Should I Report This Nurse for Abusing Drugs?

Carolyn Buppert, MSN, JD

Disclosures

August 13, 2014

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Question

I had a patient who was a nurse in an outpatient surgery center, and we found that she was abusing drugs that she obtained at work. Should we report her?

Response from Carolyn Buppert, MSN, JD
Healthcare attorney

The nurse who submitted this question provided additional details:

I had a patient in the hospital who was a nurse in an outpatient surgery center. We found that she has been abusing drugs for years, and she admitted that she was getting the drugs from work. The physicians taking care of her spoke with our risk management department about reporting her and were told that it would be a Health Insurance Portability and Accountability Act (HIPAA) violation, so nothing was done. What is our responsibility as nurses in this situation? Our nurse manager, citing the physicians' notes on risk management's position, has told us that we do not need to, and should not, report this nurse.

You have no responsibility to report the nurse, either to the police, the Drug Enforcement Administration, or the Board of Nursing. In fact, you should not report the nurse because that would be a HIPAA violation. HIPAA protects patient privacy by forbidding healthcare providers from disclosing patient information for any reason otherthan treatment, payment, or healthcare operations. A report to the Board of Nursing would not fall into any of those categories. Healthcare operations refers to administrative, financial, legal, and quality improvement activities that are necessary for a hospital or practice to run its business and support the core functions of treatment and payment. An example would be quality and improvement activities and case management.[1]

The Texas Board of Nursing answered a similar query as follows:

Whether a nurse is admitted for an overdose of a substance, or admitted secondary to some type of accident related to being under the influence of any mind-altering substance, the answer would remain the same.

As with the nurse admitted due to an overdose on a substance, a nurse admitted for treatment as a patient for any reason secondary to being found "under the influence" is also not reportable to the Board. Should the nurse's conduct lead to a criminal conviction, including an adjudicated or probated sentence, this would be self-reportable (or could be reported by another entity, such as law enforcement authority). A question regarding criminal conduct is also on the renewal form. In addition, the Board has Disciplinary Sanction Polices on "Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder" as well as "Lying and Falsification" that may be helpful for you to review.

The plan for the future will be to continue to comply with the Federal HIPAA law that mandates adherence to certain patient privacy rights in relation to a person's medical records and information. The BON [Board of Nursing] would have no grounds under NPA [Nurse Practice Act] Sections 301.401 to take action against a nurse who is being treated as a patient for any health problem. Occasionally nurses have, currently can, and probably will continue to lie on occasion about being treated or diagnosed with a reportable condition. Any nurse who falsifies information relating to the practice of nursing or nursing licensure runs the risk of being "caught" -- possibly years in the future, should the nurse be reported to the Board and investigated for possible practice violations. Nurses face stiffer sanctions from the Board when it is discovered that a nurse falsified information to the BON. You may wish to review the Board's various Disciplinary Sanction Policies (4 in total) that explain why the Board is concerned about certain actions/behaviors of nurses and how the Board typically acts in these situations.[2]

I can't say how other Boards of Nursing would answer, but it is likely that they would agree with Texas. HIPAA certainly supports that answer. States also have privacy regulations, and whichever regulations -- state or federal -- most support the patient's privacy control apply. Generally, Boards of Nursing want to encourage nurses who find themselves in a substance abuse situation to seek treatment, and even aside from HIPAA considerations, requiring mandatory reporting of a nurse who did seek treatment would discourage individuals from getting help.

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