Why CAL. BPC. CODE § 2770.12 Should  Scare the Scrubs Off of You

As the Panel Attorneys for RN Guardian, we recently discovered what an absolute omniscient hold the BRN’s Diversion Program has over their Nurse Participants, so much so that a nurse can’t even get her own records to exonerate herself from a disciplinary proceeding that will forever ruin her career.

A terrified nurse recently contacted us because her California RN License had been subject default revocation and as a result, she has been contacted by the Office of the Inspector General and is being considered for the Federal Department of Health and Human Services List of Excluded Individuals/Entities (LEIE).  Meaning she is done- forever- having anything to do with healthcare in the United States… I’m sure you can understand her terror.

I’m not going to lie to you, when I found out that she had been contacted by the OIG and was being considered for the Exclusion List (LEIE), I assumed she must have done something really atrocious. Even with the hundreds of nurses we advise, we don’t come across the Exclusion list (LEIE) very often. As it turns out, her original offense was rather innocuous in comparison to many of our cases:

She was accused of diversion of opiate pain killers, on 2 separate instances. She confessed to taking the pills and was offered the BRN’s diversion program, which she gladly accepted because she was suffering from severe depression, was in a physically abusive relationship and wanted all the help she could get.  After 5months, the Diversion Case Manager released her to go back to work. Her performance evaluations were great, all of her drug tests were clean and after 2 and half years, the finish line was in sight.  But then she got sick.

She failed a number of urine drug tests because of “dilutes”, which seemingly- could be easily explained by her intestinal problems and the fact that she couldn’t keep anything of substance in her body, all of which was verified by her doctor. The Diversion Program kicked her out anyway, a few months away from completion. Down to 95 pounds, sick, dejected and now jobless, our client gave up on her dream of sunny California and she returned home to Michigan to be with her mom.

In the mean time, the Board of Registered Nursing found out that our client had been dismissed from diversion and so they begin an investigation for the original 2006 diversion of drugs. She responds to the initial investigation letter and explains to the Board that she would have completed diversion except for the illness, provides a letter from her doctor substantiating all of her claims and crosses her fingers. It wasn’t enough. The Board files the formal accusation calling for revocation or suspension of her RN license and at this point she’s had enough. She’s tired of fighting with California and she is never planning on returning so she doesn’t respond to the accusation and her license is finally revoked in May, 2011 by default. Sadly, had she called us during the investigation or even the accusation stage we could have helped her, and maybe that is why I feel so terrible for her now and why we are determined to keep her off the Federal Department of Health and Human Services Exclusion List (LEIE).

She hears from the Office of the Inspector General in July. If the OIG feels that the “crime” prevented the delivery of health care services to a patient then they consider that healthcare provider for the exclusion list. Because our client took meds that were signed out for a patient, they are able to equate the incident to their requirements. The OIG is allowing our client 30 days to provide them any information that could help sway their decision.

That is fantastic news! Because the OIG and Department of Health and Human Services are not aware of any of the other circumstances surrounding the diversion of the medication, our clients 2 ½ year stint in diversion and that it was an illness that caused her dismissal, we feel very confident that the OIG will drop the matter. All we need is our client’s file from Diversion to prove to the OIG that she was perfect while in diversion and never once, in the 2 ½ years following the incident, did she have a dirty drug test.

This is when you need to hold on to your scrubs: According to CAL. BPC. CODE § 2770.12 : California Code – Section 2770.12, our client is not allowed to get her file; as her attorneys, we can’t even have it subpoenaed.

 (b)All board and committee records and records of a proceeding pertaining to the participation of a registered nurse in the diversion program shall be kept confidential and are not subject to discovery or subpoena.

But according to CAL. BPC. CODE § 2770.11 : California Code – Section 2770.11 (b), the BRN can use the file and any information contained within it, to discipline the nurse:

(b)If the program manager determines that a registered nurse, who is denied admission into the program or terminated from the program, presents a threat to the public or his or her own health and safety, the program manager shall report the name and license number, along with a copy of all diversion records for that registered nurse, to the board’s enforcement program. The board [BRN] may use any of the records it receives under this subdivision in any disciplinary proceeding.

Time and time again we’ve seen the BRN cite a Nurses Diversion File in order to discipline the nurse, including admissions of chemical dependence, depression or “mental illness”. Diversion case managers have been expert witnesses for the Deputy Attorney General during Hearings and have aired all the Nurses most personal confessions, thoughts, fears, psychological exam notes and rehab information. But the nurse herself, has no right to her own file. The nurse’s attorneys have no right to the file. The metaphorical smoking gun is right there—and we can’t get it to prove that our client wasn’t the one that pulled the trigger.

It is quite possible that our client will be placed on the Exclusion List. Without the proof that she was never addicted to opiates, nor did she ever show positive for a drug test in 2 ½ years following the incident, all we have is her word against the Boards and the facts that we have access to, are not in her favor.