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To Test or Not To Test: Considerations in Establishing a Hospital Drug Testing Program Association of Washington Public Hospital Districts Washington State Hospital Association Presenters Julie L. Kebler Chair Employment, Labor and Immigration Practice Group Foster, Pepper & Shefelman PLLC Taya Briley Director Legal Affairs and Clinical Policy Washington State Hospital Association Dick Goldsmith Director Legal Services and Health Policy Association of Washington Public Hospital Districts Webcast Outline • Reasons for drug testing • Alternatives to drug testing • Legal issues affecting testing • Elements of a drug testing program • Tips for starting a program Drug Testing: Investing in Bad Economics or Solid Quality Services? Reasons to Test • Ensure quality healthcare • Improve efficiency • Comply with federal regulations (if applicable) • Protect and enhance public image • Control insurance costs • Discourage applicants who use drugs • Avoid negligent hiring and retention claims Alternatives to Drug Testing • Substance abuse policy • Medical staff by-laws • Contracts with physician groups Substance Abuse Policy: Key Components • Cover drug and alcohol use • Go beyond “being under the influence” • Focus on job performance • Include “smell of alcohol” • Address the theft of drugs Legal Issues Around Testing • Public sector employers • Private employers • Union bargaining Legal Issues: Employers • Public sector employers – Washington State Constitution – “Public safety” positions – Pre-employment testing – Post-hire testing: “reasonable suspicion” • Private employers – “Unreasonable testing” Summary: Employer Legal Issues Testing Public Sector Private Pre-employment “Public safety” positions only Yes—must not be discriminatory Post-hire: random testing Probably not Yes—avoid “outrageous” or “discriminatory” actions Post-hire: Testing when suspected use Yes—If “reasonable suspicion” Legal Issues: Union Bargaining • Pre-employment testing: public sector and private employers – No duty to bargain • Post-hire testing: public sector and private employers – Duty to bargain Elements of a Drug Testing Program Threshold Questions • • • • Who to test When to test What to test What to test for (drugs and thresholds) • Where to collect specimens • Selecting a testing laboratory • How to choose a Medical Review Officer (MRO) Who to Test: Potential Testing Groups • All job applicants • All current employees • Certain employees “Best Practices” Tip: Remember to include management! Allegations of Discrimination • Federal Civil Rights Act • National Labor Relations Act • Americans with Disabilities Act (ADA) • Washington Law Against Discrimination Overview of ADA: Drug Use “Individual with a disability” status Does not apply to person currently using illegal drugs Employer can prohibit use in Yes—if use is illegal the workplace Employer can test Yes—if use is illegal Standards of job performance and conduct Employers may require users to meet the same standards as other employees Discrimination prohibited Against person with history of drug addiction who has been rehabilitated and is not currently using drugs Overview of ADA: Alcohol Use “Individual with a disability” status An alcoholic Employer can prohibit use in the workplace Yes Standards of job performance and conduct Employers may require users to meet the same standards as other employees When To Test • Pre-employment • “Reasonable suspicion” • Post-accident • Random unannounced • Periodic announced • Return-to-duty (“follow-up”) Pre-Employment Testing • Most cost-effective • Restrictions: – Washington public employees: Public safety positions – ADA • No pre-offer medical inquiries and examinations allowed • Blood alcohol test = medical examination (Equal Employment Opportunity Commission) “Best Practices” Tip: Test for drugs and alcohol after offer is made. “Reasonable Suspicion”/ “For Cause” Testing • Constitutional – First-hand observation of performance, behavior, speech or odor OR – Hearsay provided by reliable and credible source OR – Hearsay independently corroborated • Key Concerns – Level of training for supervisory personnel initiating testing – Repetition of training Post-Accident Testing • After occurrence of personal injury or property damage • Define “trigger”: level of severity of injuries/damages that result in testing Remember: In union negotiations, all topics are subject to mandatory bargaining. Random Unannounced Testing • “Neutral” selection process • Most effective for deterrence and detection • Drawbacks: time-consuming and expensive Not recommended for public sector employees: Invitation to an immediate lawsuit. Periodic Announced Testing • Commonly used for senior management • Of questionable value Concern: No definitive decision on constitutionality of use by Washington public sector employers. Return to Duty/ “Follow-Up” Testing • Periodic and unannounced • Employees who have: – Tested positive for drugs AND – Participated in a treatment or counseling program AND – Resumed employment