VIA Email to Jim Strickland - VAWatchdog
I am writing in response to a query that was forwarded to our office from the VHA Office of Client Service on your behalf. The National Center for Ethics in Health Care (NCEHC) is responsible for the following policies that relate to drug testing:
1. VHA Handbook 1004.01, Informed Consent for Clinical Treatments and Procedures states in paragraph 4 a., “In VHA, patients have the right to accept or refuse any medical treatment or procedure recommended to them. Except as otherwise provided in this Handbook, all treatments and procedures require the prior, voluntary informed consent of the patient, or if the patient lacks decision-making capacity, the patient’s authorized surrogate. …” (http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=2055) Thus, informed consent is required for drug testing. As noted in paragraph 13. a. (1) (b), “Information about certain tests must be considered “information that a patient in similar circumstances would reasonably want to know” because these tests are particularly sensitive and may have consequences that the patient might reasonably want to avoid. These tests include, but are not limited to, specific tests to identify illicit drug use, alcohol intoxication, HIV, Methicillin-Resistant Staphylococcus Aureus (MRSA), sexually-transmitted diseases, and inheritable genetic abnormalities. For these tests, practitioners must obtain specific consent and follow the informed consent process as outlined in the remainder of this paragraph. Signature consent is not required; oral consent is sufficient and must be documented in the patient's electronic health record (see subpar. 13c(1)).”
2. VHA Handbook 1004.01, paragraph 13 b. describes the ethical requirement that consent for treatments and procedures be voluntary:
Promoting Voluntary Decision-Making
(1) The practitioner must promote the patient’s voluntary decision-making during the informed consent process. The practitioner must not unduly pressure or coerce the patient into consenting to a particular treatment or procedure, but must instead convey that the patient is free to choose among any recommendedtreatments and procedures, including no treatment, or to revoke a prior consent without prejudice to the patient’s access to future health care or other benefits.
(2) The practitioner is prohibited from attempting to persuade a patient to consent to a particular treatment or procedure by denying, or threatening to deny, the patient access to another procedure or treatment. However, in cases where in the medical judgment of the practitioner a particular treatment or procedure cannot be safely provided or performed without another treatment or procedure also being provided or performed, access to the first treatment or procedure may be made contingent on the patient’s consent to the second treatment or procedure. For example, treatment with isotretinoin (Accutane™) may be made contingent on the patient’s consent to a pregnancy test.
(3) Patients must not, as part of the routine practice of obtaining informed consent, be asked to sign consent forms “on the gurney” or after they have been sedated in preparation for a procedure. Exceptions may occur when there is an urgent clinical need.”
3. Prescription drug abuse prevention is a priority nationally and within VHA. In response, the National Pain Management Program and the National Center for Ethics in Health Care collaborated to develop a new Directive to standardize the process for obtaining and documenting the patient’s informed consent for treatment with long-term opioids. VHA Directive 1005, Informed Consent for Long-Term Opioid Therapy for Pain, establishes policy regarding patient education and informed consent for long-term opioid therapy for pain (http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=3005). Another document, “Frequently Asked Questions; VHA Directive 1005: Informed Consent for Long-Term Opioid Therapy for Pain” addresses questions about drug testing for opioids (see Questions 27-32). (https://www.ethics.va.gov/docs/policy/faq_vha_directive_1005_informed_consent_%20for_long_term_opioid_therapy_021016.pdf). A related resource is a podcast entitled, “Podcast: Urine Drug Testing in the Context of Long-Term Opioid Therapy for Pain” (http://www.ethics.va.gov/Podcast/udt_in_context_longterm_opioid_therapy_podcast_112014.asp)
Beyond the policies managed by the NCEHC regarding informed consent in VHA and informed consent for Long-Term Opioid Therapy for pain specifically, drug testing is used by health care providers as part of a treatment plan for a number of reasons including to identify if a patient may be using illicit substances and to assist in the diagnosis and management of substance use disorders. The reason for drug testing depend on a Veteran’s individual clinical circumstances, thus our office cannot provide a justification for why drug testing was ordered for a particular Veteran. Regardless of the reason, however, the provider has a duty to provide the Veteran information about the reason for the test and offer an opportunity to consent or refuse the test.
