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Urine Trouble Practical, Legal, and Ethical Issues Surrounding Mandated Drug Testing of Physicians


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Title: Urine Trouble Practical, Legal, and Ethical Issues Surrounding Mandated Drug Testing of Physicians

Urine Trouble Practical, Legal, and Ethical
Issues Surrounding Mandated Drug Testing of
  • Martin Donohoe, M. D.

  • Definitions Substance Abuse and Drug Testing
  • Physician Substance Use and Abuse
  • Federal Drug Testing Policies
  • Physician Drug Testing

  • Drug Testing in Private Industry
  • The Science Behind Drug Testing
  • Physician Opinion Regarding Drug Testing
  • Conclusions

  • Testing and Treatment of Impaired Physicians
  • Drug Testing and the Erosion of Privacy/Ethical
  • Alternatives to Drug Testing

Substance Use and Abuse
  • Substance Use - the taking of legal or illegal
    substances which does not lead to impairment of
  • Substance Abuse - repeated, pathological use with
    adverse health consequences, habituation,
    tolerance, withdrawal symptoms, and impaired

Illicit Drug Use
  • 2001 17 million Americans used an illicit drug
    at least once in the preceding 30 days
  • - 1979 25 million 1998 14 million
  • 1998 - 4.1 million Americans dependent on illicit
  • - 1.1 million youths age 12-17

Physician Substance Use and Abuse
  • Prevalence data marred by
    over-reliance on
  • convenience sampling - self-report
  • variable definitions of substance use and

Medical Student and Resident Physician Substance
Use and Abuse
  • Medical students age-matched peers (except for
    lower smoking rates)
  • 30 day use
  • Alcohol 88, cigarettes 10, marijuana 10,
    cocaine 2.8, tranquilizers 2.3, opiates 1.1
  • 3rd year Residents lt1 felt dependent on any
    substance other than tobacco
  • 30 day use
  • Alcohol 87 (5 daily), marijuana 7 (1.3
    daily), 3.5 benzos (0 daily), 1.5 cocaine (0

Resident Physician Substance Use and Abuse
  • Higher rates of use in ER and Psych residents
  • Self-medication
  • early 1990s - benzos
  • 2000 - SSRIS for depression, antihistamines for

Practicing Physician Substance Use and Abuse
  • Rates of use and abuse of tobacco, marijuana,
    cocaine and heroin less than general population
  • Not at increased risk for alcoholism
  • Unsupervised use of benzos and minor opiates
    11 and 18, respectively
  • unknown if improves of impairs performance

Types of Drug Testing
  • Pre-employment testing
  • For-cause testing
  • Random, not-for-cause testing

Federal Drug Testing Policies
  • Early 1970s Navy, then other brances of the
  • Late 1970s prisons

Federal Drug Testing Policies
  • 1986 -Reagan - Executive Order requiring federal
    agencies to institute drug testing programs
  • 1988 - Federal Drug Free Workplace Act
  • all recipients of federal government contracts of
    25,000 of more/yr and all recipients of federal
    government grants must have written drug
    policies, establish a drug-free awareness
    program, and make a good-faith effort to maintain
    a drug-free workplace

Federal Drug Testing Policies
  • Omnibus Transportation Employee Testing Act of
  • employers required to test workers who apply for,
    or currently hold, safety-sensitive positions in
    the transportation industry
  • There are no federal laws that require private
    industries to have drug testing programs

Physician Drug Testing
  • 1988 - American Hospital Assn. recommends that
    health care institutions adopt comprehensive
    policies to address substance abuse, including
    pre-employment testing, for-cause testing, and
    post-accident testing, regardless of job

Physician Drug Testing
  • American College of Occupational and
    Environmental Medicine Ethically acceptable,
    with appropriate constraints, to screen current
    and prospective employees for the presence in
    their bodies of drugs, including alcohol, that
    might affect their ability to perform work in a
    safe manner.
  • AMA supports pre-employment drug screening but
    not genetic testing

OHSUs Drug Testing Policy
  • Mandated pre-employment and for-cause testing
  • - conducted through Oregon Medical
    Laboratories, owned by Peace Health (non-profit
  • Covers all direct patient care positions/safety-se
    nsitive positions/special needs positions
    (residents - yes, medical students - no)
  • Impetus
  • - only hospital in Portland without policy
  • - gestalt that it might weed out drug
  • Criminal background checks

