Having a Positive Drug Test for an Un-prescribed Medication May be Grounds for Suspension; But is it Grounds for Disciplinary Action?

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Section 456.074(3), Florida Statutes, provides for any health professional licensed by the Florida Department of Health (DOH):

The department may issue an emergency order suspending or restricting the license of any health care practitioner as defined in s.456.001(4) who tests positive for any drug on any government or private sector preemployment or employer-ordered confirmed drug test, as defined in s. 112.0455, when the practitioner does not have a lawful prescription and legitimate medical reason for using such drug. The practitioner shall be given 48 hours from the time of notification to the practitioner of the confirmed test result to produce a lawful prescription for the drug before an emergency order is issued.

This law allows the emergency suspension of the licensee under any circumstances where there has been a positive employment-related drug test for an un-prescribed drug.

However, when one examines the various statutes setting forth grounds for discipline against a licensee, only Section 456.072(1)(aa) contains similar grounds as the basis for discipline. This section does apply to all licensed health professionals. Section 456.072(1)(aa), sets forth as grounds for disciplinary action:
 
Testing positive for any drug, as defined in s.112.0455, on any confirmed preemployment or employer-ordered drug screening when the practitioner does not have a lawful prescription and legitimate medical reason for using the drug.

The individual practice acts, including the Medical Practice Act (chapter 458, Florida Statutes), the Nurse Practice Act (chapter 464, Florida Statutes), the Dental Practice Act (chapter 466, Florida Statutes) and the Pharmacy Practice Act (chapter 465, Florida Statutes) contain no similar provision as grounds for disciplinary action. Instead these statutes indicate that there must be “impairment” of the health professional to be grounds for permanent disciplinary action.

Impairment of the provider is hard for the state department of health to prove, especially if there have been no accidents or incidents, no complaints or the individual’s performance has consistently been above average. Remember, just as in a criminal case, the state has the burden of proof against the licensee, and the licensee does not have to prove anything to prevail.


Defenses to Adverse Drug Testing Results.

So, what defense may be available to a licensed health professional under such circumstances? Hear are some that we have used or seen used in the past:

1.  Innocent or accidental investigation of a controlled substance. This may be a successful defense (actually an “affirmative defense”) where you can actually prove where the drugs came from and how you accidentally or unknowingly consumed it. For example:
 
-  A neighbor giving you a cookie containing marijuana, without your knowledge;
-  Taking an over-the-counter cough medication containing alcohol; or
-  Drinking tea made from coca leaves given to you as a gift not knowing it contained cocaine.

2.  Drug test not conforming with Section 112.0455, Florida Statutes. If the drug test given to you did not meet the requirements of Section 112.0455, Florida Statutes, this may be a successful defense. The procedures set forth in the statute must be followed or the test will be disallowed by an administrative law judge.
 
3.  Chain of custody and handling problems. Where a collection source fails to follow the appropriate procedures in handling collected specimens and tracking them, this can provide a defense. Examples we have seen include:
 
-  Incorrect name or social security number on a specimen.
-  A specimen bottle/tube not properly sealed.
-  Leaking specimens.
-  Failure to properly refrigerate specimens when required.
-  Failure to immediately label and seal the specimen in the presence of the sample donor.
-  A false positive test. I mention this possibility with reluctance because it is so difficult and costly to prove, yet we know it happens. You will need to retain the services of expert witnesses in lab chemistry and other specialties if you hope to succeed on this defense.


Possible Successful Defenses.

Additional defenses we have used successfully in the past have also included:

1.  Obtaining test reports from other pre-employment and employer-ordered drug tests.
 
2.  Placing the individual on our own program of random drug testing up through the time of the hearing to show he or she is not currently using any drugs (or alcohol) and is not impaired.
 
3.  Having the individual evaluated by a physician who is a certified addictions professional or who specializes in substance abuse or addictions medicine.
 
4.  Obtaining evidence (documents and witnesses) of the person’s good character and moral integrity, including, for example, documents from a military service record, statements from former supervisors, etc.
 
5.  Taking a polygraph examination (lie detector test) regarding the issue of whether the individual knowingly took a drug. Note, however, this may not be admissible if the other side objects to it.


Request Expedited Hearing.

If there is an emergency suspension in place, you are entitled to an expedited hearing, which normally means you will get one much quicker than you ordinarily would. But your attorney must request this in writing, usually by filing a petition or motion for an expedited hearing.


Appeal of Emergency Suspension Order (ESO).

In most cases, but not all, an appeal of an emergency suspension order (ESO), is not worth the time and money it will take. An appeal must be based on some legal defect in the ESO. An appeal is not for the purpose of contesting the facts stated in the ESO. You are not entitled to or allowed to dispute the facts on an appeal. The facts that are stated “within the four corners” of the ESO will be assumed by the appellate court to be true.


Where an Appeal of an ESO May Work.

Where we have seen appeals work:

1.  There are legal deficiencies in the ESO. For example, it fails to state that a positive, employer-ordered drug test was a “confirmed drug test as defined in Section 112.0455, Florida Statutes.”
 
2.  Where less restrictive measures are available, such as a restriction that would suffice to protect the public. For example, a physician or nurse might argue that he or she is currently in an administrative job not providing patient care, so no suspension is or was warranted, but was tried.


Purchase Insurance to Cover Professional License Defense.

We strongly and regularly urge licensed health providers to purchase their own separate insurance that will pay for their legal defense if a complaint is made against them. Such insurance is inexpensive, but it is invaluable when such an event occurs.

I hear over and over from health professionals being investigated or prosecuted for disciplinary action who state they “thought” they were covered by their employer. Given that, in most cases, it is your employer that initiated the action against you, this should be seen to be an illogical assumption. Even if an employer does provide or pay for malpractice (professional negligence) insurance in many cases this does not cover discipline against your license, unrelated to a patient claim for damages. So purchase your own professional license defense insurance and purchase it in a sufficient amount of coverage to protect you in the event you must go all the way through a formal hearing (trial) and an appeal.

With good insurance, you can then afford to properly defense yourself. You can properly develop your defenses and hire the right expert(s) you need. You can appeal an ESO (if appropriate) or an adverse finding. Otherwise, you may be faced with insurmountable legal fees at the time when you are unemployed.


Conclusion.

There are possibly defenses to any charge or alleged grounds of misconduct. However, if you intend to properly defend yourself against permanent disciple on your license, you must have the financial resources and mental stamina to go all the way through an administrative hearing and possibly an appeal.


Contact Health Law Attorneys Experienced with Investigations of Health Care Professionals and Providers.


The attorneys of The Health Law Firm provide legal representation to health care professionals and providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations and other types of investigations.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.


About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.


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(revised 6/19/2013)

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