To Test or Not To Test:

1. To Test or Not To Test: Considerations in Establishing a Hospital Drug Testing Program Association of Washington Public Hospital Districts WashingtonState HospitalAssociation

2. 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 PolicyAssociation of Washington Public Hospital Districts

3. 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

4. Drug Testing:Investing in Bad Economics or Solid Quality Services?

5. 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

6. Alternatives to Drug Testing • Substance abuse policy • Medical staff by-laws • Contracts with physician groups

7. 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

8. Legal Issues Around Testing • Public sector employers • Private employers • Union bargaining

9. Legal Issues: Employers • Public sector employers • Washington State Constitution • “Public safety” positions • Pre-employment testing • Post-hire testing: “reasonable suspicion” • Private employers • “Unreasonable testing”

10. Summary: Employer Legal Issues

11. 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

12. Elements of a Drug Testing Program

13. 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)

14. “Best Practices” Tip: Remember to include management! Who to Test: Potential Testing Groups • All job applicants • All current employees • Certain employees

15. Allegations of Discrimination • Federal Civil Rights Act • National Labor Relations Act • Americans with Disabilities Act (ADA) • Washington Law Against Discrimination

16. Overview of ADA: Drug Use

17. Overview of ADA:Alcohol Use

18. When To Test • Pre-employment • “Reasonable suspicion” • Post-accident • Random unannounced • Periodic announced • Return-to-duty (“follow-up”)

19. “Best Practices” Tip: Test for drugs and alcohol after offer is made. 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)

20. “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

21. Remember: In union negotiations, all topics are subject to mandatory bargaining. Post-Accident Testing • After occurrence of personal injury or property damage • Define “trigger”: level of severity of injuries/damages that result in testing

22. Not recommended for public sector employees: Invitation to an immediate lawsuit. Random Unannounced Testing • “Neutral” selection process • Most effective for deterrence and detection • Drawbacks: time-consuming and expensive

23. Concern: No definitive decision on constitutionality of use by Washington public sector employers. Periodic Announced Testing • Commonly used for senior management • Of questionable value

24. 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

25. What To Test • Breath • Blood • Urine • Head hair • Oral fluids • Sweat

26. Breath • Measures current blood alcohol level (BAL) • Shortcoming: shows only recent use (current impairment)

27. Blood • Measures current and chronic alcohol abuse • May require balancing of privacy interests • Considerations: most invasive and expensive collection process

28. Urine • Measures current and long-term drug use • Most commonly-sampled • Ease of acquisition • Accuracy of test

29. 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”

30. 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

31. Oral Fluids • Less accurate for marijuana • Shortcoming: when testing for marijuana must also collect another type of sample (for example, urine)

32. Sweat • Collected with wipes or patches • Shortcoming of patch • “Window of detection” only as long as patch remains on skin

33. Recommendation: Consider using head hair methodology if guidelines are put into place. 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)

34. Basic Testing:Commonly-Screened Drugs • Amphetamines • Cannabinoids • Cocaine • Opiates • Phencyclidine (PCP)

35. Extended Testing • Barbiturates • Benzodiazepines • Ethanol • Hallucinogens • Inhalants • Anabolic Steroids

36. 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

37. Initial Drug Cutoff Levels:Urine Samples 1 Nanograms per Milliliter (ng/ml). Source: Mandatory Guidelines for Federal Workplace Drug Testing Programs

38. Where to Collect Specimens • On-site (workplace) • Medical clinic • Testing laboratory

39. 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

40. Selecting the Laboratory:What You Want (continued) • Written chain of custody process • Use of bar coding • Specimen storage time • Contract • Test procedures • Indemnification

41. 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)

42. 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)

43. Program Start-up Tips • Policy development • Administrator/supervisor training • Communication • Implementation • Monitoring

44. 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

45. Administrator/Supervisor Training • Policy • “Reasonable suspicion” guidelines • Confidentiality concerns • Reporting procedure for suspected violations

46. Communication • Oral • Employees (before roll-out) • Applicants • New employees • Written • Acknowledgement • Periodic re-communication

47. Implementation • Notice of phase-in (60-120 days before testing) • Concurrent drug awareness program • Employee feedback • Critical check: sufficient supervisory knowledge

48. Monitoring • Policy implementation • Training • Laboratory performance • Confidentiality

49. 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.

50. Questions?Comments? Julie L. Kebler keblj@foster.com (206) 447-6404 Taya Briley tayab@wsha.org (206) 216-2554 Dick Goldsmith richardg@awphd.org (206) 216-2528