Words of Wisdom From a Defense Attorney, Our guest: Laura Iosue, Iosue Law, LLC
She says she is an acquired taste. She has won me over, and I think you’ll find what she shares valuable. Laura Iosue, a prosecutor turned defense attorney, offers advice and shares many insights with us. Her passion is impossible to miss as she gives us perspective into an area many of us have no experience in. Join us as we talk about the legal system and what that could look like for healthcare professionals with a SUD.
Terri
Welcome back, listeners, to Diversion Insights. Today my guest is Laura Iosue, but before we get that started, I want to thank our sponsor, IMI. IMI is an American medical device manufacturer specializing in devices that enhance the safety of medication from the pharmacy to the patient. Creating products for the compounding pharmacists is their sole focus, and as a result, their customers experience the quality, service, and value only a specialized partner can offer. Laura is an experienced litigator with 30 years of experience. Some of the areas of her practice are now focused on professional and attorney discipline and licensing and criminal defense. And as such, she works with healthcare professionals who have actions against their license, diversion, falsifying records, et cetera. But she can tell us better what types of cases she sees, so I’m going to let her do that.
Welcome, Laura. I am very much looking forward to our interview today. One is because I just love your personality, but two, I think you’re going to give us insight and a different perspective on those who have a history of substance use disorder.
So welcome, and I’m really looking forward to it. Start by telling us a little bit about you and why you transitioned into this type of law.
Laura
Well, I appreciate your kind words about my personality. I have learned that I am an acquired taste. Either people love me or they’re like, oh, my God, she’s too much. But whatever, it’s fine. I’m comfortable with that. But thank you for having me very much. So my history is I’ve been practicing, like you said, for 30 years, which I honestly can’t believe. But I started off as a public defender. I had two years in Wisconsin, right out of law school. I went to law school at DePaul in Chicago, two years in Wisconsin. Then when I got married, I came down here to Indianapolis. I was in the public defender office here for two years. From there I went to oh, I had the PD office here. I started off in low level felonies and then did major felonies. Then from there I went to our Indiana Supreme Court Disciplinary Commission, which is the body indiana that investigates and prosecutes allegations of misconduct against lawyers there for 13 years.
Laura
And then I left there and I went to the Attorney General’s office where I was heading up the section at first half of the medical section. And then over time, it became the whole section doing the same thing that I did at the disciplinary commission, investigating and prosecuting allegations of misconduct against medical professionals. And there was a smattering of others and other professionals in there too. And so I was fortunate enough to lead that division and be able to train that division. So then I left there and I wasn’t sure what I wanted to do, and so I decided I was going to go out on my own, and so that’s what I did. And now I defend attorneys and other licensed professionals when they do have an action against their license. And obviously, as your listeners know, there’s very often crossover between a licensing action and criminal cases.
Laura
Unfortunately, I also do Chins and TPR cases, which indiana is when DCs department of Child Services is involved in a case. And then I also do as a public defender contract, which I’m still very proud that I serve as a public defender. Just as a contract, I represent those who are in jeopardy of civil. That’s that’s. Yeah. And Terry, listen, if I get a little too talkie, stop me.
Terri
Okay. All right. Now all that was so you kind of flip sides then, right?
Laura
You went yeah, I feel like I kind of came home, right. Started off doing criminal defense, and then I feel like I came home.
Terri
Okay, all right. And so what are you seeing, being on that opposite sides.
Laura
When it comes to a healthcare professional prosecuting, and now you’re defending. So I think that the biggest thing that I knew that I have learned is that you know, no one as a child says, you know what? When I grow up, I’m going to be an addict. No one says that. No one says that. And I knew that before. I knew that when I was prosecuting cases.
Laura
I mean, that seems obvious, but what I didn’t know was the level, the depth, the pervasiveness, and the continuous trauma that people endure as children and then into their adulthood and how that leads to substance use disorder. I had no idea. I grew up very fortunate. I grew up in suburban Chicago, and my parents were married until I was, like, 19, and we never lacked for anything, probably to the other end. And while I understand I I knew, right? I mean, as you know, obviously, if I always went if I originally went into the defense, I knew that, but, boy, I just did not know.
Terri
Do you think if you had realized that earlier on, it would have made a difference when it came to the prosecution? I mean, obviously, that’s your job. I mean, your side needs to win.
