Registered Nurse Accused of Stealing Medication?

What You Need to Know About Diverting

Prescription drug abuse has been a significant problem in the country, as many medications can be used for multiple purposes. The increasing use of opioid medications has led to an illegal market for these highly addictive drugs. Some of these drugs may be stolen from hospitals and medical practices for illegal uses. In some cases, nurses may be accused of taking the drugs for their own personal use or selling them. If you are a nurse and you have been accused of diversion, these are extremely serious allegations that should never be handled alone. Your profession, and even your freedom, can be at stake.

The California Board of Registered Nursing Can Learn of Suspected Diversion in Many Ways

There are numerous ways that potential diversion may come to the Board’s attention. The nurse’s employer or family can report any suspected misconduct. In addition, the Board can learn of any potential diversion case through the report of an arrest and other criminal charges. Regardless of how the allegations arise, they are a very serious matter for nurses. They may even involve criminal penalties.

The California Board of Registered Nursing’s guidance even requires nurses to report other nurses who are suspected of diverting medication. According to the American Nurses Association, a registered nurse has an ethical duty to make this report. Accordingly, fellow nurses are often the source of many investigations because they can face discipline for not reporting what they know.

The employer may track its stocks of prescriptions and patient charts and notice a discrepancy. They will most often suspect nurses because they are the people who administer the prescriptions and have access to where they are stored. That may begin an internal investigation to learn the possible source of missing prescriptions. The employer may even drug test employees to see what they might have in their system. Even when employers settle on one nurse as the cause, they may not always be correct.

Potential Professional and Criminal Punishments for Prescription Medication Diversion

There are two potential ways that a registered nurse can be punished if they have been found to have diverted medication:

  • The nurse can face professional misconduct charges for a number of rule violations that can result in the loss of their license or other potential penalties.
  • The matter can be referred to law enforcement for criminal prosecution under California drug laws.

The California Board of Registered Nursing Has Many Options for Punishing Wrongful Conduct

The California Board of Registered Nursing can impose disciplinary punishment on registered nurses for a number of different rule violations, including:

  • Dependency on a chemical substance
  • A crime of dishonesty that bears upon the nurse’s fitness to discharge their duties
  • Endangering patients
  • Acts that are substantially related to the practice of nursing

Needless to say, disciplinary action against you can even mean the end of your ability to practice your profession. Even if you manage to keep your license, a public proceeding against you and resulting disciplinary action can harm your reputation forever. Prospective employers will have access to the record of discipline (if it is one that becomes part of the public record), and they likely will not hire you because they may have potential liability.

Nurses Are Legally Entitled to Due Process in the Face of Diversion Allegations

Nurses always have a right to be heard, both throughout the investigative process and if they are facing disciplinary or criminal charges. The nurse will receive an initial letter from the California Board of Registered Nursing informing them of the investigation. At that point, a nurse should get an attorney. The Board will conduct an initial investigation to see if further action is required.

At some point, a nurse may be asked to sit for an interview where the Board will gather more information. It is crucial to take this conversation seriously, as the Board may use this information in any determination of whether to proceed further or potentially make a criminal referral. If you admit to any misconduct to try to get mercy from your employer, remember that anything that you say is not confidential. This information may even end up in the hands of prosecutors or even the DEA. If you are later charged criminally, you may have trouble denying the charges when you are on record admitting to certain conduct.

You May Have the Ability to Fight Diversion Charges

The point is that the California Board of Registered Nursing cannot take unilateral action against you without hearing from you first. Even if they refer you for professional misconduct charges, you have a right to contest the accusations that have been filed against you. A nursing license defense attorney can help you engage with the Board before charges may be filed. In some cases, your lawyer can help you resolve the matter without any professional misconduct charges against you.

Nurses always have the ability to fight any professional disciplinary actions. If the Board tries to impose discipline, you are entitled to a hearing in front of an administrative law judge. The Board will need to bring evidence that will be substantial enough to persuade the judge to find in their favor, and they have the burden of proof. It is not always easy for the employer to prove a diversion charge, and you can successfully contest disciplinary charges filed against you.

You Can Face Potentially Severe Criminal Penalties Depending on the Outcome

If the case is referred for prosecution, there are a number of potential charges that nurses may face. Depending on who is investigating, the charges can be federal or state. Both have laws that strictly punish the diversion of prescription medication. Potential criminal charges can include:

  • Illegal Possession of a Controlled Substance under California law, which can be punished with up to one year in jail
  • Possession of a Controlled Substance with Intent to Sell, which can be punished by up to five years in prison
  • Transportation of a Controlled Substance, which has a potential jail sentence between 3-9 years
  • Violation of the federal Controlled Substance Act, which is punished by up to ten years in jail, and a $250,000 fine for each violation

Depending on the nurse’s use of the diverted medication, they may even be charged with one of a number of prescription fraud crimes. Violations of California’s Uniform Controlled Substances Act can result in up to 3 years in jail and a fine of up to $20,000 for each violation.

Nurses can expect the prosecution to seek jail time for these offenses. Depending on the severity of the alleged crime, the prosecutor may even seek a sentence at the upper end of the range.

You Have Potential Options Other Than Fighting the Charges

There is a possibility that a nurse can reach an agreement to enter a diversion program in lieu of losing their license and potential criminal charges. Even still, the nurse will have their license inactivated for six months while they are completing the program. Thus, there are always consequences, and nurses should not enter a diversion program when they did not commit the offense of which they were accused.

Nonetheless, the Board has many options to punish conduct, even if it feels that it cannot win a diversion case. The Board has the ability to discipline a nurse for gross negligence or repeated acts of negligence. Failing to safeguard medication can fall into this category, even if the Board cannot prove that the nurse took the prescription for themselves. The employer does not even need to know that the nurse was diverting to potentially fire them and direct them to self-report to the Board. Even sloppy charting can be grounds for you to get in trouble.

Always Hire a Nursing License Defense Attorney When Suspected of Diversion

If you are suspected of diversion, there are not many good options for you. If you do not hire an experienced license defense attorney, you may get caught up in a rush to judgment and pushed to either admit something you did not do or wrongfully lose your job. A professional license attorney can help defend your reputation and potentially slow down the process that is being used against you. Employers and the Board may think twice about their course of action when they see that you are represented by an experienced lawyer who knows how to deal with them and expose any shortcomings in the case against you. A nursing license defense attorney can also help you potentially keep your license if you did the act of which you were accused. The Board may still allow you to continue to practice with some form of discipline, potentially one that does not become public. Regardless, you always need to address allegations of misconduct by hiring an attorney because it can lead to a better outcome and help you learn of your legal rights and potential options to remain a practicing nurse.

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