59

of the potential legal liabilities. They know they cannot afford to ignore the problem, and they want
as much flexibility as appropriate to best address these problems effectively and cost -effectively.

These concerns are all responsibly and appropriately addressed by the Private-Sector Drug-
Free Workplace Act which the Institute seeks to advance — legislation which embraces the language
endorsed by the President's Commission on Model State Drug Laws, the only private-sector drug-
testing bill endorsed by the Clinton Administration's Final Report of the Commission, a
‘Commission of which a majority of the members were Democrats. '*

In addition, the Institute strongly supports and seeks to advance the Public and Employee
Safety Assurance Act, legislation which is necessary to ensure the protection of worker safety and
the environment. This bill would permit employers to remove, from consideration for the most
highly safety-sensitive positions, those individuals who test “positive” for, or have a history of,
substance abuse.

Once again, on behalf of the Institute for a Drug-Free Workplace, I appreciate this
opportunity to testify today, commend Chairman Hastert for his outstanding leadership on this issue,
and respectfully urge your favorable consideration of our suggested legislation on workplace drug

testing,

"* See fn. 2, supra.

tt


123

drugs during the time the patch is being worn, such a deterrent effect is to be desired,
and is one of the primary benefits of corporate substance-abuse testing programs at

any rate.

Pilot Program: Michigan Department of Corrections

In December 1994 PharmChem conducted an extensive study of the efficacy of
the PharmChekTM sweat patch in conjunction with the Michigan Department of
Corrections’ criminal justice program. The project sought to compare the positive
rates of sweat patches and urine specimens, determine the durability of the patch in
use, determine the ease of patch application and removal, and determine the
acceptance of the patch by both prisoners and corrections staff. The results of the
study were extremely positive.

The PharmChekTM patches were applied to the study participants for either
seven or 14 days. After removal, the pads inside the patches were shipped to
PharmChem for analysis. Once the pad had been flushed with fluid and screened for
the presence of drugs, initial positive results were confirmed using gas
chromatography/mass spectrometry (GC/MS).

Intensive urine testing was conducted concurrent with the sweat-patch testing
with each individual submitting a sample approximately once every three days. The
cutoff levels used to determine positive results using urine samples were those
approved by the Substance Abuse and Mental Health Services Administration for

federal workplace programs. Cutoff levels for drugs found in sweat are considerably

= 10-


25

Mr. HASTERT. Thank you very much, Dr. DuPont.

Now, I’d like to introduce Dr. Macdonald.

Dr. MACDONALD. Thank you, Mr. Chairman. I appreciate the op-
portunity to be here. In my brief remarks, I’m going to go beyond
the context of the workplace and talk about the national drug prob-
lem. I’m going to frame my remarks around the quotes of Nils
Bejerot that are in my prepared statement.

The first quote that Dr. Bejerot made that shaped my philosophy
was—and Dr. Bejerot is a Swedish psychiatrist and historian schol-
ar—his quote was that the only way history shows us that drug
wars and drug epidemics have ever been halted is when the focus
is on the user. The only way. Dr. Bejerot would look at our supply
side dollars and all the money we were spending and say that’s
fine, but it’s not going to work, and give examples from history,
and some of those are in my paper.

Well, if we’re going to focus on the user, how do we do that? I’m
not here to talk about prevention—for when you're talking about
prevention, you're talking about people that don’t use. You’re also
talking about an investment in the future and that’s important.
Where prevention programs, in my mind, have their biggest lack
in our strategy is there is no consequence to users. It’s wonderful
to tell them that they’re going to get lung cancer when they’re 47
years old, but they still smoke cigarettes. There needs to be—and
testing fits into that model—a reasonable response from the com-
jnunity to people who step over the line. I'll come back to treatment
later.

Treatment is not where most of our drug users are. Those that
are in it tend to be the dependent and they’re further along. There
are loads of people that should be in treatment that are not. I'll
come back later to say that treatment without drug testing doesn’t
make a whole lot of sense either. But the great majority of users
come to the workplaces, which we are discussing today as you, Mr.
Chairman, pointed out. The workplace is where most drug users
are. Focusing on the issues of accidents and healthcare costs, and
lost productivity are clearly a part of workplace problems that fit
with what I call fitness for duty testing. But let’s talk instead
about deterrence testing and using testing as a method of convinc-
ing the non-user or the casual user to quit. Testing also gives us
a tool to take those in the penal and treatment systems and enforce
what we want to do.

Mr. Solomon’s comments I support absolutely. I think it is about
time that Congress follow the model that the White House adopted
in an Executive order in 1986—testing the President and the Vi
President and members of the executive branch—not because we
felt that the President and the people in the White House were
drug users, but because we wanted to send an example and show
our concern. That message carried well. It was part of the Drug-
Free Workplace Act. He, the President, saw the importance of the
message.

A couple of trends that are very important are related to what
we're discussing here: Perhaps the most important thing that is af-
fecting the use of workplace testing now is the high employment
rate. We hear from a number of employers that they’re really wor-
ried about drug testing because it’s going to discourage the people


154

to, most of the times, they will come in and they will have their
excuses. But when we get down to it and get through the dishon-
esty, that test can often be the measure of the door—actually the
door opening, for them to have a turnaround in their life.

Mr. Mica. Dr. Mieczkowski, I think I read in your testimony—
correct me if I’ve got it confused with another one. I’ve been read-
ing through testimony rather than hearing it—that you said that
cocaine and heroin are better detected—and they’re pretty tough
drugs, heroin and cocaine—that you said, I think, that they’re bet-
ter detected because of the nature of the chemicals or whatever
with the hair analysis? Was that you or——

Mr. MIEczkKowskI. Yes. I—certainly that’s contained in my state-
ment. It may be contained in the statement of others, Mr. Mica.
And that’s a time function, as came up in the first panel. That is
not a quality function of testing. It’s just that these drugs in urine
and plasma relatively rapidly disappear or fall below detectable
levels and, consequently, their persistence in hair means that hair
affords the opportunity to detect these drugs for a longer time pe-

riod.

Mr. Mica. There seems to be some reluctance, however, I guess.
It appears to me some of this is vendor-driven and we've got an-
other individual here—is it Fortner—who’s got a different—this
sweat patch. Maybe you could comment, is there legitimate reason
why we shouldn’t be going more to hair testing or some other alter-
natives? Is some of the opposition vendor-driven? What is your
opinion of what’s going on in the marketplace? And, then, the Fed-
eral Government’s paying a lot of money for testing, and others
are. What’s happening?

Mr. MiEczKowskI. Well, I'm a university professor, so I’m not
necessarily very savvy in the business world. I know that, my per-
sonal view, is that we ought not to restrict the capability of people
who need and want to test and have a legitimate reason to test for
drugs. That any particular tool, all of these tools, it seems to me,
have appropriate and useful applications. So I don’t think we need
to think of them as pitted inst one another or preferring one
over the other. If I could make a primitive analogy, it’s sort of on
the golf course. You know, you use a pitching wedge to do one kind
of shot, you use a driver to do another. These tests ought to be
thought of as different kinds of tools.

I think the most impressive program in the country, if you really
want to examine this in action, is to take a look at the New Orle-
ans adult diversion program run by Mr. H: Connick where we
do not only urine and hair analysis, we now do ion mobility spec-
trometry analysis on individuals looking for particulate matter on
them. So if they’re selling drugs, they become drug-contaminated.
And what we do is we provide to the clinicians in that program
who have to sit across the table from this person and deal with
them, this capability of now bringing together many different kinds
of instruments.

So, in my view, I think we ought not, you know, we certainly are
justified in moving forward, again, provided that, of course, as we
would expect with any kind of drug testing with any matrix, that
it be done responsibly, that it be done competently. And I would,
you know, my urging, if I were to have an editorial moment, is that


149

race with biological markers such as racial hair types, I have major
reservations. I don’t think that there’s any scientific literature, for
instance, that would sustain the fact that you could make racial
distinctions looking at hair types, with any kind of reliability based
on any kind of chemical testing.

Mr. BaRRETT. Let me pause, have you stop there, because I want
to get back to Dr. Kidwell on that very point. The concern I have
with your statement, Doctor, is, if the tests—if we do have a lot of
false tests—false positives with people who are clearly African-
American or Asian, that raises some questions and maybe I’d ask
Dr. Kidwell at this point to just elaborate a little bit on what you
have found there.

Dr. KIDWELL. About false positives?

Mr. BARRETT. Yes; with African-Americans, for example, or

Be kan

rr. WELL. I'm not saying the hair test generates false
positives, I’m saying it’s easier to detect it in that hair type than
it is in the Caucasian hair types.

Mr. BarreTT. OK.

Dr. KIDWELL. And certainly the best studies are the controlled
dosage studies and we're most concerned with low-level use, not
the high-level use in the criminal justice system. Certainly if every-
body takes whopping amounts of drugs, it doesn’t matter that Afri-
can-Americans tend to have more in their hair than Caucasians. If
they're whopping amounts, it’s very easy to detect it in all hair
types. It’s only when the use is very low that you see this dif-
ference between hair types.

oii. BarRETT. You're saying for low-level users, it shows up more
often—

Dr. KIDWELL. It would be easier to detect in certain hair types,
which just happen to be African-American.

Mr. BarRETT. OK. Let me switch rs. Ms. Kibben, we’ve heard
a lot of criticism here on Capitol Hill about treatment; that treat-
ment’s just a bunch of do-gooders and isn’t effective. Could you re-
8 ad from your experience as to where treatment fits in all of

8?

Ms. KIBBEN. Yes. I think it’s very clear through a number of dif-
ferent sources that I’ve cited in the testimony about how we have
evidence that treatment does work and is effective. Now, it ma:
not, in fact, be that we have—it depends on how we're defining ef-
fective. It may not be that we have 100 percent abstinence, but
even the NTIES report, the National Treatment Improvement and
Evaluation Study done last year, showed just one outpatient visit
with some very chronic, severe cases showed an increase in advan-
tageous, you know, like they’ve reduced their use, they reduce their
criminal activity, and they reduce their—they increase their work
time. All of that was shown out of just one outpatient visit.

So we do know that treatment effectiveness is directly correlated
to the length and appropriateness of treatment placement. So I
think in—and relevant to the drug testing is that drug testing can
be a very helpful tool in extending the treatment plan and having
a mechanism to intervene later on, let alone early on.

Mr. BARRETT. And, Mr. Green, if I—say I were working for you
and I tested positive for a drug, what would happen?


COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York
J. DENNIS HASTERT, Illinois
CONSTANCE A MORELLA, Maryland
CHRISTOPHER SHAYS, Connecticut
CHRISTOPHER COX, California
ILEANA ROS-LEHTINEN, Florida
JOHN M. McHUGH, New York
STEPHEN HORN, California
JOHN L. MICA, Florida
‘THOMAS M. DAVIS, Virginia
DAVID M. McINTOSH, Indiana
MARK E. SOUDER, Indiana
JOE SCARBOROUGH, Florida
JOHN B. SHADEGG, Arizona
STEVEN C. LaTOURETTE, Ohio
MARSHALL “MARK” SANFORD, South
Carolina
JOHN E. SUNUNU, New Hampshire
PETE SESSIONS, Texas
MICHAEL PAPPAS, New Jersey
VINCE SNOWBARGER, Kansas

RON LEWIS, Kentucky

HENRY A. WAXMAN, California

TOM LANTOS, Californi:

ROBERT E. WISE, JRr., West Virginia
MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

GARY A. CONDIT, California

CAROLYN B. MALONEY, New York
‘THOMAS M. BARRETT, Wisconsin
BLEANOR HOLMES NORTON, Washington,

CHAKA FATTAH, Pennsylvania
ELIJAH E, CUMMINGS, Maryland
DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois
DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts
JIM TURNER, Texas

THOMAS H. ALLEN, Maine
HAROLD E. FORD, JR., Tennessee

BERNARD SANDERS, Vermont
(Independent)

Kevin BINceR, Staff Director
Dawret. R. MOLL, Deputy Staff Director
Davin A. Kass, Deputy Counsel and Parliamentarian
duptt McCoy, Chief Clerk
PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON NATIONAL Szcuniry, INTERNATIONAL AFFAIRS, AND CRIMINAL
JUSTICE

J. DENNIS HASTERT, Chairman

MARK E. SOUDER, Indiana
CHRISTOPHER SHAYS, Connecticut
ILEANA ROS-LEHTINEN, Florida
JOHN M. McHUGH, New York
JOHN L, MICA, Florida

JOHN B. SHADEGG, Arizona
STEVEN C. LATOURETTE, Ohio
BOB BARR, Georgia

DAN BURTON, Indiana

THOMAS M. BARRETT, Wisconsin
TOM LANTOS, Californi:

ROBERT E. WISE, oR, ‘West Virginia
GARY A. CONDIT, California

ROD R. BLAGOJEVICH, Illinois

JIM TURNER, Texas

ELIJAH E. CUMMINGS, Maryland
JOHN F. TIERNEY, Massachusetts

Ex OFFIcIO

HENRY A. WAXMAN, California

ROBERT CHARLES, Staff Director and Chief Counsel
DALE ANDERSON, Investigative Counsel
‘Amy DAVENPORT, Clerk
Micasi, RAPHAEL, Minority Counsel

an


ng

sweat patch, this device works by collecting non-volatile components of sweat, which
includes drugs of abuse.

The patch looks like a two-inch by three-inch bandage, and consists of an
adhesive plastic film that holds an absorbent pad in place against the skin. The patch
is manufactured by 3M and uses technology and adhesives similar to their widely
used wound dressings.

The adhesive portion of the patch is a semi-permeable barrier that allows
oxygen, carbon dioxide, and water vapor to pass through so that the skin underneath
can breathe normally. Larger molecules (such as drugs) are trapped in the absorbent
pad portion of the patch. The patch is carefully designed so that contaminants from
the environment cannot penetrate the adhesive barrier from the outside, and
therefore the patch can be worn during most normal activities (bathing and
swimming, for example) without affecting the integrity of the test.

The patch collects two distinct types of sweat. "Sensible perspiration” is the
active, controlled loss of sweat from specific glands in the skin, which typically occurs
when a person is physically active. "Insensible perspiration" is the passive,
uncontrolled loss of sweat which occurs regardless of whether a person is physically
active. Because people typically produce 300 - 700 milliliters of insensible sweat each
day, from all over the body, the absorbent pad in the patch can be expected to trap the
analytes from at least 2 milliliters of sweat per week. Sensible perspiration only adds

to the amount of sweat collected.


68

(D) The collection and testing of samples shall be conducted in accordance with this Act and
need not be limited to circumstances where there are indications of individual, job-related
impairment of an employee or prospective employee.

(E) The employer's use and disposition of all drug or alcohol test results are subject to the
limitations of this Title if the employer is to qualify for the legal benefits and protections
available under this Title.

(F) Nothing in this article shall be construed to encourage, discourage, restric, limit, prohibit, or
require on-site drug or alcohol testing.

Section 9. Disciplinary procedures — Upon receipt of a confirmed “positive” drug or alcohol test
result which indicates a violation of the employer's written policy, or upon the refusal of an
employee or prospective employee to provide a testing sample, or upon an employee's or
prospective employee’s failure to cooperate in good faith in his or her employer's drug-testing
program (including any attempt to adulterate, substitute for, or tamper with a sample), an employer
may use that test result, test refusal, or lack of good-faith cooperation as a valid basis for
disciplinary and/or rehabilitative actions, which may include, among other actions, the following:

(1) A requirement that the employee enroll in an employer-provided or -approved
rehabilitation, treatment, and/or counseling program, which may include additional
drug and/or alcohol testing, participation in which may be a condition of continued
employment, and the costs of which may or may not be covered by the employers
health plan or policies;

(2) Suspension of the employee, with or without pay, for a designated period of time;
3) Termination of employment;
(4) Refusal to hire a prospective employee; and/or

(5) Other adverse employment action in conformity with the employer's written policy
and procedures, including any relevant collective bargaining agreement provisions.

Section 10. Sensitive Employces' Job Removal — If the confirmatory drug- or alcohol-test of an
employee is "positive," and the employee is in a sensitive position wherein an accident could cause
loss of human life, serious bodily injury, or significant property or environmental damage, the
employer may permanently remove the employee from the sensitive position and transfer or
reassign the employee to an available non-sensitive position with comparable pay and benefits, or
may take other action, including termination or other adverse employment action, consistent with
the employer's policy for drug- or alcohol-test "positives" for employees in sensitive positions,
provided there are not applicable contractual provisions that expressly prohibit such action.

This Title shall preempt any Federal or state law, rule, regulation, order, or standard that
applies to the continued employment or reemployment in a sensitive position of a drug addict,

20


152

thing that you ignite and then it becomes a truism. And, unfortu-
nately, from my point of view, this is exactly what has happened.

We have shown with our data on a very large data set that from
a patterning point of view, we simply cannot find differential detec-
tion rates between hair in humans. In fact, in most of our assess-
ments on cases which number anywhere from 1,000 to 2,000, we
find that there’s actually worse differential detection by urinalysis.
That, if you want to simply say that, given a large population of
persons that, if you detect more by system A than B, that’s an indi-
cator of bias, then, in fact, what we find in our populations is that
African-Americans are more likely to be urine-positive at a greater
rate compared to their self-report than hair-positive.

Mr. SouDER. Dr. Kidwell, obviously, you’ve raised a subject that
is so inflammatory here, partly because of the differences we had
in punishments on types of cocaine, a general feeling that none of
us want to inadvertently lock up people of one background and not
another when the abuse level is the same, because you've clearly
said it’s not a matter that they aren’t abusing it; the question is,
in your opinion, would we detect it at lower levels among African-

ericans which could result in more lock-ups, more job loss for
a particular group of people?

‘We've heard his extended explanation, then, that, in fact, it may
be down to a couple cases here. Are there other studies? Do you
disagree with the analysis there, and would you comment?

Dr. KIDWELL. There are a few other studies, but you’re correct,
the controlled studies, which are the best studies we can possibly
do scientifically, are by their very nature on a few people. It just
so happens that in the Henderson-Harkey’s the non-Caucasian in-
dividuals, and they just happened to be Hispanic and Asian in that
particular group that I’m familiar with, were the ones that were
positive above the commercial cutoff level.

Now this issue of racial bias is a very contentious one and to try
to establish guidelines or to try to understand it better, I am
cochairing, with Dr. Baumgartner, a workshop on racial bias. And
in that workshop—it’ll be in October at a Society of Forensic Toxi-
cology meeting—we’re trying to first explore is racial bias real?
And, second, if it’s real, is there a way to solve it?

I believe there’s a way to solve it. I don’t have any scientific evi-
dence that I can solve the problem or that the problem can be nor-
malized, but I believe that there is potentially procedures out there
that could remove the problem with racial bias in hair testing.

Mr. SoupeEr. Mr. Chairman, could I ask one followup? I got real-
ly confused for a second. Did I understand you——

Mr. Barr. The gentleman is recognized for 1 additional minute
to remove any confusion.

Mr. SoupER. Did you say that if you took the Hispanic and
Asians out——

Dr. KIDWELL. No, no. In the study that I’m familiar with Hender-
son-Harkey, the Hispanic and Asians were the only ones that were
caught. They were the highest level.

Mr. SouDER. Then how did you make the statement that African-
Americans were testing that way?


79

‘XII. Conclusion

The Institute for a Drug-Free Workplace respectfully urges the Subcommittee on National
Security, Intemational Affairs and Criminal Justice to favorably consider H.R. 3853, the Private-
Sector Drug-Free Workplace Act, and the Public and Employee Safety Assurance Act, as advanced
in this testimony, endorsed by the Institute, supported by the employer community, and — in the case
of the Private-Sector Drug-Free Workplace Act — largely embraced in concept, purpose, and
substance by the President's Commission on Model State Drug Laws.

On behalf of the Institute for a Drug-Free Workplace, I sincerely thank and commend
Chairman Hastert, Representative Barrett, and the Members of this Subcommittee for this
opportunity to testify in support of responsible workplace drug-testing programs and to advance
what we ~ and many, many others — consider to be model legislation in the workplace drug-abuse
prevention area.

T would be pleased to answer any questions which you may have now or in the future in this

regard.

3


15

are “innocent victims" of their brain biology. Worse yet, calling
addiction a disease for many people implies that the addict is
helpless in terms of getting well. I do not believe that addicts
are "innocent" or "helpless." Let me explain why.

Addiction is a disease in the sense that the brains of
addicted people are changed as a result of their repeated drug use.
This change is permanent in that even years of abstinence from drug
use will not return once-addicted brains to their premorbid state.
Addiction is a disease in the sense that there is a predictable
pattern to the illness with predictable behavioral and
physiological manifestations. In accordance with the views of the
12-step fellowships, based on and including Alcoholics Anonymous
(AA), the disease of addiction is unitary so that people who suffer
from this disease must stop all illegal drug use and alcohol use to
hope to regain control of their lives. The return to even
occasional use of any addicting drug threatens relapse to full-
blown addiction. ‘Thus, abstinence from alcohol and illegal drug
use is the foundation of recovery from addiction. I have learned
that there is a profound spiritual dimension to the disease of
addiction and that selfishness and self-centeredness are at the
core of this disease.

What I definitely do not mean by calling addiction a disease
is that the addicted person is not responsible for the use of drugs
and the consequences of that use. In fact, it is only by accepting
direct, personal responsibility for drug use that the addicted

person has a realistic hope for getting well. I do not accept that


128

Ongoing Research
A number of other drug-detection programs are using PharmChekTM
technology in their environment. A notable example is the Federal Corrections and
Supervision Division of the United States Courts. This agency is responsible for pre-
and post-trial supervision of arrests in the federal justice system, and has conducted
pilot studies in eleven different judicial districts across the country. Based upon its
demonstrated utility, the technique has been made available to all 94 districts for use

in their drug-testing programs.

PharmChem’s Newest Product: PharmScreenTM

In response to customer needs for on-site testing devices capable of rapidly
determining whether an individual has used illegal drugs, PharmChem has
introduced PharmScreen.TM The PharmScreenTM on-site testing device is capable of
detecting five classes of drugs - amphetamines, cocaine, morphine, marijuana, and
phencyclidine — in urine.

PharmScreenTM tests can be performed at the collection site with results
available in as little as three minutes after the time the test is exposed to the
sample. The test requires no mixing, no addition of external reagents, and no
refrigeration. Moreover, each PharmScreenTM test has its own built-in control. The
control test is visible as a colored line indicating that the specimen was properly
applied to the testing device.

o15-


184

NAADAC makes the following endorsements regarding the use of drug testing in the workplace:

A clear written policy should be in place and communicated to all employees prior to the
implementation of drug screens. It should include but not be limited to the reason for the policy,
chain of custody measures, method of obtaining a urine, hair, or blood sample, confidentiality,
confirmation, due process and consequences. It is recommended all employees (labor,
management, et.al.) be subject to the policy and drug screens.

