American Hospital Association "Management advisory" on no-cause drug testing of the medical staff

Note: This report represents information on this subject as of December 1995.

Full text

Resolution 813, introduced at the 1993 Annual Meeting by the Illinois Delegation, asks that the American Medical Association (AMA) oppose any hospital or medical staff policy of no-cause drug testing of physicians as part of a credentialing process. The preamble of the resolution characterizes elements of the policy proposed in the American Hospital Association (AHA) Management Advisory (Substance Abuse Policies for Health Care Institutions, January 1992) as advocating no-cause drug testing. The resolution further asks that Policy 95.984, AMA  Policy Compendium, Issues in Employee Drug Testing, be amended "to establish the primacy of medical staff authority in substance abuse policy and procedures covering any preemployment, credentialing, or other phase of physician evaluation, and to specify for physicians only drug testing based on reasonable suspicion and with substantive and procedural due process safeguards for physicians." Resolution 813 was referred to the Council on Scientific Affairs (CSA) through the Board of Trustees. 

The American Hospital Association Management Advisory

The AHA Management Advisory recommends that institutions adopt a policy that includes preemployment testing, for-cause testing (e.g., when there is reasonable suspicion that the individual is using drugs or is impaired by drug use), testing after specified types of incidents or injuries, and testing as part of a return-to-work agreement following a period of treatment and rehabilitation. The AHA Management Advisory recommends that the policy apply equally to physicians and all employees of the institution, but it does not call for random or no-cause drug testing. 

Current [December 1995] AMA Policy on urine drug testing

The AMA has previously supported drug testing under the conditions included in the AHA Management Advisory (preemployment, after accidents, and for reasonable cause) when applied to railroad employees. This policy statement can be found in August 1984 comments to the Federal Railroad Administration in response to a proposed rule, "Control of Alcohol and Drug Abuse in Railroad Operations."¹ This policy also is stated in a previous CSA report, "Issues in Employee Drug Testing" (Policy 95.984), in which the AMA took the position that urine drug and alcohol testing of employees could appropriately include "(a) preemployment examinations of those persons whose jobs affect the health and safety of others, (b) situations in which there is reasonable suspicion that an employee's job performance is impaired by drug or alcohol use, and (c) monitoring as part of a comprehensive program of treatment and rehabilitation of alcohol and drug abuse or dependence."¹

Statement of the AMA General Counsel on drug testing of physicians 

An August 1990  JAMA article from the Office of the General Counsel² stated the AMA's opposition to random drug testing of employees, including physicians. The article does not deal directly with the question of testing physicians under the conditions covered by the AHA Management Advisory (preemployment, for-cause, and during rehabilitation of the drug-impaired), but notes that these are included in AMA policy statements. The article states that "when physicians or other individuals who are employed to protect the health and safety of the public abuse drugs, the consequences are potentially life threatening." It continues that "While there are no good data on the extent to which drug abuse by physicians results in substandard patient care, even a small risk cannot be tolerated. The harm to a patient from an impaired physician can be life threatening." The article notes that "hospitals, professional societies, and licensing boards should increase their efforts to identify physicians who are impaired by drug use" but concludes that "it is not clear . . . that adequate justification exists for the use of random urine testing to detect physician impairment from drugs of abuse." 

The statement from the General Counsel's office summarizes potential problems with the application of urine testing to physicians. These include: (1) urine drug tests do not give any indication of the frequency of drug use, the time of last use, whether the individual abuses or is dependent on the drug, or whether the individual is physically or mentally impaired by the drug; (2) false-negative tests may occur; that is, physicians who are using or abusing drugs may not always be identified since those who use or abuse drugs on an irregular basis may be tested during a period when they are not using drugs; and (3) urine drug tests are intrusive and an invasion of personal privacy if it is required that specimens be collected under direct observation. The article also discusses the potential application of simple neurobehavioral tests (e.g., physiologic or psychomotor performance) as a substitute for screening urine drug tests, based on the argument that if they can be standardized and applied uniformly, these tests would be a more direct measure of actual impairment. 

A response to these statements would point out that no medical test answers all questions that are appropriately posed. Furthermore, while drug tests are analytically valid, there are limits on what may be inferred from a positive drug test result. Therefore, urine drug testing is aimed at identification of individuals who are current users of drugs (which it does accurately and precisely) and, thereby, identification of those at higher risk of drug-induced impairment of job performance. Urine drug testing programs have evolved over time, and today collection of the specimen by urination under observation is rarely proposed and even more rarely used. 

The suggestion that simple physiologic or psychomotor performance tests can serve as a substitute for screening urine drug tests is not new. However, these tests do not have sufficient sensitivity and specificity for this purpose. The CSA reviewed performance testing in a report issued in 1992 and concluded that such testing of health care professionals appears to be a totally unexplored area and clearly has not reached a level of reliability that warrants general use as a substitute for urine drug testing or as an index of job readiness (Policy 365.982). 

