Filing a complaint with your licensing board

As a licensed physician, pharmacist, or nurse, it may one day become necessary to file a complaint with the Oregon Medical Board, the Oregon Board of Pharmacy, or the Oregon State Board of Nursing, reporting the conduct of another licensed professional. We all take this aspect of our professional responsibility seriously. In a close-call case, we may prefer not to file the Board complaint, and in a bad case, the ramifications of filing the Board complaint can make the act of doing so seem overwhelming.

What to do?

In a close-call case, no one wants to file a Board complaint that need not be filed, or is otherwise unnecessary, and some worry that an unfounded complaint will backfire, and no one wants that either. In a bad case, especially when the complaint turns you into a witness and you will become part of the ensuing investigation, the weight of reporting is heavy. In either case, you will be uncomfortable, left to wonder has best to proceed.

Consult an Oregon licensure lawyer

In a close-call case, your licensure lawyer can call the Board, whether it be the Oregon Board of Pharmacy, the Oregon Medical Board, or the Oregon State Board of Nursing, and discuss whether the report needs to be made in the first place and, if so, how best to present it. An experienced licensure lawyer will have existing relationships with investigators and others at each of the licensing Boards and will know whom best to call. In many cases, it will not be necessary to disclose your name to during initial discussion. If it turns out that the report needs to be made, the ground will have been prepared and the expectation that the complaint be filed is “shifted” somewhat to your licensing Board. If the Board complaint later turns our to be unfounded, this additional care taken while making the Board complaint will serve you well later.

In a tough case, your licensure lawyer can shoulder the burden of writing the Board complaint (an email will be fine), sending it to your licensing Board, and then following up the Board answering any follow-up questions the Board might otherwise direct to you.This approach will life some of the weight from your shoulders, and also ensure that the complaint is presented in an arms length fashion, which may be quite helpful in some circumstances. In one case earlier this year involving a pharmacy drug loss, my report to the Board of Pharmacy on behalf of the pharmacists, was just the beginning – the start of an investigation by the Oregon Board of Pharmacy. In cases these, where the complaint will trigger an investigation that will involve you, it is highly recommended that your licensure lawyer be involved from the start anyway, providing just one more reason to consult a licensure lawyer.

A cautionary tale for Oregon retail pharmacists

Corporate retail staffing decisions and the Oregon Board of Pharmacy

Twice this year, I have represented relatively new pharmacists practicing their profession in the hustle and bustle of two different national corporate retail pharmacy chains. In both cases, the pharmacist needed or requested staffing that corporate management did not allow, and in both cases the practice of pharmacy suffered, dispensing errors and/or counseling errors occurred, and complaints were filed with the Oregon Board of Pharmacy. Not surprisingly, in both cases, the pharmacist sought to defend against the Board complaint by explaining the staffing decisions imposed by corporate management, but be forewarned: That justification is not considered an extenuating circumstance by the Oregon Board of Pharmacy.

What you need to know

Please know that the Oregon Board of Pharmacy expects you to protect the practice of pharmacy, even when to do so is at odds with decisions by corporate managers. While I am of the opinion that the Oregon Board of Pharmacy could do a better job of getting this message out to all new pharmacists, this is what I have experienced while representing pharmacists before the Board of Pharmacy. Simply put, your ultimate professional responsibility is to your profession – the practice of safe pharmacy – not your employer. See, e.g., OAR 855-019-0200 (pharmacist’s standard of care); OAR 855-019-0200(1)-(7) (responsibilities of the pharmacist); OAR 855-041-1015(1) (pharmacist required to be present in the pharmacy to supervise the pharmacy).

The tension between protecting your Oregon pharmacist’s or abiding your corporate employer

If you are practicing in a corporate retail pharmacy, you are surrounded by a sea of commercial activity, and all of it, including the staffing levels in your your pharmacy, is managed by business types. At times, you may be the only licensed healthcare provider on the premises.Your professional training, experience, and responsibilities as an Oregon pharmacist make you unique in that setting, leaving you alone to protect the practice of pharmacy throughout the day. In other words, you are uniquely liable to the Oregon Board of Pharmacy. Never lose sight of that fact, because the Oregon Board of Pharmacy has little sympathy for a pharmacist that defers to corporate management if that deference compromises the practice of pharmacy.

