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The Diversion Program Pros and Cons

The Conundrum Caused by Board of Registered Nursing RN’s Diversion Program Letter

The Conundrum Caused by Board of Registered Nursing RN’s Diversion Program Letter: Solving the Diversion Mystery.

By: Jennifer Coalson-Perez, Executive Director RN Guardian, Mystery-Solver Extraordinaire

How does a California Registered Nurse make an informed decision regarding whether or not to enter the BRN’s Diversion program if it doesn’t sound like it is even an option? If you’ve received this letter “offering” you participation in Diversion, you immediately know what I mean. The first thing it says it that the BRN has been notified that you may have misused drugs or alcohol or you have a mental issue that could be preventing you from practicing nursing safely. If you’ve been recently arrested for a DUI, you can probably narrow the origin of the complaint to the DUI arrest, but if it is something else, you may sit there wracking your brain in panic trying to figure it out.

The next part of the letter is the part that terrifies you: If you decide not to enter, the matter will be turned over to the Enforcement Division of the Board of Registered Nursing which may result in your RN License being Revoked or Suspended. Does this sound like the BRN is giving you a choice? Is there any language in the letter that leads one to believe that Diversion is voluntary, or that there are other options? NO! That is the conundrum. It is a mystery, puzzle, challenge, or enigma. And how do most nurses solve this mystery? By doing PRECISELY what the BRN wants you to do which is to call Diversion and enter the program.

The Diversion Letter is a piece of pure marketing genius. It is akin to the fear- inducing spam you receive in the mail where you get a document that looks like it comes from your mortgage company alluding to a missed payment, but when you open it, it is some sneaky marketing ploy to get you to re-fi at a “historically low rate.” Most people see through this type of trickery that plays on your fears and are irritated by it, but nurses are so blinded by the fear of “revocation or suspension” of their RN licenses, that they fail to read between the lines.

Let me Scooby Doo this for you and solve the Diversion Program mystery: Diversion is Voluntary. There are other options available. The Green Monster is in fact Mr. Withers under the mask. There is a VERY slim chance your license will be revoked or suspended if you don’t enroll in Diversion, but there is a 100% chance that YOUR LICENSE WILL BECOME INACTIVE IF YOU DO JOIN DIVERSION!

What Happens If You Call Diversion?

What the letter does not tell you is that once you make the phone call to Diversion to find out more, they’ve got you: that is the marketing genius. You will admit that yes you had a DUI, a bout with depression or you take drugs. The intake person will get you questioning yourself: “maybe I do have an alcohol problem…” “Yes, occasionally I do feel depressed…” “I do take my Ambien prescription to sleep- I might be addicted to it…” and you’ll enroll. What you will have just signed up for is the immediate deactivation of your RN License, a 3 year commitment to “recover” on their terms and a price tag of about $18,000.00.

The Diversion Program’s biggest draw is that of “Confidentiality” and “Anonymity” and that part is semi-true. Diversion is the only way you can 100% guarantee that the underlying issue will not result in a public Accusation against your RN license. Most nurses want to avoid the embarrassment of their employer finding out and think Diversion is the only way to keep it quiet, but let’s see if we can solve this mystery together as well, by looking at some of the clues.

  • Convictions Are Public Anyway.
    • If the Diversion offer is for a DUI arrest and that arrest results in a DUI conviction: that conviction will be public record and must be disclosed to an employer anyway.

  • Your Employer Will Know You Are In Diversion Anyway.
    • Diversion won’t report your participation to your employer, but how do you explain to your employer that your license has been inactivated and you need to take 6 months off work and when you return, you can’t work with meds and have to be strictly supervised? I’m pretty sure they will figure it out or you will have to tell them. Diversion ISN’T a mystery to employers- but they will assume it is because you have a drug problem.

So if the biggest benefit from entering Diversion is to avoid the issue becoming public, and it is going to be public anyway, or to keep your employer from knowing, and your employer is going to know anyway, what is the real benefit of Diversion? Well, that creates another conundrum, doesn’t it?

