California BORN Prevails In Excelsior College Lawsuit

Posted

Looks like the California BRN is holding firm on their decision with Excelsior College. The courts ruled in favor of the board with EC's lawsuit.

http://www.rn.ca.gov/new/pdf/excelsiornewsrelease.pdf

http://www.rn.ca.gov/new/pdf/excelsiorcourtdecision.pdf

SACRAMENTO (February 23, 2006) – The California Board of Registered Nursing prevailed today in a state Court of Appeal decision upholding the BRN’s position that Excelsior College graduates, like other out-of-state school graduates, must fulfill all California licensing requirements, including supervised clinical practice, in order to qualify for licensure as a registered nurse in California.

Ruth Ann Terry, BRN Executive Officer, stated, “This decision is of critical importance to the quality and safety of RN practice in California. It affirms the Board’s position that there is nothing more basic to safe nursing practice than ensuring that students learn hands-on skills through sufficient hours of supervised clinical practice in patient settings.”

Documents filed with the court by Excelsior College describe the college as a distance learning program based in New York. The California Court of Appeal decision states, “As opposed to California’s 810 hours of supervised clinical practice in a variety of settings with various patients, Excelsior’s students simply take the weekend CPNE.”

The court explains the CPNE (Clinical Performance Nursing Examination) is “a weekend course, administered over two and one-half days, with a limited number of patients involving only two areas of nursing.”

The litigation background is as follows. Excelsior College sued the BRN in December 2003 after the BRN ruled that, in order to be eligible for examination and licensure in California, Excelsior College graduates enrolled on or after December 6, 2003, like all other out-of-state school graduates must meet the legal requirements for licensure in California, including the requirement of supervised clinical practice concurrent with theory.

Excelsior’s lawsuit consisted of a petition for writ of mandate and a complaint for declaratory and injunctive relief. The BRN filed a demurrer, and after briefing and oral argument, the trial court ruled in the BRN’s favor and sustained the demurrer. Excelsior filed an appeal in September 2004. Following briefing and oral argument, the Court of Appeal issued its decision in the matter on February 23, 2006.

The Court of Appeal acknowledges “… the numerous attempts by the Board to assist Excelsior with developing strategies for coming into compliance with California’s requirements. Excelsior chose not to do so.” It further states, “As a practical matter, graduates from out-of-state programs can be … assured of licensure in California as long as their schools meet the minimum California requirements.”

Ruth Ann Terry welcomed the court’s recognition that “The primary purpose of the Board is to protect the public,” and that “In clinical practice, students learn the vital hands-on skills that are at the heart of nursing practice.”

Executive Officer Terry elaborated, “Distance education plays a key role in the education of today’s nurse. The Board is fully supportive of innovative learning methods and stands ready to work with all programs to expand the capacity of nursing education to help alleviate the nursing shortage. That said, we will not compromise standards for the care of California patients. We believe that quality education and expansion of education capacity are fully compatible.”

On a related note, in August 2005 the National Council of State Boards of Nursing adopted a position paper that recommends “nursing education programs shall include clinical experiences with actual patients” and “should be supervised by qualified faculty.” The NCSBN stated, “Because the mission of the boards of nursing is to protect the public, the boards asked for guidance with evaluating prelicensure programs that do not provide experiences with actual patients.” NCSBN is the organization of all of the state boards of nursing.

:typing

pedinurse05

pedinurse05

Specializes in Peds stepdown ICU. 301 Posts

LIZZ you must be lovin this post :)

Sheri257

Sheri257

3,905 Posts

LIZZ you must be lovin this post :)

Not really ... It's just that people were speculating on other threads that the California board might change their mind, so I checked the board website. Looks like the appellate court decision came down a few weeks ago and ... it seemed important enough to post a separate thread on it. Maybe this will clear up some of the confusion on the California situation or ... maybe not.

:typing

Maxmar

Maxmar

4 Posts

Not really ... It's just that people were speculating on other threads that the California board might change their mind, so I checked the board website. Looks like the appellate court decision came down a few weeks ago and ... it seemed important enough to post a separate thread on it. Maybe this will clear up some of the confusion on the California situation or ... maybe not.

:typing

Thanks for your post. I, myself am an LVN from California, and I feel real upset. Because of the fact that I attend Excelsior for 3 years.

From the letter it appeared that "Excelsior college graduates on or after December 6, 2003, like all other out-of-state graduates must meet the legal requirements of in California including the requirement of supervised clinical practice concurrent with theory." So to me, I'm a little confused. Does it say if I was enrolled with Excelsior before December 6, 2003. No, it states excelsior graduates. If I was enrolled before December 6th, 2003, it doesn't matter.

