martin donohoe , m. d

Urine Trouble Urine Trouble Practical, Legal, and Ethical Practical, Legal, and Ethical

Issues Surrounding Mandated Issues Surrounding Mandated Drug Testing of PhysiciansDrug Testing of Physicians

Martin Donohoe, M. D.Martin Donohoe, M. D.

OverviewOverview

• Definitions: Substance Abuse and Drug Definitions: Substance Abuse and Drug TestingTesting

• Physician Substance Use and AbusePhysician Substance Use and Abuse• Federal Drug Testing PoliciesFederal Drug Testing Policies• Physician Drug TestingPhysician Drug Testing

OverviewOverview

• Drug Testing in Private IndustryDrug Testing in Private Industry• The “Science” Behind Drug TestingThe “Science” Behind Drug Testing• Physician Opinion Regarding Drug Physician Opinion Regarding Drug

TestingTesting• ConclusionsConclusions

OverviewOverview

• Testing and Treatment of Impaired Testing and Treatment of Impaired Physicians Physicians

• Drug Testing and the Erosion of Drug Testing and the Erosion of Privacy/Ethical IssuesPrivacy/Ethical Issues

• Alternatives to Drug TestingAlternatives to Drug Testing

Substance Substance Use and AbuseUse and Abuse

• Substance Use - the taking of legal or illegal Substance Use - the taking of legal or illegal substances which does not lead to substances which does not lead to impairment of performanceimpairment of performance– US leads world in illegal drug useUS leads world in illegal drug use

• Substance Abuse - repeated, pathological Substance Abuse - repeated, pathological use with adverse health consequences, use with adverse health consequences, habituation, tolerance, withdrawal habituation, tolerance, withdrawal symptoms, and impaired performancesymptoms, and impaired performance

Drug UseDrug Use

• 71% of all drug users today in the U.S. over 71% of all drug users today in the U.S. over the age of 18 are employed either full or the age of 18 are employed either full or part-time (US Dept of Labor). part-time (US Dept of Labor). – More than 10 million workers.More than 10 million workers.

Past-Month Illicit Drug Use Past-Month Illicit Drug Use (2008-2010, SAMHSA)(2008-2010, SAMHSA)

• Overall: 22 million (8.9%)Overall: 22 million (8.9%)– Marijuana: 17.4 millionMarijuana: 17.4 million– Psychotherapeutics: 7 millionPsychotherapeutics: 7 million– Cocaine: 1.5 millionCocaine: 1.5 million– Hallucinogens: 1.2 millionHallucinogens: 1.2 million– Inhalants: 0.7 millionInhalants: 0.7 million– Heroin: 0.2 millionHeroin: 0.2 million

Drug Use and ER Visits, 2006Drug Use and ER Visits, 2006

• 1.7 million drug-related ER visits1.7 million drug-related ER visits– 62% involved illicit drugs (31% alone, 13% 62% involved illicit drugs (31% alone, 13%

with alcohol, 8% with pharmaceuticals, 3% with alcohol, 8% with pharmaceuticals, 3% with pharmaceuticals and alcohol)with pharmaceuticals and alcohol)

– #1 cocaine, #2 marijuana, #3 stimulants#1 cocaine, #2 marijuana, #3 stimulants– 33% involved alcohol (7% alone, 13% with 33% involved alcohol (7% alone, 13% with

illilcit drugs, 10% with pharmaceuticals, 3% illilcit drugs, 10% with pharmaceuticals, 3% with pharmaceuticals and alcohol)with pharmaceuticals and alcohol)

ER Visits, 2009

• 1.2 million visits involving pharmaceutical drugs (100% increase over 2004)

• 974,000 visits involving illicit drugs (constant)

• Alcohol-related ER visits increasing, especially among teens

Drug Use/AbuseDrug Use/Abuse

• 31 million people (12% of Americans over age 31 million people (12% of Americans over age 12) admit to driving under the influence at least 12) admit to driving under the influence at least once in the past yearonce in the past year

• Only 1/200 to 1/2,000 impaired drivers caughtOnly 1/200 to 1/2,000 impaired drivers caught• 31% of teens and 51% of adults 18-21 regularly 31% of teens and 51% of adults 18-21 regularly

consume energy drinks (dangerous levels of consume energy drinks (dangerous levels of caffeine, bans on mixtures also containing caffeine, bans on mixtures also containing alcohol)alcohol)

Drug Use/AbuseDrug Use/Abuse

• Up to 1/5 of college students have taken Up to 1/5 of college students have taken Adderall, Ritalin, or other prescription Adderall, Ritalin, or other prescription drugs to help with their work (6.4% use drugs to help with their work (6.4% use Adderall regularly, compared to 3% of age-Adderall regularly, compared to 3% of age-matched non-students)matched non-students)

• 2% of jr high and 5% of high school 2% of jr high and 5% of high school students have used anabolic steroids in past students have used anabolic steroids in past yearyear

Drug Use/Abuse

• Prescription drug abuse up 75% from Prescription drug abuse up 75% from 2002 to 20102002 to 2010

• Recent dramatic rise in prescription Recent dramatic rise in prescription opiate abuse (12 million in 2010), opiate abuse (12 million in 2010), including deaths (15,000 in 2008, triple including deaths (15,000 in 2008, triple the number in 1999)the number in 1999)

Drug Use/Abuse

• US citizens consume 80% of all opioid-US citizens consume 80% of all opioid-based pain killersbased pain killers

• Up to 35% of patients prescribed opiates Up to 35% of patients prescribed opiates may not be taking them; 12% test positive may not be taking them; 12% test positive for other illicit drugs (70% marijuana)for other illicit drugs (70% marijuana)

• Recent increase in use of synthetic Recent increase in use of synthetic cannabinoidscannabinoids

Drug Use/Abuse

• Most states have Prescription Monitoring Most states have Prescription Monitoring Programs (opiate prescription databases)Programs (opiate prescription databases)– Use and accessibility variesUse and accessibility varies

• Dramatic rise in pharmacy robberies (for Dramatic rise in pharmacy robberies (for opiates)opiates)

• Opiates less available in poor Opiates less available in poor neighborhoodsneighborhoods– Implications for pain managementImplications for pain management

Costs of Drug AbuseCosts of Drug Abuse

• $250 billion dollars in the U.S./yr$250 billion dollars in the U.S./yr– Including $84 million in direct health Including $84 million in direct health

care costscare costs• 500 million lost working days500 million lost working days

– Absenteeism 2/3 higher than for non-Absenteeism 2/3 higher than for non-abusersabusers


• U.S. Senate Banking Committee estimates U.S. Senate Banking Committee estimates tht between $500 billion and $1 trillion of tht between $500 billion and $1 trillion of drug money are laundered each year drug money are laundered each year through banks worldwidethrough banks worldwide– Approximately ½ through U.S. banksApproximately ½ through U.S. banks

• Minimal oversight, penaltiesMinimal oversight, penalties


• Higher rates of accidents, injuries, and Higher rates of accidents, injuries, and worker’s comp claimsworker’s comp claims

• 44% of abusers have sold drugs to other 44% of abusers have sold drugs to other employeesemployees

• 18% have stolen from coworkers to support 18% have stolen from coworkers to support their habittheir habit

Physician Substance Physician Substance Use and AbuseUse and Abuse

• Prevalence data marred by Prevalence data marred by over-reliance on:over-reliance on:– convenience sampling - self-reportconvenience sampling - self-report– variable definitions of substance use variable definitions of substance use

and impairment.and impairment.