Expectations of the Oregon Board of Pharmacy

The general concern of the Oregon Board of Pharmacy is to ensure patient safety, the competency of every pharmacist, and the security of the drug inventory. If corporate management places you in a predicament where either corporate managers will be unhappy, or the practice of pharmacy will be compromised, the Oregon Board of Pharmacy will tell you it is your professional obligation to protect the practice of pharmacy, not the employer’s wishes. This is true even if it is necessary to take extreme action to temporarily close the pharmacy until adequate staffing arrives to ensure the safe practice of pharmacy. If you haven’t the authority take such extreme action when necessary to ensure the safe practice of pharmacy, it may be advisable to call a licensure lawyer, or an inspector at the Board of Pharmacy, to gain the perspective or assistance. In the end, you will have protected the practice of pharmacy, which is what the Board of Pharmacy expects of you as a licensed pharmacist. You will also have protected your license to practice pharmacy.

Disclaimer

I am a licensure lawyer, not an employment law lawyer. An employment law lawyer might share very different observations with you, observations intended to protect your employment, not your Oregon pharmacist’s license. As a licensure lawyer, I am sharing what I have learned while representing pharmacists before the Oregon Board of Pharmacy. By sharing my observations here, I hope to help you protect your Oregon pharmacist’s license, while an employment law lawyer might provide very different observations intended to protect your employment. Indeed, this disclaimer reveals the very real tension occasionally faced by pharmacists while practicing in the large, corporate retail pharmacy chain stores.

The DEA’s “legitimate medical purpose” standard – Part II

Conflating the criminal and civil standards when prosecuting doctors for prescription drug crimes

In a prior post, I suggested that DEA lawyers and drug diversion investigators, while fulfilling their responsibilities to “police” both civil and criminal violations of the CSA, blur the line between civil violations (the standard of care) and criminal violations involving prescription drug crimes by doctors (e.g., unlawful prescribing, unlawful dispensing, drug diversion, or prescribing without a legitimate medical purpose), thereby “criminalizing” what would otherwise be a civil violation. Today I will share one example off how the DEA lawyers and drug diversion investigators accomplish this feat, conflating the civil standard of care with the criminal conviction standard when attempting to prove a doctor committed a prescription drug crime.

First, a basic understanding of the prescription drug crime

To convict a doctor of a prescription drug crime under 21 U.S.C. § 841(a)(1), it is generally agreed that the government must prove (1) that the doctor prescribed or dispensed a controlled substance, (2) that he or she acted knowingly and intentionally, and (3) that he or she did so other than for a legitimate medical purpose and in the usual course of his or her professional practice. See, e.g., United States v. Norris, 780 F2d 1207, 1209 (5th Cir. 1986); citing, U.S. v. Rosen, 582 F2d 1032, 1033 (5th Cir. 1978). A lawyer defending doctors accused of prescription drug crimes must be familiar with these concepts.

It is important to know, however, that the Controlled Substances Act (CSA) – the statutory scheme passed by Congress – includes only the first two elements above. The third element,”legitimate medical purpose,” is rooted in an agency rule promulgated by the Drug Enforcement Administration (DEA). See 21 C.F.R. 1306.04(a). That Rule provides that a controlled substance can be dispensed by a prescription “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 C.F.R. 1306.04(a); Norris, 780 F2d 1207,1209. Thus, lawyers defending doctors accused of prescription drug crimes will also need to be familiar with the interplay between the statute (21 U.S.C. § 841(a)(1)), and the rule (21 C.F.R. 1306.04(a)). Similarly lawyers defending pharmacists accused of unlawful dispensing will also need to be familiar with the interplay between the statute (21 U.S.C. § 841(a)(1)), and the rule (21 C.F.R. 1306.04(a)) because the rule further states that “a corresponding responsibility rests with the pharmacist who fills the prescription.”

So what does the CSA actually say?

