1 Controlled Substance Testing NOTE: This is a sample. It is intended to assist providers with drafting a policy and procedure for their operations. This template includes a number of blanks and requires the Agency to carefully consider its plans. Purpose Because ("the Agency") is a licensed home health agency in Indiana, it is required, as a term of its license to operate as a home health agency, to implement a program to test job applicants and certain employees for the illegal use of controlled substances. Furthermore, because the Agency provides services to patients who may be frail and unable to care for their own needs and provides these services under programs regulated by state and federal laws, the Agency has a compelling obligation to eliminate substance abuse from its workforce. The illegal use of Controlled Substances by employees adversely impacts an employee s job performance, as well as endangers other employees, our patients and the general public. It is therefore necessary that the Agency maintain a work environment that is free from the effects of the illegal use of controlled substances by unlicensed employees who will have direct patient contact. Definitions Covered Applicant. As used in this and Procedure, the term "Covered Applicant" means an individual who is not licensed by a Board or Commission under Title 25 of the Indiana Code and who is applying for a position which will require the applicant to have direct patient contact. Covered Employee. As used in this and Procedure, the term "Covered Employee" means an employee who will have direct patient contact and who is not licensed by a Board or Commission under Title 25 of the Indiana Code. Randomly Selected Covered Employees. As used in this and Procedure, the term "Randomly Selected Covered Employees" means the Covered Employees who are selected at Random to undergo a Test for Controlled Substances. Test for Controlled Substances. As used in this and Procedure, the term "Test for Controlled Substances" means a test that utilizes a [blood/urine] specimen in a five panel test that test the specimen for the presence of amphetamines, cocaine, marijuana, opiates and PCP. [COMMENT: This is the minimum testing. An agency may choose to implement a broader testing panel, including alcohol testing. Most agencies will utilize urine sample testing, although testing companies may offer options that include blood tests and hair sample testing. Urine sample tests tend to be the most cost effective.]
2 TESTING PROCEDURES AND METHODS Controlled Substance Testing A Covered Employee or an Applicant who is required to undergo a Test for Controlled Substances will provide a [blood/urine] sample as outlined in the Agency's sample collection procedures. The Covered Employee or Applicant who is the subject of a Test for Controlled Substances will be provided with a written report of the test results and any follow-up confirmation tests. [COMMENT: This will be driven by the agency's vendor. This will need to include a consent to sharing the results with the Agency and, if there are related providers, for the Agency to share with those other entities.] CONTROLLED SUBSTANCE TESTING APPLICANTS All Covered Applicants will be provided a copy of this and required to sign an acknowledgement that the Covered Applicant received a copy of this. Covered Applicants will also sign a consent form provided by the testing company authorizing disclosure of the test results to the Agency. Upon completion of all other aspects of the hiring process, if a decision to hire a Covered Applicant is made, the Covered Applicant will be offered employment conditioned upon taking and passing a Test for Controlled Substances. Refusing Test Applicants A Covered Applicant's refusal to submit to a Test for Controlled Substances will be treated as if the Covered Applicant had taken the Test for Controlled Substances and obtained a positive test. This will result in the Applicant's conditional employment being terminated due to failure to take and pass a Test for Controlled Substances. Result of Test - Applicants If the Test for Controlled Substances results in a positive test, the Covered Applicant will be given forty eight (48) hours to produce a valid, current, subscription for the controlled substance for which the Applicant tested positive. If the Covered Applicant cannot produce a valid, current, subscription, the Covered Applicant's conditional employment will be terminated due to failure to take and pass a Test for Controlled Substances. A copy of the, Acknowledgement and Consent will be maintained with the rest of the Applicant's application materials. The Applicant's test results will be maintained in a separate confidential file with the other applicants' test results. If the Test for Controlled Substances results in a negative test, the Covered Applicant will be immediately available to be scheduled to work. The Covered Applicant will be added to the roster of Covered Employees. The individual's application materials, including the,
