No. 42042 (New Rule): Rule R523-15. Drug Testing Requirements

(New Rule)

DAR File No.: 42042
Filed: 08/25/2017 10:03:16 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule establishes drug testing procedures for agencies associated with the Division of Substance Abuse and Mental Health (DSAMH) through contracts or certifications, which are consistent with science and best practice.

Summary of the rule or change:

The rule: 1) defines a drug screen, drug test, confirmation test, and participants; 2) requires all agencies receiving public funds to provide substance use treatment, to have written policies and procedures on drug testing, and a requirement to allow review of those policies and procedures by the Division; 3) requires agencies to notify participants of: the purpose of a drug screen, who will have access to results, the potential consequence of testing positive, and their right to request confirmation testing; 4) requires testing methodologies to meet the scientific standards developed by the Substance Abuse and Mental Health Services Administration; 5) establishes testing frequencies; 6) sets cut-off levels; 7) prescribes requirements for positive results; 8) prescribes sanctions; 9) requires agencies to not bill for confirmation tests that are returned as negative; 10) recommends that duplicate drug testing among the Department of Human Services' divisions should be avoided; 11) recommends addition methods to fully monitor treatment compliance; and 12) recommends the use of Medication Assisted Treatment.

Statutory or constitutional authorization for this rule:

• Section 62A-15-105

Anticipated cost or savings to:

the state budget:

This rule has existed as a Division directive for many years. Recent discussions within the Division have led to a decision to move this directive into rule because the directive is mainly designed to give guidance to the publicly-funded agencies with whom the Division contracts for substance use and mental health services. Over the past couple of years, the Division has been legislatively directed to interact more fully with private treatment providers with the passage of H.B. 348, also known as the Justice Reinvestment Initiative (JRI), in the 2015 General Session, and H.B. 259 in the 2016 General Session. These bills in part require the Division, to establish minimum standards for the treatment of substance use disorders that would apply to all treatment providers regardless of public or private funding sources. Drug testing criteria is part of those standards that have been created and it seems more logical to create a rule that would apply to all agencies rather than refer non-contracted private agencies to a directive that is more applicable to publicly funded programs. This requirement is already in force and monitoring for compliance remains within current funding and will not impact future budgets.

local governments:

No costs are associated with this rule other than those that already exist from the initial establishment of the Division directive on drug testing. Local governments have been complying with the standards set forth in this rule for many years, and their budgets are already established around the anticipated costs of drug testing in each fiscal year.

small businesses:

It is anticipated that some small businesses will have costs associated with the implementation of this rule. The Division surveyed 70 small businesses that would be required to comply with this rule. Of the 70 contacted, 13 responded to the request for information. Ten agencies or 77% of the agencies responding claimed no cost associated with the conditions of this rule. The following is a list of the potential cost identified by the other 23% of respondents: one agency claimed a $50 cost increase every month; one agency claimed a onetime cost to bring charge of custody into compliance and a $0.55 cost increase for 320 tests, which will effect 213 people; and one agency claimed an increase cost of $50 per client at $20,000 per year. The Division acknowledges at least 23% of the small businesses that will be required to comply with this rule will have a cost increase between $0.55 and $50 per client per month.

persons other than small businesses, businesses, or local governmental entities:

This rule may cause a person receiving services from 23% of the small businesses providing services to justice involved individuals to have a possible cost of $0.55 to $50 passed on to them or their insurance, if the agency they receive treatment from is not able to absorb the increase in compliance costs to their operating costs. The size of the potentially affected population can be at least as large as 30,099 individuals. This number was derived from the Key JRI Quarterly Performance Measures created by the Utah Commission on Criminal and Juvenile Justice. This number represents all felony and class A and B misdemeanors filed in district and justice courts, where the charge is alcohol or drug relate, with FY 2016 as the time frame.

Compliance costs for affected persons:

A firm compliance cost cannot be provided, but there is a potential that at least 23% of all affected persons would have to pay up to $50 per month, $600 per year, in compliance costs.

Comments by the department head on the fiscal impact the rule may have on businesses:

After conducting a thorough analysis, it was determined that this proposed rule will result in a fiscal impact to businesses.

Ann Williamson, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Human Services
Substance Abuse and Mental Health
195 N 1950 W
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• Thomas Dunford at the above address, by phone at 801-538-4181, by FAX at 801-538-4696, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/16/2017

This rule may become effective on:

10/23/2017

Authorized by:

Doug Thomas, Director

RULE TEXT

R523. Human Services, Substance Abuse and Mental Health.

R523-15. Drug Testing Requirements.

R523-15-1. Authority.

This rule is authorized by 62A-15-105 and establishes procedures and standards for drug testing services provided by substance use disorder and mental health service providers receiving public funds or certified by the Division of Substance Abuse and Mental Health (DSAMH).

 

R523-15-2. Purpose.

This rule is designed to ensure that drug testing practices of agencies contracted with the DSAMH are consistent with science and best practice.

 

R523-15-3. Definitions.