Medical Student Substance Medical Student Substance Use and AbuseUse and Abuse

• Medical students = age-matched peers Medical students = age-matched peers (except for lower smoking rates)(except for lower smoking rates)– 30 day use:30 day use:

• Alcohol 88%, cigarettes 10%, Alcohol 88%, cigarettes 10%, marijuana 10%, cocaine 2.8%, marijuana 10%, cocaine 2.8%, tranquilizers 2.3%, opiates 1.1%tranquilizers 2.3%, opiates 1.1%

Medical Student Substance Medical Student Substance Use and AbuseUse and Abuse

• Caffeine used as stimulant, can cause Caffeine used as stimulant, can cause rebound oversedationrebound oversedation

• High use of non-caffeine stimulantsHigh use of non-caffeine stimulants• 20% lifetime use prevalence (vs. 7% 20% lifetime use prevalence (vs. 7%

for college students)for college students)• 15% use while in college or med 15% use while in college or med

schoolschool

Resident Physician Substance Resident Physician Substance Use and AbuseUse and Abuse

• 3rd year Residents [<1 % felt dependent on 3rd year Residents [<1 % felt dependent on any substance other than tobacco]any substance other than tobacco]– 30 day use:30 day use:

• Alcohol 87% (5% daily), marijuana Alcohol 87% (5% daily), marijuana 7% (1.3% daily), 3.5% benzos (0% 7% (1.3% daily), 3.5% benzos (0% daily), 1.5% cocaine (0% daily)daily), 1.5% cocaine (0% daily)

Resident Physician Substance Resident Physician Substance Use and AbuseUse and Abuse

• Higher rates of use in ER, Psych, and Higher rates of use in ER, Psych, and anesthesia residentsanesthesia residents

• Self-medication:Self-medication:– early 1990s - benzosearly 1990s - benzos– 2000s - SSRIS for depression, antihistamines 2000s - SSRIS for depression, antihistamines

for sleepfor sleep

Practicing Physician Substance Practicing Physician Substance Use and AbuseUse and Abuse

• Rates of use and abuse of tobacco, Rates of use and abuse of tobacco, marijuana, cocaine and heroin less than marijuana, cocaine and heroin less than general populationgeneral population

• Not at increased risk for alcoholismNot at increased risk for alcoholism

Practicing Physician Substance Practicing Physician Substance Use and AbuseUse and Abuse

• 10-15% of all healthcare professionals misuse 10-15% of all healthcare professionals misuse drugs or alcohol at some point in their careersdrugs or alcohol at some point in their careers– 15% of surgeons met criteria for alcohol abuse in 2012 15% of surgeons met criteria for alcohol abuse in 2012

study (but low response rate)study (but low response rate)• Unsupervised use by MDs of benzos and minor Unsupervised use by MDs of benzos and minor

opiates = 11% and 18%, respectivelyopiates = 11% and 18%, respectively– unknown if improves of impairs performanceunknown if improves of impairs performance

• Rates highest in anesthesia, emergency medicine, Rates highest in anesthesia, emergency medicine, and psychiatryand psychiatry

Types of Drug TestingTypes of Drug Testing

• Pre-employment testingPre-employment testing

• For-cause testingFor-cause testing

• Random, not-for-cause testingRandom, not-for-cause testing

Federal Drug Testing PoliciesFederal Drug Testing Policies

• Early 1970s: Navy, then other brances of Early 1970s: Navy, then other brances of the militarythe military

• Late 1970s: prisonsLate 1970s: prisons


• 1986 -Reagan - Executive Order requiring 1986 -Reagan - Executive Order requiring federal agencies to institute drug testing federal agencies to institute drug testing programsprograms

• 1988 - Federal Drug Free Workplace Act1988 - Federal Drug Free Workplace Act– all recipients of federal government contracts of all recipients of federal government contracts of

$25,000 of more/yr and all recipients of federal $25,000 of more/yr and all recipients of federal government grants must have written drug policies, government grants must have written drug policies, establish a drug-free awareness program, and make a establish a drug-free awareness program, and make a good-faith effort to maintain a drug-free workplacegood-faith effort to maintain a drug-free workplace


• Omnibus Transportation Employee Testing Act of Omnibus Transportation Employee Testing Act of 19911991– employers required to test workers who apply for, or employers required to test workers who apply for, or

currently hold, safety-sensitive positions in the currently hold, safety-sensitive positions in the transportation industrytransportation industry

• There are no federal laws that require private There are no federal laws that require private industries to have drug testing programsindustries to have drug testing programs

Physician Drug TestingPhysician Drug Testing

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


• American College of Occupational and American College of Occupational and Environmental Medicine: “Ethically acceptable, Environmental Medicine: “Ethically acceptable, with appropriate constraints, to screen current and with appropriate constraints, to screen current and prospective employees for the presence in their prospective employees for the presence in their bodies of drugs, including alcohol, that might bodies of drugs, including alcohol, that might affect their ability to perform work in a safe affect their ability to perform work in a safe manner.”manner.”


• American Society of Anesthesia American Society of Anesthesia recommends testing only for “reasonable recommends testing only for “reasonable suspicion” that a physician is under the suspicion” that a physician is under the influence of alcohol or drugsinfluence of alcohol or drugs

• AMA supports pre-employment drug AMA supports pre-employment drug screening [but not genetic testing]screening [but not genetic testing]

OHSU’s Drug Testing PolicyOHSU’s Drug Testing Policy• Mandated pre-employment and for-cause testingMandated pre-employment and for-cause testing

- conducted through Oregon Medical Laboratories, - conducted through Oregon Medical Laboratories, owned by Peace Health (non-profit corporation)owned by Peace Health (non-profit corporation)

• Covers all direct patient care positions/safety-sensitive Covers all direct patient care positions/safety-sensitive positions/special needs positions (residents - yes, positions/special needs positions (residents - yes, medical students - no)medical students - no)

• ImpetusImpetus- only hospital in Portland without policy- only hospital in Portland without policy- gestalt that it might weed out drug users/abusers- gestalt that it might weed out drug users/abusers

• Criminal background checksCriminal background checks

OHSU’s Drug Testing PolicyOHSU’s Drug Testing Policy

• Approved by UMGApproved by UMG• Little university-wide debateLittle university-wide debate• Not in response to data on substance Not in response to data on substance

use/abuse/consequences at OHSU or use/abuse/consequences at OHSU or outside complaints/litigation (1 for cause outside complaints/litigation (1 for cause test performed in the last 5 years)test performed in the last 5 years)

OHSU’s Drug Testing PolicyOHSU’s Drug Testing Policy

• Estimated cost: $25,000/yearEstimated cost: $25,000/year- 800 x $30 pre-employment tests- 800 x $30 pre-employment tests- 10 x $100 for cause tests- 10 x $100 for cause tests

• Cost figures do not match OHSU’s other Cost figures do not match OHSU’s other labs’ priceslabs’ prices


• Purported goals: Purported goals: – create safer climate for patient carecreate safer climate for patient care– protect University or Institution from protect University or Institution from

malpractice and wrongful hiring lawsuitsmalpractice and wrongful hiring lawsuits– promote positive view of institution from promote positive view of institution from

patients and other “health care consumers”patients and other “health care consumers”


• To date, no court has held an employer To date, no court has held an employer legally liable for not having a drug-testing legally liable for not having a drug-testing programprogram

• Employers have incurred substantial legal Employers have incurred substantial legal cost defending their drug-testing programs cost defending their drug-testing programs against workers’ claims of wrongful against workers’ claims of wrongful dismissaldismissal

The Growth of Physician The Growth of Physician Drug TestingDrug Testing

• Late 1980’s/early 1990’s: 9-15% of hospitals required Late 1980’s/early 1990’s: 9-15% of hospitals required testingtesting

• 1999: Two-thirds of 44 randomly selected large teaching 1999: Two-thirds of 44 randomly selected large teaching hospitals had formal physician drug testing policies:hospitals had formal physician drug testing policies:– for-cause and pre-employment testing most commonfor-cause and pre-employment testing most common– 13% mandated random testing13% mandated random testing– policies vague on procedural details and unclear regarding policies vague on procedural details and unclear regarding

responsibility for implementation of guidelinesresponsibility for implementation of guidelines– only half mentioned employee confidentiality; less than 50% of only half mentioned employee confidentiality; less than 50% of

these were explicit regarding access to and storage of recordsthese were explicit regarding access to and storage of records

The Growth of Physician The Growth of Physician Drug TestingDrug Testing

• 2002: 8% of anesthesia residencies employ 2002: 8% of anesthesia residencies employ random urine drug tests, but 61% of random urine drug tests, but 61% of anesthesia department chairs would approve anesthesia department chairs would approve of such a programof such a program