In summary, the AMA has previously considered these concerns and objections to urine drug testing programs and has stated that, under specified circumstances (e.g., upon application for employment or admission to the staff of an institution or business), these concerns, issues, or rights are subordinate to the need and right of the public to know that persons entrusted with their safety and health are not likely to be impaired by drugs. 

Perspective 

In keeping with the highest traditions of the profession, physicians have voluntarily accepted behavioral and ethical standards at least as stringent as those imposed on workers in other occupations. When the issue is encouragement of healthy behavior, designed to counter an illness (drug addiction) considered to be a scourge of modern society, only the most demanding standard would seem acceptable. 

A 1990 survey of physicians at four hospitals in one county in Michigan about their attitudes towards urine drug testing of physicians was published in the  Archives of Internal Medicine.⁴ This survey found that 45 percent of responding physicians agreed with a policy of mandatory drug testing for physicians with hospital privileges, while 34 percent disagreed and 21 percent were uncertain. When asked which of the following choices would be their most likely reaction(s) to being required by a hospital to undergo drug testing, 56 percent of responding physicians indicated they would submit to testing without protesting, 31 percent would submit under protest, 8 percent would refuse testing, 7 percent would file a lawsuit against the hospital, 7 percent would hospitalize their patients elsewhere, and 1 percent would seek employment elsewhere (total is 110 percent since multiple reactions could be selected). If mandatory physician drug testing was to be implemented, physicians preferred the testing program to be conducted by hospital medical staff independent of hospital administration.⁴

In the tradition of self-discipline, policies governing professional qualification, evaluation, and behavior should be the purview of the medical staff. The medical staff must be involved in the development of the institution's substance abuse policy, including: (a) selection of analytical methods to ensure scientific validity of the test results, (b) determination of measures to maintain confidentiality of the test results, (c) in for-cause post-incident/injury testing, definition of standards for determining whether cause exists and which incidents and/or injuries will result in testing; and (d) development of mechanisms to address the physical and mental health of medical staff members. 

Policy 235.974, introduced by the AMA Hospital Medical Staff Section at the Interim 1991 meeting, states: 

The AMA (1) believes strongly in the autonomy of the hospital medical staff and does not support automatic inclusion of the medical staff in hospital personnel policies and programs; (2) believes hospital medical staffs should develop personnel policies and programs for members of the hospital medical staff and incorporate these policies in the medical staff bylaws or rules and regulations; and (3) understands that there are physicians who are not members of the medical staff but who are employees of the hospital and their participation in hospital programs should be dictated by their employment agreements. 

Medical staffs should direct their legal counsel to review credentialing and appointment processes to assure that they are in compliance with the Americans with Disabilities Act (ADA). These issues have been discussed by the AMA-HMSS Governing Council (Report C [A-94]) as follows: 

AMA-HMSS Governing Council review of the issues

The Governing Council reviewed the AHA Management Advisory on Substance Abuse Policies for Health Care Institutions, AMA policies, Joint Commission standards and the ADA. 

The ADA is a Federal statute that prohibits discrimination against disabled individuals in employment, public accommodations and by state and local governments. 

It is unclear whether Title I, which covers employment, or Title III, which covers public accommodations, of the ADA applies to members of the hospital medical staff. Physicians who are employed by hospitals are "employees" under the Act, and are clearly covered by Title I protections. Courts interpreting analogous federal civil rights laws have often, though not universally, held that nonemployee medical staff members should be treated as employees within the context of those laws. On the basis of these precedents, a strong argument can be made that Title I should also apply to nonemployee physician members of the medical staff. 

It is also arguable that Title III covers medical staff membership and privileges because hospitals are public accommodations, and Title III language references both "privileges" and "credentialing." 

The AMA has requested guidance from the Department of Justice (DOJ) on these complex issues to assist physicians to understand and comply with the ADA. In a letter dated May 6, 1993, the AMA requested an advisory opinion on whether the ADA applies to the medical staff credentialing and appointment process. The letter also requests specific guidance on how medical staffs can structure their procedures to comply with the ADA. DOJ's response will be distributed to AMA members through appropriate AMA publications. 

According to the  Equal Employment Opportunity Commission (EEOC) Title I Manual as it relates to medical staff drug testing, the ADA does not prohibit, require, or encourage drug tests. Under the ADA, employers are permitted to adopt or administer reasonable policies or procedures, including but not limited to drug testing, to ensure that employees or applicants are not currently using illegal drugs. Drug tests are not considered medical examinations, and an  applicant can be required to take a drug test before a conditional offer of employment has been made. An  employee also can be required to take a drug test, whether or not such a test is job-related and necessary for the business. Alcohol tests, however, are considered to be medical examinations and may be administered only if a conditional offer of employment has been made and all applicants for that position are subjected to the same test. Employers, however, must be careful that drug testing does not violate state or local laws, or patient confidentiality. 

