Nurses and PAs Charged With Diverting Controlled Substances.

An allegation of controlled-substance diversion is a serious matter. When the federal government gets involved, it has the potential to trigger four separate (but often concurrent) proceedings. A nurse, physician assistant, or other DEA-registered professional can end up having to defend their license and profession against allegations of diversion in a licensing case, an employer-initiated personnel proceeding, a criminal case, and a DEA case. However, an allegation alone does not always result in license revocation. An accusation is not the same as a conviction, and professional licensing revocation is not automatic, even when someone faces allegations of diversion. This applies in all cases, including:

• Nurses facing criminal investigation;
• PAs facing licensing consequences;
• DEA-registered professionals at risk of license loss; and,
• Professionals facing discipline from their employers. For example, a nurse accused of diversion may face both a criminal investigation and professional-discipline proceedings. Even though these proceedings are separate, they may run concurrently. A physician assistant accused of diversion may be subject to licensing consequences regardless of whether they have been criminally convicted. However, license loss for a PA is not automatic, and a PA can (and should) mount an aggressive defense against loss of their professional license regardless of any criminal allegations. The ability to continue working, whether as a nurse, PA, or other DEA-registered professional, will depend in part on the nature of the restrictions placed upon them by their employer, the licensing board, or other authorities.
• The loss of a DEA registration is a separate matter from a state licensing board’s denial or revocation;
• An arrest is a separate matter from the filing of criminal charges;
• The filing of criminal charges is a separate matter from a conviction; and,
• A licensing board’s order (such as license revocation) is a separate matter from the outcome of a criminal proceeding. As a final important point, it is necessary for nurses and other DEA-registered professionals to keep in mind that an accusation, arrest, criminal charge, licensing case, and conviction are five distinct events. While the outcome of one can certainly impact others, they are not the same thing, and there are distinct legal issues and defenses at play with each. An accusation does not automatically lead to an arrest, and an arrest does not automatically lead to criminal charges, nor does a criminal charge automatically lead to a conviction.

Which agency usually sees a medication discrepancy first, and what follows?

In almost all cases, it is the nurse or physician assistant’s employer who identifies a medication discrepancy, rather than a law enforcement agency. This usually happens during a routine audit, due to an automated dispensing system, or after someone notices the professional’s behavior. Once the employer determines that a diversion investigation is necessary, the following steps are typical: - Investigation, Interviewing Co-workers, Patients, and Witnesses. Investigators will interview the suspect’s coworkers, patients, and any potential witnesses. These interviews will include probing questions about the professional’s character, habits, and potential signs of drug misuse.

• Investigation, Reviewing Records. This includes (but is by no means limited to) reviewing: - Medication administration records (MARs); - Waste records and logs; - Controlled-substance audits; - Pharmacy access logs and other access records; - Electronic health records (EHRs); - Electronic medical records; - Video footage, badge swipe records, and other physical access records; - Employer policies and procedures; - Personnel files and performance records; and, - Other relevant documentation.
• Investigation, Reviewing Statements. Investigators will review witness statements, statements from the accused professional, and statements from the professional’s supervisors.
• Investigation, Examining Discrepancies. Discrepancies may be found in a medication administration record; in a waste record; between two records; between the records kept by the facility and the records that the drug manufacturer or supplier maintains; or in some other way.
• Investigation, Identifying and Contacting Additional Sources. Investigators will also identify and contact any additional sources of information or potential witnesses.
• Criminal Investigation, Assessing Next Steps. At this stage, if investigators believe that diversion occurred and that the nurse, physician assistant, or other DEA-registered professional knowingly and illegally diverted the drug or drugs in question, they will assess the next steps of the investigation. This may include involving the DEA, DOJ, FBI, HHS-OIG, state licensing board, or other authorities.
• Criminal Investigation, Initiating Proceedings. This stage can lead to civil or criminal charges or a licensing board’s denial or revocation of a professional license. The specific consequences will depend upon the facts, evidence, and severity of the alleged diversion.

How can fentanyl, access, and training records separate diversion from error?

