Increased LIcense Enforcement –Work Place Erros and Drug Diversion Issues

The cross roads of my legal practice, criminal defense and professional licensing defense, is becoming a very busy place. Increased enforcement from the various license boards for even minor regulation violations has become rampent. I daily receive telephone calls from many licensees whose health care employers blame them for a variety of general work place deficiencies that are not a licensee’s fault or responsibility. Strident, hard working and ever listening, I defend these professional licensees from the myriad of unfair employment circumstances that enter the realm of State Board discipline.

Our current heightened enforcement environment is due to many reasons, all of which are irrelevant for this blog. Typically, though, prior medical and nursing malpractice claims force health care employers to reorganize work place protocols for care, documentation, and medication administration. These changes in administration protocols are poorly thought-out, the front line nursing staff is not consulted, and most new processes can’t be implemented or simply don’t work.

When the new program’s deficiencies are discovered, work-loads are increased to levels that are unsustainable. Human break downs occur and the diligent sacrificing CNA, LPN, or RN with no insurance, or no time to care for themself, make a minor work place mistake. Through no fault of their own, placed in an impossible work environment, and tasked with job responsibilities that two or three people couldn’t perform, mistakes will occur. Job termination happens and the health care provider must report to the state board the errors.

Unfortunately, the hardest working health care professionals are the first ones to be accused and cast aside. However, not before statements are taken, admissions to certain activity drawn out, then termination is an inevitability. Now an investigator calls to accuse and scare. Call me before you talk to anyone.

The economic downturn combined with contract employees with no health insurance has also created the perfect storm for diversion cases. Either self-medicating (drinking or using illegal drugs) or diverting readily accessible medical grade narcotics has become a huge problem as of late.  These difficult cases begin when a health care provider does not care for them self, or do not go to doctors to update prescriptions, or simply ignore their own medical and mental health break downs. Caring for everyone but themself makes this worker susceptible to diverting prescription waste for their own usage.

If this is taking place, a drunk driving offense, or on the job injuries requiring blood drawn for OSHA compliance, will result in a positive drug test.  A positive blood or urine test when placed in context with the a heightened reporting burden and responsibility of the employer/health care provider, requires automatic termination and potential license and criminal ramifications become very real issues.

However, both proof of a theft and the medical basis for the medication in one’s blood are two evidentiary hurdles investigators can’t get over. Either practice or custom work place deviations from the PIXUS, or any other type of self counting drug dispenser, due to sharing of passwords complicate this issue. Long term documentation of medical conditions and prescription usage will also discourage prosecution. Under either circumstance, statements should not be given, call backs to Board or Attorney General investigators should be delayed, and counsel secured.

Read my other blogs on the significance of PNAP and how going into this program is not the best, first choice, for many health care providers.  Please call me to discuss your case.

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