When does the term "confidential" really mean confidential?

a. When you tell a five year old to the keep ice cream you bought her before dinner a secret.

b. When you disclose personal information regarding an addiction to the BRN's Diversion Provider, Maximus, who promises that that the initial consultation will be kept confidential.

Based on my new information from the California BRN and a personal phone call to Maximus themselves, you'd have much better luck with the five year old.

4 months ago, I took a phone call from an RN who had received an offer for the BRN's Diversion Program based on a DUI conviction. This is certainly not uncommon; I receive phone calls just like Judy's every day. The BRN will issue the Diversion offer for any DUI arrest, whether it has resulted in a conviction or not; and the nurse has some options to consider. 1.) She can enter Diversion, have her license de-activated and complete the 3-4 year program; and the incident that could potentially result in an investigation remains confidential. 2.) She can decline Diversion and expect that a formal accusation will be filed against her RN license, if the arrest results in a conviction.

Judy and I discussed her options. Her DUI was a onetime thing and had happened more than 7 years prior. I felt like Diversion was probably not the best option for her because she was not an alcoholic and with the help of our Panel Attorneys, she would fair very well in a settlement negotiation with the Board. However, I encouraged her to weigh all of her options carefully and if she was still interested in how Diversion worked to call the program and inquire.

I did warn her not to enter the program unless she was 100% sure that she could complete it. There is a hidden peril in entering Diversion and then withdrawing, or being dismissed from the program for non-compliance. Anything that is said, meaning any admissions of drug use, chemical dependency, mental health issues, depression, even prescription drug use will be handed over to the BRN's enforcement unit. This information can then be used to bolster an accusation or license discipline. I feel badly now, because I didn't think to warn her not to call them at all. I won't make that same mistake again. Read on.

Judy did exactly as I had suggested. She called the 1-800 number for Maximus and participated in what she assumed was a confidential conversation to gather more information. She told the Maximus employee that she drank occasionally and also told them that she went to work after taking some pain medications, but never altered by her medication. She freely gave her name and mailing address so that Maximus could send her some more information, assuming all the while that this conversation she was having was the "Confidential consultation when considering entering the program" referenced on the BRN's website http://www.rn.ca.gov/diversion/whatisdiv.shtml .

Two days later, Judy checks her license status on the BRN's website and is horrified to learn that it has been de-activated. She calls the Board to inquire why and is told that she entered the Diversion program and her license has been placed on inactive status as a result. Judy explains that she did NOT agree to enter the Program and the conversation she had with Maximus was only to gather more information; there must be a mistake. The BRN employee says she has to confirm this with Maximus but if that is the case they will simply reinstate to active status which could take a week or so. Thank the RN Licensing gods that Judy was not working as an RN at the time or she would have been easy pickin's for an additional accusation for working as an RN without a license. Eventually the Board admits that there must have been a mistake and Judy's license in restored to active status about a week later. I remind Judy to document everything, just in case.

As a result of Judy declining the Diversion program, she received the anticipated accusation and sent in on to me so I could review it, get an attorney assigned to help her and begin the process of negotiating a settlement. First cause of discipline, pretty standard stuff: conviction of a DUI. Second and third causes of discipline standard again: unprofessional conduct relating the DUI to the practice of nursing. Wait.... What is this.... A fourth cause for discipline?

FOURTH CAUSE FOR DISCIPLINE (Unprofessional Conduct & Use of Alcohol in a Dangerous Manner)

b. Respondent contacted the Board's Diversion Program and requested entry. The initial intake meeting was completed on May 7. At that time, Respondent admitted to her Diversion Program case manager that she drank alcohol before her shift to help her sleep. After being at work for two hours, Respondent was confronted by H.R. stating that she smelled of alcohol. Respondent also admitted that she consumed alcohol on a weekly basis, and that she used opiates while taking care of patients in the emergency room.

c. On or about May 16, Respondent contacted her Diversion Program case manager stating that she would like to withdraw from the program.

d. The Diversion Evaluation Committee reviewed Respondent's case and determined that she was not sober. Respondent was terminated from the Diversion Program as a public safety risk on May 21.

I am absolutely shocked that what Judy had disclosed under the protection afforded by a confidentiality privilege published on the BRN's website was now being used against her in a formal accusation. How could a mistake like that have been made? What is the process of "requesting entry" into diversion? I had always assumed that a nurse was not admitted until they signed the waiver acknowledging that they were giving up their confidentiality privilege if and when they left the program without completing it. It seemed reasonable to me that signing one's life away for a 3-4 year intensive program would in fact, REQUIRE A SIGNATURE. I make an immediate phone call to Maximus and ask to speak with the person who handles the intake for nurses. And I am furious.

