Written by attorney Christine C McCall | May 27, 2013

Board of Registered Nursing Diversion Program? Get Legal Advice FIRST!

My firm handles a great many California Board of Registered Nursing matters and we almost never advise an R. N. to agree to BRN Diversion. If an R. N. has a substance abuse problem or mental health issue, there are usually better and safer ways to deal with it. BRN Diversion is harsh, expensive, potentally endless, and can be dangerous for the license. But, every case is different, and if there is no other option, Diversion may be the only "choice," even if it is a risky one. BRN Diversion is for rehabilitation. An R.N. who agrees to participate is making a binding legal admission of being in need of rehab. That admission shouldn't be made unless it is true, unavoidable, and supported by medical and psychiatric evidence based on a competent individual professional evaluation of the R.N. To commence Diversion, the R.N. agrees to medical and/or psychiatric examinations (at the R.N.'s expense). The R.N. has no control over the method or results of examinations. Remember, to a psychiatrist with a hammer, everything looks like a nail. The R.N. then agrees to a specific rehab plan or program and consents to on-going med and psych evaluations and treatment. The consent leaves the R.N. legally unable to challenge any demands made of the R.N. during the program. Thus consent to the program can operate as a blind, open-ended, limitless agreement -- always risky. The R.N. is responsible for all costs incurred for the examinations and rehabilitation aspects of the program (including random laboratory tests for drugs, treatment, psychiatric or medical evaluations, and nurse support group attendance) plus a monthly participation fee. The average time in diversion is 3.5 to 4 years. There have been cases of 7 and even 11 years diversion duration. The Committee makes the judgment as to when/if the Program is "completed." There is no upper time limit. Notably, even R.N.'s whose licenses are revoked for outrageous unprofessional conduct, or who surrender their licenses in lieu of administratively appealing disciplinary action, are ordinarily eligible for license reinstatement within 2 - 3 years, often sooner than Diversion is typically completed. When an R.N. enters BRN's Diversion Program, the R.N. must stop practicing until the Diversion Evaluation Committee determines in its sole judgment that the R.N. is safe to practice. So current employment often cannot be preserved. The Diversion program specifies that return to nursing will be a gradual progression. When an R.N. is allowed by the Committee to begin to return to work, there will be restrictions to the nursing practice. Those may include non-patient care only, no night shifts, no access or proximity to drugs, no home health work, not to be the only R.N. on duty, and a limit on the number of hours R.N. may work. As the R.N. progresses in recovery, the restrictions are modified and then lifted until, by the end of the program, there are no remaining restrictions to practice. (This may be 4 - 5 years out.) Many -- perhaps most -- health care facilities and other employers of R.N.'s cannot accommodate these restrictions over a prolonged course and will be unable to employ or retain an R.N. on Diversion. The R.N. on Diversion must have a work-site monitor in place prior to returning to work. This monitor, a supervisor, will evaluate the R.N. when R.N. returns to work and will prepare quarterly reports for the Committee. Many employers cannot accommodate the financial burden and inconvenience of these restrictions and find it necessary to terminate the employment of the Diversion Program R.N. The Committee specifies regular meetings with the R.N., usually at intervals of 3 or 6 months. In between meetings, the R.N. is responsible for completing the assignments of the Committee. There are significant criticisms about the methods of the Committee and staff in the course of the program. By some reports, inter-actions with R.N.'s in the program are heavy-handed, psychologically manipulative, and over-bearing. It may be unwise to agree to Diversion without first getting legal advice from a licensing attorney that you have no better option.

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