Laura
I absolutely disagree with that.
Terri
Okay.
Laura
I don’t think your side needs to win. I think as lawyers, I think I might get myself in trouble with this, but sometimes you see young lawyers who that’s their mentality, and I don’t think that’s what we’re here to do as lawyers. I really if I don’t know if you ever went to my website, Terry, but I had an uncle who, when I was growing up, who was like, he was a lawyer in Elgin, Illinois, which, know, not really small town, but whatever, he did a little bit of everything. And when I was either graduating law school or just after I passed the bar, he said to me, always remember, there’s more than one reason they call you counselor. And I have never forgotten that. Never. And early when I was a public defender, when that CBS show 48 Hours really was 48 Hours in the life of whatever they did, one on New York public defenders.
Laura
And I remember one of the practitioners there saying, you know, I do this because if it’s not me, it might not be somebody else. So there’s a big part that is about just listening. And so when I was at the Attorney General’s office, which I should say in most states for medical professionals, it is the board itself that has a staff of investigators who, when a consumer complaint comes in, they investigate the case and decide about whether or not they’re going to prosecute it. In Indiana, it’s not like that. In Indiana, the case goes, a consumer complaint goes to Attorney General staff, then investigates and makes a determination about whether a formal administrative complaint should be filed in front of the board. Okay, so when I was at the Attorney General’s office over that division, I thought that our duty. We had three prongs that we had to do. The first was certainly to protect the public from an unsafe practitioner. But the second was to protect a practitioner from an unfounded grievance. And the third is sometimes just to make people feel heard. Like, even if I can’t do anything for them, by the time that they get to the point that they have figured out how to file a complaint against someone, even if you can’t do something, they need someone to say, yeah, I hear you, and that’s terrible what happened to you, or whatever. So, again, I realize I’m being a little long winded, and I’m sorry for that, but I think it’s really important to say I don’t think it’s about winning.
Laura
I think it’s about doing the right thing. I guess I said that 23 minutes ago.
Terri
No, that makes sense, and that gives us good insight into that, too. So when a case ends up to the point where it’s in court or needs a lawyer, I’m guessing that’s kind of a whole nother level, right. So once it gets that far, what is the process and procedure that you and the healthcare professional need to go through to get that license back?
Laura
Well, there’s two things that happen, and it’s not automatic that the practitioner is going to lose their license.
Laura
In some cases, yes. In Indiana, we have what is called a summary suspension, which is like an emergency suspension. So what that is here indiana is it is a non final order where the Attorney General would file a petition for summary suspension alleging that the person poses a clear and immediate danger to the public if they are allowed to continue to practice. And so, for instance, let’s say a pill mill case. Okay, so you have a doctor or a nurse practitioner or even a pharmacy that is a pill mill. Well, those cases take a very long time to investigate.
Laura
You have to get what we call here, inspect the database that the pharmacy has. You got to get that for the practitioner and for the patients. And then there’s just so much that goes into it. You got to get the medical records for the patients. I mean, it can take over a year, right? And particularly, at least here indiana, there’s not a whole police department doing it. Sometimes you might have the know, and sometimes the complaint might come from the police, but generally it doesn’t. I mean, generally, at least when I was there, you figured it out, like, boy, we’re getting a lot of complaints about this person, and then you owe all right, so in that instance, you don’t want that practitioner to continue to practice and pose a risk to patients if they continue to practice. So basically, you’re saying to the board, listen, we don’t have enough to do something right now, but we would like a summary suspension of this practitioner’s license.
Laura
And indiana, it goes for 90 days, and then you have to renew it. The other time that might happen is if the practitioner has criminal charges pending. Because in that situation and I feel like I didn’t really answer your question, but in that situation, if they have criminal charges pending, they’re very limited in what they can say in their response to the investigation, because their Fifth Amendment right is still there. And so you don’t want to get out ahead of the criminal, because the burden of proof is higher. Sometimes if a person has criminal charges pending, sometimes they would file a petition for a summary suspension until the criminal charges are resolved, and then, you’ll know.
Terri
One way or the other, what has to happen.
Laura
Okay, so there’s a couple of different things about that. Generally what happens is and this is not just indiana an informal complaint is filed, whether in your state, if it’s the board, or indiana, it would be with the Attorney general’s office. The practitioner is notified that there has been a complaint, and you have an opportunity to respond to that complaint.