Under the CSA, a doctor commits a prescription drug crime when he or she (1) knowingly or intentionally (2) distribute or dispense a controlled substance unless “authorized” by the Act. See, 21 U.S.C. § 841(a). Authorization is obtained by “registering” with the Attorney General. See, 21 U.S.C. § 822(a)(2). Persons registered with the Attorney General are authorized to possess, manufacture, distribute, or dispense controlled substances to the extent authorized by their registration. See, 21 U .S.C. § 822 (b). Physicians licensed by a state and registered with the Attorney General are “practitioners” and, as such, they are authorized to dispense controlled substances (see, 21 U.S.C. § 829(a)&(b)) in “the course of [their] professional practice.” In other words, a doctor commits a prescription drug crime when he or she (1) knowingly or intentionally, (2) distributes or dispenses a controlled substance, (3) outside the course of professional practice. There is no requirement in the statutory scheme of a “legitimate medical purpose.” Rather, that requirement is added by agency rule. See 21 C.F.R. 1306.04(a).

What’s the problem?

The problem arises when the DEA attorneys and drug diversion investigators focus on the language of the rule – “legitimate medical purpose” – to the exclusion of the three statutory elements of the crime discussed above (i.e., the knowing or intentional distribution of a controlled substance outside the course of professional practice). When this happens, the legal inquiry becomes too focused on the civil standard of care, not the elements of the prescription drug crime. Lawyers familiar with defending doctors charged with prescription drug crimes know this. I am aware of one recent case in which the physician was indicted for prescribing outside the course of professional practice and, remarkably, the indictment omitted any reference to the “knowing or intentional” element of the crime. This first crucial element of the crime, mandated by the CSA, was not included until a later, superseding indictment. Amazing.

Why does it matter?

The first element of a prescription drug crime – knowing or intentional – is hugely important because it makes clear that the crime of unlawful prescribing or dispensing is a “specific intent” crime. The crime includes a mens rea component, meaning that the prescribing physician or dispensing pharmacist intended to commit a prescription drug crime by writing or dispensing a prescription outside the course of professional practice. The specific intent requirement means that the presence of ordinary professional negligence (professional negligence or malpractice) is not enough to convict. More is needed. The problem occurs when DEA attorneys and drug diversion investigators focus on the civil standard of care, as if a violation of this civil standard is enough to prove a prescription drug crime, which can be very misleading to a jury.

Conclusion

This is but one example of the misapplication of the law when prosecuting doctors for prescription drug crimes. There are more examples, and constant vigilance is required. The legal challenge for lawyers defending against the DEA is to prevent this type of inquiry before conviction, or to reverse it on appeal after conviction, and it is challenging work with much at stake.

The DEA’s “legitimate medical purpose” standard – Part I

Committing prescription drug crimes with your DEA “License”

Many physicians, all pharmacies, and some nurses, have DEA “Registrations.” Practitioners will often refer to their DEA Registration as a “license,” or simply, “my DEA.” The DEA Registration grants “authority” to the Registrant under the Controlled Substances Act (CSA) to possess, prescribe, and/or dispense controlled substances, to the extent authorized by the Registration.

If you possess a DEA Registration, you play an integral part in controlling the Nation’s drug supply, a “closed system” of inventory wherein every controlled drug is tracked from the point of manufacture to the end consumer, a patient. As such, DEA Registrants are subject to much scrutiny under the CSA, a complex legal scheme that keeps our federal trial and appellate courts quite busy.

A civil or criminal investigation – which is it?

When DEA lawyers and agents investigate physicians, pharmacists and nurses under the CSA, they may pursue the DEA Registrant civilly or criminally. The DEA has a choice. When the DEA pursues a Registrant civilly, the process can feel similar to a licensure proceeding before a state licensing board. When, however, the DEA pursues a Registrant criminally – for prescription drug crimes – it will feel like a criminal prosecution, with the full weight of the government bearing down.

Are the lines blurred between the civil and criminal standards?

