No practice is immune: Substance abuse can affect anyone

Dealing with an impaired employee or physician is a challenge any doctor's office may face. Establishing a policy on substance abuse and concentrating on treatment instead of punitive action can help.

By Carrie Printz, amednews correspondent — Posted Jan. 16, 2006

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If all the statistics are to be believed, there's a chance your practice at some point could have an employee, perhaps even a physician, struggling with drug or alcohol abuse.

It can be an issue for your practice beyond merely the performance and health of one employee. An employee's substance abuse problem can have a negative impact in terms of decreased productivity, absenteeism, turnover and medical costs. It also has the added impact in a physician's office of potentially harming patients.

If an employee has a problem, or if you even suspect an employee has a problem, your instinct might be to act on it quickly. But you face a thicket of ethical and legal questions that could leave you with no simple solution in dealing with it.

On one hand, you want to do everything you can to protect patients from any harm the employee could cause. On the other, employee privacy issues, Americans with Disabilities Act regulations and even the high cost of training a new worker come into play in how to treat an employee who might have a substance abuse problem.

"You're not going to throw someone away for asthma or diabetes," says Harold Urschel, MD, an addiction psychiatrist in Dallas. Substance abuse, he says, must be treated the same way.

Experts say there are two ways to approach the problem.

The first way is to have a written policy on substance abuse in advance. Any such policy should either be developed by or reviewed by legal counsel. The policy can be included in an employment contract, an employee manual or as a stand-alone policy. In any case, it is important that the employee read and sign the policy. The policy should clearly outline what the practice will do if substance abuse is suspected.

The second way comes after you suspect there is a problem. That's when things can get complicated, especially if no policy is in place. Attorneys recommend you document any unusual behavior or performance problems you see, and get legal counsel on how to confront and deal with the affected employee. Generally, it's recommended that rather than trying to fire an employee, or a physician, with a substance abuse problem, you should first work on getting that person into treatment.

Creating a policy

According to latest information available from the U.S. Dept. of Labor, 73% of drug users in 1997 age 18 and older were employed. This included 6.7 million full-time workers and 1.6 million part-time workers. More than 14% of Americans employed full and part time reported heavy drinking, which is defined as five or more drinks on five or more days in the past 30 days.

In addition, an estimated 6% of physicians have drug-use disorders and 14% have an alcohol-use disorder, according to Stephen Ross, MD, an assistant professor of clinical psychiatry at the New York University School of Medicine, writing in the December 2003 issue of Virtual Mentor, the ethics journal of the AMA. Those rates, he wrote, are consistent with the general population. However, he added, "considering the degree of responsibility entrusted in doctors, this significant number of impaired physicians is cause for concern."

As small businesses, doctors' offices often don't have the employee policies and procedures in place that larger companies have. "A high percentage of medical practices do not have a substance-abuse policy, especially smaller ones," said health care consultant C. Kay Freeman, president of Health Systems Strategies of Atlanta.

In fact, experts say, a small business such as a physician office can be more attractive to a person with a substance-abuse problem for that very reason, even discounting the lure of the prescription drug closet. So Freeman and other experts say even a small practice should have a substance-abuse policy in place.

The policy outlines key provisions for dealing with substance abuse among employees and could help address these issues before they create additional challenges.

Generally, the policy consists of three parts. First is an explanation of why you're implementing a policy. It can include discussions on patient safety, employee safety, practice liability and other issues. Second is a clear description of substance abuse-related behaviors that are prohibited, such as drug and alcohol use on the job, and being under the influence while at work. Third is a detailed explanation of the consequences of violating the policy, up to and including dismissal. These policies would apply to physicians as well as their employees.

Drug-testing procedures also can be covered. AMA policy, and most attorneys, recommend you limit testing to a pre-employment screening or if you have a reasonable suspicion an employee is under the influence.

Dealing with a problem

Now, say you already have an employee who has a problem. If you have a policy in place, at least you have something to guide you. But in any case, dealing with the situation won't be easy.

In most cases, you're not going to catch someone drinking on the job or snorting cocaine in the bathroom. Instead, what you'll notice are changes in behavior.

Dr. Urschel said that common red flags are chronic absenteeism, particularly on Mondays; falling asleep on the job; talking or acting "weird;" and chronic requests for money advances, adjustments or loans. Dr. Ross, in his Virtual Mentor article, said a physician struggling with abuse might give himself or herself away by showing increases in such factors as tardiness, secrecy, patient complaints, inefficiency, conflicts with colleagues and irritability and aggression.

