Substance Abuse Testing

Provides for the use of substance abuse on-site screening tests
(i.e., portable substance abuse tests) that meet the requirements
of the United States Food and Drug Administration for commercial

THE SENATE                              S.B. NO.           635
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Chapter 329B, Hawaii Revised Statutes, is
 2 amended by adding a new section to be appropriately designated
 3 and to read as follows:
 4      "329B-     Use of substance abuse on-site screening tests.
 5 (a)  No employer shall utilize a substance abuse on-site
 6 screening test unless the substance abuse test is conducted in
 7 accordance with this chapter.
 8      (b)  An employer may use a substance abuse on-site screening
 9 test if the results of the substance abuse test will not be used
10 in the diagnosing or preventing of disease, and will not be used
11 by a health care provider in the treatment of human beings.
12      (c)  Every employer desiring to use a substance abuse on-
13 site screening test shall submit a completed registration form
14 and pay a yearly, nonrefundable registration fee to the director.
15 The fee shall not be more than $25 per year.
16      (d)  The registration form shall:
17      (1)  State the name, address, and telephone number of the
18           employer, and the name of an individual to contact at
19           each substance abuse on-site screening location to be

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 1           operated by the employer;
 2      (2)  Certify that:
 3           (A)  The substance abuse on-site screening test will be
 4                administered according to the United States Food
 5                and Drug Administration package insert that
 6                accompanies the substance abuse test;
 7           (B)  The substance abuse on-site screening test will be
 8                administered according to the instructions of the
 9                manufacturer;
10           (C)  Chain of custody procedures will be followed;
11           (D)  The operators of its substance abuse on-site
12                screening locations have been trained in the use
13                of the substance abuse on-site screening test by
14                the manufacturer of the substance abuse test; and
15           (E)  If a substance abuse on-site screening test
16                location obtains a test result that indicates the
17                presence of drugs, alcohol, or the metabolites of
18                drugs; and if the test result may be used to deny
19                or deprive a person of employment or any benefit,
20                or may otherwise result in an adverse action being
21                taken against the person, then the same sample
22                that produced the test result will be submitted

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 1                for a confirmatory test to a testing laboratory
 2                licensed by the department in accordance with this
 3                chapter."
 4      SECTION 2.  Section 329B-2, Hawaii Revised Statutes, is
 5 amended as follows:
 6      1.  By adding a new definition to be appropriately inserted
 7 and to read:
 8      ""Substance abuse on-site screening test" means a portable
 9 substance abuse test that meets the requirements of the United
10 States Food and Drug Administration for commercial distribution."
11      2.  By amending the definition of "substance abuse test" to
12 read:
13      ""Substance abuse test" means any testing procedure designed
14 to take and analyze body fluids or materials from the body for
15 the purpose of measuring the amount of drugs, alcohol, or the
16 metabolites of drugs in the sample tested.  The term includes any
17 substance abuse on-site screening test designed to take and
18 analyze body fluids or materials from the body for the purpose of
19 detecting the presence of drugs, alcohol, or the metabolites of
20 drugs in the sample tested."
21      SECTION 3.  Section 329B-2.5, Hawaii Revised Statutes, is
22 amended to read as follows:

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 1      "[[]329B-2.5[]]  Exemptions.  This chapter does not apply
 2 to:
 3      (1)  Toxicology tests used in the direct clinical management
 4           of patients;
 5      (2)  Tests for alcohol under chapter 286 or chapter 291;
 6      (3)  Tests made pursuant to subpart C of the Mandatory
 7           Guidelines for Federal Workplace Drug Testing Programs
 8           (53 Federal Register 11986); and
 9      (4)  Substance abuse testing of individuals under the
10           supervision or custody of the judiciary, the department
11           of public safety, the Hawaii paroling authority, and
12           the office of youth services.  However, these state
13           governmental entities shall establish chain of custody
14           procedures which require that all specimens be sealed
15           and coded in the presence of the individual being
16           tested and that the individual shall sign an approved
17           form acknowledging that the specimen has been sealed
18           and coded in the individual's presence.  The procedure
19           shall include a tracking form documenting the handling
20           and storage of the specimen from collection to final
21           disposition of the specimen.  The individual also shall
22           be afforded the option of a confirmatory test by a

