Our Guest: Brianna Graham MSN, RN, NPD-BC, ONC Diversion Prevention Specialist
Today’s guest is Brianna Graham, a self-taught expert on the intersection of the ADA and diversion investigations. We will navigate the complex interplay between the Americans with Disabilities Act (ADA) and investigations into substance use disorder and potential diversion of controlled substances in healthcare settings. Brianna will give a good overview that may help you interpret more detailed information you read on the ADA website.
Transcript:
Terri
Hello, everybody. Welcome back to Diversion Insights. My guest today is Brianna Graham. Brianna is a nurse and the diversion prevention specialist. Welcome, Brianna.
Brianna
Thank you very much for having me.
Terri
Today’s topic is the American Disabilities act and how it relates to substance use disorder. Brianna has done a lot of learning on this topic, self teaching herself on something that a lot of us probably don’t even wanna dig into. And so we’re gonna learn from her today. But let’s talk a little bit. Let’s start, Brianna, with a little bit about you. How did you get where you are in terms of your nursing career and being the diversion prevention specialist?
Brianna
I work for a large health system in the midwest, and I have been a nurse since I was 19 years old, really? And I’m going on 24 years. So go ahead and do the math on that. I started off in long term care as an LPN, a CNA, then an LPN, then I got my rn, and I worked as a surgeon, surgical trauma, ICU nurse. For the whole first half of my career, I’ve been an infectious disease clinical coordinator, where I coordinated a group of six physicians. I have been manager of an orthopedic inpatient unit. I have been a system wide clinical educator for our health system and all of the clinical employees coming into the health system, I ran. I also worked with the nurse residency program at the time. I’ve been a hospice manager. I have been an oncology navigator.
Brianna
And then I took a role in the risk management department. And happenstance that the person who was in the diversion role previously was exiting for new career opportunities, actually with a software company in diversion monitoring. And there was no one even trained to do her work. And so I had said, I’m happy to jump in. And the day that I took over the role, I found out were being internally audited. So I was honestly probably the only person that was really excited about that because I. I know how I like to run programs, and if I’m going to do it’s going to be done right. And so I knew this would give me the leverage I needed to get additional resources for our program, and in just one year, I am a little flabbergasted at how far we’ve come. So we are.
Brianna
We are very much making leaps and bounds in progress. So it’s. It’s been a tumultuous learn as you go. A lot of self teaching. Luckily, I’m very resourceful. My master’s is in leadership and administration, and I am certified in nursing professional development. So I’m pretty good at. If I don’t know the answer, I can find it. And I’ve made a lot of fantastic collaborations with, you know, actual experts, so.
Terri
That helps a lot.
Brianna
And so. So I definitely am not a person who is in the slightest bit intimidated to ask for help when I don’t know the answer because I want to make sure I’m doing it right and it doesn’t my way.
Terri
So that’s good. Yeah, that’s good. And what a breadth of experience that you have. You know, lots of different discipline areas, you know, ortho and ICU and all of that, and then infectious disease. I mean, that’s something I think a lot of people kind of forget is a really integral part of any diversion program is that piece of it. So you’ve got that background as well, too. So it sounds like, yeah, you’ve got a lot of depth of knowledge of various things.
Brianna
And I can honestly say that every single role that I have been in is what makes me be able to be very compassionate and effective in this role. So honestly, if you would have taken out any one of those previous roles, I don’t think I would able to do this justice. So.
Terri
Yeah, yeah, no, that sounds great. Okay, so the American Disabilities act, it’s a complicated topic, and obviously you misstep on any of those, you could find yourself in a little bit of legal trouble. So we’ll just do a little disclaimer here. Right. Is that your legal department? But hopefully after today’s conversation, maybe the listeners will think about a few things that they never really thought about. It might generate some questions in their own mind that, oh, you know, we should check on that, or they might realize, oh, we could be taking advantage of that potentially. So let’s look into that. Just really give them a few things to think about. So let’s. I want to try to be as methodical as we can because I know there’s a lot to it.