Her name was Darlene. Here is how our conversation went.

Me:

I would like information regarding how the intake process works for a nurse entering the Board of Nursing's Diversion Program.

Darlene:

1. The nurse calls Maximus.

2. Maximus explains what the Diversion Program is.

3. The nurse explains why she believes she may qualify for the Diversion Program (this is where the nurse flushes out all of the skeletons in her closet. You can't get into the program unless you have "issues.")

4. The nurse says "yes, I want to be admitted," and that's all it takes. You're in. We notify the BRN and the RN's license is deactivated.

Me:

Wait... what? It is just a verbal yes or no?

Darlene:

Yes.

Me:

You mean nothing has to be signed?

Darlene:

Nope, just a verbal "I would like to be admitted". Then we send the paperwork to the nurse.

Me:

Well, if it just a verbal yes or no, isn't it possible that the request for more information could accidentally be construed as a request for admission?

Darlene:

No, we make really sure they actually say they want to be admitted.

Me:

You make REALLY sure?!!?!? Is it recorded? Is there proof anywhere that the nurse actually says "I want to be admitted?!?!?!? Doesn't it seem like a mistake could easily be made??!?!?!

Darlene:

Uh-um-uh- um-No.

Me:

Click, as I hang up the phone in a state of infuriated disbelief.

So here is the moral of the story, my friends. Maximus is a company. They make money. They are the contracted provider of rehabilitation services for not only the Board of Nursing, but the Board of Psychiatric Techs, Chiropractors, Physicians Assistants, Dentists, etc, etc. They only get paid when someone enters the program. So if you think for one second that mistakes during Maximus's intake process are reserved for my friend Judy, think again. And if you think a little harder you may begin to wonder why the intake process is as simple as a "yes" or "no" that can't be proven.

Here is what I think. In this instance, Maximus trapped Judy in their system and then because she never wanted in, they punished her by turning over her file to the BRN. The BRN (who incidentally makes money as well based on the result of an accusation) used the information in the Maximus intake file to bolster their accusation.

Judy's case is now being handled by one of our RN Guardian Panel Attorneys and her first mission in this whole process is to get that blasted FOURTH CAUSE stricken from the accusation because it should never, ever, ever have been there in the first place. My mission is to let you know. Beware of the Diversion Program. Do not give Maximus your name or your address until you have unequivocally made a conscientious and well informed decision to enter their program, and for Pete's sake don't call them for "more information". If you want to know more about the Diversion program, call me. We actually make you sign something when you agree to allow us to help you. We are bound by a code of ethics that requires us by law to keep anything you tell us confidential... which makes us more trustworthy, even than the five year old.

Keep your head up, Judy.

DIVERSION FAQ’s

Q.           I received a letter from the Board of Nursing offering me the Diversion Program because I am being accused of taking medication from my facility because of some waste discrepancies. What should I do?

                A. This a very personal decision: if you did take the medication for personal use because you have a dependency problem, then the Diversion Program would be a good option. However, if you just have some meds that can’t be accounted for and you did not take them, then Diversion will not be a good choice and you should call a lawyer right away (preferably us, because we know this stuff!)

Q.           What is the BRN’s Diversion Program?

                A. It is a “confidential recovery program” that is outsourced to a company called Maximus and is intended to help nurses overcome addictions or mental health issues. Please bear in mind that the Diversion Program is ONLY confidential if you remain in it and successfully complete it.

Q.           What would happen if I begin Diversion and then decide it is not right for me?

                A. Everything that you tell your Maximus case coordinator and everything in your file will be turned over to the enforcement unit of the Board of Nursing and used as evidence to discipline your RN license.  You must sign a waiver of confidentiality when you are admitted. You are also not entitled to your own file.

Q.           I’ve heard that I cannot work when I am in the Diversion Program; is this true?

                A. It is true. Your license is placed on INACTIVE status as soon as you are admitted to the program. We have had clients who were accidentally placed on inactive status just for speaking to the Diversion coordinator. Please carefully way all of your options and get all of the information regarding the Diversion Program before you call to speak to them.

Q.           Do I have to reply to the offer of Diversion? What happens if I just ignore it?

                A. If you answer them and decline or ignore it, you will likely have the same result.  If the Board has any information that you’ve had a DUI, taken medication from your facility, falsified a prescription, wasted medication improperly, gave improper doses to patients, have your own properly prescribed narcotic pain medication, has evidence of pyxis discrepancies, etc, you will receive a formal accusation from the Board of Nursing.

