Last session the New Hampshire Legislature enacted a new law designed to protect patients of health care facilities from the dangers associated with drug-use and drug-diverting by health care workers.  RSA 151:41, which was effective August 25, 2014, requires most health care facilities and  licensed providers to adopt a written drug testing policy which must also address the issue of diversion of controlled substances. This law affects facilities including hospitals, infirmaries or health centers of educational institutions, home health care providers, ambulatory surgery centers and many other medical facilities.

The stated purpose of the law is to establish procedures for the “protection, detection and resolution of controlled substance abuse, misuse and diversion.”  The policy adopted by the employer must apply to all employees, contractors and agents “who provide direct or hands-on care to clients.”

The appropriate policy will address:

• How the facility will educate workers regarding drug use;

• Procedures for monitoring, storing, distributing and procuring controlled substances;

• Procedures for voluntary self-referral by addicted employees and for reporting of abuse by co-workers;

• Procedures for drug testing, including, at a minimum, reasonable suspicion testing;

• Requirements for confidentiality and employee assistance;

• Procedures for investigating, reporting and resolving misuse and diversion concerns; and

• Consequences of violating the policy.

The Legislature did not provide a great deal of guidance concerning the meat of the policy, and employers, therefore, do have some flexibility in the type of policy they would like to adopt.  A medical provider must develop a policy “appropriate to its size, the nature of services provided and its particular setting.”  An infirmary at a college or university with just a few affected employees would likely adopt different policies and procedures than would a hospital with hundreds of employees providing direct care.

The law requires testing when there is reason to believe an employee is impaired, but policies may go further if the employer deems it reasonable.  For example, pre-employment or random drug testing may actually provide greater protection to patients, and testing of those who do not provide direct care may be important as well.

A drug test will identify a user of illegal drugs and controlled substances, and employers will need to decide the consequences of a positive test. Those options should be outlined in the employer’s policy, and employers should strive to be consistent in the application of discipline that results from policy infractions.  The statute is not specific about the potential penalties for a licensed provider’s failure to comply, but it certainly establishes a standard by which providers will be measured in terms of patient protection.