‘The most recent study on drug abuse in the workplace showed that alcohol abuse accounted for
more than 67.7 billion in lost productivity in 1992. Clearly employers must address alcohol
related problems along with the problems of illegal drugs. An effective drug screen program
must include blood tests and/or breathalizer test to detect alcohol, as alcohol remains the number
one drug of abuse. Any screening process should have the capability of identifying all drugs of
potential abuse. Note that hair tests, despite their ability to test for illicit drugs, are unable to
identify individuals who are abusing alcohol or are alcoholic.

To reiterate, an employer's drug testing policy MUST include assessment and treatment
‘components. Without them, the policy is simply costly and ineffectual in rehabilitating and
restoring a company’s most valuable assets, its people, to full productivity.

Records show that thousands of employees have been retumed successfully to often critical jobs
following, seeing, assesment, and Weatmest. Among these efforts is the highly respected

alcohol-rehabilitation program run by the Federal Aviation Administration. In
Sttanee 193 the airline industry has retumed hundreds of pilots to full function recovering
members of the aviation community. Similar success has been accomplished by the military
with pilots, and ship captains and with nuclear industry personnel, and others in sensitive
positions. Also, studies by medical organizations report similar outcomes. These outcomes are
due to important achievements on the part of the scientific and treatment communities.

Firs, scientific research of alcoholism and drug addiction has greatly improved our
understanding of these disorders. Addiction, defined by Dr. Alan Leshner, Director of the
National Institute on Drug Abuse, is a chronic brain disorder, that alters persons brain cells”
physiology. In his words, “‘The addicted brain is distinctly different from the nonaddicted brain,
as manifested by changes in brain metabolic activity, receptor availability, gene expression, and
responsiveness to environmental cues... addiction is tied to changes in brain structure and
fanction...fundamentally, [it is] a brain disease.”

Prolonged use of drugs brings about the symptoms of persistent drug and alcohol seeking and
use, even if that search and use causes other detrimental health and social consequences in the
addict's life. As a chronic recurring disease, addiction’s symptoms and treatment can be most
properly compared to similar diseases, such as hypertension, diabetes and asthma. Much like
treatments for diabetes and hypertension, addiction treatment requires compliance with a

treatment protocol that includes major behavioral and lifestyle changes, and often, medication.

‘What follows from our enhanced understanding of the diseases of alcoholism and drug addiction
is the development of a body of knowledge and consistent clinical improvements in the provision


74

least one relapse over the four-year period following treatment.” Another study reported that
approximately 55 percent of people with chemical dependency will relapse at some time dunng,

their recovery.”*

In addition to the sizeable percentages of recovering alcoholics and drug addicts who
experience relapses, there are no clear indicators that universally signal an oncoming relapse. While
constant, comprehensive assessments of an individual's mental and physical state — if they were
feasible — might produce some information regarding an individual's difficulties in “remaining
clean," such mechanisms do not exist. The suggestion that even close observation and monitoring
censure thal individuals with addiction histories and proclivities will relapse is not bone out by real

world experience.

® JM. Polich, et al., Stability and Change in Drinking Patterns, The Course of Alcoholism: Four Years
After Treatment, 159-200 (1981),

* M. Dusoe, supra. See also, D. Ellis & J. McClure, In-patient Treatment of Alcohol Problems ~ Predicting
and Preventing Relapse, Alcohol & Alcoholism J., 449 (1992) (34 percent of males and 55 percent of
females had relapsed six months after completing alcohol treatment program; after one year, rates were 47
percent and 61 percent, respectively); PJ. Frawley & J.W. Smith, One-year Follow-up after Multimodal
Inpatient Treatment for Cocaine and Methamphetamine Dependencies, J. Substance Abuse Treatment 271
(1992) (47 percent relapse rate one year after treatment for cocaine dependence); J.W. Smith & P.J. Frawley,
Treatment Outcome of 600 Chemically Dependent Patients Treated in a Multimodal Inpatient Program
Including Aversion Therapy and Pentothal Interviews, J. Substance Abuse Treatment 359 (1993) (35 percent
relapse rate in 12 months after treatment of chemically-dependent patients, 40 percent relapse rate after 14
‘months, and only 13 percent relapse rate of airline pilots completing treatment program); K.M. Carroll & B.
J. Rounsaville, A Comparative Trial of Psychotherapies for Ambulatory Cocaine Abusers: Relapse
Prevention and Interpersonal Psychotherapy." Amn. J. of Drug & Alcohol Abuse 29 (1991) (compared results
of one cocaine recovery program with a 67 percent success rate and another program with a 38 percent
success rate); Milton R. Ayala, Mean-Work Hours of Substance Abusing Employees, 10 Alcoholism
Treatment Q. 203 (1993) (analyzed the record of union employees after completing rehabilitation program.
and showed that 55 percent relapsed within one month and 79 percent relapsed within one year). The
Institute's membership survey in 1992 offers equally damaging percentages — even following company
rehabilitation programs. Despite the fact that these programs were carefully designed to provide the optimal
rehabilitation techniques available for employees, were well-funded, and were conducted by those companies
who are among the most committed in the country on this issue, the relapse rates were as high as 80 percent
for some members and virtually never lower than 30 percent. Institute for a Drug-Free Workplace, Institute
‘Member Surveys (1992),

26


32

tect ot employee rights and maintain the highest standards of testing
ea ality and , since the laws, in the best interest of the
erican public, would help ensure that drug testing is conducted
in a manner which eliminates potential harm and technical errors,
while effectively detecting and deterring employee drug use. Thank
you very much.
{The prepared statement of Dr. Lappe follows:]


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39

expedited, and safety concerns (that 1s, not having drag-abusing employees on the jeb)

are addressed on a more timely basis.

Moreover, these digital reporting methods eliminate burdensome and voluminous
paperwork and increase the confidentiality with which test results are reported. These
services reflect our strong belief that the science of reporting drug-test results can be as
important as the results themselves.

In sum, NMRO provides substance-abuse program management services, drug-test data
management, and medical analysis of workplace drug tests. This combination of medical
science with information technology has defined NMRO as the leading provider of

medical review services anywhere in the world.

of the Medical

Because drug tests detect only the presence or absence of drugs (or their metabolites) in a
urine specimen, a positive drug test alone is not evidence that an individual has used an
illicit drug. These tests also detect the presence of drugs from the legitimate use of
prescription medications, as well as over-the-counter medications and certain types of
food.

The skilled MRO speaks personally with each laboratory-positive employee, in
confidence, to investigate each and every legitimate reason which could account for a


164

CSAT Fo oui
A Special Edition of CESARE gy

A Collaborative Effort of the Center for Substance Abuse Treatment (CSAT) and the
Center for Substance Abuse Research (CESAR)/University of Maryland

Clients Who Remain in Treatment at Least 90 Days
Nearly Twice As Likely to Be Drug-Free One Year After Treatment

Data from the national Drug Abuse Treatment Outcome Study (DATOS) show that longer stays in
treatment are associated with more favorable outcomes. According to the researchers, “clients
remaining in LTR [long-term residential] programs (including therapeutic communities) for 3
‘months or longer had significantly better outcomes in all key areas of behavioral functioning than
did earlier program dropouts” (p. 304). Clients staying in LTR programs for 3 months or longer
were nearly twice as likely to have urinalysis results negative for any drug or for cocaine (see figure
below). A similar relationship was found for clients of outpatient methadone treatment programs-~
those who stayed a year or longer had greater reductions in drug use during the follow-up period.

Percentage of Long-Term Residential Treatment Program Clients
Testing Negative by Urinalysis One Year After Treatment, by Length of Treatment

Percent
of Clients
Testing
Negative

90 Days Les Thon 90 Days
or More ‘SY Dass or More

Length of Treatment*

*Less Than 90 Days, n=30, 99 Days or More, n=37,

SOURCE: Adapted by CESAR from data from D. Dwayne Simpson, George Joe, and Bary Brown, “Treatment
Retention and Follow-Up Outcomes in the Drug Abuse Treatment Outcome Study (DATOS)," Paychology
of Addictive Behaviors 11(4)294-307, 1997. For more information, contact D. Dwayne Simpson at $17-
921-7226.

DATOS Findings Now Available on the World Wide Web

The Drug Abuse Treatment Outcome Study (DATOS) now has its own internet web site
(ww.datos.org) summarizing key findings from this national evaluation of treatment effectiveness.

CCSAT by Fax is supported by funding from CSAT, Substance Abuse and Mental Heath Services Administration,
land may be copied without permisnion with appropiate citation. For mulling hat modifcatons contact CESAR at
‘301-403-8329 (voice) * 301-403-8347 (2x) % CESAR@cesar umd edu * wow cevar und edu


64

+ IL would promote safety and health. By encouraging responsible programs, the bill
would result in safer workplaces, fewer product defects, and less of a substance-
abuse impact on motorists. Safety and health are the primary reasons why
‘employers are addressing substance abuse, and this bill would help deter, detect, and
treat substance-abuse problems, thereby helping to protect the safety and health of
the public at large.

x. Si sted Workplace -Testins

‘The language on drug testing which the Institute respectfully urges you and your colleagues
in Congress to support is, as discussed, identical in concept and purpose and largely identical in

substance to the language endorsed by the President's Commission on Model State Drug Laws.

In addition, this bill, again with only minor alterations (and again identical in concept and
purpose), and with the strong support of the Institute, has been enacted into law in four states in the

last two years, and six states overall.

It is, without question, the best drug-testing law in America from the Institute's and the

‘employer community's points of view.

The language of the President's Commission's bill ~ slightly modified, updated, and
expanded (to fit a federal context, for example), is incorporated into the “Private-Sector Drug-Free

Workplace Act," which follows.


148

Mr. Barr. Thank you, Dr. Kidwell. I'd like at this time to recog-
nize for a first round of questions the gentleman from Wisconsin,
Mr. Barrett.

Mr. BarRRETT. Thank you, Mr. Barr. Dr. Kidwell, I asked this
question of Dr. DuPont, so it’s only fair to ask of you: Do you have
any financial interests or ties to any form of testing——

Dr. KIDWELL. None at all.

Mr. BarRETT. Any contracts with any urine—

Dr. KIDWELL. No. I work only for the Federal Government.

Mr. BarRETT. I just want to make sure—Mr. Mieczkowski, do
you have any financial ties?

Mr. MIECZKOWSKI. No.

Mr. BaRRETT. OK. Just again, I wanted to, for the record, have
that out there.

Doctor, I’d ask you to respond to Dr. Kidwell, please.

Mr. MiEczkowsKI. Yes. I’m in quite profound disagreement with
Dr. Kidwell’s interpretation of this data and I think a very detailed
response to his critiques may be beyond the scope of today’s hear-
ing. I would point out several important things. First of all, we
have attempted to replicate these phenomena such as racial bias
in the real world. The research that Dr. Kidwell is referring to is
primarily based on prolonged soaking of cocaine—of hair in cocaine
solutions, which have questionable value in terms of their applica-
tion in clinical settings.

It’s also important that you keep in mind that the conclusions
reached in many of the studies that Dr. Kidwell’s referred to—and
they really primarily come from only two other researchers, the
team of Henderson and Harkey at UC Davis and the research of
Ed Cone at the NIDA Addiction Research Center in Baltimore,
have often failed to produce, by our—the clinical standards we ap-
plied, for instance, in our New Orleans program or in Ellis County
epidemiology program, to produce a single positive over the entire
course of the research project.

For instance, the Henderson and Harkey data, based on 32 sub-
jects producing well in excess of 400 hair segments, not a single
segment would ever be considered a positive. That’s because the
doses which were given to these individuals were very minimal.
That’s understandable. That’s because these experiments are con-
trolled, of course, by human subjects concerns and you don’t give
massive doses of drugs to individuals for the purposes of research.
But the doses which were given to these individuals were on the
order of magnitude of one-fiftieth, perhaps one-two hundredth of
what we see in typical drug abusers. So it’s very difficult to project
these findings onto what you see in the real world. And keep in
mind that my research base is primarily criminal justice, where I
see, you know, persons who are in extraordinary levels of addiction.

I also have very major reservations about the use of the term
race in this entire discussion. For a number of years now I have
tried to point out to individuals who use this term in their analysis
that, if you look at, for instance, the American Academy of Physical
Anthropology, you will see there’s a consensus that the biological
meaning of race is unknown. Clearly it—I’m not going to take a po-
sition here which violates our common sense. Hace is a powerful
socio-cultural concept. But when you start to talk about identifying


35

cancel or overtum the laboratory results to ensure that no employee will be erroneously
reported as positive for drug use. In short, the use of an MRO greatly strengthens the

integrity of the entire drug-testing process.

It is also essential to the integrity of the analytical laboratory process to confirm all
positive drug tests using a more specific testing process than that used merely to rapidly

screen samples.

Thus, the most responsible drug-testing programs: (1) ensure that the sample collection is
performed using a strict forensic chain-of-custody procedure; (2) confirm all initial drug
screen positives, with a second highly specific analytical method; and (3) utilize the
services of a qualified MRO. These programs clearly are superior in ensuring the

accuracy and integrity of every test result.

Employers and employees alike benefit from these procedures. NMRO encourages its
clients to use MRO services whether or not required by federal or state law," and works
only with DHHS-certified drug-testing laboratories to ensure that these necessary
safeguards, including chain-of-custody procedures and confirmatory tests for samples
that screen positive, are utilized consistently and without exception.

' The “Mandatory Guidelines” for drug testing of federal employees, promulgated by DHHS, require
MRO review of positive drag screens (Manditory Guidelines for Federal Workplace Drug Testing
Programs, Substance Abuse and Mental Health Services Administration, U.S. Department of Health and
‘Human Services, Federal Register Notice, June 9, 1994, at 29922); as does the U.S. Department of
Tamperaon’s OT) cour eee testing rule covering 7.4 million workers in the private sector in

lated, safety-sensitive jobs (49 CFR. Part 40); and as do several states, including

Haw Town, Lousiana, Montana, Oiahoma, and Oregon (lthough most sais do not address tat
issue).


(E)

)

67

the Clinical Laboratory Improvements Act; or (3) approved by the College of American
Pathologists.

‘Drug and alcohol testing shall include confirmation of any "positive" test results, For drug
testing, confirmation will be by use of a different chemical process than was used by the
employer in the initial drug screen, The second ~ or confirmatory — drug test shall be a
chromatographic technique such as gas chromatography/mass spectrometry, or another
comparably reliable analytical method. An employer may take adverse employment action
- including job denial to a prospective employee ~ based only on a confirmed "positive"
drug or alcohol test.

Whenever an individual's drug-test screen and confirmation are “positive,” whether an
employee or a job applicant, the drug-test result shall be reviewed by a Medical Review
Officer, who is a licensed physician with knowledge of substance-abuse disorders, prior to
an employer taking any adverse employment action, including denial of employment to job
applicants.

Section 8. Testing policy requirements

(A)

(B)

©

Testing or re-testing for the presence of drugs or alcohol by an employer shall be carried out
within the terms of a written policy which has been distributed to every employee subject to
testing, and is available for review by prospective employees.

In order to comply with the provisions of this Title, and to qualify for the legal benefits,
employers must provide employees, when requested and/or as appropriate, with information
as to the existence and availability of counseling, employee assistance, rehabilitation and/or
other drug-abuse treatment programs of which the employer is aware.

Within the terms of the written policy, an employer may require the collection and testing of
samples for, among other legitimate drug abuse prevention and/or treatment purposes, the
following:

(1) Deterrence and/or detection of possible illicit drug use, possession, sale, conveyance,
distribution, or manufacture of illegal drugs, intoxicants, or controlled substances in
any amount or in any manner, on- ot off-the-job, or the abuse of alcohol or
prescription drugs;

(2) _ Investigation of possible individual employee impairment;

(G3) __ Investigation of accidents in the workplace or incidents of workplace theft or other
employee misconduct;

(4) Maintenance of safety for employees, customers, clients, or the public at large; or

(5) Maintenance of productivity, quality of products or services, or security of property
or information.


104

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167

Rotgers, F. ({992). Coercion in addictions treatment. In James Langenbucher, Barbara S.
McCray Wiliam Fens & Petr ‘Nathan (Eds) Annual Review of
Addictions Kesearch and Treaoment, New York: Pergamon Press, 403-416.

‘Shontenfeld, RS. (1989). Lavoluntary treatment of substance abuse disorders:

iments to success. Psychiatry, 52:164-176.
Simpson, D. p & Friend, H. J, (1988). Legal status and long-term outcomes for addicts
in the D.

follow-up project. In C, Leukefeid & F. Tims (Eds.), Compulsory
Treatment! uf Drug Abuse: esearch and Clinical Practice (NIDA Research
Series #86). ‘Washington: Government Printing Office, 31-98.
Simpson, D. D. & Joe, G. (1993). Motivation as a predicata’ af early dropout from drug
. Psychotherapy. 30:357-368.
Stitzer, M.L.]& McCaul, M-E. (1987). Criminal justice mterventions with drug and
: The role of compulsory treatment. In E, Morris & C Brauckmann
Approaches tu Crime and Delinquency. New York: Plenum, 331-

Waldorf, D.. & Murphy, S. (1995), Perceived risks and criminal justice pressures on
middle clags cocaine sellers. Journal of Drug Ieswes. 25:11-32.
Webster, C. 1). (1986). Compulsory treatment of narcotic addiction. International
Journal of Law and Psychiatry, 8:133-159.
Weisner, C.M. (1990). Coercion in alcoho! treatment. In Institute of Medicina,
the Baye of Alcohol Treatment. Washington: Nationsl Academy Press,
579-609,


126

the sweat patch to detect heroin and cocaine and their metabolites. They
demonstrated that concentrations of cocaine in sweat rise in apparent relation to the
size of the administered dose. They also confirmed that heroin is excreted in sweat,
as is 6-acetylmorphine, the metabolite specific to heroin. Dr. Cone concluded that
testing individuals for illicit drugs with sweat patches worn continually for a week
could provide effective coverage for detection of any abuse of illicit drugs.

Dr. Marilyn Huestis, Division of Intramural Research, NIDA/NIH is currently
involved in a study on the cognitive effects of chronic long-term marijuana use, which
utilizes the PharmChekTM sweat patch.

In addition, scholarly articles on the PharmChekTM sweat patch have been
published by researchers Marcelline Burns of the Southern California Research
Institute and Randall C. Baselt of the Chemical Toxicology Institute regarding the
effectiveness of sweat patch testing for detecting cocaine use; by Vina Speihler of
Speihler & Associates and John Fay of STC Diagnostics, and their colleagues,
regarding the use of immunoassay procedures to detect drugs of abuse in sweat; and
by Pascal Kintz, Antoine Tracqui, Carole Jamey, and Patrice Mangin of the Institute
de Medecine Legal in Strasbourg, France, who have published the results of a study
finding that codeine and phenobarbital (a barbiturate) use can be detected accurately

using the PharmChekTM sweat patch.


45

vary significantly state-to-state, making compliance for, multi-state employers a

significant challenge.

NMRO supports the Institute for a Drug-Free Workplace’s model legislation, which does
not limit an employer's flexibility to choose an appropriate drug-testing program, but
rather encourages employers using drug testing to include these responsible safeguards in
whatever drug-free workplace program they choose to implement.

Earlier in the Clinton Administration, the Institute for a Drug-Free Workplace’s model
legislation was endorsed by the President’s Commission on Model State Drug Laws, the
only legislation addressing workplace drug testing endorsed by this bipartisan
organization.

Moreover, the Institute’s model bill has been used as the basis for legislation introduced
and enacted — at least in significant part ~ in Alaska, Arizona, Idaho, Iowa, Mississippi,
and Oklahoma, and is itself modeled on portions of the voluntary law enacted a decade
ago in Utah which several Institute principals helped draft.

NMRO believes that this legislation is in the best interests of both employers and
employees, and of the American public at large. We encourage members of this
Subcommittee to support this legislation at the federal level, with the goal of influencing
employers nationwide to include these very appropriate procedural safeguards in their
‘own drug-abuse prevention programs — in exchange for the assurance that their
employment actions based on drug-test positives will enjoy a presumption of validity if


87

among the 435, there are opponents of drug testing. You will have
civil disobedience if you subject it to Members or to Members’ staff.
You will have Members or Members’ staff who are going to refuse
to comply and the question is, what are the consequences when you
have somebody who has a refusal to test or refusal to implement
or refusal to enforce? They’re not going to discharge a staff member
who has testified.

So that has the potential to give a black eye to drug testing and
to the cause of drug testing and to the cause of drug abuse preven-
tion in the country. What I say to Mobil and Georgia Pacific, and
what I said at the U.S. House of Representatives, is let’s design as
bulletproof a policy as possible—one that can be implemented; one
that’s going to withstand legal challenge. Inevitably, we feel that
there is going to be legal lenge if Congress moves ahead on
this. There are downsides to this. I think the media would love
this. I think that you would have Members of Congress who would
love to take this issue on.

Mr. Barr. Do we simply then say that Federal employees and
congressional employees and Members of Congress have a free
ride?

Mr. DEBERNARDO. No, not at all. I think——

Mr. Barr. Well, all I’m saying, is there not some merit in draft-
ing legislation that, whether one looks at it as basically an implied
consent or a matter of contract law, drafting that and moving for-
ward with it, rather than just sitting back and saying, gee, it’s
going to be challenged; therefore, we shouldn’t do anything.

Mr. DEBERNARDO. Mr. Barr, I don’t think anybody’s saying let’s
sit back and not do—what I say is let’s do what’s doable. Let’s do—
let’s implement a Program that makes sense, that’s legally defen-
sible. Speaking as Mark deBernardo, someone who’s a very strong
supporter of drug testing and a very strong supporter of drug-free
workplaces, I’m all for it. I wish everybody in the Capitol could be
tested. But speaking as a managing partner of a law firm that is
very active on this issue, you know, again I’m giving advice to the
client on what is doable. Perhaps it’s a two-step process. Perhaps
what we can do is do what’s doable now, establish a record, with-
stand the legal——

Mr. Barr. Maybe I don’t understand. What can we do now?

