California State Auditor Report Number : 2016-046

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

Introduction

Background

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.

Figure 1
Summary of the Board of Registered Nursing’s Complaint Resolution Process

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.

Figure 2
California Department of Consumer Affairs’ Division of Investigation’s Case Acceptance Guidelines for Complaints Filed With Healing Arts 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

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.

Table 1
Audit Objectives and the Methods Used to Address Them

Audit Objective		Method
A	An evaluation of the quality and consistency of, and compliance with, complaint processing and investigation.	Reviewed relevant state laws, regulations, and procedures for complaint processing and investigating complaints. Interviewed relevant staff members from the Board of Registered Nursing (BRN) to determine how the intake analysts, investigators, supervisors, and expert witnesses performed their work and obtained relevant documents. We also interviewed relevant staff members from the Division of Investigation (DOI) of the California Department of Consumer Affairs (Consumer Affairs) to determine how investigators performed their work and obtained relevant documents. Judgmentally selected and reviewed 40 complaints—20 investigated by BRN and 20 investigated by DOI—that BRN resolved between January 1, 2013, and June 30, 2016, to determine whether BRN consistently processed complaints and whether BRN and DOI investigators conducted investigations in a quality manner and in accordance with applicable requirements. Interviewed relevant staff members to discuss anomalies and findings from our review of 40 complaints and determined the reasons why they occurred. Obtained listings from BRN and DOI displaying the complaints for which supplemental investigations were requested due to insufficient evidence. For all of the complaints on the lists, we determined the responsible party that requested the supplemental investigation. We selected 20 complaints—10 from BRN and 10 from DOI—from these lists and determined the reasons the complaints were returned, and interviewed staff members from BRN and DOI for their perspective. Assessed the law related to BRN’s intervention program and interviewed BRN’s assistant executive officer regarding BRN’s practices related to addressing complaints of those nurses who choose to enter the program. Obtained information from BRN regarding the number of nurses in its contractor‑managed intervention program who fail to successfully complete the program. Using this information, we also assessed how long these nurses were in the program.
B	An evaluation of the consistency and adequacy of the application of board sanctions or discipline imposed on licensees.	Identified and reviewed the relevant laws, regulations, and BRN procedures for administering sanctions and disciplining registered nurses who have violated the Nursing Practice Act. Interviewed relevant BRN managers and staff members, and gathered documentation to determine how the discipline unit applies disciplinary guidelines when developing settlements to nurses and recommendations to BRN’s nine‑member board (BRN board). Using the 40 selected complaints identified in Objective A, determined whether BRN accurately applied sanctions or discipline on licensees. We compared BRN’s actions for imposing discipline against relevant legal and procedural criteria. Because our selection of 40 complaints did not involve similar allegations, we could not speak to the consistency of whether the BRN board imposed consistent discipline for these complaints. Using a judgmental selection of 20 complaints with similar violations for which BRN imposed discipline from January 1, 2013, through June 30, 2016, determined whether the BRN board accurately and consistently imposed discipline for these complaints. We compared BRN’s actions for imposing discipline against relevant legal and procedural criteria. Obtained a report from BreEZe to identify the total number of complaints in which the BRN board did not adopt the administrative law judge’s proposed decision and instead issued its own disposition during the period January 1, 2013, through June 30, 2016. We selected 20 complaints from this report and identified the BRN board’s reasons for not adopting the administrative law judge’s proposed decision and determined whether the administrative law judge’s and BRN board’s respective decisions were made in accordance with BRN’s Recommended Guidelines for Disciplinary Orders and Conditions of Probation. We concluded that the 20 complaints we reviewed were decided in accordance with these recommended guidelines. We describe our methodology for evaluating BRN’s adherence to the Consumer Protection Enforcement Initiative (CPEI) complaint prioritization guidelines (complaint guidelines) under audit objective F.
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.	Identified and documented the relevant laws, regulations, goals, or policies that affect the time frames for BRN’s complaint processing and resolution. Using data obtained from BreEZe, assessed BRN’s overall time frames for resolving consumer complaints for investigated complaints that it resolved between January 1, 2013, and June 30, 2016. Using data obtained from BreEZe, assessed BRN’s time frames for completing key stages in its complaint resolution process for investigated complaints that it resolved between January 1, 2013, and June 30, 2016.