Terri
So we’re going to go through the diversion, suspected diversion investigation type of process and kind of ask some questions as we go. And then if we get to the end and we skip some pieces that didn’t come up that you think are important, then be sure, and we’ll talk about that at the end. So let’s just start at the very beginning. We have somebody that we think might be working impaired or diverted, diverting controlled substances. Is there anything related to the American Disabilities act, the ADA, that we need to consider as we begin our investigation?
Brianna
Right.
Terri
We’re still looking at the chart, considering the behaviors, the performance we’re involved in, maybe initial conversations with the manager to determine what the next steps are going to be. Anything with ADA here at this very beginning that we need to be thinking about.
Brianna
So the ADA does not protect against anyone who is currently illegally using drugs. Now, again, I am going to have to say this multiple times throughout. I am not a legal expert. Please do not mistake anything that I am saying for actual legal advice, by any means. This is from personal experience as a nurse and as a diversion prevention specialist and working with our employment lawyers, our compliance department, our legal department. So this may work for your organization. It may not, but the ADA itself does not protect against anyone who is currently illegally using drugs. That can also include things like they may have previously had a prescription for percocet that they no longer have an active prescription for that would be considered illegal use, or if they’re taking more than what is prescribed to them, also illegal use.
Brianna
So none of that is covered. But it is in that respect, you are going off on the basis of a theft investigation. And so in that particular instance, not necessarily, but as soon as I say that, there will be, you know, a case where that could come into play. But if we’re looking at general terms, we’re just in the initial phase. We’re gathering data at this point, we’re just looking at the investigation itself.
Terri
Right. Yeah. So it’s too soon to tell. I suppose you could have potentially somebody that’s working impaired, not diverting, they have a prescription, and it’s. It’s impacting them.
Brianna
Yes. And in those situations, based on whatever they’re taking it for, if they have a documented reason, if they’re under a physician’s care, that is protected. So that, you know, again, you do have to be very careful with that. There’s, I mean, we can’t even get lawmakers to agree on this. So it is a very convoluted process at best. And, but there was a, for example, there was a customer service worker who was taking dilaudid injections under the, you know, completely under the appropriate care of a physician, and the physician would allow her to go back to work within a couple of hours of those Dilaudid injections. And the manager was complaining that she was impaired. Drowsy dilaudid injections. You would expect that, but she had a medical debilitating migraine, and she would miss several days of work.
Brianna
And so she had to then get an FMLA. And the employer was feeling like she was abusing the FMLA, and the doctor was like, listen, she. She has a legitimate purpose here. And she was eventually terminated. I’m skipping a lot. This is a very broad overview. And she was absolutely protected under the ADA because she was assumed to be a drug user, and that is also covered under the ADA. So if you are assumed to be a drug user and not actually a drug user, that’s still protected under the ADA. So, again, it gets extremely complicated, which is why you never want to go at this by yourself. You definitely want to use all of your legal resources at your disposal. Yeah. She was awarded $1.8 million in damages and 10,000 in emotional damages.
Terri
Wow.
Brianna
Yeah. Wow. It can get messy real quick.
Terri
Yeah. And in these initial part, where you’re just beginning to start looking into things you really don’t know. And I’ll take this right now as an opportunity to say to people, do be careful that you don’t start forming your opinions too soon. Because I think those of us that have been doing this a while, there have been times when Laura, oop. Clear cut case. And then it ends up not being a clear cut case. And there’s actually another explanation.
Brianna
I’ve had that happen a lot. And how we approach our diversion investigations is, it’s a process of elimination. We don’t even get to the diversion conclusion unless there’s literally no other explanation that we can find. And we have had interviews where, you know, it walks like a duck, you know, quacks like a duck, and we get to the interview, and the person gave a completely plausible definition that re explained the data that looked so black and white in the first place. And we just went, no, we’re not going to accuse someone of something when this is a perfectly plausible explanation. And so, yeah, we’ve pivoted on a dime in our department.