The Growth of Workplace The Growth of Workplace Drug TestingDrug Testing

• 1987: 21% of American Management 1987: 21% of American Management Association’s corporate members had Association’s corporate members had instituted drug testing programsinstituted drug testing programs

• 1996: 81% of major U. S. firms tested for 1996: 81% of major U. S. firms tested for drugsdrugs

• 1,200 % increase in periodic and random 1,200 % increase in periodic and random employee drug testing among Fortune 1000 employee drug testing among Fortune 1000 companies since 1987companies since 1987

School-Based Drug TestingSchool-Based Drug Testing

• 1998: Supreme Court let stand an Indiana 1998: Supreme Court let stand an Indiana decision extending testing from students decision extending testing from students athletes to students who enjoy “special athletes to students who enjoy “special privileges”privileges”

• 2002: “Vernonia School District vs. Acton” 2002: “Vernonia School District vs. Acton” – Supreme Court permits drug testing for Supreme Court permits drug testing for

students involved in extracurricular activitiesstudents involved in extracurricular activities– Local school board policies continued, addedLocal school board policies continued, added


• Substantial growth in number of schools Substantial growth in number of schools requiring mandatory, random drug testingrequiring mandatory, random drug testing– 14% of US high schools (almost all test 14% of US high schools (almost all test

athletes, 65% test those involved in athletes, 65% test those involved in “extracurricular activities,” 28% test all “extracurricular activities,” 28% test all students)students)

• Am J Publ Hlth 2008;98:826-8.Am J Publ Hlth 2008;98:826-8.


• AAP opposesAAP opposes• Primary care physicians lack knowledge, Primary care physicians lack knowledge,

preparedness to perform and interpret drug preparedness to perform and interpret drug teststests

• 93% of physicians who treat adolescents 93% of physicians who treat adolescents oppose random drug testing; 52% would oppose random drug testing; 52% would not discuss results with parentsnot discuss results with parents


• Most commonly used tests miss nicotine, Most commonly used tests miss nicotine, alcohol, Ecstasy (MDMA), Oxycontin, and alcohol, Ecstasy (MDMA), Oxycontin, and inhalantsinhalants

• $70,000/yr. for weekly random testing of 75 $70,000/yr. for weekly random testing of 75 students, millions allocated by governments students, millions allocated by governments alreadyalready


• Costs borne to a small degree by Federal Costs borne to a small degree by Federal Government’s Safe and Drug-Free Government’s Safe and Drug-Free Schools ProgramSchools Program

• Individual schools and school districts Individual schools and school districts cover portion of costcover portion of cost


• Corrections Corporation of America hired to do high Corrections Corporation of America hired to do high school drug sweep in AZ (2012)school drug sweep in AZ (2012)– Sign of increasing militarization of schoolsSign of increasing militarization of schools– 2013: TX high school using locator badges on all 2013: TX high school using locator badges on all

studentsstudents– ?more to come??more to come?

• 2011: Federal judge stops Linn State Technical 2011: Federal judge stops Linn State Technical College’s plan to drug test all first year (and some College’s plan to drug test all first year (and some returning) studentsreturning) students


• Private corporations [e.g., Roche Diagnostic Private corporations [e.g., Roche Diagnostic Systems, the leader in workplace drug Systems, the leader in workplace drug testing] often donate a portion of their testing] often donate a portion of their services hoping to build future demandservices hoping to build future demand

• Beverage companies sometimes pay a Beverage companies sometimes pay a portion of costs in exchange for exclusive portion of costs in exchange for exclusive licensing arrangementslicensing arrangements

The Growth of Drug TestingThe Growth of Drug Testing

• Estimated 130 million drug screens/yr in U.S.


• Fueled by popular misconceptions and hysteria Fueled by popular misconceptions and hysteria – ““Signs that your child may be using marijuana include Signs that your child may be using marijuana include

excessive preoccupation with the environment, race excessive preoccupation with the environment, race relations, and other social causes”relations, and other social causes”

(1999 Utah drug pamphlet)(1999 Utah drug pamphlet)– Business interests [e.g., Institute for a Drug-Free Business interests [e.g., Institute for a Drug-Free

Workplace, private companies (e.g., Workplace, private companies (e.g., CertifiedBackground.com]CertifiedBackground.com]

– P.R. campaigns of multi-billion dollar industryP.R. campaigns of multi-billion dollar industry– Junk scienceJunk science


• Groups with a vested interest in promoting drug testing:Groups with a vested interest in promoting drug testing:– The drug testing industryThe drug testing industry

• Lobbying groups include the Drugs of Abuse Lobbying groups include the Drugs of Abuse Testing Coalition and the Drug and Alcohol Testing Testing Coalition and the Drug and Alcohol Testing Industry AssociationIndustry Association

– The alcohol industryThe alcohol industry– The private prison industryThe private prison industry– The addiction recovery industryThe addiction recovery industry

The “Science” Behind Drug Testing: CostsThe “Science” Behind Drug Testing: Costs

• $35,000 - $77,000 for Federal $35,000 - $77,000 for Federal Government’s Drug Testing Program to Government’s Drug Testing Program to find one userfind one user

• Most workers identified are occasional Most workers identified are occasional moderate users rather than drug abusers; moderate users rather than drug abusers; more than half test positive only for more than half test positive only for marijuanamarijuana

The “Science” Behind Drug Testing: CostsThe “Science” Behind Drug Testing: Costs

• If 1 out of 10 of test positives is a drug abuser [what If 1 out of 10 of test positives is a drug abuser [what many consider to be a high estimate], average cost of many consider to be a high estimate], average cost of finding one drug abuser = $350,000 - $770,000finding one drug abuser = $350,000 - $770,000– If half of these would have been detected anyway, If half of these would have been detected anyway,

through other means, cost of drug testing to find one through other means, cost of drug testing to find one otherwise hidden drug abuser = $700,000 - $1.5 otherwise hidden drug abuser = $700,000 - $1.5 MillionMillion

• Costs likely to be higher when physicians are tested Costs likely to be higher when physicians are tested due to lower rates of substance use and abusedue to lower rates of substance use and abuse

Problems With Drug TestingProblems With Drug Testing• False-Positive and False-Negative ResultsFalse-Positive and False-Negative Results

– poppy seeds/opiodspoppy seeds/opiods– ibuprofen/cannabiniodsibuprofen/cannabiniods– selegiline/amphetaminesselegiline/amphetamines– tonic water/cocainetonic water/cocaine– Nyquil/opiates or amphetaminesNyquil/opiates or amphetamines– Robitussin/PCPRobitussin/PCP– alcohol lacing poorly recognizedalcohol lacing poorly recognized

• Differing rates of drug metabolism affect Differing rates of drug metabolism affect likelihood of positive results / racial and cultural likelihood of positive results / racial and cultural variationsvariations

Federally-Mandated Tests for Drugs of Abuse Federally-Mandated Tests for Drugs of Abuse and Drugs That Can Cause False-Positive and Drugs That Can Cause False-Positive

Preliminary Drug TestsPreliminary Drug Tests• Amphetamines – ephedrine, Amphetamines – ephedrine,

pseudoephedrine, phenylephrine, pseudoephedrine, phenylephrine, amphetamines, dextroamphetamine, amphetamines, dextroamphetamine, methamphetamine, selegiline, methamphetamine, selegiline, chlorpromazine, trazodone, bupropion, chlorpromazine, trazodone, bupropion, desipramine, amantadine, ranitidinedesipramine, amantadine, ranitidine


Preliminary Drug TestsPreliminary Drug Tests

• Cocaine metabolites – topical anesthetics Cocaine metabolites – topical anesthetics containing cocainecontaining cocaine

• Marijuana metabolites – ibuprofen, Marijuana metabolites – ibuprofen, naprosyn, dronabinol, efavirenz, hemp seed naprosyn, dronabinol, efavirenz, hemp seed oil, baby wash products (soaps and oil, baby wash products (soaps and shampoos)shampoos)– ““Spice” (“K2”) - synthetic cannabinoids) Spice” (“K2”) - synthetic cannabinoids)

missed by most screensmissed by most screens


Preliminary Drug TestsPreliminary Drug Tests

• Opiate metabolites – codeine, morphine, Opiate metabolites – codeine, morphine, rifampin, fluoroquinolones, poppy seeds, rifampin, fluoroquinolones, poppy seeds, quinine in tonic waterquinine in tonic water

