Impairments and Health Professionals: What’s an Employer to do?

Health professionals, including physicians, dentists, nurses, paramedics, pharmacists, psychologists and social workers, are far from immune from chemical dependency, mental illness, and other conditions that impair their ability to do their jobs. When an impairment leads to poor performance or misconduct, health care employers, like other employers, must analyze  whether discipline, a reasonable accommodation, or another approach is warranted. But they do so in a highly regulated environment, where patient health and safety are paramount.

Where the health professional is licensed, the employer and other involved professionals may have duty to report the facts to a professional licensing board or, as discussed below, to a diversion program. Employers of physicians and registered nurses, for example, are to report certain: (a) actions taken by the institution to revoke, suspend, or limit the professional’s privilege to practice; (b) disciplinary actions; or (c) resignations by professionals before investigations are concluded. See Minn. Stat. §§ 147.111 and 148.263.  Each of the licensing statutes for the many licensed health professions is different, but many contain some form of mandatory reporting. Some require reporting from the employer and others require reporting only from licensed professionals. Many contain protections from liability for those making a report.

A reporting to a licensing board may not be the only required report. Depending on the circumstances, an employer may have other reporting obligations — for example to the Department of Health, to a welfare agency or common entry point for issues involving minors or vulnerable adults, to the DEA, or to the Board of Pharmacy among others.

As to licensing board reports, typically, once a report is made, the board will investigate and, depending upon the outcome of the investigation, may enter into a corrective action agreement with the professional, or proceed to revoke, suspend or condition the license of the professional, or take other disciplinary action. The public nature of disciplinary actions has led to concerns that some situations might go unreported, and leave impaired professionals in practice, and without monitoring, practice restrictions, or treatment, thus posing ongoing risks to public safety.

Minnesota has developed a program to address at least some of these issues.  The  Health Professional’s Service Program (HPSP) typically provides referrals for evaluation and treatment and develops an agreement with the professional that may include health and work place monitoring, practice restrictions, random drug screening, support group participation, and requirements regarding documentation of compliance. Generally, health professionals are eligible to participate in HPSP if they are licensed by a participating board and are “unable to practice with reasonable skill and safety by reason of  illness, use of chemicals, or as a result of a mental, psychological or physiological condition.”  They are unable to participate, however, if they have been noncompliant in the past, are already under a disciplinary action, were accused of sexual misconduct, are believed to create a serious risk of harm if they continue to practice, or if they have diverted controlled substances other than for their own self administration.  The HPSP statute currently provides that a report to HPSP fulfills the requirement that a report be made to the licensing board under that professional’s practice act.  See Minn. Stat. § 214.29.  Employers should note, however, that bills were introduced in the Minnesota House and Senate in the current session (see H.F. No. 1604 and S.F. No. 1181) that would require employers to report knowledge of diversion of narcotics or controlled substances to the appropriate licensing board and provide that reporting to HPSP alone would not be sufficient. 

Takeaway:  It is important for employers to review each circumstance carefully and fully understand their reporting and other obligations in dealing with a health professional whose impairment has or may lead to problems in the workplace. Employers should take action to protect public health and safety while also fulfilling their obligations as an employer to the affected professional.

About Sally Scoggin

Sally is a shareholder in the Employment, Benefits, and Labor section at Briggs and Morgan, P.A. and is an MSBA Certified Specialist in Labor and Employment Law. Her practice focuses on employment counseling and litigation for a broad range of clients, including health care clients. For Sally’s full bio and contact information, click here.

Posted on May 13, 2013, in Accommodations and Accessibility, Performance and Discipline. Bookmark the permalink. Leave a comment.

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