently, in its 2014 Sunset Review Report, BRN reported taking an average of 22 months to resolve consumer complaints. The enforcement unit—consisting of about 80 to 90 employees, according to the chief of licensing and administrative services—is responsible for processing incoming complaints, conducting investigations, implementing sanctions or discipline imposed by the BRN board, and monitoring nurses on probation. However, approximately 20 of these employees are responsible for processing incoming complaints, and fewer than 20 others are responsible for implementing board‑imposed sanctions or discipline.
In October 2013, Consumer Affairs and BRN implemented an enforcement and licensing system known as BreEZe. The system enables consumers, licensees, and applicants to verify professional licenses, renew licenses, update personal license information, and file complaints, among other tasks. BRN uses BreEZe as a database to manage its cashiering, renewal, and licensing. It also relies on BreEZe for its enforcement functions, using it to manage its complaint resolution process from complaint intake through the BRN board’s final disposition. However, as we discuss in the Audit Results, some of the data BRN entered into BreEZe lacks accuracy critical to assessing its efficiency and effectiveness in resolving complaints.
Complaint Intake and Investigation
According to state law, BRN must prosecute all people guilty of violating provisions of the Nursing Act. The BRN board may take disciplinary action against a licensed nurse or deny an application for a license for violations such as incompetence or gross negligence; procuring a certificate or license by fraud, misrepresentation, or mistake; or conviction of a felony or of any offense substantially related to the qualifications, functions, and duties of a registered nurse, among other reasons. BRN begins its enforcement process once it receives a complaint regarding a nurse. A complaint can be filed by anyone who believes that a nurse licensed by BRN has engaged in illegal activities that are related to the nurse’s professional responsibilities. BRN receives complaints from members of the public, other governmental entities, and health care facilities, among others. As we discuss in our Audit Results, the California Department of Justice also notifies BRN following a nurse’s arrest or conviction of a crime for those nurses whose fingerprints are on file.
After BRN receives a complaint, an intake analyst determines whether BRN has jurisdiction to investigate the complaint and, if so, moves the complaint forward. Figure 1 summarizes the steps BRN takes to resolve consumer complaints. It shows that if the allegation involves references to substance abuse or mental illness, BRN immediately refers the nurse to its contractor‑managed intervention program to offer the opportunity for treatment. If substance abuse or mental illness is not alleged in the complaint, BRN determines whether the complaint should receive a formal investigation or should be closed because there is no evidence that the allegation is valid. If a formal investigation is necessary, BRN refers the complaint to either its investigators or Consumer Affairs’ Division of Investigation (DOI) investigators. DOI’s investigators are sworn peace officers, whereas BRN’s investigators are not. Whenever an allegation involves criminal activity—such as an allegation of rape, murder, or child abuse—and criminal proceedings are under way against the nurse, a BRN staff member can appear in court to furnish pertinent information and make recommendations regarding conditions of the nurse’s probation. If there are no criminal charges filed, but the allegation is still a risk to public safety, such as if the nurse is practicing under a fraudulent license, BRN can also petition an administrative law judge to issue an interim suspension order—which would suspend the nurse’s license to practice—or to impose restrictions on the nurse’s license.
Summary of the Board of Registered Nursing’s Complaint Resolution Process
Sources: Information provided by BRN and state law and regulations.
* According to BRN management, when BRN receives a complaint that is not related to the violation of the Nursing Act, it closes the complaint and forwards it to the appropriate healing arts board or agency.
† According to BRN’s management, if BRN receives a notification from law enforcement that a nurse has been arrested or convicted of a crime, it could forward it to the Attorney General without conducting an investigation. Specifically, BRN’s chief of complaint intake and investigations explained that if such a notice relates to an egregious crime such as murder, rape, or assault, BRN may refer the case to the Attorney General to obtain a suspension based on Penal Code section 23, by requesting at the nurse’s arraignment or bail hearing that the judge suspend the nurse’s license.
If the analyst determines that a formal investigation is needed, BRN’s chief of complaint intake and investigations (chief of investigations) determines the appropriate investigative unit to handle the complaint. In a memorandum issued in 2009, Consumer Affairs established guidelines for prioritizing complaints (complaint guidelines) and indicated that it expected all healing arts boards (health boards), consisting of BRN and other health‑related licensing agencies, to follow them. These complaint guidelines, which became part of the 2010 Consumer Protection Enforcement Initiative, aimed to direct the appropriate investigative resources and attention toward complaints. The 2009 complaint guidelines established three categories of complaints based on the severity of the allegation, prioritizing them as either urgent, high, or routine. Urgent complaints would require the most immediate resources to investigate, while routine complaints could be handled by the health boards in their ordinary course of business. According to Consumer Affairs, it verbally directed the health boards, including BRN, to refer urgent‑ and high‑priority complaints to DOI for investigation. In July 2014, DOI revised the complaint guidelines to create four categories of priority and included additional criteria. Figure 2 depicts these revised guidelines. Because some health boards were not following Consumer Affairs’ direction that all urgent‑ and high‑priority complaints be referred to DOI investigators, the Legislature took steps to have the complaint guidelines established as a requirement in state law. As of January 2016, state law requires the health boards, including BRN, to use the complaint guidelines established by DOI to prioritize their respective complaint and investigative workloads and these guidelines require BRN and the other health boards to refer urgent‑ and high‑priority complaints to DOI.