Mr. DEBERNARDO. Well, I have laid out—Mr. Barrett has made
reference to a memo that we submitted, a lengthy memo, and sub-
sequently, I have drafted two House resolutions on this: one which
I think is absolutely defensible and the other which I think is very
doable. There’s a whole series of different types of drug testing,
such as drug testing of those staff members with access to the
House floor, drug testing of those staff members——

Mr. Barr. Do you really think that drawing those sorts of dis-
tinctions would successfully withstand an equal protection chal-
lenge—I mean if a staffer has access to the lobby outside of the
House floor but can’t get onto the House floor because their Mem-
ber is managing a bill—

Mr. DEBERNARDO. That creates a—

Mr. Barr [continuing]. I think you’d have an awful hard
time——


-requests time off 200% more often than his non-abusing co-worker and
is 500% more likely to file a workman’s compensation claim

Mr. Chairman, the results are in...drug testing in the workplace more than pays for itself.
For several years 1 introduced legislation to make it easier for businesses, large and small,
to test their workers for drug use, Thanks to you Mr, Chairman and the Speaker this
measure will finally be enacted.

Mr. Chairman, you and I know that interdiction and law enforcement are important
‘weapons in the war against drugs. But the war will never be won without dramatically
reducing the demand for illegal drugs in our country. As a result of a 1992 Solomon
Amendment over half of the states in this country suspend the drivers licenses of drug.
users. And this year’s Higher Education Act contains a Solomon Amendment suspending
student assistance (grants and loans) to drug users. A third Solomon Amendment,
included in the appropriations process, will deny DEA registration to prescribe
schedule two through five drugs to doctors who prescribe or recommend schedule
‘one drugs. As you know, Schedule One drugs include so called medical marijuana.
These are all efforts to reduce the demand for illegal drugs by restricting governmental
benefits,

Yet, drug testing is also an effective way to reduce the demand for illegal drugs. It is the
one deterrent we know works for sure. When drug testing was implemented by the
Pentagon in 1982, illegal drug use in the military dropped from 27% to 4% — a 82%
reduction.

We all know that the drug problem has worsened in recent years. According to a study by
the Rand corporation 75% of the drug use in this country is by so called recreational drug
users. The truth be told, it is these recreational or casual drug users who increase the
demand for drugs and who are the driving force behind the murders and drive-by
shootings -— where innocent young children are killed — in the inner city!

The courts examine everything we do with an eye to protecting the fourth amendment and
I don’t disagree with them. But in their deliberations they must also consider the national
interest. legal drugs jeopardize the American way of life legal drugs are not
discriminating, Rich or poor, African American or white. there is not a mother or father
in America who does not worry about their child becoming involved with illegal drugs.
The well being of every child in this country is threatened by illegal drugs.

Reducing the demand for these dangerous killers is and has to be the focal point in the war
against drugs. Drug testing is the single most effective weapon in this war. Thank you


CUTTING EDGE ISSUES IN DRUG TESTING
AND DRUG TREATMENT

FRIDAY, JUNE 5, 1998

HOuSE OF REPRESENTATIVES,
SUBCOMMITTEE ON NATIONAL SECURITY,
INTERNATIONAL AFFAIRS, AND CRIMINAL JUSTICE,
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT,
Washington, DC.

The subcommittee met, pursuant to notice, at 11:05 a.m., in room
2154 Rayburn House fice Building, Hon. J. Dennis Hastert
(chairman of the subcommittee) presiding.

Present: Representatives Barr, Mica, Souder, Barrett, and
Cummings.

Staff present: Robert B. Charles, staff director and chief counsel;
Dale Anderson, investigative counsel; Amy Davenport, clerk; and
Michael Raphael, minority counsel.

Mr. Hastert. The hearing of the Subcommittee on National Se-
curity, International Affairs, and Criminal Justice will come to
order.

Good morning, everyone, and thanks for being here. Today and

rain next Wednesday, we will address the treatment component
of our war against drugs.

Today's hearing will be devoted to various methods of drug treat-
ment, drug testing in the workplace and how we determine what
really works and what doesn’t work. Next Wednesday’s hearing
will be devoted to testing and to treatment in the criminal justice
system. We hope to learn from today’s witnesses, who include a

ongressman, corporate experts, scientists, and those involved in
both drug treatment programs and drug testing: First, what suc-
cessful treatment strategies have been developed by the business
community; and second, whether these successful treatment strate-
gies might be adopted in other environments such as within gov-
ernment employment, and where the drug testing should be an in-
tegral part of every drug treatment dollar spent.

Before I introduce our witnesses and begin the testimony, let me
reaffirm that we may see many fronts in our Nation’s drug war;
that we want the administration to seek to end the stalemate in
all these areas and to join us so that we can win on each and every
front. As we launch into our first treatment hearing, let me con-
clude with these points.

First, good treatment methods will help us win, just as bad treat-
ment methods will cause us to lose the war while wasting the tax-
payers money. Second, we have 12 million drug users in the work-
place. Two million of them work for the Government. If we can as-

ey)


150

Mr. GREEN. And you're currently employed in my firm, sir?

Mr. BarRETT. Yes.

Mr. GREEN. Basically, once you had met with the medical review
officer and you would have met with Stosch, our EAP provider, he
would come back and make a recommendation to us in terms of an
appropriate program, whether you would require an outpatient, in-
patient program, if he felt that it was a, you know, aberration and
it would never happen again. And so we basically rely upon the ex-
perts, which would be the employee assistance program Specialist
to make a recommendation. We then sit down with the individual,
we outline various steps that the EAP provider would communicate
to us, and then we would have that person sign an agreement. We
would also increase the frequency, then, of followup drug screens
for a period of time and that, again, is dependent on what Stosch,
the EAP provider, would communicate.

So the point is that we, as owners of the business, remove our-
selves from the process of passing judgment and attempting to pro-
vide appropriate sentence or treatment and really refer to the pr
fessionals and all we’re there to do is to provide a certain standard
and to be a help for the employee to return to full service.

Mr. BaRRETT. If there was a second occurrence, would you be
helped then or does it——

ir. GREEN. Again, there’s a specific set of rulee——

Mr. Barrett. OK.

Mr. GREEN [continuing]. And policies that govern it, but, usually
at that time, and I can give you an instance when it did occur
and the individual then had a difficult choice to whether to con-
tinue employment or to go into an inpatient p. and he elect-
ed to go into an inpatient program and we paid for that cost and
continued his pay during that treatment program for 20 days.

Mr. BARRETT. you think you’re unusual in that re; 1?

Mr. GREEN. Yes, sir.

Mr. BarRETT. OK. It sounds like you are. Thank you very much.

Mr. Barr. Thank you. The gentleman from Indiana, Mr. Souder,
is recognized for 5 minutes.

Mr. Souper. I wanted to followup with Dr. Mieczkowski and Dr.
Kidwell. You had a fascinating discussion going there. Let me see
if I understood. I think you said that there were two studies and
you were referring to the Harkey study that said 42 subjects, they
were not abusers, there were minimal controlled levels in that sur-
vey Does that roughly ——

ir. MilECZKOWSKI. No, this is a controlled-dose study that was
done between 1990-1993 under the sponsorship of NIJ in which 32
recruited subjects were given doses of cocaine either ranging at
something like six-tenths of a milligram per kilogram of body
weight or 1.2 milligrams per kilogram. Some of the subjects were
given dosages by nasal insufflation. They were sprayed up their
nose with a Dristan-type of device or, in a few cases, the subjects
were injected with the cocaine.

Mr. SoupeER. And you said there was a second—you said that the
data that’s in dispute based on two—

Mr. MIECZKOWSKI. Well, there is also a second—a followup to
that which was recently published in which the control group was
derived from this 1990 study and then a mixed-race group of indi-


42

being tested, and the employer requiring the test, the assurance that each specimen tested

is the sample that the tested individual has provided.

Once a specimen has been collected and transported to the testing facility, it is screened
for the presence of illicit drugs. This type of screening procedure can be conducted using
a range of different scientific procedures and products, and actually may be performed in
a laboratory, at a collection site, or even at the employer’s workplace. Whether on-site
test kits or laboratory tests are utilized, the initial screen is just that — an accurate initial

test which may register the presence of a drug of abuse.

A screening test is nor, however, a valid basis for concluding that an individual has
engaged in illicit drug use. DOT and DHHS require all samples which test positive on
the initial screen to be subject to a different confirmatory test, using a more sophisticated

and extraordinarily accurate scientific process.

However, many employers are not testing pursuant to federal law, not regulated by state
jaw, and not required to perform confirmatory tests. Some employers choose to act based
on the results of the screening test alone. NMRO believes this practice benefits no one —
not the employer, not the employee, and places the reputation of all workplace drug-

testing and substance-abuse prevention programs at risk.

The state-of-the-art confirmatory test is known as GC/MS, or more fully, gas
chromatography/mass spectrometry. This test actually reads the molecular fingerprint of

each drug to confirm without error the presence of the exact drug identified. If a test has


161

Mr. Barr. Thank you. Mr. Fortner, in view of the discussion on
the last panel concerning the, again going back to the intrusiveness
of the urine and hair analysis, and considering the bill, the legisla-
tion that we have pending, do you think it would be useful or ad-
visable to add sweat testing to the legislation that we’re consider-
ing?

Mr. ForTNER. Well, I certainly think that that would be a mini-
mal approach. The Department of Health and Human Services,
under the Drug Testing Advisory Board for federally mandated em-

loyees has already looked at that through two hearings last year.

e are in the process of assisting them to write the specimen col-
lection procedures to incorporate sweat testing under the Federal
programs. It certainly is a less invasive procedure and it’s com-
parable to applying a Band-Aid to an individual. Takes all of a few
minutes. And then can allow that individual to continue normal ac-
tivities for up to 2 weeks.

Mr. Barr. And it, well, just for the record, where will this nor-
mally be worn? It would be worn in a place where it would not tele-
graph to everybody around you that you have a problem? It would
be under clothing?

Mr. ForTNER. Typically, it’s worn on the upper arm. It can be
worn on the rib cage or on the lower back.

Mr. Barr. OK, so it could be something that would protect the
immediate privacy of the wearer?

Mr. FoRTNER. Yes, sir.

Mr. Barr. OK, thank yu. Mr. Barrett, did you have any follow-
up questions? OK. I think Mr. Souder, you just had a couple of very
brief questions and then Mr. Mica had, again, a couple of very brief
questions. If we could limit it just to 2 minutes. Mr. Souder, please.

Mr. SoupeEr. I have some other questions I may submit just for
written testimony, but I have two in particular. There was a ref-
erence to—and it sounds first off in the earlier discussion on the
racial question—that there is minimal data out there. There are
other studies out there, I know, that, Ms. Kibben, you were refer-
ring to a number of studies on treatment, but a lot of those were
people who were self-coming forth as opposed to being necessarily
monitored in a typical scientific way.

The question I have is: Is there sufficient research on treatment
and different treatment questions that is professionally done
enough, whether it be through the criminal justice system or in
other areas, or is that a need in the mix here, because we are
spending a lot of dollars on treatment? For example, Congressman
Greenwood has a bill that would take 1 percent of our treatment
dollars and put it toward directed research, because many of us are
frustrated about the conflicting information that we’re getting.
Could I get some reaction?

Ms. KIBBEN. I think I understand what your asking. Is there in-
formation that actually is scientifically gathered that shows that
treatment’s effective? Yes. And is there also a need for additional
scientific data that shows that treatment is effective and how can
it become more effective? Yes. So yes to both those questions.

In the full length of the testimony, you will see about five or six
different cites of very scientifically researched data that is not vol-
untary. An Oregon study that showed, I think, for every $1 in-


3

Recovering alcoholics and drug addicts pose dangers similar to those posed by persons with
diabetes or epilepsy whose conditions do not appear to be currently active. Those who have
previously experienced problems of alcoholism and drug abuse pose an unacceptable risk of relapse
or recurrence ~ with potentially catastrophic consequences — that many corporations do not desire to
assume and many others simply are not capable of assuming. Any dictate to the contrary ~ through
the interpretation of disability discrimination laws - would unnecessarily and inappropnately
impose substantial safety and health risks on employees and the public at large, and would pose

equally unnecessary and inappropriate dangers to property and the environment.

It is clear that rehabilitation programs — even the most responsible programs — are not
universally successful or permanent in altering addictive and abusive behaviors. It would be
wonderful to conclude that individuals who enter — and complete in good faith — treatment programs
can be presumed “cured,” now and forever. However, that is obviously nor the case. The likelihood
‘of a recovering alcoholic's relapse is significant2? There are many other well-documented,
substantial studies of relapse among alcoholics and drug addicts who seek to end their damaging
and destructive behavior, but are unable to maintain their sobriety. For example, one study of
alcohol recidivism reported that approximately 90 percent of alcoholics are likely to experience at
In 1988, six operating administrations of the DoT adopted sweeping regulations on substance-abuse
Prevention in commercial transportation operations, including mandatory drug-testing requirements. See,
eg, Federal Highway Administration policy statement accompanying original drug-testing rules, 53 Fed.
Reg. 47,135 (i988) The strong public policy behind these DoT regulations was definitely underscored by
the U.S. Congress in ts enactment by wide vote margins in both the Senate and the House of Representatives
of the Omnibus Transportation Employee Testing Act of 1991, 49 U.S.C. app. § 2717, which mandated
random and other types of drug and alcohol testing for employees in safety-sensitive, transportation-related
jobs regulated by DoT's operating administrations. These legislative mandates have become new

Tequirements for regulated transportation carriers and industry workers. See $9 Fed. Reg. 7302 (1994) (final
agency rules limiting alcohol use by transportation workers and mandating alcohol testing).

25


82

here, the way, the means to get treatment. It’s up to him to seek
that treatment. Is that what you’re saying?

Dr. MACDONALD. It’s more important, in my mind, than what
happens to that individual. That individual whose raking the yards
at the school on Saturday because he had some drug problen—
what I want to have happen is I want all of those kids in the school
to see him out there doing that and understand that he’s now on
a different track and deter them from drug use. In my mind the
strongest urge to prevention is: I don’t want the consequences of
getting caught.

Dr. DuPont. Mr. Chairman, I was the expert on the case that
went to the Supreme Court, the Vernonia case, that established the
constitutionality of drug testing in the public schools. That was a
landmark decision. To stop the increase that has come about since
1992 in teenage drug use in this country is to focus on the user.
We need to have socially imposed consequences on teenagers who
use drugs. It needs to be the kind of thing that Dr. Macdonald was
talking about. The U.S. Supreme Court essentially said that drug
testing is part of an adult stewardship responsibility for children
and does not violate the Constitution, and T would encourage that
direction.

Mr. Hastert. Dr. Lappe.

Dr. MACDONALD. If I could, Mr. Chairman, I just want to make
one other comment, if I may, about that. In my background, the
part that they didn’t mention is that I love children. I was a pedia-
trician for 25 years before I got into this business and I don’t want
anybody to interpret that my concern about kids has anything to
do with wanting to see their lives ruined or punished.

Mr. HASTERT. Thank you. Dr. Lappe, you talked about the Fed-
eral drug-testing program, such as the Department of Transpor-
tation. Two questions: First of all, is it effective in your opinion?

Dr. Lappe. It has been effective in that we have a dramatic re-
duction in the test positive rates since 1989. We have a very strong
random drug-testing pro; in Transportation which we ‘don't see
in the private sector and nonsafety-sensitive workplaces. We know
that the more frequently we random test, the lower the positive
rate.

Mr. HasTERT. And the other part of this is the other side of the
equation is that you talk about fair procedures for a person that’s
being tested. First of all, is the appeal process working well in pro-
tecting the rights of individuals? Are there fair procedures that the
private sector is doing that we could learn from?

Dr. Lappe. Absolutely. The appeal procedure is—I wouldn’t even
describe it as an appeal procedure because it fills a glitch in the
analytical process. Laboratory tests cannot determine whether drug
use is legal or illegal. It can only detect the presence of drugs. So
the medical review process—the post-analytical review—is more
than an appeal. It finishes off the analytical process to focus on in-
dividuals whose samples have drugs in them and without being ac-
cusatory in that the individual is immediately considered to be an
illicit drug user. But rather give them the opportunity to present
their medical history, and only in the absence of any significant
history that would have produced a positive result from legal use
would we then focus on the illegal or illicit source of drug. Drug-



CUTTING EDGE ISSUES IN DRUG TESTING AND
DRUG TREATMENT

HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY,
INTERNATIONAL AFFAIRS, AND CRIMINAL JUSTICE

OF THE

COMMITTEE ON GOVERNMENT
REFORM AND OVERSIGHT
HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS
SECOND SESSION

JUNE 5, 1998

Serial No. 105-182

Printed for the use of the Committee on Government Reform and Oversight

oe

U.S. GOVERNMENT PRINTING OFFICE
52-626 WASHINGTON : 1999

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 2402

ISBN 0-16-058184-2
3



108

claims, vehicular accidents, lost productivity, high absenteeism and tardiness were
all factors that were impacting the quality of the work that we were doing and the
profitability that could be made on each job.

After educating our employees as to the benefits of installing a drug and
alcohol program, we started to see substantial improvements in productivity,
absenteeism and the quality of the work being executed. Soon thereafter, the
profitability of the firm increased. Additionally, we were able to reduce our
insurance premiums from a base of $252,000 in 1987 to just $120,000 by 1991. In
fact. in the 1998/1999 calendar year, Chamberlain’s insurance premiums are only
$119,000~essentially flat for over eight years.

How the government benefits by putting a drug and alcohol testing program
in place, is to be a more concemed employer who takes a more pro-active approach
to their employees. Instead of waiting for an employee to fall and stumble after
immersing him or herself in drugs or alcohol, by testing, you help prevent that
negative behavior frum overwhelming the individual, provide appropriate treatment,
set standards of job performance, and eliminate drug and alcohol usage from an
individual’s life.

In small businesses, the reason why drug and alcohol use ts prolific, is that

most small business owners are entrepreneurs who focus their efforts on sales and

2


131

Mr. Barr. Thank you, Mr. Fortner.

Ms. Kibben, if you would summarize your statement and it will
be submitted in full for the record, please.

Ms. KIBBEN. I’d like to thank the chairman, the ranking member,
and the subcommittee for inviting me on behalf of the National As-
sociation of Alcoholism and Drug Abuse Counselors [NAADAC] to
provide our insight on these important issues of drug testing and
drug treatment. We're very pleased to be given this opportunity.

[AADAC is the largest national organization representing the
interests of alcoholism and drug abuse counselors across the United
States. NAADAC supports the implementation of workplace poli-
cies and procedures for drug testing, assessing, treating, and super-
vising employees suffering from alcoholism and drug addiction. We
believe the purpose of testing should be to identify employees with
alcoholism or drug addiction and enter them into treatment for the
diagnosed disease. We do not endorse treatment—excuse me, we do
not endorse testing used for punitive measures.

More than 70 percent of the ple who currently use illicit
drugs as well as 75 percent of those who are alcoholics are em-
ployed. NAADAC acknowledges that the recovering employee, once
appropriate assistance has been offered, must be held responsible
and accountable for his or her recovery. Records show that thou-
sands of employees have returned successfully to their jobs after
treatment. The airline industry has returned hundreds of pilots to
their positions following successful treatment and testing regimes
required by the FAA. This model is so successful that United Air-
lines estimated it receives $16.95 returned for every $1 invested in
a drug-free workplace program.

Indeed, scientific research has greatly improved our understand-
ing of the chronic diseases of alcoholism and drug addiction. Addic-
tion, defined by Dr. Allen Leshner, the director of the National In-
stitute on Drug Abuse, is a disorder that alters the brain’s meta-
bolic activity, receptor availability, gene expression, and other
physiological aspects of a person’s brain.

A recently released General Accounting Office [GAO] study offers
very strong recent analysis of treatment’s effectiveness. We’re en-
couraged by the GAO’s review, which notes that even conservative
evidence of treatment effectiveness, substantiated by urine tests,
show that 71 percent of crack cocaine users and 83 percent of opi-
ate users in a treatment test sample had not used drugs in the
month prior to the followup screening. As the study states, “con-
sistent evidence shows drug treatment is beneficial.”

Thanks to continued research, we know that addiction treatment
is similar to other chronic diseases such as hypertension, diabetes,
and asthma. Much like treatments for diabetes and hypertension,
addiction treatment requires compliance with a treatment protocol
that includes major behavioral and lifestyle changes and, often,
medication. The previously mentioned GAO study shows that ad-
diction treatment has compiled a record of effectiveness that com-
pares favorably with treatment for other chronic diseases. Less
than 50 percent of people with diabetes and fewer than 30 percent
of hypertension or asthma patients complied fully with their treat-
ment regime. Similarly, 40 percent of addiction treatment patients
fully comply with their treatment regime. Despite treatments’


159

Validation

This new technology is the culmination of decades of pioneering work by cognitive,
neurophysiological and pharmodynamics research. Scientific literature shows that a variety of
factors are known to change the oculo-motor parameters measured by the FIT. These include
alcohol, psychoactive drugs (either illegal or prescription) and extreme sleepiness. A high risk
test can therefore be the result of any one of these factors or a combination of two or more.

Controlled dose studies to determine the sensitivity of the FIT to alcohol, marijuana and
cocaine have been carried out at several leading research institutions. These drugs were chosen
to demonstrate the range of capabi of the FIT, they also represent the most commonly
abused drugs in the workplace. The sensivity of the FIT to sleep deprivation and fatigue were
also investigated in several studies. Some of the studies determined the sensitivity of the FIT to
prolonged sleep deprivation while others determined the sensitivity of the FIT to a single
extended work day with a mentally demanding task.

All of the testing for drugs and alcohol were performed using randomized, double blind,
placebo controlled, repeated measures studies of human volunteers. In such testing, neither the
subject nor the researcher knows which of several doses (including zero, or placebo dose) of the
test drug is being given while the data are being collected. Repeated testing of the same subject is
carried out on separate days at different doses, FIT tests were taken before and at intervals after
administration of each dose.

The data from these laboratory studies demonstrate that the FIT is sensitive to a broad range of
factors that can increase the risk of an employee causing an accident, The sensitivity occurs only
while the factors continue to have an impact on the central nervous system. Asa result, the FIT
is directly relevant to employers interested in high quality, exacting, detailed work, as well as
general safety and quality without violating the privacy rights of the employee.

‘The following institutions have participated in this validation effort:

© The Addiction Research Center (National Institute of Health)
Johns Hopkins University, Baltimore, Maryland
The Vermont Alcohol Research Center, Burlington, Vermont
The National Highway Traffic Safety Administration, Washington, DC
The Federal Rail Administration, Washington, DC
The University of lowa Department of Ophthalmology. lowa City. lowa
Waiter Reed Army Medical Center, Washington, DC
Institute for Circadian Physiology, Boston, Massachusetts
Naval Aerospace Medical Research Lab, Pensacola, Florida

eoececece

PMI, INC. Keeping an Eye on Safety, Quality and Productivity




109

production issues. Their attention is to details associated with payroll, collections and
production--today, this week, this month and this quarter. They do not plan for the
long term success of their business or the health and welfare of their employees.
They enable and reinforce negative behaviors. The end result is that the employees
are there to work for a paycheck, which they subsequently use to fund their
inappropriate behaviors.

