The State Education Department (SED) should improve its process to investigate serious complaints against nurses and more actively monitor professional misconduct, according to an audit released today by New York State Comptroller Thomas P. DiNapoli.

The investigations of "priority 1" complaints against nurses – which can include offenses such as sexual misconduct, practicing under the influence of alcohol or physical abuse – are supposed to be completed within 42 days. DiNapoli's auditors, however, found that on average it took 228 days to complete such investigations, including one case that was open for 866 days as of Feb. 28, 2017.

"The State Education Department has clear policies and procedures for vetting potential nurses and monitoring and investigating those on the job, but my auditors found the department is not always meeting its own goals, which is potentially putting patients' health and safety at risk," DiNapoli said. "SED has taken steps to improve the process but more is needed to identify the few bad actors from the many responsible professionals who've chosen nursing as their career."

SED oversees the licensure and practice of 54 professions, including nursing. During the period April 1, 2014 to Oct. 31, 2016, there were about 450,000 active professional nursing licenses – in the titles of licensed practical nurse, registered professional nurse, clinical nurse specialist, and nurse practitioner – in New York state. Individuals can hold more than one license. To qualify for a nursing license, applicants must meet certain standards under state law, including education, examination and moral character requirements.

SED also is responsible for investigating complaints and prosecuting professional misconduct. Complaints are rated on a scale of priority 1 to 4, with "priority 1" being the most serious. SED receives about 6,000 complaints against licensed professionals, including nurses, each year.

In addition to exceeding time frames for "priority 1" case investigations, DiNapoli's auditors found SED was failing to follow-up on many lower level offense complaints on time as well.

For example, of 8,202 investigations (including 215 priority 1 and 7,987 priorities 2 to 4) open at some point during the period April 1, 2014 to Feb. 28, 2017:

• 2,035 lower-priority investigations (25 percent) were not completed within the department's established 180-day time frame; and
• 482 priority 2, 3 or 4 investigations that exceeded 360 days were not upgraded to a priority 1 status, as is required. A total of 327 investigations, including 43 designated as priority 1, exceeded 402 days, which is the maximum time frame allowable.

Confidentiality restrictions imposed under state law prevented auditors from independently determining what led to the delayed investigations. However, SED officials explained that priority 1 cases are typically the most difficult cases with obstacles including a lack of available records or ongoing criminal investigations with which SED cannot interfere.

DiNapoli's auditors found that while SED independently verifies applicants' education credentials, exam results and out-of-state licenses to ensure they meet requirements, it lacks critical tools to confirm a nurse meets the state's moral character standard.

Unlike 40 other states, New York does not require fingerprinting or background checks as a condition for obtaining a nursing license. SED's assessment instead relies on applicants' disclosure of past misconduct and criminal convictions. Officials conceded that some nurses are not always truthful in their disclosures, but SED still does not take full advantage of other available resources, including computer databases, which could help identify past wrongdoing.

DiNapoli's auditors also found SED does not actively monitor nurses once they are licensed to identify instances of misconduct and criminal convictions. It instead relies on nurses to self-disclose, which they are only required to do every three years. This enables nurses who have been sanctioned to continue practicing in the interim. Other states, such as Pennsylvania and Florida, have addressed this risk by requiring licensees to report new convictions within 30 days.

DiNapoli recommended SED:

• More closely track investigations, particularly those classified as priority 1, to help ensure they meet established time frames for completion;
• Reevaluate existing resources and procedures to identify opportunities for streamlining investigations; and
• Take steps to strengthen oversight of nurse licensing, including strengthening controls over moral character requirements and researching other states' nurse licensing and monitoring procedures to determine best practices for enhanced oversight.

SED officials acknowledged the risks noted by DiNapoli's auditors and cited steps they took to address them. SED's full response is included in the complete audit.

Read the report, or go to: http://www.osc.state.ny.us/audits/allaudits/093017/16s83.pdf

For access to state and local government spending, public authority financial data and information on 130,000 state contracts, visit Open Book New York. The easy-to-use website was created by DiNapoli to promote transparency in government and provide taxpayers with better access to financial data.