on condition they abstain from further drug abuse What To Test • Breath • Blood • Urine • Head hair • Oral fluids • Sweat Breath • Measures current blood alcohol level (BAL) • Shortcoming: shows only recent use (current impairment) Blood • Measures current and chronic alcohol abuse • May require balancing of privacy interests • Considerations: most invasive and expensive collection process Urine • Measures current and long-term drug use • Most commonly-sampled – Ease of acquisition – Accuracy of test Urine (continued) • Approved types of testing – Immunoassay • Quick • Shows metabolite – Gas Chromatography/Mass Spectrometry (GC/MS) • Drug-specific and sensitive • Detects minute traces and use within 30 days • Shortcoming: expensive • Ability to detect: affected by drug, dose, frequency of use, and “individual chemistry” Head Hair Samples • Measures drug use within past 90 days (much longer period than urine, oral fluids, and sweat) • Easily collected, transported and stored • More difficult to adulterate than urine Oral Fluids • Less accurate for marijuana • Shortcoming: when testing for marijuana must also collect another type of sample (for example, urine) Sweat • Collected with wipes or patches • Shortcoming of patch – “Window of detection” only as long as patch remains on skin Notice of Proposed Federal Rulemaking • Revise Mandatory Guidelines for Federal Workplace Drug Testing Programs (notice published on April 23, 2004) • Establish guidelines for testing head hair, oral fluids and sweat for drugs • Submit comments to U.S. Department of Health and Human Services (by July 12, 2004) Recommendation: Consider using head hair methodology if guidelines are put into place. Basic Testing: Commonly-Screened Drugs • Amphetamines • Cannabinoids • Cocaine • Opiates • Phencyclidine (PCP) Extended Testing • Barbiturates • Benzodiazepines • Ethanol • Hallucinogens • Inhalants • Anabolic Steroids What To Test For: Types of Drugs and Thresholds • Cutoff levels • “Ability to detect” variables – Frequency of use – Type of specimen – Testing method – Metabolism – Other factors Initial Drug Cutoff Levels: Urine Samples Drug Initial Level1 Amphetamines 500 Amphetamine Methamphetamine MDMA MDA MDEA Confirmatory Level1 250 250 250 250 250 Cocaine metabolites 150 100 Marijuana metabolites 50 15 Opiate metabolites 2000 2000 2000 10 Morphine Codeine 6-acetylmorphine Phencyclidine (PCP) 1 25 25 Nanograms per Milliliter (ng/ml). Source: Mandatory Guidelines for Federal Workplace Drug Testing Programs Where to Collect Specimens • On-site (workplace) • Medical clinic • Testing laboratory Selecting the Laboratory: What You Want • Certified – U.S. Department of Health and Human Services – College of American Pathologists – State Department of Health • High ratio of supervisors to staff • High level of security • Open, blind and double-blind quality control specimens Selecting the Laboratory: What You Want (continued) • Written chain of custody process • Use of bar coding • Specimen storage time • Contract – Test procedures – Indemnification Medical Review Officer (MRO) • Responsibilities – Review and interpret “positive” test results – Examine alternate explanations for results – Review chain of custody documentation – When employee denies illegal drug use • Review medical records • Examine for clinical signs of drug abuse • Review recent prescriptions or treatments (if appropriate) Medical Review Officer (continued) • Qualifications – Licensed physician – Knowledge of substance abuse disorders – Certification and education – No current federal or state certification – Proposed federal regulations: training and exam • American Association of MROs (www.aamro.com) Program Start-up Tips • Policy development • Administrator/supervisor training • Communication • Implementation • Monitoring Policy Development • Involved parties • Determinations – Hospital position on substance abuse – Rationale for policy – Consequences of violations – Program administrator – Need for treatment • Employee Assistance Program (EAP) • State-run referral programs (physicians and nurses) – Confidentiality of records and test results Administrator/Supervisor Training – Policy – “Reasonable suspicion” guidelines – Confidentiality concerns – Reporting procedure for suspected violations Communication • Oral – Employees (before roll-out) – Applicants – New employees • Written – Acknowledgement • Periodic re-communication Implementation • Notice of phase-in (60-120 days before testing) • Concurrent drug awareness program • Employee feedback • Critical check: sufficient supervisory knowledge Monitoring • Policy implementation • Training • Laboratory performance • Confidentiality WARNING!!! Management’s failure to consistently adhere to the procedures of a high-powered, ambitious drug-testing program will be the source of endless litigation. Questions? Comments? Julie L. Kebler [email protected] (206) 447-6404 Taya Briley [email protected] (206) 216-2554 Dick Goldsmith [email protected] (206) 216-2528 Thank you for participating! Please fill out the evaluation.