OHSUs Drug Testing Policy
  • Approved by UMG
  • Little university-wide debate
  • Not in response to data on substance
    use/abuse/consequences at OHSU or outside
    complaints/litigation (1 for cause test performed
    in the last 5 years)

OHSUs Drug Testing Policy
  • Estimated cost 25,000/year
  • - 800 x 30 pre-employment tests
  • - 10 x 100 for cause tests
  • Cost figures do not match OHSUs other labs

Physician Drug Testing
  • Purported goals
  • create safer climate for patient care
  • protect University or Institution from
    malpractice and wrongful hiring lawsuits
  • promote positive view of institution from
    patients and other health care consumers

Physician Drug Testing
  • To date, no court has held an employer legally
    liable for not having a drug-testing program
  • Employers have incurred substantial legal cost
    defending their drug-testing programs against
    workers claims of wrongful dismissal

The Growth of Physician Drug Testing
  • Late 1980s/early 1990s 9-15 of hospitals
    required testing
  • 1999 Two-thirds of 44 randomly selected large
    teaching hospitals had formal physician drug
    testing policies
  • for-cause and pre-employment testing most common
  • 13 mandated random testing
  • policies vague on procedural details and unclear
    regarding responsibility for implementation of
  • only half mentioned employee confidentiality
    less than 50 of these were explicit regarding
    access to and storage of records

The Growth of Workplace Drug Testing
  • 1987 21 of American Management Associations
    corporate members had instituted drug testing
  • 1996 81 of major U. S. firms tested for drugs
  • 1,200 increase in periodic and random employee
    drug testing among Fortune 1000 companies since

School-Based Drug Testing
  • 1998 Supreme Court let stand an Indiana decision
    extending testing from students athletes to
    students who enjoy special privileges
  • 2002 Vernonia School District vs. Acton
  • Supreme Court permits drug testing for students
    involved in extracurricular activities
  • Local school board policies continued, added

School-Based Drug Testing
  • Substantial growth in number of schools requiring
    mandatory, random drug testing
  • 14 of US high schools (almost all test athletes,
    65 test those involved in extracurricular
    activities, 28 test all students)
  • Am J Publ Hlth 200898826-8.
  • 70,000/yr. for weekly random testing of 75

School-Based Drug Testing Costs
  • Borne to a small degree by Federal Governments
    Safe and Drug-Free Schools Program
  • Individual schools and school districts cover
    portion of cost
  • Private corporations e.g., Roche Diagnostic
    Systems, the leader in workplace drug testing
    often donate a portion of their services hoping
    to build future demand
  • Beverage companies sometimes pay a portion of
    costs in exchange for exclusive licensing

The Growth of Drug Testing
  • Fueled by popular misconceptions and hysteria
  • Signs that your child may be using marijuana
    include excessive preoccupation with the
    environment, race relations, and other social
  • (1999 Utah drug pamphlet)
  • Business interest e.g., Institute for a
    Drug-Free Workplace
  • P.R. campaigns of multi-billion dollar industry
  • Junk science

The Science Behind Drug Testing Costs
  • 35,000 - 77,000 for Federal Governments Drug
    Testing Program to find one user
  • Most workers identified are occasional moderate
    users rather than drug abusers more than half
    test positive only for marijuana

The Science Behind Drug Testing Costs
  • If 1 out of 10 of test positives is a drug abuser
    what many consider to be a high estimate,
    average cost of finding one drug abuser
    350,000 - 770,000
  • If half of these would have been detected anyway,
    through other means, cost of drug testing to find
    one otherwise hidden drug abuser 700,000 -
    1.5 Million
  • Costs likely to be higher when physicians are
    tested due to lower rates of substance use and

Problems With Drug Testing
  • False-Positive and False-Negative Results
  • poppy seeds/opiods
  • ibuprofen/cannabiniods
  • selegiline/amphetamines
  • tonic water/cocaine
  • Nyquil/opiates or amphetamines
  • Robitussin/PCP
  • alcohol lacing poorly recognized
  • Differing rates of drug metabolism affect
    likelihood of positive results / racial and
    cultural variations

