DSHS Financial Exploitation Statute Is Fundamentally Unfair

In 2014 the Washington Court of Appeals held that the owner of an adult family home (AFH) who took a small amount of morphine—in a failed suicide attempt—that was prescribed to one of her residents was guilty not only of violating rules prohibiting the diversion and misuse of narcotics by caregivers but of financially exploiting the resident because the medication was resident’s property. Gradinaru v. DSHS.While Department of Social and Health Services (DSHS) regulations designed to protect vulnerable adults from abuse and financial exploitation apply to everyone who comes into contact with vulnerable adults—from family members to people who work at nursing homes and other care facilities—the Department of Health (DOH) has traditionally lead efforts to address the problem of drug diversion and misuse by licensed healthcare providers. The AFH owner in Gradinaru was not a licensed healthcare provider; AFHs are regulated by DSHS, and DOH licensure is not a requirement for ownership of an AFH. But DSHS is now relying on the Gradinaru decision in actions alleging financial exploitation—based on drug diversion—against DOH licensees who work in DSHS regulated facilities. In doing so, DSHS is directly undermining legislative efforts to address the problem of substance abuse among healthcare providers.

“Since the late 1980’s, the legislature has recognized the value in promoting treatment, effective monitoring, and safe return to practice as a public health benefit. A primary benefit to the public and the health professional is that monitoring enhances public safety through early intervention and quick entry into monitoring. Health professionals can also continue to provide health care, which is especially important as the demand for skilled health professionals grows.

Health profession licensing Boards, Commissions, and Advisory Committees share an explicit duty to protect the public from unsafe health practice. However, before the advent of alternative programs, the disciplinary approach was the only way to address health professionals with substance use disorder. This resulted in the unnecessary loss of a valuable public health resource.”

Excerpt from the WHPS 2013 Annual Report

 The Washington Health Professional Services (WHPS Program) is a voluntary substance abuse monitoring program, which, pursuant to statute, provides an alternative to disciplinary action against licensed healthcare providers dealing with substance abuse issues. RCW 18.130.175 (“It is the intent of the legislature that the disciplining authorities seek ways to identify and support the rehabilitation of health professionals whose practice or competency may be impaired due to the abuse of drugs or alcohol. The legislature intends that such health professionals be treated so that they can return to or continue to practice their profession in a way which safeguards the public.”).Under DSHS’ application of the financial exploitation regulations, a nurse (or other healthcare provider) can be a prototypical WHPS participant—someone who self-reported a problem with drug use and who is fully complying with all WHPS program requirements—and still stand to lose their ability to ever again work in a DSHS regulated facility because of a single instance of drug diversion (i.e. misuse of a vulnerable adult’s property). For many nurses, the only opportunities for employment are in DSHS regulated facilities.The risk of someone like the appellant in Gradinaru financially exploiting one or more of the vulnerable adults who lived in the AFH she owned was potentially much greater than for a nurse who is merely a nursing home employee. At the same time, because the appellant in Gradinaru was not licensed by DOH, DOH was never in a position to determine whether she should be disciplined (or be referred to a substance abuse monitoring program in lieu of disciplinary action) for her drug use.Drug abuse by nurses is a public health concern foremost because of the safety risks posed by impaired nurses. Presumably, an impaired hospital nurse caring for a patient with heart disease is no less of a safety risk than an impaired nurse caring for a 58 year-old nursing home resident with M.S. And, the policy goals described in the excerpt above, which certainly implicate the risk of drug diversion, would seem to apply equally to the hospital nurse and the nurse working in a nursing home. Either or both nurses could divert narcotics, enter into the WHPS program, recover, and be determined to be able to safely practice. While the first nurse could get on with providing care to her patients, under the Department’s reading of the financial exploitation statute, the latter might be unable to work again due to the practical effect of having a DSHS finding of financial exploitation in her background. This result is fundamentally unfair and counter to the policy goals of promoting self-referral, early intervention, and quick entry into monitoring.