Health Care Drug-Free Workplace Law Scheduled to Take Effect in New Hampshire on August 25, 2014

In the wake of several national news stories concerning health care workers diverting and abusing controlled substances, the New Hampshire Legislature has enacted a statute that requires all health care facilities and providers licensed under RSA 151 (except laboratories and collection stations) to adopt a written drug-free workplace policy by August 25, 2014. Facilities covered by the statute include, but are not limited to, 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. While most of these types of facilities likely already have alcohol and drug policies, in addition to 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 statute contains very specific requirements regarding the issues that must be addressed in a drug-free workplace policy. Examples include: (a) education of workers; (b) procedures for monitoring, storing, distributing, and procuring controlled substances; (c) procedures for voluntary self-referral by addicted employees; (d) procedures for co-worker reporting; (e) procedures for drug testing which shall include, at a minimum, testing where reasonable suspicion exists; (f) procedures for confidentiality; (g) procedures for investigating, reporting, and resolving misuse and diversion; and (h) 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 New Hampshire providers. The only insight provided by the Legislature is that providers shall 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 in order to avoid violating the statute.

While RSA 151:41 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 under RSA 151:7, which permits suspension or revocation by the New Hampshire Department of Health and Human Services where a facility engages in “conduct or practices detrimental to health and safety of patients.” Accordingly, all healthcare facilities and providers covered by the statute should promptly review their existing drug testing and prevention policies with legal counsel contact to ensure that they comport with the requirements of the new law. If a facility or provider does not have an existing drug free workplace policy, they should similarly consult with counsel to aid in the prompt drafting and implementation of a new policy by the August 25th deadline.