Laura
I believe that you should have a lawyer in that situation. Now, obviously, I am a lawyer, so I’m a little biased. But you do want to be careful what you say, because there might not be criminal charges already pending, but you don’t want to trigger criminal charges to be pending, like saying, I did it, I stole a bunch of drugs, and here’s how I did. I mean, certainly you need to be cognizant of that. So I think that there is a way to say, here’s my response, but not address the ultimate issue, right, of diversion or whatever. Once whoever it is that does that investigation, they’re going to investigate it. So let’s say that it’s a diversion. Allegation the investigator is obviously going to take the response, but they’re going to get the records from wherever the person is accused of diverting from, whether it’s from the hospital.
Laura
They’re going to get the employment records. They might get patient records to know, oh, did Susie Smith only need morphine when Nurse Steve was on? Right, was working that day? And they might get the Pixis records and compare Pixis records to how much did this person dispense, how many overrides did that person have as opposed to every other person in the hospital? So they’re going to get all of that. That takes time.
Laura
At the completion of that investigation, then, whether it’s the staff of the board or the AG, they’re going to make a decision about whether or not formal charges should be filed against the person’s license. In Indiana, that is the first time anything and I would imagine in other states that’s the first time anything is public. Prior to that, it is completely confidential. And the reason for that is because at least when I was at the AGS, like 60% of the consumer complaints that came in were dismissed. Well, I think that’s about what it was. I mean, I’m not entirely sure, but I feel like that’s what it was. And the reason for that is that anybody can file a consumer complaint at any time, right. We have what I affectionately call Jerry Springer complaints, where you would know, may God rest his souls, poor Jerry Springer.
Laura
But in any event, you might have ex girlfriend file a complaint against ex boyfriend’s new girlfriend. There’s nothing to it. That’s why it’s private. So when an actual formal complaint or that petition for summary suspension that I talked about is filed, that’s when anything becomes public. What’s going to happen then is that it goes like any other case. You can either settle it for an agreed disposition or you can have a trial. It’s at that point that if you agree to a suspension or you have a trial and the board decides to suspend the license, that’s when you start talking about getting the license back. Okay. Does that make sense?
Terri
Yeah. So it sounds like one of the things I was going to ask you is when should somebody engage a lawyer? And it sounds like it’s when the licensing board reaches out to you and says, there’s been a complaint filed before you even respond to them, I didn’t do it, or what’s it about? That’s what your recommendation would be.
Laura
Yes, I believe so.
Terri
What about if somebody is working at a healthcare facility and they do have a substance use disorder and they are diverting and they know it, they haven’t been found out yet, or at least they don’t think they’ve been found out yet. And they’ve decided that they want help and they want to confess and go to their employer and tell them, and I need some leave. I need to go to recovery. I guess they could just not say anything to the employer. They could just say, I need some leave. That probably would be the best thing, I would guess. But if they did say something or if they’re hearing that the facility is on to them, they’ve got a tip and they’ve decided now that they are going to go confess and say, I need help, would you suggest that they engage a lawyer before they open their mouth at that point?
Laura
Well, there’s two things. Whether the person is going to confess or they’re pulled off the floor and brought into the dreaded room. When you walk in, NHR is there and loss prevention is there and all that. It’s a really tough call. I used to say I don’t know that. I actually used to say to go, yeah, go ahead and confess because then you’re being honest and that will help you later. But I have recently had several cases where the person did exactly what you’re talking about. They did go in. They had a great relationship with their supervisor. It told their supervisor what was going on. Sometimes the supervisor said, I kind of suspected, right? But the concern is what happens after that? So I have a case you and I were recently talking about this. I have a case right now where I have a nurse who did just that went to said, I need help, went to a facility here indiana called Parkdale, where I believe it’s run by Rachel Garcia.
Laura
I think you’ve done podcast with him. He’s a wonderful, amazing person. But went there, but then the consumer complaint was filed and ultimately that person has criminal charges pending in two counties, and it is run by it’s being prosecuted by Medicaid Fraud Control Unit and instead of by the local prosecutor. Sometimes that can happen. And so that client has been doing everything right for two years, and that client has remained sober and did inpatient, did IOP, did aftercare, has done everything they can. And I think that client is now looking at a felony conviction. And if it’s a felony conviction, then that client it’s a mandatory exclusion from Medicaid and Medicare, from the Department of Homeland Security. A felony conviction will very often, unless paperwork gets lost, right. Unless you get super lucky.