Federally-Mandated Tests for Drugs of Abuse and
Drugs That Can Cause False-Positive Preliminary
Drug Tests
  • Amphetamines ephedrine, pseudoephedrine,
    phenylephrine, amphetamines, dextroamphetamine,
    methamphetamine, selegiline, chlorpromazine,
    trazodone, bupropion, desipramine, amantadine,

Federally-Mandated Tests for Drugs of Abuse and
Drugs That Can Cause False-Positive Preliminary
Drug Tests
  • Cocaine metabolites topical anesthetics
    containing cocaine
  • Marijuana metabolites ibuprofen, naproxyn,
    dronabinol, efavirenz, hemp seed oil

Federally-Mandated Tests for Drugs of Abuse and
Drugs That Can Cause False-Positive Preliminary
Drug Tests
  • Opiate metabolites codeine, morphine, rifampin,
    fluoroquinolones, poppy seeds, quinine in tonic
  • Phencyclidine ketamine, dextromethorphan

Problems With Drug Testing
  • Seriously impaired alcoholics, who far out number
    marijuana and opiod abusers, can be easily
    missed, despite the fact that their mental and
    physical impairments likely cause greater patient

Problems With Drug Testing
  • Multiple means of sabotaging tests and escaping
    detection exist
  • adulteration
  • dilution
  • purchase of drug-free urine

Fooling Drug Tests?
  • The personal detoxification industry is
    booming 80 million in sales in 2002
  • Most essentially worthless, easily detected by
    good drug labs

Fooling Drug Tests?
  • Examples
  • Detox drinks (Ready Clean) - vitamins and herbs
    to clean the urine
  • Urine additives (Urine Luck) contain
    oxidizers to block marijuana detection, but labs
    can detect the oxidizer
  • Mouth rinses ((Saliva Cleanse) vitamins and
    herbs to clean the saliva
  • Shampoos (Clear Choice) claim to coat hair
    with detection blockers shampoos, bleaches and
    dyes can alter drug concentrations in hair

False-Positive Tests
  • Risk
  • Inevitable, since no test is 100 specific
  • For a non-drug user, the only type of positive
  • Consequences
  • Puts public reputation and future employability
    in jeopardy
  • may disrupt long-standing relationships with
  • threatens large public financial investment in
  • emotional and financial upheaval

Does Drug Testing Deter Drug Use?
  • Only 85 of companies with drug testing have
    performed any cost benefit analysis
  • Frequently cited estimates of lost productivity
    due to drug use are based on data that the
    National Academy of Sciences has concluded are
  • Negative impact on workplace morale
  • Urine collection process degrading and demeaning,
    particularly when it involves direct observation

Does Drug Testing Deter Drug Use?
  • Analysis of 63 high-tech firms in computer
    equipment and data processing industry showed
    drug testing reduced productivity by creating
    environment of distrust and paranoia, rather than
    in one which employees were treated with dignity
    and respect
  • Some employers have dropped pre-employment
    screening because it unduly hindered their
    ability to recruit skilled workers

Public Support for Various Drug Abuse Policies
( favoring)
  • Anti-drug education in schools 93
  • More severe criminal penalties 84
  • Increase funding for treatment 77
  • Increase mandatory drug testing at work 71
  • Surprise searches of school lockers 67

Public Support for Various Drug Abuse Policies (
  • U.S. military advisers in foreign countries 64
  • Mandatory drug testing of high school students
  • Death penalty for smugglers 50
  • U.S. aid to farmers in foreign countries not to
    grow drug crops 48
  • Legalize all drugs 14

Public Support of Americans for Marijuana
  • 80 support medical use of marijuana
  • 75 support a fine-only (no jail) for
    recreational users
  • 40 support legalizing small amounts
  • But, a majority oppose full legalization

Physician Opinion Regarding Drug Testing is Mixed
  • Survey of practicing physicians in Midwest
  • 60 -infringed on rights to privacy
  • 38 -lack confidence in testing procedure
  • 56 - would submit to mandatory testing without
  • 8 would refuse
  • 7 would hospitalize their patients elsewhere
  • 7 would file a lawsuit

