More Information on IPN for Nurses

As health law attorneys, we are often contacted by nurses who decided to self-report, were set up by colleagues, involved in an off duty incident (DUI, narcotics possession), or drug tested at work and were directed to IPN as a result. These nurses now may face years of problems because they agreed to IPN in an attempt to save their license.

For those who have never heard of it, IPN stands for Intervention Project for Nurses. It is a program based in Florida aimed at providing an avenue for swift intervention/close monitoring and advocacy of nurses whose practice may be impaired due to the use, misuse, or abuse of alcohol or drugs, or a mental and/or physical condition. Other states have similar programs, like TPAPN (Texas Peer Assistance Program for Nurses)  in Texas or RAMP (Recovery and Monitoring Program) in New Jersey.

Let’s set things straight. IPN is not the easy way out if you are trying to save your license. Although IPN may have some benefits in rehabilitating a truly impaired nurse, for others, it only causes mounting problems. We hear so many horror stories about nurses who turned to IPN to save their licenses, only to never again be able to practice.

When you agree to IPN, you are agreeing to many, often unclear consequences. Nurses accepted into IPN must sign a five (5) year contract agreeing to monitoring, weekly counseling meetings, regular psychiatric visits, random urinalysis testing (with a mandatory call in every day of your life for the five year period), mandatory notification of all employers that you are in IPN and why, a strict prohibition on drinking any alcoholic beverage, or taking any medication (even over the counter medications) without the prior approval of IPN, possible loss of your privilege to administer narcotics, possible loss of your privilege to access any prescription medications, a possible requirement that you only work under the supervision of another registered nurse, and other possible requirements.

These stipulations are extremely expensive, especially if a nurse is not working (many currently or previously in IPN cannot find jobs). Drug testing, rehab and consults all must be paid for and can cost thousands of dollars. If you ever miss a drug test or a support group session or consultation ever comes back to IPN with less than perfect reviews of you, your contract may be extended or further consequences can be added (like license restrictions). Furthermore, not all IPN counselors and specialists should be viewed the same, and there are not any uniform evaluation requirements for the specialists. It is our experience that some are better than others, and some should be avoided at all costs! Just because you are 100% innocent of any charge against you and have a clean drug test, a specialist can still find fault leading to more problems for you.

Many nurses that have had major problems with IPN are nurses who have been prescribed medications. In IPN, it does NOT matter if you have a prescription. If you have a medical condition that requires treatment with a narcotic or other IPN banned medication (like Ritalin), you CANNOT take it. Shouldn’t nurses be able to be treated the same as anyone else? Additionally, you cannot have any alcohol, and IPN will test for alcohol use.

While the medication and alcohol restrictions are harsh, some nurses who have been subjected to IPN say that the worst thing is the negative stigma associated with nurses in IPN. You can get lucky with a contract that does not require random testing, without mandatory participation in weekly meetings. However, you will ALWAYS have to let your employer or potential employer know about IPN. It is our experience that this knowledge will prevent you from getting hired, most of the time, despite IPN’s claim that plenty of IPN nurses have jobs. Even if there are no restrictions on your license, you will still have a difficult time ever getting job, making your license (which you thought IPN could save) worthless.

When you are faced with any kind of allegation as a nurse, always remember that you have the right to an attorney during any questioning whether as part of an initial investigation, during a hearing, and while reviewing and considering a consent agreement. A drawback for many nurses faced with charges is the cost of an attorney. However, please consider that you are facing the possibility of a restricted license, a revoked license, and/or ending up with charges next to your name that may end your ability to ever practice as a nurse. Struggling to find work under IPN’s stipulations and with a restricted license is not easy, if at all possible. The cost of hiring an attorney who may be able to save your license and livelihood is well worth it when compared with the alternative of never being able to find work.

However, before you decide to hire legal representation, research health law expert attorneys in your area. A board certified health law attorney should be very familiar with cases involving IPN and should have experience going before the Board of Nursing. But do not make your attorney’s job difficult. Consult with a health law attorney before you make any decisions. After you sign an agreement with the Board of Nursing, an attorney’s options to assist you become limited. Even if you are 100% innocent, an attorney might not be able to get you out of IPN after you have already made a deal.

When the nurse may actually have committed the offense, there are a number of administrative and procedural measures which an experienced health care attorney may be able to use to avoid a suspension. This will also prevent the matter from becoming public until much later in the process.

