By August 25, 2014, all health care facilities and providers licensed by the State of New Hampshire under NH RSA 151 (except laboratories and collection stations) must adopt a policy establishing procedures for the (1) prevention, (2) detection and (3) resolution of controlled substance abuse, misuse and diversion. The New Hampshire Legislature recently added this law in RSA 151:41.

This affects you – if you are a hospital, infirmary or health service of an educational institution, home health care provider, outpatient rehab clinic, ambulatory surgical center, hospice, emergency medical care center, drop-in or walk-in clinic, dialysis center, birthing center, residential care facility or adult day care service. (Note: you do not have to have this policy if you operate only as a physician office, other health care professional office or community health clinic or are a laboratory or collection station.)

The policy must apply to all individuals that provide direct or hands-on care to clients/patients of your facility, whether as employees, contractors or agents, if that care is part of their employment, engagement or representation. Therefore, you must be sure to educate all such existing and future employees, contractors and agents about the policy and their obligations under the policy.

The policy must designate an employee (or employee position) or an interdisciplinary team of employees responsible for the policy and its implementation.

Your policy must include all of the following components:

a. The way in which you are going to educate your workers;

b. Your procedures for monitoring the storage, distribution and procurement of controlled substances (if your facility stores, dispenses or administers controlled substances);

c. The way addicted employees can voluntarily self-refer for reporting and treatment;

d. How co-workers can and should report instances of abuse, misuse or diversion;

e. What your procedures are for drug testing, including, at a minimum, required testing where there is reasonable suspicion that abuse, misuse or diversion has occurred;

f. Your procedures for employee assistance;

g. How you will handle confidentiality regarding reports, investigations, self-referrals, drug testing procedures and results, and the like;

h. The process for investigating possible drug misuse or diversion, the procedures to be followed when a report of misuse or diversion is made and how resolution is to be achieved; and

i. The consequences when a violation of the drug misuse and diversion policy is determined to have occurred or when drug misuse, abuse or diversion has occurred.

You do have flexibility in developing your policy – the law requires that you adopt standards appropriate to the size of your facility, the nature of the services you provide and the health care setting. However, avoid just quoting the law’s requirements and assuming that this is sufficient. Do develop and adopt specific procedures and processes to be followed.

Your existing policies may overlap with this new policy. For example, you need to consider your existing drug testing policy if you have one and be careful to integrate it with the new policy. The new law requires that you do drug testing at least where there is reasonable suspicion of misuse or diversion, but if your existing drug testing policy calls for random drug tests in addition, that is fine.

What happens if you don’t comply with the new requirements? Under the licensing law, RSA 151:16 and 16-a, individuals who fail to comply would be guilty of a violation for their first offense (increased to a misdemeanor with the second) and entities/facilities would be guilty of a misdemeanor for the first offense (increased to a felony subsequently). Either also may be subject to an administrative fine of $2,000 for each offense. Finally, violations can place your facility’s license at risk.

It is prudent to review your existing policies, develop, adopt and meet the new policy requirements as required and consult with experienced legal counsel to ensure compliance with this new law.

If you have any questions or would like additional information, please contact one of our Health Care Attorneys in the New Hampshire office.