Substance Abuse Testing

Provides for substance abuse on-site screening testing.  (SB635

THE SENATE                              S.B. NO.           S.D. 1
TWENTIETH LEGISLATURE, 1999                                H.D. 1
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-    Substance abuse on-site screening tests, testing
 5 procedures, and confidentiality.  The substance abuse on-site
 6 screening test shall be administered for pre-employment purposes
 7 only according to the instructions of the manufacturer and this
 8 section:
 9      (1)  Every employer using a substance abuse on-site
10           screening test for pre-employment screening shall
11           administer the test according to the United States Food
12           and Drug Administration package insert that accompanies
13           the substance abuse test, and shall adhere to any
14           applicable on-site screening drug test guidelines
15           adopted by the United States Food and Drug
16           Administration.  Any on-site screening test shall also
17           be approved by the director for such pre-employment
18           screening, and the director shall create and maintain a
19           list of approved, substance abuse on-site screening
20           tests for use by employers;

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 1      (2)  Prior to the collection of any sample for substance
 2           abuse testing, the individual to be tested shall be
 3           supplied by the employer with:
 4           (A)  A written statement of the specific substances to
 5                be tested for;
 6           (B)  A statement that over-the-counter medications or
 7                prescribed drugs may result in a positive test
 8                result; and
 9           (C)  A medication disclosure form.  The individual
10                shall be informed in writing that providing
11                information on the medication disclosure form is
12                optional and that the individual shall maintain
13                custody of the form; provided that the individual
14                may voluntarily disclose the information contained
15                in the medication disclosure form to a medical
16                review officer;
17      (3)  Sample collection and tests shall be performed under
18           reasonable and sanitary conditions.  The privacy and
19           dignity of the individual being tested shall be
20           respected.  The operator collecting samples shall
21           document the sample, including labeling the sample, to
22           preclude to the extent reasonable the possibility of
23           misidentification of the person tested in relation to
24           the test result;

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 1      (4)  Chain of custody procedures, as defined in section 11-
 2           113-2, Hawaii Administrative Rules, shall be instituted
 3           to account for the integrity of each specimen by
 4           tracking its handling and storage from the point of
 5           specimen collection to final disposition of the
 6           specimen.  If a test result indicates the presence of
 7           drugs, alcohol, or metabolites of drugs, these
 8           procedures shall require that a chain of custody form,
 9           delivered by the operator pursuant to section 11-113-
10           5(e), Hawaii Administrative Rules, shall be used from
11           the time of collection to the receipt by the
12           laboratory;
13      (5)  Any information concerning a substance abuse on-site
14           screening test shall be strictly confidential.  This
15           information shall not be released to anyone without the
16           prior written consent of the individual tested, except
17           that information related to a positive test result of
18           an individual shall be disclosed to the individual and
19           the employer conducting the test;
20      (6)  If a substance abuse on-site screening test obtains a
21           test result that indicates the presence of drugs,
22           alcohol, or the metabolites of drugs; and if the test
23           result may be used to deny or deprive a person of

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 1           employment or any benefit, or may otherwise result in
 2           an adverse action being taken against the person, then
 3           the same sample that produced the test result shall be
 4           submitted for a confirmatory test to a testing
 5           laboratory licensed or approved by the department in
 6           accordance with this chapter.  A positive confirmatory
 7           test shall be reviewed by a medical review officer
 8           licensed by the department in accordance with this
 9           chapter; and
10      (7)  The operator who administers the substance abuse on-
11           site screening test shall have been trained in the use
12           and administering of the on-site screening test by the
13           manufacturer of the on-site screening test or the
14           manufacturer's designee."
15      SECTION 2.  Section 329B-2, Hawaii Revised Statutes, is
16 amended as follows:
17      1.   By adding a new definition to be appropriately inserted
18 and to read:
19      ""Substance abuse on-site screening test" means a portable
20 substance abuse test that meets the requirements of the United
21 States Food and Drug Administration for commercial distribution
22 and is approved by the director for such pre-employment

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 1 screening, and the director shall create and maintain a list of
 2 approved substance abuse on-site screening tests for use by
 3 employers."
 4      2.  By amending the definition of "substance abuse test" to
 5 read:
 6      ""Substance abuse test" means any testing procedure designed
 7 to take and analyze body fluids or materials from the body for
 8 the purpose of measuring the amount of drugs, alcohol, or the
 9 metabolites of drugs in the sample tested.  The term includes any
10 substance abuse on-site screening test designed to take and
11 analyze body fluids or materials from the body for the purpose of
12 detecting the presence of drugs, alcohol, or the metabolites of
13 drugs in the sample tested."
14      SECTION 3.  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] a drug
20 testing regulation [promulgated] adopted by the [Hawaii]
21 department of transportation or the United States Department of
22 Transportation or any other federal agencies.  All costs,
23 including confirmatory testing costs, shall be paid for by the

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

Page 7                                                     635
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 1 individual to be tested shall receive a written statement of the
 2 specific substances to be tested for and a statement that over-
 3 the-counter medications or prescribed drugs may result in a
 4 positive test result.  The individual, prior to the collection of
 5 any sample for substance abuse testing, shall receive a
 6 medication disclosure form, approved by the director, to permit
 7 the individual to disclose any over-the-counter medication or
 8 prescribed drug that the individual has taken within the previous
 9 thirty days.  
10      (b)  In accordance with this section, the director shall
11 [create in administrative] adopt rules[, regulations] pertaining
12 to:  
13      (1)  [the] The qualifications, responsibilities, and
14           licensing of the medical review officer; 
15      (2)  [the] The use of medication disclosure forms; 
16      (3)  [the] The method of transmittal of laboratory test
17           results and any interpretations of test results to the
18           third party and the tested individual; and 
19      (4)  [the] The obtaining, disclosure, and confidentiality of
20           substance abuse testing information.  
21      (c)  No laboratory, including a substance abuse on-site
22 screening location, may test for any substance not included on
23 the written statement containing the specific substances to be
24 tested for.

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 1      (d)  As used in this section, "test results" means
 2 laboratory test results or the results of substance abuse on-site
 3 screening tests."
 4      SECTION 6.  Statutory material to be repealed is bracketed.
 5 New statutory material is underscored.
 6      SECTION 7.  This Act shall take effect upon its approval.