For the innocent nurse, an experienced attorney familiar with Board of Nursing proceedings may be able to obtain additional drug testing, polygraph (lie detector) testing, scientific evidence, expert witnesses, evaluations by certified addictions professionals, character references, or other evidence which shows that the nurse is innocent of the charges.

We hope that this information will help nurses navigate IPN and Board of Nursing negotiations. Please, pass this information on to all nurses you know, so that unnecessary consequences can be prevented.

For more information, visit www.TheHealthLawFirm.com.

Doctor or Nurse, Please, Please, Please: Talk to an Attorney Before You Talk to an Investigator

Despite mailing out hundreds of thousands of postcards and letters to physicians, nurses, dentists, pharmacists, and psychologists  throughout Florida, we continue to receive calls from new clients and from potential clients, after they have already spoken to and made critical harmful admissions against their own interests to investigators.  In Florida, you do not have any duty to cooperate with any investigator who is investigating you.  This extends to Department of Health (DOH) investigators (who are sometimes titled “Medical Quality Assurance Investigators” or “Medical Malpractice Investigators“), Drug Enforcement Administration (DEA) special agents, police officers, sheriff’s deputies, or criminal investigators of any type.

Let me state this as succinctly and clearly as possible.  If you are being investigated, you will not be better off making a statement.  You will not be better off explaining your side of the story.  The investigator is not your friend.  The investigator is not on your side.  All you are doing is falling for a trick and helping the government to make a case against you.

You have a right under the U.S. Constitution to not make any statement that may be used against you.  This is so important that in criminal cases government investigators are required to advise you of this by reciting to you your Miranda rights.

However, in cases where you might have your medical license revoked or have your nursing license revoked or have your DEA number revoked or lose your Medicare provider status or your Medicaid provider status, the investigator is not required to advise you of your rights.

In a criminal case, there may be ways to have your statement thrown out.  However, in a professional licensing case or other administrative case, it may be too late to avoid the damage.  You may be the best witness the government has and you may be the only witness the government needs to prove ths case against you.

In the case where you could receive a $100 criminal fine, the investigators are required to read you your constitutional Miranda rights and to be sure that you understand them before you make a statement.  However, in a case where you can lose your professional license, where you could lose your livelihood and ability to make a living, where you could lose everything you have worked so hard to obtain, they are not required to do this.  You must protect yourself.

Many health professionals, when confronted by an investigator, who will usually call at a very inconvenient time (to catch you by surprise) and will usually flash a badge (to intimidate you), will refuse to acknowledge the seriousness of the matter and will fall for the bait to “tell their side of the story.”  This can be fatal to your defense and fatal to your license.

In the absence of a statement by the suspect (in this case, let’s assume this is YOU), the government may have a very difficult time of proving that you have committed any offense.  It may have other witnesses (who may not be around at the time of any hearing or trial).  It may have a lot of physical evidence or documents.  But it may be impossible for the government investigators to make any link between you and the evidence, unless you help the investigators do this.  You would be surprised at how many health professionals believe that they can just talk their way out of the situation;  in reality, they are just giving evidence that is used to make the case against them.

Any evidence at all, just admitting that you were there, admitting that the documents are yours, admitting that the patient was yours, admitting that you worked at the clinic, admitting that you wrote the prescription, admitting that the property is yours, admitting that you were on duty at the time, admitting that you have taken a drug, admitting that you signed the form, can be a crucial piece of evidence that could not otherwise be proven without your own testimony.

Remember, this is the investigators’ job and profession.  This is what they do full time, every day.  And they are very good at it.  They are 1,000 times better at getting you to admit the crucial elements of a disciplinary infraction than you are in “talking your way out of it.”  They will not be convinced by any excuses you make.  They do not have to be. They will not be the ones making the final decision against you.  Theirs is the job of putting together the case against you.  You will help them by talking to them, explaining why your decisions are correct, explaining why what you did is excusable, etc.  It will not work.  You will merely be giving them enough rope to hang you with.

Hint: If it is a Medicaid Fraud Control Unit (MFCU) special agent (investigator), you are probably under investigation for Medicaid fraud.

