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Disbanding of nursing board raises questions about public protection

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The state Board of Registered Nursing ceased to exist this year due to an October veto by Gov. Jerry Brown, and now stark disagreement is emerging over whether the public is adequately protected from nurses who need drug treatment or limits on their practice or to be stopped altogether.

Brown vetoed the bill that would have extended the board’s charter to 2016 after balking over possible pension obligations. In doing so, he dissolved the board after 106 years of operation.

Employees charged with overseeing the licensing of more than 350,000 nurses are now part of the state Department of Consumer Affairs, where they continue the administrative work, such as processing applications for would-be nurses and investigating complaints, department spokesman Russ Heimerich said.

“This shouldn’t be a concern to the public at all. It’s business as usual. The public shouldn’t even notice this is happening,” said Melissa Figueroa, a spokeswoman for the State and Consumer Services Agency, which oversees the Department of Consumer Affairs. 

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Figueroa said her agency, which works closely with the governor’s office, is in talks with the Legislature to quickly reconstitute the board, possibly through a bill moored to the state budget, known as a trailer bill.

However, Jeannine Graves, who was president of the nursing board just before it folded, said she voted against an interagency agreement that granted the Department of Consumer Affairs authority over board functions late last year.

She said it creates a “legal fiction” and does not provide protection to the public or due process to nurses guaranteed by the appointed board of five nurses and four public members. The board's staff investigates about 8,000 cases each year.

“We all have our boots on the ground,” Graves said. “We’re very in tune with what makes safe nursing care in California.”

Graves said she was appointed by former Gov. Arnold Schwarzenegger to a slate of board members assigned with fixing shortcomings identified by a ProPublica investigation into board discipline.

Graves said her group accomplished much, and she was disappointed when the governor's office dismissed her from her position, the day after her vote against the current interagency agreement. Her board position ended last summer but could have extended to this summer, she said.

"I took a sword for the board," she said. "We did a lot of good and I'm sorry to have to leave."

The board’s dissolution plunges the state into uncharted waters, said Julie D’Angelo Fellmeth, administrative director of the Center for Public Interest Law at the University of San Diego.

She said that in the past, a board that was not reconstituted by its “sunset” date automatically became a bureau, a similar entity. She said that provision of law no longer exists, so it’s unclear how the interagency agreement between the board and Department of Consumer Affairs will stand up to challenges.

“I just think this was all unnecessary, and it’s thrown a monkey wrench into public protection from some very bad nurses,” D’Angelo Fellmeth said.

Richard Rice, a former senior adviser to Schwarzenegger, said that as a public member of the just-dissolved board, he also voted against the agreement.

He said it brings to a halt policy work the board was performing to improve nursing care, including an effort to strengthen laws requiring nursing schools to teach clinical skills in addition to classroom skills.

“Very serious issues that come before the board are not being dealt with,” he said.

In vetoing the legislation to continue board operations until 2016, Brown took a strong stance against pension obligations for a new class of board investigators who would have had law enforcement status.

His veto message [PDF], dated Oct. 9, says, “This makes no sense fiscally and flies in the face of much needed pension reform.”

Figueroa said the new legislation re-creating the board likely will be similar to what was most recently in place.

Heimerich emphasized that the board’s work is still being done. The board typically adopts, amends or rejects proposed decisions by administrative law judges who hear cases over nurse discipline, Heimerich said. Now, judges’ decisions will automatically take effect if no board action is taken in 100 days.

Also, the board tends to approve or reject settlements reached between attorneys representing nurses accused of misconduct and deputy attorneys general representing the board. Heimerich said those cases also will be subject to approval by administrative judges, whose decisions are final if the board takes no action in 100 days.

Lynda Gledhill, spokeswoman for Attorney General Kamala Harris, said cases that deputy attorneys general prosecute on behalf of the board are moving forward.

“We’re working with the former board staff, people at the Department of Consumer Affairs, to make sure everything runs as smoothly as possible,” she said.

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