Response to the Audit
November 15, 2016
Elaine M. Howle, State Auditor
California State Auditor’s Office
621 Capitol Mall, Suite 1200
Sacramento, CA 95814
Dear Ms. Howle,
Thank you for the opportunity to respond to the draft audit report, “Board of Registered Nursing – Significant Delays and Inadequate Oversight of the Complaint Resolution Process Have Allowed Some Nurses Who May Pose a Risk to Patient Safety to Continue Practicing” number 2016-046, December 2016.
The Board of Registered Nursing’s (BRN) mission is to protect and advocate for the health and safety of the public by ensuring the highest quality registered nurses work in the state of California. We have experienced many challenges over the past eight years, but our commitment to continuous improvement and public protection is even greater. We endured events that revealed areas where we could do better in terms of protecting the public. The BRN has taken many steps to improve our processes but are always willing to receive additional feedback to assist us in this endeavor.
We appreciate that the findings of your report encourage the BRN to continue developing and refining our enforcement processes with an eye toward making additional improvements wherever possible. We aspire to ensure that all allegations against licensees and applicants that could endanger the public are investigated promptly, diligently, and in a manner that expeditiously protects the public.
Response to Recommendations
1. To ensure that BRN resolves complaints regarding nurses in a timely manner, it should to the following by March 1, 2017:
- Develop and implement formal policies that specify required time frames for each key stage of the complaint resolution process, including time frames for how quickly complaints should be assigned to the proper investigative unit or expert witness, and how long the investigation process should take. BRN should also work with DOI to establish a reasonable goal for the length of time DOI’s investigators take to conduct investigations of complaints referred to it by BRN.
BRN will continue to formalize and refine its current policies and required time frames for each key stage of the complaint resolution process. The BRN will work with the Division of Investigation (DOI) to establish a reasonable goal for the length of time for DOI’s investigators to conduct investigations.
2. Establish a formal, routing process for management to monitor each key stage of the complaint resolution process to determine whether the time frames are being met, the reasons for any delays, and any areas in the process that it can improve.
BRN will formalize its current processes for management to monitor each key stage of the complaint resolution process. BRN is currently utilizing Quality Business Integrity Reporting Tool (QBIRT) to allow managers to monitor and audit cases through the complaint resolution process. QBIRT is an IBM Cognos report product that the Department of Consumer Affairs (DCA) has purchased and provided for boards and bureaus to create data reports and queries from BreEZe data. Reports will be run weekly and or monthly dependent on the milestone being measured. BRN looks forward to working with DCA BreEZe staff to establish alerts to identify reasons for delays.
3. Establish a plan to eliminate its backlog of complaints awaiting assignment to an investigator.
As of November 15, 2016, the BRN does not have a backlog of complaints awaiting assignment to an investigator. However, the BRN finds it very important to establish a formal plan to ensure complaints awaiting assignment to an investigator are assigned based on the formal goals established in recommendation 1 above.
4. To increase its pool of expert witnesses, BRN should do the following by June 2017:
- Develop and implement a process to track the effectiveness of the methods it uses to recruit expert witnesses, and it should then focus its efforts on those methods that prove to be the most successful.
The BRN will work with other boards, bureaus, and DCA to develop and implement a method to track the effectiveness of expert witness recruitment.
5. Modify its renewal application process for nurses’ licenses to include a question regarding whether they would be interested in serving as an expert witness, and it should then develop a process to promptly follow up with these nurses.
The BRN will continue to work with DCA BreEZe staff to modify the license renewal process to include a question, to identify, track and respond to those individuals interested in becoming an expert witness.
6. Take the steps necessary to increase the hourly wage it pays expert witnesses.
The BRN will evaluate its operating budget to take the necessary steps to increase the expert witness wage. The BRN will work with other boards and bureaus to establish best practices.
7. To ensure it does not risk compromising private and confidential information related to ongoing investigations of complaints, BRN should immediately ensure that any email correspondence it has with expert witnesses is transmitted securely.
The BRN will work with DCA’s Office of Information Systems to develop a robust process to ensure the confidentiality of ongoing investigation of complaints is maintained in a secure manner. The BRN will work with other boards and bureaus to establish best practices.