Physician Opinion Regarding Drug Testing is Mixed
  • 1994 survey Half of Family Practice Residency
    Directors opposed mandatory pre-employment drug
  • 20 of senior medical students would not rank
    or would rank lower a program with mandatory
    pre-employment drug testing

Testing and Treatment of Impaired Physicians
  • Voluntary treatment programs for
    substance-abusing resident physicians supported
    by the the Association of Program Directors in
    Internal Medicine
  • Programs for substance-abusing physicians
    available in every state
  • have been quite successful

Testing and Treatment of Impaired Physicians
  • 90 of state licensure applications ask about
    substance abuse, and inquire about functional
    impairment from substance abuse (not simply about
    substance use per se)
  • If physician self-reports and/or cooperates with
    treatment, state medical boards may not pursue
    disciplinary action

Disciplinary Actions Against Practicing Doctors,
  • Information sources State medical boards, U. S.
    Department of HHS, DEA, and FDA
  • 20,125 doctors/38,589 disciplinary actions
  • 1715 doctors disciplined for substance abuse (7)
  • -Public Citizen Health Letter 200016(9)1-5.

Disciplinary Actions Against Physicians
  • 375 MDs (0.24/yr) disciplined by the Medical
    Board of CA in 1996
  • - 34 negligence or incompetence
  • - 14 abuse of alcohol or other drugs
  • - 11 inappropriate prescribing practices
  • - 10 inappropriate contact with patients
  • - 9 fraud

Disciplinary Actions Taken Against Doctors Cited
for Substance Abuse
  • Action Number
  • Revocation 71 2.9
  • Surrender 111 4.5
  • Revocation, Surrender, of
  • Controlled Substance License 116 4.7
  • Suspension 293 11.8
  • Emergency Suspension 136 5.5
  • Probation 741 29.9
  • -Public Citizen Health Letter 200016(9)5.

Disciplinary Actions Taken Against Doctors Cited
for Substance Abuse
  • Action Number
  • Restriction of Controlled
  • Substance License 143 5.8
  • Fine 43 1.7
  • Required to Enter and Impaired
  • Physician Program or
  • Substance Abuse Treatment 161 6.5
  • Other Actions 665 26.8
  • Total Actions 2480 100.0
  • -Public Citizen Health Letter 200016(9)5.

Go Directly to Jail
  • To provide health care to burgeoning jail and
    prison populations, some states are hiring
    physicians who have been convicted of crimes or
    lost their medical licenses due to professional
  • - special licenses restrict MDs to treating

Drug Testing and the Erosion of Privacy
  • Many programs require one to divulge prescription
  • can cause false-positive or false-negative
  • gt 1/3 of members of American Management
    Association the nations largest management
    development and training organization tape phone
    conversations, videotape employees, review
    voicemail, and check computer files and e-mail

Drug Testing and the Erosion of Privacy
  • Nearly half of Fortune 500 companies collect data
    on their workers without informing them
  • a majority share employee data with prospective
    creditors, landlords, charities
  • 35 check medical records before hiring or
  • 35 of U.S. companies run a credit check as a
    condition for employment (up from 19 in 1996)

Drug Testing and the Erosion of Privacy
  • Some illegally check urine pregnancy test, using
    same sample obtained for pre-employment drug
    screening - 1988 Washington, D.C. P.D.
  • up to 10 use genetic testing for employment
  • genetic discrimination has been reported

Drug Testing and the Erosion of Privacy
  • Database searches of applicants credit reports,
    driving and court records, and workers
    compensation claims
  • Some companies prohibit co-workers from dating,
    or ban off-the-clock smoking and drinking

Drug Testing and The Erosion of Privacy
  • Public Video Surveillance Cameras
  • 4.2 million in England
  • 15,000 in Manhattan
  • Avg. Londoner monitored by 300 cameras per day
  • In one study, closed circuit TV operators watch
    blacks twice as often as whites and monitor 1//10
    women for voyeuristic reasons
  • More street cameras led to 2 drop in crime
    better streetlights 20 drop

