Good policy or bad medicine? Nurse discipline rules questioned

Some in law enforcement see double standard
2010-05-23T00:15:00Z 2010-08-12T07:10:21Z Good policy or bad medicine? Nurse discipline rules questionedDIANE COCHRAN Of The Gazette Staff The Billings Gazette
May 23, 2010 12:15 am  • 

Almost one-third of nurses disciplined by the state of Montana in the past five years got into trouble for stealing drugs from their employers.

Instead of notifying law enforcement, the state Board of Nursing funneled most of those nurses into an addiction program and placed their licenses on probation.

A handful were prosecuted criminally for diversion, but only because police discovered their crimes before their bosses did.

The state Department of Labor and Industry, which oversees the Board of Nursing, claims that focusing on rehabilitation prevents impaired nurses from going undetected and potentially harming patients.

But critics, including some in law enforcement, argue that nurses get special treatment that is not afforded people in other professions who abuse narcotics.

“I know of no other profession exempt from criminal prosecution when they steal drugs,” said Glacier County Attorney Larry Epstein. “The people who support hospitals and are patients and clients of hospitals and have their loved ones in them deserve to know how it is that nurses are exempt from reporting to law enforcement when they steal drugs.”

Medical facilities are technically required to notify the federal Drug Enforcement Administration and local police when a nurse is caught taking controlled substances.

But in practice, it often does not happen.

“The number of these nurses coming to anybody’s attention is underreported,” said Mark Long, narcotics bureau chief for the state Division of Criminal Investigation. “Quite often we hear that a nurse was caught diverting drugs, and between them and their employer, an arrangement is worked out where they just leave.”

Disciplinary records confirm that hospitals and nursing homes call the Board of Nursing, and not the police, when a nurse is suspected of taking narcotics.

The Billings Gazette reviewed the files of 255 registered nurses and licensed practical nurses sanctioned by the board between October 2004 and March 2010. The disciplined nurses represent less than 2 percent of all licensed nurses in Montana.

Of the 255 who got into trouble, 61 were sanctioned for diverting narcotic medications from their employers. Another 18 were cited for behavior that probably was diversion but could not be proved to be such by board investigators.

Most of the nurses took drugs for their own use, including one in an outpatient surgery center who replaced the anesthetic in syringes with saline, leaving surgical patients under-medicated. That nurse did not lose her license, nor did a nurse who substituted breath mints for painkillers multiple times.

A nurse who was caught stealing narcotic medications from patients and selling them to her friends also did not lose her license. Neither did another nurse who stole painkillers and sold them to her patients.

All of those nurses were sent to the Nurses Assistance Program, a substance abuse monitoring program associated with the Board of Nursing. About 35 percent of nurses who enroll in the Nurses Assistance Program are later unsuccessfully discharged.

“Alternative programs for nurses with substance abuse disorders are essential,” Anjeanette Lindle, an attorney for the state Department of Labor, wrote in an e-mail to The Gazette. “Without such a program, nurses needing treatment may go into hiding in order to protect their licenses and their livelihood, thus creating an even greater public safety concern.”

None of the Board of Nursing’s nine members would consent to an interview with The Gazette. At their most recent meeting, board members voted against participating in this story. Lindle later agreed to answer questions by e-mail.

The quickest way to get an impaired nurse away from patients is to suspend his license, Lindle wrote. The process to revoke a license can take years, and a dangerous nurse could do serious harm during that time, she wrote.

“It is the board’s job to protect the public,” Lindle wrote. “When the board members review complaints, their first and foremost concern is protection of the public.”

After public safety, the highest priority is rehabilitation. That makes sense to Cynthia Haney, senior policy fellow for the American Nurses Association.

“We have someone who provides a valuable service to patients,” Haney said. “Particularly in Montana where you have a provider shortage, if there’s any way to return that person to safe practice, that would be in the interest of the community as well as the individual practitioner.”

Haney said medical practitioners have been illegally accessing and using controlled substances for years, and nurses are trained to protect their patients from impaired colleagues.