What Happens if You Don’t Enter Diversion?

The Diversion alternative is to suck it up and deal with the potential consequences of the underlying complaint.

1. If that is for a DUI arrest, and the case gets dropped, nothing will happen, the whole thing goes away.

2 .If it gets reduced to a wet and reckless because your DUI attorney knows what they are doing, you might get a citation and a fine of $250.00 bucks and the whole thing goes away.

3 .If you are convicted of the DUI the BRN will file an Accusation against your license and you will probably receive a letter of public reprimand or probation (which lasts as long as Diversion, btw.)

  • You will be out of pocket about $2000-ish to the BRN and your attorney’s fees, but the worst case scenario comes nowhere near the $18,000.00 required by the Diversion Program.
  • You get to keep your license. It stays active- the whole time. You get to keep working.
  • Yes, your employer will know, but that just means dealing with the embarrassment of admitting you aren’t perfect, and you may have had to do that once or twice in your life already, anyway. J

4. If it is for a medication issue, the BRN has to prove you have a problem that prevents you from practicing safely. If they can, see #3.

5. If it is for a mental health issue, the BRN has to prove you have a problem that prevents you from practicing safely. If they can, see #3.

Once you have all the facts and have solved the mystery of the Diversion Program, Mr. Withers isn’t so scary, is he? He is crabby and mean, but pretty harmless.

For more information on Diversion, Click here to go the the Diversion section of the blog. For Information about the BRN's Discipline process click here and for info about RN's with a DUI, click here.
 Or- give me a call and I will be more than happy to listen to your personal story and let you know based on your specific facts, what your likely outcome will be if you choose not to enroll in the BRN’s Diversion Program. 916-851-1900.

Why Did I Receive a Letter From the BRN Offering Me the Diversion Program?

Why Did I Receive a Letter From the BRN Offering Me the Diversion Program?

 

I answer this question daily but you can probably answer it yourself. You will receive a letter offering you the Board of Registered Nursing or LVN Board’s Diversion program if any of the following have occurred:

  • You are a registered nurse or LVN and you’ve been recently been arrested for a Driving Under the Influence Charge (DUI)
  • You are a registered nurse or LVN and were at one time convicted of a Driving Under the Influence Charge (DUI)
  • You are a registered nurse or LVN and have recently been arrested for Drunk in Public or Disturbing the Peace and there was alcohol involved.
  • You are a registered nurse or LVN who has recently been arrested for any domestic disturbance in which alcohol played a roll.

(are you seeing a pattern here? )

  • You are a registered nurse or LVN who may have made a medication error and didn’t properly account for wasting medication. This is especially problematic if the medication is a schedule 3 controlled substance.
  • You are a registered nurse or LVN who may have experienced an issue with the pyxsis machine at your facility.
  • You are a registered nurse or LVN who may have mis-charted when it came to medication; this is especially true if the medication is a schedule 3 controlled substance.
  • You are a registered nurse or LVN who takes prescription medication like sleeping aids, anti- anxiety, depression, or pain management substances.

(ok now you HAVE to see the pattern here)

 

You’ve received a Diversion letter because the BRN or BLVNPT believes that you’ve misused drugs or alcohol. If you have "misused drugs or alcohol" the BRN has casue to discipline you based on this portion of the Nurse Practice Act :

 

2762(b)            Use of any narcotic, dangerous drug, or alcohol to the extent that it is

dangerous to self or others, or the ability to practice nursing safely is

impaired.

 

2762(c)            Conviction of a criminal offense involving the prescription, consumption, or self-administration of narcotics, dangerous drugs, or alcohol, or the possession of or falsification of a record pertaining to narcotics or dangerous drugs. (See also 2761(f) and 2762 (a), (b) and (e).

