California License Law Blog : California License Lawyer & Attorney : Fredrick M. Ray Law Firm : Professional Licensing Revocation & Suspension : CA License Law Blog

On January 1, 2012, the California Board of Registered Nursing was dissolved by a sunset provision in its authorizing statute.  California licensing boards, by law, must be renewed by legislation periodically.  The California Board of Registered Nursing, or BRN, was to expire on January 1, 2012, unless new legislation was enacted, which is typically a routine matter.  In October 2011, Governor Brown refused to sign Senate Bill 538, which would have extended the authority of the BRN for another four years.  He did this because there were provisions in the bill to authorize the BRN to have its own sworn peace officers as investigators, which would impose further financial burdens on the state by expanding pension liabilities.  The BRN currently employs Department of Consumer Affairs (DCA) investigators to handle its investigations.

The last time this happened prominently, in 2008, the Dental Board and Vocational Nursing Board, among others, were sunset.  However, the legislature passed emergency legislation to continue those boards as bureaus (with their boards converted to advisory committees) until they could be reauthorized as boards.  No such legislation has been enacted to continue the Board of Registered Nursing as a bureau.

In order to continue its licensing and enforcement functions, the Board of Registered Nursing has renamed itself the Registered Nursing Program within the Department of Consumer Affairs.  To attempt to solve the sunset problem, the BRN authorized an Interagency Agreement between BRN and DCA before the sunset date to transfer the powers of the BRN to the DCA, which has in turn delegated those powers to the executive officer of the Registered Nursing Program acting on behalf of the DCA.  Interestingly, the Interagency Agreement cites no statutes, regulations or case law authorizing this action between the two agencies.

There exists a genuine issue as to whether the newly constituted Registered Nursing Program acts with any lawful authority.  It appears that in the coming weeks or months, the legislature should act upon new legislation to reauthorize the BRN without its own investigators.  However, troubling jurisdictional questions will cloud all nursing discipline orders issued and other such actions taken in this interim period.  Since having come under scrutiny in recent years for being perceived as lax in disciplining nurses, the BRN, having filed thousands of discipline cases, seems to have too many cases in its pipeline to halt license discipline litigation during this period of uncertainty.  Under what jurisdictional authority the "program" will act seems to have been left to license lawyers, administrative law judges and perhaps ultimately to the courts to sort out.   

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In California, the Office of Administrative Hearings (OAH) hears all professional license discipline or denial cases, except for liquor license and attorney discipline hearings.  The same administrative court hears cases for such varied occupations as physicians, architects, dentists, insurance brokers and engineers.  A panel of about 75 administrative law judges (ALJs), working our of four OAH offices in Sacramento, Oakland, Los Angeles and San Diego, hears thousands of cases each year.  Administrative licensing agencies such as the Medical Board of California, the Dental Board of California and the Department of Insurance delegate the job of hearing disciplinary hearings to these judges, while retaining final decision-making authority.   

When a licensing agency issues an accusation (the start of a formal disciplinary case) or a statement of issues (a formal license denial case), and the licensee has requested a hearing, the case is typically filed with OAH for adjudication.  Once OAH receives the filing, it assumes jurisdiction over the case which continues until the case is settled, the accusation is withdrawn, or a panel judge issues a proposed decision.   The presiding judge of a particular OAH office, or an ALJ acting temporarily on her or his behalf, addresses any logistics issues that arise.  Before the hearing date itself (the trial to decide the case), a hearing judge is assigned.  However, the assigned judge can be changed even shortly before the start of the hearing.

A hearing can be held at one of the courtrooms available at one of OAH's offices, or sometimes in a remote location (typically a borrowed conference room in a state or federal building) for the convenience of the parties or witnesses.  Occasionally, a party or witness, complying with applicable rules and with the agreement of the parties, appears by telephone.  I have seen an OAH hearing held in a state mental hospital, a federal office building, and even at a prison.  As long as a quiet room with adequate seating and tables is available and a court reporter can get to the location, it can be used for an OAH hearing.

OAH is different than any other court in that OAH is a state agency that other state agencies hire to hear their cases.  ALJs produce "proposed decisions" that can be adopted, changed or rejected then decided differently by licensing agencies.  Although a very high percentage of proposed decisions are adopted as written, occasionally a decision is rewritten or even decided differently by the agency.  Therefore, for ALJs to do their job, they must be "in tune" with the agencies for whom they decide cases.  Licensing agencies issue disciplinary guidelines to guide ALJs to decide cases consistently on common fact patterns, however, in reality most disciplinary guidelines are not specific enough to provide clear guidance.  It is definitely an art for a judge to intuit the wishes of a distant licensing board or agency head to reach a decision consistent with the agency's own thinking.