To me I'm really sad and angry. The 810 hours missed in clinical is a valid point to make. Safety is a primary concern, period. And to RN's that didn't have to even worry about being Excelsior grads, I praise you. It's good many people don't have to have a disability to begin with.

How responsible was the California nursing board and Excelsior, even when there was a nursing shortage in California already? To the expense of everyone. Like couldn't there have been a compromise for Excelsior students, Excelsior College, and the California Nursing Board---to which maybe there would be additional training in hospitals to make up for the clinicals etc. Now, there will be fewer nurses out there, but if they have too many patients, there may well be a safety issue there as well.

What types of people will have another missed opportunity. Why the poor and disabled. What compensation do I have for paying for Excelsior, being my only shot, to try and work making a decent living. Was it also a power trip between Excelsior or the California Nursing Board? Who had most power, a college that enrolls students nationally versus the "Golden State of California".

So tomorrow, I will have to make sure I'm no longer available to be an RN from Excelsior since I thought I made the 2003 deadline. And I'm also messed up about it. I don't know if I'm ready to move out of California. I'm ready to head for the hills and be a mountain man(lol).

Thanks for listening, Max

Sheri257

Sheri257

3,905 Posts

Does it say if I was enrolled with Excelsior before December 6, 2003. No, it states excelsior graduates. If I was enrolled before December 6th, 2003, it doesn't matter.

Actually, the language in that press release could be somewhat misleading. If you read the board's original announcement and, also the court decision, it states: "This eligibility requirement applies to students who enrolled at Excelsior on or after December 6, 2003."

http://www.rn.ca.gov/new/news.htm#excelsior

So I wouldn't give up yet. There's a good chance you'll still be ok but, I would check with the board to be sure.

:typing

Maxmar

Maxmar

4 Posts

Actually, the language in that press release could be somewhat misleading. If you read the board's original announcement and, also the court decision, it states: "This eligibility requirement applies to students who enrolled at Excelsior on or after December 6, 2003."

http://www.rn.ca.gov/new/news.htm#excelsior

So I wouldn't give up yet. There's a good chance you'll still be ok but, I would check with the board to be sure.

:typing

Yes, not to give up is good. I called the California Nursing Boards Executive Office, and I was very nervous to talk to the exucutive officer of the nursing board-Ruth Anne Terry. I talked to someone else from her office. I asked could I take the state board in California if I was enrolled in excelsior before Dec 6 and she said I could. Then, I asked her if there was anything else I needed to do. She didn't know. She said check the website www.rn.ca.gov but I couldn't find anything else. She said if I had any questions to call her back.

I think I'll be OK. I was very upset, because of the typo of "people graduated on or after Dec. 2003 will not be accepted", instead of "people enrolled on or after Dec. 6th will not be accepted"

I have been with Excelsior for a long time(3 years), and it was my only choice to become an RN. And I hear that the clinical has a long waiting as it is. And there's more. But I'll stop.

Thanks for the information, Max

pedinurse05

pedinurse05

Specializes in Peds stepdown ICU. 301 Posts

Yes, not to give up is good. I called the California Nursing Boards Executive Office, and I was very nervous to talk to the exucutive officer of the nursing board-Ruth Anne Terry. I talked to someone else from her office. I asked could I take the state board in California if I was enrolled in excelsior before Dec 6 and she said I could. Then, I asked her if there was anything else I needed to do. She didn't know. She said check the website www.rn.ca.gov but I couldn't find anything else. She said if I had any questions to call her back.

I think I'll be OK. I was very upset, because of the typo of "people graduated on or after Dec. 2003 will not be accepted", instead of "people enrolled on or after Dec. 6th will not be accepted"

I have been with Excelsior for a long time(3 years), and it was my only choice to become an RN. And I hear that the clinical has a long waiting as it is. And there's more. But I'll stop.

Thanks for the information, Max

Max,

Just make sure you were actually enrolled with EC by paying and mantaining the enrollment fees. If you ever become unenrolled do to failure to pay, etc. then you can no longer be be "grandfathered" in under this clause. You must maintain enrollment from that Dec 2003 date until you graduate. Excelsior should have notified you back when all this was happening.

Jo Dirt

Jo Dirt

Has 9 years experience. 3,270 Posts

To all Excelsior students who enrolled after the magic date...call the BON. You will find you will not be denied licensure if you complete a 360 hr practicum. You can do this through a community college or even some hospitals.

You will not fall into an abyss and the sky is not falling.

pedinurse05

pedinurse05

Specializes in Peds stepdown ICU. 301 Posts

To all Excelsior students who enrolled after the magic date...call the BON. You will find you will not be denied licensure if you complete a 360 hr practicum. You can do this through a community college or even some hospitals.

You will not fall into an abyss and the sky is not falling.

