Because diversion of medication is exactly the same thing as stealing, there are a number of entities that are going to make a really big deal out of it. The first is the nurse’s employer. The second is the Board of Registered Nursing and the third is the DEA or District Attorney in the nurse’s jurisdiction. The employer, BRN and Criminal courts are all able to take separate action for diversion of medication, and they all will, if they can prove it.
EMPLOYER ACCUSES RN OF STEALING OR DIVERTING MEDICATION
The employer is almost always going to be the entity that discovers the unaccounted-for medications. It will be a result of one of a few red flags. 1.) Charting errors comprised of missing doses, improperly wasted medication, Pyxsis discrepancies or giving more frequent medication than the rest of the nurses. 2.) a colleague or coworker suspects the RN of diverting and reports them 3.) a supervisor or coworker suspects the nurse is impaired at work.
Any one of these 3 will precipitate an internal investigation by the employer including an interview with the nurse. The interview may or may not include a drug test. If the employer believes that you are impaired while at work, they will drug test you to prove it. If they only SUSPECT you of diverting, they will probably not order a drug test and may even decline to give you one even if you offer. This is because the employer DOESN’T want proof that you don’t have the medications in your system and they may tell you that just because you pass a drug test doesn’t mean you aren’t stealing meds.
If the employer can show more than a few discrepancies in charting, dosing or wasting, you will likely be terminated and told to self-report to the BRN’s Diversion or Intervention program. Remember when I said that each entity will take action if they can prove theft or diversion? The employer can terminate you simply for the charting errors. They don’t have to “prove” you were stealing. They only have to show that you were a tad bit sloppy.
THE BRN’s TREATMENT OF A RN ACCUSED OF STEALING MEDICATION
For a RN accused of diverting medication, there are 2 options when it comes to the BRN. 1.) you voluntarily enter the Diversion or Intervention Program 2.) the BRN launches its own investigation and imposes disciplinary action accordingly. There is a novel’s worth of information on the Diversion Program on this blog, so please take the time to familiarize yourself with it before making any decisions or calling them. There is also a great deal of information regarding the investigation process, so be sure to read up on that as well.
In a nut shell, the Diversion Program is the ONLY WAY THAT THE DIVERSION ALLEGATION WILL REMAIN CONFIDENTIAL. However, you will have your RN license inactivated for 6 months or more and you absolutely MUST complete the entire Diversion Program, which lasts for 3 years and costs about $18,000.00 to comply with.
A BRN investigation may result in an Accusation from the BRN, calling for revocation of your RN license. The Accusation will only be filed if the BRN can prove that you either diverted (which is incredibly hard to prove) or that you were just sloppy with your charting or wasting… which is still enough to accuse you of Incompetence or Gross Negligence (more on that elsewhere on the blog). In 99% of the cases that we have handled for our registered nurse clients accused of diversion, we are able to keep our client’s licenses from being revoked or suspended.
The BRN is the entity that causes the most stress to RNs accused of stealing medication because the choices aren’t great, either way you look at it. If you did divert and there is a pattern of missing medication, or worse, if you admitted to diverting hoping the employer would take it easy on you (hint hint—They NEVER DO!!!), then Diversion may be the best option. For nurses accused of stealing medication but who didn’t divert, this is even more stressful because you face either be labeled a thief or a sloppy nurse and your option is to admit to being an addict when you are not or face discipline from the BRN.
CRIMINAL CHARGES FOR A RN ACCUSED OF STEALING MEDICATION
As if losing your job and facing losing your RN license were not enough, the DEA or DA may press criminal charges against you for felony diversion of medication. That’s right, stealing medication is a felony and if the DEA or DA can prove you diverted, they will issue a warrant or arrest you.
How does the DA or DEA prove that you diverted? Well, remember that employer interview when you admitted to your supervisor that you had been diverting Fentanyl so they would be merciful? That’s how. Those conversations are not confidential. In fact, NONE OF YOUR INTERVIEWS ARE CONFIDENTIAL! Anything you say to one entity can and will be passed along to the other. This is why we emphatically beg you to not make ANY STATEMENTS to ANYONE without an attorney advising you or present.
The other way that the DA can prove that you were stealing medication is if you fail a drug test following a series of missing medications and that same missing med shows up in your blood stream. They can prove it if they have video footage. They can prove it if they have a witness or if the evidence of missing medications can show beyond a reasonable doubt that you took them for your own use. Granted, the criminal burden of proof is the highest, and therefore the hardest to prove, but this is not something you want to handle on your own. Losing a job or a RN license is a day at the beach in comparison to prison time for a felony diversion conviction.
WHAT CAN A RN DO IF YOU’VE BEEN ACCUSED OF STEALING MEDICATION?
There is no gentle way to say this: you need to lawyer up. If you have been accused of diverting or stealing medication there are really only 2 scenarios: you did it, or you didn’t. Either way, you need an attorney who knows what the heck they are doing! If you did divert, we need to keep you from losing your RN license and we need to keep you from having a felony charged against you. If you didn’t divert, we need to exonerate you with the BRN and defend you against the allegation, so you aren’t painted as a criminal. I have seen plenty of both.
And here is the best news, regardless of whether you did or didn’t divert, my team of RN license defense attorneys has been successful in keeping every single one of our clients out of jail. We have been successful in 99% of our cases in keeping our client’s RN licenses from being revoked or even suspended. Our clients keep their licenses, their freedom, clean RAP sheets and their careers. Unlike the statements that you make to your employer or in your investigation interviews or even to the DEA, anything you tell me is protected by my attorney’s confidentiality privilege. I won’t judge you, I’m only here to help you. I know that regardless of your situation, you are probably terrified of what comes next and what will happen to you, and I am here to answer all of those questions, compassionately, honestly and without judgement.
If you are a RN accused of stealing medication, please give me a call.
Here as an asset to you,