By having the government take a stend, putting in place a comprehensive drug
and alcohol testing program, coupled with an employee assistance program, to help
address those negative hehaviors and rehabilitate individuals, you will reduce your
health care costs, you will reduce your insurance costs, you will increase your
productivity and you will have a more loyal work force. It works the same, whether
it be in private business or government.

My challenge to the Congress today is that you consider doing what most
Fortune 500 companies and a small percentage of small businesses are already doing.
Employees of the government should be tested like private business. Employees of
the government have the same afflictions, are subjected to the same temptations and
have the same problems, whether they be troubled adolescents, conflicts with a
spouse or financial difficulties; all which can manifest themselves over time in drug
and alcohol addiction problems.

a


30

released annually’ has shown an annual decrease in the positivity rates among all work groups
tested. The rates of positivity in testing in the military have fallen from more than 20 percent at
the time the program was started to current positive rates of less than 3 percent.

The findings of these reports are significant but they raise some issues, Principal among them is
whether these programs are really effective in reducing drug use or do they just drive it from
employers who test to employers who do not? Probably, some of each. Data from the National
Household survey confirm a wealth of anecdotal reports suggesting that self-admitted drug users
are less likely to apply for jobs with employers who test”, But as more and more quality jobs are
with employers who test, the incentive to quit has grown.

EHP, provides education and training to companies and provides assessment and counseling
services for troubled employees and for employees who have failed their drug and alcohol tests.
An increasing number of our clients allow employees who have failed a drug test to return to
work after being evaluated by one of our substance abuse professionals (SAPs) and cleared for
work. It is our belief that the factors behind this increase are the awareness of the value of
keeping employees who are trained and experienced, especially in a time of high employment.
‘Another factor may be the increasing awareness of the effectiveness of drug treatment especially
when there is a process in place to monitor compliance with SAP recommendations and to
randomly test for drugs and alcohol.

In conclusion, it is my view that drug testing is an underutilized tool of value not just to

employers seeking to reduce the consequences and costs of worker drug use but an underutilized
tool of a national strategy focused too little on the real cause of our drug problem, the user.

Drug tein inde: SeihKline Beecham Clinical Laboralorcs, Collegeville, PA 1997,

7 pm evabuation of drug se sed policies ad ‘The 1997: Abuse and Mental Heath Services
‘Adcisistration ($AMSHA) National Hovnehold Survey, Washington, DC.



89

Dr. DuPont. I think that what makes the people sick and tired
is all the consequences that have piled up over the years of use,
one of them being the financial consequences, but also criminal jus-
tice consequences, consequences in their family, consequences with
employment. When you talk about people who have come and said,
I'm sick and tired of being sick and tired, if you look back on what’s
happened to that person, you will usually see quite a long list of
consequences that have been endured in the pursuit of what I call
the love affair with the drug.

Mr. CumMMINGS. Now when you look at these workplace pro-
grams, do you—I don’t know whether you can answer this or not,
but do you find that more people get to the point of the con-
sequences—they come forward voluntarily or do more—are more
noticed when somebody says, Johnny over there is coming in a lit-
tle tipsy? I mean, which is the most? In other words, how is it
brought to the attention——

Dr. DUPONT. Most of them have some kind of consequences. It
may be the family. Sometimes it’s the spouse who says, go into the
EAP program. But oftentimes, it’s a positive drug test that gets the
person into the net of the employee assistance program and then
into the 12-step programs. Again, as Dr. Macdonald pointed out,
the idea of drug testing them afterward, so that the condition of
continued employment is the drug test being negative, is a very im-
portant part of success. But consequences are many-fold, including
physical illness, the doctor who refers people because they have a
physical problem as a result of the drug use, for example. But the
most important one, particularly for this hearing, is the positive
drug test. That is a very powerful tool to help people reach bottom.
As Dr. Macdonald said, drug tests raise the bottom.

Mr. CumMincs. What happens when—if somebody comes to you
and says, Let me go to you, Doc?

Mr. DEBERNARDO. deBernardo.

Mr. Cummincs. Somebody in your law firm, a senior partner
comes and says, We know Johnny over here, one of your main play-
ers in the law firm, has got a drug problem. I think that one of the
problems is that the person feels that, even if there’s a drug policy
established, you’ve got somebody like in a law firm that may come
forward. It’s like, you know, will I suffer no matter what? I mean,
what would happen, do you think, in your law firm? You follow
what I’m saying?

Mr. DEBERNARDO. If I was——

Mr. CuMMINGS. They’re already kind of prejudiced. They feel like
they’re going to be—and I think it’s a reasonable assumption that
there may be some problems, even if they say, OK, I’m going to get
treatment, or whatever, that their tenure at your law firm may not
be very long.

Mr. DEBERNARDO. Yes; I think that if I knew that I had a col-
league who had a significant substance abuse problem, knowing
what I do on these issues, I would advocate intervention no matter
what. Because, absent intervention, a person who has a serious
substance abuse problem—narcotic, drug problem, alcohol abuse
problem—is likely to die a premature death.

Mr. CUMMINGS. But what about his job?


84

ple who might have privacy concerns and conclude that, well, some
employer, some potential employer, is asking these questions in
this area right now? What will he or she be delving into in the fu-
ture? What do you think is going there?

Dr. MACDONALD. Well, I think some of all of that exists. One of
the things we've learned in polling data that really hasn’t changed
a lot over the last 15 years is that about 80 percent of the workers
and people in the Congress here approve of testing if it has the
proper guidelines and the proper way of being put together. Some
of those people are concerned about their rights and government
and employer infringement of those rights. But more often people
that object are users. We had somebody who applied for work with
us recently and we routinely do preemployment and random test-
ing. He never showed up for the drug test—never came back, gone.
We've had that happen a couple of times. So that if, indeed, just
having the test wi P cause people to go somewhere else—I don’t
know if I’m answering your question.

Mr. BaRRETT. Again, you think it’s—if you were going to put a
percentage on each, how many of those people are going because
they may be——

Dr. MACDONALD. A great majority are drug users.

Mr. BARRETT. The second comment: You do have an interesting
background for this area as a former pediatrician. One of the
things that we have heard time and time again on this committee
over the last year and one-half is that there’s been an increase in
drug use among teenagers. From your perspective, what’s going on

ere?

Dr. MACDONALD. Well, I think that there are a lot of things going
on. The drug czar is now coming out with advertisements to give
the good side of staying off of drugs. I think more important would
be looking at the encouragements to use drugs that are beginning
to show up again in the media and the music of our young people
and that really disappeared to large extent in the early 1980's. I
think that the example of a national leadership, Nancy Reagan and
President Reagan, saying kids should not use drugs, enabling par-
ents to do what parents needed to do—in my view, as a pediatri-
cian, parents do have the key role in this, but we've sort of cut
them off at the pass if we don’t provide them the national support
and encouragement that they need and the Programs. More re-
search on what works would be very, very helpful. I think it’s a lot
of factors.

Mr. BARRETT. Mr. deBernardo, I have the letter that you wrote
to Mr. Thomas where you did a very good job in talking about the
concerns that you had with drug testing. I believe this is your let-
ter, is that correct?

Mr. DEBERNARDO. Correct.

Mr. BarrReETT. If you could just, with the Member issue, sort of
elucidate what your concerns are—of the constitutionality of a test-
ing of Members of Congress?

. DEBERNARDO. ile the Supreme Court has addressed this
issue and addressed it in Miller v. Zeller last year and the Supreme
Court came—that was the only case that’s been before the Supreme
Court in which drug testing was not upheld. I think it has very di-
rect ramifications in terms of suspicionless testing of Members of


12

Thank you, Mr. Chairman and members of the Subcommittee, for
this opportunity to address the Government Reform and Oversight's
Subcommittee on National Security, International Affairs, and
Criminal Justice. I speak as a psychiatrist -- a medical doctor --
having spent the majority of my professional life in the field of
addiction medicine. In 1968 I went to work in the District of
Columbia Government under Mayor Walter E. Washington creating a
model heroin addiction treatment program in the D.C. Department of
Corrections. It was expanded in 1970 to become a comprehensive
city-wide heroin addiction treatment program (the Narcotics
Treatment Administration [NTA]). I became the second White House
Drug Czar in June of 1973 and the first Director of the National
Institute on Drug Abuse (NIDA) in September of that year.

I have remained active in the addiction field since I left
government service in 1978, contributing extensively to the
literature on drug abuse prevention, treatment, and policy. My
most recent book, The Selfish Brain: Learning From Addiction,
published by the American Psychiatric Press in 1997, summarizes ny
views on addiction on a global basis. I am especially proud of the
generous Foreword by Betty Ford, a great leader in this field.

My fundamental thesis is that demand reduction is an
important, and inadequately developed, element in a more effective
drug control policy. Demand reduction, however, should not be
equated with conventional prevention and treatment efforts since
these, like supply reduction, are relatively helpless in the face
of the biology of addiction. What is needed for real demand

reduction are powerful initiatives throughout society based on a


54

our workers, and plague our society.” These problems pose an enormous risk to public health and
safety, and have substantial social and economic costs and consequences in every community and
for virtually every person across the country (for example, higher taxes, higher crime rates, higher

health-care costs, and higher insurance rates).*

* Drug-using employees are 3.6 times more likely to be involved in a workplace accident and are five times.
more likely to file a workers’ compensation claim. Backer, Thomas E. Strategic Planning for Workplace
Drug Abuse Programs. National institute on Drug Abuse. 1987. p.

Drug using employees are more likely to have had three or more employers in the past year than those who
do not use drugs (32.1 percent vs. 17.9 percent); to have taken an unexcused absence from work in the past
month (12.1 percent vs. 6.1 percent); to have voluntarily quit work in the past year (25.8 percent vs. 13.6
percent); and/or to have been fired from work in the past year (4.6 percent vs. 1.4 percent). “An Analysis of
‘Worker Drug Use and Workplace Policies and Programs.” Substance Abuse and Mental Health Services
‘Administration. Office of Applied Studies. Rockville, Maryland. July 1997.

Between 1975 and 1986, more than 50 train accidents were directly attributable to drug or alcohol abuse,
The results of the accidents: 37 fatalities, 80 injuries, and more than $34 million in property damage.
“Battling the Enemy Within." Time. March 17, 1986. p. 52.

” A strong correlation also has been demonstrated between violent acts and the abuse of drugs and alcohol.
For example, the Center for Substance Abuse Prevention at the United States Department of Health and
Human Services reported that alcohol and other drugs are associated with 68 percent of manslaughter
charges, 52 percent of rapes, and 50 percent of spousal abuse cases. Although separate statistics are not
maintained for drug-related occupational violence, it is reasonable to infer that a substantial percentage of
violent conduct by drug-abusing employees is attributable to their substance abuse. The overall cost of
family violence to employers has been estimated at between $3 billion and $5 billion annually. "When
Employees Make Good on Bad Intentions.” EAP Association Exchange. September 1993. p. 15.

* More than one-half of all people arrested for major crimes — including homicide, theft, and assault - were
using illicit drugs at the time of their arrest. U.S. Department of Justice. National Institute of Justice. 1991
Drug Use Forecasting Annual Report. Washington, DC: NCJ-136045. 1993. p. 21.

One out of every 144 American adults is behind bars for a crime in which drugs or alcohol was involved,
including: violating drug or alcohol laws, being intoxicated at the time the crimes were committed, stealing
property to support a drug- or alcobol-abuse addiction, or having a history of drug- ot alcohol-abuse
addiction. “Behind Bars: Substance Abuse and America’s Prison Population.” National Center on Addiction
and Substance Abuse. Columbia University. New York. January, 1998,

Drug-related hospital emergency-room visits increased 21 percent between 1989 and 1995, to a total of
487,600. Estimates from the Drug Abuse Waring Network. U.S. Department of Health and Human
Services. November 1997.


m1

National Drug Court Institute Review 57

cares”, these participants have made the all too common
mistake of confusing the failure to demand accountability
with compassion. Yet another interpretation of “caring”
is simply that the drug court judge is more involved in
their personal situation than a traditional judge who sen-
tences them and/or sends them to jail.

It is clear in the American University 1997 Drug
Court Survey Report that drug court participants identify
the purpose and importance of sanctions. It queried 256
participants from 53 drug courts and found that the high-
est percentage (82%) responded that “the possibility of
sanctions (being) imposed if you didn’t comply with the
program” was “very important.” Seventy-five percent
said it was “very important” that “a judge monitors my
progress.” Unfortunately, there was no elicitation of
spontaneous comments; the participants were limited to
five responses, none of which referred to their interaction
with the judge.® However, as mentioned earlier, 80% said
that they would not have remained in the drug court pro-
gram if they were not required to appear before a judge as
part of the process.

THE MIND OF THE ADDICT:

[16] Insight into the mental life of the addict is
helpful to the drug court judge and other criminal justice
personnel whose aim is to reduce subsequent crime
through changing offenders’ behaviors. Partly, this
change will be effected through behavior modification
(sanctions, consequences and rewards), but it will also be
influenced, to some degree, by the relationship with the
judge. Nevertheless, there are aspects of the addicts’ at-
titudes and actions that can make it difficult for the judge
to form a relationship. It is not uncommon, for example,
for a participant to choose drug court simply because he
or she wants to avoid jail and to imagine that he or she
will simply go through the motions (“get over and get


96

Summary Statement

Or. Tom Mieczkowski

Professor, Department of Criminology

University of South Florida

Thank you for the opportunity to express my views on the important issue of drug
policy. | shall confine my remarks to the specific areas of interest that | have
explored in my research.

| have since the early 1980's been an active researcher in areas of drug abuse,
drug-related criminal behavior, and in the measurement of drug use prevalence
and incidence, especially by the use of various drug identification technologies.
‘Specifically, | have been involved in urinalysis testing, including being a site
manager and consultant to the National Institute of Justice's Drug Use Forecast
Program. Furthermore since 1989 | have conducted several large projects
assessing the utility of hair analysis in various criminal justice contexts including
jails, correctional settings, and diversion programs. Additionally, in the last two
years we have been assessing the applications of a new technology, ion mobility
spectrometry, to the detection of drug exposure in certain criminal justice
Populations. These projects have included males and females, youth and adult
offenders, and members of all racial and ethnic groups. The number of subjects
in total for all these projects numbers in the thousands.

In general our research has consistently revealed several fundamental and, |
believe. important findings. Among the most important is that for the purposes of
estimating drug prevalence and incidence methods which do not use a
biologically based assay to assess the accuracy of personal self-reports are
inevitably going to underestimate the true degree of drug use, and probably
underestimate it by a very significant amount. Almost universally, our research
(and that of many others) shows that survey-based procedures inevitably result
in under-reporting of drug use. This is true regardless of the type of bioassay
procedure.

For the last eight years | have also assessed the utility of hair analysis for five
categories of illegal drugs (marijuana, cocaine, heroin, PCP, and amphetamine)
in criminal justice populations. | have been interested in hair analysis primarily
because it can provide a larger "window of detection" than urine or plasma-based
testing techniques. This is especially important for rapidly excreted drug like
cocaine and heroin, which have a very short detection life in urine or plasma. We
have found hair analysis. when correctly done, to be an excellent technique for
this purpose. We have assessed approximately five thousand cases in various
field settings and had excetient results. These assessment projects include
testing of juvenile offenders, testing adult arrestees, testing probationers over a
long time frame, and testing persons in adult diversion who were also followed
‘over a long time frame. In all these projects we used both hair and urine-based
tests as well as interviewing and questioning subjects about their drug use.


170

National Drug Court Institute Review 355

conscious) desire to be punished or controlled or to elicit
concern through censure.

These kinds of psychodynamic scenarios are more
likely to get played out in a drug court, with its somewhat
relaxed structure, than in a standard court where pro-
ceedings, expectations and personnel roles are clear, tra-
ditional and fairly predictable. The expression of the par-
ticipant’s psychological conflicts and needs naturally find
outlet in a setting where a potent figure (the judge) ac-
tively probes for personal details and takes a visible inter-
est in their lives. While it would be a grave mistake for
the judge to fashion himself or herself as a therapist —
better to be seen as a moral authority with the flexibility
to be practical and compassionate while demanding ac-
countability — the judge should be aware that the uncon-
ventional nature of his or her relationship with partici-
pants can engender complex reactions in himself or her-
self.

* MENTS.

HI) JUDGE:

[15] As important as the drug court judge is to the
court process, dynamics and outcome, there remains a
variable that plays an equally paramount role in drug
court — the participants. Focus groups, surveys and exit
interviews allow us to learn about the participant’s im-
pressions of the drug court experience. Urban Institute
Tesearchers conducted focus groups with participants of
the Washington, DC Drug Court.! The researchers found,
not surprisingly, that the certainty of consequences was
psychologically powerful and important to the partici-
pants. “The reason the sanctions track people did so well
is because they knew what the judge would do. And he
did it,” said senior researcher Adele Harrell who con-
ducted focus groups with study participants. She also


15

‘These studies also reveal that there is no fixed time period which signals a total "cure" and
obviates the need for future concem of relapse. Any combination of pressures, stress, or problems —
many of which likely will be entirely unknown to the employer ~ can lead to a relapse that
terminates an extended period of sobriety. Simply presuming that an individual who goes six
months, one year, two years, or five years is forever cured of addiction problems is arbitrary. Such
periods of abstinence are not reliable indicators that employees with past addiction problems are

“risk free" in terms of recurrence.

In addition, supposed “warning signs" of a relapse provide inadequate protection to
employers, co-workers, and the public with respect to individuals who perform highly hazardous
activities, ‘The Institute is a strong proponent of the key role of supervisory training in the
implementation of a substance-abuse prevention program. Supervisors should be familiar with
corporate policies, acquainted with treatment and assistance alternatives, and prepared to respond to
situations in which employees appear to be "under the influence” of drugs or alcohol at work - or in
violation of the company's drug- or alcohol-prevention policy in some other regard At the same
time, it is quite clear that such training efforts do not create medical or treatment and assessment
"experts." Reliance on the perceptions and assessment capabilities of lay supervisors provides an

inadequate means of assurance for a vast quantity of high-risk positions.

Furthermore, such oversight "options" are entirely meaningless for positions that are not

supervised, or where "rank-and-file" tasks are performed in transit or at remote work locations.

Apart from the potential loss of life and human suffering that might be avoided, corporations have

27


36

MRO applauds this Subcommittee in its efforts to identify and support the most
accurate and technically superior drug-free workplace programs, and commends to the
Committee's attention the model legislation advanced by the Institute for a Drug-Free

Workplace.

This legislation, which is voluntary, would encourage employers with workplace drug-
testing programs to utilize state-of-the-art drug-testing methods that would protect
individual employee rights and maintain the highest standards of testing quality and

accuracy.

‘Such a law is in the best interests of the American public and would help ensure that drug
testing is conducted in a manner which eliminates potential human and technical errors,

while effectively detecting and deterring employee drug use.

As the members of this Subcommittee may be aware, substance abuse in the workplace
costs American businesses many billions of dollars a year. While there is some
disagreement as to exactly how much substance abuse costs employers, there is virtually

no disagreement that this cost is enormous.

‘Why is substance abuse so costly to employers? Substance abuse bas a direct correlation
to workplace accidents. In addition to the human costs associated with these accidents,
employers with substance-abusing employees experience increased workers’


48

What’s included, Mr. Chairman and members of the subcommit-
tee, in our testimony is a draft of that legislation, the model legis-
lation which the institute has endorsed. But I think that it’s sig-
nificant to note that it’s also been endorsed by the President’s Com-
mission on Model State Drug Laws. Earlier in the Clinton adminis-
tration, unanimously adopted, the only workplace drug-testing bill
endorsed by the President's Commission on Model State Drug Laws
was the institute’s drafted bill. We are the only business witnessed
before that organization. A majority of the members of the Presi-
dent’s Commission were Democrats. It was a Nery bipartisan effort.
This legislation again is gaining momentum at State level, and
it’s something that we feel should be considered at the Federal
level and we certainly commend to your attention.

That is included in my testimony as the Drug-Free Workplace
Act. The basic premise of this is it’s a voluntary bill and there’s a
quid ro quo. For employers who choose to follow the safeguards,
the checks and balances, that are included to make sure that em-
ployers do drug testing in the most responsible fashion and most
accurate and credible fashion, there’s a benefit. That benefit is the
employer cannot be sued for acting in good faith under drug test
results. There’s a shield to liability if you follow these safeguards.
These safeguards, frankly, they’re in everybody's interest, and as a
practicing attorney, what I recommend to our clients, certainly the
institute recommends to its members, and I think our members
uniformly adopt these consensus guidelines for what is the most re-
sponsible way to do drug testing. I think it’s very positive.

There’s a second bill I also want to bring to your attention which
is included—the text is included in testifying before this sub-
committee before. It’s one that members of the committee ex-
pressed interest in. J think it’s very important. That’s the Public
and Employee Safety Assurance Act. This is a bill which would ad-
dress the problem of the fact that right now in America some em-
ployers are being compelled to put back to work in highly safety-
sensitive positions employees, individuals, who have a history of
substance abuse, individuals who have tested positive for that very
employer. What we're talking about is a very small number of jobs,
clearly much less than 1 percent. We feel, the institute feels, the
employer community as a whole feels, that there are certain jobs
that are so highly safety-sensitive in nature, that there is so much
of a risk of tragedy if you have an impaired individual on that job,
and it’s appropriate that that very small number of jobs that em-
ployers be permitted to refrain from hiring or remove from those
jobs or remove from consideration for those jobs—those with a

istory of substance abuse.

I appreciate this opportunity to testify and would be glad to an-
swer any questions you may have.

(The prepared statement of Dr. deBernardo follows:]


117

About PharmChem Laboratories, Inc.

PharmChem Laboratories, Inc., was founded in 1971 specifically because of a
need for a facility that could detect and deter the use of illegal drugs and alcohol.
Since that time, PharmChem has analyzed more than 20 million urine samples for
drugs of abuse — 3.2 million in the last year alone — and urine testing continues to
comprise the vast majority of the tests we perform. Today, PharmChem Laboratories
has more than 300 employees and operates three fully licensed and certified
laboratories: one in Menlo Park, California; one in Fort Worth, Texas; and one,
operating under the name MedScreen, in London. We serve more than 1500
customers in all 50 states and several foreign countries. Among our customers are
the federal Departments of the Interior, State, and Energy, as well as more than 40
other federal government departments or bureaus. PharmChem performs tests for
most drugs of abuse, including cocaine, marijuana, methamphetamines, opiates, PCP,
and alcohol.