"You should document the behavior that is causing you to suspect the problem and then confront the employee about it," said attorney Jan Hensel, a labor law expert with Buckingham, Doolittle and Burroughs of Columbus, Ohio. "You also should get legal advice."

Most employees will consent to a drug test -- either to clear their name or because they're relieved the problem has been identified, Hensel said. A test for suspicion of drug use is not considered a medical exam and therefore is not prohibited by the Americans with Disabilities Act.

Any business with 15 or more employees is subject to ADA, but in some states that number has been reduced through legislation.

Alcoholism itself is considered a disease and is protected by the ADA, as are rehabilitated drug abusers. That protection goes away if an employee comes to work under the influence of drugs or alcohol or is determined to be currently engaged in illegal drug use, attorneys say. In those cases, employers may discharge that person without fear of being held liable for discrimination.

However, Hensel said, practices cannot fire an employee for failing to submit to a drug test.

"Then you have to deal with the performance issues that led you to suspect a problem in the first place," she said, adding that having an employee's signature in advance on a written policy enables physicians' offices to require drug tests for any suspected problem.

Drug tests should be performed by a professional drug-testing lab that has strict procedures, such as obtaining two samples in case the results are questioned, Hensel said. AMA policy also recommends that any employer use a lab overseen by a medical review officer, a physician who reviews drug-testing labs' programs, test results and quality control.

Testing, then treatment

Beyond a pre-employment screening or a test based on suspicious behavior, the AMA recommends additional drug testing only as part of a comprehensive treatment plan. It also recommends using results to "motivate employees to seek treatment."

"Everybody would like addiction to be an acute illness -- like an infection that you take antibiotics for, and it's gone," Dr. Urschel said. "But it's not. People who think you can go into detox for three or four days and then you won't use anymore are the same people who promote zero tolerance in the workplace. It would be like firing someone because they have three or four heart attacks."

Dr. Urschel said that there is also a business reason for choosing treatment over a punitive action -- the high cost of replacing an employee.

"It can take $30,000 to $40,000 to train a good employee, and if you lose that person, it can be detrimental to your practice," he said.

Dr. Urschel recommends that an employee returning to work undergo random urine drug screens twice a week and sign a release allowing the office supervisor to speak with the outpatient counselor regularly. He also says the employee should attend 12-step meetings.

"This is holding the fat to the fire," he said. "It's putting the burden on the employee to seek recovery, not the staff."

The same holds true for physicians. "If a physician is confronted about these problems, I always recommend they seek intervention voluntarily instead of waiting for the state medical board to come knocking on their door," said Thomas Hess, a health care attorney and Hensel's colleague at Buckingham Doolittle and Burroughs.

In fact, AMA policy dictates that it's a physician's duty to stage a "timely intervention" to ensure that an impaired colleague ceases practicing and receives "appropriate assistance from a physician health program."

All 50 states have developed physician health committees, generally associated with state medical societies. These groups monitor addicted physicians for five years, including drug screening, ongoing treatment and performance when they return to work.

State medical societies also have other resources. The California Medical Assn., for example, has a confidential hotline for anyone with questions about how to help an impaired physician or dentist. The hotline is staffed by volunteer physicians and dentists who are experts in these issues -- some of whom are recovered addicts themselves, said hotline staffer Joseph Greaves. Volunteers refer callers to effective treatment programs.

"We try to help the caller help themselves before they put themselves and their career at jeopardy," Greaves said.

"Physicians are held to a higher standard, and for good reason -- people's lives are on the line. At the same time, they're human and they make mistakes."

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Spotting a problem

Stephen Ross, MD, clinical assistant professor of psychiatry at New York University School of Medicine, identifies red flags that should cause suspicion of a substance abuse problem. These are excerpted from the December 2003 Virtual Mentor, the AMA ethics journal (link).

Work-related symptoms

  • Late to appointments; increased absences; unknown whereabouts
  • Unusual rounding times
  • Increase in patient complaints
  • Increased secrecy
  • Decrease in quality of care; careless decisions
  • Incorrect charting or writing of prescriptions
  • Decrease in productivity or efficiency
  • Increased conflicts with colleagues
  • Increased irritability, aggression
  • Smell of alcohol; overt intoxication; needle marks
  • Erratic job history

Problems at home

  • Withdrawal from family, friends, and community
  • Legal trouble (i.e., driving while under the influence)
  • Increase in injuries
  • Increase in medical problems and number of doctor's visits
  • Increased agitation and conflict
  • Financial difficulties
  • Deterioration of personal hygiene
  • Depression, anxiety, mood instability

Other factors suggested by experts

  • Monday morning "flu," chronic absenteeism
  • Falling asleep at inappropriate times
  • Talking or acting "weird"

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