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.