Board, legislators vow fixes, but progress is slow
by: Jim Clark, State Sen. Avel Gordly has proposed legislation to create a nurse monitoring program separate from the nursing board.

Alycia Juber didn't intend to become an activist. There was a time she couldn't have conceived of doing what she now does nearly every day - attending legislative committee hearings in Salem, writing letters, testifying, knocking on the doors of state senators she knows are tired of seeing her.

But Juber, who believes a dangerous nurse was responsible for the death of her father and three other men at an Oregon nursing home nine years ago, can't let go of the fact that the Oregon State Board of Nursing knew about that nurse and could have stopped him from practicing.

And Juber says she can't let go because she believes the nursing board, the subject of a series of stories by the Portland Tribune one year ago and an independent audit by an outside consulting firm six months after that, still is endangering the safety of Oregonians by not adequately monitoring the nurses it oversees.

A year after the Tribune's series, nursing board executives, who declined to be interviewed for this story but responded to questions by e-mail, say they have made some changes over the course of the past year and more significant moves will follow in July when they have additional money to spend.

Legislators say they have made progress and still are working on the problems the Tribune stories and the audits brought to light.

But major changes in how the board operates have come slowly.

Last year's series found three areas with major problems:

• Nurses in the board's controversial Nurse Monitoring Program, which allows nurses with addictions and mental illnesses to continue practicing under increased supervision, were poorly monitored and sometimes were allowed to continue practicing even after they had stolen medications from patients.

• Complaints to the board rarely were investigated within the state-mandated 120 days, often leaving problem nurses practicing while their cases remained in limbo.

• Oregon Department of Justice attorneys and a Portland police officer said the board had blocked efforts to investigate nurses on possible criminal charges.

But even after the independent audit confirmed many of the allegations highlighted in the Tribune stories, the political process has been slow to respond:

• Major change in the Nurse Monitoring Program is wrapped up in proposed legislation that may not be acted on this session.

• The board will not have increased personnel to significantly increase the speed of its investigations until July at the earliest.

• Increased cooperation between criminal justice authorities and the board awaits hiring of the same personnel.

As far as Juber is concerned, more time isn't going to solve the problems.

'I believe there's been a continued cover-up of what's going on in the Board of Nursing,' she says. 'They are not doing their job to protect the public's safety, health and welfare. They are protecting the board and its members, and seemingly protecting nurses who might be a danger to the public.'

Bill would change program

The most significant change proposed for nursing board operations is encompassed in a Senate bill that may be too late for passage this legislative session.

Last week Sen. Avel Gordly, I-Portland, said she would sponsor a bill that would take operation of the Nurse Monitoring Program out of the hands of the nursing board, and require the board to contract with an outside entity to run it.

Many state nursing boards and the Oregon Board of Medical Examiners, which oversees physicians, currently operate in just the way Gordly's bill proposes.

They keep discipline in the hands of the boards, and separate from the people who run the programs that provide help to licensees dealing with addictions.

Many of the most egregious cases highlighted in the Tribune series involved nurses in the Nurse Monitoring Program. The independent audit of the program last summer cited high caseloads and inconsistent guidelines for staff among the problems that were resulting in 'minimal monitoring' of addicted nurses who remained on the job.

The board responded to the audit by implementing administrative changes to the program. The board is expected to make other changes in July, after it gets an infusion of additional money - from increased licensing fees - that the audit said it needed to properly do its job. It will use some of that money to hire a third program coordinator to help oversee participating nurses.

Those changes aren't enough for Gordly.

'There needs to be an independent nurse monitoring program,' Gordly said. 'The public has to believe that there is accountability and that there is transparency, and I don't believe that we're there yet,' Gordly said.

Sen. Bill Morrisette, D-Springfield, chairman of the Senate Interim Committee on Public Health, which took the lead in reviewing board policies in the wake of the Tribune stories, has agreed to co-sponsor Gordly's bill.