Terri
Yep. Yep. That makes a big difference. And so we can’t go into this biased. And as you said, an individual, it’s easy for a single one of us to be biased, but if we are a team that is looking at it, we need to be open to listening to what everybody has to say and working together and keep that bias out of it. Okay. So we’re ready to go to the next steps then, with this person. We’ve done all our charting evaluation and talking to the manager and stuff like that. And so our next step, we have decided, is going to be an interview with this healthcare professional so we can drill down and see what’s going on. Anything in that interview that we need to take into consideration when it comes to ADA?
Brianna
Yes. Be very careful when you are asking questions. I actually, I have a template that I use when I ask questions. That way, if I’m asking the questions or my partner is asking the questions, it’s going to follow the same script and we’re going to avoid any potential landmines. That being said, we actually sent our questions to our employment lawyer to make sure that he approved of them before went, you know, before we implemented them. But things that, basic things you want to avoid, never ask any kind of medical question, period. Don’t ask them about any, you know, I avoid asking them at all about any recent injuries, anything that you’re on prescriptions for. Just don’t touch it.
Brianna
I have asked before, and I word this extremely carefully, especially if I am seeing multiple indicators of deception and it is surrounding having a urine drug screen. And our policy now has been changed, where we only even do a urine drug screen if we suspect active impairment. Otherwise, it’s one data point and there’s multiple reasons you can have a positive or negative drug screen that really have nothing to do with diversion. So we. Excuse me. So things like I have asked very carefully, is there anything on the drug test that you would be worried about that you don’t have an active prescription for or would be illegal to show up on a urine drug screen. And I tell them, do not tell me your medical information. Do not tell me what that drug is. Do not tell me anything about it.
Brianna
I just want to know yes or no. Are you concerned with what might show up on that urine drug screen? Because otherwise you can get into the slippery slope of it being a medical exam and that. That’s an ADA. No, no. The AdA absolutely allows for policies against drug free workplace, you know, policies for a drug free workplace, policies against, you know, using drugs of any, you know, on the job illegally, all of those things. And it does not prohibit you from doing your in drug screens for cause. All of those things. You just have to be extremely careful in the way that you word things. And I always have HR. HR is the only other person present in the room besides myself and the employee. Or the co worker for that very reason.
Brianna
You know, they’re my additional filter, making sure that the way that. But we’ve done enough of these together and we follow a pretty strict script when it comes to that. So. But yes, again, just don’t get into anything medically related.
Terri
Okay. So your script that you follow is not so much what you can and will ask medically related. It’s just to make sure that you keep that stuff out of your script when you’re asking about their workflow and how they document this.
Brianna
Yeah.
Terri
What they do with that. Okay.
Brianna
Yeah. And so, you know, it’s very, it’s very process oriented and it’s based, you know, to be able to tell whether or not you establish the baseline truthful responses, and then you get into process where I want to know, you know, what you’re supposed to do. And then we insert the actual situation that we’re concerned about. And therefore, that’s when you see those behavioral indicators of deception popping up if they’re not being truthful. And, you know, so when we get down to the part of, okay, as part of our process, the, you know, would you be willing to submit to a urine drug screen? And, you know, if that’s the case and they really, you know, kind of panic about that, I will just say we have a second chance program. We are here to make, you know, make sure that you are healthy.
Brianna
I’m a very compassionate person. I don’t believe that anyone wakes up in the morning and says, how can I ruin my life today? How can I put patients at risk today? I do not believe that people who are diverting are bad people by any, you know, I’m certainly not here to judge them because they sin differently than I do. And, you know, our goal is to get you back and as healthy as possible. And truly, I’m here not to attack you or judge you, but to help you and keep our patients safe at the same time. So because I set it up that way from the get go, I’ve had very good responsiveness with that, and I’ve had people admit a lot of things that the whole time I’m going, you don’t have to tell me. You don’t have to tell me.