In addition, PharmChem prides itself on its customized, integrated customer
services which are designed to support customers in developing and maintaining cost-
effective drug-testing programs. In that regard, we offer a range of drug-testing
products and services, including urinalysis laboratory testing, a sweat patch drug
test, and a new on-site urine drug screen.

PharmChem has pioneered many of the most important innovations in forensic

drug testing.


53

Nonetheless, there are six states (Connecticut, Maine, Minnesota, Montana, Rhode Island,
and Vermont) and Puerto Rico which have enacted unduly restrictive drug-testing laws? We seek
preemption of those laws and a better, more consistent, less partisan, and more effective legislative
response to the tragedy of drug abuse as it affects our American workers. That approach is
embodied in the Private-Sector Drug-Free Workplace Act, draft legislation which I will discuss

today, and have included in section X of this statement.

IV. _ Nature of the Drug-Abuse Problem

The Institute for a Drug-Free Workplace recognizes the buman tragedies and economic
costs associated with drug and alcohol abuse,' the necessary and legitimate role of employers in the
“war on drugs," and the need for fair and effective utilization of all available tools to deter, detect,

and treat the employee drug-abuse problems which are so prevalent in our workplaces, endanger

* One state - Iowa - which had enacted a particularly restrictive anti-drug-testing law in 1987, repealed
that law earlier this year, and replaced it with a law consistent with the Institute's model bill.

“The U.S. Government estimates that the total economic cost of alcohol and drug abuse was $276.3 billion in
1995. National Institute on Drug Abuse & National Institute on Alcohol Abuse and Alcoholism, Rockville,
Maryland. May 1998,

* See discussion of the magnitude of the drug problem as identified by employees regarding their own
workplaces, Gallup National and 17 State Surveys of Employee Attitudes on Workplace Drug Abuse and
Drug Testing, conducted for the Institute for a Drug-Free Workplace, by the Gallup Organization, Princeton,
New Jersey (1989-1995).


138

minimal cost increases resulting from parity to employees. The low costs of adopting parity
allows employers to keep employee healthcare contributions at the same level they were before
Parity.”

Parity can also include business safeguards. One current parity proposal exempts health plans if
the cost of a group health plan will increase by 1% or more due to this provision. In addition,
small employers (employers of 50 people or less) would be exempt from the parity requirements.
It should be noted that in state parity laws which had small employer exemptions, small
employers usually selected benefit packages subject to parity because costs increases were
nominal and parity benefits better served their employees. Also, with parity, their health plans
‘were more competitive with other employers.

The current system of discriminatory and limited coverage for alcoholism and drug addiction is a
tremendous drain on national and employers’ resources. A new study released by the National
Institute on Drag Abuse (NIDA) and the National Institute on Alcohol Abuse and Alcoholism
(NIAAA) found that the total costs of alcohol and drug abuse was $246 billion in 1992. By
comparison, diabetes cost $137.1 billion, or 17% less than alcoholism, in 1992. Heart disease
cost $125.8 billion, or 24% less than alcoholism, in 1991 and cancer cost $96.1, or 42% less than
alcoholism, in 1990, Clearly, addiction to alcohol and drugs is the nation’s most expensive
health problem when untreated. Alcoholism and drug addiction treatment with trained, certified
professionals is a proven, effective tool in reducing the costs of alcohol and drug use.

In conclusion, a drug testing program must include an assessment and treatment component.
Ensuring adequate coverage of treatment for employees improves the health, safety and welfare
of America’s workforce and their families. It enhances a sense of security for all employees and
makes for better relations with management. In addition, it improves morale between employees
and employers.

NAADAC is eager to work with the subcommittee to develop policies that encourage the
provision of appropriate, professional, effective and safe treatment to America’s workers. If you
have any questions regarding the work of our association or our position on the issues of drug
testing and treatment effectiveness, please call Linda Kaplan, Executive Director, or Bill McColl,
Associate Executive Director of Policy and Government Relations at 703/741-7686.


49

1. Statement of Interest

Good moming Chairman Hastert, Ranking Minority Member Barrett, and Members of the
House Subcommittee on National Security, International A fairs and Criminal Justice. My name is
Mark A. de Bernardo, and } have the privilege of serving as the Executive Director of the Institute

for a Drug-Free Workplace (the "Institute").

‘The Institute is a coalition of major employers and employer organizations that has been
actively involved in national and state policy-making on workplace drug-testing and drug-abuse

prevention issues for nearly a decade.

{also am an attomey and serve as the Managing Partner of the Washington office of Littler
Mendelson, the largest ~ by a wide margin - employment an¢ labor law firm in the country with 31
offices and more than 360 lawyers, all of whom exclusively represent management on employment

and labor issues, including counseling on workplace drug-abuse prevention policies and programs.

In addition, I serve as employment counsel to the U.S. House of Representatives on drug-
testing issues, and currently represent on this and related issues more than 30 of the “Fortune 200”
corporations. My clients also include five Federal executive branch agencies; the States of


8

(E) __“Safety-sensitive position” means any job wherein an employee, if impaired by drug or
alcohol use, could cause or significantly contribute to an accident which results in loss of
human life, serious bodily injury, or significant property or environmental damage, or
those managerial or supervisory positions to which such individuals report.

(F) —“Confirmatory drug test” means any follow-up test for the presence of illicit drug use
which is conducted after a “positive” drug-screening test, and is conducted at a
laboratory: (1) certified by the U.S. Department of Health and Human Service’s
Substance Abuse and Mental Health Services Administration; (2) approved by the U.S.
Department of Health and Human Services under the Clinical Laboratory Improvement
Act; or (3) approved by the College of American Pathologists

(G) “A history of substance abuse” means any past substance-abuse problem of an individual,
including, but not limited to, having ever been treated or participated in a rehabilitation or
employee assistance program for drug or alcohol dependency, or having been clinically
diagnosed as having drug or alcohol dependency problems, or having had a criminal
conviction for a drug- or alcohol-related offense.

(H) “Job applicant” means any person who has made application to an employer, whether
written or oral, to become an employee.

(2) “Sample” means any sample of the human body capable of revealing the presence of
alcohol or other drugs or their metabolites.

Section 4. Sensitive Employees’ Job Removal ~ If the confirmatory drug or alcohol test of an
employee is “positive,” or that employee has a history of substance abuse, and that employee is
in a safety-sensitive position, his or her employer may permanently remove that employee from
that safety-sensitive position, and any other safety-sensitive position, and transfer or reassign the
employee to an available non-safety-sensitive position with comparable pay and benefits, or may
take other action, including termination or other adverse employment action, consistent with the
employer's policy for drug- or alcohol-test “positives” for employees in safety-sensitive
positions, provided there are not applicable contractual provisions that expressly prohibit such
action.

Section 5. Denial of Employment to Job Applicants — If the confirmatory drug or alcohol test
of a job applicant is “positive,” or that job applicant has a history of substance abuse, and that job
applicant, if hired or rehired, would be in a safety-sensitive position, his or her employer may
permanently deny employment to that job applicant from that safety-sensitive position, or any
other safety-sensitive position, provided there are not applicable contractual provisions that
expressly prohibit such action.

Section 6. Preemption - This Act shall preempt any Federal or state law, rule, regulation,
order, or standard that applies to the hiring, employment, continued employment, or
reemployment in a safety-sensitive position of a drug addict, recovering drug addict, drug abuser,
alcoholic, recovering alcoholic, or alcohol abuser, or to the reinstatement or rehiring of any
employee in a safety-sensitive position for whom an employer has administered a drug or alcohol
test consistent with this Act that has produced a confirmed “positive” result.


88

Mr. DEBERNARDO. That creates an incentive for Members to im-
plement the drug-testing program because if they want their staff-
ers to come—to have access to their staffers to come to the House
floor, then they have to be in the random drug-testing pool. I think
that creates a——

Mr. Barr. I’m not sure that would provide much incentive. I
think it would be subject to a very serious challenge.

Mr. Chairman, could I just make one comment to Mr. Macdonald
very briefly?

Mr. Macdonald, I appreciate a couple of things that you men-
tioned, most importantly, the Just Say No Program and role of par-
ents in this program. We had before this committee, I think last
Congress, a lady who was being threatened with criminal prosecu-
tion by the FDA for simply trying to make home drug test sample
kits available to parents. I think that because of the publicity that
was brought to bear on that and the pressure on FDA, they backed
down classifying this home test collection kit as a class II medical
device, subject to all of the rules and regulations and sanctions of
a pacemaker literally. But I do think that it is very important that
we remember that perhaps the front line in all of this, with regard
to at least their teenagers and even younger kids, unfortunately, is
our parents. I appreciate you highlighting that because I think it
is the overlooked part of this equation.

Mr. Hastert. I thank the gentleman from Florida. Now I take
great privilege in introducing and asking the gentleman from Balti-
more, who has been very much involved in drugs and drug test-
ing—it’s your time.

ir. CUMMINGS. Thank you very much, Mr. Chairman.

I’m just curious as to—first of all, who is your typical drug user
profile, Dr. DuPont? Who’s a typical drug user? Employed? Is it
woman, male, white, black? Who are they?

Dr. DuPont. About 80 percent of illegal drug users are white.
About 75 percent are not from inner-city communities, as you’ve
heard. About 73 percent are employed. There’s a strong age dimen-
sion to this, so many are between 20 and 40, with the highest rate
between 18 and 25. Males predominate about 2 to 1 to females.
That’s the profile of American illegal drug users. It could be any-
one, but there are higher rates among some groups than others.

Mr. Cummincs. The 12-step program which I’m quite familiar
with, I understand pretty much how it works. I think it was Dr.
Macdonald who said that there was at one time this theory that
you had to reach rockbottom and then you had to raise the bottom.
I’m just wondering do people—I mean, the people that I talk to in
my neighborhood, a lot of them just get tired of going out there
chasing death.

Dr. DuPont. Yes. “Sick and tired of being sick and tired” is the
phrase used in 12-step programs.

Mr. CumMINGS. Yes, they come to a point where they’re just
tired.

Dr. DuPont. Exactly.

Mr. CuMMINGs. I don’t know whether that’s considered a nega-
tive consequence. I mean, one of you all mentioned negative—
they’re trying to avoid the negative consequences.


43

been confirmed positive using GC/MS, an employer-and employee can be sure that the
sample tested actually contains the identified substance, and no other similar substances.
The only question unanswered at this point in the process is whether the detected
substance came to be in the sample through the legal and appropriate use of a therapeutic

medication or legitimate product, or through illicit use of an illegal drug.

At this point, the MRO steps in — ifthe employer has chosen to use an MRO’s services.
The MRO reviews the chain-of-custody and drug-test results, and works, as necessary,
with the laboratory and the tested individual to ensure that the sample has been correctly
reported as positive. The MRO also explores the reasons — legitimate or otherwise ~ that
the sample has tested positive.

As discussed earlier, the MRO has specialized medical knowledge about drug use and
drug abuse, and acts as an expert neutral third party to evaluate and double-check a
confirmed positive laboratory test result. If the MRO determines that the test is accurate,
but positive for a reason other than the use of an illicit drug or drugs, the test is reported
to the employer as negative, or as a “pass.” If the MRO determines that the test is
accurate, and that there is no legitimate medical explanation for the positive result, the

test is reported as positive, or a “fail.”

Of course, not all employers use MRO services. These employers must seek to determine
whether the positive test reflects the legitimate use of a drug or food, through a direct,
potentially embarrassing, and legally problematic interview with the employee.


129

PharmScreenTM tests also are easy to read arid interpret. If the specimen is
negative for drugs, a distinct line will appear in the test area. If the sample is
positive for drugs, no line will appear. The results are so distinct they can be
photocopied for a permanent record. Any positive test result is then sent to
PharmChem’s laboratory for confirmation using GC/MS.

PharmChem is the only SAMHSA-certified laboratory that has its own FDA-
cleared on-site testing device. The PharmScreenTM test has a chain-of-custody
document unique to it, and PharmScreenTM has been incorporated into
PharmChem’s centralized laboratory testing services. PharmChem is proud to
support employers and others in their efforts to detect and deter illegal drug use
with its full-service state-of-the-art testing services and is commited to on-going

development and technical advances in this arena.

Conclusion

PharmChem appreciates this opportunity to testify before the Subcommittee
on National Security, International Affairs and Criminal Justice regarding its efforts
to assist in the detection and deterrence of illicit drug use, and in particular regarding
its scientific and technical success, the PharmChekTM sweat patch. We are confident
that the sweat patch will prove to be a useful tool, particularly for employers who seck
to eliminate substance abuse through detection, deterrence, and rehabilitation.

We commend you, Mr. Chairman, for your attention to this critical issue and
support your efforts to ensure that the employer community continues its

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113

current in drug testing with respect to the analysis of urine sam-
ples for the presence of heroin use. It can detect parent heroin use
as well the parent drugs of all the other matrices.

The other product that we developed and is an FDA-cleared proc-
ess, pursuant to corporate America’s request, is also contained in
your packet and it’s a rapid onsite testing device. It can test for
anywhere from one to five different commonly abused classes of
drugs. It goes by the trade name PharmScreen and is currently
being used by many employers in the corporate workplace as a
rapid onsite test.

Certainly those are testing procedures that are outside the aus-
pices of the federally mandated testing, as that program, at this
point in time, does not permit onsite testing. Positives are sent to
a centralized lab for confirmation testing and it gives certain em-
ployers the ability to grant immediate access to workplace situa-
tions where a very rapid turnaround time is required.

Certainly PharmChem supports the Institute’s model drug test-
ing bill and PharmChem Laboratories would certainly make avail-
able any information and assistance that it can to assist this sub-
committee as its efforts proceed forward on the war on drugs.
Thank you, Mr. Chairman.

[The prepared statement of Mr. Fortner follows:]


122

distinguishing between the use of heroin and the use of other products containing
opiates which may be legally prescribed.

In urine, heroin typically is detected by the presence of morphine, a metabolite.
Also present in urine, for a very few hours, is a chemical known as 6-AM, or 6-
acetylmorphine, which is unique to heroin. It is very difficult to “trap” 6-AM in a
urine test so as to be absolutely sure that the drug consumed was heroin, rather than
another, possibly legal, opiate derivative. When the PharmChekTM patch is used,
heroin molecules themselves are trapped, as well as 6-AM, eliminating the possibility
that codeine, poppy seeds, or other opiate molecules are responsible for the positive
test. Therefore, the PharmChekTM sweat patch is likely to be considerably more
accurate and economical in identifying heroin abusers than is urine testing. This is
particularly significant because heroin use has, unfortunately, increased in recent
years, and is projected to continue to increase in the near future.

4. More Difficult to Adulterate.

While individuals can attempt to beat urine testing by consuming large
amounts of fluid in an attempt to "flush" their systems, sweat is not susceptible to
such adulteration efforts and therefore may be more accurate in that there will be
fewer "false negative" tests.

5. Added Value As A Deterrent.

Last, the sweat patch 1s particularly useful in a rehabilitation setting, as it

may act as a deterrent to drug use during the period in which it is worn. While it is

possible that so-called "casual" drug users will be able to discontinue the use of illicit

-9-


127

Court Challenges

Of course, individuals who test positive for illicit drugs using the PharmChekTM
sweat patch often seek to defend themselves by challenging the validity of the test
itself. Since its introduction, the sweat patch has been challenged — unsuccessfully —
in 14 separate proceedings. Six of those cases were brought in U.S. District Courts as
part of probation proceedings; the other proceedings were brought in state court in a
variety of circumstances, including family court proceedings.

Of particular note are several cases challenging the admissibility of sweat
patch test results as evidence, on the ground that the methodology was too new or too
unreliable to be considered in a court of law. In every such case the courts have
recognized that the PharmChekTM sweat patch has been accepted by the scientific
community, and upheld the validity of the tests.

‘The sweat patch is an exciting technology, and its use and application is only
just beginning to be understood. PharmChem envisions that the sweat patch will
emerge as a highly desirable method of detecting illicit drug abuse in the workplace,

-14-


151

viduals was—nine individuals—were also given controlled doses
and then these two groups were compared. In this case, the control
groups were Caucasians, ostensibly Caucasians, selected from the
1990 to 1993 data set.

Mr. Souper. So that, if indeed, and I want to ask you this follow-
up on the race question, if indeed it were true that in this study
there were racial differences, it’s based on nine cases?

Mr. MieczKowskI. Yes. And let me—I feel compelled that I need
to clarify this further. Keep in mind that in these studies, first of
all, you have a racial division which is, in some cases, considered
as nothing more than Caucasian-non-Caucasian. So everyone who’s
not Caucasian becomes non-Caucasian. This often includes His-
panics, for instance. If you look at the U.S. Census Bureau, you
find that the definition of being Hispanic is an ethnic definition
which ‘specifically states in Federal guidelines, “can be of any racial
group.

Sc from a statistics point of view, from an analysis point of view,
to be folding these categories together and then making allegations
that these individuals stand for racial groups is just not appro-
priate data analysis. In fact, in the 1998 Henderson and Harkey
article, which ostensibly supports the notion there’s a racial distinc-
tion between the Caucasians and non-Caucasians, if you take out
the two Hispanic subjects, which leaves behind, I believe, three Af-
rican-Americans and two African-Caucasians—they have a some-
what more elaborate scheme—the significance disappears.

So all of the variance is due to two cases and it’s difficult for me,
as an epidemiologist, because epidemiologists like big data sets. I
mean, we think there’s lots of variability in the world and the way
you get around problems of variability is you look at lots of cases.
And so for people to promulgate what I think of as, you know, a
rather outrageous use of the term race on the basis of this kind of
data is troubling to me.

For instance, the characterization of hair types, even in Dr.
Kidwell’s work. You look at the work he’s presented or published.
He talks about Korean hair and Italian hair and Romanian hair.
Now what scientific basis is there for these kinds of distinctions?
There’s no laboratory in the world that can say, I can identify
Italian hair. Yet these things appear in graphs that are used to
purport to show racial bias.

It seems to me that if you’re serious about looking at the issues
of bias and hair, if you look at the issue of hair color, first of all,
which is divorced from race entirely. Second, if you want to look
at hair color, you develop a precise scientific method for measuring
hair color. Color can be measured in terms of wavelengths of light.
But even if you look at hair color ratient assessments in these
studies that purport to do racial basis, you say, well, how did you
categorize the hair? Well, we looked at it and some was brown and
some was black. And, in fact, in the Cone article, what’s interesting
is every African-American has black hair. None of these studies
ever found an African-American who has brown hair or red hair.

So, you know, on what basis are these distinctions being made?
I find this to be very troubling. And, especially given that race is
such a sensitive issue in our society, that it, you know, it’s some-


155

we need the help of the Federal Government to cut through the
morass of arguing, to set some reasonable and credible standards
for us, help us in this process of finding a useful and responsible
way to apply this so that we preclude charlatans and other people
who may enter the field because it’s pnregulated and, you know,
help us in this endeavor and I think that that helps in some small
way to further the Government’s aim of reducing drug use, of en-
hancing treatment. And I can speak from the treatment side, in
terms of clinical staff, greatly enhance the morale of staff people
who have these tools available to them and doing a very difficult
job of counseling and trying to help people with drug abuse prob-
lems.

Mr. Barr. Thank you, doctor.

Mr. Mica. Mr. Chairman, I’m not confused but I’d like to be en-
lightened. Would it be possible to have Mr. Fortner, who I-——

Mr. Barr. Why don’t—if the gentleman would suspend, we can
have a quick, second round.

Mr. Mica. OK. Thank you.

Mr. Barr. Mr. Green is sort of the representative from private
industry here sort of on the receiving end where the rubber hits

road, so to speak, of this problem. Is it your concern whether
you have somebody who is a low-level drug user, a mid-level drug
user, or a high-level drug user, or is your concern that you don’t
have drug users of whatever level working in your company and
endangering people?

Mr. GREEN. Zero tolerance, sir. Basically, at my firm, the entire
program now is actually managed by our employees and they them-
selves ask for a zero-base tolerance in terms of drug usage or alco-
hol abuse. And so I think any drug use, whether it be even rec-
reational on the weekend is still not a behavior that we would
allow to occur and many of these guys are working 50, 60, 70 hours
a week and so, just because you may be smoking pot or doing co-
caine on Saturday evening, you still are possibly under the influ-
ence of those residual drugs Monday morning at 6:30 and if you are
operating a piece of equipment, you can injure individuals. And I’ve
had many instances, unfortunately, where my employees have been
injured by another employee because of drug use, even though they
were not doing drugs at the time.

Mr. Barr. And would it be fair to say that, as an employer, the
drug identification program and the treatment programs that you
have are not in any way racially biased or targeted! Your interest,
whether it’s an employee with dark hair or light hair or light skin
or dark skin or a lot of hair like yourself or a little bit like myself
or Dr. Mieczkowski here, that—{laughter.]

And, regardless of whether or not one type of analysis may detect
higher or lower levels would not really be your concern as long as
it is a uniform program that does not discriminate in its applica-
tion to anybody?

Mr. GREEN. That is correct and we do have African-Americans,
Latinos, you know, Caucasians, men, women, you know, in a com-
pany of 65 people and they are all subject to the same rules of em-
ployment and I’ve never had one employee in the 12 years that
we've had our program in place file any sort of discrimination ac-


CONTENTS

Page
Hearing held on June 5, 1998 .... . 1
Statement of:

‘DuPont, Robert L., president, Institute for Behavior and Health; Murray
Lappe, MRO president, National Medical Review Offices, Inc.; lan Mac-
donald, M.D., chairman, Employee Health Programs; and Mark
deBernard , jo, attorney and executive director, Institute for a Drug-Free 10

forkplace

Mieczkowski, Tom, Ph. professor, University of South Florida; Harold
Green, President, Chamberlain Contractors; Neil Fortner, vice presi-
dent, boratory Operations, Pharmchem Laboratories; Roxanne
Kibben, president, National Association of Alcoholism and Drug Abuse
Counselors; and David Kidwell, Ph.D., Naval Research Laboratory ........ 93

Solomon, Hon. Jerry, a Representative in Congress from the State of
New York ... 4

Letters, statements, etc., submitted for the record by

deBernardo, Mark, ‘attorney and executive director, Institute for a Drug-

‘Free Workplace, pre] statement of . 49

DuPont, Robert L., president, Institute for Behavior and Health, prepared
statement of 12

Fortner, Neil, vice president, Laboratory Operations, Pharmchem Labora-
tories, prey d statement of ... 114
reen, id, president, Chamberlain Contractors:

Information concernin, 157
Prepared statement of 107

Kibben, Roxanne, president, "National Association of Alcoholism and rug
Abuse Counselors:

Information concerning studies supporting validity of treatment effec-

Prepared sa 133

Kidwell, David, Ph.D., Na

of .. 143

Lappe, \y> F

re] statement of .. 33
eee Tan, M.D.

statement of 27
Mieczko
sfired statement of 96

lomon, Hon. Jerry,

‘New York, prepared statement of

a)


145

In two separate studies, we illustrated that passive exposure can occur under realistic
conditions by examining the hair of children living with cocaine using mothers. Our first study
produced such unexpected results that we repeated it with a second group of subjects. In both
studies the children had similar cocaine levels in their hair, as did their drug-using mothers.
Furthermore, no cut-off level could be proposed to differentiate the non-using children from the
<drug-using mothers. An independent study by Lewis et al. found similar results, those children
in an exposed environment show positive hair tests. Anecdotal evidence indicates that passive
exposure can occur in employment situations as well, especially where drug exposure and

sweating both occur.