8. To ensure that it is able to accurately monitor the performance of its complaint resolution process and that it has accurate date to address its staffing needs, BRN should do the following:
- Immediately begin working with Consumer Affairs to implement cost-effective input controls for BreEZe that will require BRN staff members to enter information into a complaint record in a way that is consistent with BRN’s business processes, as well as to implement changes that would cause BreEZe to accurately identify the order in which activities occur.
- Once it has implemented these controls and accumulated six months of data, BRN should analyze these data to determine whether its staffing is sufficient to meet its workload.
- Develop and implement training for all BRN complaint processing staff that instructs them on how to accurately enter information, including the date BRN received the complaint, in complaint records into BreEZe in a manner that is consistent with BRN’s business processes.
BRN subject matter experts regularly attend monthly Enforcement Users Group meetings to prioritize changes made in BreEZe in regards to enforcement issues. The BRN will continue to work with DCA BreEZe staff to see if it can implement cost effective input controls and other enhancements consistent with BRN business processes. The BRN will analyze data after six months, evaluate business processes and staff workloads, develop and implement training for staff employed in the complaint processing unit. If necessary, BRN will submit a request for additional resources.
9. BRN should immediately comply with state law and adhere to the revised CPEI guidelines that DOI issued in August 2016. Additionally, BRN should establish and maintain a process for communicating with DOI to discuss any questions that arise in assigning a priority to a complaint or referring a complaint to the proper investigative unit.
As of November 2016, the BRN began utilizing the revised Consumer Protection Enforcement Initiative (CPEI) guidelines which is now known as “Case Referral Guidelines for Investigation” revised by DOI in August 2016. The BRN will seek a DCA legal opinion whether regulations are required to utilize the “Complaint Prioritization Guidelines now known as Case Referral Guidelines for Investigations” without discretion to differ from the guidelines (based on certain types of cases, timelines, or complexity of the case) as outlined in Business and Professions Code Section 328. BRN will formalize and maintain the processes in place for communicating with DOI.
10. To ensure that BRN and DOI consistently conduct adequate investigations and obtain sufficient and appropriate evidence to discipline nurses accused of violating the Nursing Act, BRN in collaboration with Consumer Affairs should do the following:
- Implement a mechanism by March 2017 to track and monitor supplemental investigation requests that result from investigators’ failure to obtain required documentation or sufficient evidence and use this information to mitigate the causes of these failures.
The BRN will work with DCA and DOI to obtain additional reporting enhancements in the Case Activity Tracking System (CATS) and Enforcement Activity Reporting System (EARS) in order to track and monitor supplemental investigation requests to mitigate the causes.
11. Coordinate with the Attorney General to develop a biennial training program that includes techniques for gathering appropriate evidence and ensure that all investigators, including DOI’s investigators, participate in this training.
- Use this training program to develop a procedural guide that specifies proper evidence-gathering techniques, including a description of what constitutes sufficient evidence, for investigators to follow when investigating complaints. They should then distribute this guide to all investigators, including DOI’s investigators, by December 2017, and jointly distribute them to adhere to the guide when conducting investigations.
The BRN will work with the Attorney General (AG) to develop a formal biennial training program with techniques to gather appropriate evidence. The training will include procedure guidelines specific to proper evidence-gathering techniques, a description of what constitutes sufficient evidence for investigators to follow when investigating complaints. The guide will be distributed to all investigators including DOI with instructions to adhere to the guide when conducting investigations.
12. To ensure that its enforcement unit employees appropriately address and process complaints in a consistent and efficient manner, BRN should do the following:
- Develop a process to centrally track the internal and external trainings its staff participate in by March 2017. On a regular basis, managers should review this information to ensure enforcement staff are participating in appropriate trainings in a timely manner that address the enforcement activities they specifically perform and the types of complaints they may investigate.
- Implement a formal training program no later than December 2017. In developing this program, BRN should consult with DOI and the Attorney General to identify training that could benefit its enforcement staff, and also solicit input of its enforcement staff on areas of their job duties where they believe they need additional training.