Brianna
Anything you’re telling me is a voluntary disclosure. And I just, you know, reiterate that to them of, you don’t owe me an explanation, it’s okay. And so, but it does help people feel safe and more willing to share things that you may not otherwise learn.
Terri
That’s an interesting approach because some approaches are, tell me I can help you. So you’re offering help, but saying, don’t tell me.
Brianna
Mm. Yeah. And so, therefore, if they tell me, it’s because they want me to know. Well, that’s up to you, but it’s not a requirement, right? I’m not a check.
Terri
Okay. So we’ve. In an interview with them, we can see a few outcomes.
Brianna
Right.
Terri
Depending on how that goes. So we’re gonna. We don’t care about the one where we found another explanation. And so we don’t think there’s anything going on from a substance use disorder or diversion perspective. But we’ve got a couple of other scenarios that could involve that. That is, maybe the person admits and asks for help, and then there’s the person that denies, but they haven’t shown us or told us anything that helps us think that there’s not something going on. So you’ve got these kind of two scenarios. Where are we now with the ADA?
Brianna
Like, again, going to the one where they’re denying, but there’s a plethora of evidence, otherwise, you are still under the guise of theft investigation, period. And again, this one gets very tricky. So always, again, best friends with your legal department. And I do mean best friends because you can. ADA protects against the disability itself. I think it’s also important to note, and I want to read this directly from the ADA dot gov, where this is a disability, because the disability is. It protects them against discrimination. Okay? In many settings, it does not protect them from their behaviors. Does that make sense? So, you know, they can’t be denied admission to the hospital if they overdose. That’s discrimination, that kind of thing. But it does not, again, it does not protect against anyone who is currently illegally using drugs.
Brianna
There are multiple things within this that are. Is the definition of a disability. And someone who is casually using drugs, for example, smoking pot on vacation with friends, that is not covered under the ADA. That’s a casual use. That’s not an addiction, doesn’t count. Can’t use that one. I’m looking specifically for the. Because there’s a definition specific to this, and it’s basically that it has to impair their life in a major way where they’re having difficulty taking care of themselves, they’re having difficulty functioning, they’re having difficulty with, you know, everyday things. So it’s different than social services. Their definition of a disability is you can’t work well. That’s not the ADA definition. ADa says with or without reasonable accommodations, you can meet the job requirements. That’s another key term here of that particular position.
Brianna
So there are things to consider, including direct threat, where if you feel that the person is a direct threat to a patient, even if they are under ADA protection, if they are a direct threat in a truly safety sensitive position, there are, I don’t want to say workarounds, but there are additional things that need to be considered, you know, again, to protect.
Terri
So I would think that might involve an outside assessment then, right? Yeah, I don’t. I think I’m fine. You don’t think I’m fine?
Brianna
And, and we have had, you know, physicians participate in, you know, direct threat assessments and things of that nature when it came down to it, because, again, we just want to make sure that the patients are safe. If you truly feel that this person is able to work restriction free and not be in their impairment. For example, let’s say that they are on suboxone or something for substance use disorder, and they have gone through rehab. They are in their monitoring program. They have their license back and they are back at work. Let’s say that suboxone is making them, you have very grave concerns about their ability to be able to, you know, assess a patient, condition change or, you know, a high acuity patient that, you know, in an ICU setting, there’s, you know, in an or setting.
Brianna
Pick one again, that’s where you want to make sure that everyone is on the same page because if the physician thinks, no, they’re fine to work, and yet you’re seeing things from a different perspective. That’s where it can get very dicey, very good. And you want to make, you have really good policies and procedures in place in that.