Passive exposure can easily be demonstrated in taboratory settings and apparently can happen

in some real-life situations as well.

Racial or Matrix Bias:
In our laboratory experiments, we quickly demonstrated that different hair types absorb and
retain drugs in widely varying amounts, up to 27 times more between different hair types.
African American hair tends to retain and absorb drugs more readity than Caucasian or Asian
hair and the differences do not appear to be related only to the melanin content. These in vitro
differences in drug absorption and retention by hair types have been replicated in several

laboratories.

In vivo differences among hair types have been seen in a number of animal studies in Japan
and at the University of Utah. They have also been encountered in controlled administrations of

cocaine to humans in studies at both UC-Davis and the NIDA Addiction Research Center. In


106

Mr. Barr. Thank you, Dr. Mieczkowski.

Mr. Green, if you would please. You might summarize your state-
ment and your full statement will be introduced for the record.

Mr. GREEN. Thank you. I'd like to share with you a perspective
of the small business employer who has been doing drug testing for
12 years and has been involved in this area for approximately 16
years. We came to the issue in 1982 because of increased frequency
of workers’ compensation premiums and vehicle accidents. As a re-
sult of those increasing frequencies, we, in 1985 and 1986, devel-
oped a comprehensive drug and alcohol policy and combined that
with an employee assistance program and commenced drug testing,
conditional employment drug screens, random drug screens, at-
fault drug screens on January 1, 1987.

I want to give you reasons why small business owners believe
that it is beneficial to have such a program and they are as follows:
First, there is a profit incentive. Most small business owners are
focused on the bottom line. When we started this program in 1986,
we were paying in excess of $252,000 annually for insurance pre-
miums, workers’ compensation, and auto liability. By 1991, we
were paying $120,000 and, in 1998, we are paying $119,000 for our
insurance premiums. The benefit to my company is in excess of
$130,000 alone just in insurance premium savings. So one of the
points I want to make is that there is a bottom line need and if
you can communicate to small business owners, they can save
money by doing drug testing, they will embrace it.

Second point, most small business owners are enablers. They en-
able the negative behaviors that we see and we have been talking
about this morning to occur. And that is because most small busi-
nesses are focused on the short-term. Production and sales this
week, this month, and this quarter, and they do not have a long-
term perspective to put in place a drug and alcohol testing program
and wait the 2 to 3, 4-year period to fully see the benefit in terms
of reduced insurance premiums, higher productivity, and, as a re-
sult, the bottom line increased profitability to their companies.

Last point that I would make is that, by coming to put in place
a drug-testing program and an employee-assistance program, fully
one-third of all my employees that are currently with me have been
through my program and I would rather have dealt with those peo-
ple who are good, honest, hard-working people who unfortunately
may be in an environment where they are subject to negative be-
haviors to give them the appropriate mechanism to get treatment,
to get turned around in their life, and be subsequently effective em-
ployees for me. It’s a benefit to me because it’s cheaper for me to
deal with their problem and to give them the appropriate counsel-
ing than it is to terminate them and then have to go out and to
hire new people.

I just wanted to give you a small business owner’s perspective.
Thank you.

{The prepared statement of Mr. Green follows:]


66

Section 5. Collection of samples — In order to test reliably for the presence of drugs or alcohol, an
employer may require samples from its employees and prospective employees, and may require
presentation of reliable individual identification from the person being tested to the person
collecting the samples, Collection of the sample shall be in conformance with the requirements of
this Title. The employer may designate the type of sample to be used for this testing,

Section 6. Scheduling of tests — Regarding the timing and costs of drug and/or alcohol tests, and
in order for an employer to qualify for the benefits of this Title:

(A) Any drug or alcohol testing by an employer of employees normally shall occur during, or
immediately before or after, a regular work period. Such testing by an employer shall be
deemed work time for the purposes of compensation and benefits for current employees.

(B) An employer shall pay all actual costs for drug and/or alcohol testing required by the
employer of employees and prospective employees.

(C) In addition, an employer is required to provide transportation or to pay reasonable
transportation costs to current employees if their required tests are conducted at a location
other than the employee's normal work site(s)

Section 7. Testing procedures — All sample collection and testing of drugs and alcohol under this,
Title shall be performed in accordance with the following conditions:

(A) _ The collection of samples shall be performed under reasonable and sanitary conditions.
(B) Sample collections shall be documented, and these documentation procedures shall include:

(1) Labeling of samples so as to reasonably preclude the possibility of misidentification
of the person tested in relation to the test result provided and handling of samples in
accordance with reasonable chain-of-custody and confidentiality procedures; and

(2) An opportunity for the employee or prospective employee to provide notification of
any information which may be considered as relevant to the test, including
identification of currently or recently used prescriptions or non-prescription drugs, or
other relevant medical information. This may be accomplished by providing
procedures for review by a qualified medical professional to verify a laboratory
sample which tests "positive" in a confirmatory test.

(C) Sample collection, storage, and transportation to the place of testing shall be performed so as
reasonably to preclude the possibility of sample contamination, adulteration, or
misidentification.

(DP) —Confirmatory drug testing shall be conducted at a laboratory: (1) certified by the US.
Department of Health and Human Services's Substance Abuse and Mental Health Services
Administration; (2) approved by the U.S. Department of Health and Human Services under


52

In fact, numerous states - Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Iowa,
Louisiana, and Mississippi in particular ~ have enacted legislation which effectively fosters an
appropriate balance between employer and employee nghts and responsibilities, and encourages

responsible drug-free workplace programs.!

‘This approach has been refined and improved, and was incorporated in the Model Drug-Free
Private-Sector Workplace Act of the President's Commission on Model State Drug Laws. It is this
approach which the Institute believes is most appropriate for state action, and for which the Institute
and its members are most supportive. We now come before this Subcommittee to seek federal
legislation consistent with this worthwhile approach to one of the nation’s most critical problems,

the national plague of drug and alcohol abuse.

In addition to state legislative action, state regulatory action in the ‘90s has cither been
supported by the employer community or considered neutral by the employer community — that is,
consistent with the substance and philosophy of state legislative action, state regulatory agencies
have not implemented regulations which have been unduly or inappropriately restrictive of

workplace drug testing.

* See 1997-1998 Guide to State and Federal Drug-Testing Laws. Institute for a Drug-Free Workplace.
Washington, DC. 1997. A copy of this publication has been submitted to the Subcommittee on National
Security, International Affairs and Criminal Justice for inclusion in its resources and records.

2 Drug-Free Families, Schools, and Workplaces. The President's Commission on Model State Drug Laws.
‘The White House. December 1993. p.M-199. The President's Commission on Model State Drug Laws was
comprised of 24 Commissioners, a majority of whom were Democrats. The Commissioners included state
attomeys general, state legislators, police chiefs, treatment service providers, an urban mayor, a housing
specialist, district attomeys, a state judge, and drug-abuse prevention specialists,


173

National Drug Court Institute Review 71

. Michael Smith, MD, Personal Communication.

September, 1997

Hora, Peggy Fulton and William G. Schma.
“Drug Treatment Courts: Therapeutic Jurispru-
dence in Practice,” Judicature Magazine, in press.
Nichols, William and Travis Nelson. “An Evalua-
tion of the Freedom Ranch, Inc. C.B.T.I. drug
court programs and the Impact of Moral Recona-
tion Therapy and Quality Control Systems.” ND
Enterprises. Oklahoma City, Oklahoma, March,
1997

Access to data through NADCP: data on file with
author (confidential)

Data from Denver drug court, years 1996-1997, on
file with author

10. Belenko, Steven, Nickerson, Gary and Tina

11.

Rubenstein. “Crack and the New York Courts: a
Study of Judicial Responses and Attitudes.” New
York City Criminal Justice Agency, New York,
December 1990.

Drug Court Clearinghouse and Technical Assis-
tance Project. “Summary Assessment of the Drug
Court Experience.” Office of Justice Programs,
U.S. Department of Justice, national Institute of
Justice, Washington, D.C., October, 1996.

12. Harrell, Adele and Barbara Smith. “Evaluation of

13.

the District of Columbia Superior Court Drug In-
tervention Program: Focus Group Interviews.”
Urban Institute, Washington, D.C., January 1997
Gransfield, Robert and Cindy Eby. “An Evalua-
tion of the Denver Drug Court; The Impact of a
Treatment-Oriented Drug Offender System.” De-
partment of Sociology, University of Denver,
Denver, Colorado, January 1997.


101

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26

that they need to hire. If they can’t hire workers by reason of drug
testing, they may decide to quit testing. I think that’s a bad deci-
sion. The other disturbing trend is the reemergence of the high
school drug user—the person who is going to fill the jobs that in-
dustry is asking to fll With their high use rates, this is a real
issue.

My view of what should happen is that employers should say not
that they won’t test, because we can show them why drug use is
dangerous to their interest as well as national interest, but that
they should have some way of identifying drug-using employees
and seeing that they get to help and return as “useful employees.
When you talk about treatment, the phrase “treatment on demand”
has always offended me a little because I think that the phrase
means that the user, the addict, would control the treatment sys-
tem.

The second quote from Dr. Bejerot that’s affected my thinking is
a quote that says “a voluntary treatment system is as effective as
a voluntary penal system.” at he says, and Dr. DuPont and I
both believe, is that people don’t go to treatment because they want
to get better. They go to treatment because they want to avoid the
consequences of their use. They want to continue use without con-
sequences.

What we see in a workplace program in California, that I’m
aware of and others, is that we're finding workers, through drug
testing who are detected earlier in their illness and are easier to
treat, and easier to get back on the job. We have a wonderful tool
in this regard. Drug testing gives us a tool to change behavior.
That’s what we're trying to do.

If we want to stop this drug epidemic, we've got to change the
behavior—not of the people in Colombia and Peru and those coun-
tries; we've got to change the behavior of the people who use drugs
here. I thank you for the opportunity to make these comments.

[The prepared statement of Dr. Macdonald follows:]


7. ‘The single best way to get well

- and to stay well --

from addiction is to participate in the 12-step fellowships
including Alcoholics Anonymous (AA), Narcotics Anonymous (NA), and
Al-Anon. These programs are truly the secret weapons in the war on
drugs. It is clearly in the national interest for all people
working to prevent and treat addiction to support these lifesaving
programs which are available in all parts of the nation today, at
no cost to taxpayers.

The standard I use in my practice of addiction medicine,
whether with my richest or my poorest addicted patients, is to
encourage them to go to 90 12-step meetings in 90 days, to get a
sponsor, and to diligently implement the 12-steps in their everyday
lives. When addiction treatment works over the long haul, it
usually works with the support of a 12-step fellowship. The 12-
step programs are not addiction treatment. They complement
addiction treatment, they do not compete with it. The 12-step
programs are not run by doctors, psychologists, or social workers.
They do not use health care funds and they do not require
government licenses. They are run by addicted people in recovery
for their own benefit. They are tailored to all economic, ethnic,
and social groups in the society. They are ubiquitous and they are
free. The 12-step programs are a modern miracle, one that
Americans can be especially proud of having contributed to since
the founding of AA in Akron, Ohio by two alcoholics, one an

unemployed salesman and the other a troubled doctor, on June 11,

cea


105



162

vested in treatment within the first year, $5.46 was returned and
that was not a study done of people that voluntarily——

Mr. SouDER. I mean, I’ve seen all those type of studies ——

Ms. KIBBEN. OK.

Mr. SOUDER [continuing]. But what I’m looking for are studies of
which kind of treatment works better, which kind of drug testing,
which works better, that are scientifically sound and I want to, be-
cause my time’s going out.

[The information referred to follows:]


165

SELECTED REFERENCES ON LEGAL COERCION AND ORUG TREATMENT
Prepared by
Dougias Young, Vera Institute of Justice
Stevest Belenko, The Natioaal Center on Addiction ahd Substance Abuse

April 1998

Anglin, M.D. (1988). The efficacy of civil commitment ia treating narcotic addiction.
INC. & F. Tims (Eds.) Compulsary Ireatment of Drug Abuse: Research
and Clinical Practice (NIDA Research Monograph Series #86). Washington:
Government Printing Office, 8-34.

Anglin, M. D1, Brecht, M.L., & Maddahian (1989). Pretreatment characteristics and
‘weatment performance of legally coerced versus voluntery:methadone maintenance
admissions. Criminology, 27:537-557.

Anglin, M. D| & Her, YT. (1990b). Legal coercion: and drug abuse treatment: research
findings ahd social policy implications. in J. inciardi (Ed.} Handhook of Drag Conot
in the United States. New York: Greenwood Press, 151-176.

Apospor . ft Alper, G. (1993). Research note: The rl of diffrent ial experience with
the criminal justice system in changes in perceptions of severity of legal sanctions
over time, | Crime and Delinguency, 39:184-194.

Brecht, M. L, & Anglin, M.D. (1990). Conditional factors of maturing out: legal
supervision and treatment. /nternanonal Journal of the Addictions, 25:393-407.

Brecht, M. T.| Anglin, M. D.. d& Wang, J. C. (1993). Treatment effectiveness for legally
cocreed versus voluntary methadone maintenance clients.’ American Journal of Drug
and Alcohol Abuse, 19:89-106.

Brown, 8.S., Bubringer, G., Kaplan, C.D. and Plast, J.J. (1987). German/American
report on the effective use of pressure in the treatment of drug addiction. Psychology

Of Addictive Behaviors, 138-54
Casey, P. (1994). Court-enforced drug treatment programs: Do they enhance court
7 Justice System Journal \7 (1): 117-126.

. ison. M. (1983). Legal coercion end retention in drug abuse treatment.
wan ud (anecmamon 34: 1145-1149,

Condelli, W.9. (1989), Exterral pressure and retention in a therapeutic community.
| Suurnal of Therapeutic Communities, \0:21-33


169

National Drug Court Institute Review 53
SUDICIAL PERCEPTIONS OF TREATMENT:

A 1990 study by the New York City Criminal Justice
Agency examined factors and perceptions affecting
judges’ decisions regarding the adjudication of crack and
powdered cocaine offenders.'° Eighty two percent of the
71 judges interviewed agreed that diversion of selected
crack cocaine, related defendants would be a reasonable
option “if effective treatment existed.” Among judges
who identified a preferred type of treatment referral, 77%
named residential programs. They felt that those most
likely to benefit were defendants who showed “motiva-
tion” to receive treatment. Interestingly, data does not
support this all-too intuitive belief. Indeed, numerous
studies have shown that patients coerced into treatment do
as well or better than those who volunteer for it.'! Fur-
thermore, judges had expressed disappointment with
treatment, citing its failure to follow up with the court,
verify patient participation and administer urine drug
screens. It is no coincidence, then, that integration of in-
formation and collaboration between criminal justice and
treatment services are substantial departures for the judi-
ciary and the very hallmark of drug court programs.

PSYCHOLOGICAL IMPLICATIONS FOR THE JUDGE:

[14] Judges’ attitudes toward participants can be com-
plicated. The Freudian concept of transference refers to
the patient’s “transferring” tightly held attitudes (beliefs)
and emotional dispositions forged in childhood onto new
individuals in their lives. Since parent-child relationships
are the first attachment that a child develops, they almost
always influence all later relationships, including formal
helping relationships in adulthood. The therapist’s inter-
pretation of the transference allows the patient to better
distinguish between remnants of past relationships and the
real association between himself or herself and the thera-
pist.


34

and is familiar with, thousands of successful workplace substance-abuse prevention

programs in every state in the country.

It is also my pleasure to serve on the Board of Directors of the Institute for a Drug-Free
Workplace, an organization which contributes enormously to the very worthwhile cause
of employee drug-abuse prevention ~ a cause to which I am sure every one of us in this

room is committed.

Summary of Position

The most effective workplace drug-testing policies include the use of a neutral third party
— the Medical Review Officer — to ensure that employee drug tests are accurate and
reliable, and to protect employees’ privacy regarding their medical conditions and their
personal use of legally prescribed therapeutic drugs.

‘A Medical Review Officer is a medical doctor with a specialty in substance-abuse issues.
Responsible workplace drug-abuse prevention programs utilize the services of an MRO
to review all laboratory positive drug tests — before they are reported to the employer. An
MRO can determine whether a laboratory positive drug test could have been caused by:
(1) the legitimate use of a prescription drug; (2) the normal use of over-the-counter

medication; or even (3) normal food consumption.

An MRO also reviews laboratory reports to ensure that all chain-of-custody and

laboratory testing procedures have been followed. If not, the MRO has the authority to


175

Mr. SOUDER. The second type of question that I’m also interested
in—and you can respond in writing, since I don’t have much time
here—but we are—it’s fast and we're pending some of these bills
that are coming through. I was very concerned when Dr. Kidwell
mentioned—we talked about the race, question about the kids

uestion. I wonder if Dr. Mieczkowski you were off, talking about
the race question—but when he said that the kids of mothers with
cocaine or do we have similar research, information lacking there,
that we need to know?

Mr. MIECZKOWSKI. Well, I would refer you, Mr. Souder, to mate-
rials I submitted to the committee earlier. There’s an article I pub-
lished in FSI which describes in detail the critique of Dr. Kidwell’s
study of children and, also, there’s an article I submitted in which
we evaluated approximately 50 undercover police officers involved
in cocaine operations to see if there was an issue of passive con-
tamination related to their exposure to cocaine, in some cases over
many years. I can tell you that, basically, our results are negative.
That, while exposure certainly and contamination does occur, it is
not of sufficient magnitude to negate the value of the testing.

Mr. Souper. Dr. Kidwell, do you believe there is more research
needed in these areas or what’s your——

Dr. KIDWELL. I think more research does—is needed. I would like
to comment just briefly on the police officer study. One officer was
positive out of the 44 in your table and another person had cocaine
present that was below the positive cutoff levels. In that article it
was explained that perhaps the officer was ingesting small quan-
tities of drugs. However, if there’s any validity to the amount that
you ingest versus the amount that shows up in hair, I don’t think
that argument is tenable.

Mr. SouDeER. I thank you both. It’s been very interesting and a
good learning experience.

Mr. Barr. Thank you. Did the gentleman from Florida have ad-
ditional questions and, if so, he’s recognized for 2 minutes.

Mr. Mica. Yes. Mr. Chairman I wish to be enlightened. Thank
you. And my question goes back to Mr. Fortner. Well, you’re sort
of a newer Product getting on the market, patch or whatever you
want to call it. Tell me what you're seeing. I just heard what the
professor heard about his side of this story. Is this—a lot of this
vendor-driven? It looks like, in the past, everybody’s resorted to
urine analysis to do the testing and now there’s some new products
or approaches that are on the board and I read that one vendor’s
sort of trashing the other is the approach. What do you see?

Mr. ForTNER. Well, sir, unfortunately you always see that kind
of information out there, one vendor trashing another vendor,
whether there’s any validity to those challenges or not.

Mr. Mica. Scientifically, you’re——

Mr. ForTNER. Scientifically ——

Mr. Mica [continuing]. Your patch works.

Mr. FoRTNER. Yes, sir.

Mr. Mica. The hair thing works.

Mr. ForTNER. Well, I think, if you look at how the patch was de-
veloped. It was developed with an review and submission to the
Food and Drug Administration through the Scientific Advisory
Board, which required demonstration to that board that, if you give


115

am certified as an inspector for the National Laboratory Certification Program
directed by the U.S. Department of Health and Human Services’ Substance Abuse
and Mental Health Services Administration, as well as the College of American
Pathologists’ Forensic Urine Drug Testing Program. I also serve on the Board of
Directors for the American Probation and Parole Association and the Institute for a
Drug-Free Workplace, through which PharmChem supports corporate substance-
abuse prevention efforts.

In that regard, I would like to express PharmChem's strong support for any
legislative effort which you and this Subcommittee may undertake that would
endorse and encourage responsible business efforts to eliminate substance abuse. I
also commend to your attention the Institute for a Drug-Free Workplace’s model
drug-free workplace act, a bill which permits employers to utilize all appropriate
technologies and procedures to detect drug abuse while also requiring a clear
statement of the employee's anti-drug policy, drug-abuse education, and procedural
safeguards to ensure the integrity and extensive testing safeguards to ensure the
accuracy and fairness of the testing process.

Today, I would like to discuss an exciting development in the area of substance-
abuse testing which has great potential for application in the workplace.
PharmChem has developed, in conjunction with Sudormed, Inc., a product called the
PharmChekTM sweat patch which is used to detect drugs of abuse excreted in sweat.
Studies have shown that this product is not only highly effective at detecting drug

abuse, but it also can be used in a manner which is significantly less invasive than

“2+


136

12)

+ The treatment needed for substance relapse dropped as low as 31% by the 12th year
are

. Treatment reduced the importance of “Sensation-seeking”, one of the main reasons for
drug use, from 87% to 20%.

‘These statistics are promising in light of the treatment success rates the scientific and medical

community documents for other chronic diseases such as diabetes, hypertension, and asthma.

. Fewer than 50% of sufferers from insulin dependent diabetes are compliant with their

. ‘Only 30% are compliant with diet and foot care.

© 30% or fewer of people with medication dependent hypertension or adult asthma are
compliant with their treatment protocols.

(see McLellan, A. Thomas, /s Drug Dependence A Medical Miness?, March 1998)

Treatment has not only been proven to greatly reduce levels of substance use, it also causes
positive trends in many other aspects of the lives of the patients as well as the community-at-
large. Both DARP and TOPS concluded that treatment reduced the chances of relapse, reduced
criminal activity, and (according to TOPS) improved productivity.

‘The NTIES study found treatment brought about:
a decrease in the crime rate (from 64% to 14%)

a decrease in workers sick days,

2.50% reduction in risky sexual behaviors,

53% reduction in physical and mental health hospital visits.

Treatment is also cost effective, reducing other medical care utilization and health costs as well
2s federal government expenditures on the public health/entitlement system. One study,
Socioeconomic Evaluaons of AdtonsTraaomens, conducted by Rutgers University found

© Onthe average, untreated alcoholics incur general health care costs at least 100% higher
than those of non-alcoholics.

