Health care providers nationwide have become acutely aware of potential liability issues related to their employees diverting and abusing controlled substances. This liability played out in national headlines when a former Exeter Hospital technician was sentenced to 39 years in prison last year for causing an outbreak of hepatitis C. The worker stole syringes of painkiller from patients about to undergo surgery, contaminating the syringes with his infected blood before they were used on patients.
In an effort to address the issue, the NH Legislature enacted a law requiring all hospitals, home health care providers, outpatient rehabilitation clinics, ambulatory surgery centers, urgent care centers, nursing homes, assisted living facilities, adult day care centers, birthing centers, dialysis centers and hospice care facilities to adopt a written drug-free workplace policy by Aug. 25. Laboratories and collection stations (facilities that collect specimen samples) are not covered.
The Details
While most of these health care facilities likely already have alcohol and drug policies and required procedures related to the storage and dispensing of controlled substances, this law creates additional obligations.
The new law specifies what these policies must cover and to whom these policies must apply. Generally, drug-free workplace policies must establish procedures for the “protection, detection and resolution of controlled substance abuse, misuse and diversion.” These policies must apply to all employees, contractors and agents of a covered facility “who provide direct or hands on care to clients.” These policies must also designate an interdisciplinary team of employees to be responsible for compliance with the policy.
The law requires that a drug-free workplace policy address specific issues, including: education of workers; procedures for monitoring, storing, distributing and procuring controlled substances; procedures for voluntary self-referral by addicted employees; procedures for co-worker reporting; procedures for drug testing that include, at a minimum, testing where reasonable suspicion exists; procedures for confidentiality; procedures for investigating, reporting and resolving misuse and diversion; and the consequences of violating a policy.
Although the statute is a step in the right direction in terms of patient safety and protection, the Legislature has provided little guidance regarding how robust and detailed these policies must be for the various types and sizes of NH providers. The only insight provided by the Legislature is that providers have the flexibility to develop a workplace standard that is “appropriate to its size, the nature of services provided, and its particular setting.” This amorphous standard will inevitably leave providers questioning whether their existing policy complies with the law, or how they should go about drafting and implementing a new policy.
What it Means
While the law, RSA 151:41 (Drug-free Workplace for licensed health care facilities and providers) does not indicate the potential penalties for failure to comply, it is likely that failure to adopt and implement a drug-free workplace policy will result in the suspension or revocation of a facility’s license by the NH Department of Health and Human Services.
It should be noted that this law is not the same as the federal Drug Free Workplace Act of 1988, which applies to some federal contractors and all federal grantees. That law requires that covered entities will provide a drug-free workplace as a precondition of receiving a contract or grant from a federal agency.
While the titles and general provisions of these laws are similar, the entities that they apply to and their requirements are quite different. While some health care providers may also be covered by the federal Drug Free Workplace Act, compliance with that law will not satisfy the provisions of this state law. The federal law focuses on reporting of criminal offenses as they relate to employment or continued employment with an employer. The state law deals with the reporting of suspected misuse of drugs and other controlled substances, as well as testing of employees and related consequences.
Covered employers in NH should look at their policies and procedures to determine if they meet the requirements of this new law and if not, what they need to do before the law becomes effective later this month. Because of the potential serious consequences for missteps, risk management professionals and experienced legal counsel should be consulted.
James P. Reidy is a management lawyer and shareholder at the law firm of Sheehan Phinney Bass + Green PA in Manchester and moderator for NHLABORNET. Jason Gregoire is an attorney with the firm, practicing primarily in the fields of business litigation and health care. For more information, visit www.sheehan.com.
Current Issue - May 2024