• Phencyclidine – ketamine, Phencyclidine – ketamine, dextromethorphandextromethorphan

Problems With Drug TestingProblems With Drug Testing

• Seriously impaired alcoholics, who far outnumber Seriously impaired alcoholics, who far outnumber marijuana and opioid abusers, can be easily missed, marijuana and opioid abusers, can be easily missed, despite the fact that their mental and physical impairments despite the fact that their mental and physical impairments likely cause greater patient morbiditylikely cause greater patient morbidity– Marijuana can be detected for weeks after useMarijuana can be detected for weeks after use– 18 states and DC permit use of medical marijuana and 18 states and DC permit use of medical marijuana and

two states (CO and WA) permit recreational usetwo states (CO and WA) permit recreational use• 2012: Colorado policy considers physicians who 2012: Colorado policy considers physicians who

legally use marijuana unsafe to practicelegally use marijuana unsafe to practice

Problems With Drug TestingProblems With Drug Testing

• Multiple means of sabotaging tests and Multiple means of sabotaging tests and escaping detection existescaping detection exist – adulterationadulteration– dilutiondilution– purchase of “drug-free urine”purchase of “drug-free urine”

• Physicians largely ignorant of science, Physicians largely ignorant of science, proper use of testsproper use of tests

Fooling Drug Tests?Fooling Drug Tests?

• The “personal detoxification industry” is The “personal detoxification industry” is boomingbooming

• Most essentially worthless, easily detected Most essentially worthless, easily detected by good drug labsby good drug labs

• Drug Testing Integrity Act would outlaw Drug Testing Integrity Act would outlaw manufacture, sale, shipment or provision of manufacture, sale, shipment or provision of any product designed to thwart a drug testany product designed to thwart a drug test


• Examples:Examples:– Urinating then refilling bladder via concealed Urinating then refilling bladder via concealed

catheter with clean urinecatheter with clean urine– Detox drinks (“Ready Clean”) - vitamins and Detox drinks (“Ready Clean”) - vitamins and

herbs to “clean the urine”herbs to “clean the urine”– Urine additives (“Urine Luck”) – contain Urine additives (“Urine Luck”) – contain

oxidizers to block marijuana detection, but labs oxidizers to block marijuana detection, but labs can detect the oxidizercan detect the oxidizer


• Examples:Examples:– Mouth rinses ((“Saliva Cleanse”) – Mouth rinses ((“Saliva Cleanse”) –

vitamins and herbs to “clean the saliva”vitamins and herbs to “clean the saliva”– Shampoos (“Clear Choice”) – claim to Shampoos (“Clear Choice”) – claim to

coat hair with detection blockers – coat hair with detection blockers – shampoos, bleaches and dyes can alter shampoos, bleaches and dyes can alter drug concentrations in hairdrug concentrations in hair


• Most common methods of cheating:– Dilution (58%) - success rate 71%– Substitution of artificial or clean sample (25%)

– success rate 100%– Adulteration with household products (17%) –

success rate 75%


• Drug Testing Integrity Act (2008)Drug Testing Integrity Act (2008)– Illegal to buy, sell, manufacture, or Illegal to buy, sell, manufacture, or

advertise “cleansing” products that advertise “cleansing” products that promise to help consumers “defraud promise to help consumers “defraud a drug test”a drug test”

False-Positive TestsFalse-Positive Tests

• RiskRisk– Inevitable, since no test is 100% specificInevitable, since no test is 100% specific– For a non-drug user, the For a non-drug user, the onlyonly type of positive test type of positive test

• Consequences Consequences – Puts public reputation and future employability in Puts public reputation and future employability in

jeopardyjeopardy– may disrupt long-standing relationships with patientsmay disrupt long-standing relationships with patients– threatens large public financial investment in trainingthreatens large public financial investment in training– emotional and financial upheavalemotional and financial upheaval

Does Drug Testing Deter Does Drug Testing Deter Drug Use?Drug Use?

• Only 85 companies with drug testing have Only 85 companies with drug testing have performed any cost benefit analysisperformed any cost benefit analysis

• Frequently cited estimates of lost productivity due Frequently cited estimates of lost productivity due to drug use are based on data that the National to drug use are based on data that the National Academy of Sciences has concluded are “flawed”Academy of Sciences has concluded are “flawed”

• Negative impact on workplace moraleNegative impact on workplace morale• Urine collection process degrading and demeaning, Urine collection process degrading and demeaning,

particularly when it involves direct observationparticularly when it involves direct observation

Does Drug Testing Deter Does Drug Testing Deter Drug Use?Drug Use?

• Analysis of 63 high-tech firms in computer Analysis of 63 high-tech firms in computer equipment and data processing industry showed equipment and data processing industry showed drug testing reduced productivity by creating drug testing reduced productivity by creating environment of distrust and paranoia, rather than environment of distrust and paranoia, rather than in one which employees were treated with dignity in one which employees were treated with dignity and respectand respect

• Some employers have dropped pre-employment Some employers have dropped pre-employment screening because it unduly hindered their ability screening because it unduly hindered their ability to recruit skilled workersto recruit skilled workers

Public Support for Various Public Support for Various Drug Abuse Policies (% favoring)Drug Abuse Policies (% favoring)

• Anti-drug education in schools 93%Anti-drug education in schools 93%• More severe criminal penalties 84%More severe criminal penalties 84%• Increase funding for treatment 77%Increase funding for treatment 77%• Increase mandatory drug testing at work 71%Increase mandatory drug testing at work 71%• Surprise searches of school lockers 67%Surprise searches of school lockers 67%• U.S. military advisers in foreign countries U.S. military advisers in foreign countries

64%64%

Public Support for Various Drug Public Support for Various Drug Abuse Policies (% favoring)Abuse Policies (% favoring)

• Mandatory drug testing of high school Mandatory drug testing of high school students 54%students 54%

• Death penalty for smugglers 50%Death penalty for smugglers 50%• U.S. aid to farmers in foreign countries not to U.S. aid to farmers in foreign countries not to

grow drug crops 48%grow drug crops 48%• Legalize all drugs 14%Legalize all drugs 14%• One charity has paid over 1,300 drug and One charity has paid over 1,300 drug and

alcohol addicts to sterilize themselves!alcohol addicts to sterilize themselves!

Public Support of Americans for Public Support of Americans for MarijuanaMarijuana

• 80% support medical use of marijuana80% support medical use of marijuana• 75% support a fine-only (no jail) for 75% support a fine-only (no jail) for

recreational usersrecreational users• 40% support legalizing small amounts40% support legalizing small amounts• But, a majority oppose full legalizationBut, a majority oppose full legalization

Public Support of Americans Public Support of Americans for Marijuanafor Marijuana

• 18 states and DC have legalized 18 states and DC have legalized medical marijuanamedical marijuana– Feds not prosecutingFeds not prosecuting

• 2 states (CO and WA) permit 2 states (CO and WA) permit recreational marijuana userecreational marijuana use

Marijuana = $Marijuana = $

• Marijuana is California’s biggest crop Marijuana is California’s biggest crop (grapes #2)(grapes #2)– produces at least 8.6 million lbs/yrproduces at least 8.6 million lbs/yr– Street value = $13.8 billionStreet value = $13.8 billion

Physician Opinion Regarding Physician Opinion Regarding Drug Testing is MixedDrug Testing is Mixed

• Survey of practicing physicians in Midwest:Survey of practicing physicians in Midwest: – 60% -“infringed on rights to privacy”60% -“infringed on rights to privacy”– 38% -“lack confidence in testing procedure”38% -“lack confidence in testing procedure”– 56% - “would submit to mandatory testing 56% - “would submit to mandatory testing

without protest”without protest”– 8% “would refuse”8% “would refuse”– 7% “would hospitalize their patients elsewhere”7% “would hospitalize their patients elsewhere”– 7% “would file a lawsuit”7% “would file a lawsuit”

Physician Opinion Regarding Physician Opinion Regarding Drug Testing is MixedDrug Testing is Mixed