Drug Testing and The Erosion of Privacy
  • Hospital Locator Badges
  • 21 states still criminalize some forms of sexual
    intimacy between consenting adults (15 hetero-
    and homosexual, 6 homosexual only)
  • Checkmate 49.95 semen test kit that enables
    suspicious spouses to check their better halfs
    underwear for signs of illicit liaisons

Drug Testing and the Erosion of Privacy
  • Child Monitoring GPS-enabled cell phones
  • Child snitch programs
  • - Pinkerton Services Groups Working Against
    Violence Everywhere
  • - DARE - Recognize/Resist/Report (2003 GAO study
    reports DARE ineffective in combating drug use)
  • - Scholastic Crime Stoppers
  • - Students Against Violence Everywhere (SAVE)

Drug Testing and the Erosion of Privacy
  • DNA databases
  • Most industrialized countries
  • Federal government and all 50 states
  • Federal DNA Fingerprint Act keeps records of
    accused and convicted
  • For those convicted and, in some cases, those
    merely arrested
  • Icelands Decode Genetics Inc. and US firm
    23andMe (funded by Google Inc.) offer personal
    genome analysis for 1000
  • Patriot Act / NSA spying

Big boss is watchingPercentage of companies
that monitor employees
  • Website connections 76
  • E-mail 55
  • Activity via video camera 51
  • Time on phone 51
  • Computer file content 50
  • Time at keyboard 36
  • Phone calls 22
  • Voice mail 15

Drug Testing and the Erosion of Privacy
  • Two-thirds of Americans do not trust their HMOs
    to maintain confidentiality
  • One in six American patients protects medical
    privacy by foregoing treatment, switching or
    lying to doctors, or paying out of pocket to
    avoid records of visits
  • Health care databases increasingly popular
  • Microsoft HealthVault, Google Health,
    hospital-based programs

The Slippery Slope of Workplace Drug Testing
  • Hair analysis for drug use, subject to external
    contamination from passive exposure and different
    sensitivities based on hair color (blacks gt
  • Urine testing for metabolites of medications used
    to treat conditions which may impair performance
    (depression, Parkinsons disease, asthma)

The Slippery Slope of Workplace Drug Testing
  • Genetic testing for diseases that may effect the
    length of ones potential career or insurance
    costs (Huntingtons or Alzheimers Disease, lipid
    disorders, diabetes, etc.)
  • Burlington Northern Santa Fe Railroad and
    Lawrence Berkeley National Laboratory have
    performed genetic tests on employees without
    their knowledge of consent

Anti-Discrimination Protections
  • 15 States have enacted laws to protect employees
    from genetic discrimination in the workplace a
    few others have legislation pending
  • Clinton Executive Order prohibiting federal
    agencies from using genetic information in hiring
    or promotion decisions

Anti-Discrimination Protections
  • 2008 Federal Genetic Information
    Nondiscrimination Act
  • Bans health insurers from basing eligibility or
    premiums on genetics information
  • Prohibits employers from hiring, firing,
    promoting, or placing employess on the basis of
    genetic information

Anti-Discrimination Protections
  • Unclear to what extent Fourth Amendment
    protections against unreasonable search and
    seizure and American with Disabilities Act may
    protect physicians with respect to disclosure of
    information or testing of bodily fluids
  • Court challenges to drug testing based on First,
    Fifth and Fourteenth Amendments and alleging
    violations of due process and equal protection
    have been generally unsuccessful

Drug Testing and Privacy/Confidentiality
  • No way to completely safeguard that information
    will not be shared with life, home, or health
    insurance companies and by extension with
    pharmaceutical companies, or with future

Drug Testing and Privacy/Confidentiality
  • Identity theft (8.3 million American victims in
  • Pharmaceutical company data mining
  • NH, ME now limit

Drug Testing and Privacy/Confidentiality
  • RFIDs (radio frequency identification tags) in
    credit cards, shipping containers, passports,
    pets, and consumer products
  • Approved for use in humans by former HHS secty.
    Tommy Thompson (now a consultant for Applied
    Digital Solutions, owner of VeriChip)
  • CEO has suggested use in soldiers,
    immigrants/guest workers
  • RFID chips can cause sarcomas in mice

