If you are a California Registered Nurse under investigation by the BRN, you may have no idea until a BRN Investigator shows up at your front door. This is a new strategy for the Board of Registered Nursing: the surprise attack! If you are reading this, the investigator has probably already shown up, or you may have received a letter from the BRN. Let me explain some steps you can take to avoid making this worse for yourself and what to expect if it hasn’t happened yet.
The BRN must investigate every complaint that they receive about a nurse. Complaints can be filed with the BRN in a number of ways: an arrest via Livescan fingerprints, an employer report, a coworker complaint, or a patient complaint. I’ve even seen malicious complaints made by ex-spouses or partners. If the complaint was the result of an arrest involving alcohol, medication, drugs, or mental health, you will not be contacted by an investigator, you will receive a letter or phone call offering you the Diversion or Intervention Program. If the complaint involves allegations of charting errors, medication discrepancies, patient care issues, or policy violations, the BRN will assign your case to an investigator.
BRN INVESTIGATORS
The BRN employs an investigator with the Department of Consumer Affairs. Many of them are former law enforcement officers. Many of them have weapons permits and are allowed to carry a firearm. Many of them refer to themselves as “Officers.” Most of them will first send you a letter, letting you know that you are under suspicion for violating the Nurse Practice Act in some manner and that they are conducting an investigation. They will include a very broad “Authorization for Release of Records” that they will want you to sign and they will want to schedule an interview to meet with you in person. A number of them will call you and try to get you to agree to an interview on the phone. A very special few just show up on your front steps totally out of the blue.
HOW TO HANDLE BRN INVESTIGATORS
The letter is easy to deal with. Most people will head straight to Google and hopefully find me, who will tell you emphatically, “DO NOT SIGN ANYTHING OR SAY ANYTHING WITHOUT REPRESENTATION!” The phone call is a bit more surprising, so you may have agreed to a meeting before you get your wits about you and have a moment to process… then you Google and find me, who says “That’s ok, we can reschedule and we will be there with you!” It is the bombardment of the sneak attack that throws nurses for a loop- when they open their front door, there is an officer on their front steps with what looks like a gun under their blazer and a cup for a urine sample in their hand.
You have rights. It is imperative that you know this.
- You have the right to decline an interview without representation.
- You have the right to decline to sign the release for authorization of records.
- You have the right to decline to give any statement or any audience to the investigator but must supply “Good Cause” for the declination.
- You have the right to decline a urine sample.
- You actually have the right to open the door, have the investigators introduce themselves, and then promptly shut it. I cannot more strongly encourage you to invoke any and all of these rights in lieu of just having a nice chat with the BRN investigator.
Once you have given a statement of any kind, it is admissible, and it will be used against you. BRN investigators do not read you Miranda Rights or notify you of your rights; you are supposed to know that you don’t have to talk to them. You will never be able to use “the BRN investigator didn’t tell me my rights” as a defense.
Once you have signed the Authorization for Release of Records, the BRN can get into any record they want. ANY RECORD!!!!! You are signing a blanket release for them to open your second-grade discipline file, your entire employment history, all the way to your medical records. Please do not sign this unless advised to do so by an attorney. You will probably not be able to rescind an Authorization for Release once it is signed.
Once you have voluntarily submitted a urine sample, the BRN can use any toxicology results against you. The Investigator showed up at 7:30 pm on a Saturday to ask you about a patient care issue, and you had a glass of wine. They can infer you are an alcoholic. The investigator is there to look into a series of improperly wasted medications. Your prescription Ambien, Zanax or pain meds show up in your urine, you could be abusing or dependent on your medication and diverting from your employer.
Does this sound crazy to you? It does to me, too. But I am telling you, I have seen more than a thousand cases, and some crazy Accusations have been filed against nurses for what appears to be a string of loosely slapped-together circumstantial evidence obtained by the BRN investigator.
AFTER THE BRN INVESTIGATION
Typically, the investigator has already done some digging before they get to you. In fact, you may be under investigation by the BRN and never know about it because the matter was dismissed on its face before the investigator ever contacted you. Please know that once they are asking to meet with you, they have already determined that they may have a case to file an Accusation against your RN license.
The investigation is to determine one and only one thing: did you violate the Nurse Practice Act in some manner and are you a public threat to your patients? It is the investigator’s job to supply the evidence to show this. If they are able to establish a violation of the NPA, the BRN will assign your case to the Attorney General’s office, and they will file an Accusation against you, calling for revocation or suspension of your nursing license. If they cannot provide enough evidence, the case is dropped, but here’s the kicker… you may never know. Very often, the BRN nor the investigator will tell you that the matter has been dismissed. To recap, there are 3 results after a BRN investigation:
- The case is dropped, and they tell you it’s dropped (this is the least frequent outcome.)
- The case is dropped, and they don’t tell you. You figure it out 18 to 24 months later when nothing more has happened.
- The BRN files an Accusation calling for the revocation of your RN license (this is the most frequent result.)
WHAT YOU CAN DO
So now that you know that the most frequent result following an investigation is the filing of an Accusation against your RN License, what can you do to protect yourself?
- Know your rights.
- Never meet with, sign, or submit to a sample without attorney representation.
- Your attorney will give you the best chance of avoiding an Accusation; if an Accusation is inevitable, your attorney is protecting you from the beginning.
I get it… this is the self-serving part of this article you knew you would get to. But realistically, the only thing you can do is to defend yourself, and the best way to do that is to be represented by a team of attorneys who know the BRN and their investigators. How else would we know the BRN is showing up on the nurse’s doorstep? It’s happening to our clients. How else would I know that the BRN can turn a positive urine sample given voluntarily into evidence for an unrelated issue? It has happened to our clients. If the BRN has contacted you and has been given notice that you are under investigation, please give me a call. You are at the tipping point right now, where you can either make this much better or much worse for yourself; please allow us to help you tip the scales in your favor and protect your RN license and your career.