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Tennessee Employers Subject to New Obligations to Report Healthcare Practitioners' Confirmed Drug (but not Alcohol) Tests and Test Refusals

By Dale L. Deitchler, Harry W. Wellford, Jr. and Jennifer Robinson

July 12, 2017
4 minute read

A new Tennessee law, effective July 1, 2017, imposes new reporting requirements on healthcare practitioner¹ (HCP) employers. Under the new reporting law, in certain circumstances, HCP employers must "promptly" report to the state HCP employees with confirmed (positive) drug test results² or those who refuse to submit to any work-related or directed drug test, including but not limited to pre-employment drug tests. The law does not apply to confirmed positive alcohol tests or refusals to submit to alcohol testing. The law does not contain an affirmative reporting obligation requiring reporting of information to other employers, although it does create a mechanism for certain employers to share information.

HCPs Must Either Explain the Result or Report to and Comply with Peer Assistance or Treatment Program Requirements of the Appropriate Board

Under the new law,³ HCPs have three business days from the time of notification of a confirmed test result to either:

produce a lawful prescription for the drug or a valid medical reason for using a drug to their employer; or
report to the state’s substance abuse peer assistance or treatment program of the HCP’s board.⁴

HCP Employers Must Report Non-Compliant HCPs to the Tennessee Department of Health and the Appropriate HCP Board

If HCPs lacking prescriptions or valid medical reasons fail to report to, or fail to participate in and comply with, the applicable peer assistance or treatment program, the program must report the HCP's violation of the law to the appropriate board. In addition, the HCP employer must report⁵ the confirmed drug test, refusal and violation of the Act to the Tennessee Department of Health and the appropriate licensing board.⁶ Further, the appropriate board will suspend the license of HCPs who fail to comply with the terms and conditions of the program. According to the bill's legislative history, the intent of these programs is to keep addicted employees away from patients until they are drug-free.

HCP Employers Have No Affirmative Obligation to Report HCPs to Other Employers, but Some Information May Be Shared Through Quality Improvement Committees

While there is no affirmative reporting obligation to report confirmed drug tests or test refusals to other healthcare employers, the new law allows “quality improvement committees” (QICs)⁷ to “share information concerning substance abuse” by HCPs licensed or certified under Tennessee health care laws with “another quality improvement committee” pursuant to statutory protocols⁸ “in furtherance of the functions of the committees.”⁹ Legally compliant sharing of information between QICs is subject to protective “privilege” of the disclosure. While Tennessee healthcare employers might anticipate that other non-QIC disclosures would ultimately be subject to privilege as established by Tennessee reviewing courts, unless and until such a ruling issues, Tennessee HPC employers should disclose only confirmed drug tests, test refusals and violations of the new law if the HCP has failed to satisfy the explanation and peer assistance/treatment program requirements of the new law.

¹A “healthcare practitioner” is any person required to be licensed, permitted, certified or authorized under Tennessee’s health care laws by one of thirty (30) health care boards (including dentists, physicians and nurses), alcohol and drug abuse counselors and certain emergency medical personnel. Tenn. Code Ann. §§ 63-1-126(a)(4)(A) and 68-1-101(a)(8), Tit. 68, ch. 24, part 6 and Tit. 68, ch. 140.

²“Drug” means marijuana, cocaine, opiates, amphetamines and phencyclidine. Tenn. Code Ann. §§ 50-9-103(6) and 63-1-126(a)(2), 49 C.F.R. §40.87. “Confirmed drug test” means a second analytical procedure used to identify the presence of a specific drug or its metabolite in a specimen, which test must be different in scientific principle from that of the initial test procedure and must be capable of providing requisite specificity, sensitivity and quantitative accuracy. Tenn. Code Ann. §§ 50-9-103 (4) and 63-1-126(a)(1).

³The law authorizes the Tennessee Commissioner of Health to promulgate regulations, but none have been implemented. Tenn. Code Ann. § 63-1-126 (e).

⁴Tenn. Code Ann. § 63-1-126 (c).

⁵It is unclear under the new law how HCP employers will learn or know of non-compliance, but careful employers should seek legally compliant authorizations to receive basic status information regarding HCPs reporting to, and compliance with, an applicable program.

⁶The most reasonable interpretation of the new law is that an HCP employer’s reporting obligation only attaches in the event of an HCP's failure to produce a lawful prescription or medical reason and failure to report to and successfully complete the applicable program. The law authorizes the Tennessee Commissioner of Health to promulgate regulations, that, when implemented, will provide clarity on this issue. Tenn. Code Ann. § 63-1-126 (e).

⁷ QICs are committees formed or retained by a healthcare organization, an activity of a healthcare organization, or one or more individuals employed by a healthcare organization performing various types of statutorily-defined healthcare functions, including evaluation and improvement of the quality of healthcare services. Tenn. Code Ann. §§ 63-1-127 and 63-1-150.

⁸ See Tenn. Code Ann. §§ 63-1-150(d)(3) and 68-11-272(c)(3).

⁹ Tenn. Code Ann. § 63-1-127.