Thanks for that MM--I agree call the board and find out about the added clinical hours! It may be a longer road to get there but it probably can be worked out.

Sheri257

Sheri257

3,905 Posts

To all Excelsior students who enrolled after the magic date...call the BON. You will find you will not be denied licensure if you complete a 360 hr practicum. You can do this through a community college or even some hospitals.

You will not fall into an abyss and the sky is not falling.

I realize that people are looking for some other way but, it may not be useful to get people's hopes up on this one ...

Since people keep talking about these 360 clinical hours, I decided to call the board. I talked to a licensing analyst and an education specialist. They said they hadn't heard of a 360 hours clinical only practicum and, as far as they know, it doesn't exist. For now, you still have to enroll in one of the approved programs listed on the BORN website and, basically, go the traditional route from scratch.

I asked if a 360 clinical practicum outside of the traditional route was at all possible for EC students. They said it wasn't because the board still requires theory concurrent with clinical. This makes sense since that requirement is emphasized in the above mentioned press release. They also said you can't do hospital clinicals alone without going through an approved program because the law doesn't allow it.

Quite frankly, I don't know how any of the community colleges would be able to do this anyway. My program certainly couldn't. They're already jammed with students as it is with a two year waiting list. So are all the other programs in my area. We're having to do clinicals every weekend because clinical sites are so hard to come by.

However, the education analyst did mention that if people want to go the distance learning route ... the University of Phoenix is currently working with the board on a BSN program that meets all of the clinical requirements but, it will probably take three years before that program will be approved.

As far as licensed RN's who are practicing in other states, it's pretty much the same deal. If you didn't meet the cutoff date, you can't get licensed in California.

I realize that this may not be what people want to hear but, I don't think it does much good to generate false hope either. It's pretty obvious from the above mentioned press release that the board is taking a hard line on this issue.

:typing

MedictoRN

MedictoRN

Specializes in Emergency, Family Practice, Occ. Health. Has 9 years experience. 115 Posts

It really is a sad state of affairs. I really find it insulting that everyone ignores the fact that these people do have "actual clinical experience". They also must prove competence. The proctors for the CPNE EXAM, are actual college professors and when I asked they said that many of the graduate nurses from the brick and mortor programs they teach at wouldn't pass the CPNE. It's also pretty ignorant of the CABORN to continue to call the CPNE a "weekend course". This implies that their is some teaching that goes on during this weekend. This is not the case at all. Absolutely NO teaching happens only criterion based performance examination.

Here is Excelsiors response to the CA lawsuit.

March 13, 2006

Dear Students, Alumni and Faculty:

We want you to know that our efforts continue in earnest to address the action of the California Board of Registered Nursing (BRN) regarding licensure of Excelsior College graduates. This letter will bring you up-to-date on these efforts, and will point out certain misrepresentations made by the BRN and inconsistencies in its position. At the end of this letter we will tell you what you can do to help, steps that are vital to our eventual success in obtaining licensure for our nursing graduates in California.

This letter is long, but it contains essential information that is important to helping others to understand what is happening.

Most Recent Events

Regrettably, the College lost its legal case before the California Court of Appeals in February. Excelsior had asserted that the BRN, in the actions it took, had not extended proper due process of law, had not followed procedures mandated by California law, and that the BRN's decision was prejudicial to the College in violation of the federal Commerce Clause.

In ruling on these points, it is most unfortunate that the Court appears to have misunderstood the nature of our nursing pre-licensure program, and especially the capstone experience, by referring to the Clinical Performance in Nursing Examination (CPNESM) as a "weekend course." This description is a carryover from the BRN's repeated misinterpretation and mischaracterization of the CPNESM as other than what it is: a 2-½ day, intensive, criterion-referenced performance examination that addresses each of the essential competencies for associate degree nursing graduates as identified by the National League for Nursing Accrediting Commission (NLNAC) and the National Council of State Boards of Nursing (NCSBN). No other nursing program assesses its students' clinical skills by means of such a structured, objective, rigorous, and valid method.

More Misrepresentation versus Fact

While the Court's ruling is disappointing, what is even more discouraging are the BRN's continuing efforts to discredit Excelsior's School of Nursing and the quality of its graduates. Immediately after the announcement of the Court's decision, the BRN issued a news release in which its executive officer implied that matters of "quality and safety" were addressed by the Court. This is not only a misinterpretation of the Court's ruling on the BRN's discretionary authority to exercise its administrative operations - nothing to do with the quality of Excelsior's program - it is contrary to the BRN's statements "on the record" regarding Excelsior's nursing program.

During the May 21, 2003 meeting of the BRN, Board President Sandra Erickson stated "And the number is not the issue, neither is the quality of the graduate." (Certified Transcript of the Board of Registered Nursing meeting, May 21, 2003, p.27).

