Ins and OutsWrongful of the Substance Abuse Conduct Rule Reporting Act
n this issue, we will take a look at the reporting requirements established by the Substance Abuse Reporting Act (Act 411 of 2015, now codified as Ark. Code Ann. § 17-80-117), and make some recommendations on how best to comply with the new rules. Until Representative (and pharmacist) Justin Boyd introduced this Act, Arkansas law contained no meaningful requirements for a health care facility to report diversion or abuse of controlled drugs by its employees to state authorities. This meant that a facility might terminate an employee after suspecting that they were stealing or abusing controlled drugs, but neither law enforcement nor the relevant licensing authority would be made aware of the issue. The terminated employee was then free to go down the street to the next job—taking their diversion habits with them. Act 411 has changed all that. This Act, which became effective last fall, requires “required reporters”—licensed health facilities and entities that employ or contract with health professionals to provide healthcare—to report certain events to the state licensing authorities. The obligation is triggered when a healthcare professional at a facility has been terminated, lost their contract or privileges, or was allowed to resign “as a result of the diversion, misuse, or abuse of illicit drugs or controlled substances.” Ark. Code Ann. § 17-80-117(b). If one of these events occurs, the facility is required to file a report within 7 days of the termination with the professional’s state licensing authority, which is the “government agency or board charged with licensing, certifying or authorizing” the person to administer health care. Ark. Code Ann. § 1780-117(c). The report must include a description of the facts that led to the termination, as well as the name, address and telephone number of the healthcare professional. It is important to note that licensed facilities and entities covered by this Act are also obligated to file reports in some circumstances even if the employee is not a “healthcare professional.” This obligation arises if the termination of the employee was as a result of the diversion of controlled drugs to a third party. In that instance, the CEO or designated agent of the facility must report the identity and circumstances of the incident to local law enforcement. Ark. Code Ann. § 1780-117(e). In turn, if the licensing authority receiving the information determines that a healthcare professional may have diverted controlled drugs to a third party, the Act also requires that the licensing authority report the suspected criminal act to the local office of DEA. Ark. Code Ann. § 17-80-117(d). This requirement is not triggered until the licensing authority has investigated and given the professional due process, however. In most cases, this will not occur until the authority has held a hearing and taken final disciplinary action against the professional’s license. 16
As always, there are some caveats to these reporting requirements. The Act exempts the reporting of any information learned in connection with drug or alcohol prevention or treatment by an agency of the federal government or by an entity that is assisted by federal funds. Ark. Code Ann. § 17-80-117(f) (1); 42 USC § 290dd-2. Although this only exempts information that is obtained in connection with substance abuse treatment, the definition of “assisted by federal funds” is very broad— including Medicare providers and, in some circumstances, a registrant with the DEA—so if your entity provides any sort of alcohol or drug treatment, consider this very carefully. For more information on whether and how this exemption may apply to your entity, review 42 USC § 290dd-2 and 42 CFR 2.12 and consult your attorney. The Act also exempts information that is learned while providing healthcare services to the affected employee and all information from quality of care or peer review committees that is protected under Ark. Code Ann. § 16-46-105, § 16-46-109, and § 20-9503. It also provides immunity from civil liability for the reports required by the Act. Ark. Code Ann. § 17-80-117(i). If your entity has not yet revised its policies and procedures in light of this Act, I recommend that you do so immediately. Although the Act itself does not provide for any penalties against entities which do not comply with the required reporting, by definition, the facilities and entities subject to its provisions are ones that are regulated by state licensing authorities themselves. This means it is very likely that facility that fails to comply may be subject to disciplinary action by its own licensing authority for a violation of state law. The reporting requirements imposed by the Act are new to our state and your existing policies likely do not require your managers and supervisors to take any action beyond termination in connection with suspected diversion by your employees. At a minimum, you should implement a policy that requires all supervisory staff to report suspected diversion by an employee to senior management for a determination of whether it is reportable under this Act. You should also consider providing training on the Act’s requirements to all supervisory staff in your facility. To read the full text of the Act, visit the Arkansas General Assembly’s website at: ftp://www.arkleg.state.ar.us/acts/2015/ Public/ACT411.pdf. For advice on how best to ensure compliance in your facility, consult your attorney. § ________________________________________________________________________ About the author: Erika Gee represents clients in government relations, regulatory and compliance matters at Wright, Lindsey & Jennings LLP. She previously served as general counsel to the Arkansas State Board of Pharmacy for 6-1/2 years and as Chief of Staff and Chief Deputy Attorney General for Attorney General Dustin McDaniel. She uses her experience as general counsel for state agencies and licensing boards to assist clients to resolve regulatory and disciplinary disputes with state government.
THE ARKANSAS PHARMACIST
ARRX - The Arkansas Pharmacist Spring 2016