If an individual tests positive on a test for the illegal use of drugs, the individual will be considered a current drug user under the ADA where the test correctly indicates that the individual is engaging in the illegal use of a controlled substance. 

Although an employer may take steps to ensure a drug- and alcohol-free workplace and may hold all employees to uniform standards for employment or job performance, the  EEOC Manual states that the employer must also provide whatever accommodation is reasonable to make an alcoholic or former drug addicted employee qualified for the position. 

It is recognized that the issue of physical and mental health status of hospital staff physicians is especially important because hospitals and medical staffs have an obligation to attempt to ensure that only qualified individuals who can provide high quality patient care are appointed to the staff and allowed to exercise clinical privileges. The JCAHO, for example, requires hospitals and medical staffs to inquire about health status in the credentialing and appointment process. Negligence law also compels hospitals and medical staffs to attempt to ensure that physicians who treat patients in the hospital are physically and mentally able to discharge their responsibilities. 

There is agreement with AHA's position that medical staff members are more likely to support testing only as part of a return-to-work agreement or monitoring program. In addition, the substance abuse policy on for-cause testing should clearly define the standard for determining whether cause exists and the policy on post-accident testing should clearly state which accidents or types of accidents will result in drug or alcohol testing. 

There is strong support for AMA Policy 235.974, "Autonomy of the Hospital Medical Staff." Hospital medical staffs must be involved in the development of substance abuse policy issues involved in a substance abuse policy. There are constitutional rights to privacy, due process, and equal protection. The medical staff is more likely to support a policy if they have been involved in its development. Unfortunately, the Governing Council is aware of hospital drug testing programs which have been developed and implemented without the involvement of the medical staff organization. As a result, conflict occurs between the medical staff and the hospital, and physicians are put in a somewhat difficult position--questioning if legally they must comply with the hospital-mandated programs or can refuse testing on the basis of their status as a member of a self-governing medical staff. 

The impact of the ADA on the credentialing process is a point of discussion. Until a decision on the employee status of medical staff physicians under the ADA has been made, the Governing Council believes that medical staffs should seek legal review of their appointment and credentialing procedures to ensure, based on the best available information, that those procedures comply with the ADA. 

Health status language that would probably meet the ADA requirements is included in the American Hospital Association's publication  Medical Staff Credentialing: A Practical Guide published in 1994 and the January 1994 California Medical Association Hospital Medical Staff Section memorandum on Model Medical Staff Application and Reapplication Amendments. 

Recommendations

The following statements, recommended by the Council on Scientific Affairs, were adopted by the AMA House of Delegates as AMA policy at the 1995 AMA Interim Meeting. 

1. The AMA establishes the primacy of medical staff authority in substance abuse policy and procedures covering any pre-employment credentialing, or other phase of physician evaluation.   
2. Policy of the AMA states that medical staff must be involved in the development of the institution's substance abuse policy, including (a) selection of analytical methods to ensure scientific validity of the test results, (b) determination of measures to maintain confidentiality of the test results, (c) in for-cause post-incident/injury testing, definition of standards for determining whether cause exists and which incidents/injuries will result in testing, and (d) development of mechanisms to address the physical and mental health of medical staff members.   
3. The AMA believes all drug and alcohol testing must be performed only with substantive and procedural due process safeguards in place. 

Reaffirmation of previous policy: The AMA: 

1. Believes strongly in the autonomy of the hospital medical staff and does not support automatic inclusion of the medical staff in hospital personnel policies and programs;   
2. Believes hospital medical staffs should develop personnel policies and programs for members of the hospital medical staff and incorporate these policies in the medical staff bylaws or rules and regulations; and   
3. Understands that there are physicians who are not members of the medical staff but who are employees of the hospital and their participation in hospital programs should be dictated by their employment agreements.

References

1. Council on Scientific Affairs.  Issues in Employee Drug Testing. Chicago, Il: American Medical Association; 1990. AMA Policy 95.984, CSA Report A, I-90. 
2. Orentlicher D. Drug testing of physicians.  JAMA. 1990;264:1039-1040.
3. Council on Scientific Affairs.  Performance Testing. Chicago, Il: American Medical Association; 1992. AMA Policy 365.982, CSA Report B, I-92. 
4. Lemon SJ, Sienko DG, Alguire PC. Physicians' attitudes toward mandatory work place urine drug testing.  Arch Intern Med. 1992;152:2238-2242.

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