Hint: If it is an “auditor,” “surveyor” or “investigator” from an agency or company with “integrity” or “program integrity” in its name, they are probably investigating you for “lack of integrity,” i.e., false claims or fraud.

Hint: If it is a Drug Enforcement Administration (DEA) special agent (investigator) they are probably investigating you to prosecute you or to revoke your DEA registration for drug or prescribing violations.

Hint: If it is an Office of the Inspector General (OIG) special agent (investigator), you are probably under investigation for Medicare fraud or Medicare false claims.

Hint: If it is a Department of Health Quality Assurance Investigator or Medical Malpractice Investigator, they are probably only investigating possible disciplinary action against your license that could result in large administrative fines or revocation of your license.

Do not believe for a second that you are smarter than the investigator.  Do not believe for a second that you will convince the investigator (or anyone else) that there is a legal or medical justification for what you did or what they allege.  If it were as simple as that, then why would there be an investigation and why would you be the one being investigated?

Additionally, do not believe for a second that you can lie your way out of it, either.  Remember, if the government cannot prove the basic offense that it is investigating against you, it may be able to prove that you have committed perjury or lied to an investigator.  In the case of a federal official or a federal investigation, merely making a false statement (oral or written) to an investigator is a criminal act.  This is what Martha Stewart and many others have served time for in federal prisons.

These investigators are lied to all the time.  They are usually better at detecting lies than a polygraph expert is.  Furthermore, in most cases, you will be the very last person to be interviewed.  Therefore, they will already know just about everything that can be used against you.  If your statement contradicts in any way what others have told them, they will know you are the one who is lying.  However, knowing something or suspecting something does not mean it will be something that can be proven in court or in an administrative hearing.

It is much better to make no statement at all.  Blame it on your attorney.  Tell the investigator that your attorney will kill you if you were to talk to the investigator without your attorney being there ahead of time.  “Speak to my attorney.”  “My attorney can help you, I can’t.”

All you have to do is state “I must talk to my lawyer before I say anything.”  “I will have my lawyer contact you.”  “I cannot say anything until I talk to my lawyer.”  “I want a lawyer.”

If you are not the one being investigated, then there is no good reason why the investigator would want you to make a statement before you consulted with your attorney.  What is the rush?

Then you must also avoid the old trick of the investigator telling you “If you don’t have anything to hide, why would you need a lawyer?”  Please don’t fall for this trick, either.  This is America.  Smart people and rich people spend a lot of money on attorneys and other professionals to represent them and advise them.  There is a good reason why they do this.

Far too often the health professional only calls us after he has given a statement.  This is usually too late to avoid much of the damage that will have been be caused.

Everything above applies to oral statements or written statements.  Do not make either.  Contact a lawyer as soon as possible, preferably before making any statement, no matter how simple, defensive, self-serving or innocuous you may think it to be.

Think of this as an intelligence test.  Are you smart enough to follow this guidance and avoid this type of mistake?

For more information about investigations and other legal matters, visit www.TheHealthLawFirm.com.

IPN and Nurses

Please also see our latest post about IPN.

The Intervention Project for Nurses (IPN) is a program that provides close monitoring of nurses who are unsafe to practice due to impairment as a result of misuse or abuse of alcohol or drugs, or both, or due to a mental or physical condition which could affect the licensee’s ability to practice with skill and safety. Any person suspecting impairment of a nurse’s ability to provide safe nursing care may report this nurse to IPN and/or the Florida Department of Health (DOH). Under Florida’s Mandatory Reporting Law, all licensed nurses must report any suspected impairment in practice to IPN and/or the DOH.

Often a report against a nurse will be based totally on the suspicions of a supervisor, after observing a nurse at work who is actually exhibiting signs of illness or fatigue. Circumstances which are totally beyond the control of the nurse, such as a shortage of drugs from an inventory for which the nurse is not responsible, a higher use of a certain drug on a certain ward or shift, or other factors for which there is no concrete evidence of abuse or impairment can lead to a report being filed against a nurse.