I have successfully argued that DEA attorneys and agents, while fulfilling their responsibilities to “police” both civil and criminal violations of the CSA, have blurred the line between civil violations (the standard of care) and criminal violations involving prescription drug crimes (i.e., unlawful prescribing, unlawful dispensing, drug diversion, or prescribing without a legitimate medical purpose), thereby “criminalizing” what would otherwise be, at best, a civil violation, see US v. Chube II, 538 F3d 693 (7th Cir. 2008), or no violation at all. See Gonzales v. Oregon, 546 U.S. 243, 126 S. Ct. 904, 163 L. Ed. 2d 748 (2006).

Application of the legitimate medical purpose standard in civil and criminal proceedings

If, while pursuing civil violations, the DEA’s attorneys and agents investigate a doctor for prescribing without a legitimate medical purpose, and they equate a legitimate medical purpose with the civil standard of care, I am not sure what difference it makes. This is because on the “civil side” of the DEA, the DEA will enforce the standard of care, much like a state licensing board. If the DEA wants to call it by another name – i.e., legitimate medical purpose – I do not see how it matters, as the out come will likely be the same.

If, however, the DEA attorneys and agents are investigating a doctor for a prescription drug crime, and the DEA equates “prescribing without a legitimate medical purpose” with the civil standard of care, then we have a problem – the doctor’s “criminal” conduct will now be measured against the civil negligence standard, a lower legal standard, making it easier for the government to prove wrong doing. This is a trap for pharmacists too, because the so-called “legitimate medical purpose” rule states that “a corresponding responsibility rests with the pharmacist who fills the prescription.” See 21 CFR §1306.04(a) (legitimate medical purpose rule). Thus, whether you are a prescribing physician or a dispensing pharmacist, never forget that a violation of the civil standard of care when prescribing or dispensing controlled drugs is professional negligence, or malpractice; it should not be, without more, viewed as an intentional drug crime, which requires more proof, i.e., proof of intentional wrong doing.

Further discussion on this subject

In a subsequent post, I will shed light on one of the ways DEA attorneys and agents have accomplished this blurring of the lines, which, in my experience, “waters down” the burden of proof required to convict physicians and pharmacists of prescription drug crimes, and also makes it easier to find the “relevant conduct” necessary to lengthen a prison sentence under the federal sentencing guidelines.

Should I waive my right to a hearing with the Oregon State Board of Nursing?

The answer to this common question is that most of the time nurses will eventually waive their right to a hearing before the Oregon Board of Nursing, as part of a larger settlement agreement. This does not mean, however, that your decision to settle your case should be made lightly, or without the advice of skilled Oregon licensure counsel.

The decision to waive your right to a hearing is one of the more important decisions you will make. If professional discipline is imposed, it will have lasting consequences. Your right to a hearing is your safety net against an unfair resolution. Your right to a hearing preserves your opportunity to have your case decided by an neutral and independent Administrative law Judge (ALJ). And finally, because both sides generally prefer to avoid a hearing, your right to a hearing is also one of your bargaining chips.

This point is key: waiving your right to a hearing is part of a settlement, but you should not waive any of your rights until you and your Oregon licensure lawyer are satisfied that you have reached a fair settlement. If you are facing an investigation by the Oregon Board of Nursing, consult an Oregon licensure lawyer immediately.

Do I need a nursing Board lawyer to review my stipulated order of reprimand?

The answer to this question is “yes,” you need a nursing board lawyer, usually called a “licensure lawyer,” to review a proposed stipulated order of remand. If there is an exception to this answer, I am unaware of it.

First a bit of background. Reprimands exist on the low end of the range of professional sanctions that are available to any licensing Board, including the Oregon State Board of Nursing. Reprimands may be offered, for example, by the Board of Nursing as a quick resolution to a complaint involving a relatively small digression by the nurse, providing what may appear at first glance as an easy way out for both the Board of he Nursing and the nurse. It is precisely because reprimands exist on the low end of the range of sanctions, that reprimands are sometimes viewed as an easy settlement. It is a mistake, however, to treat reprimands so lightly.