• 1994 survey: Half of Family Practice 1994 survey: Half of Family Practice Residency Directors opposed mandatory Residency Directors opposed mandatory pre-employment drug testingpre-employment drug testing

• 20% of senior medical students “would not 20% of senior medical students “would not rank” or “would rank lower” a program rank” or “would rank lower” a program with mandatory pre-employment drug with mandatory pre-employment drug testingtesting

Testing and Treatment of Testing and Treatment of Impaired PhysiciansImpaired Physicians

• Voluntary treatment programs for substance-Voluntary treatment programs for substance-abusing resident physicians supported by the abusing resident physicians supported by the Association of Program Directors in Internal Association of Program Directors in Internal MedicineMedicine

• Programs for substance-abusing physicians Programs for substance-abusing physicians available in almost all states and D.C.available in almost all states and D.C.– have been quite successful (22% test positive have been quite successful (22% test positive

during treatment, 71% still employed after 5 during treatment, 71% still employed after 5 years)years)

Testing and Treatment of Testing and Treatment of Impaired PhysiciansImpaired Physicians

• 90% of state licensure applications ask about substance 90% of state licensure applications ask about substance abuse, and inquire about functional impairment from abuse, and inquire about functional impairment from substance abuse (not simply about substance use substance abuse (not simply about substance use per seper se))

• If physician self-reports and/or cooperates with treatment, If physician self-reports and/or cooperates with treatment, state medical boards may not pursue disciplinary actionstate medical boards may not pursue disciplinary action

• States split on physician requirement to disclose impaired States split on physician requirement to disclose impaired or recovering status to patients as part of informed consentor recovering status to patients as part of informed consent

• Many physicians unprepared to/unwilling to report Many physicians unprepared to/unwilling to report impaired colleaguesimpaired colleagues

Disciplinary Actions Against Disciplinary Actions Against Practicing Doctors, 2008-2010Practicing Doctors, 2008-2010

• Information sources: State medical boards, Information sources: State medical boards, U. S. Department of HHS, DEA, and FDAU. S. Department of HHS, DEA, and FDA

• 5,721 serious disciplinary actions5,721 serious disciplinary actions– 3/1,000 physicians3/1,000 physicians

• Less than 10% disciplined for substance Less than 10% disciplined for substance abuseabuse

--Public Citizen Health Research Group ReportsPublic Citizen Health Research Group Reports

Disciplinary Actions Taken Against Disciplinary Actions Taken Against Doctors Cited for Substance AbuseDoctors Cited for Substance Abuse

Action Number PercentAction Number PercentRevocationRevocation 7171 2.9%2.9%SurrenderSurrender 111111 4.5%4.5%Revocation, Surrender, ofRevocation, Surrender, of

Controlled Substance LicenseControlled Substance License 116116 4.7%4.7%SuspensionSuspension 293293 11.8%11.8%Emergency SuspensionEmergency Suspension 136136 5.5%5.5%ProbationProbation 741741 29.9%29.9%

--Public Citizen Health Letter 2000;16(9):5.Public Citizen Health Letter 2000;16(9):5.

Disciplinary Actions Taken Against Disciplinary Actions Taken Against Doctors Cited for Substance AbuseDoctors Cited for Substance Abuse

Action Number PercentAction Number PercentRestriction of ControlledRestriction of Controlled

Substance LicenseSubstance License 143143 5.8%5.8%FineFine 4343 1.7%1.7%Required to Enter and ImpairedRequired to Enter and Impaired

Physician Program orPhysician Program orSubstance Abuse TreatmentSubstance Abuse Treatment 161161 6.5%6.5%

Other ActionsOther Actions 665665 26.8%26.8%Total ActionsTotal Actions 24802480 100.0%100.0%

--Public Citizen Health Letter 2000;16(9):5.Public Citizen Health Letter 2000;16(9):5.

““Go Directly to Jail”Go Directly to Jail”

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

Drug Testing and the Drug Testing and the Erosion of PrivacyErosion of Privacy

• Many programs require one to divulge Many programs require one to divulge prescription medications prescription medications – can cause false-positive or false-negative resultscan cause false-positive or false-negative results

• > 1/3 of members of American Management > 1/3 of members of American Management Association [the nation’s largest management Association [the nation’s largest management development and training organization] tape development and training organization] tape phone conversations, videotape employees, review phone conversations, videotape employees, review voicemail, and check computer files and e-mailvoicemail, and check computer files and e-mail


• Nearly half of Fortune 500 companies collect data Nearly half of Fortune 500 companies collect data on their workers without informing themon their workers without informing them– a majority share employee data with prospective a majority share employee data with prospective

creditors, landlords, charitiescreditors, landlords, charities– 35% check medical records before hiring or 35% check medical records before hiring or

promotionpromotion– 35% of U.S. companies run a credit check as a 35% of U.S. companies run a credit check as a

condition for employment (up from 19% in condition for employment (up from 19% in 1996)1996)


– Some illegally check urine pregnancy test, Some illegally check urine pregnancy test, using same sample obtained for pre-using same sample obtained for pre-employment drug screening - 1988 employment drug screening - 1988 Washington, D.C. P.D.Washington, D.C. P.D.

– up to 10% use genetic testing for employment up to 10% use genetic testing for employment purposespurposes

• DTC genetic tests available (cost $400 - $2000, DTC genetic tests available (cost $400 - $2000, inconsistent and often inaccurate resultsinconsistent and often inaccurate results

– genetic discrimination has been reportedgenetic discrimination has been reported


• Database searches of applicants’ credit Database searches of applicants’ credit reports, driving and court records, and reports, driving and court records, and workers’ compensation claimsworkers’ compensation claims

• Social networking site reviewsSocial networking site reviews• Some companies prohibit co-workers from Some companies prohibit co-workers from

dating, or ban off-the-clock smoking and dating, or ban off-the-clock smoking and drinkingdrinking

Drug Testing and Drug Testing and The Erosion of PrivacyThe Erosion of Privacy

• Public Video Surveillance CamerasPublic Video Surveillance Cameras– 4.2 million in England4.2 million in England

• Avg. Londoner monitored by 300 cameras per dayAvg. Londoner monitored by 300 cameras per day– 15,000 in Manhattan15,000 in Manhattan

• 50% of subway cameras defective50% of subway cameras defective– Very common in AsiaVery common in Asia– Market value = $13 billion (2009)Market value = $13 billion (2009)


• U.S. planning to fly 30,000 drones over U.S. planning to fly 30,000 drones over domestic airspace by 2020domestic airspace by 2020

• 2012: U.S. Supreme Court rules tracking 2012: U.S. Supreme Court rules tracking suspects via GPS without a warrant violates suspects via GPS without a warrant violates Fourth AmendmentFourth Amendment


• War of Terror being used to limit privacy, increase War of Terror being used to limit privacy, increase monitoring (2011 data)monitoring (2011 data)– Cost to protect U.S. secrets est. $12 billion - $13 billion Cost to protect U.S. secrets est. $12 billion - $13 billion

per year (up from $6 billion in 2002)per year (up from $6 billion in 2002)– 92 million documents classified (vs. 6 million in 1995)92 million documents classified (vs. 6 million in 1995)– Millions of requests for cell phone recordsMillions of requests for cell phone records– 30,000 government security personnel monitoring 30,000 government security personnel monitoring

domestic communicationdomestic communication


• Federal Do Not Track Kids Act proposes to:Federal Do Not Track Kids Act proposes to:– prohibit internet companies from collecting prohibit internet companies from collecting

information from children under 13 without information from children under 13 without parental consent and from teens without teens’ parental consent and from teens without teens’ consentconsent

– Prohibit companies from sending targeted Prohibit companies from sending targeted advertising to kids and teensadvertising to kids and teens


• License-plate camerasLicense-plate cameras– Catch speeders, stolen carsCatch speeders, stolen cars– Civil liberties issuesCivil liberties issues

• In one study, closed circuit TV operators watch In one study, closed circuit TV operators watch blacks twice as often as whites and monitor 1//10 blacks twice as often as whites and monitor 1//10 women for “voyeuristic” reasonswomen for “voyeuristic” reasons

