Mandatory Drug Testing of Doctors Will Be Here

California is about to pass a law allowing random mandatory drug and alcohol tests for all physicians regardless of an employment or other event triggering reason. While Pennsylvania’s regulatory scheme is not yet this aggressive, DEA, federal OSHA, and Pennsylvania’s hospital reporting regulations already require event-based drug testing with confidential reporting and immunity for the reporting entity. Requiring doctors to now submit to random drug test, regardless of employment or professional setting, would be one more step in protecting medical consumers.

The significant difference between state random drug tests of doctors, rather than DEA- federal, is the vigilance with which Pennsylvania’s medical licensing board will investigate its recreational drug using physicians. Currently any medical practitioner that seeks emergency or other medical care, during which an illegal or non-prescribed scheduled narcotic is found in their blood, will be reported to the Board if the practitioner does not self-report. This will trigger a Board license investigation.

Random drug testing seeks to find the impaired physician rather than those physicians getting so bad that the impairment becomes obviously seen through criminal actions or poor behavior.  The importance of random drug tests is that they would reveal those physicians utilizing recreational drugs but functioning in a professional manner.  The Pennsylvania Medical Board will be equally hard on any type of drug using physician.

California’s step towards adopting this investigative tool is based upon the western states’  legalization of marijuana for personal use. Doctors are now legally getting high.  Unfortunately, the impairment presented by social recreational use of marijuana continues after the day of usage. Regulators are confronting professionals high on the job, rendering significant and serious medical decisions, but not necessarily showing signs of impairment.  Absent the random testing, a criminal investigation, or acute medical treatment, investigators and regulators will now be able to learn of a physician’s inappropriate recreation use illegal drugs.  This is for consumer protection.

California’s choice to do random drug tests indicates that it is going to be a per se violation state rather than an impairment state. By this I mean that regardless of whether the physician is impaired by the recreational drug of choice, the mere presence of that illegal substance in their blood will render them in violation of the regulatory scheme. This is currently the rule in Pennsylvania with regard to our driving under the influence laws. Conversely, New Jersey is an impairment state, requiring the state to prove the illegal substance caused “impairment” at the time at the time of investigation. California is seeking to not have to prove the impairment, just the use of illegal drugs.

Pennsylvania’s current medical regulatory scheme authorizes investigation and drug testing for suspicions of impairment as a result of anonymous tips or workplace events. California’s doctors are just now being brought into the modern age of regulatory investigation and consumer protection. The policy issue is do you want your doctor to be under the influence of an illegal substance while he/she is medically treating you or your family members. While there probably is a current similar scheme regarding suspicions of impairment, now California, and eventually the rest of the states, will use random testing to avoid the necessity of a have reasonable suspicion of an impairment to trigger testing.

All other the drug testing provision would still be enforced through the existing regulatory provisions. Alleged violations would be reported to the California Medical Board. As stated above, another provisions requiring hospitals to report the name of doctor suspected of abusing drugs or alcohol is also present, Pennsylvania already enforces this regulatory requirement regardless of whether the impairment is a prescription or illegal drug  abuse.

Please call me to discuss your medical license investigatory issues initiated by the Pennsylvania Medical Board as a result of your recreational or social use of illegal substances that do not affect your professional abilities.

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