“If patient safety is in jeopardy, nurses don’t distinguish cause from effect,” she said. “Whether it’s a poorly educated nurse, whether it’s an impaired nurse or anything, it’s in their professional best interest as well as the patient’s to get on that and fix it.”

A small portion of nurses who go before the board are disciplined more than once. In the five-year period examined by The Gazette, 58 nurses were disciplined for a second, third or fourth time. Diversion was a factor in 19 of the 58 repeat cases.

Nurses sanctioned multiple times often re-offend by not following conditions set out by the board after their first infraction, such as submitting to regular drug tests or completing progress reports. Only a few nurses were cited by the board on separate occasions for separate incidents.

According to Lindle, it is not the Board of Nursing’s duty to report drug diversion to criminal authorities. That responsibility lies with employers, who have the witnesses and evidence related to the crime, she said.

Curtis Harper, a public safety director for St. Vincent Healthcare, said the hospital routinely completes DEA paperwork and notifies local police when narcotics go missing.

Many hospitals employ complex security systems to track controlled substances and often know within days when drugs are missing. St. Vincent has one of the more sophisticated systems in the state.

“We have zero tolerance for narcotic diversion or abuse by our employees,” Harper said.

St. Vincent staff members must negotiate three levels of security to access most narcotics, which are tracked by computer from a secure vending machine to a patient’s bedside, where nurses scan a barcode on the medicine and on the patient’s wrist.

“The system knows you took the medication,” said Stacey D’Ambrosia, a registered nurse at the hospital. “I don’t know how you could get away with it.”

The DEA periodically audits hospital drug supplies, and hospitals must be able to account for every dose of narcotic medication that has been removed from their secure vending machines.

But as long as nurses dispense the correct amount of medicine for patients, diversion can go undetected. Nurses who pocket drugs instead of administering them are much harder to catch, as are nurses who take drugs that are supposed to be destroyed.

When those nurses are caught, they might not be reported to the DEA because the number of doses gone from a hospital’s supply matches the number dispensed for legitimate reasons, even if the doses were ultimately used illegitimately.

Even when nurses are reported, the amount of medication they stole often does not meet the DEA’s threshold for investigation, said Jim Palestino, assistant special agent in charge for the DEA’s Rocky Mountain Region in Denver. Still, Palestino said, stopping narcotic diversion is the agency’s top priority.

“We see it as the No. 1 drug problem in America, the illicit use of pharmaceutical drugs,” he said. “It’s really amazing how it has exploded over the last several years.”

To grab the DEA’s attention, the quantity of diverted narcotics has to equal about 2 pounds of cocaine. A case might also interest the agency if the nurse was a major supply source for the illegal drug market.

Most of the illegal pharmaceuticals available in Montana come from patients who forge prescriptions or doctor-shop, not from nurses, Palestino said.

Local police do investigate some nurses for diversion. A Billings Police Department spokesman said earlier this month that detectives were working four active cases and that one or two reports come in a month.

But police departments have no way to know if they hear about every diversion, and the number of criminal prosecutions does not reflect the number of nurses sanctioned by the state.

Epstein, the Glacier county attorney, said he grew frustrated with the situation after a medical office helped him prosecute a certified nurse aide for diversion but clammed up when he tried to pursue a nurse involved in the same incident.

“My forehead got flatter from banging it against the wall,” he said.

Despite working in intense life-and-death environments, nurses as a group do not have a higher substance abuse rate than the general population. More than 99 percent of them handle stressful jobs with aplomb.

But the stakes are higher when a nurse goes to work impaired — or injects herself on shift with narcotics stolen from the hospital supply, as at least one Montana nurse has done — than when people in most other professions do.

“It’s a very honorable profession chock full of good employees,” said Long, the state criminal investigator. “But any group is going to have some bad apples. If you have any medical professional diverting drugs, particularly if it’s for an addiction, you have a problem.”

Contact Diane Cochran at

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