Terri
They’re done. In terms of practicing medicine, five years.
Laura
Okay. If the person has a felony conviction that relates to controlled substances, it is a mandatory exclusion for five years. However, a misdemeanor conviction is a permissive exclusion, meaning they don’t have to be excluded. You would have the same process of having the opportunity to respond and all of that, but it’s only three years.
Terri
Is it safe to assume this particular client I mean, they admitted so you would think that would count for them, but they’re still in trouble. And obviously fraud in terms of charting, I’m guessing, right. Was what they did over and above. So egregious, or is this what happens anytime there’s charting fraud, if that’s what’s going on?
Laura
One of my frustrations is that there is a lack of consistency, at least from my perspective, what I have seen, and it depends on as far as criminal charges go. Of course not in every case is the person criminally charged.
Laura
Sometimes it doesn’t go to that level. But in cases where there is a criminal charge, my client is really at the mercy of that county prosecutor or if the county prosecutor referred the case back to the Attorney General Medicaid fraud control unit. And they have certain policy decisions. So I have had clients who are in similar situations, and some of them have gone to drug treatment court where if they’re in a very intensive program, it’s like super intense probation and super intense aftercare, where they’re screening and all of this to help them with their sobriety. And at the end of whatever the period of time is, they have completed the program successfully, their case is dismissed, completely dismissed. But then I have other cases that are very similar and that person is facing a felony conviction and at least the end of their career for five years unless we can after a year, get it reduced to a misdemeanor.
Laura
It’s very frustrating because the other thing that is so difficult is that when someone is new into sobriety and hopefully, and full disclosure, I don’t have a substance use disorder, but I know people who do, obviously, and I slept at a Holiday Inn Express last night, but whatever. Okay, the young kids don’t get that joke, but look at Google it. But anyways, I completely lost my train of thought. It’s very frustrating.
Terri
Yeah, the consistency and lack of consistency.
Laura
And they’re completely at the mercy of that prosecutor.
Terri
Yeah, no, I wonder if those prosecutors are the ones that believe they have to win at all costs, and have no insight into it.
Laura
I don’t know. And sometimes I think it comes from higher ups policy and federal funding policy. I don’t know the answer. And certainly I do have to preface the whole thing by saying these are just my opinions and frustrations that I see on this end. Oh, I know what I was going to say now, but certainly any prosecutor absolutely has prosecutorial discretion. I mean, they can do whatever they want, and it’s their electorate who needs to be informed and decide if they think those policies are right.
Laura
So they most certainly have the right to prosecute or not prosecute and offer some kind of a make a plea offer or not make a plea offer. That is their right. It’s my job as the defense attorney to try to protect my clients interest as best I can. Now, what I was going to say before. Is that when my clients are new into sobriety, or even if they’re not, accountability is a big part, and it’s a big part of getting sober. And so it’s a challenge because, well, what does that person say? What do they reveal? They have to balance their needs for if they’re working steps, because for years, by the time somebody comes to me well, that’s really not true. Most of the time, though, they’ve been struggling for a long time. Yes. And sometimes not. Sometimes, as I’m sure you know, it happens that fast.
Laura
It’s four months. They ended up with ten years of addiction in four months or something.
Laura
But they’ve been lying and manipulating others and hiding things for so long that coming clean feels good, but unfortunately, our legal system may not say anything.
Terri
That makes sense. Yeah, I didn’t think about that. The need to get it off like I’ve been caught. Okay, let me get it off my chest, but don’t say anything that’s going to incriminate you and end up in trouble.
Laura
Correct. It’s a very fine line, and that’s why I say let the lawyer worry about that. You dump it all out on the lawyer.
Laura
Well, then it’s up to them to figure out what to do. Now, I have a client where something happened, where this client has been sober for years now, but there’s a different issue that came up. It’s completely separate, and it’s kind of a one off sort of a thing. And I called that person and I said, how do you want to handle this? Because I know this is the conflict for you, but as a lawyer, I need to let you make this decision. And that client said, well, I need to be doing the next right thing. I need to be doing the next right thing. And I said, well, you think about it and then get back to me.
