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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



Summary

HIGHLIGHTS

Our audit concerning the Board of Registered Nursing’s (BRN) enforcement program revealed the following:


Results in Brief

The Board of Registered Nursing (BRN), a state regulatory entity that operates within the California Department of Consumer Affairs (Consumer Affairs), is responsible for resolving consumer complaints against registered nurses as part of its mission to protect the health and safety of consumers by promoting quality registered nursing care. Historically, BRN has reportedly struggled to resolve consumer complaints in a timely manner, often allowing significant delays to occur throughout the various stages of the resolution process. Our review found that BRN continues to experience significant delays in processing complaints. Although state law does not specify a time frame within which BRN must resolve complaints, Consumer Affairs has set a goal for BRN to process complaints within 18 months.1 However, BRN has consistently failed to achieve this goal, in large part due to its ineffective oversight of the complaint resolution process and the lack of accurate data regarding complaint status. Such delays allow nurses to continue practicing who may have committed serious violations, and could potentially result in harm to patients.

During our review of 40 investigated complaints resolved between January 1, 2013, and June 30, 2016, we found that BRN struggled to promptly resolve complaints, which potentially placed patients at additional risk. Specifically, BRN failed to resolve 31 of the 40 complaints within the 18‑month goal, and 15 of those 31 complaints took longer than 36 months to resolve—more than twice as long as Consumer Affairs’ goal. Further, BRN took longer than 48 months to resolve seven of those 15 complaints, six of which included allegations of patient harm resulting from a nurse’s actions.

A primary reason for the delays in processing these complaints was BRN’s failure to move the complaints through the various key stages of the complaint resolution process in a timely manner. For example, BRN took more than 45 days—the high end of its informal goal for this stage—to assign 24 of the 40 complaints we reviewed to an investigative unit, the stage that precedes assignment of the complaint to an investigator. Further, BRN took more than a year to assign nine of the 24 complaints to an investigative unit. For example, we found that BRN delayed assigning to Consumer Affairs’ Division of Investigation (DOI) a complaint alleging that a nurse caused a toddler’s death by administering the incorrect dosage of medication. BRN initially assigned the complaint to its investigative unit, and BRN’s chief of complaint intake and investigations (chief of investigations) acknowledged that it did nothing with the complaint for roughly 18 months. She indicated that the complaint should have been prioritized and referred to DOI faster due to its sensitivity. Ultimately, the nurse was allowed to practice for 39 months without BRN taking action against her license while it processed the complaint. BRN’s nine‑member board concluded that the nurse violated the Nursing Practice Act (Nursing Act) by inaccurately recording the dosage of medication administered to the toddler and placed the nurse on three years of probation.

Delays such as these have also contributed to a large backlog of complaints received but not yet assigned to one of BRN’s investigators. Specifically, as of the end of July 2016, according to a report provided by BRN, at least 184 complaints had not yet been assigned by BRN to one of its investigators. Of those, 138 were pending assignment for more than 10 days. Roughly 70 of those complaints involved urgent or high‑priority allegations, such as patient death, harm, or criminal activity, and had been waiting to be assigned for an average of 79 days. Unnecessary delays in the complaint resolution process enable nurses who are the subject of serious allegations to continue practicing and may risk patient safety.

BRN lacks accurate data to assess the timeliness of its complaint resolution process. BreEZe, the system that Consumer Affairs’ health boards use for licensing and enforcement activities, lacks adequate controls to ensure that BRN’s staff members accurately enter information into the system regarding the status of complaints, such as when a case is closed. As a result, we found several errors when attempting to calculate the length of each stage in the complaint resolution process. Ultimately, we had to remove nearly 4,800, or 17 percent, of the complaints from our analysis due to these errors. Using the remaining data, we found that complaints which included an investigation, averaged about 24 months, with the investigative stage taking the longest amount of time compared to other stages, which averaged between 15 and 19 months. However, these results may be inaccurate because of control weaknesses within BreEZe that do not require staff members to input activities in a manner that follows BRN’s established business processes. According to BRN’s chief of investigations, it is difficult to manage caseloads when the data are not reliable. Further, because of these errors, BRN is using inaccurate information to assess its workload and staffing needs.

Additionally, BRN has not adhered to Consumer Affairs’ direction or state law requiring that it assign complaints categorized as urgent or high priority to DOI for investigation. Since 2009 Consumer Affairs has maintained complaint prioritization guidelines (complaint guidelines) for the health boards to refer to when determining the priority to assign to complaints. The complaint guidelines establish four categories for complaints, based on priority—urgent, high, and two levels that are considered routine. Consumer Affairs and DOI officials maintain that they have consistently verbally communicated to the health boards, including BRN, that complaints categorized as urgent and high priority must be referred to DOI for investigation. DOI’s investigators are sworn peace officers and are required to complete specific training, whereas BRN investigators are not. However, during the course of our review, we found that BRN chose to have its non‑sworn investigators investigate numerous high‑priority and urgent complaints internally, rather than refer them to DOI. BRN attributes the continued use of its non‑sworn investigators to investigate these complaints to the complaint guidelines’ lack of a specific, written requirement that urgent‑ and high‑priority complaints be referred to DOI. Because of a lack of adherence by some health boards to Consumer Affairs’ verbal direction regarding the referral of complaints, state law effective January 2016 requires the health boards to use the complaint guidelines to prioritize their complaints and investigative workloads, and to refer complaints determined to be either urgent or high priority to DOI to investigate.