The examples that follow illustrate how these scenarios can play out in a nursing or physician assistant diversion case, but there are many ways that an initial drug discrepancy can be a mistake rather than a crime. These examples are meant to illustrate the need to thoroughly examine all aspects of a case to determine if there is evidence to support diversion or whether a mistake or clerical error explains why the discrepancy exists.

Example 1: The Fentanyl Bag

If a nurse or physician assistant administers 50 mcg of fentanyl via IV, that amount will have to be removed from a fentanyl infusion bag that perhaps contains 1,000 mcg. If the nurse or physician assistant is accused of diverting fentanyl, a prosecutor would point out that the bag is empty, and there is no record that enough fentanyl was administered to the patient to account for the bag being empty.

Example 2: Unintended Withdrawal

Another example involves unintentionally drawing fentanyl into a syringe. If a nurse mistakenly draws fentanyl into a syringe, then throws the syringe away or a patient receives the dose without proper recording, this could create a discrepancy. However, this is an error, not a crime, and proving this would require a skilled defense attorney to investigate the nurse’s intent and the facility’s policies.

Example 3: Lockbox and Training

A healthcare facility may have lockbox-access procedures it expects its nurses to follow. If it fails to adequately train nurses on new lockbox-access procedures, errors could happen. If a nurse mistakenly accesses the lockbox in a way that triggers a red flag, she might be accused of diversion. However, if she accessed the lockbox the way she thought she should because she was not trained on a new procedure, this is an example of an error rather than intentional misconduct.

Example 4: Chain of Custody and Electronic Access

Chain-of-custody documentation, surveillance footage, security logs, and electronic health-record access logs can all provide insight into what happened when a patient received drugs or how the drugs were stored. When Spodek Law Group defends nurses and physician assistants, we look for relevant and exculpatory evidence, as this is a crucial step in building a strong defense. We may find evidence that:

• The healthcare professional had no criminal intent;
• There were clerical errors;
• There were mistakes made in patient care records;
• Someone else had access to the drugs;
• Someone made a mistake while administering the medication;
• There was mistaken identity;
• Internal controls were faulty; or,
• Some other circumstance exists that renders a criminal charge or license loss inappropriate.

When do work limits, DEA status, and treatment programs affect nurses and PAs?

A nurse, physician assistant, or other DEA-registered professional’s ability to continue working depends on a variety of factors. This includes the professional’s employer, the professional’s state licensing board, the nature and severity of the allegations, and whether temporary conditions of practice have been imposed. Potential restrictions on a nurse or PA’s ability to work include:

Other Potential Restrictions

Potential restrictions on a professional’s ability to work can also include:

• Loss of hospital credentialing;
• Exclusion from insurance-panel participation;
• Administrative leave or other restrictions on practice imposed by their employer; and,
• Loss of Medicare, Medicaid, TRICARE, or other federal healthcare benefit participation.

DEA Registration Loss

Loss of DEA registration can occur after the DEA holds an administrative action against the professional. If the DEA revokes registration, the registered professional will not be able to prescribe controlled substances. This is a separate matter from a state licensing board’s denial or revocation of a professional license, though both can affect the professional’s ability to practice.

Treatment and Rehabilitation Programs

Treatment, monitoring, and rehabilitation programs are available to nurses and other DEA-registered professionals who face allegations of controlled-substance diversion. These may be offered as alternatives to incarceration or permanent license loss. The treatment or rehabilitation program may include residential or outpatient treatment, participation in sober-living arrangements, drug testing, and other monitoring conditions. At Spodek Law Group, we handle cases involving nurses and other DEA-registered professionals facing allegations of controlled-substance diversion. Our attorneys work tirelessly to secure the best results for our clients. This includes negotiating outcomes that allow the nurse, physician assistant, or other DEA-registered professional to receive appropriate treatment and continue practicing.

Where to Go From Here

If any of this describes your situation, the next step is a conversation rather than more reading. Spodek Law Group runs a fully online client portal and represents clients coast to coast, with offices in New York, Brooklyn, Queens and Los Angeles. The number is 888 348 8028.