Terri
If you do the confession writing. Interesting. Yeah, I hadn’t thought about that. Okay. Are you finding that facilities are also being held accountable for diversion type related incidences? Some hospitals, I think, have fabulous programs, and we can’t prevent everything. So we do our best to mitigate, and then we do our best to catch things right away if it happens. And so things get through. But other hospitals, they’re not even looking. So are you finding that facilities are being held accountable in any way when one of these cases comes forward?
Laura
I don’t know that I actually am the best person to ask for that, because I represent practitioners, I don’t represent hospitals.
Terri
You’re not really hearing about something else that might be going on related to the case?
Laura
Not really, no. Hospitals are going to be represented by some huge firm, and I am not that, and I don’t want to be that.
Terri
That’s not part of your strategy to say, hey, let’s split the responsibility here. We need to bring the facility?
Laura
Yeah. There are times that I’m like, are you kidding me? How was this allowed to go on for so long? And particularly when I was at the was, there was a case there that I was shocked by. But indiana, the AG. Doesn’t investigate the it’s. I think the department of health does, but pharmacies, right? So if there’s a pharmacy within the hospital, the AG would investigate. But again, those are going to be investigated by or represented by large. And I’m not it’s you know, just.
Terri
So is there anything? You mentioned all of the things that the process that they would go through getting all the automated dispensing machine records and medical records and all of that kind of stuff. Is there anything that you find yourself wishing that the people or person in charge of gathering all that evidence that led to the suspicion and started this whole ball rolling had included in that information? From your perspective when it comes to the defense side?
Terri
Whenever I am doing an audit, I try to be as non biased as possible. If I’m finding something in the data that is like, oh, that’s bad, but then also, oh, but everybody else is doing this, or they also do this. Sometimes that is good. I mean, it’s not bad.
Terri
And I try to just put that whole thing together. So is there anything that you find yourself wishing, man, I wish they had done this, or going back and asking, hey, can you give us this information.
Laura
Or tell us this? The biggest thing that I find is that the person investigating often does not have any idea what it’s really like on the floor. And so I have had several cases, and I have to apologize. I’m getting over laryngitis that I can’t believe I still have. And so I’m a little self conscious of it, but it’s just your sexy voice. Brenda Vicaro also something the kids don’t you know, there’s a they we hear about the nursing shortage. The nursing shortage. I’m not convinced there’s a nursing shortage. I think that there is a lack of will to pay nurses. What I see are incredibly overworked nurses, particularly during COVID who have six highly acute patients, and they’re running all over trying to care for them. They don’t have time to go to the bathroom. They don’t have time to eat.
Laura
And so if you don’t have time to go to the bathroom, guess what? You might not chart everything that needs to be charted. And that is, I think, critical for loss prevention or diversion investigators to understand, go do a ride along, which someone called that to me, they said it the other day that they’re doing ride alongs now. Go see what it’s really like on the floor so that you can really understand. Is this a charting error or is this diversion, right?
Terri
Well, then that’s where the partnership with the nurse manager comes in really handy, too. But you have to be able to trust the nurse manager that it’s not just a whole bias thing and they refuse to see it, but that they’re really giving you an accurate assessment of “Oh, yeah, no, this is reality.”
Laura
But sometimes the nurse manager’s hands can be tied because most, in my experience, the nurse manager knows that the nurse is completely overworked. And I believe it’s still just the case indiana. I could be wrong that we don’t have nurse to patient ratios. Yeah, I think that’s still the case. And so I can’t imagine that the nurse manager is like, oh, no, it’s fine. You can take care of seven highly acute patients by yourself.
Terri
Well, you got to do what you.
Laura
And so I would imagine that the nurse manager has already been thinking the same thing. But you know what? The nurse manager wants to keep their job, too. Yeah.
Laura
They can tell their supervisors, hey, we need more staff. We need more staff. We need more staff. Well, tell me something I didn’t know. That’s a larger problem. I mean, that’s a systemic problem.
Terri
Yeah, that’s good and I guess that’s something important for those doing the investigation to understand what their ratios and what all of that is in their states, too, because that plays into how you approach things. Okay, yeah, no, that makes sense. All right.