Terri
So that’s a good example if they’re on mat after recovery. Have you ever seen anything where. Well, no, because that would be theft. Never mind. So the ADA doesn’t cover them. I was just thinking, have you ever seen it where it’s been? They do have a substance use disorder, and they’re allowed to continue because of ADA and they’ve had an assessment, but that probably wouldn’t play out because there, it’s probably not a legal prescription. So that. Yeah, probably not a lot of those examples with a legal prescription where they’re impaired and then they need an assessment because they think they’re fine, but the employer doesn’t think that they’re fine.
Brianna
Not a lot of experience with it. But I’ve had some.
Brianna
Yeah. Not. Not personally, but I’ve.
Terri
You’ve seen it. Okay. You know of it. Okay.
Brianna
All right.
Terri
So we have our person. We’ve intervened with them. They, whether voluntarily or we have said, okay, bye. You need help. They leave. Some of us know what happened because were involved in it, but many of their co workers don’t. They just know that they, you know, disappeared. Now they have gone through recovery. They want to return to work. The hospital has a return to work program. They meet all the criteria and they come back. Now, is there anything with ADA that we need to keep in mind?
Brianna
Well, not just the ADA, but you also have to look at, are they on a monitoring program? Do they have something on their license stating they can’t administer narcotics? You can’t administer narcotics. You cannot meet in many facilities. Again, disclaimer, in many facilities, it’s nearly impossible to meet the job role requirements. And so it would be, you know, it would behoove you as an organization to have roles available where they can still be an effective member of the healthcare team, but where administering narcotics is not an issue, you know, case management or, I mean, there’s lots of rules within healthcare where they can still, you know, have their job and be able to be very successful at it. But if they have restrictions on their license, it really doesn’t matter what kind of return to work program we have.
Brianna
You don’t have the option not to follow those restrictions on their license, period.
Terri
So from an ADA perspective, it’s fine if the monitoring agreement or the licensing board puts those restrictions. There’s nothing that says that they have to let them come back and do all those things.
Brianna
Yeah, it’s, again, it’s the job. It’s discrimination in their job role based on a disability. And all of these things that we do, you have to show and be able to prove that you are making reasonable accommodations for the person. Let’s say that it’s someone that has opioid use disorder, that is attending narcotics anonymous meetings, accommodating their schedule so that they can go to those meetings, granting them a leave of absence, even if it’s unpaid, to make sure that they have the ability to get the help that they need to come back better than ever. So things like that. But, you know, and there’s a whole slew of things that you can do that would be considered reasonable accommodations. But, you know, thinking of things like that, those are all important, but, you know, the job role is still the job role.
Brianna
If you are an ICU nurse or an ed nurse, and you can’t administer narcotics or waste or witness or handle narcotics of any kind. That’s a very, of, there isn’t a whole lot of reasonable accommodation in that particular setting where that would be able to be upheld. And so, you know, we do have a, we have a matching program here, and so if we have an employee that is a fantastic nurse, they’re just not meeting the role requirements here. We can match them elsewhere in a role where they could be very successful. And we’ve had nurses and other providers come back where they couldn’t necessarily do the job that they left, but were able to move them to an outpatient clinic where they don’t have controlled substances. Perfect. They’re doing the job. They have the patient interaction, seating.
Brianna
They’re doing great work, and they’re also meeting the requirements of their license restriction.
Terri
Do you think that a facility could end up, and this, I know is just your opinion, a facility could end up in legal trouble if they did not have a return to work with accommodations such as in a clinic that doesn’t have controlled substances or case management or what have you, if the person goes through recovery, has some restrictions, wants to come back, and the facility says no, we can’t just play no.
Brianna
Well, if they say no, we can’t accommodate, yes, they’re going to have trouble because you have to be able to provide some kind of reasonable accommodation. It doesn’t necessarily have to be moving them into a job, a different job role. But maybe you have a, and this isn’t very likely either. But again, the burden is on the employer to prove that they are providing a reasonable accommodation. So let’s say that, okay, you know, this nurse can’t give narcotics, so they are assigned a buddy nurse that has to administer, pull chart all of their narcotics for them. You know, that’s another option. Is it very realistic?