• More street cameras led to 2% drop in crime; More street cameras led to 2% drop in crime; better streetlights – 20% dropbetter streetlights – 20% drop


• Hospital Locator BadgesHospital Locator Badges• Hand hygiene monitor badges; Hygreen Hand hygiene monitor badges; Hygreen

alcohol hand sensors; observation teamsalcohol hand sensors; observation teams• Routine screening of health professionals Routine screening of health professionals

for blood-borne viruses, other pathogensfor blood-borne viruses, other pathogens• Mystery patients (like secret shoppers)Mystery patients (like secret shoppers)


• 21 states still criminalize some forms of 21 states still criminalize some forms of sexual intimacy between consenting adults sexual intimacy between consenting adults (15 hetero- and homosexual, 6 homosexual (15 hetero- and homosexual, 6 homosexual only)only)

• Checkmate – $49.95 semen test kit that Checkmate – $49.95 semen test kit that enables suspicious spouses to check their enables suspicious spouses to check their better half’s underwear for signs of illicit better half’s underwear for signs of illicit liaisonsliaisons

Drug Testing and Drug Testing and the Erosion of Privacythe Erosion of Privacy

• Child Monitoring: GPS-enabled cell Child Monitoring: GPS-enabled cell phonesphones

• Philadelphia school captured photos of Philadelphia school captured photos of students using school issued laptop students using school issued laptop computer cameras at homecomputer cameras at home


• 23andMe has partnered with dozens of 23andMe has partnered with dozens of universities and high schools (offering universities and high schools (offering discounts on genetic testing and curricular discounts on genetic testing and curricular materials)materials)

• 2010: U.C. Berkeley abandons voluntary 2010: U.C. Berkeley abandons voluntary freshman genetic test due to public outcryfreshman genetic test due to public outcry


• Child snitch programs:Child snitch programs:- Pinkerton Services Group’s “Working Against - Pinkerton Services Group’s “Working Against Violence Everywhere”Violence Everywhere”- DARE - Recognize/Resist/Report (2003 GAO - DARE - Recognize/Resist/Report (2003 GAO study reports DARE ineffective in combating drug study reports DARE ineffective in combating drug use)use)- Scholastic Crime Stoppers- Scholastic Crime Stoppers- Students Against Violence Everywhere (SAVE)- Students Against Violence Everywhere (SAVE)


• DNA databases:DNA databases:– Most industrialized countriesMost industrialized countries– Federal government and all 50 statesFederal government and all 50 states

• Federal DNA Fingerprint Act keeps records of Federal DNA Fingerprint Act keeps records of accused and convictedaccused and convicted

• European Court of Human Rights ruled similar European Court of Human Rights ruled similar system in UK a violation of human rightssystem in UK a violation of human rights

– For those convicted and, in some cases, those merely For those convicted and, in some cases, those merely arrested (federal DNA database = CODIS – Supreme arrested (federal DNA database = CODIS – Supreme Court rules does not violate 4Court rules does not violate 4thth Amendment) Amendment)


• DNA databasesDNA databases– Some states store mandated genetic test data on Some states store mandated genetic test data on

newbornsnewborns– Iceland’s Decode Genetics Inc. and US firm 23andMe Iceland’s Decode Genetics Inc. and US firm 23andMe

(funded by Google Inc.) offer personal genome analysis (funded by Google Inc.) offer personal genome analysis for $1000for $1000

• 2012: First patent – gene variant that may be 2012: First patent – gene variant that may be protective against a rare genetic form of Parkinson’s protective against a rare genetic form of Parkinson’s DiseaseDisease

Blood Testing and Privacy

• NCAA now mandates testing for sickle cell NCAA now mandates testing for sickle cell train for all student athletestrain for all student athletes

• Texas ordered to destroy over 5 million Texas ordered to destroy over 5 million blood samples taken from babies without blood samples taken from babies without parental permission which had been stored parental permission which had been stored indefinitely for scientific researchindefinitely for scientific research

• Incomplete data collection can affect public Incomplete data collection can affect public health research and policyhealth research and policy

The “Patriot Act”The “Patriot Act”

• Passed with minimal debate, most Passed with minimal debate, most Congresspersons acknowledge not readingCongresspersons acknowledge not reading

• Increased governmental and corporate secrecy – Increased governmental and corporate secrecy – polluters subject to decreased public scrutinypolluters subject to decreased public scrutiny

• Erosion of civil liberties – deportations, accused Erosion of civil liberties – deportations, accused held without charge/access to legal counselheld without charge/access to legal counsel

• 70,000 individuals on government’s list of 70,000 individuals on government’s list of suspected terroristssuspected terrorists

National Defense Authorization Act

• Signed by President Obama in 2012• Grants Pentagon right to: kidnap,

indefinitely detain, torture, and kill foreigners and US citizens

• No right of trial / legal representation• First explicit piece of legislation to repeal

Bill of Rights


• Airport security “whole body imaging” Airport security “whole body imaging” scanners (TSA now removing)scanners (TSA now removing)

• Patriot Act / NSA spyingPatriot Act / NSA spying– Each day, the NSA intercepts 1.7 billion Each day, the NSA intercepts 1.7 billion

emails, phone calls, instant messages, bulletin emails, phone calls, instant messages, bulletin board postings, and other communicationsboard postings, and other communications

– ATT, Verizon, MCI, and Sprint complicit; ATT, Verizon, MCI, and Sprint complicit; Qwest refused to participateQwest refused to participate


• InfraGard: FBI/DHS program to recruit InfraGard: FBI/DHS program to recruit industry leaders for spyingindustry leaders for spying

• Some states allow warrantless cell phone Some states allow warrantless cell phone searchessearches

• FBI has digital archive of 96 million sets of FBI has digital archive of 96 million sets of fingerprints (convicted and accused fingerprints (convicted and accused criminals, including those exonerated)criminals, including those exonerated)

Big boss is watching:Big boss is watching:Percentage of companies that monitor Percentage of companies that monitor

employees’…employees’…

• Website connectionsWebsite connections 76%76%• E-mailE-mail 55%55%• Activity via video cameraActivity via video camera 51%51%• Time on phoneTime on phone 51%51%

Big boss is watching:Big boss is watching:Percentage of companies that monitor Percentage of companies that monitor

employees’…employees’…

• Computer file contentComputer file content 50%50%• Time at keyboardTime at keyboard 36%36%• Phone callsPhone calls 22%22%• Voice mailVoice mail 15%15%

• Average employee wastes 1.7 hours of an 8.5 hour Average employee wastes 1.7 hours of an 8.5 hour workday (largely on personal internet use)workday (largely on personal internet use)

Health Care DatabasesHealth Care Databases

• Health care databases/EHRs increasingly Health care databases/EHRs increasingly popularpopular– Microsoft’s HealthVault, Google Health, Microsoft’s HealthVault, Google Health,

hospital-based programshospital-based programs– EHRs collect and share information (e.g., EHRs collect and share information (e.g.,

re pharmaceutical prescribing and use)re pharmaceutical prescribing and use)– Multiple devices contain data Multiple devices contain data

(computers, tablets, smart phones, etc.)(computers, tablets, smart phones, etc.)

Health Care and PrivacyHealth Care and Privacy

• ½ of Americans are concerned their health data ½ of Americans are concerned their health data could be lost, damaged, or corruptedcould be lost, damaged, or corrupted

• Two-thirds of Americans do not trust their HMOs Two-thirds of Americans do not trust their HMOs to maintain confidentialityto maintain confidentiality– High profile breaches (e.g., Britney Spears, High profile breaches (e.g., Britney Spears,

Michael Jackson)Michael Jackson)• One in six American patients protects medical One in six American patients protects medical

privacy by foregoing treatment, switching or lying privacy by foregoing treatment, switching or lying to doctors, or paying out of pocket to avoid to doctors, or paying out of pocket to avoid records of visitsrecords of visits

Health Care Privacy Breaches

• 210 reported health care-related security breaches in 2010; 145 in 2011– Over 5 million people’s confidential medical

and/or financial information exposed; 10.8 million in 2011

• HHS requires reporting of privacy lapses involving over 500 patients

• HIPAA designed to protect patients’ privacy

The Slippery Slope of Workplace The Slippery Slope of Workplace Drug TestingDrug Testing

• Hair analysis for drug use, subject to Hair analysis for drug use, subject to external contamination from passive external contamination from passive exposure and different sensitivities based on exposure and different sensitivities based on hair color (blacks > whites)hair color (blacks > whites)– Hair tests can stay positive for up to 3 monthsHair tests can stay positive for up to 3 months– Increased melanin in dark-haired individuals Increased melanin in dark-haired individuals

binds some drugs for longer periods of timebinds some drugs for longer periods of time


• Urine testing for metabolites of medications used Urine testing for metabolites of medications used to treat conditions which may impair performance to treat conditions which may impair performance (depression, Parkinson’s disease, asthma)(depression, Parkinson’s disease, asthma)

• Genetic testing for diseases that may effect the Genetic testing for diseases that may effect the length of one’s potential career or insurance costs length of one’s potential career or insurance costs (Huntington’s or Alzheimer’s Disease, lipid (Huntington’s or Alzheimer’s Disease, lipid disorders, diabetes, etc.)disorders, diabetes, etc.)