Consider these three consequences of a reprimand:

  • Although a reprimand exists on the low end of the range of sanctions, a reprimand is nonetheless a form of professional sanction or discipline, and it is a public record. For most licensees, a reprimand will be included in your profile listed on your Board’s licensing verification page (e.g., the Board’s website). This is true of the Oregon State Board of Nursing, and also the Oregon Medical Board and the Oregon Board of Pharmacy.
  • Because a reprimand is a form of professional sanction or discipline, it is almost always necessary to report the reprimand to any other states in which you are also licensed, which will prompt another investigation – and maybe mirror-image discipline – by those states.
  • A reprimand also counts as disciplinary history against you, which means that if another complaint is filed with the Oregon State Board of Nursing, the nurse will have “disciplinary history” the next time, which is not desirable.

Hopefully, the above analysis is sufficient to establish the seriousness of a reprimand, and why it is a good idea to have any proposed settlement reviewed by an experienced nursing board lawyer before accepting a reprimand in order to settle a Board of Nursing complaint, used as an example above.

Two cases that make the point

I was retained by nurses earlier this year, shortly after they had received proposed reprimands from Oregon Board of Nursing, offered as a settlement to conclude the case. In both case, the reprimands were worded in a way that could be interpreted to include far worse conduct than the underlying facts warranted. This fact alone was reason to reject the reprimands. Additionally, there were extenuating circumstances in each case that caused me to recommend to each of the nurses they not accept any form of reprimand to settle their cases. Both nurses accepted my recommendations, which prompted me to explain my advice to the Board of Nursing and to request that the Board of Nursing issue letters of concern only. The Board of Nursing agreed, and recently closed both files without disciplining the nurses (a letter of concern is not discipline).

One last point

If legal advice from a nursing board lawyer is necessary before accepting a “lowly” reprimand, you will certainly want to consult a nursing board lawyer whenever you receive notice of any proposed disciplinary sanction from the Oregon Board of Nursing (the same is true for the Oregon Medical Board and the Oregon Board of Pharmacy).

Above and beyond a reprimand, the range of sanctions available to the Board of Nursing include having your license to practice nursing temporarily suspended, indefinitely suspended, or permanently suspended; or having your license to practice nursing revoked. Sanctions may further include monetary fines, continuing education, recurrent training, the imposition of a mentor and monitoring, and periods of probation. One or more sanctions, in combination, may be proposed by the Board of Nursing, as the Board sees fit.

In sum, if you are being investigated by the Oregon Board of Nursing, a nursing board lawyer should be involved from the start, and should certainly review any proposed settlements. Although I have written these comments using the Oregon Board of Nursing as an example, the same is true of investigations involving the Oregon Medical Board and the Oregon Board of Pharmacy; a lawyer should always be involved.

Oregon State Board of Nursing complaints: A common question

What should I do when my employer files a complaint with the Oregon State Board of Nursing?

As you will see from this discussion, it pays to obtain competent licensure counsel and take early action. In four cases this year, I was hired soon after the nurse (my client) was informed that his or her hospital intended to file a complaint with the Oregon State Board of Nursing (OSBN).

In the first two cases, the hospital made its decision and terminated the nurse all in the span of a few days. The process was essentially a well-orchestrated and documented exit interview, leaving little for us to do, other than wait for the expected notice from the Oregon State Board of Nursing that the compliant had been received, and start our defense then.

In the third and fourth cases, however, the hospital provided the nurse with 14 days advance notice of the hospital’s plan to file a complaint with the Oregon State Board of Nursing. In these two cases, the hospital was required by a labor contract to allow the nurse 14 days to provide an “optional response,” which allowed us to start our work immediately, with the hospital.

What happened in the four cases?

The first two cases were fully resolved in the nurse’s favor. At the conclusion of both interviews, the investigators for the Board of Nursing evidently agreed with the nurse, not the hospital, and the Board of Nursing took no action.

In the third case, the hospital withdrew its threat of termination and of filing a complaint with the Oregon State Board of Nursing. The hospital also made internal changes as a result of the nurse’s response (our response) to the hospital’s threat of termination and filing a complaint with the Board of Nursing. This was an excellent result for the nurse and the Board of Nursing was never involved, as a complaint was never filed.

At this point it time, the fourth case is too new to my office to predict or know the outcome, but as you can see, these cases are defensible. In the first three cases, the hospital was mistaken, and the nurse had it right.

