RD7 - Drug-Testing Policies in Certain Health Care Settings Study (SB 557)

Executive Summary:

Senate Bill 557, which was introduced during the 2000 Session of the General Assembly, would have required all health care providers who are regulated by the Board of Health to initiate drug-free workplace programs. The Senate Committee on Education and Health approved a motion to carry SB 557 over to the 2001 Session and to request a study by the Joint Commission on Health Care (JCHC) of the issues presented in the bill.

Based on our research and analysis during this review, we concluded the following:

• Substance abuse in the workplace is an important issue - eight percent of fulltime workers between the ages of 18 and 49 report use of illicit drugs and heavy alcohol use within the last month. The U. S. Department of Labor estimates that 71 percent of drug users over age 18 are employed (more than 10 million Americans).

• Three major pieces of federal legislation are relevant when considering drug testing of health care staff. These pieces of legislation include the Drug-Free Workplace Act of 1988, the Americans with Disabilities Act of 1990, and the Omnibus Transportation Employee Testing Act of 1991.

• The federal Drug-Free Workplace Act (DFWA) of 1988 requires federal contractors and grantees to establish a drug-free workplace program. The program must include employee notification of the policy that "unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the...workplace" and of the consequences of any violations of that policy. DFWA does not require the employer to complete drug testing on employees and there is no requirement to dismiss or fire employees convicted of drug offenses. (DFWA was referenced in SB 557 as a potential model for the Board of Health in designing its regulations.)

• The Americans with Disabilities Act (ADA) of 1990, prohibits employment discrimination that is based on an individual's physical or mental impairment. ADA includes protections for individuals who suffer from alcoholism or who are currently participating in or have successfully completed a drug rehabilitation program. Under ADA provisions, employers are prohibited from requiring job applicants to submit to medical examinations, including alcohol testing, although testing for illegal drugs is allowed.

• The Omnibus Transportation Employee Testing Act of 1991 requires certain transportation employers to conduct drug and alcohol testing of their "safety-sensitive" employees. However, the federal government has not established requirements for health care employers regarding drug-free workplace policies or employee drug testing.

• Although employee drug testing is not required in order to receive funding from Medicare or Medicaid or to receive accreditation by the Joint Commission on the Accreditation of Healthcare Organizations, most hospitals and nursing homes have adopted drug-free workplace programs.

• Courts have examined employee drug-testing programs conducted or required by the government to ensure that protections guaranteed under the Fourth Amendment to the U. S. Constitution are not violated. Drug testing "for cause" and for "safety-sensitive" positions has been consistently upheld by the courts. Random testing has been viewed as the most contentious type of testing. JCHC staff were unable to find any applicable court cases that specifically address drug testing for health care workers.

• Virginia has adopted the requirements of DFWA for all executive branch positions. In addition, DMHMRSAS, and the hospitals at VCU and UVA have employee drug-testing programs in place. The Virginia Health Care Association and the Virginia Association of Nonprofit Homes for the Aging reported that most of their members conduct drug testing. The Virginia Hospital and Healthcare Association and The Medical Society of Virginia indicated that their members have drug-free workplace policies and safeguards in place.

• Health care practitioners in Virginia are regulated by 13 health regulatory boards. Each of the boards has statutory authority to discipline providers for alcohol or drug abuse. The Department of Health Professions also has implemented the Health Practitioners' Intervention Program to assist providers with substance abuse problems. There were 563 providers participating in the intervention program as of July 2000.

• If drug testing is required as provided in SB 557, the Board of Health will need to promulgate policies to: (1) ensure adequate notice and employee privacy, (2) delineate disciplinary consequences and provisions for employees to contest results, (3) address allowable differences in testing requirements, and (4) include quality assurance provisions.

• Requiring health care providers to administer drug-testing programs likely would entail significant costs for some providers, and would incur additional costs for the Commonwealth in terms of monitoring and enforcement activities.

Public comments were solicited on the draft report. A summary of the public comments is attached at Appendix C.

Four policy options (pages 39 and 40) addressing drug testing by health care providers were identified for consideration by the Joint Commission on Health Care. The Joint Commission voted to "take no action," which is consistent with a recommendation that SB 557 not be reported by the Committee on Education and Health.

On behalf of the Joint Commission on Health Care and its staff, I would like to thank the Department of Health, the Office of the Attorney General, Virginia Monitoring Inc., the Department of Health Professions, the Department of Mental Health, Mental Retardation and Substance Abuse Services, Virginia Commonwealth University, the Department of Human Resource Management, University of Virginia, the Virginia Health Care Association, the Virginia Association of Nonprofit Homes for the Aging, the Virginia Hospital and Healthcare Association, the Medical Society of Virginia, the Virginia Nurses Association, the Virginia Pharmacists Association, and the other state agencies and associations who provided input and information during this study.

Patrick W. Finnerty
Executive Director
December 2000