California Department of Consumer Affairs’ Division of Investigation’s Case Acceptance Guidelines for Complaints Filed With Healing Arts Boards
Sources: Consumer Affairs’ DOI’s Case Acceptance Guidelines as of July 2014 (Consumer Protection Enforcement Initiative Model) and interviews with DOI.
Note: In August 2016, Consumer Affairs published revised guidelines for the referral of cases for investigation. In particular, these guidelines specify that complaints categorized as urgent or high are to be referred to DOI for investigation, whereas complaints categorized as routine are to be investigated by the health boards.
According to the director of Consumer Affairs, Consumer Affairs consistently communicated to the health boards, including BRN, between 2013 and 2016, that any complaints prioritized as urgent and high priority were required to be referred to DOI and investigated by sworn peace officers, whereas the health boards’ investigators were to process the routine complaints. As we described previously, BRN’s investigators are not peace officers. The director of Consumer Affairs also stated that, at his direction, DOI provided training to BRN and the other health boards on how to interpret and implement the complaint guidelines.
Once an investigation begins, the investigator obtains evidence and generates a report on the findings. In cases involving patient care, BRN may contract with expert witnesses—registered nurses with specific types of experience and experts in areas such as oncology, hospice, psychiatry, and psychology—to provide an opinion based on the facts of the case. After BRN has obtained all relevant evidence, it determines whether it should pursue disciplinary action against a nurse’s license, issue a citation and fine, or close the case due to an inability to substantiate the complaint.
BRN’s Disciplinary Process
Types of Discipline
- Public reproval
- License suspended
- License revoked
Source: Business and Professions Code sections 2759 and 495.
BRN has the authority to discipline a registered nurse for violating the Nursing Act. BRN may take disciplinary action for a variety of reasons, including incompetence or gross negligence, practicing medicine without a license, and using any dangerous drug or alcohol to the extent that it is dangerous to the nurse or others. As shown in the text box, BRN may impose discipline ranging from public reproval to license revocation. A public reproval is a letter of reprimand that BRN issues to the nurse. It is not a restriction on the nurse’s license.
If BRN determines that a nurse’s violation or violations warrant formal disciplinary action, BRN forwards the case to the Office of the Attorney General (Attorney General) for review. The Attorney General prepares an accusation, which is a legal document that describes the charges it plans to pursue against a nurse, and sends it to the nurse. The nurse may dispute the charges at an administrative hearing. An administrative law judge within the Office of Administrative Hearings, which is independent from the Attorney General, conducts the hearing. In some cases, BRN may negotiate a stipulated agreement with the nurse to resolve the case in lieu of a hearing. In such an agreement, the nurse admits to specific charges and agrees to the proposed disciplinary action. If the case goes to hearing, the administrative law judge writes a proposed decision. The proposed decision is then sent to BRN’s board for consideration. The board members make the final decision on disciplinary matters and can either adopt, modify, or reject proposed decisions and stipulated agreements. In addition, if a nurse fails to provide a notice of defense after receiving an accusation or fails to appear at an administrative hearing, state law authorizes BRN to consider the charges proven and take disciplinary action.
The disciplinary penalty is determined based on a number of factors, including how recent and severe the offense is, evidence of rehabilitation, any mitigating factors, and past disciplinary history. The version of BRN’s Recommended Guidelines for Disciplinary Orders and Conditions of Probation that is currently in use was implemented in May 2003. This document outlines possible violations and the recommended disciplinary action for those violations. For example, for the violation of practicing medicine without a license, the minimum discipline is revocation stayed with three years of probation. This means the BRN board would place the nurse on probation for three years with specified terms, and if the nurse failed to meet any of the terms, the BRN board would revoke his or her license. If drug use, alcohol abuse, or mental illness was involved in a violation, probation terms could include participation in a treatment or rehabilitation program, participation in an ongoing counseling program, physical and mental health examinations, and drug screenings. State law authorizes BRN’s board to deviate from these disciplinary guidelines in its decisions if it determines that the facts of a case warrant such a deviation due to, for example, mitigating factors, the age of the case, or evidentiary problems.
