Transcript Presentation - Balch & Bingham LLP

LEADERSHIP CONFERENCE
MISSISSIPPI HEALTHCARE EXECUTIVES (ACHE)
IDENTIFYING AND ASSISTING
THE IMPAIRED HEALTHCARE WORKER
June 9, 2010
The Grand Hotel, Point Clear, Alabama
Armin J. Moeller, Jr.
BALCH & BINGHAM, LLP
401 Capitol Street, Suite 200, Jackson, MS 39201
[email protected]
Tel. 601-965-8156
Fax: 888-594-5405
• IMPAIRMENTS?
– Alcoholism
– Substance Abuse
– Chemical Dependency
– Addiction – Eating/Gambling/Self Destructive
Behavior
– Mental/Emotional Instability
– Cognitive Impairment
– Voluntary/Involuntary – Does it Make a
Difference?
• SOCIETY'S CHANGING VIEW AND
CONFLICTING LEGAL OBLIGATIONS
– "I Did Not Inhale" to President Obama
– The Duty to Provide a Safe and Healthful
Workplace Free of Recognized Hazards
• Competent employees
– Duty to Provide Reasonable
Accommodations Under the ADA
– The Illusion of "Zero" Tolerance
– Recidivism
• FROM SUSPICION TO ACTION
– Looking for Symptoms – Does a Problem
Exist?
• Absenteeism
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multiple instances of unauthorized leave
excessive sick leave
frequent Monday and/or Friday absences
repeated absences, particularly if they follow a pattern
excessive tardiness, especially on Monday morning or
after lunch
leaving work early
peculiar and increasingly improbable excuses for
absences
higher absenteeism rate than other employees for colds,
flu
frequent unscheduled short-term absences, with or
without medical explanation
• FROM SUSPICION TO ACTION
– Looking for Symptoms – Does a Problem
Exist?
• On-The-Job-Absenteeism
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continued and prolonged absences from the work area
frequent trips to the water fountain or restroom
long coffee breaks
physical illness on the job
• High Accident Rate (and consequently, more
accident claims)
– accidents on the job
– accidents off the job that affect job performance
• Difficulty Concentrating
– work requires greater effort
– job takes more time
• FROM SUSPICION TO ACTION
– Looking for Symptoms – Does a
Problem Exist?
• Confusion
– difficulty in recalling instructions, details
– increasing difficulty in handling complex
assignments
– difficulty recalling own mistakes
• Spasmodic Work Patterns
– alternate periods of high and low productivity
• Report to Work
– coming or returning to work in an obviously
abnormal/impaired condition
• FROM SUSPICION TO ACTION
– Looking for Symptoms – Does a Problem
Exist?
• Generally Lowered Job Efficiency
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missed deadlines
mistakes due to inattention or poor judgment
wasting more material
making bad decisions
complaints from user of product
improbable excuses for poor job performance
• Poor On-the-Job Employee Relationships
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overreaction to real or imagined criticism
wide swings in morale
complaints from co-workers
unreasonable resentments
avoidance of associates
Source: Chris Drake, Account Manager, Metropolitan Family Services,
Employee Assistance Network, Chicago
FROM
SUSPICION
TO ACTION
Continued
Suspected
Impairment
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Observation Checklist
Employee Name ______________________________
1.
WALKING _____Stumbling _____Staggering _____Falling _____Unable to Walk _____Swaying
_____Unsteady _____Holding On
2.
STANDING ____ Swaying _____Rigid _____Unable to Stand _____Feet Wide Apart
_____ Sagging at Knees
3.
SPEECH
4.
DEMEANOR ___ Cooperative _____Polite _____Calm _____Sleepy _____Crying
__ Talkative _____Excited _____Sarcastic _____Fighting
5.
ACTIONS
6.
EYES
_____Bloodshot _____Watery _____Dilated _____Glossy ___Droopy _____Closed _____ Normal
7.
FACE
_____Flushed _____ Pale _____Sweaty
8.
