Thursday, 05 April 2012 20:04
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.
I would like information regarding how the intake process works for a nurse entering the Board of Nursing's Diversion Program.
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.
Wait... what? It is just a verbal yes or no?
You mean nothing has to be signed?
Nope, just a verbal "I would like to be admitted". Then we send the paperwork to the nurse.
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?
No, we make really sure they actually say they want to be admitted.
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??!?!?!
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.