Printed in the Legal Intelligencer – January 3, 2017

On October 28, 2016, the Commonwealth Court of Pennsylvania ruled that the Pennsylvania Drug and Alcohol Abuse Control Act’s confidentiality provisions do not apply to drug test results held by a nurse-employee’s former employer.

Before the Commonwealth Court was the matter captioned Pa. Dep’t of State v. Abington Health, 2016 BL 359653, Pa. Commw. Ct., No. 242 M.D. 2016, 10/28/16. In this action, a former registered nurse (hereinafter “Nurse”) who worked for Abington Hospital (hereinafter “Hospital”) for approximately six years was suspected of using drugs or alcohol in violation of the Hospital’s policy. The Hospital collected a specimen from Nurse and sent the specimen to an outside laboratory for drug and alcohol testing. When the Hospital received the results of Nurse’s specimen test, Nurse was terminated.

The Department of State, the Bureau of Professional and Occupational Affairs, and the State Board of Nursing (hereinafter “Petitioners”) were informed by a third party that one of Hospital’s employees was terminated after failing a drug and alcohol test. Petitioners launched an independent investigation into this matter and served Hospital with a subpoena relating to the allegations that Nurse tested positive for controlled substances. Hospital produced Nurse’s personnel file, but refused to produce the drug and alcohol test results citing concern that these records are confidential pursuant to the Pennsylvania Drug and Alcohol Abuse Control Act (“the Control Act”) and the federal court opinion set forth in Murray v. Surgical Specialties Corp., No. 97-0444, 1999 U.S. Dist. LEXIS 277 (E.D. Pa., January 3, 1999).

Section 8(c) of the Control Act provides:

“All patient records and all information contained therein relating to drug or alcohol abuse or drug or alcohol dependence prepared or obtained by a private practitioner, hospital, clinic, drug rehabilitation or drug treatment center shall remain confidential and may be disclosed only with the patient’s consent and only (i) to medical personnel exclusively for purposes of diagnosis and treatment of the patient or (ii) to government or other officials exclusively for the purpose of obtaining benefits due to the patient as a result of his drug or alcohol abuse or drug or alcohol dependence except that in emergency medical situations where the patient’s life is in immediate jeopardy, patient records may be released without the patient’s consent to proper medical authorities solely for the purpose of providing medical treatment to the patient.”

In Murray, the federal court applied Section 8(c) of the Control Act and determined that an employee’s drug test results, taken for employment purposes, were protected from disclosure by virtue of the Control Act’s confidentiality provisions. Hospital cited this case in support of its refusal to release the Nurse’s test results to Petitioners.

However, Senior Judge Bonnie Brigance Leadbetter of the Pennsylvania Commonwealth Court rejected Hospital’s reliance upon Murray and Section 8(c) of the Control Act. The Court reasoned that the confidentiality provisions of the Control Act, applicable to patients and their patient records, granted for purposes of drug and alcohol treatment, did not apply to employees and their drug and alcohol tests generated for employment purposes.

The Court noted that, as discussed in Murray, the term “patient” is not defined in the Control Act. However, the Court reasoned that the undefined term shall be given its plain and ordinary meaning, and that “patient” means “one under medical care.” Bruno v. Erie Inc. Co., 106 A.3d 48 (Pa. 2014). Thus, the Court concluded that the Control Act only affords confidentiality to a patient who provided a specimen for purposes of drug and alcohol treatment or care, not to an employee, such as Nurse, who is required to submit a specimen for employment purposes.

The Commonwealth Court explained that the applicable law governing this dispute is Section 14(a)(2) of the Professional Nursing law which charges the State Board of Nursing with refusing, suspending, or revoking the license of a nurse who may be unable to competently practice professional nursing with reasonable skill and safety to patients due to “physiological or psychological dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination, so long as such dependence shall continue.” 63 P.S. § 224(a)(2). The Court pointed to the important, underlying purpose of both the Control Act and the Professional Nursing Law. The Control Act focuses on the patient’s right to maintain the confidentiality of his/her records as they relate to the seeking of treatment for drug and alcohol related issues. The purpose is to not deter these individuals from seeking such treatment. The Court opined that such was not the situation here and that the confidentiality provisions of the Control Act were not applicable. The Professional Nursing Law has a similar purpose. It is also intended to protect patients’ rights and to ensure that patient safety is not threatened by the diminished skills of a nurse or employee who is impaired by drugs or alcohol.

The Judge ordered Hospital to release Nurse’s test results to Petitioners and further ordered that the subject test results shall be maintained under seal and shall be disclosed by the parties only to the extent necessary in connection with the Board’s investigation and related administrative proceedings.

This decision places, on hospital employers, a duty to report drug and alcohol test results, related to its employees, to state licensing authorities, contrary to state privacy laws that appear to protect these test results from disclosure.

To read the Commonwealth Court’s Opinion, visit: http://caselaw.findlaw.com/pa-commonwealth-court/1752195.html

Vasilios (“Bill”) J. Kalogredis is Chairman of Lamb McErlane’s Health Law Department. Bill has been practicing health law for over 40 years, representing exclusively physicians, dentists, group practices, other health care professionals and health care-related entities.

*Katherine (“Katie”) E. LaDow, Esquire, an associate with Lamb McErlane P.C., contributed to this article. Katie is an associate in the litigation department. She concentrates her practice in the areas of state civil litigation, family law and Health Law.

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