What you need to know

All four cases involved a complicated mix of practice issues, legal issues, management issues, and sometimes “personalities.” In all four cases, the hospital was acting through its Human Resources Department (HR), which, if you do not know, is essentially an in-house legal department comprised of management and lawyers. When HR is involved, it may mean that a small team of individuals has already organized and is working against you. If this scenario sounds familiar, you are advised to hire competent licensure counsel immediately. The nurse is often right and taking early action works!

The VA’s transition-to-practice program for new Registered Nurses

If you are a new Registered Nurse hired by the Veteran’s Hospital Administration (or “VA”), you are entitled to be trained under the VA’s Transition-to-Practice Program. If you are not familiar with this program, I direct your attention to VHA Directive 2011-039, also known as the “VHA Registered Nurses (RN) Transition-to-Practice Program.”

Without the Transition-to-Practice program, new nurses experience a high failure rate

According to this VHA Directive, the Transition-to-Practice program is applicable to “all levels of RNs with 1 year or less of experience.” See VHA Directive, 1. The Transition-to-Practice program was developed to address industry-wide turnover rates as high a 60%. See VHA Directive, 1. The VHA Directive describes the high turnover within the VHA, as follows:

“c. Among the total RN population within VHA, new graduate RNs have the highest turnover rates. In Fiscal Year 2007, the 12-month turnover costs for a cohort of 291 new RNs totaled $2.52 million. From analysis of those initial figures, ONS determined that the turnover rate for new RNs was a significant issue for VHA. This prompted ONS to develop a program to address these critical issues.”

See VHA Directive, 1.

The Transition-to-Practice Program works; new nurse failure rates reduced to zero

The VHA Transition-to-Practice pilot program was immediately successful; it “resulted in a 100 percent RN retention rate (zero regrettable losses) and all findings indicate the program was successful and ultimately proved beneficial to every facility in the pilot.” See VHA Directive, 2.

What you need to know

If you are a new Registered Nurse, with a year or less experience as an RN (prior nursing experience with a lower level of licensure doesn’t count), be sure this program is fully in place at the start of your employment. Otherwise, you risk a failure rate as high as 60 percent. Be aware that not all VA hospitals have the program, which is likely if you are the first new RN hired since 2011, the year the transition program was mandated. And be on the lookout for a transition program that may exist in name, but be deficient in substance. Whatever the circumstances, don’t miss out. The program is mandatory as of November 28, 2011, the date of the VHA Directive :

“[i]t is VHA policy that VHA facilities establish a structured development transition program for all levels of entry RNs utilizing the flexible VHA 12-month RN Transition-to-Practice Program.”

See VHA Directive, 2.

How to obtain good results in tough licensure cases: Four examples

When facing a Board investigation, it is common among practitioners to fear the loss of their license, or the imposition of substantial restrictions upon their practice. Today I will discuss four such cases, involving two physicians, a pharmacist, and a nurse. In one of the cases, the practitioner went so far as to surrender his license, hoping to make it all go away. In all four cases, however, the practitioner prevailed, with the board imposing no discipline whatsoever.

The physician practicing under an evolving standard of care

In the first example, a physician was getting good results for all his patients, and he had no bad outcomes. The standard of care, however, was both disputed and evolving, and the physician had provided his patients with what appeared to be a lot of treatment, and it was the amount of treatment that prompted a complaint to the Medical Board. The case was resolved successfully after the Medical Board came to understand the perspective of several experts, the evolving standard of care, and the above average results that this physician obtained for his patients. In sum, the physician’s knowledge and thoughtful presentation, supported by expert opinion, literature, and good patient outcomes, carried the day. This case was closed without any discipline.

The physician treating chronic pain with narcotics

In the second example, a physician was treating chronic pain with narcotics in a small practice setting. This is a difficult medical practice in the best of settings, given the nature of the patient population, and the scrutiny imposed by state and federal regulators, including the Board of Medicine and the Drug Enforcement Administration (DEA). The physician’s charting was good, however, and, with the assistance of an expert to provide an objective assessment, the physician’s charting was organized into a comprehensive and detailed written report. Small discrepancies were spotted, self-corrected immediately, and disclosed to the Board of Medicine, leaving nothing for the Board to do. The physician’s presentation was persuasive, and the case was closed without any discipline.