* After addiction treatment, days lost to illness, sickness claims and hospitalization droppec
by 50%.

Another study carried out by the California Department of Alcohol and Drug Programs,
The California Drug and Alcohol Treatment Assessment (CALDATA) reported that treatment
brought about:

a 17% increase in health status and significant decreases in health care utilization after

treatment.
© drug overdose hospitalization reductions of 58%,
= mental health hospitalization reductions of 44%,
‘* emergency room visit reductions of 38%.

Despite treatment’s strong record, only one in four people who need treatment, receive it.
Almost all emaployee insurance plans do not cover alcoholism and drug addiction services to the


177

sults we're getting and see what’s the most effective. And I thank
you, Mr. Chairman.

Mr. Barr. I thank the gentleman from Florida. There will be ad-
ditional hearings and one would hope, Dr. Kidwell, that, as sort of
a representative of the Government here, not as a Government em-
ployee, but working for the Government, that we would urge you
and your colleagues to look at maybe some of these alternatives.
Private industry may be a little bit ahead of us here.

One of the issues that we haven’t talked about with this panel
but, as you all heard from the earlier panel, is the issue of Govern-
ment testing. And I know, Mr. Green, you discussed that at least
in your written statement. Aside from whatever problems there
might be with legal challenges to the testing of Government em-
ployees, do any of the panelists here think that Government em-
Ployees ought to be treated more specially than employees gen-
erally in terms of drug testing and ig usage? Everybody would
agree that they ought to be treated, theoretically, the same as ev-
erybody else. And I certainly agree.

And, there being no further questions, again, I’d like to thank
the panelists and we will leave the record open for 2 weeks if you
all would, if you have any additional material that you would like
to submit and, certainly, any material in direct response to ques-
tions that have been posed today or that might be posed—I think
the gentleman from Indiana indicated that he would be submitting
some questions in writing—we would appreciate those within 2
weeks.

We thank you and I thank the members of the subcommittee and
we're now adjourned.

(Whereupon, at 2:06 p.m., the subcommittee adjourned subject to
the call of the Chair.]

Oo


58

failed their drug tests. What does this say about the magnitude of the drug problem and the altitude

of drug abusers in our country?

Roger Smith, the former Chairman of the Board of General Motors, said that drug abuse

cost GM $1 billion a year.'"

‘One of the "baby Bells," a Fortune 50 telecommunications giant, reported that 40 percent of

its health-care costs were attributable — directly or indirectly — to substance abuse,'?

American Airlines lost $19 million because one employee, high on marijuana, failed to
properly load a tape into its central reservations computer, causing eight hours of computer down

time (no one could get a reservation on American Airlines nationwide) and significant erasures.">

As these examples demonstrate, drug abuse is a major threat to the workplace, a threat

which has enormous human and economic costs.

‘These examples ~ and many others like them — have gotten the attention of the employer

community. Employers know drug abuse costs lives and money in the workplace. They are aware

"' Drug Abuse in the Workplace: An Employer's Guide for Prevention. Second Edition. U.S. Chamber of
‘Commerce. Washington, DC. 1990. p. 1.

" What Every Employee Should Know About Drug Abuse. Institute for a Drug-Free Workplace. Washington,
DC. 1998. pp. 5-6.

” See fn. 11, supra.


112

Mr. Barr. If I could, with unanimous consent, Mr. Green, just
ask you one quick question.

Mr. GREEN. Yes, sir.

Mr. Barr. I was just reviewing your testimony here. You men-
tion retinal eye scans.

Mr. GREEN. Yes, sir.

Mr. Barr. What are those used for?

Mr. GREEN. Basically, employees in safety sensitive positions, in-
cluding tandem dump truck drivers that are driving around the
beltway or heavy equipment operators that are operating heavy
equipment in close proximity to employees. Those individuals, on
a daily basis, do a 30 second test which is a performance measure-
ment of the retinal eye. And what they do is we collect a data base
of approximately 30 or 40 incidences of their daily eye performance
and then subsequently it’s in the computer and every morning,
somebody comes in, they put in their Social Security number, it’s
a 15 or a 30 second test. It measures movement of the eye, respon-
siveness to it, and also responsiveness to light. And then that per-
son is either given a fitness for duty, a card that says, green, go
to work, or a referral to go see your supervisor to determine if
there is a sleep deprivation issue, if there is a drug or alcohol
abuse issue. It does not communicate what the problem is, it just
makes the referral to the appropriate supervisor.

Mr. Barr. Interesting. Thank you.

Mr. Fortner, if you would like to summarize your statement and
it will be submitted in full into the record.

Mr. ForTNeR. Yes, sir. Good afternoon, Mr. Chairman, members
of the subcommittee. In addition to my written testimony, which
you have received, I’d like to point out that PharmChem is here
today to review some of the tools that are available to the drug
testing arena. PharmChem is the largest independent drug testing
agency in the United States serving the U.S. Federal court system,
in addition to supporting corporate America on its war on drugs.

I serve on the board of directors for the Institute for a Drug-Free
Workplace and the American Probation and Parole Association
and, certainly, in those roles, PharmChem supports any legislation
that this subcommittee would develop that furthers the war on
drug issue. I have taken the liberty to provide the members of the
subcommittee with an information packet. Contained within that
packet are some products that, back in 1996, I had the opportunity
to testify again before this same subcommittee.

One of those products, and both of these are being used in cor-
porate America, is commonly referred to as PharmChek or the
sweat patch. This is a device that, at this point in time, as it was
back in 1996, remains the only other alternative matrix testing
process that has been reviewed and cleared by the Food and Drug
Administration. Corporate America is using these, in addition to
urine testing, because it provides a much longer window of detec-
tion for the presence of drugs. Typically it’s an additional 1- to 2-
week period, as that’s the typical time period that the patch is
worn.

It has some very unique properties in that it’s tamper evident,
it cannot be removed, but also can detect the presence of parent
drugs which, as earlier alluded to, addresses one of the large issues


16

millions — or, in some cases, billions — of dollars potentially at risk in a single catastrophic incident

or error.

For all these reasons, Congress should not permit government agencies to compel employer
reliance on the limited oversight effect of supervision, observation, random testing, or some other
combination of these procedures where a high-risk job is involved because no procedure or

combination of procedures would be fail-proof.

Scientists may not be able to precisely quantify the likelihood that an individual with a prior
alcoholism or drug addiction problem will suffer a relapse. That fact does not mean that these risks
and concerns are not valid or substantial. To the contrary, the fact that the precise means to identify,
quantify, and limit risk do not exist make the need for the application of company policies that call
for permanent removal ~ in limited circumstances ~ compelling, appropriate, and necessary. This

need would be appropriately addressed by the Public and Employee Safety Assurance Act.

The Institute strongly believes that both of its proposals that would permit "sensitive-
employees’ job removal" ~ the Public and Employee Safety Assurance Act and Section 10 of the
Private-Sector Drug-Free Workplace Act ~ are appropriate, would promote workplace safety and
health (consistent with the overall goals of virtually all employer drug-abuse prevention programs),
are both pro-employer and ~ ultimately ~ pro-employee, and are highly appropriate for enactment as
part of our more comprehensive bill or as stand-alone legislation. Moreover, the Institute considers

such legislation necessary.

28


28

this country’s drug epidemic. Drug testing programs not only send an important message of
disapproval to drug users but they also confront drug using workers with a choice that Has
important consequences if poorly made.

Random testing programs are, for the most part, deterrence programs using the possibility of
being called to test at any time as a deterrent to use. From a national drug control policy
standpoint, deterrence testing, is, by far, the most important form of testing. The principal goal of
these programs should not be to catch drug users, although that may be beneficial to the identified
users, but to provide a strong incentive for others in the pool to refrain from starting,

Two key societal changes are already affecting the way employers see their drug-free workplace
programs. The first, stimulating increased interest in pre-employment drug testing, is the rise in
the use of drugs by those adolescents who are about to begin their work careers’. ‘The second
that may cause some employers to seriously and foolishly consider decreased testing, is the high
rate of employment that is making it hard for employers to find workers. This ostrich approach
may fill their ranks but it will fill them with workers who are going to cause them problems.

‘The other approach to the shortage of workers, and the one that we prefer, is to welcome testing,
as a way to spot drug users and to provide them with assessment and jobs depending on their
willingness to accept the recommendations of a qualified substance abuse professional and to
‘consent to a program of regular unannounced testing. Creative payment solutions can be worked
out that assign responsibility for these cost to the worker with the stipulation that the employer
‘will make restitution of at least some of the expense if the employee remains drug free and
continues their good performance.

Much of my philosophy of how best to respond to a national drug epidemic was taught to me by
Nils Bejerot, the Swedish psychiatrist and drug historian. Dr. Bejerot taught and I believe that,
“The only way drug epidemics have ever been halted is when the focus has been on the user.” If
he were alive today, he would tell us that there is not enough in the American anti-drug strategy
that addresses his key point and that unless there is a substantial change in our focus, we run the
risk of eventually forgetting the casualties of drug use and turning our attention to the casualties
of the “Drug War.” If this happens as an increasing number have suggested it should, we will toss
in the towel. Dr. Bejerot might trace for us the history of those campaigns that have been
successful and those that have not, making us aware that the core element of those efforts that
have been worked has been a focus on the drug user and that those efforts that have ended in
failure have not adequately addressed the user, if they have addressed him at all

Bejerot might remind us of the cessation of alcohol use in Muslims that occurred only after
Mohammed told believers the religious consequences of their use. Or he might recount the
successful conclusion to the Japanese amphetamine epidemic in the 1950s brought about by some
user-focus. Or he might remind us that American prohibition failed and tell us that it failed
because the strategic focus was on the bootlegger and largely ignored the user. An examination

> obaton LD, O’Malley PM, Bachman JG; national Survey esas on drug use for monitoring the future survey: NIDATHHS,
Rockville, MD 1996.


94

Mr. MiEczkowskI. I have, since the early 1980’s, been an active
researcher in areas of drug abuse, drug-related criminal behavior,
and in the measurement of drug use prevalence and incidence, es-
pecially by the use of various drug identification technologies. Spe-
cifically, I’ve been involved in urinalysis testing, including being a
site manager and a consultant to the ‘National {nstitute of Justice’s
Drug Use Forecast Program. Furthermore, since 1989, I have con-
ducted several |: projects assessing the utility of hair analysis
in various criminal justice contexts, including jails, correctional set-
tings, and diversion programs.

Additionally, in the last 2 years, I have been assessing the appli-
cations of a new technology, ion mobility spectrometry to the detec-
tion of drug exposure in certain criminal justice populations. These
projects have included males and females, youth and adult offend-
ers, and members of all racial and ethnic groups. The number of
subjects in total for all these projects numbers in the thousands.

In general, our research has consistently revealed several fun-
damental and I believe important findings. Among the most impor-
tant is that, for the purposes of estimating drug prevalence and in-
cidence, methods which do not use a biologically based assay sys-
tem to assess the accuracy of personal -reports are inevitably
going to underestimate the true degree of drug use, and probably
underestimate it by a very significant amount. Almost universally,
our research and that of many others shows that survey-based pro-
cedures inevitably result in underreporting of drug use. This is true
regardless of the type of bioassay procedure used.

For the last 8 years, I have also assessed the utility of hair anal-
ysis for five categories of illegal dru; ‘marijuana, cocaine, heroin,
PCP, and amp etamines—primarily in criminal justice popu-
lations. I have been interested in hair analysis primarily because
it can provide a larger window of detection than urine or plasma-
based testing techniques. This is especially important for rapidly
excreted drugs like cocaine and heroin, which have a very short de-
tection life in urine or plasma.

We have found hair analysis, when correctly done, to be an excel-
lent technique for this purpose. We have assessed approximately
5,000 cases in various field settings and had generally excellent re-
sults. These assessment projects include testing of juvenile offend-
ers, testing adult arrestees, testing probationers over a long time-
frame, and testing persons in adult diversion programs who were
followed over a long timeframe. In all these projects, we used both
hair and urine-based tests as well as interviewing and questioning
subjects about their drug use.

Additionally, I have conducted evaluations of several issues of
controvers' regarding hair analysis. This includes evaluation of the
potential ards of passive contamination of hair by environ-
mental contact with drugs and the putative relationship between
hair analysis and racial bias. Our research fails to show that either
of these effects are significant and do not appear to have a mean-
ingful impact on the accuracy and utility of hair-based drug analy-
sis.

We have also examined the de; to which the quantified values
of drugs uncovered in hair may be used to assess the degree or in-
tensity of drug use in individuals. In general, we have found that



9

Mr. Hastert. I want to thank the chairman. I know the require-
ments of your time and I know any questions will certainly be
brief. I just want to say I appreciate you being here. We know of
your continued commitment to make this a better place, to make
sure that Congress is someplace that people can look up to and be
set for standards of behavior and work throughout this country. I
certainly understand that your efforts are sincere and we appre-
ciate what you do.

I open up to any questions that you might have. The gentleman
from Wisconsin, Mr. Barrett.

Mr. BarreTT. Thank you, Mr. Chairman. Just very briefly, and
I appreciate your taking the time to be here as well, are you aware
of how many offices currently test?

Mr. SOLOMON. Random drug testing?

Mr. BaRRETT. Yes.

Mr. SOLOMON. There are a few that I know of—mine, Joe Bar-
ton’s, and a number of others that do it—not systematically, but do
it from time to time.

Mr. BarRETT. So, obviously, there’s no prohibition for Members
who want to do it now?

Mr. SOLOMON. Well, the trouble is we can’t use congressional
funds to do it; it comes out of our pockets.

Mr. BarRETT. Thank you. Thank you very much and we'll let you
keep up the good work.

Mr. SOLOMON. Thank you very much.

Mr. Hastert. At this time, I'd like to introduce our second panel
of witnesses. They certainly are nationally known within the treat-
ment and workplace communities.

First of all, we have Dr. Robert DuPont. Dr. DuPont was the first
Director of the National Institute on Drug Abuse and served under
Presidents Nixon, Ford, and Carter. Dr. DuPont was also the sec-
ond Director of the White House Drug Abuse Prevention Office,
now known as the drug czar of the ONDCP. He is presently a prac-
ticing psychiatrist and specializes in problems in the workplace.

Also, we have Dr. Ian Macdonald. Dr. Macdonald served in many
capacities under President Reagan. He was the drug czar as the Al-
cohol, Drug Abuse, and Mental Health Administrator, and the As-
sistant Surgeon General.

We also have Dr. Murray Lappe. Dr. Lappe is president of the
National Medical Review Offices.

We also have Mark deBernardo, who is an attorney specializing
in work drug issues. Mr. deBernardo is the director of the Institute
of Drug-Free Workplace.

I thank all of you for being here today. It’s a rule of our commit-
tee that we swear-in all of our witnesses. I ask you to please stand
and raise your right hands.

[Witnesses sworn.]

Mr. Hastert. Dr. DuPont, please proceed with a brief summary
of your written testimony. All testimony will be included in the
record.


11

XIL  Suj ted Safe sitive Position Worker

The following legislation, if enacted, would allow employers to protect their employees,
their property, the environment, and the public at large by permitting those individuals who test
“positive” - or who have a history of substance abuse — to be removed from consideration from the

most highly safety-sensitive positions.

PUBLIC AND EMPLOYEE SAFETY ASSURANCE ACT

Section 1. Title ~ This Act shall be known and cited as the “Public and Employee Safety
Assurance Act.”

Section 2. Finding ~ Whereas drug and alcohol abuse by employees has been demonstrated to
seriously compromise workplace safety and health, and to endanger the public at large, property,
and the environment, and whereas some employment positions are so highly safety-sensitive in
nature that no individual who has failed a drug or alcohol test, or who has a history of substance
abuse, should be eligible for employment or reemployment in those positions in order to ensure
public and employee safety and health, and the protection of property and the environment, be it
enacted that this Act shall become law.

Section 3. Definitions — As used in this Act:
(A) “Alcoho!” means ethanol, isopropanol, or methanol.

(B) “Drugs” means any substance considered unlawful under the Controlled Substances Act
(21 US.C. § 812 et seq.).

(C) “Employer” means any person, firm, company, corporation, labor organization,
employment agency or joint labor-management committee, including any public utility or
transit district, which has one or more full-time employee(s) employed in the same
business, or in or about the same establishment, under any contract of hire, express or
implied, oral or written. “Employer” does not include, for purposes of this Act, the
United States, the states, or other public-sector incorporated municipalities, counties, or
districts, or any Native American tribe.

(D) “Employee” means any person in the service of an employer, as defined in Subsection
(C) of this Section, and for the purposes of this Act includes the employees of an
employer's contractors, subcontractors, and vendors who are working for the cmployer
and subject to its drug- and alcohol-testing policies and programs, as well as any
independent contractors subject to such policies and programs.

29


83

testing Programs must have this or else individuals will be falsely
accused and their private medical conditions will be exposed before
the workplace. That is absolutely not appropriate.

Mr. Hastert. Thank you, Doctor.

At this time, I recognize the gentleman from Wisconsin, Mr. Bar-
rett.

Mr. BarRETT. Thank you, Mr. Chairman.

Dr. DuPont in both your written testimony and your oral com-
ments, you talked a lot about hair testing—a test that I didn’t
know existed until I started doing a little preparation for this hear-
ing. So, it was news to me that that was even in existence. One
of the issues that you raised is that the people who are opposed to
it are opposed if they have a financial interest in urine testing or
skin testing. Just for the record, I assume you have no financial in-
terest in any of this. Is that accurate?

Dr. DUPONT. No. I am a consultant to the Psychemedics Corp.
and I do own stock in that company also. So it’s a major manufac-
turer and I do have a financial interest in that company.

Mr. BarRETT. OK, just for the record, I think it’s important for
us to know that.

Dr. DuPonr. Sure.

Mr. BaRRETT. One of the issues, again, that was raised to me by
my staff—and I think the panelists on the next panel will raise this
issue, too—is the whole issue of false positives for minorities.

Dr. DuPont. Right.

Mr. BaRRETT. In your written testimony, you said that that can
be easily explained.

Dr. DuPont. Right.

Mr. BarRETT. If you would be so kind.

Dr. DuPont. Yes. The criticism has to do with hair color and not
with race. The argument is that people who have dark hair have
to use less drugs to get a positive hair test than people who have
light-colored hair. There is some laboratory basis for that. When
that question is put into the real world hair testing is found not
to be racially biased. The question was raised, about whether there
is a disparate positive rate by race on hair tests compared to urine
tests. In a large study the answer was no, that there was no in-
crease in the positive rate for hair compared to either urine or self-
report based on race. This was repeated in the Chicago police de-
partment, where there were 2,000 urine and hair tests done. There
was no racial basis. So any concern for racial basis has been an-
swered by real world data. Whatever concerns there are are en-
tirely based, to my knowledge, on laboratory considerations on hair
color and not on race.

Mr. HASTERT. OK. I just wanted to hear your explanation. The
gentleman behind you is shaking his head, so we'll ask him the
same question on the next panel, but I wanted to make sure we
had both sides of that story.

Dr. Macdonald, you talked about the difficulties that occur when
there’s a shortage of labor and you have a situation where compa-
nies may not want to test. Is it your experience or your belief that
what happens there is that you lose workers who are more likely
to test positive for drugs which would be—and you made reference
to the ostrich problem. Or do you believe that you have, then, peo-


5

Mr. HaAsTeErT. Without objection.

Mr. Sotomon. Thank you, thank you very much. But you know
it all goes back to—and the reason that myself and Joe Barton and
you, Mr. Chairman, have just yesterday sponsored legislation that
we applied for—in other words, early in this Congress and made
provisions for in the rules of the House; that was to establish a sys-
tem of random drug testing in the Congress and that means for
Members of Congress and for all of our employees. Now does that
mean that you and I think that there is a serious problem of dru;
use among congressional employees or even Members of Congress?
The answer is no. But when you look at the very cogent fact that
throughout all of America, 75 percent of drug use, illegal drug use,
in America today, does not come from where you would expect it,
from the inner core cities, problems that we have right here in
Washington, DC—75 percent of all the illegal drug use in America
today comes from constituencies perhaps like yours and mine. It
comes from the middle class, upper-middle class, suburban week-
end recreational drug users.

That is terrible. But that creates demand. Because if you took
away that 75 percent of the demand, what would that do to the
price of these drugs? You know, no longer would these drugs be
coming in across the Mexican border, Colombia, or up in Canada
where I come from. They'd be making bathtubs, or whatever they
used to make, before they got into the drug business. So the whole
idea is for this Congress to do all that it can to help set the exam-
ple. That’s what we want to do here.

If you recall, back in the very early 1980’s, Ronald Reagan, who
was my hero, implemented—at my urging and others—a system of
random drug testing in our military. Why did he do that? Because
at that time, there was an admitted 25 percent illegal drug use by
our military in all branches of service. Four years after he imple-
mented that program, it dropped from 25 percent down to 4 per-
cent. Now that’s an 80 percent drop. Now, if we could do that in
the Congress; if we could do it in the U.S. Government; if we could
do it in States and counties and towns and villages and cities in
the public sector, we could drop the use 80 percent. Then if the
Fortune 500 companies—whi incidently are making great
progress—because companies like GE and others have imple-
mented random drug testing. But if you could drop the use 80 per-
cent across this Nation, that would just about be a great huge step
in solving our problems.

So I just wanted to report to you the bill that we introduced. It
has six categories because you have to be worried about it and ev-
erybody—I’m almost a libertarian myself and I worry about the in-
vasion of privacy. But there are perhaps constitutional amend-
ments with some kind of drug testing. So, therefore, in our bill that
we introduced, we, first of all, in the first category included all
Members of Congress. Now that could or could not be constitu-
tional, but there’s a severability clause that, if it were, it would
still leave the other five categories:

The second category would be all Members of Congress as a con-
dition of employment. In other words, it’s my contention that when
Jerry Solomon hires someone on his staff or on the committee staff
that, when they are hired, that one of the conditions of employment


poet

financial situation would be even more chaotic.

Don’t let government be an enabler. Take a stand. Get involved.

ie, Reference Kiplinger Newsletter - 6/1
Reference Nation’s Business - June issue

other\talkondrugsandalcoholandeep


81

ting well. For many people, that includes being involved with reli-
gion. But whether it does or doesn’t, it’s going to involve these two
oints—first, something more important than oneself and second,
living in an honest life.

Dr. MACDONALD. There was an older statement that used to sort
of pervade our belief, and that was that you could not get treat-
ment successfully until you’ve hit bottom, whatever that bottom
was. What we began to investigate was the idea of what would
happen if we raised the bottom. at about if we make sure that

eople are in treatment before they’ve lost their lives and their
families and all of these other things? What was found was that
indeed treatment with imposed consequences was equally effective
as the natural consequences of allowing this disease to continue.