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                                     S.B. NO.           635

 1           licensed, certified laboratory.  The cost of the
 2           confirmatory test shall be paid for by the State;
 3           provided that in those instances where a positive test
 4           result is confirmed, the individual shall be charged
 5           with the cost of the confirmation test.  Test results
 6           shall not require review by a medical review officer[.]
 7           or a substance abuse on-site screening test operator.
 8           Positive test results of substance abuse testing and
 9           the availability of a confirmatory test shall be
10           provided to the individual in writing.  A positive test
11           result from a substance abuse test that fails to meet
12           the requirements of this section shall not be reported
13           or recorded."
14      SECTION 4.  Section 329B-3, Hawaii Revised Statutes, is
15 amended to read as follows:
16      "[[]329B-3[]]  Limitations.  No third party shall require,
17 request, or suggest that any individual submit to a substance
18 abuse test that does not meet all the requirements of this
19 chapter except for third parties who are covered by any drug
20 testing regulation [promulgated] adopted by the [Hawaii] state
21 department of transportation or the United States Department of
22 Transportation or any other federal agencies.  All costs,

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 1 including confirmatory testing costs, shall be paid for by the
 2 third party.  Nothing in this chapter shall be construed to
 3 preclude the department or any laboratory certifying agency
 4 approved by the director from examining the records of
 5 laboratories, including substance abuse on-site screening
 6 locations, licensed for substance abuse testing to ascertain
 7 compliance with licensure or certification requirements, or to
 8 preclude the administration of breath tests to determine the
 9 alcohol content of the tested individual's blood for purposes of
10 this chapter."
11      SECTION 5.  Section 329B-4, Hawaii Revised Statutes, is
12 amended by amending subsection (a) to read as follows:
13      "(a)  All substance abuse testing performed in the State
14 shall be performed by a testing laboratory licensed by the
15 department for that purpose, or certified for substance abuse
16 testing by the Substance Abuse and Mental Health Services
17 Administration of the United States Department of Health and
18 Human Services, and approved by the director[.], except as
19 provided in section 329B-  ."
20      SECTION 6.  Section 329B-5, Hawaii Revised Statutes, is
21 amended to read as follows:
22      "[[]329B-5[]]  Substance abuse testing procedures and



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 1 interpretation of [laboratory] test results.  (a)  Prior to the
 2 collection of any sample for substance abuse testing, the
 3 individual to be tested shall receive a written statement of the
 4 specific substances to be tested for and a statement that over-
 5 the-counter medications or prescribed drugs may result in a
 6 positive test result.  The individual, prior to the collection of
 7 any sample for substance abuse testing, shall receive a
 8 medication disclosure form, approved by the director, to permit
 9 the individual to disclose any over-the-counter medication or
10 prescribed drug that the individual has taken within the previous
11 thirty days.
12      (b)  In accordance with this section, the director shall
13 [create in administrative] adopt rules[, regulations] pertaining
14 to:
15      (1)  [the] The qualifications, responsibilities, and
16           licensing of the medical review officer;
17      (2)  [the] The use of medication disclosure forms;
18      (3)  [the] The method of transmittal of [laboratory] test
19           results and any interpretations of test results to the
20           third party and the tested individual; and
21      (4)  [the] The obtaining, disclosure, and confidentiality of
22           substance abuse testing information.

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 1      (c)  No laboratory, including a substance abuse on-site
 2 screening location, may test for any substance not included on
 3 the written statement containing the specific substances to be
 4 tested for.
 5      (d)  As used in this section, "test results" refers to
 6 laboratory test results or the results of substance abuse on-site
 7 screening tests."
 8      SECTION 7.  Statutory material to be repealed is bracketed.
 9 New statutory material is underscored.
10      SECTION 8.  This Act shall take effect upon its approval.
12                           INTRODUCED BY:_________________________