The pharmacist-in-charge discovering and reporting a substantial drug loss

In the third example, the pharmacist-in-charge (PIC) discovered a large drug loss in his pharmacy. Security and protocol had been breached. The pharmacist-in-charge was very proactive, however, quick to discover the problem, quick to verify a pattern of theft, and quick to report the drug loss to the Board of Pharmacy and the DEA. The pharmacist-in-charge also confronted the person responsible for the drug theft and further implemented corrective measures. Although the pharmacist-in-charge worked closely with the Board of Pharmacy, it was the pharmacist-in-charge that lead the effort, an effort that was much appreciated by the Board of Pharmacy. And although the drug theft occurred under his watch, the pharmacist-in-charge promptly fulfilled his role in the state and federal regulatory scheme intended to secure the inventory of controlled substances. The case was closed without any discipline.

The nurse alleged to have exceeded his scope of practice

In the final example, a highly skilled nurse was alleged to have exceeded his scope of practice. The nurse’s advanced education and experience carried the day, however. The Board of Nursing concluded that the nurse in fact had the education, training and experience necessary to refute the allegation that the nurse had exceeded his scope of practice. The Board of Nursing reasoned that whatever dispute there was between the hospital and the nurse, it was an employment matter, not a licensure matter. The case was also closed without any discipline.

What you need to know

In difficult cases it is necessary to take the initiative, to perform the research and analysis necessary to take a lead role to get in front of the case, showing your licensing Board what you are doing, and further offering the conclusion the Board should accept without need of discipline. In the four examples offered above, none of the cases proceeded beyond an interview, and in two of the cases, investigators determined that an interview was not warranted. These examples illustrate the value of early action when defending your medical license.

If a DEA Drug Diversion Agent asks you to sign a waiver or release, just say “no.”

If you possess a DEA Registration to prescribe, possess, or dispense controlled substances, you may one day be approached by a DEA Drug Diversion Investigator requesting an interview and asking you to sign a release or waiver of your right to remain silent. Just say “no.”

As my late friend Glen Crick has written,

“if you are told, ‘You have the right to remain silent,’ then remain silent. This warning is only given to someone who is the subject of a criminal investigation. If an investigator tells you that you have the right to remain silent, there is no guesswork involved. You are the subject of a criminal investigation, and there is nothing to be gained, and much to be lost, by talking to an investigator without legal counsel present.”

Two examples of what can go wrong

In one case, a senior physician was duped into writing prescriptions to young, drug seeking “patients.” His clinical assessments and charting were both good, and the drugs prescribed were appropriate and in therapeutic doses. The trouble arose, however, not from his charting, but from the statements he made during his voluntary interview with the Drug Diversion Investigator – he made the big mistake of signing a written release of his rights, and he then sat for an interview. Unfortunately, the mistakes he made during that interview hurt him, and he later pled to one “small count” (small by drug diversion standards) resulting in a sentence of probation, the surrender of his DEA Registration, and the closure of his practice. It was my opinion, however, that without the statements he made during his voluntary interview, his case was entirely defensible.

In another case, a physician made the same mistake of signing a written release of her rights, and she then sat for an interview with two Drug Diversion Investigators without legal counsel present. Before that interview was over, she was further persuaded to surrender her DEA Registration. This physician never faced allegations of criminal wrong doing, but she incurred much legal expense and trouble in an attempt to restore her Registration and medical practice. Although this case was never fully developed, it was my opinion based upon what was known, and what has been learned since, that this physician would not have lost her DEA Registration and there was no reason to surrender it to the DEA investigators in the first place.

What you need to know

In both the of the examples above, the physicians released their rights and agreed to be interviewed by Drug Diversion Investigators. It was my opinion that both cases were fully defensible. The lesson to be learned is that if a DEA Drug Diversion Investigator wants to interview you and asks you to sign a release or waiver of your right to remain silent, don’t do it. Just say “no.” If you are told, “You have the right to remain silent,” then remain silent. Decline all interviews until you have consulted with a lawyer familiar with prescribing issues under state and federal law. Whatever you do, don’t go it alone.