Testing Protocols
  • Which physicians should be tested
  • Clinicians?
  • Researchers?
  • Administrators?
  • How often?
  • Who should have access to physicians test
    results and potentially, by extension, other
    personal health data

Conclusions Regarding Physician Drug Testing
  • All rational physicians are in favor of improving
    the health of their professional colleagues,
    providing treatment in the most expeditious and
    confidential manner for those who have exhibited
    strong evidence of job impairment, and ensuring
    the safe delivery of error-free care to their

Conclusions Regarding Physician Drug Testing
  • For-cause testing not unreasonable, with
    appropriate safeguards

Conclusions Regarding Physician Drug Testing
  • Pre-employment and random not-for-cause testing
  • unscientific
  • ineffective
  • costly
  • public relations gimmick
  • physician opposition
  • legal ramifications
  • ethical problems

Improving Job Safety and Quality of Care
  • Consider alternatives to mandatory pre-employment
    and not-for-cause drug testing
  • Focus attention and resources on systems factors
    which cause or contribute to a majority of
    medical errors

Improving Job Safety and Quality of Care
  • Invest in computerized medication ordering
    systems and more ancillary staff to assist
    residents in non-educational tasks which
    contribute to sleep-deprivation which intern can
    lead to errors
  • In 1999, the ACGME cited 30 of internal medicine
    residency programs for requiring their trainees
    to work more hours than regulations allow

Improving Job Safety and Quality of Care
  • Encourage vigilance/confrontation/reporting of
    clearly impaired colleagues
  • Failure to police the profession
  • ?secret patients, undercover providers?
  • Reverse trend toward downsizing RNs in favor of
    less well-trained (but less expensive) LPNs and

Improving Job Safety and Quality of Care
  • Adherence to OSHA and EPA guidelines regarding
    workplace safety
  • Improved Waste Reduction/Management

Alternatives to Drug Testing
  • Promote reference checking of new staff members
    to appraise previous job performance
  • Train supervisors to identify, confront, and
    refer impaired physicians to drug treatment
  • Pay increased attention to physician job- and
    life-satisfaction e.g., early identification and
    treatment of depressive disorders and marital
  • Employee Assistance Programs

Alternatives to Drug Testing
  • Support knowledge testing e.g., mandatory
    re-certification, periodic hospital
    recredentialling, and skills appraisal by
    colleagues and supervisors
  • Establish intermittent impairment testing program
  • periodic evaluation of vision, reflexes and
  • can also uncover important physical disabilities
    incl. dementia, mental illness, and sleep
  • may lead to treatment and/or work-modification

Alternatives to Drug Testing
  • If impairment testing suggests drug abuse, formal
    drug testing, treatment, and follow-up drug
    testing are not only reasonable, but also likely
    to benefit affected physicians and their patients
  • 47 states and DC have active Physician Health
    Programs to help with substance abuse (and mental

The War on Drugs
  • Racist beginnings (Chinese Opium Act ,
  • Interdiction
  • e.g., 1.3 billion Columbia aid package (incl.
    use of biological weapons)
  • U.S. military/border guards
  • Punishment
  • - inequitable laws (crack vs powder cocaine)
  • Treatment

Decreasing Drug Use/Abuse
  • Education/Social Marketing
  • Prevention
  • - vaccinations
  • Treatment (dollar for dollar, much more effective
    than interdiction and/or punishment)
  • - needle exchange programs (MDs can prescribe
    clean needles to addicts in 48 states
    pharmacists can dispense in 26 states)
  • - chronic illness marked by relapse/non-complianc

Decreasing Drug Use/Abuse
  • Foreign Aid - social/agricultural vs. military
  • Interdiction
  • Focus also on legal drugs
  • - alcohol gt125,000 deaths/year
  • - tobacco (hypocrisy of export business)
  • gt400,000 deaths directly, 60,000 deaths
  • indirectly per year
  • Promote Sound Science/Cost-Effective Policies and

Citation / Contact Info
  • Donohoe MT. Urine trouble practical, legal, and
    ethical issues surrounding mandated drug testing
    of physicians. J Clin Ethics, 200516(1)69-81.

Contact Information
  • Public Health and Social Justice Website
  • http//www.phsj.org
  • martindonohoe_at_phsj.org
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