Terri
Practical?
Brianna
It’s not very practical. I mean, it depends on the organization. Some places it might be. But again, you know, you don’t have an option. You, as the ADA states, you have to, if they are requesting reasonable accommodations, you have to find a way to provide those. So again, that’s where you’re going to want to best friends with your legal department. What can we do to make sure that we are supporting our co workers?
Terri
So it’s almost, if I’m understanding correctly, for hospitals that don’t have any kind of reentry program, they would just say, no, put up the hand. No, you can’t come back here. They could be in legal trouble.
Brianna
Let me. Let me tell you what Samhsa says. And for those of you who are.
Terri
Listening and not watching, if you could have seen brianna’s face, she would have been like, oh, they’re in trouble.
Brianna
But you. So according to, you know, the substance abuse, mental health, you know, administration, they have a ten steps for avoiding legal problems with. So, number one being consultant employment attorney, I think we said that once or twelve times and set clear penalties. So penalties for policy violations, very clear penalties. And not only that, but it has to be applied uniformly. So, for example, you have a person with opioid use disorder, and you have a non, you know, someone who doesn’t struggle with that addiction. And you drug test just the person with a history of opioid use disorder. No, you either, you know, drug test uniformly or not at all, kind of thing where you can’t. You can’t pick and choose against a protected group. That’s the main crux of this.
Brianna
So if your policy includes a drug testing program, who’s going to be tested? When will they be tested, and what will happen to the employee with a violation? Put it in writing. Every employee should receive and sign a written copy of your drug free workplace policy. Verbal agreements and unsigned agreements have little legal standing. Provide training, ensure that all supervisors and, you know, people that would be aware of how to detect and respond to workplace drug and alcohol misuse. And as well as logs of all the trainings, that’s another one that gets people document, like, everything’s going to court. Document the employee performance. Maintain detailed, objective records on the performance of all employees.
Brianna
And this has been something significant in my leadership past where, you know, there was a file this thick on a person, and I’m going, why wasn’t this dealt with prior to me? And you hand me a file this thick, and then tell me, go fire them. I haven’t witnessed any of that. But anyways, don’t rush to judgment. So do not take disciplinary action against a worker or accuse a worker of a policy violation simply because the employee’s behavior seems impaired. Very important. Again, that’s where that whole. It has to be a complete picture. You can’t just go by a drug test. You can’t just go by the data. You can’t just go by an employee interview. It has to be a complete picture. And you certainly cannot go by eyewitness reports.
Brianna
Those have been challenging in the past, and, you know, trying to clarify the reasons for their impairment and making sure that if you have a policy for a drug test, that you get the results of that drug test prior to taking any disciplinary action. Protect their privacy. That is paramount. Again, that’s why I only have HR in the room with me and the co worker, because I hold those investigations so confidentially. Because, again, this is my brother or sister in healthcare. This is someone I work alongside. Even if we aren’t in the same role, I’m never going to accuse someone unless it is something that is an imminent threat to patient safety. Protect their privacy. Be consistent. No individual, employee or group of employees should receive special treatment. Know your employees. Obviously, this is a huge one.
Brianna
If you don’t know as a leader your employees very well, it’s going to be hard to detect. And let’s say, for example, and this unfortunately does happen where there’s. There’s politics, there’s the, you know, the heads that butt and, you know, you accuse somebody of diversion, that’s something that everybody stops and takes that very seriously. And I have seen in the past where people were truly just trying to get rid of someone and they accused them of some pretty horrible things. And I will be honest, this person’s behavior and the data did not help them. Their interview did. Their interview is one where we pivoted because it was very clear what was happening. And, you know, it reframed all of the data in a whole new light. And so this person needed assistance and remediation for their handling practices from a compliance standpoint.