If the Boards (BRN or BLVNPT ) believe or can prove that you’ve violated this section of the Nurse Practice act, they will automatically issue you an offer for Diversion. The letter is the same whether you were arrested for a DUI but only had a blood alcohol content of .06 or if you’ve been diverting Dilaudid for 18 months from your hospital. It’s a form letter- everyone gets one. Not everyone should.

 

The important things to think about when considering Diversion are these:

  • Do you have a dependency issue with alcohol or drugs or medication?
  • Do you need to take time off from being a nurse to get this addiction under control?
  • Can you afford Diversion? ( 6 months MINIMUM off work plus $500 + per month for the program)

Many nurses will accept the Diversion Program to avoid discipline. The offer letter is written to scare the pants off you and make you think that if you decline, the Board will take your license and that is just simply NOT THE CASE. RN Guardian’s panel attorneys have defended nurse’s licenses for each of the alcohol or drug issues listed at the beginning of the article and not one single nurse has lost their license. In fact some of our nurses have got off scott-free. Some have received low level discipline like citations and fines or letters of reprimand. A number of our RN clients have been given probation with a rule out provision. So as you can see, there are a number of options, and none of ours include revocation or suspension.

If you need more answers or would like to discuss your case specifically, please give me a call at 800-506-9766 and ask for Jennifer.

IMPORTANT NOTE FOR POSSIBLE CRIMINAL CHAGES

I should note, that if you fall under the category of an RN or LVN who has in fact been diverting medication for use or sale, or falsifying prescriptions it is imperative that you call us. These accusations can not only carry a penalty with your respective Board of Nursing, but there is the possibility of being criminally prosecuted. You need to be aware of statutes of limitations and possible outcomes before doing anything. Enrollment in the BRN’s Diversion Program WILL NOT PRECLUDE A CRIMINAL INVESTIGATION. 800-506-9766.

 

 

 

Beware Calling Maximus for the "Confidential Consultation" When Considering Entering the Board of Nursing Diversion Program

The Board of Nursing's Confidential Diversion Program is NOT Confidential 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 Program Frequently Asked Questions

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.

Why CODE § 2770.12 Should Scare the Scrubs Off You

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.California Registered Nurse (RN) with license Problem

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.

 

What Happens If A RN Diverts From Diversion?

 

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.

 

Why The BRN's Diversion Program Doesn't Work

A Year Later: Why Diversion Doesn't Work

A few days ago I took a call from "Sarah," a RN who was fed up with the irrational demands of California's Nursing Diversion Program. She wanted out. Four days prior, I spoke with "Lucy," a RN who was considering Diversion because she didn't want to have her license revoked.

So What is the Answer?

It is important to understand all the variables.  Sarah chose to accept the Diversion program becasue she had an accusation against her license. There was no formal BRN investigation and the Board would not tell her what the accusation was for. Sarah assumes it stems from a DUI she received a year ago. She is not an alcoholic and did not feel that she was a good candidate for Diversion, but she chose to enroll to keep the accusation from going public and hoped to avoid license revocation.
A year later and thousands of dollars in debt, she wants out because the Program is mandating that she go into a 90 day inpatient program because she tested positive for alcohol in a ETG. She has not had a drop to drink, but because the Program uses a ETG for testing, she's showing positive for traces of alcohol; which can come from anything from soy sauce to hand sanitizer. The Board does not take this into account.
The inpatient program will cost about $20,000 and is completely irrational option for Sarah, who does not have a dependency problem. Where will Sarah come up with that money since she hasn't been able to work for the last year, as the Diversion Program mandates? She can't pay.  She has to quit diversion and accept the consequences, which will be an investigation into her license and a request by the Board that she either surrender it or they will revoke it.
Lucy, on the other hand called me and asked about her options after a DUI.  She wanted to know what the requirements of the Diversion program were, verses facing revocation. This is what I told her:

Diversion requirements include:

1. you can not work
2. you submit to drug/urine tests
3. you attend diversion mandated support groups
4. "completion" is based on the decision of the Board
5. usually takes 3 years or more to "complete"
6. the accusation remains anonymous
7. it can cost tens of thousands of dollars
If you face revocation with RN Guardian attorneys, you will keep your license but will have to face probation. A DUI or any drug/alcohol related conviction is a "revocable offense", but our lawyers have never failed in license retention for our members.