Laura
That we have these signs outside the hospitals. Heroes work here. Oh, the first responders. It’s National Nurses Week. That’s lip service. I mean, it is if we’re not going to support the nurses and instead say, well, here’s more. Oh, you injured your back moving a client, and now you have all these problems. That’s all lip service. And it frankly makes me crazy.
Terri
Yeah, no, I hear what you’re saying. Yeah, I agree with you. We need to take care of our people.
Laura
Why are they heroes? Why do we say that? We say that because they’re the incredible stress they’re under, how hard they’re working, their physical, the impact on their bodies, the trauma that they see, and they keep on going out. Right. Particularly, again, during COVID where they were not only the nurse, but they had to be family. They had to sit there and watch people die by themselves. I’m about to cry. It’s awful. But yet when that nurse succumbs to the very stress that they are put under repeatedly, and that manifests in a substance use disorder, we say, well, guess what? Now you’re on the OIG exclusion use list, and you can’t practice where Medicaid or Medicare really? Right. Screw it. You’re going to get a felony conviction.
Laura
Like what? That just seems so fundamentally wrong to me. Look, and I’m also not saying that people should get a pass, right. Obviously, they should not get a pass. Okay. Did they break the law? Yes. Did they, in theory, put patients at risk. Possibly. Okay. Did they do it? Absolutely. But if they’re doing what they need to do and they have gone to treatment and they’re working their program and they’re doing what they need to do, guess what? They already know they did something wrong. They’re already paying the price because their lives have been turned upside down because they left their families for a month to go to treatment. Then they did IOP for six weeks, 3 hours a day, five days a week.
Laura
Then they have aftercare. Then they’re going to three meetings every single week, at least. And a lot of these people have kids, and they have basketball practice and soccer and ballet and all of this. Well, you try to figure out how to navigate that while you have to go to three meetings a week plus go to therapy, monitoring yeah.
Terri
And kick the disease. They’ve got all that going on.
Laura
And again, I’m not saying they should get off scot-free. They shouldn’t. They should be put on probation for violating the Nurse Practice Act if there’s criminal prosecution. We don’t have a better mechanism for that at this point. And they did break the law.
Laura
But I think there has to be some balance in the fact that these people put themselves on the front lines every single day, and when they succumb and they see things that I could only imagine. Right. I mean, someone that I know recently just had a compound fracture in their arm, and somebody tells me that, and I’m like, Right. I mean, I can’t even imagine looking at somebody’s bone sticking out of their arm.
Laura
So the trauma that these people are engaged see every single day, and they succumb to that, and it just doesn’t right.
Terri
Yeah. Accountability with compassion.
Laura
I love that. Yes. Can I use that?
Terri
Yes! It’s right, though. You need them both. Not scot-free, but not ruin their lives. Let’s throw some compassion and mercy in there.
Laura
And some people got it. Some people, they did it, and they went to drug treatment court, and they’re now so that’s what seems so unfair.
Terri
Not consistent, and it’s kind of a crapshoot. It sounds like what you’re going to end up with.
Laura
Exactly.
Terri
Yeah. Do you have any suggestions or things that you would like to say to those involved in the intervention of a suspected diversion case? You’re going in, you’re going to face this person and sit them down and ask them those pointed questions. Is there anything that you want to say to those that are involved in that intervention?
Laura
Well, from a legal perspective, I guess it’s exactly what we just said. Just exercise compassion and the other thing here is that at least one of the hospitals here indiana, they have a great EAP program, and they’re great about second chances and rehiring the person and obviously monitoring them and all of that. And I so appreciate that facility, but I think and of course, you can’t do that in every situation. Right, I understand. So one size doesn’t really fit all. I don’t know that I really have anything other than that just to compassion, because, again, nobody thought, oh, yeah, I went to school to get my nursing license or my pharmacy license and all of this, and I’m going to end up with a substance use. Nobody wanted that, right?
Terri
Yeah, agreed. Okay. All right. Well, all of this was great, and I can only imagine that your clients are in good hands. You’re very passionate about what you do. I think they’re in good hands. Some of it’s out of your control obviously, but I can see you giving everything you’ve got to every case that you have. So thank you for the work that you do and for taking the time today to talk with me. It was very insightful.
Laura
Thank you for having me.
Terri
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