Q.           I am being offered the Board of Registered Nursing Program’s Diversion Program and I have no idea why.

A. If the Board has received any tips or has information that you’ve had a DUI, taken medication from your facility, falsified a prescription, wasted medication improperly, gave improper doses to patients, have your own properly prescribed narcotic pain medication, has evidence of pyxis discrepancies, etc, this will lead to an investigation. The Board takes any drug or alcohol related matters very seriously and they will investigate. The most important thing that you can do to protect yourself is get the help and support of an attorney. Remember, the hospital or facility has all the charts, all the records, all the proof. All you have is your word and hopefully, your lawyer.

RNG recently discovered what an absolute omniscient hold the BRN’s Diversion Program has over their Nurse Participants, so much so that a nurse can’t even get her own records to exonerate herself from a disciplinary proceeding that will forever ruin her career.

A terrified nurse recently contacted us because her California RN License had been subject default revocation and as a result, she has been contacted by the Office of the Inspector General and is being considered for the Federal Department of Health and Human Services List of Excluded Individuals/Entities (LEIE).  Meaning she is done- forever- having anything to do with healthcare in the United States… I’m sure you can understand her terror.

I’m not going to lie to you, when I found out that she had been contacted by the OIG and was being considered for the Exclusion List (LEIE), I assumed she must have done something really atrocious. Even with the hundreds of nurses we advise, we don’t come across the Exclusion list (LEIE) very often. As it turns out, her original offense was rather innocuous in comparison to many of our cases:

She was accused of diversion of opiate pain killers, on 2 separate instances. She confessed to taking the pills and was offered the BRN’s diversion program, which she gladly accepted because she was suffering from severe depression, was in a physically abusive relationship and wanted all the help she could get.  After 5months, the Diversion Case Manager released her to go back to work. Her performance evaluations were great, all of her drug tests were clean and after 2 and half years, the finish line was in sight.  But then she got sick.

She failed a number of urine drug tests because of “dilutes”, which seemingly- could be easily explained by her intestinal problems and the fact that she couldn’t keep anything of substance in her body, all of which was verified by her doctor. The Diversion Program kicked her out anyway, a few months away from completion. Down to 95 pounds, sick, dejected and now jobless, our client gave up on her dream of sunny California and she returned home to Michigan to be with her mom.

In the mean time, the Board of Registered Nursing found out that our client had been dismissed from diversion and so they begin an investigation for the original 2006 diversion of drugs. She responds to the initial investigation letter and explains to the Board that she would have completed diversion except for the illness, provides a letter from her doctor substantiating all of her claims and crosses her fingers. It wasn’t enough. The Board files the formal accusation calling for revocation or suspension of her RN license and at this point she’s had enough. She’s tired of fighting with California and she is never planning on returning so she doesn’t respond to the accusation and her license is finally revoked in May, 2011 by default. Sadly, had she called us during the investigation or even the accusation stage we could have helped her, and maybe that is why I feel so terrible for her now and why we are determined to keep her off the Federal Department of Health and Human Services Exclusion List (LEIE).

She hears from the Office of the Inspector General in July. If the OIG feels that the “crime” prevented the delivery of health care services to a patient then they consider that healthcare provider for the exclusion list. Because our client took meds that were signed out for a patient, they are able to equate the incident to their requirements. The OIG is allowing our client 30 days to provide them any information that could help sway their decision.

That is fantastic news! Because the OIG and Department of Health and Human Services are not aware of any of the other circumstances surrounding the diversion of the medication, our clients 2 ½ year stint in diversion and that it was an illness that caused her dismissal, we feel very confident that the OIG will drop the matter. All we need is our client’s file from Diversion to prove to the OIG that she was perfect while in diversion and never once, in the 2 ½ years following the incident, did she have a dirty drug test.

This is when you need to hold on to your scrubs: According to CAL. BPC. CODE § 2770.12 : California Code - Section 2770.12, our client is not allowed to get her file; as her attorneys, we can’t even have it subpoenaed.

(b)All board and committee records and records of a proceeding pertaining to the participation of a registered nurse in the diversion program shall be kept confidential and are not subject to discovery or subpoena.

But according to CAL. BPC. CODE § 2770.11 : California Code - Section 2770.11 (b), the BRN can use the file and any information contained within it, to discipline the nurse:

(b)If the program manager determines that a registered nurse, who is denied admission into the program or terminated from the program, presents a threat to the public or his or her own health and safety, the program manager shall report the name and license number, along with a copy of all diversion records for that registered nurse, to the board's enforcement program. The board [BRN] may use any of the records it receives under this subdivision in any disciplinary proceeding.