The BRN will formalize the tracking process of enforcement staff trainings in order for management to regularly evaluate and ensure appropriate training is provided to staff in the various units. In addition, the BRN will consult with the AG, DCA SOLID, and DOI to develop a formal training program for enforcement staff. An annual survey will be conducted to solicit enforcement staff input related to job duties and satisfaction. The results will be analyzed regarding their training needs and ongoing assessments.
13. BRN should immediately stop overriding fingerprint holds in BreEZe based solely on the fact that fingerprint data is present in BRN’s legacy system and, for those cases where it believes it is necessary to override the system, receive BRN’s executive officer’s approval to do so and document both the reason for the overrise and evidence of the executive officer’s approval.
The BRN will establish a formal procedure for any type of fingerprint override for the executive officer’s approval and reason why. In order to strengthen the fingerprint requirement necessary to renew an active license, the BRN will seek a regulatory change to California Code of Regulations Section 1419(b) to require “clear fingerprint results” which tells the BRN whether or not a licensee has sustained a conviction instead of “proof of submission of fingerprints” which is a copy of the completed LiveScan form submitted to the Department of Justice (DOJ) which does not tell the BRN whether or not any conviction has occurred.
14. BRN should continue working with Justice and Consumer Affairs and finalize its reconciliation, by March 1, 2017, of Justice’s fingerprint data with its data in BreEZe, to identify any nurses who are missing digital fingerprints. Once this reconciliation is performed, BRN must take the steps necessary to immediately obtain fingerprints from those nurses for which Justice has no record of receiving them.
The BRN will continue to work with DCA and DOJ to complete reconciliation of fingerprints for the entire registered nurse population. The BRN is taking immediate action to obtain fingerprints for those RNs who do not have digital fingerprints on file with BRN and or DOJ.
15. To ensure that it has prompt access to adequate information that could affect the status of a nurse’s license, BRN should do the following by June 2017:
- Establish formal agreements with other agencies and health boards that have information pertaining to a nurse’s misconduct.
The BRN will actively seek to establish formal agreements with other community agencies and healing arts boards regarding a nurse’s misconduct.
16. Work with Consumer Affairs and the other health boards to determine whether modifying BreEZe to include a capability that would allow it to promptly notify BRN when another board receives a complaint or takes disciplinary action against a licensed nurse is cost-effective. If it is, add this functionality to BreEZe.
The BRN will work with DCA and other healing arts boards to determine whether it would be cost effective to modify BreEZe to include the capability to promptly notify BRN when another board or bureau receives a complaint or takes disciplinary action against a licensee.
17. To ensure that it promptly and appropriately sends notification to complainants as state law requires, BRN should do the following by March 2017:
- Establish formal procedures, such as performing routine audits of complaint files, for managers to monitor incoming complaints and final dispositions.
- Develop desk procedures that describe the actions enforcement staff members should take when processing incoming complaints and when BRN reaches a final disposition on a case.
The BRN will formalize the desk procedures for processing incoming complaints. In addition, BRN will formalize the policies and procedures for managers to perform routine audits of complaint files to ensure complaint acknowledgement letters and final disposition notifications have been sent to complainants.
We appreciate your feedback and will continue to collaborate with the Department of Consumer Affairs and all other identified entities to address these issues. We look forward to continuing our efforts to improve our enforcement processes to better meet our mission to protect the public. Thank you.
Please contact the BRN’s Administrative Office at (916) 574-7600 if you have any questions.
Michael Deangelo Jackson, MSN, RN, CEN, MICN
Board of Registered Nursing
CALIFORNIA STATE AUDITOR’S COMMENTS ON THE RESPONSE FROM THE BOARD OF REGISTERED NURSING
To provide clarity and perspective, we are commenting on the Board of Registered Nursing’s (BRN) response to our audit. The numbers below correspond to the numbers we have placed in the margin of BRN’s response.
In two places in its response, BRN indicates that it will continue to undertake certain efforts to implement our recommendations. Although it did not demonstrate these efforts during the course of our audit work, we look forward to BRN’s 60‑day response to show what steps it has taken to implement our recommendations.