(1) Drug screen means a method for identifying the presence of one or more drugs of abuse that typically involves the use of immunoassay technology, a laboratory technique that makes use of the binding between an antigen and its homologous antibody to identify and quantify the specific antigen or antibody in a sample.

(2) Drug Test means any test administered to detect the presence of alcohol and other drugs from a blood, saliva, urine sample or other accepted scientific methodology.

(3) Confirmation test means a quantitative test used by laboratories to distinguish the presence of a specific drug and/or metabolite and determine the drug's concentration. This is typically accomplished through the use of gas chromatography/mass spectrometry (GC/MS) technology.

(4) Participants means the individuals receiving substance use disorder treatment and who are required to receive drug screenings and tests.

 

R523-15-4. Required Written Policy and Procedures.

(1) All DSAMH programs, contractors, subcontractors and providers who perform drug testing shall have written policies and procedures that address:

(a) Selection of participants to be tested,

(b) Frequency of testing,

(c) Screening and confirmation methodologies,

(d) Collection and handling of specimens,

(e) Procedure for verifying integrity of sample that includes checks for tampering, adulteration and dilution,

(f) Chain of custody procedures,

(g) Documentation standards,

(h) Training requirements for all direct service staff that includes training on principles of trauma informed care,

(i) Disclosure of results or other information related to drug screen participation,

(j) Potential consequences for testing positive,

(k) The participant's right to request confirmation testing, and

(l) Procedures to ensure the physical and emotional safety of staff and participants.

(m) All policies and procedures are subject to review and approval by the Department of Human Services (DHS).

 

R523-15-5. Drug Testing Program Requirements.

(1) Prior to administration participants shall be informed of:

(a) The purpose of a drug screen,

(b) Who will have access to the results,

(c) The potential consequence of testing positive, and

(d) Their right to request confirmation testing of a sample using accepted methodologies such as GC/MS technology.

(2) Testing methodologies with scientific standards developed by SAMHSA shall be used for all drug screens. For this reason, urine and saliva are the preferred testing specimens. If other methodologies such as testing of hair, sweat, or meconium are used, additional information regarding the specific detection window of the methodology and any other limitations shall be communicated along with the results.

(3) DSAMH does not recommend random drug testing more frequently than an average of three times a week; however, testing to confirm suspicion of use is always permissible.

(4) Cut-off levels for drug screens shall conform to the Substance Abuse and Mental Health Services Administration (SAMHSA) recommended levels. If the screen is for a substance that SAMSHA has not identified a cutoff level, the industry standard shall be applied.

(5) A drug screen shall not be considered positive unless:

(a) A participant admits to use, or

(b) The sample screen has been confirmed by a SAMSHA certified laboratory using scientifically accepted methodologies such as GC/MS technology.

(6) Drug testing procedures shall not be used as a rationale to:

(a) Bar participants from participation in a program or service; or

(b) To discontinue the use of a lawfully prescribed or court ordered medication.

(7) Sanctions may be imposed based on the results of a drug screen if applied in a manner consistent with the participant's due process rights.

(8) Confirmation testing is required for any contested drug screen if:

(a) Sanctions outside of treatment will be imposed, or

(b) The result is being used for evidentiary purposes.

(9) Participants receiving treatment from a publicly funded agency shall not be responsible to pay for a confirmation test if the result is negative. Agencies providing treatment to persons who are justice involved shall not practice balance billing to offset cost associated with a conformation test if the test is negative.

(10) Testing frequency should be based on the participant's circumstances and the purpose of the test. Factors to consider include:

(a) The participant's history of drug use,

(b) Drug of choice,

(c) Third party reports,

(d) Treatment progress,

(e) Personal observations,

(f) Special circumstances/transitions, and

(g)..Other factors as needed.

(11) Duplicate drug testing among DHS divisions should be avoided. With signed participant consent consistent with 42 CFR, DHS agencies may share results. The following information shall also be shared with results:

(a) The cut-off level(s) used with the drug screen,

(b) A description of how sample was collected,

(c) As the collection observed or unobserved

(d) The specific panel of drugs included in the screen,

(e) Whether the sample was checked for adulteration, tampering and dilution,

(f) Whether the participant admitted to use or not, and

(g) Whether the result(s) is from a drug screen or a confirmation test.

(12) Drug testing should not be the only means to detect substance use or monitor treatment compliance. DSAMH encourages all divisions, agencies, providers, and contractors to evaluate a participant's progress using:

(a) Validated assessments,

(b) Clinical evaluations,

(c) Reports from substance use disorder treatment providers and third parties, and

(e) Personal observation through regular contact.

(13) DSAMH recommends the use of medication-assisted drug treatments such as the use of Methadone, Bupinorphine, and Naltrexone for individuals who meet clinical criteria for their use.

 

KEY: MAT, drug screening and testing, compliance verification, confirmation tests

Date of Enactment or Last Substantive Amendment: 2017

Authorizing, and Implemented or Interpreted Law: 62A-15-105

---