Ask a Drug Defense Attorney: What Is “Drug Diversion”?

Posted: August 20, 2021 at 10:30 am

If you work in the healthcare industry and are facing a drug diversion case, now is the time to contact a drug defense attorney. This urgent step can protect you from a serious criminal charge that’s growing increasingly more common. Healthcare providers across the U.S., including in Olathe, KS, continue to face alarming investigations for drug-related crimes, some of which are supported by little or no evidence.

Ask a Drug Defense Attorney: What Is “Drug Diversion?”

Drug diversion is the redirection of prescription medication from its intended use for illegal sale, distribution to others, or personal use. The activities of drug tampering, use, and theft also fall under this umbrella. Common examples of drug diversion include physicians writing narcotics prescriptions when a legitimate medical necessity does not exist or when a nurse reroutes medication from a Pyxis machine.

Drug diversion allegations can have long-lasting implications on your career and, if state or federal authorities are contacted, lead to criminal charges. Since 2017, when the opioid epidemic was declared a national public health emergency, combatting drug diversion has become a top priority with law enforcement. This means authorities will tenaciously target any healthcare provider suspected of wrongdoing.

Factors That Prompt an Allegation

Diversion investigations may be prompted by a variety of circumstances. Many times, coworkers submit anonymous tips after witnessing behavioral changes in colleagues like:

  • Declines in job performance
  • Long absences from the unit
  • Arriving late and/or leaving early
  • Taking multiple restroom breaks
  • Excessive errors in work, including medication errors

Discrepancies in ADC and EHR data can also prompt a coworker to make an allegation. This data is instructive in identifying drug diversion, but relying on coworkers’ tips or the intuition of nursing leadership in Olathe, KS, can be misleading. To illustrate, nurses often make diversion reports when they believe a colleague is wasting prescriptions without understanding the reasons for such activity.

An Allegation Does Not Equate to Guilty

It’s important to understand that an open diversion investigation against you does not imply guilt. Stigma commonly surrounds these investigations, when the truth is that anomalies in controlled substance usage can be owed to many factors.

Sometimes, a healthcare provider simply needs more training in proper administrative practices. Other times, the error is owed to a breakdown in clinical procedures or the computer database itself, meaning diversion is not the problem but rather incorrect documentation. An attorney can partner with you to build a strong, fact-driven defense.

What to Expect from an Investigation in Olathe, KS

If an allegation is referred to the Kansas State Board of Healing Arts (KSBHA), a case will be created and an investigator assigned. He or she will analyze the facts and, when finished, likely contact you by phone. It’s important that you meet a state investigator only with a qualified drug defense attorney at your side. Drug diversion allegations are complex, and an innocent answer to a question can be easily turned against you.

After the state investigator wraps up his or her investigation, the case might be referred to either the attorney general’s office or local police. This is when a state or federal prosecutor will determine if charges are to be filed against you. As mentioned earlier, a renewed emphasis on drug enforcement means felony charges are often filed in situations with scant evidence.

The Nature of Prescription Drug Crime Charges

Aggressive prosecutors are known for wanting to make an “example” of white-collar crimes. As the opioid crisis continues to escalate, state and federal law enforcement agencies have increased their efforts to place the blame on nurses, pharmacists, doctors, and other medical professionals.  

Even if criminal charges are not pursued, the investigation will likely be forwarded to your licensing board to decide if a formal complaint needs to be issued. If a complaint against you is warranted, your case will follow a formal administrative process that may jeopardize your license to practice.

Illegal Distribution of Prescription Drugs

Many times, cases of drug diversion lead to additional charges as well, such as distribution. Penalties for distributing prescription drugs without adequate authorization can carry penalties that include hundreds of thousands of dollars in fines and up to 20 years imprisonment. The penalty severity depends on the amount of the drug being transferred. Keep in mind distribution is always a felony charge regardless of the drug in question.

Even if you are not caught explicitly distributing a controlled substance, you can be charged with possession with intent to distribute. For instance, if you possess at least 100 dosage units of methadone, the law presumes you intended to sell them. In addition to potential jail time and fines, a Kansas resident convicted of drug distribution is required to register on the Public Offender Registry.

Ways an Attorney Can Help

A drug defense attorney in Olathe, KS, will comb through the evidence, assess the state’s case against you, and identify the best approach to your defense. They’ll review ADC reports, EHR data, and video surveillance footage. It’s important that any footage be obtained early in your case, as your employer’s server may only store video files for a limited time before getting erased.

Your attorney will also determine if your case meets the legal standards for license revocation or criminal conviction. So-called drug diversion is sometimes the result of a personal substance abuse problem that needs to be addressed in another way. Alternatively, some cases identify the healthcare provider as the victim, targeted by a co-worker or patient who doesn’t understand the seriousness of drug diversion allegations.

Help You Respond to a Drug Diversion Investigation 

Earlier, we alluded to the fact that any statements you make to investigators can and will be used against you. Agents may come to you in a friendly manner in the investigation’s earliest stages, stating they need to ask questions only to gather basic information. They might even suggest they’re investigating another clinic or physician.

Watch Your Words

But it’s important you consult an attorney before volunteering information to any state or federal agents. What sounds like ordinary questioning may very well be the components of a mounting investigation. And an investigation into another provider could easily grow to include you within its scope.

Or, in a federal case, a grand jury may have already issued an indictment. The same is true of a raid: agents are trained to take as many statements as possible, especially from providers they plan to charge. Your statement could therefore inadvertently damage your future defense strategy.

Defend You Before the Licensing Board

Nurses are among the most frequent targets in cases of drug diversion. The media often showcases stories of “drug-dependent” nurses who stole medications from patients to support their habits. These stories provide prosecutors with convenient narratives, even when charges are unfairly sensationalized and based more on fiction than fact.

You worked hard for your education, licensure, and job. Yet a single anonymous tip or misconstrued statement can yank it all from your hands. Whether you’re facing criminal charges for drug diversion or not, it’s important to obtain proper representation so you can continue your career. A lawyer will defend you before the licensing board and, if necessary, in court as well.

A serious allegation demands a serious defense. Our team has the skills and experience necessary to fight for your rights and your freedom. Don’t wait until you’ve received formal notice of a pending criminal or administrative complaint to contact our office. Call Henderson Legal Defense, LLC, and learn more about your defense options today.