According to a DOI report, BRN should have forwarded roughly 170 cases during the period from December 2014 through June 2016 to DOI for investigation, but instead chose to investigate those cases internally. Further, when we reviewed 10 additional complaints that BRN received between January 1, 2016, and June 30, 2016—subsequent to when the requirement was established in state law—we found that it should have referred seven of the complaints to DOI to investigate, but did not. One of these complaints alleged that a nurse failed to follow proper procedures after an alarm sounded during a patient’s dialysis procedure, which may have contributed to the patient’s death. BRN’s assistant executive officer stated that, although DOI directed BRN to refer complaints it categorizes as urgent and high priority to DOI, BRN had understood this to be a guideline and not a requirement. By not referring cases involving patient death and criminal allegations to DOI’s sworn peace officers to investigate, BRN risks that the appropriate attention and resources are not being directed toward urgent and high‑priority complaints. As a result, it could be prolonging its complaint processing timelines and, more importantly, placing the public at a higher risk of potential harm.

Although BRN identified the hourly cost of conducting investigations as another reason for its failure to comply with Consumer Affairs’ direction and state law, state law specifies that the protection of the public shall be the highest priority for BRN and whenever the protection of the public is inconsistent with the promotion of other interests—such as cost savings—the protection of the public shall be paramount. The chief of investigations stated that BRN can reduce its enforcement costs considerably when its non‑sworn investigators investigate the complaints because the cost per hour is lower. In fiscal year 2014–15, the most recent fiscal year in which actual cost information was available for both investigative units, DOI’s hourly rate to conduct an investigation was $235, more than twice BRN’s hourly rate of $88. Because BRN’s lower hourly rate makes it less costly for BRN to conduct an investigation, the chief of investigations stated that having BRN’s non‑sworn investigators conduct investigations means that BRN can commit additional resources to training staff or increasing hourly pay in an effort to recruit additional expert witnesses, which she indicated BRN does not have the budget for otherwise. Nevertheless, cost is not a reasonable justification for choosing not to comply with requirements concerning BRN’s most egregious complaints. BRN’s mission is to protect and advocate for the health and safety of the public by ensuring the highest quality registered nurses in the State—not to minimize costs. Moreover, an advantage sworn peace officers have is that they have additional training, skills, and authority that BRN’s non‑sworn investigators lack.

Further, investigators did not always obtain the necessary evidence before forwarding complaints to the Office of the Attorney General (Attorney General) or appropriate expert witnesses, resulting in unnecessary delays and additional resources.2 In our review of 40 investigated complaints, we identified five that the BRN investigated and three that DOI investigated in which supplemental investigations were requested because the investigator did not obtain sufficient evidence the first time. For example, we reviewed a complaint alleging that a nurse improperly administered a medication that resulted in patient harm, in which the deputy attorney general assigned to the case requested BRN to conduct a supplemental investigation to obtain the perspective of both the patient and the patient’s spouse, who witnessed the incident. According to BRN’s chief of investigations, the non‑sworn investigator should have obtained this information during the initial investigation, but did not due to inexperience. It took the investigator an additional three months to obtain this requested evidence, which unnecessarily prolonged the amount of time BRN took to resolve this complaint. Additional training in evidence gathering might have helped avoid such a delay. A senior assistant attorney general for the Attorney General’s licensing section indicated that both BRN non‑sworn investigators and DOI sworn investigators would benefit from training in what constitutes sufficient evidence to substantiate that a nurse has violated the Nursing Act.

Finally, BRN lacks sufficient oversight of its enforcement activities. For instance, it lacks a formal training program for its enforcement staff. According to BRN managers, rather than providing formal training sessions, BRN conducts the majority of staff training through a shadowing process during which new staff members learn their jobs by reviewing complaints in collaboration with existing staff members. As a result, BRN risks that its staff is not appropriately processing and resolving complaints. We believe this is one reason for the delays we identified in BRN’s processing of complaints. Further, BRN has not ensured that all nurses are fingerprinted, as the law requires. As a result, BRN is not always notified by the California Department of Justice (Justice) when a nurse is arrested or convicted. As of November 2016, BRN was working with Justice and Consumer Affairs to reconcile the number of nurses who BreEZe shows as having fingerprints compared with data provided by Justice. By not ensuring that all nurses comply with this requirement, BRN limits its ability to learn of criminal behavior and promptly take appropriate action against the nurse’s license if the nurse poses a risk to patients.

 


Recommendations

Legislature

If BRN does not develop and implement an action plan by March 1, 2017, to prioritize and resolve its deficiencies, as mentioned in the first recommendation to BRN, the Legislature should consider transferring BRN’s enforcement responsibilities to Consumer Affairs.

BRN

To ensure that it promptly addresses this report’s findings, BRN should work with Consumer Affairs to develop an action plan by March 1, 2017, to prioritize and resolve the deficiencies we identified.

To ensure that BRN resolves complaints regarding nurses in a timely manner, it should do the following by March 1, 2017:

To ensure that it is able to accurately monitor the performance of its complaint resolution process and that it has accurate data to address its staffing needs, BRN should 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.

BRN should immediately comply with state law and adhere to the complaint guidelines. 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.

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 if warranted, BRN in collaboration with Consumer Affairs should do the following:

To ensure that its enforcement unit employees appropriately address and process complaints in a consistent and efficient manner, BRN should do the following:

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 fingerprint records. Once this reconciliation is performed, BRN must take the steps necessary to immediately obtain fingerprints from those nurses for which Justice has no fingerprint records.


Agency Comments

BRN agrees with our recommendations and indicates that it plans to take various actions to implement them.




Footnotes

1 The average hourly wage paid to the respite worker at the statewide level and for each regional center is a weighted average. This average takes into consideration the numbers of consumers served by each vendor as a proportion of the total number of consumers served by the respective regional center.  Go back to text

2 Throughout the report we use the term Employer of Record model to indicate the process used when the family selects the individual who will provide the in‑home respite service. Certain vendors we reviewed refer to this model using other terms, such as the parent conversion rate.  Go back to text



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