The Slippery Slope of The Slippery Slope of Workplace Drug TestingWorkplace Drug Testing

• Burlington Northern Santa Fe Railroad and Burlington Northern Santa Fe Railroad and Lawrence Berkeley National Laboratory Lawrence Berkeley National Laboratory have performed genetic tests on employees have performed genetic tests on employees without their knowledge of consentwithout their knowledge of consent

• Polygraph tests, fMRI for lie detectionPolygraph tests, fMRI for lie detection• Predictive policingPredictive policing


• 2011: Florida Governor Rick Scott (R) issues executive order requiring drug tests on current state workers and new applicants

• 2011: Scott signs bill requiring drug tests for TANF program– positive test allows parent to choose another individual

to receive benefits on behalf of children – Aid recipients responsible for cost of tests ($30-$40)– 2.7% failed test


• Florida’s law struck down by courts after 4 months

• Similar Michigan law struck down as unconstitutional in 2003


• War on the poor:–9.6% of recipients of federal

assistance abuse drugs (vs. 6.8% in general population) (2002 study; other studies note no difference)

• 70% of all drug users between 18 and 49 are employed full time


• Florida Governor RickScott– Former CEO of Columbia/HCA– Fired after presiding over massive Medicare

fraud that cost corporation $1.7 billion federal fine

– Then set up Solantic (FL chain of emergency care clinics); transferred ownership to his wife upon entering statehouse

• Solantic is in the drug-testing business!


• IN, MO, and AK have laws similar to IN, MO, and AK have laws similar to Florida’sFlorida’s

• Other states have pending legislation similar Other states have pending legislation similar to Florida’sto Florida’s

• Senate and House bills would require all 50 Senate and House bills would require all 50 states to drug test all Temporary Aid for states to drug test all Temporary Aid for Needy Families (TANF) applicants and Needy Families (TANF) applicants and recipientsrecipients

Anti-Discrimination ProtectionsAnti-Discrimination Protections

• 15 States have enacted laws to protect 15 States have enacted laws to protect employees from genetic discrimination in employees from genetic discrimination in the workplace; a few others have legislation the workplace; a few others have legislation pendingpending

• Clinton: Executive Order prohibiting Clinton: Executive Order prohibiting federal agencies from using genetic federal agencies from using genetic information in hiring or promotion information in hiring or promotion decisionsdecisions

Privacy ProtectionsPrivacy Protections

• Various federal privacy actsVarious federal privacy acts• Health Insurance Portability and Health Insurance Portability and

Accountability Act (HIPAA)Accountability Act (HIPAA)• State laws vary re privacy, confidentiality, State laws vary re privacy, confidentiality,

security, use, and disclosure of public security, use, and disclosure of public health informationhealth information


• 2008: Federal Genetic Information 2008: Federal Genetic Information Nondiscrimination ActNondiscrimination Act– Bans health insurers from basing eligibility or Bans health insurers from basing eligibility or

premiums on genetics informationpremiums on genetics information– Prohibits employers from hiring, firing, Prohibits employers from hiring, firing,

promoting, or placing employees on the basis promoting, or placing employees on the basis of genetic informationof genetic information

– Based on earlier European legislationBased on earlier European legislation


• Unclear to what extent Fourth Amendment Unclear to what extent Fourth Amendment protections against unreasonable search and protections against unreasonable search and seizure and American with Disabilities Act may seizure and American with Disabilities Act may protect physicians with respect to disclosure of protect physicians with respect to disclosure of information or testing of bodily fluidsinformation or testing of bodily fluids

• Court challenges to drug testing based on First, Court challenges to drug testing based on First, Fifth and Fourteenth Amendments and alleging Fifth and Fourteenth Amendments and alleging violations of due process and equal protection violations of due process and equal protection have been generally unsuccessfulhave been generally unsuccessful

Drug Testing and Drug Testing and Privacy/ConfidentialityPrivacy/Confidentiality

• No way to completely safeguard that No way to completely safeguard that information will not be shared with information will not be shared with life, home, or health insurance life, home, or health insurance companies [and by extension with companies [and by extension with pharmaceutical companies], or with pharmaceutical companies], or with future employersfuture employers

Drug Testing and Privacy/ConfidentialityDrug Testing and Privacy/Confidentiality

• Identity theft (11.1 million American Identity theft (11.1 million American victims in 2009)victims in 2009)

• Pharmaceutical company data miningPharmaceutical company data mining– NH, ME now limitNH, ME now limit

Drug Testing and Privacy/ConfidentialityDrug Testing and Privacy/Confidentiality

• RFIDs (radio frequency identification tags): in RFIDs (radio frequency identification tags): in credit cards, shipping containers, passports, pets, credit cards, shipping containers, passports, pets, and consumer productsand consumer products– Approved for use in humans by former HHS secty. Approved for use in humans by former HHS secty.

Tommy Thompson (now a consultant for Applied Tommy Thompson (now a consultant for Applied Digital Solutions, owner of VeriChip)Digital Solutions, owner of VeriChip)

– CEO has suggested use in soldiers, immigrants/guest CEO has suggested use in soldiers, immigrants/guest workersworkers

• RFID chips can interfere with critical care medical RFID chips can interfere with critical care medical equipment, cause sarcomas in miceequipment, cause sarcomas in mice

Drug Testing and Privacy/Confidentiality:Drug Testing and Privacy/Confidentiality:Helpful DevelopmentsHelpful Developments

• The “Tattletale Pill”The “Tattletale Pill”– Prescription drugs with microchips Prescription drugs with microchips

with digestible antennae alerts with digestible antennae alerts doctors/family members when pills doctors/family members when pills takentaken

– May increase compliance, aid in May increase compliance, aid in researchresearch

Drug Testing and Privacy/Confidentiality:Drug Testing and Privacy/Confidentiality:Helpful DevelopmentsHelpful Developments

• National All Schedules Prescription National All Schedules Prescription Electronic Monitoring Reporting System Electronic Monitoring Reporting System (established 2005, vastly under-funded)(established 2005, vastly under-funded)– Allows tracking of fraudulent Allows tracking of fraudulent

prescriptions, controlled substance misuse prescriptions, controlled substance misuse and abuseand abuse

– An information tool, not a law An information tool, not a law enforcement toolenforcement tool

Testing ProtocolsTesting Protocols

• Which physicians should be tested Which physicians should be tested – Clinicians?Clinicians?– Researchers?Researchers?– Administrators? Administrators? – How often? How often? – Who should have access to physicians’ test Who should have access to physicians’ test

results [and potentially, by extension, other results [and potentially, by extension, other personal health data]personal health data]

Conclusions Regarding Conclusions Regarding Physician Drug TestingPhysician Drug Testing

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

Conclusions Regarding Conclusions Regarding Physician Drug TestingPhysician Drug Testing

• For-cause testing not unreasonable, For-cause testing not unreasonable, with appropriate safeguardswith appropriate safeguards

Conclusions Regarding Physician Conclusions Regarding Physician Drug TestingDrug Testing