3 Controlled Substance Testing Acknowledgement and Consent will be placed in the individual's personnel file. The test results will be placed in the confidential portion of the individual's personnel file. [OPTIONAL: Hiring Covered Applicant Pending Results of Test for Controlled Substances [COMMENT: This is optional. It is recommended that Covered Applicants not be hired if they test positive.] A Covered Applicant may be hired pending the results of the Test for Controlled Substances, but may not have direct patient contact until the Agency has received proof that the result of the Test for Controlled Substances was negative. If the Test for Controlled Substances results in a positive test for a Covered Applicant who was allowed to begin working before the results were received, the Agency will [immediately terminate the individual's employment/prohibit the individual from having direct patient contact for six months]. COMMENT: It is recommended that a positive test result lead to immediate termination. If the individual is suspended for six months, reinstatement should be dependent upon substance abuse counseling and passing a return to duty.] CONTROLLED SUBSTANCE TESTING COVERED EMPLOYEES The organization s Covered Employees are required to undergo a Test for Controlled Substances under the following circumstances: 1. Random Testing: On or before June 30 of each year, the Agency will subject the Randomly Selected Covered Employees to a Test for Controlled Substances. 2. Reasonable Suspicion testing: A Covered Employee shall be required to undergo a Test for Controlled Substances at any time the Agency has reasonable suspicion that a Covered Employee is engaged in the illegal use of a controlled substance.. "Reasonable Suspicion" may exist based on, among other things: a. Direct observation of drug or alcohol use or possession; b. Observation of physical conditions which indicate symptoms of being under the influence of drug or alcohol, including but not limited to: i. Odor; ii. Gait; iii. Speech; iv. Appearance; v. Statements; vi. Evidence of use (for example, syringe or vile); vii. Response to questions.
4 Controlled Substance Testing c. A pattern of abnormal conduct or erratic behavior (including but not limited to absenteeism, tardiness, or deterioration in work performance); d. Arrest or conviction for a drug-related offense, or being identified as the focus of a criminal investigation into illegal drug possession, use, or trafficking; e. A news report of a drug related arrest; f. Information provided either by reliable and credible sources or that is independently corroborated; or g. Newly discovered evidence that the employee has tampered with a previous drug/alcohol test. 3. Post-accident testing: the Agency shall require a Covered Employee to undergo a Test for Controlled Substances if the Covered Employee is involved in an accident or incident while on the clock (i) which results in the Covered Employee or another person sustaining an injury, or (ii) which results in damage to the Agency s property, the Covered Employee's property and/or the patient's property, including damage to equipment. 4. Post-rehabilitation/return to work testing: The Agency shall require an individual who was on a temporary leave of absence, FMLA or similar time off to undergo counseling for drug abuse to undergo a Test for Controlled Substances before returning to work. [COMMENT: The statute only requires (a) and (b). Post-accident testing is quite common, due to insurance issues and could be considered similar to reasonable suspicion testing. Post rehabilitation testing would only be needed if the employer were to invoke suspensions for employees who tested positive.] Random Testing Procedure Identifying the Sample Beginning on July 1, 2017 and annually thereafter, the Agency will determine the number of Covered Employees on its employee roster. The Agency will then multiple this number by 50% to identify the number of Covered Employees the Agency must randomly test before June 30 of the following year (the "Number of Required Tests"). Once the Number of Required Tests is determined, the Agency will randomly select that number of individuals from the list of all Covered Employees. These individuals will be identified on July 1, but need not be tested immediately. The Agency must complete the Number of Required Tests on or before June 30 of the next year.
