Nursing License Drug Charges.

The nursing profession is subject to rigorous standards of professional and personal conduct. When a nurse is accused of a serious offense, such as theft or diversion of prescription medication, this can lead to consequences for the nurse’s licensure, even if criminal charges are never filed. State nursing boards and criminal prosecutors both have the authority to investigate alleged misconduct, but they are separate processes conducted by different authorities. While the board may revoke a license following a criminal conviction, this is by no means the only possible outcome, and this is how licenses can be lost even when criminal charges are never brought.

Although board disciplinary proceedings and criminal prosecutions are separate, they often run parallel to one another. Consequently, it is not uncommon for nurses to face workplace, licensing, and criminal investigations all at once. Each entity will have its own set of procedures, and an action taken by one may or may not have legal impact on the others.

It is also important to recognize that criminal convictions do not always disqualify every nurse from licensure. While certainly serious, the board must consider each case individually, and, importantly, the board must also allow for the possibility of an acquittal. Conversely, the board will also want to determine whether a nurse committed an infraction worthy of revocation, suspension, or other penalties even in the absence of a criminal conviction.

Additionally, there is a key distinction to be made between pending allegations and adjudicated convictions. At the point when criminal charges are pending, this is a serious situation, but it is not a conviction. A pending allegation is not a criminal conviction, but a nursing board may still impose discipline based on substantiated professional misconduct even when no criminal charges are filed.

Which records and statements shape a diversion case?

Drug diversion is essentially the unauthorized misappropriation of prescription medication. For nurses, it may involve either improper waste or theft. For example, it may involve stealing prescription medication from a patient or from an employer. While the latter is more commonly perceived as drug diversion, the former is equally common, and these types of allegations may be addressed differently by state nursing boards.

The following types of conduct may result in allegations of drug diversion:

• Failing to follow wasting protocols
• Not documenting medication waste, or inaccurately documenting the waste of medication
• Discrepancies in records for medications accessed via automated dispensing machines
• Improper access to prescriptions from dispensing machines
• Stealing prescription medications from patients
• Stealing prescription medications from employers or co-workers
• Administering prescription medications that were not prescribed to a patient
• Administering a patient’s prescription medication for personal use

State licensing boards investigate all types of alleged drug-related violations. From failing to document medications that were administered to patients to falsifying medication documentation that may or may not support a drug-related allegation, all form of wrongdoing is subject to investigation.

In some cases, it may be the case that the board becomes aware of an allegation through its own investigative efforts, or it may be the case that the board has been contacted by a concerned third party. As a result, it can be critical to take control of the board’s investigation and prevent it from proceeding unnecessarily. From speaking with witnesses to analyzing documents, the board is also equipped to pursue its allegations aggressively in order to build a case against you. With this in mind, you should work with your lawyer to build a proactive defense.

Although every nurse’s circumstances are unique, there are few key themes that are common to many diversion allegations. If you are concerned that you may face scrutiny from your board, it is important to learn as much as you can about what the board is likely to look for, so you can proactively defend against unfounded allegations of drug diversion. With that said, you will want to make sure to work with an experienced lawyer who can tailor your strategy to the specific facts of your case.

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When does a positive test become a licensing case?

A positive drug test can result in a wide variety of issues for a nurse. This includes testing positive for a prescribed pain medication, marijuana, benzodiazepines, or alcohol. These tests can present serious concerns for employers. This can lead to an employer demanding that a nurse go to rehab or seek treatment. However, an employer-ordered test that comes back positive can also result in immediate termination and reporting of the nurse to the state’s board. This is most likely to be the case when the nurse works in a highly regulated environment.

The same goes for nurses whose employment is affected due to drug use. While a positive test results in an employer’s intervention, it can also have the potential to lead to serious consequences at the board. With that said, a positive test does not necessarily establish drug diversion or workplace impairment, and so, it is important to determine if a nurse is in need of medical intervention or board disciplinary action.

The same goes for when the board gets involved. If a nurse is reported for substance use or tests positive for illegal drug use, it does not inherently establish a risk to the public. The board may consider whether an impairment program is appropriate to help protect the public. With that said, it is important to remember that these programs often have a number of requirements that can substantially change a nurse’s professional life.

Some drug-related allegations may prompt a program referral. This includes, but is not limited to:

• Drug diversion
• Drug-related felony or misdemeanor conviction
• DUI convictions
• Positive drug test result from employer testing

These requirements can include:

• Seeking treatment in a detox center, rehab, etc.
• Regularly testing positive for sobriety
• Regularly reporting to the state’s board
• Regularly reporting to the nurse’s employer
• Undergoing mental health evaluations
• Undergoing workplace and other clinical evaluations

How do arrests, pleas, and emergency orders affect the license?

An arrest for drug diversion, drug-related offenses, or other serious misconduct can prompt a nursing board investigation, especially in some jurisdictions that receive information from law enforcement agencies. Whether your case will result in criminal charges that jeopardize your nursing license will depend on several factors, but, regardless, there are several reasons why you need to proactively defend yourself during a drug diversion investigation.

A drug possession or driving-under-the-influence conviction can lead to problems with your nursing license as well. If you plea-deal in the criminal case, you need to determine how this plea will affect your nursing license, so you can make informed decisions about your next steps. Additionally, while the fact of your conviction could pose serious risks for your license, so too could a failure to disclose. Disclosure obligations for criminal convictions vary by jurisdiction and circumstance, and failing to disclose a reportable conviction may constitute grounds for disciplinary action.

If you have facing any form of misconduct charges, you may be at risk for receiving one of several licensing sanctions.

• Reprimand: A formal censure that appears on the nurse’s public record.
• Probation: The nurse’s license will be conditioned upon compliance with specific requirements, such as sobriety testing or attending rehabilitation. If found in violation, the nurse’s license will be suspended or revoked.
• Suspension: The nurse’s license will be suspended until a date specified by the board.
• Revocation: The nurse’s license will be revoked and a determination made as to whether the nurse will be allowed to petition to be reinstated in the future.

In some jurisdictions, state nursing boards can impose emergency temporary license suspensions as part of the investigative process. This is done in order to protect the public, but it can also create a situation that unfairly damages the nurse’s career. Suspended nurses may have limited time to request an administrative hearing, and it is crucial that this hearing request be timely filed.

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.