As a Florida healthcare provider, you’re subject to being drug screened at work for a variety of reasons, and it often comes as a surprise. If you’re drug screened at work, here are some things you need to know:
For one, refusing a drug screening is generally a violation of your practice act and your employer would report it to the Florida Department of Health (FLDOH), which reflects almost as poorly on you as if you’d actually failed the drug test. So, if you have concerns about whether you might test positive (for any reason) or not, don’t assume that simply refusing the drug screen is a safe option. There are still serious consequences involved, and if you’ve already refused, you should contact a lawyer immediately.
There are plenty of perfectly legitimate reasons to be concerned, from false positives, to contaminants, to legitimate or prescription medications, to wanting to keep certain medical conditions private, to concerns about whether the employer is applying their testing policy correctly or investigating their concerns fairly. But again, if you refuse a drug screen, your employer will almost certainly report it to the FLDOH and you’ll have an investigation to defend.
If you take a test, and your employer finds that you’ve failed to pass, the next steps are critically important. First, they should ask you to explain or excuse the positive test. In most cases, the only excuse they’ll accept is documentation of a legitimate prescription for the substance you tested positive for. If you have no such excuse, or your employer finds the excuse inadequate to explain the results, or they for some reason have other concerns about your impairment or use of intoxicating substances, the next steps are extremely important.
The first possibility is that your employer reports you to the regulatory authorities. This will either be the Florida Department of Health (FLDOH), your profession’s impaired practitioner program, or both. They may or may not inform you about who they’ve reported you to, or even that a report has been made. However, whoever they contacted will reach out to you, so if you take (or refuse) a drug screen and you are subsequently contacted by the Department of Health, Professional’s Resource Network (PRN), or the Intervention Project for Nurses (IPN), it is a sure sign that the results were reported. In this event, it is crucial that you do not discuss the matter until you’re prepared to make a fully informed decision. And ideally you’ll do so with the advice and assistance of counsel. You have the right to tell whoever contacted you that you wish to confer with counsel first, and in doing so, refrain from saying anything further. This ultimately helps the counsel you hire to be better positioned to prepare a stronger defense for your case.
The second common scenario that often happens is that the employer will give YOU the choice of who you get reported to. They’ll let you know that you can either report “or self-refer” to your impaired practitioner program, or that they’ll do it for you, and that if they don’t hear from you, then they’ll go ahead and report you to the Department of Health.
These conversations can be a little misleading. Often times your employer will make it seem as if the DOH is scarier or objectively a worse option than the impaired practitioner program. They may suggest that if you have nothing to hide then you have nothing to fear and that the program will make the right decision, whether that means clearing you, penalizing you, or reporting you to the DOH. Some employers might even lead you to believe that the program is the path of least resistance because your case is indefensible, or make it seem as though that isn’t even an option. We’ve seen many instances where our clients were led to believe that being reported to the DOH is as good as getting your license revoked.
While some employers may genuinely believe these things, due to relative unfamiliarity or only a surface level familiarity with the workings of the agencies involved, your own license is on the line and it’s imperative that you understand the situation because of the way the disciplinary process works and the choice you’re confronted with is far more complex.
In Florida, the two impaired practitioner programs are called Professionals Resource Network (PRN) and Intervention Project for Nurses (IPN). We’ve written a lot about what these are and how they work. It’s true that they function as a sort of “off-ramp” to the disciplinary process, and sometimes they really can make a situation better for you instead of worse. But they’re a double-edged sword and the risks and costs of interacting with them can be very serious. In practice, these programs are designed for dangerous practitioners with drug, alcohol, or other mental health problems, to give them a chance to rehabilitate themselves rather than being revoked.
Some licensees get the wrong idea and are led to believe that if you’re not impaired, the program is the way to go, and they will simply let you off the hook. The truth is, the program is a web of contractors with very close relationships to each other (even financial relationships), and as a result it operates something like a business and heavily favors treating referred practitioners as though they’re impaired. So you may think that nobody could ever think you’re impaired based on one drink a week or a single isolated use of marijuana, but how can you insure against the evaluator simply deciding you’re lying and diagnosing you anyway? You can’t, you can only select and manage the risks ahead of you by making the most informed decisions possible before you get there.
Even more importantly, the program has an extremely low bar for supporting impairment, as they only need to assess “risk” to justify ordering monitoring, they don’t need to actually prove your diagnosis. Even if they did, most of the professional licensing boards have an extremely high amount of deference and will generally enforce compliance with the program’s decisions, once they’ve made them.
Remember, this is all by design; the impaired practitioner program is essentially a ‘nuclear option’ for impaired practitioners. If your goal was to receive the benefit of the doubt, the chance to prove your innocence, or to hold the authorities to the burden of proof, then a direct investigation by the FLDOH would have been the appropriate path, instead of self-referring to PRN or IPN.
If PRN or IPN finds (as they almost certainly will) that you have an impairment or risk of one, they’ll “offer” you a monitoring contract. At this point, you don’t have much leverage; you must either agree to their terms (which, by their terms, are subject to modification at the program’s sole discretion), or be reported to the FLDOH, only this time, they know everything you disclosed to them in the intake process, and the charge will be one of noncompliance with monitoring, which is much harder to defend as it can usually be proven based on documentation alone. As such, for your practical purposes, once you make contact with your direct impaired practitioner program, your career is at their mercy. While it’s still better than not having one, it’s much more restrictive and time consuming going through PRN or IPN than defending a DOH investigation that could possibly never have proven impairment in the first place.
Contrary to what your employer and/or impaired practitioner program may lead you to believe, being investigated by the Florida Department of Health is not the end of the world. While it can result in revocation, an order to comply with your impaired practitioner program, or a dozen other things, it can also be dismissed without any discipline at all. The main benefit of letting the DOH investigate (rather than trying to preempt discipline by working with the impaired practitioner program) is that you have the right to defend your license, and there are numerous realistic opportunities to do so. It has similarities to a civil or criminal proceeding in that, to discipline your license, the government must prove the offense it has accused you of, and must meet a statutory standard of proof. When and if they recognize they can’t, these investigations often end with no charges at all.
Even if the DOH does issue a formal Administrative Complaint, its allegations are still presumed untrue in the absence of proof, provided we respond in such a way as to preserve your rights to a formal evidentiary proceeding. Then, while hammering out any disputes of fact, we have the chance to confer with the prosecutor assigned to your case in hopes of a negotiated resolution that both preserves your license and affords you some control over the ultimate outcome. Ultimately, the case will normally be decided in front of your professional licensing board, whether we go before them with an agreement, or an argument. Either way, we’ll have studied the statutes and precedent, and will be prepared with the legally applicable arguments in favor of the outcome we’re asking for. A hundred things can ultimately happen at these hearings, but the critical thing is that you’re not going in blind; you’ll have made a fully informed decision, with a realistic idea of the risks involved and we’ll be there every step of the way to help you mitigate them and navigate the process.
The Florida Department of Health acts as an adversary in these matters, while your employer and impaired practitioner programs ultimately protect their own interests. To protect your license, it is critical to have experienced counsel who is fully on your side from the very beginning. At Chapman Law Group, we focus exclusively on health care defense and understand the risks providers face when drug testing leads to disciplinary action. Some of the most important steps to protect your career can only be taken early, which is also when providers most often make serious mistakes. Call us today to discuss your situation, and let our team guide you through the process with the skill and dedication to safeguarding your license.
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Sarasota Office
6841 Energy Court
Sarasota, FL 34240
Phone: (941) 893-3449
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