Probation requirements include:

1. you can work
2. you may have to submit to random drug/urine tests
3. you may be required to attend support groups
4. probation lasts for 3 years
5. you can appeal after 24 months
6. the accusation is public record and will be posted
7. it will cost about $6,000, if you're not a RNG member

So what is the answer for Lucy? It is a personal choice, but it should be an informed one. Please know if you are ever faced with making the decision between Diversion or fighting for your Regiistered Nurse license, we are here and you can make your decision based on legal precedent, sound advice from our lawyers and years of attorney experience . Call us at now at 916-851-1900 and speak to a lawyer right away. If you would like to share your thought or experiences with Lucy, please do so on the Forum. I'm sure she would be grateful.

October News: The Diversion Issue

NEWS
ProPublica Discusses The BRN's Diversion Program
 
ProPublica is the public watchdog group that incited public outcry last year with their piece on the Board of Registered Nursing:
 
Loose Reins on Nurses in the Drug Abuse Program
by Tracy Weber and Charles Ornstein, ProPublica: Nov, 2009.
 
Diversion, embraced in various forms by many regulators, is intended to protect both professionals and the public.
 [2]  enroll voluntarily, sometimes after a complaint, sometimes before they land in trouble. They agree to a host of conditions, such as submitting to random drug tests, seeking treatment and pledging not to work without permission.
 
In return, the board suspends the disciplinary process, keeping secret the nurses' participation in the program. With an annual diversion budget of nearly $3 million, it relies on an outside contractor to run the program day to day.
 
 

Alcohol Testing for Nursies Used by BRN's Diversion Program

Widely-Use EtG Test for Alcohol Unreliable
Cannot Distinguish Between Consumption and Exposure

By About.com Guide

Updated December 31, 2008

 What Is a EtG Test?

The EtG test is a biomarker test that detects the presence of ethyl glucuronide in urine samples. Usually, it is used to monitor alcohol consumption in individuals who are legally prohibited from drinking alcohol by the justice system or restricted from drinking by their employers.

The EtG test is just one of many biomarker tests available to confirm the presence of alcohol in urine samples. These tests are used to document abstinence and detect relapse, but they can also be used in clinical settings to screen for drinking problems, evaluate interventions for alcohol problems and motivate changes in drinking behavior.

 The Problem With the EtG Test

The EtG test is sensitive to the presence of any alcohol, even low-levels, and can detect alcohol in the urine several days after consumption. But the test is so sensitive, it can produce a positive test for ethyl glucoronide from the mere exposure to alcohol that is present in many daily use products.

The EtG test came under scrutiny when a significant number of people, who insisted they had abstained from drinking alcohol, failed the test. SAMHSA used many of those protested cases to research the accuracy of the EtG test and determine the cause of the false positives.

 What Causes False Positives?

According to SAMHSA's research, positive EtG tests can result from the use of hand sanitizers, medications, hygiene products, cosmetics, foods and other products that contain even small levels of alcohol. People can test positive for alcohol consumption after being exposed to laundry detergent, antiperspirant, aftershave and even hair spray.

There are hundreds of household products that contain ethanol, according to the National Library of Health's Household Products Database, which could possibly cause a false positive with the EtG urine test.

The advisory also said that gender, age, or ethnicity may also affect EtG test results, but more research is needed to find out for sure.

______________________________________________________________________________

*If you need to speak with a Registered Nurse (RN) attorney about testing positive for an ETG Urine test if you've had a DUI, call RN Guardian now at 916-851-1900. We provide hassle-free access to lawyers that specialize is Registered Nurse (RN) DUIs, Board of Registered Nursing License defense and we can save your RN license from revocation.

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