'It's doable,' Morrisette said. But he also said it is not likely to be done before the current legislative session recesses. Morrisette said if the bill was too late for passage this session, it probably would come back for consideration during a proposed special legislative session in February.

Investigations go slow

The Tribune stories also detailed the board's failure to follow up quickly enough on complaints made about nurses. Only three out of 10 complaints resulted in a completed investigation within the state-mandated 120 days.

The solution, endorsed by Gov. Ted Kulongoski, is the additional money, which will allow the board to hire a chief investigator. That money should be forthcoming - the Legislature this week is expected to pass a bill that gives the board permission to raise an extra $996,000 through the increased fees for the biennium.

But those funds will not be available until July. And the hiring of a chief investigator could take time - the board last year left two investigative positions unfilled for months.

Still, according to the board's most recent data, some progress has been made in expediting investigations. In 2006, four out of 10 investigations were completed within the required 120 days.

DOJ plays uncertain role

In the original Tribune series, Oregon Department of Justice Medicaid Fraud Unit attorneys and a Portland police officer said the board had blocked their efforts to investigate nurses on possible criminal charges.

After a subsequent review of the nursing board, Pete Shepherd, deputy attorney general, proposed that the Medicaid Fraud Unit attorneys hold meetings with the new chief investigator.

But with no chief investigator yet on staff, those meetings have not taken place.

Shepherd also suggested that the chief investigator have a criminal justice or legal background, rather than a nursing background like most of the current board staff. An e-mail from Barbara Holtry, the board's public information officer, said that is its intention.

For its part, the board says that it has increased staff training and is looking into other recommendations that came out of the independent audit.

But in Juber's mind, the Tribune series and the subsequent audit raised larger stories about who was responsible for the problems at the nursing board.

In fact, a year ago Juber told the Tribune the board's unresponsiveness in the wake of her father's death caused her to 'quit believing in our government.'

Anonymous letter arrives

But she has become re-energized, and may even have an ally. In October, an unsigned letter arrived at Morrisette's office from someone who claimed to work on the nursing board.

The letter's author said he or she had to remain anonymous: 'It has been made clear to Board staff that any independent contact with reporters or investigators will not be tolerated, and I am sure I would be terminated if my identity became known.'

The letter provided information on cases involving investigations of nurses that 'involved discipline ordered by the Board of Nursing but never carried out.'

The letter urged Morrisette to 'use this information to change the prevailing culture of the Board and Board staff, which seeks to preserve the public image of Nursing as a trusted profession at all costs, even if it means ignoring public safety.'

But Morrisette said he did not reveal he had received the letter to members of his committee or to anyone else in state government for four months. In January he forwarded the letter to the Department of Justice's Shepherd. Shepherd said through a spokeswoman that he sent the letter directly to Joan Bouchard, executive director of the nursing board.

The Tribune interviewed a number of Department of Justice attorneys, including Shepherd, for the March 2006 stories. But beginning several weeks ago, department spokeswoman Stephanie Soden said lawyers would no longer be available for interviews about the nursing board.

In an e-mail to the Tribune, Soden responded to questions about what happened with the Morrisette letter.

'DOJ did not investigate the allegations in the letter,' Soden wrote. 'Instead, DOJ immediately brought them to the attention of the agency responsible for addressing the allegations. The allegations involve misconduct by an employee of the Board of Nursing. That is the person or body that should look into the allegations.'

But Gordly, when told of the letter two weeks ago, reacted differently than Morrisette had. Saying she was 'shocked' by the allegations in the letter, she forwarded it to Kulongoski's office. Ree Sailors, the governor's health policy adviser, told Gordly she would follow up on the allegations.

Sailors said she has reviewed the cases detailed in the letter and has concluded that the board did its job. And within the next few weeks, Sailors said, she will privately interview board staff to investigate the letter's claims that staff members are not allowed to speak openly and that a dangerous culture exists at the board.

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