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.	Obtained and assessed for adequacy BRN’s policies and procedures for complaint intake and assignment to investigators. Interviewed relevant staff members to understand how the process works, including whether they are following the CPEI complaint guidelines, and obtained an understanding of how complaints are assigned. For the 40 complaints identified from Objective A, determined whether BRN appropriately assigned investigations based on the allegation’s severity in accordance with the complaint guidelines. For any assignments that deviated from the complaint guidelines, we reviewed available documents and obtained BRN staff members’ perspective regarding the reason for the deviation. Using a judgmental selection of 10 complaints from January 1, 2016, through June 30, 2016—subsequent to the effective date of state law requiring healing arts boards (health boards) to follow the complaint guidelines— determined whether BRN properly assigned complaints to the appropriate investigative units in accordance with the complaint guidelines. We discussed our findings with key management personnel to obtain their perspective. Obtained information from DOI based on a recent review it conducted of the number of urgent‑ and high‑priority complaints BRN was investigating between December 2014 and June 2016 that it should have referred to DOI to investigate in accordance with state law and Consumer Affairs’ direction. Determined the minimum qualifications for employment for BRN’s non‑sworn investigators and for DOI’s sworn investigators. Obtained relevant personnel documents from BRN and Consumer Affairs and determined whether a selection of five BRN special investigators and five DOI investigators met the minimum qualifications for hire. We concluded that the 10 investigators we reviewed met the minimum qualifications for hire.
G	An evaluation of the adequacy of the board’s cooperation with other state agencies charged with enforcing related laws and regulations regarding nurses.	Interviewed staff members and gathered relevant documents (contracts or memoranda of understanding) to determine BRN’s collaboration with other state agencies, including other Consumer Affairs health boards, charged with enforcing laws regarding nurses. Examined the relationship between BRN and other state agencies, particularly the Office of the Attorney General (Attorney General) and the Office of Administrative Hearings (Administrative Hearings), to determine whether there are opportunities to improve the sharing of relevant information among the various agencies. To the extent possible, for nurses in our selection of 40 complaints from Objective A that have multiple licenses, determined whether and what type of discipline was issued by the other health boards. However, as we describe on page 50 in the Audit Results, BreEZe does not notify BRN of when discipline is imposed on a nurse, who has multiple licenses, by other health boards. Nevertheless, for nurses who had licenses issued by states other than California in our selection of 40 complaints, we confirmed that a federal database, Nursys, alerted BRN to disciplinary actions taken by other states’ nursing boards.
H	An evaluation of any existing backlog, the reason for the backlog, and the time frame for eliminating the backlog.	Determined whether BRN had any complaints pending assignment to an investigator. Obtained a report from BreEZe listing the number of complaints that had been assigned to BRN’s investigative unit, but that BRN had not yet assigned to one of its non‑sworn investigators as of July 27, 2016. We analyzed this report to determine the number of complaints that had been pending assignment for more than 10 days, the amount that were urgent or high priority, and the average number of days they were pending assignment. Interviewed BRN staff members to determine the reason for the backlog and whether BRN has a plan to reduce the backlog.
I	An evaluation of the adequacy of board staffing, training, and fiscal resources to perform its enforcement functions.	Determined whether BRN has conducted an analysis of its staffing and workload. Obtained budget documents and budget change proposal requests for the last three fiscal years. Reviewed the material to determine whether BRN made requests to increase resources to improve efficiency, and whether it adequately justified these requests. Obtained documentation on the BRN training program for staff and investigators. Determined how often BRN offers training specifically focused on conducting investigations of registered nurses. We also reviewed whether any of the training focuses on how to communicate effectively with other agencies. By reviewing BRN’s training materials and interviewing staff members, determined the extent of participation by the Attorney General and Administrative Hearings in the training of BRN’s non‑sworn investigators and DOI’s sworn investigators.

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.

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