Brianna
And it was not diversion and then obviously involve the employees themselves. So, you know, having them giving that feedback, helping with developing policies and process improvement, because is it a situation where your system policies, or lack thereof, are setting people up for failure? Yeah. Where it can look very suspicious and it’s completely something that has been, if you go by the just culture algorithm, where it’s a system failure, and you need to address this as a system before you start accusing people themselves of compliance issues and diversion because it.
Terri
Right.
Brianna
You never want to do that.
Terri
Yeah. Yeah. Okay. All right. So we have a person that has gone through recovery. They have come back to the institution working, whether it’s. Well, I guess in this case, it would have to be full access. They don’t have any restrictions on their license because they relapse. So we know their history. Maybe their manager should, I think. Well, I don’t know. Somebody knows their history, and it comes to the attention of the person who knows their history. And we now are concerned, again, that they have relapsed. What does the ADA say about that?
Brianna
Do we have to relapsed or diverted.
Terri
Well, I’m gonna say diverted, which is how we realize they have relapsed. Well, I mean, what is the difference? Does it make a difference?
Brianna
Yeah, that depends, because, again, this is where it gets. It can get dicey. So. All right. It’s one of those things where if they’re on a second chance program, that second chance program will outline exactly what will happen if a positive drug test, you know, something of that nature. Okay. And so that is going to be very integral to making sure that you have in place, you know, and, you know, if they’re diverting, again, it’s. Diversion is theft and so not protected. Yeah, diversion is theft. It’s not going to protect you from the consequences of your actions. It is going to protect the disability itself. I cannot discriminate against you because you have oud, but if you have opioid use disorder, substance use disorder, and you are stealing from patients, that is theft.
Brianna
And so, you know, that is one of those things where, again, your documentation has to be absolutely on point. You have to be certain you know exactly what you are accusing them of.
Terri
And so let’s say it’s not diversion, it’s not theft, but you suspect that they’re working impaired.
Brianna
That is a challenge that I would definitely take straight to legal counsel, because, again, if you are accusing someone and they are in a protected disability, I honestly don’t even have a good answer for that. That would. That would be one that I would phone a friend in a heart.
Brianna
In a heartbeat. Because you’ve got to confront them, but you want to make sure you do it.
Terri
In a way that guidelines that. Yeah. You don’t end up in trouble.
Brianna
Yeah, exactly. Okay.
Terri
All right. Okay. So changing gears a little bit, we’re going to talk about hiring healthcare professional. So, you know, somebody’s out there, they’re listening to this podcast. They know, oh, ada, I got to be careful. And I don’t want to get myself. It’s better to just prevent getting myself into trouble. I really would prefer not to hire somebody that, you know, has that risk. Can you ask them anything during hiring?
Brianna
Yeah. So it is not something where because they have a risk of something that you can discriminate them against them. Let me share a personal story. I’ll get real vulnerable here. I was a pain management patient for six years. I have eight rods in my spine and a ten level fusion. I never once took my prescriptions any other way than exactly as prescribed because I was a nurse. And so, again, that is part of the reason that I am so compassionate with the people who do divert, because I saw how easily I could have gone another route. And when you truly don’t feel like you can escape pain, it changes the way you view the world. You do be, you know, depression sets in. You do feel like, am I ever going to get better?
Brianna
And I had the resources, I had the education, and I had the reason to never become addicted. And so I was very blessed that I didn’t. But they’re, you know, for the grace of God go I kind of thing. And so when I look at people who have a risk of something, if you look at the behavioral profile of a diverter and you look at the risk factors for diversion, I hit every single one of them. Every single one of them. And I. I’ve never diverted and I have never, you know, wanted to. I have never thought twice about it. But I look at the eyes of the person that I am interviewing and say, I get it. I know how it would look if I were in your shoes. I would be high risk, all of those things.