• Pre-employment and random not-for-cause testingPre-employment and random not-for-cause testing– unscientificunscientific– ineffectiveineffective– costlycostly– public relations gimmickpublic relations gimmick– physician oppositionphysician opposition– legal ramificationslegal ramifications– ethical problemsethical problems

Improving Job Safety and Improving Job Safety and Quality of CareQuality of Care

• Consider alternatives to mandatory Consider alternatives to mandatory pre-employment and not-for-cause pre-employment and not-for-cause drug testingdrug testing

• Focus attention and resources on Focus attention and resources on systems factors which cause or systems factors which cause or contribute to a majority of medical contribute to a majority of medical errorserrors


• Invest in computerized medication ordering Invest in computerized medication ordering systems and more ancillary staff to assist residents systems and more ancillary staff to assist residents in non-educational tasks which contribute to in non-educational tasks which contribute to sleep-deprivation which intern can lead to errorssleep-deprivation which intern can lead to errors

• In 1999, the ACGME cited 30% of internal In 1999, the ACGME cited 30% of internal medicine residency programs for requiring their medicine residency programs for requiring their trainees to work more hours than regulations allowtrainees to work more hours than regulations allow


• Encourage Encourage vigilance/confrontation/reporting of clearly vigilance/confrontation/reporting of clearly impaired colleaguesimpaired colleagues– Up to 1/3 of physicians fail to report impaired Up to 1/3 of physicians fail to report impaired

colleaguecolleague• Failure to police the professionFailure to police the profession

– ?secret patients, undercover providers??secret patients, undercover providers?


• Reverse trend toward downsizing RNs in Reverse trend toward downsizing RNs in favor of less well-trained (but less favor of less well-trained (but less expensive) LPNs and CMAsexpensive) LPNs and CMAs

• Adherence to OSHA and EPA guidelines Adherence to OSHA and EPA guidelines regarding workplace safetyregarding workplace safety

• Improved Waste Reduction/ManagementImproved Waste Reduction/Management

Alternatives to Drug TestingAlternatives to Drug Testing

• Promote reference checking of new Promote reference checking of new staff members to appraise previous job staff members to appraise previous job performanceperformance

• Train supervisors to identify, confront, Train supervisors to identify, confront, and refer impaired physicians to drug and refer impaired physicians to drug treatment programstreatment programs


• However,However,– Only 2/3 of physicians agree with professional Only 2/3 of physicians agree with professional

commitment to report impaired/incompetent commitment to report impaired/incompetent physiciansphysicians

– Only 2/3 of physicians with knowledge of Only 2/3 of physicians with knowledge of impaired colleague reported him/herimpaired colleague reported him/her• Most common reasons for non-reporting were Most common reasons for non-reporting were

“belief someone else taking care of problem,” “belief someone else taking care of problem,” “belief nothing would come of report,” and “belief nothing would come of report,” and “fear of retribution”“fear of retribution”


• Pay increased attention to physician job- and life-Pay increased attention to physician job- and life-satisfaction [e.g., early identification and treatment satisfaction [e.g., early identification and treatment of depressive disorders and marital discord]of depressive disorders and marital discord]

• Improve coverage of mental health and substance Improve coverage of mental health and substance abuse treatment for medical students and residents abuse treatment for medical students and residents (78% of U.S. medical schools require co-pay, (78% of U.S. medical schools require co-pay, most private insurance programs have annual most private insurance programs have annual limits)limits)

• Employee Assistance ProgramsEmployee Assistance Programs


• Support knowledge testing [e.g., mandatory re-Support knowledge testing [e.g., mandatory re-certification], periodic hospital recredentialling, certification], periodic hospital recredentialling, and skills appraisal by colleagues and supervisorsand skills appraisal by colleagues and supervisors

• Establish intermittent impairment testing programEstablish intermittent impairment testing program– periodic evaluation of vision, reflexes and coordinationperiodic evaluation of vision, reflexes and coordination– can also uncover important physical disabilities [incl. can also uncover important physical disabilities [incl.

dementia], mental illness, and sleep deprivationdementia], mental illness, and sleep deprivation• Estimated 8,000 doctors with full-blown dementia practicingEstimated 8,000 doctors with full-blown dementia practicing

– may lead to treatment and/or work-modificationmay lead to treatment and/or work-modification


• If impairment testing suggests drug abuse, If impairment testing suggests drug abuse, formal drug testing, treatment, and follow-formal drug testing, treatment, and follow-up drug testing are not only reasonable, but up drug testing are not only reasonable, but also likely to benefit affected physicians also likely to benefit affected physicians and their patientsand their patients

• 47 states and DC have active Physician 47 states and DC have active Physician Health Programs to help with substance Health Programs to help with substance abuse (and mental illness)abuse (and mental illness)

The “War on Drugs”The “War on Drugs”

• Racist beginnings (“Chinese Opium Racist beginnings (“Chinese Opium Act” , Hemp/Marijuana)Act” , Hemp/Marijuana)

• Newspaper publisher William Randolph Newspaper publisher William Randolph Hearst demonized cannabis plantHearst demonized cannabis plant– Hearst heavily invested in wood pulp Hearst heavily invested in wood pulp

newsprint, wanted to shut down hemp newsprint, wanted to shut down hemp paper competitionpaper competition


• 1936: Church group produces film, “Reefer 1936: Church group produces film, “Reefer Madness”Madness”

• 1937: Federal government criminalizes 1937: Federal government criminalizes production and sale of marijuana/hempproduction and sale of marijuana/hemp

• Today:Today:– Marijuana is America’s largest cash cropMarijuana is America’s largest cash crop– Federal prisons overloaded with casual usersFederal prisons overloaded with casual users


• InterdictionInterdiction– e.g., $1.3 billion Columbia aid package e.g., $1.3 billion Columbia aid package

(incl. use of biological weapons)(incl. use of biological weapons)– 7 U.S. military bases in Colombia7 U.S. military bases in Colombia– Mexican drug war violence out of Mexican drug war violence out of

control, fueling anti-immigrant sentiment control, fueling anti-immigrant sentiment in U.S.in U.S.


• PunishmentPunishment- inequitable laws (crack vs powder - inequitable laws (crack vs powder cocaine)cocaine)- Fair Sentencing Act of 2010 adjusts - Fair Sentencing Act of 2010 adjusts penalties somewhatpenalties somewhat

• TreatmentTreatment

Decreasing Drug Use/AbuseDecreasing Drug Use/Abuse• Education/Social MarketingEducation/Social Marketing• PreventionPrevention

- vaccinations- vaccinations• Treatment (dollar for dollar, much more effective Treatment (dollar for dollar, much more effective

than interdiction and/or punishment)than interdiction and/or punishment)- needle exchange programs (MDs can prescribe - needle exchange programs (MDs can prescribe clean needles to addicts in 48 states; pharmacists clean needles to addicts in 48 states; pharmacists can dispense in 26 states)can dispense in 26 states)- chronic illness marked by relapse/non-- chronic illness marked by relapse/non-compliancecompliance

Decreasing Drug Use/AbuseDecreasing Drug Use/Abuse• Foreign Aid - social/agricultural vs. militaryForeign Aid - social/agricultural vs. military• InterdictionInterdiction• Focus also on legal drugsFocus also on legal drugs

- alcohol: >125,000 deaths/year- alcohol: >125,000 deaths/year- tobacco: (hypocrisy of export business)- tobacco: (hypocrisy of export business)

- 450,000 deaths directly, 50,000 deaths - 450,000 deaths directly, 50,000 deaths indirectly per yearindirectly per year

• Promote Sound Science/Cost-Effective Policies Promote Sound Science/Cost-Effective Policies and Interventionsand Interventions

CitationCitation

Donohoe MT. Urine trouble: practical, Donohoe MT. Urine trouble: practical, legal, and ethical issues surrounding legal, and ethical issues surrounding mandated drug testing of physicians. J Clin mandated drug testing of physicians. J Clin Ethics, 2005;16(1):69-81.Ethics, 2005;16(1):69-81.

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Public Health and Social Justice Public Health and Social Justice WebsiteWebsite

http://www.publichealthandsocialjustice.org

http://[email protected]

http://www.publichealthandsocialjustice.org/

http://www.phsj.org/

mailto:[email protected]

martin donohoe , m. d

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