Other VA program offices responsible for pain management, substance use disorder treatment, etc. may be responsible for policies related to specific aspects of drug testing (e.g., requirements for specific program participation) other than the informed consent policy under our office’s purview. We are willing to coordinate a response with the appropriate clinical program office that is specific to individual circumstances if that would be helpful to you and you wish to provide details. We would advise that any veteran who believes that drug testing was performed without consent should address their concern with the provider and if necessary the patient advocate. If, after such discussions, there remains a conflict between the patient and the provider over what is the right thing to be done to resolve the concern, the patient should request an ethics consultation from the local ethics consultation service available at each VHA facility.
Please let me know if we have addressed your concerns at this time or if there is further assistance that we can provide.
Barbara L. Chanko, RN, MBA
Health Care Ethicist
National Center for Ethics in Health Care (10E1E)
We get a lot of email messages telling us that you have been tested for drugs and that you weren't warned of an impending drug test.
Many of you have been suspicious of the motivation for testing and wonder if your benefits are in jeopardy because you smoke pot. First up...no, you will not lose a benefit because you smoke pot. VA disability benefits are awarded because of a service connected disabling condition. If your health care provider doesn't agree with your use of marijuana, you may not be prescribed narcotic (opioid) medicines in the future. If you're using or abusing drugs other than marijuana, you may be referred to a treatment program. Otherwise, no problems with benefits. But we wondered why so many of you tell us that you are not abusing any substances and you aren't receiving any sort of narcotic prescription so why the drug test? It's worthwhile to note that VA uses drug screens to ensure that patients who are ordered narcotics are taking the medicines as prescribed. A "pain contract" is usually signed in this instance. The questions are (1) does VA conduct random drug screens on many or most vets and (2) do you have the right to know you're being tested and to refuse such a test. We went to the office of the Secretary in April 2017 and the reply is below. We've learned that random drug screens aren't allowed and that you have an absolute right to be informed prior to any such drug screen taking place. VHA HANDBOOK 1004.01 (Pg 7) tells us that "(b) Information about certain tests must be considered 'information that a patient in similar circumstances would reasonably want to know' because these tests are particularly sensitive and may have consequences that the patient might reasonably want to avoid. These tests include, but are not limited to, specific tests to identify illicit drug use, alcohol intoxication, HIV, Methicillin-Resistant Staphylococcus Aureus (MRSA), sexually-transmitted diseases, and inheritable genetic abnormalities. For these tests, practitioners must obtain specific consent and follow the informed consent process as outlined in the remainder of this paragraph. Signature consent is not required; oral consent is sufficient and must be documented in the patient's electronic health record." That informed consent is required and such consent must be documented in your medical records pretty much rules out "random" drug screening by VA. So why so many tests? We believe that for lack of a better answer this is typical of VA when it chooses to ignore existing rules. It's interesting to note that after our inquiry, the policy was updated (May 22nd 2017) and redistributed to clinical sites where testing is performed. We also think that most VA practitioners believe that your consent is implied and that they don't need to counsel you or forewarn you of impending drug tests. If you'll take the time to thoroughly read the materials we provide here, you'll learn that you must be advised before any drug screen and that you have a right to have any non-consented drug test result removed from your medical records. As we learn more, we'll update the information here for you.
/s/ Jim Strickland
All Rights Reserved, Progressive Advocacy, LLC.
No part of this publication may be reproduced, distributed, or transmitted in any form or by
any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written
permission of the publisher, except in the case of brief quotations embodied in critical reviews
and certain other noncommercial uses permitted by copyright law.
Guess Who’s Tracking Your Prescription Drugs?
It isn't only the Department of Veterans Affairs, it's your doctor, your pharmacist... and the police.
VHA DIRECTIVE 1108.07
Veterans Health Administration
State Prescription Drug Monitoring Programs VHA Participation
38 CFR 1.515 - Disclosure of information to participate in state prescription drug monitoring programs.
(c) Participation in PDMPs. VA may disclose to PDMPs any of the following information
concerning the prescription of controlled substances:
* Demographic information of veterans and dependents
* Information about the prescribed controlled substances.
* Prescriber information.
Have You Been "Drug Screened" By Your VA Clinic?
The Veterans Health Administration (VHA) has a little known (and apparently unenforced) policy that requires practitioners
who are authorized to order laboratory tests to give you informed consent prior to a drug screen.
VHA HANDBOOK 1004.01 Page 7;
"(b) Information about certain tests must be considered “information that a patient in similar circumstances
would reasonably want to know” because these tests are particularly sensitive and may have consequences
that the patient might reasonably want to avoid. These tests include, but are not limited to, specific
tests to identify illicit drug use..."
In April 2017 VAWatchdog asked the Secretary to explain the VHA policy for screening veterans for illicit drug use.
You'll find the response below.