Brianna
And so, again, I do not believe in labeling people because of past issues or, you know, things that are. We’re all here to be in this together, in my opinion. But so as far as making sure that you are not stepping in a landmine, title one protects them from employment discrimination in general. So a person has a disability if he or she has a physical, mental impairment, physical or mental impairment that substantially limits a major life activity. So there’s your definition that I was looking for 20 minutes ago. It also protects individuals who have a record of a substantially limiting impairment and people who are regarded as having a substantially limiting.
Terri
You of all people know how it can look one way and be something else.
Brianna
Yep. And that’s, again, why I’m so compassionate about it. But so, to be protected under the ADA, they must have record be regarded having substantial, as opposed to a minor impairment. That’s another one. And the. They must also be qualified to perform the essential functions of the job with or without reasonable accommodation in order to be protected by the ADA.
Terri
Okay. That’s important. Yeah. I think sometimes when people hear, you know, protected, it’s like, what? To the detriment of the patients and the liability of the hospital. And so that’s not the case.
Brianna
Exactly. Satisfy the job requirements for educational background, employment experience, skills, licenses, any other qualification standards that are job related and be able to perform those tasks that are essential to the job with or without reasonable accommodation. So it does not interfere. And I like this section right here where it says, the ADA does not interfere with your right to hire the best qualified applicant, nor does the ADA impose any affirmative action obligations. It simply prohibits you from discriminating against a qualified applicant or employee because of their disability.
Terri
Okay.
Brianna
And I think that’s very important to remember. So, so functional, you know, essential. Oh, my goodness. Essential functions. So whether the reason the position exists is to perform that function, the number of other employees available to perform the function, or among whom the performance of the function can be distributed, again, you know, having a preceptor be able to pull narcotics for them, whatever that looks like, and the degree or expertise of skill required to perform it. So, reasonable accommodations. Again, ways to identify reasonable accommodations. The good news is there actually is quite a bit of guidance on this. So it’s not something where they’re just like, good luck. There. There is quite a bit of guidance out there. Unfortunately, it’s somewhat vague because, again, there’s always going to be a case that has never come up before.
Brianna
But again, anyone who is currently illegally using drugs, they’re out.
Terri
Doesn’t fall. Yeah. Okay. All right, great. I. I think it’s, you know, it’s pointed to a few things. One, as you said, best friends with your legal department, but to your policies and procedures, we come back to policies and procedures, again, that it just really outlines so much of what we need to have in place and, you know, treating people the same. What does an investigation look like? Who is involved? What does the reentry process look like? What is a potential, you know, the second chance program? You know, what. What gets you kicked out of that? You know, what are the options for bringing people back with or without restrictions?
Terri
I mean, all of these things you can put into your documents to begin with, but like you said, sometimes there’s going to be some weird case that’s going to be like, we didn’t think about that one.
Brianna
You’re pretty much guaranteed there will be a weird case.
Terri
Yeah. And then you improve your policies.
Brianna
You can’t, you know, everything.
Terri
Yeah. Yeah. Okay. Well, this was fascinating, and I see there’s, there were some other questions that you and I had talked about previously that I would love to get to, and I really would love to hear your whole story. That would be fascinating.
Brianna
That’s gonna be a long podcast.
Terri
Yeah. So maybe we can do this again and cover some different aspects of it. But this was good. This is good.
Brianna
Information.
Terri
I think it’s something that maybe a lot of people don’t really think about in this whole diversion world. The Ada falls in there. Okay. Thank you very much, Brianna, for sharing so much. Thank you for learning it so well that you could share it with everybody. Reminder, listeners to go to naddi.org, naddi.org to get the details for the April 2024 conference. Learning and networking at a conference devoted to drug diversion is invaluable. It’s a two day conference that will be packed with great speakers appropriate for a novice and a veteran. And it won’t keep you away from the office for too long. I’ll be there, so be sure to find me and say hi.