These types of allegations made against a nurse are extremely serious because they are usually treated by the Department of Health as “Priority 1″ or Fast Track” offenses. This means that the charges against the nurse will usually be automatically considered for an Emergency Suspension Order (ESO) by the Department of Health. The investigation will be “fast and dirty” with a requirement that the DOH investigator have the entire investigation completed and the report in Tallahassee within 45 days. Then, unless a qualified, experienced attorney is able to immediately produce reliable documentation and other evidence showing the nurse is not impaired and is not a threat to patient health or safety, the Surgeon General (formerly the Secretary of the Department of Health) will issue an Emergency Suspension Order (ESO). This suspends the nurse’s license until all proceedings are completed and finalized (which often takes a year or more). The nurse will be unable to work as a nurse during any period when the license is suspended and, even if the nurse has a license in another jurisdiction, since the suspension is a public record which is widely published and other jurisdictions are notified, the nurse may find that licenses held in other states also suspended.

However, even where the nurse may actually have committed the offense, there are a number of administrative and procedural measures which an experienced healthcare attorney, one familiar with Board of Nursing and IPN cases, may be able to use to avoid a suspension. This will also prevent the matter from becoming public until much later in the process.

For the innocent nurse, an experienced attorney familiar with such matters may be able to obtain additional drug testing, polygraph (lie detector) testing, scientific evidence, expert witnesses, evaluations by certified addictions professionals, character references, or other evidence which shows that the nurse is innocent of the charges.

In many cases, the nurse who is the victim of a termination action by an employer or a complaint against his or her nursing license involving allegations of drug abuse, alcohol abuse, or impairment may view IPN as an easy way to avoid discipline. This is a complete fallacy. Such an apparent easy way out should be avoided at all costs.

If the nurse is not truly an impaired provider or addicted to drugs or alcohol, there may be other alternatives that do not involve discipline. IPN is not “easy” and should not be viewed as an easy way out.

It is extremely important that before a nurse “self-reports” to IPN or agrees to undergo the initial evaluation by an IPN recommended physician (usually one specializing in addictionology, as IPN always requires), an attorney who has experience with IPN cases is consulted for advice.

Before a nurse gives any blood, urine, hair samples or submits to other drug or alcohol testing, he or she should be aware that similar testing labs to the ones used by IPN exist. The nurse can arrange to be tested ny another lab first so that he or she will know whether or not the report will be problematic. For example, did you know that the use of certain prohibited drugs (including cocaine) will leave a residue in your hair which can be detected for months or longer after use? Are you aware that there are now tests being used which can tell if you have had one regular size alcoholic beverage within the past thirty (30) days? There are even tests being used now to test health care professionals for the illicit use of anesthetic gases such as Aldan.

IPN does have some advantages for the truly impaired nurse. It provides an avenue of monitoring, rehabilitation, monitoring and treatment. It is an invaluable tool to assist a nurse with a real problem to retain her ability to practice. Some nurses should not be practicing except through IPN.

However, IPN also has some serious disadvantages and may, among other things, cause the nurse to lose his or her job, require the nurse to enter into long term inpatient rehabilitation, cause the nurse to undertake extremely expensive treatment, counseling and therapy, and impose very onerous burdens of time and money on the nurse, as well as work limitations.We are consulted by just as many nurses who want to get out of the IPN Program after they agreed to enter it without proper legal advice. Even though at the time it seemed like a good idea, or the nurse incorrectly thought there was no choice in the matter, it turns out to be a big mistake for that person.

Some nurses are required to complete 60 day, 90 day, and longer periods of inpatient drug or alcohol treatment before being allowed to return to work. Nurses accepted into IPN must sign a five year contract agreeing to monitoring, weekly counseling meetings, regular psychiatric visits, random urinalysis testing (with a mandatory call in every day for the five year period), mandatory notification to all employers, a strict prohibition on drinking any alcoholic beverage, or taking any medication (even over the counter medications) without the prior approval of IPN, possible loss of your privilege to administer narcotics, possible loss of your privilege to access any prescription medications, and a possible requirement that you only work under the supervision of another registered nurse.

In most cases, it is not possible to leave the IPN Program after agreeing to it without giving up your nursing license. And this can have some extremely adverse consequences for a nurse, including a report to the National Practitioner Data Bank (NPDB), exclusion from the Medicare and Medicaid Programs, and debarment from all federal government contracting.
The bottom line is: If you are accused of stealing drugs, of sexual boundary issues or sexual misconduct, or of being impaired, immediately contact an attorney experienced with IPN and Board of Nursing matters before doing anything else.

For more information about IPN and other legal matters involving nurses, visit www.TheHealthLawFirm.com.