Time and time again we’ve seen the BRN cite a Nurses Diversion File in order to discipline the nurse, including admissions of chemical dependence, depression or “mental illness”. Diversion case managers have been expert witnesses for the Deputy Attorney General during Hearings and have aired all the Nurses most personal confessions, thoughts, fears, psychological exam notes and rehab information. But the nurse herself, has no right to her own file. The nurse’s attorneys have no right to the file. The metaphorical smoking gun is right there—and we can’t get it to prove that our client wasn’t the one that pulled the trigger.

It is quite possible that our client will be placed on the Exclusion List. Without the proof that she was never addicted to opiates, nor did she ever show positive for a drug test in 2 ½ years following the incident, all we have is her word against the Boards and the facts that we have access to, are not in her favor.

If you are considering the BRN's Diversion Program, are under investigation by the BRN for a drug or alcohol issue or a DUI, have been contacted by the OIG for consideration for the Exclusion List (LEIE), please call us first. It is imparitive that you know all of your options and have all the facts. We can help. 800-506-9766.

RN Guardian’s Panel Attorneys, Goyette & Associates’ have  recently represented a number of Nurses who have either withdrawn or been removed from the Board of Registered Nursing’s Diversion Program.

G&A attorneys have actually begun advising our clients that surrendering their license may be the best option, and we’ve been hearing that more and more frequently when it comes to DUI or Drug issues. You see, nurses with a chemical dependency problem can battle an addiction for years with in-patient programs, out-patient programs, NA/ AA … any A you could think of. They stay clean for a few months and then relapse.  Many enlist the help of the BRN’s diversion Program at this time, but it turns out that seeking help from the one group who is supposed to be their  biggest advocate, can turn out to be the biggest mistake they could have made.

The BRN’s Diversion Program is no-nonsense and they very strictly adhere to the AA/ NA model of recovery:

·         90 meetings in 90 days

·         Finding a sponsor with 5 years of sobriety

·         Working the 12 Steps

·         Going to Nurse Support Groups

·         Calling in daily for random Drug testing

·         Submitting to drug tests as required

·         Meeting periodically with a case coordinator

·         Submitting to a psychological exam

·         Sticking with the program until the program itself deems one “recovered”

Obviously this model has not worked for all of our RNG Members before. They have done all of the above. They have done them all many times. But there is alternative mode of treatment called Medical Management, where the nurse meets with a Psychiatrist and is diagnosed. The subsequent medication prescribed can diminish cravings and enable the nurse to remain clean and sober. The Diversion program will encourage Medical Management, but only after an internal referral from a BRN psychiatrist which of course requires a full disclosure of all behavioral issues, drug and alcohol additions, etc.

The problem with Diversion arises  if the nurse is kicked out of Diversion for non-compliance or withdraws on their own. The BRN can then use one’s own self –referral against them. They can use everything the nurse discloses to the Diversion’s Case Manager. They can use all the records the nurse has allowed them to obtain. They can use the nurse’s own physiological evaluations against them and they can do all of this legitimately because the RN must sign a waiver in order to be admitted to the Diversion Program in the first place.

These cases are especially heartbreaking for me because I develop relationships with and get to know our Members over the years as I manage their cases.  They are exactly the kind of people who should be nurses. I believe so fully in their abilities and natural propensity as caregivers that if I had a choice and could pick a nurse, I would pick one of them as mine. Yes, they have imperfect pasts. Yes, drug use is “substantially related to the Practice of Nursing” as is defined by the Nurse Practice Act.  But if a nurse seeks help for their issue, removes themselves from work so that they can get a grip on their addiction and then are eventually able to get sober, is this the kind of person who should have their license to be a nurse revoked? NO!!!

Make no mistake; I am not advocating that nurses who are the midst of battling a chemical dependency issue should be dealing with patients. I am not advocating that a nurse who harms a patient in any way because of impairment be allowed to continue practicing as a nurse. What I am saying is that RNs who recognize a dependency  problem, seek help for that problem and are able to overcome an addiction should not have their license to practice Nursing be revoked indefinitely.

I am also saying that it is an outrage that once a Nurse is either removed from or leaves Diversion, that everything they have disclosed becomes immediate fodder for a license revocation case against them. I’m saying that it is an outrage that a nurse’s Diversion Case Manager can be called as an expert witness in a BRN Hearing AGAINST the nurse. I’m saying that one mode of recovery may not work for everyone and that if it turns out that the Diversion model may not work for you; I would advise you to think very carefully about entering into the Diversion Program in the first place.

Our attorneys have been able to successfully negotiate with the Deputy Attorney General for Probation Settlements, Stipulated Surrenders or License Suspensions in lieu of revocation. The bottom line is that this is not something a nurse should go alone. If you are in Diversion and thinking of leaving, call us. If you have a dependency problem and are considering Diversion as a option, call us.  If the BRN is offering you Diversion as an alternative to Revocation or Probation, please call us. We can help.