Having seen hundreds of ALJ decisions adopted or rejected by agencies, patterns tend to form.  For agencies particularly that have a high volume of cases or an elected agency head, a higher percentage of decisions seem to be adopted.  If many decisions are rejected, the burden of deciding those cases upon the administrative agency would be great.  Agencies with relatively few disciplinary cases can review them with greater care and more easily reject or modify those decisions.  Also, in the case of some agencies, the agency may prefer to leave the burden of the decision upon the ALJ, who is not subject to political pressure or public scrutiny, rather than to alter the decision to have a greater hand in the decision.  

For self-represented litigants (individuals without an attorney), and inexperienced attorneys as well, a common mistake is to think that OAH proceedings are just informal meetings.  Indeed, these are trials that require pre-planning and organization, legal research, questioning of witnesses, objections to evidence, and arguments.  The primary "law firm" that prosecutes cases at OAH, the California Department of Justice, has hundreds of well trained Deputy Attorneys General.

OAH decisions are often published on the internet by the particular licensing agency for whom cases have been heard.  I strongly advise unrepresented litigants to search out those decisions to review them before deciding to proceed without an attorney.  It is not uncommon that administrative decisions are 10, 15, 20 pages or more, discussing a range of factual and legal issues.  Reviewing these decisions, the complexity of these administrative proceedings becomes apparent.

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About one year ago I wrote about a series of embarrassing newspaper articles about the California Board of Registered Nursing, that described how nurses incarcerated in prison retained their licenses due to the sheer ineptitude of the Board of Registered Nursing. The picture painted was nurses running amok while the Board was asleep at the wheel. Meanwhile, in my practice we were received numerous complaints from our nurse clients about how strict and even punitive the Board of Registered Nursing was acting. Which of these views was right? And what is this controversy all about?  In July 2009, we saw another round of revelations, leading to the sacking of three members of the Board of Registered Nursing and apparently the resignation of the longstanding executive officer of the RN Board.  What are the factors behind this focus on, of all the professions, registered nursing, and why was the Governor so quick to move in response to criticism?

The first and most important factor in our view, which is often not well understood by the public, is that the medical treatment you receive in hospitals is largely from nurses and their supervised LVNs and aides, not doctors. Doctors make their rounds, usually spending as little time in the hospital as possible, doctors perform surgeries, and doctors prescribe medicines and treatments. But for the hospitalized patient, almost all care comes from their registered nurse and those supervised by the RN. The registered nurse is the primary advocate for the patient, the individual charged with calling up the doctor and even demanding treatment if a patient is in neglected by their M.D. In fact, in the face of a recalcitrant doctor, the RN is responsible to even go above the head of the doctor to hospital officials if the situation warrants. Therefore, the registered nurse is the key link in the chain of care from hospital and doctor to patient.  Public concerns about the competency of registered nurses are well founded.

A second factor in this debate is the love/hate relationship that California (its people and the rest of its government) has with its regulatory boards.  In early 2005 there was an effort by the Governor to abolish 88 state boards, including the nursing board, citing waste and inefficiency.  The effort died after about one month.  Neverthless, nearly five years later state boards understandibly feel the need to zealously protect the public in carrying out their mission.  The image of board members as political cronies earning six figure salaries to jet around the state to attend a handful of meetings each year makes a popular punching bag for some politicians, the press and advocacy groups. 

To the extent the criticism of the Board of Registered Nursing focuses on lengthy delays in investigations and administrative cases, that criticism seems to have merit.  It is also true that many years ago the Board of Registered Nursing exercised lax oversight in the screening of the backgrounds of nursing license applicants.  In requiring livescans and asking simple background information questions at application and renewal the Board has brought itself in line with the common practices of other California licensing boards.

However, it is most unfortunate that the regulatory pendulum seems to be swinging to the other extreme.  The Board of Registered Nursing may be becoming quick to judge, quick to condemn, and unnecessarily punitive in its approach to the oversight of its licensees.  The purpose of independent licensing boards is that they can be relatively free of the political pressures from other segments of the government.  Unfortunately, actions such as the governor's undermine that independence and risk seriously damaging the nursing profession in terms of difficulty in attracting sufficient numbers of new nurses and the declining morale among existing nurses. 

The image of a "soft on discipline" nursing board is misleading and inaccurate.  I have found the Board of Registered Nursing to be firm in discipline and quite strict in probation oversight.  The Board has exhibited, in my view, a fairness towards its licensees, willing to give a second chance if the licensee is willing to earn it.  Regrettably, second chances may now become a lot harder to come by in Sacramento. 

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