Question:
Dear Nancy,
I was turned into the board of nursing for a positive drug test, but I have never taken these drugs. Do I explain myself to the BON or do I need legal advice? I am working on getting a license in another state and planned to let my current license lapse in October before I even knew a complaint had been filed. I am terrified I am going to lose my license.
Esther
Dear Nancy replies:
Dear Esther,
If the urine test was truly negative, you would not be the first person to have a false positive with such a test. There are many potential problems with urine testing if the sample is not collected, labeled and stored correctly. For example, a urine test improperly labeled as belonging to you might not be yours. Most often, urine tests are split into two specimens with the same control number on them, so if a second confirmatory test has to be done (to confirm a first positive test), there is another portion of the first sample to test. It may be your initial sample was not handled properly in this regard.
A second problem with urine samples is a drug or drugs that shows up on the screening panel as positive may be due to a perfectly legitimate medication prescribed by your physician, or an over the counter medication comes up as positive for those unacceptable positive readings such as barbiturates, due to the components of the medications taken.
Because this is a serious allegation, you need to retain a nurse attorney or other attorney in your state who can defend you against these allegations. He or she will need to have factual information about your medical situation and any medications you were taking at the time of the test, how the test was obtained, and the reasons the test was done (for cause, random), in addition to other information.
The attorney may be able to resolve this matter informally (e.g., a pre-hearing conference) or the allegations may be formalized in a complaint. If the latter is the case, you would have a hearing to determine the evidence presented to a hearing officer. Each hearing is governed by the state's nurse practice act and administrative statutes and rules and therefore differs somewhat in each state.
The hearing is much more involved and requires witnesses, sworn testimony and the burden of proof must be met by the BON; that is by "clear and convincing evidence" for example, that the allegations are true. If you can prove, by a preponderance of the evidence, for example, the allegation is not true, then the hearing officer rules in your favor. If you have an adverse ruling against you, the hearing officer's decision can be reviewed in the state's judicial system through what is called a judicial review.
Cordially,
Nancy