5 Controlled Substance Testing In the event a Covered Employee who is selected for testing is no longer employed at the time the test is to be performed, another Covered Employee will be selected from the list compiled on the immediately preceding July 1 at random. If, due to employee turnover, there are not enough Covered Employees on the July 1 list to perform the Number of Required Tests, Covered Employees will be randomly selected from the population of Covered Employees at the time the test is to be performed until the Number of Required Tests has been performed, even if this requires the Agency to test newly hired employees who tested during the application process. When determining if the Number of Required Tests has been performed, the Agency shall include the number of tests based upon Reasonable Suspicion it has performed during the year. Refusing Required Test A Covered Employee's refusal to submit to a Test for Controlled Substances will be treated the same as a positive test. It will result in [immediate termination of employment/suspension from employment for at least six months].comment: The statute allows the employer to either terminate or suspend for a refusal. It does not give the option to simply suspend from direct patient contact. This is different than the required response to a positive test. It is recommended that a refusal or a positive test both result in termination.] Covered Employee - Positive Results If a Test for Controlled Substances performed on a Covered Employee is positive, the Covered Employee shall be informed of the result. 1. Prescription. The Covered Employee shall be provided forty eight (48) hours to produce a valid, current, prescription for the Controlled Substance for which the individual tested positive. If the individual is able to produce a valid prescription, a copy of the prescription shall be maintained in the individual's personnel file and no action shall be taken against the individual. 2. Verification. If the Covered Employee cannot produce a valid prescription, the Agency shall have the results of the Test for Controlled Substances verified by having the test confirmed through a retesting of the sample by the testing entity (the "Verification Test"). The Covered Employee shall be responsible for the charges for the Verification Test and will receive an invoice for the cost of the Verification Test. If the Verification Test confirms the original positive test the Covered Employee will be [terminated/suspended from direct contact with patients for at least six months].[ [COMMENT: Termination for a positive test is recommended. If an employer chooses to suspend the employee, a return to work test is recommended. Suggested Language A Covered Employee who is suspended for failing a required Test for Controlled Substances will be required to take and pass a Test for Controlled Substances prior to returning from suspension.] A copy of the results of the Test for Controlled Substances shall be placed in the confidential section of the Employee's Personnel File. A copy of the written [termination/suspension]
6 Controlled Substance Testing including a statement that the [termination/suspension] is due to a failed Test for Controlled Substances. Negative Result of Test for Controlled Substance If the Test for Controlled Substances returns a negative result, a copy of the test result shall be placed in the confidential portion of the Employee's Personnel File. Voluntary Reporting It is the Agency s intent to assist its employees who have substance abuse problems. An employee who voluntarily reports a substance abuse problem to the Administrator will be directed to EAP for coordinating a chemical dependency evaluation, rehabilitation, and followup. If a leave of absence is necessary, the employee will be considered for all eligible leaves of absence allowed pursuant to Agency policy. However, this voluntary reporting provision will not prevent the Agency from otherwise enforcing this policy and/or disciplining the employee for violations of this or other Agency policies. Drug Testing Records - Confidentiality Records of all Tests for Controlled Substances, including results, Covered Employee prescription information and related information maintained by the Agency (the "Drug Testing Records") shall be the property of the Agency. These Drug Testing Records are subject to confidentiality requirements and the Agency will maintain confidentiality. The Agency shall keep each Covered Employee's Drug Testing Records in the confidential medical record portion of the Covered Employee's Personnel File. [COMMENT: Providers may consider having a centralized master testing file for survey purposes. This would include copies of the relevant records and test results. It would be kept confidential and secured.] Drug Testing Records Release by Organization Upon the written request of the applicant or Covered Employee tested, results of a Test for Controlled Substances shall be made available for inspection and copying to the applicant or Covered Employee. The Agency shall not release such records to any person other than the applicant or Covered Employee unless the applicant or Covered Employee, in writing following receipt of the test results, has expressly granted permission for the Agency to release such records The organization may release records of all drug and alcohol test results and related information maintained by the Agency for the following reasons:
7 Controlled Substance Testing 1. The records are evidence that may be admissible in a proceeding before a court or an administrative agency in which either the Agency or the Covered Employee whose test results are being admitted is a named party to the lawsuit; or, 2. In order to comply with a valid judicial or administrative order.
8 Controlled Substance Testing SAMPLE: DRUG SCREENING AGREEMENT Pre-employment Screening I have been informed that it is the policy of the Agency to perform pre-employment testing for the illegal use of drugs. The drug test will be performed by [insert name of vendor]. I have been informed, and I understand, that my consent to submit to the pre-employment drug testing is completely voluntary on my part, and that I have the right to refuse to submit to the test. I am aware, and have been told, that my refusal to submit to the drug test will make me ineligible for employment with the Agency. I have also been informed and am aware and hereby authorize that the results of the drug test may be released to the Agency [and name related entities if applicable]. I understand that the information will be used to determine whether I am eligible for employment with the Agency. With full knowledge of the above information, I have decided to voluntarily submit to the requested drug test by the Agency and in recognition of this agreement, to sign this consent form. Date Date Employee Signature Witness REFUSAL TO SUBMIT TO DRUG SCREEN I hereby refuse to authorize testing for the illegal use of drugs. I understand that my refusal means that I am ineligible for employment with the Agency. Signature Date Witness Date v1