APPEARANCE/CLOTHING_____Unruly _____Messy _____Dirty _____Partially Dressed
_____Body Excrement _____Stains _____Neat _____Having Odor
_____Staggering
_____Shouting _____Silent _____Whispering ___Slow _____Rambling _____Mute
_____Slurred _____Slobbering _____Incoherent _____Confused
_____Silent_
_____Resisting Communications _____Fighting ____Threatening ___Calm _____
Drowsy _____Profanity _____Hyperactive ____Hostile _____Erratic
9. BREATH
__Alcoholic Odor _____Faint Alcohol Odor
_____No Alcoholic Odor
10. MOVEMENT _____ Fumbling _____Jerky _____Slow _____Normal _____Nervous _____Hyperactive
11. EATING/CHEWING
_____Gum _____Candy _____Mints _____Other (identify if possible):___________
12. Other observations: (visible drug use, possession, sale, etc.; attendance; poor work
performance or accident; tampering with drug test; credible reports, etc.)
Observed by:
Observed by:
Date:
Time:
Location:
FROM SUSPICION TO ACTION - Continued
• Missing Equipment/Theft/Drug Shortages
• What Can I Do?
– Employee or non-employee?
– Non-employee
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physician
employee of contractor/vendor
right to require compliance with our rules?
impairment program
right to order removal?
• Can I Confront? – What Do Your Policies Say?
– Investigations policy
– Inspection policy – bags, purses, lockers, clothing?
– Cooperation policy
• full cooperation – answer all questions truthfully
• provide specimens upon request
– Drug testing/alcohol testing policy – Mississippi Law
• public hospital – safety sensitive positions
– The prescription medications problem
• HIPAA complainant release medical/drug prescription
records
FROM SUSPICION TO ACTION - Continued
• Investigations – Who Can Assist?
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Audit/Ethics/Security department representatives
HR professionals/department managers
Private investigators/security consultants
In-House/Outside counsel
• Effective Witness Interviews
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General/Open ended questions
Follow with focused questions
Who, what, when, where and how questions
Discover all details remembered
Solicit interviewee for other witnesses/sources of
information
– Don’t avoid the tough questions
OBJECTIVE OF INVESTIGATION
• Find Facts/Conclusions – Truth
• But if Not Certain – Good
Faith/Reasonable Grounds Upon Which to
Act
COOPERATION REVISITED
• Public Hospital Employees – Right Against
Self-Incrimination?
• Right To Counsel? Representative?
• Right To Record? (Where's My
Court Reporter!)
YOU CAN'T FIRE ME FOR THIS!
OR CAN YOU?
• Americans With Disabilities Act
– Must accommodate physical and mental impairments
– Alcoholism an impairment
– Recovering substance abusers protected
• ADAA
– Employer to engage in interactive process to provide
reasonable accommodations to qualified individuals
with disabilities
– What did you know/when did you know it?
YOU CAN'T FIRE ME FOR THIS!
OR CAN YOU? Continued
• Hospital Need Not Be Clairvoyant
• Misconduct Versus Reasonable Accommodation
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Any knowledge of impairment?
Any request for assistance?
Self-identification and request for help
Engaged in dischargeable offense
• knowledge of impairment prior to offense?
• attempted interactive process/intervention? rejected?
THE PROACTIVE HOSPITAL –
LIMITING LEGAL RISKS WHILE
REQUIRING PERFORMANCE
• Statement of Policy – "Consistent with Our
Hospital's Values We Support/Assist Our
Employees to Manage and Overcome Not
Only Ordinary but Even Extraordinary
Challenges to Their Well Being Including
Chemical and Alcohol Dependency …."
THE PROACTIVE HOSPITAL –
LIMITING LEGAL RISKS WHILE REQUIRING PERFORMANCE
Continued
• Policies!
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Cooperation
Investigations
Inspections
HIPAA compliant releases
Duty to report prescription medications and receive
approval
• EAP
• Insurance Coverage for Treatment with Our
Approval
• No Return Without Completion of
Treatment/Release Satisfactory to Us
– The recidivism problem
THE PROACTIVE HOSPITAL –
LIMITING LEGAL RISKS WHILE REQUIRING
PERFORMANCE - Continued
• Last Chance Agreement
• Referral to Specialists – Hospital
Contribution for Payment
• Impaired Physician Program
• Impaired Nurse Program
• Is It Fair? Strict Compliance, Hope, and
Never Giving Up
Armin J. Moeller, Jr.
Phone: 601-961-9900
Fax: 601-961-4466
[email protected]
401 East Capitol Street, Suite 200
Jackson, Mississippi 39201