The quality of Excelsior's nursing programs is well recognized. All three of our nursing degree programs (associate, bachelor's and master's) are nationally accredited. The entire School of Nursing is highly regarded and has been designated a Center of Excellence in Nursing Education by the National League for Nursing; one of only seven programs out of 1,700 nationwide to have been recognized as such.

Excelsior College associate degree graduates pass the NCLEX-RN exam at a rate equal to or higher than the California in-state and national averages. The BRN cites the NCLEX-RN as "...a job-related examination that is a valid measure of entry-level competency for registered nurses." (California Board of Registered Nursing Sunset Review Report to the California Joint Legislative Sunset Review Committee, September 3, 2002, p. 19)

The California Board has also refused to acknowledge the function of the CPNESM as an assessment of clinical skills. Rather, it continually refers to the CPNESM as a "weekend course," a gross misrepresentation of the nature of the exam and its well-documented validity in measuring the clinical skills of beginning RNs.

Nearly 6,000 nursing graduates of Excelsior College are living in and presumed to be practicing in California. The BRN has been unable to document that Excelsior graduates have been subject to disciplinary action at a rate any higher than those from any other nursing program. Many of these graduates today are in senior positions at medical facilities across the state.

Excelsior Has Made Numerous Proposals to Resolve the Matter

The BRN would like you to believe that Excelsior College has been unresponsive to its "numerous attempts" to resolve this dispute. The fact of the matter is that since 2003 Excelsior has made eight separate proposals to the BRN, the first seven of which were rejected by it primarily because the BRN refuses to recognize the efficacy of the existing clinical experience our students possess or of the CPNESM. It is important to remember that the pre-licensure program at Excelsior is open only to individuals who have prior clinical experience in a select set of nursing and clinically oriented, allied health care professions. The vast majority of our students, whose average age is 40, have significant real-world working experience as licensed practical/vocational nurses.

In December 2005, Excelsior presented its eighth proposal to resolve the current impasse, a proposal to which the BRN has yet to respond.

The BRN is Inconsistent in its Practice

Forty-nine other states recognize Excelsior College graduates for licensure, either directly or by endorsement.

In its report to the California Joint Legislative Sunset Review Committee (p.27) the BRN stated "Starting in October 2001, U.S.-educated applicants for licensure by endorsement were no longer required to submit transcripts. These applicants have already passed the NCLEX-RN and have had their education validated by another state board of nursing. This, in conjunction with verification of a clear, current, active registered nurse license, documents the ability to practice registered nursing.

If this is its policy and practice as reported to the California Legislature, why then does the BRN selectively refuse to recognize the currently valid, unrestricted nursing licenses issued to Excelsior College graduates by other states, even those of persons who have substantial practice experience?

The BRN alleged in documents submitted to the Court, in the course of our lawsuit, that it evaluates the transcripts of individual applicants who have graduated from out-of-state schools of nursing in order to qualify them for licensure, either originally or by endorsement.

If the BRN, as reported to the Joint Legislative Sunset Review Committee, does not require transcripts from applicants licensed in other states, how can it evaluate these transcripts as it told the Court that it does?

By its own account, the BRN recognized and endorsed the licenses of 11,186 registered nurses during 2004-2005. Only three other states have adopted regulations specifying a minimum number of clinical hours in nursing pre-licensure programs. None of the three have a requirement that matches California's 810 hour prerequisite. In the vast majority of states, required clinical hours are not determined by the state, but are instead determined by individual schools of nursing. In addition, 37 other states do not require programs in their jurisdictions to maintain concurrent theory and practice components.

Among those that do not stipulate concurrent theory and practice are the contiguous states of Arizona, Nevada, and Oregon. It is from these border states that RNs are more likely to be commuting to practice in California or who may take up residence in the state. Only one of these states requires a specified level of clinical hours in pre-licensure programs and the requirement is less than California's.

How many RN licenses from neighboring states, where curriculum and practice requirements are less than California's, are endorsed each year?

----All pretty interesting, I say. Dustin

Sheri257

Sheri257

3,905 Posts

If the BRN, as reported to the Joint Legislative Sunset Review Committee, does not require transcripts from applicants licensed in other states, how can it evaluate these transcripts as it told the Court that it does?

I don't understand where EC is getting this ... the requirement for transcripts is listed right here on the CA endorsement application.

http://www.rn.ca.gov/lic/pdf/end_app_2003.pdf :confused:

Anyway ... I guess it really doesn't matter anymore. Since two courts have ruled on this, and EC doesn't seem to indicate that they're going to take it any further legally ... it looks like it's pretty much a done deal.

:typing