In addition to the discipline that the BRN board imposes, BRN’s executive officer has the ability to impose sanctions in the form of citations and fines. California regulations allow BRN’s executive officer to impose these sanctions in lieu of filing an accusation. BRN uses its “cite and fine” authority to resolve complaints against nurses when it determines it is appropriate. For example, BRN may recommend a citation and fine for a nurse who was arrested for driving under the influence of an intoxicant if the nurse’s blood alcohol content was low and there were no aggravating factors. A citation issued in this way must describe the nature and facts of each violation, including a reference to the statute or regulation the nurse violated. The citation may contain an administrative fine or an order to take specific actions to address the violation, or both.
BRN’s Cooperation With Other Agencies
According to BRN’s chief of investigations, throughout the course of its enforcement process, BRN interacts and collaborates with multiple state and federal entities, including the U.S. Food and Drug Administration, California Department of Veterans Affairs, California Department of Public Health, and California Department of Corrections and Rehabilitation. Various state agencies file complaints with BRN regarding nurses at their respective facilities. The chief of investigations stated that BRN also cooperates with other health boards at Consumer Affairs. She stated that the health boards are expected to notify one another if a health provider with multiple types of licenses, such as a nurse with a chiropractic or pharmacist license, is under investigation by any of these other health boards and, if warranted, to share information pertaining to their ongoing investigations. Additionally, according to BRN’s assistant executive officer, Consumer Affairs’ other health boards have a mutual understanding to forward to BRN complaints they receive related to registered nurses.
Scope and Methodology
The Business and Professions Code section 2718 requires BRN to contract with the California State Auditor’s Office to conduct a performance audit of BRN’s enforcement program. We list the objectives the law requires and the methods we used to address the objectives in Table 1.
|A||An evaluation of the quality and consistency of, and compliance with, complaint processing and investigation.||
An evaluation of the consistency and adequacy of the application of board sanctions or discipline imposed on licensees.
|C||An evaluation of the accuracy and consistency in implementing the laws and rules affecting discipline, including adherence to the Division of Investigations Case Acceptance Guidelines (Consumer Protection Enforcement Initiative Model), as revised July 1, 2014.|
|D||An evaluation of the time frames for completing complaint processing, investigation, and resolution.||
|E||An evaluation of staff concerns regarding licensee disciplinary matters or procedures.||Interviewed relevant management personnel and staff members to obtain their perspective on how effectively and efficiently BRN enforced discipline, including issues with the intake and investigation process that may affect discipline. Interviewed management personnel to gain their perspective on staff concerns. Generally, most employees we interviewed did not express concerns regarding licensee disciplinary matters or procedures. However, some staff expressed concerns regarding a lack of training related to their job duties. We include a statement regarding these concerns and management’s perspective beginning on page 44 in the Audit Results, where we describe BRN’s lack of a formal training program.|
|F||An evaluation of the appropriate utilization of licensed professionals to investigate complaints.||
|G||An evaluation of the adequacy of the board’s cooperation with other state agencies charged with enforcing related laws and regulations regarding nurses.||
|H||An evaluation of any existing backlog, the reason for the backlog, and the time frame for eliminating the backlog.||
|I||An evaluation of the adequacy of board staffing, training, and fiscal resources to perform its enforcement functions.||
Sources: California State Auditor’s analysis of Business and Professions Code section 2718 and information and documentation identified in the table column titled Method.
Assessment of Data Reliability
In performing this audit, we obtained electronic data files from the BreEZe system. The U.S. Government Accountability Office, whose standards we are statutorily required to follow, requires us to assess the sufficiency and appropriateness of computer‑processed information that we use to support our findings, conclusions, or recommendations. In performing this audit, we assessed the reliability of electronic data files extracted from the BreEZe system for the purpose of calculating the length of time BRN takes to process complaints, and to determine the number of open complaints.
To accomplish this assessment, we performed data‑set verification and electronic testing of key data elements and found no errors. However, as we discuss in the Audit Results, the BreEZe system has weaknesses in the controls used to validate data upon entry into the system. Specifically, BreEZe does not require staff members to enter activities into the system following BRN’s established business process. As a result, we found many inconsistencies in the order in which complaint processing activities occurred and had to exclude 17 percent of the complaints from our analysis that we present in Figure 6 and Figure 7, respectively, in the Audit Results. Six of the 40 complaints we reviewed were included in this population. For the remaining 34 complaints we reviewed, we compared selected dates in the system to dates reflected on available documentation in the complaint files and identified some errors. We describe these errors and other concerns we identified in our review of selected dates related to the 34 complaints in the Audit Results. Based on these issues, we determined that the BreEZe system data were not sufficiently reliable for the purpose of the audit. Although this determination may affect the precision of the numbers we present, there is sufficient evidence in total to support our audit findings, conclusions, and recommendations.