Workplace testing really gives us that opportunity. In many com-
panies we are now demonstrating that—return people to work, not
so much with a punishment upfront, but with the carrot. If you
Want to continue this job, this is the condition that you have to fol-
low.

Mr. Hastert. I’ve read some research and been told of some ac-
tions and actually where schools are doing testing. They can do it
in some situations—athletes or somebody that’s going out in a spe-
cial situation or representation at school. Is there the same type of
movement in the treatment because of disciplinary action? at’s
the success rate in what you’ve been able to observe in that area?

Dr. MACDONALD. Well, I don’t know the legal ramifications of
testing high school kids, but I’m all in favor of it. One of the con-
troversial parts of the law is akin to the minimum sentencing
guidelines. It’s almost as if, if we were to do this, we ought to maxi-
mize sentencing guidelines for kids and treatment. That’s sort of
where we lost it all in the 1970’s with this draconian punishment
for kids that got caught with drugs. But rather than modify the
consequences, we dropped them altogether. My view is that we
should take young people, and when they have a drug offense,
there should be an action and something that they can expunge
from their record. What I don’t want to do is—well, let me give you
an example of what one stockbroker company did.

Their view of treatment was, when somebody failed the drug
test, they called them in. The personnel manager said, You know,
you can’t continue to work with people’s money and represent this
company and use this drug. We’re not going to give you any more
than a second chance. The only reason we're giving you a second
chance is that we've got a lot of investment in you. ‘Then the indi-
vidual would say, what about treatment? The company would say,
No, you’re missing the point. We're not talking about treatment;
we're talking about you being drug-free in our tests. But you
should know that we do have an insurance policy to cover treat-
ment. We also have an employee assistance program. But what
we're going to judge you on is being drug-free.

I wouldn’t sentence people to treatment. I would sentence people
to a monitored drug-free program with escalating consequences and
would advise them, if they've got any sense and they can’t give it
up, they better get help. Then, the help could be available.

Mr. Hastert. So the consequences are there facing the individ-
ual constantly and it’s up to the individual—he has the aspects


107

.
iw

I come here this morning in support of an effort to implement a comprehensive
drug and alcohol testing program. Such a plan could be a win/win solution for both
the employee and employer (in this instance the U. S. Government.)

Having implemented a program at my firm more than 12 years ago, 1 can
testify in detail that just such a system can significantly alter, for the good, the
relationship between employer and employee.

Committing 10, implementing and maintaining a comprehensive drug and
alcohol testing program, linked to an employee assistance program, helps those
persons who are afflicted by substance abuse, alcoholism and/or other social
problems. Such a program is essential for the health, well-being and profitability of
both a business organization and the individua‘--no matter if the company is a small
business, a large Fortune 500 company or the U. §. Government. Both parties benefit
from having an established, meaningful, effective program to prevent improper
behaviors from occurring, while providing help for those people who, unfortunately,
have problems.

At Chamberlain Contractors, Inc., we put a comprehensive drug and alcoho!
testing program in place in 1986. For us, the increased frequency of Worker's Comp.

‘162 Lafayette Avenue * Laurel, Maryland 20707 © Local (901) 725-4330 « Batt. (410) 792-0099 * DC/WA (301) 953-1049
AX (901) 725-8869


92

as much drug testing. But in yours you say you do not perform
dru testing due to the fear of legal liability. What do you mean
y that?

Dr. Lappe. That the larger employers in this country have the
legal resources and financial resources to defend a claim by an em-
ployee that the drug test was improperly performed.

Mr. SouDER. Are you suggesting-—and Mr. deBernardo, you obvi-
ously refer to the Portman bill that we’re moving—do you think
that we would be wise to have a fund or something in here to help
provide legal assistance? Or do you agree that “that’s one of the
things that’s kept businesses out?

Mr. DEBERNARDO. I absolutely agree that’s one of the things that
keeps small businesses from addressing this. There’s a perception
that drug testing is a minefield, so you have these businesses say,
gee, yes, there’s a lot of court cases, gee, do I really want to go for-
ward with this? And that creates a disincentive.

Really, the two reasons why an employer wouldn’t do drug test-
ing is ignorance—they don’t know about it; they're too busy doing
other things. Theyre making widgets and selling widgets. Or, two,
because of this fear of being sued. Frankly, I think the most appro-
priate approach is the one that’s embodied in the Drug-Free Work-
place Act, which creates that incentive for employers. You follow
the safeguards. You do drug testing in the most responsible way.
You cannot be sued for taking the adverse employment action, act-
ing in good faith.

That would create a terrific incentive for small businesses and
others to address it and removes one of the potential reasons not
to do it.

Mr. SouDER. But, as a small businessman, I’m not sure that
would convince me I’m not going to be sued because you can still
get harassment suits that you may not be able to handle. But I
agree with you that the best protection to winning the suit——

Mr. DEBERNARDO. But you cannot be sued for taking adverse em-
ployment action against somebody, including denial of employment
to a job applicant, based on a positive drug test. If you know that
you can give a drug test and, as long as you follow the safeguards,
you're not going to be sued for discharging somebody or denying
employment to somebody, I think that——

ir. SOUDER. OK. I would like to followup a little bit more be-
cause the other thing, particularly with Dr. DuPont and Dr. Mac-
donald, is that—have you seen the Ramstad bill on treatment?
And, if not, could you try to get a copy of that and look how we
might work—it’s, basically, to get some parity for alcohol and drug
abuse treatment. We're trying to limit it so it doesn’t bust the
costs, possibly how testing might be worked into that? Because it’s
one that may or not move here in the immediate future.

And I also wanted to say to Dr. Macdonald, several points back
in our résumés, when I was public and staff director at the Chil-
dren, Youth, and Family Committee, and Congressman Hastert
was on that, you worked with us on several hearings, and I appre-
ciate your leadership over a long period of time on these subjects.

Mr. MACDONALD. Thank you, Mr. Souder.

Mr. Barr. Thank you. I'd like, on behalf of the chairman and the
entire subcommittee, to thank this panel of witnesses. We appre-


60

VIII. Support for the Drug-Free Workplace Act of 1998

The Institute also wishes to express its support for H.R. 3853, the “Drug-Free Workplace
‘Act of 1998,” which was recently introduced by Representative Rob Portman. That bill,
currently pending before the Subcommittee on Empowerment of the House Committee on Small
Business, would particularly benefit small companies by encouraging them to develop and

implement drug-free workplace programs.

Figures recently released by the Substance Abuse and Mental Health Services
Administration found that workers in small businesses (defined as those that employ fewer than
23 employees), employ a disproportionately high number of self-admitted drug abusers. In fact,
59 perceit of current drug abusers work for small business, despite the fact that smal

businesses account for only 39 percent of the jobs in this country.'*

Eleven percent of small business employees told the SAMHSA researchers that they
currently abuse drugs; in contrast, 5.4 percent of those working for larger companies report

recent illegal drug use.'*

The survey affirms what many employers have long known — employees at workplaces
with substance-abuse prevention programs that include drug testing are less likely to use drugs.
Moreover, employees who use illegal drugs often seek out employers that do not have drug-

‘5 “an Analysis of Worker Drug Use and Workplaces and Programs,” Substance Abuse and Mental
Health Services Administration. Office of Applied Studies. Rockville, Maryland. July 1997.

"Id. at 23.


56

For employers, the consequences of drug abuse also can be highly detrimental. If American
companies are to remain competitive in a global economy, they must strive to maintain a work force

that is free from drug abuse.

In so doing, company drug-abuse prevention programs should be implemented in a fair,
consistent, and equitable manner with due consideration of the rights, responsibilities, and privacy

interests of all concemed parties.

Conceming employee rights, companies must maintain a commitment to all their
employees, including the vast majority who are not - and will not — become drug abusers.
Business's responsibility to protect its employees and their rights goes far beyond protecting the
rights of those who choose to engage in illicit drug use, Employers not only have a right to expect a

workplace free from drug abuse, they may well have a duty to ensure it.

VI. Drug Testing

The Institute recognizes that drug testing is not for all employers and all employment

situations; that drug testing is not, in and of itself, a drug-abuse prevention program; and that — as

mentioned earlier — drug testing should be done “right,” or not at all.

“Right,” in regards to drug testing, embodies a series of safeguards and procedures widely
embraced by the scientific and medical communities — and formally endorsed by the Institute in its


18

people to take responsibility for their lives, including their
decisions to pick up or not pick up illegal drugs.

Related to this attitude of respect for the addicted person,
retain hope for recovery for all addicted people no matter how long
they have been addicted and no matter how many times they have
relapsed. Recovery from addiction is a great gift that can only be
earned by addicted people themselves, one person at a time.
Others, including family members, therapists, employers, criminal
justice personnel, and friends, can facilitate recovery but they
cannot do it for addicted people. They should not enable continued
illegal drug use by misguided efforts to protect addicted people
from the often painful consequences of their addictive substance
use. Pain as a result of addiction is the principal stimulus for
beginning to work to get well. Removing the pain that flows from
the addicts’ own choices to use addicting substances, even though
it is often well-meaning, is crippling to addicted people.
Enabling prolongs and deepens addiction.

4. A reasonable level of addiction treatment should be

ed 1 addicts who oti . The
costs of addiction treatment are important to consider and they
need to be fit within the context of other health care costs. As
a general statement, addiction treatment is one of the best buys in
all of health care today, returning more in personal and social
benefits than most other health care expenditures. This is true
for both inpatient and outpatient care in both the public and the

private sectors.


47

Mr. Hastert. Thank you, Dr. Lappe.

Mr. deBernardo, thanks for being with us today. Please offer
your testimony.

Mr. DEBERNARDO. Thank you, Mr. Chairman. Thank you, Rank-
ing Minority Member Barrett, and also Mr. Barr. I appreciate this
opportunity to testify on what I think everyone in this room consid-
ers to be a critically important issue on that of drug abuse in our
society—a problem which I think is growing and which affects em-
ployers in very, very significant ways.

According to the U.S. Government, more than 73 percent of
Americans who engage in illicit drug use are employed. ere are
they? They’re in our workplaces. The employer community has ad-
dressed this issue, is addressing this issue. Increasingly, it’s ad-
dressing this issue, and addressing it very effectively.

We are very active in this regard. The institute is almost 10
years old. I should give a little bit of background on the institute,
and that is that we are a nonprofit coalition of major businesses
and business organizations dedicated to preserving the interest of
employees and employers in substance abuse prevention programs.
We include in our membership more than 100 major employers and
employer organizations, including many of the largest companies in
the United States and a wide range of chambers of commerce,
trade associations, and community coalitions representing busi-
nesses from all sides. It’s my privilege to serve as executive direc-
tor.

Over the last 10 years, we’ve seen very dynamic changes in
terms of drug-testing laws. The institute publishes an annual pub-
lication. Our seventh edition is coming this summer. It’s more than
600 pages and it covers the laws at the State and Federal level.
Essentially, the raison d’etre for the institute was the fact that
there was a threat at the State level to employer rights to effec-
tively address drug testing in the workplace. This threat was mani-
fested in 1987 when six anti-drug testing laws were enacted at the
State level, and that’s essentially why it was a response by the em-
ployer community to address this issue. I’m happy and proud to re-
port that this issue has turned around at the State level; that,
since 1989, there’s not been a single anti-drug testing law enacted
at the State level in any jurisdiction in the United States. In fact,
the majority of the bills being considered at the State level are pro-
drug testing, create incentives—much like Representative
Portman’s bill at the Federal level—for businesses to address sub-
stance abuse in the workplace and to do drug testing.

In fact, the institute has drafted model legislation at the State
level which has been enacted by four States in the last 2 years and
by six States overall. It was enacted in Iowa earlier this year,
which is very significant, because Iowa was one of the States that
enacted highly restrictive drug-testing laws back in 1987. So, from
our standpoint—the employer community standpoint, and frankly
from the standpoint from those who believe that employers should
have the flexibility to address substance abuse and use the appro-
priate tools to maintain drug-free workplaces, this was a “two-fer.”
We struck from the books in Iowa one of the most restrictive State
laws and we had enacted a slightly modified version of the insti-
tute’s model legislation.


51

Among the more than 30 Institute publications is the Guide to State and Federal Drug
Testing Laws, a comprehensive (nearly 600 pages) overview and analysis of all state and federal
case and statutory law relevant to private-sector workplace drug-testing and drug-abuse prevention

programs.

Among other functions, the Institute disseminates information on substance-abuse
prevention and treatment programs with the goal of having a constructive influence on government
and corporate consideration of these issues. ‘The Institute is uniquely situated to provide relevant
and helpful information on the nature and dangers of employee drug and alcohol abuse, the
effectiveness of workplace drug-testing and drug-abuse prevention programs, and the public policy
and legislation that best serves the interests of employers and employees alike in promoting drug-
free workplaces and a meaningful and effective response to the widespread and too often
devastating effects of substance abuse.

i. = Ba ind on State Action on Test and Sur of the ss

‘The Institute was created in March 1989 in large part because of the proliferation of
proposed state legislation and regulation that unduly restricted, or would have unduly restricted,
employee drug testing and employers’ ability to address drug abuse effectively.

Fortunately, that trend has been reversed. The majority of bills now being considered at the
state level are favorable on drug testing, not unduly restrictive, and not one anti-drug-testing bill —
federal, state, or local - has been enacted since 1989.


80

Mr. HASTERT. Just a quick point. Is that because of the Ameri-
cans With Disabilities Act?

Mr. DEBERNARDO. This—yes. The bill that we have drafted and
discussed and submitted to this committee would, in fact, include
pre-emption, and preemption of the ADA in that regard.

Mr. RT. I thank the whole pane) and Mr. deBernardo and
others for giving your testimony today. Let me open up with some
questions.

Dr. DuPont and Dr. Macdonald, when you look at the whole
issue of workplace testing—and we've heard testimony that the
whole issue of people don’t want to necessarily be tested and people
don’t necessarily want to go into treatment, but treatment is a way
out from nishment. It’s a way not to get into the legal system
and actually keep a normal life.

Also, Dr. DuPont, you talked about the faith-based groups and
how they work and there actually has to be an act of will of indi-
viduals to prove their lot in life through that process. Basically, you
see two incentives here—people want to improve themselves and
people want to avoid a type of punishment or incentives to get into
treatment. But testing is the threshold to both rules. What has the
success been in faith-based as opposed to people just wanting to
avoid the consequences? Dr. DuPont.

Dr. DuPont. Well, it’s important that you use the term “faith-
based,” because the 12-step program is spiritual, as opposed to reli-
gious. It is an important point because these programs—Alcoholics
Anonymous and Narcotics Anonymous and Al-Anon—are generally
nonreligious, but they are spiritually based.

Mr. Hastert. I stand corrected.

Dr. DUPonrT. Well, it sounds legalistic, but it’s important because
it has to do with the universality of the message. That’s important
to these programs.

I can summarize it very, very quickly with two points that have
to do with the 12-step programs. You mentioned that there are
these two things—the sort of carrot and the stick, a kind of punish-
ment concept and then some kind of reward. What happens basi-
cally is that people come into treatment to avoid punjehment, to
avoid painful consequences from the employer, from the criminal
justice system, from the family. They enter out of fear because of
the consequences of their use.

Once there, they go through a transformation and become inter-
ested in having a 1ife that matters, having relationships that have
value. The key to doing that is twofold. One is the concept of a
higher power that is something that is more important than the
self because it’s selfishness and self-centeredness that is the core
of addiction. So, the higher power is something that’s bigger than
one’s self, and for many people that’s God, but the essential point
is that it’s not you; it’s something bigger and more important than
you.

Then the second point is honesty. You can’t be a drug addict
without being dishonest or without being a liar. You get well by be-
coming an honest person. When you go to 12-step meetings, you'll
hear this word honesty over and over and over again. The people
in recovery feel that they are now living an honest life and that is
a tremendous relief. So that is a very big part of this process of get-


142

ly demonstrated that different hair types absorb and retain drugs
in widely varying amounts, up to 27 times more in one hair type
over another. African-American hair tends to retain and absorb
drugs more readily than Caucasian or Asian hair and the dif-
ferences do not appear to be related only to the melanin content.
These invitro differences in drug absorption and retention by hair
types have been replicated in a number of independent labora-
tories.

Differences among hair types have been seen in a number of ani-
mal studies in Japan and at the University of Utah. They've also
been encountered in controlled administrations of cocaine to hu-
mans in studies at both UC Davis and the NIDA Addiction Re-
search Center. In the controlled human studies, concentration vari-
ations up to fivefold have been measured for the same cocaine dos-
ages. Because larger concentrations of drugs are easier to detect,
African-Americans may be more readily identified as drug users
compared to other groups. This is especially true and important at
the lower-use rate that occurs in the employed and recreational
drug users.

Finally, the third area of concern is low-use detection. One appli-
cation of hair analysis is as an adjunct to urinalysis, to assess if
a urine positive was accidental or a one-time use. Alternatively,
hair analysis could be used to refute a urinalysis positive. Unfortu-
nately, in both scenarios, hair analysis would need to have the
same sensitivity as urinalysis for the detection of single or low drug
use.

For our research, we have monitored the hair of individuals in
drug rehabilitation and failed to detect cocaine in 58 percent of the
individuals at the positive cutoff levels where commercial labora-
tories make their decisions. Likewise, in an early Navy study con-
ducted by a commercial laboratory, only 23 percent of the patients
in drug rehabilitation for cocaine were detected as positive by hair
testing.

These studies are not alone. Henderson, Harkey, and Jones have
administered single doses of labeled cocaine to addicts. In only 4
out of 26 cases, were the levels above commercial positive cutoff
levels, even though the doses administered were 2 to 3 times typi-
cal street doses. These four positives just happened to be non-Cau-
casians, Baumgartner has estimated that one would need to ingest
at least 264 milligrams of cocaine per month to be positive by hair
analysis. Thus, recreational drug use of a few times per month
would likely be undetectable by hair analysis, especially for certain
hair types.

In summary, hair analysis for drugs of use have several areas
that need further research regarding low-use detection, passive ex-
posure, and racial bias before the promises of hair testing can be
more fully realized. Thank you for your time.

[The prepared statement of Dr. Kidwell follows:]


135

of effective aicoholism and drug addiction treatment. In the past thirty years, the effectiveness of
treatment, when provided by certified/licensed professional counselors, has been proven by
scientific research and clinical studies.

‘The recently released General Accounting Office (GAO) study concerning treatment’s
effectiveness offers very strong, recent analysis of treatment’s effectiveness. The GAO's review
cites that even conservative estimates of treatment effectiveness, substantiated by urine tests,
prove that 71.3% of cocaine/crack users and 83.3% of opiate users in a treatment test sample had
not used drugs in the month prior to the follow-up screening. As the study states, “consistent
evidence shows drug treatment is beneficial.”

NIDA’s recently released, Drug Abuse Treatment Outcome Study (DATOS) corroborates earlier
findings that treatment is effective. Methadone treatment was found to reduce heroin use by 70%
by the conclusion of the three-year study. Treatment also resulted in 50% reductions in weekly
‘or more frequent cocaine use at a one-year follow up interview.

Last year’s National Treatment Improvement Evaluation Study (NTIES) found that treatment
clients” use of their primary drug declined by 48.2%. More specifically, NTTES also found that
treatment reduced crack use by 50.8% and cocaine use by 54.9%. In addition, treatment reduced
marijuana use by 42%-57% depending upon the other drug(s) of abuse for which the patient was
also being treated.

Parkside Medical Services Corporation's 1991 study of treatment patients found abstinence rates
of 57% and 62% recovery rates (abstinence with a single episode of use) two years following
treatment.

NIDA's 1988 study, The Effectiveness of Drug Abuse Treatment, found that, 5 years after
beginning methadone treatment, the number of former opiate abusers who were no longer using
had grown to 92% of the original test group. The study also found that the number of daily
opiate users in therapeutic community treatment was reduced from 52% to 29% after 90 days in
treatment.

Of 10,000 treatment admissions in the Treatment Outcome Prospective Study (TOPS), in 10

cities in 1979, 1980, and 1981, abstinence rates for drugs other than marijuana ranged from 40%-

50%. With regard to alcoholism, the TOPS study concluded that:

. During treatment, the proportion of clients reporting alcohol problems decreased by 46%,
particularly among residential clients.

. ‘Over 50% of ihe clients showed substantial reductions in alcohol use during treatment as
compared to use prior to treatment.

NIH’s Drug Abuse Reporting Program (DARP), conducted from 1968-1989, included 44,000

clients entering 50 treatment programs in the United States. Subsets of the original test group

were studied 6, and again 12 years after their initial interviews. Within the test group, the study

found th

* Daily drug and alcohol use dropped 63% in the first year of treatment, and continued to
decline throughout the rest of the testing years. (Testing years included yrs. 1,2,3,6, and



18

drug-free standard. Real demand reduction is first and foremost
drug testing linked to serious consequences. This approach
increasingly characterizes both private and public sector
employment in the United states. Real demand reduction is the
growing use of drug testing linked to consequences in the criminal
justice system. Real demand reduction is zero tolerance for
illegal drug use so that illegal drug users, and would-be users of
illegal drugs, know that they will be caught quickly and that the
consequences of their illegal drug use will be painful. For
repeated violations of the drug-free standard, the personal
consequences must be progressively more severe. In the workplace
the ultimate penalty is termination of employment, in the criminal
justice system it is prison.

This is a new way to look at demand reduction. For prevention
and treatment to work, real demand reduction has to be in place.
Absent real demand reduction -- detection of illegal drug use
linked to tough consequences -- then prevention and treatment will
not work for most addicted people.

Having said that real demand reduction needs to be a top
priority of an effective national drug control strategy, however,
let me add that supply reduction does work when it is in concert
with effective demand reduction. Once demand for illegal drugs is
curbed -- by tough anti-drug use initiatives -- then curbing drug
supply works much better. supply reduction adds greatly to the
effectiveness of demand reduction by reducing the exposure to

drugs, thus reducing the appeal of drugs in the society. Effective


137

same extent as other medical services. The need for improved access to treatment among.
America’s workers is undeniable.

Every year, as many as 20 million Americans, more than 11% of the population, experi

difficulties resulting from alcohol or drug addiction. ‘The vest major of peopls bs eperence
alcoholism or drug addiction problems are employed at a full time job. More than 70% of people
who currently use illicit drugs, as well as 75% of individuals who are alcoholics, are employed.

For these reasons, NAADAC makes its strongest recommendation for the inclusion of parity in a
drug testing policy. A parity law will greatly improve employer provided insurance policies to
ensure that alcoholism and drug addiction are covered to the same extent as other similar chronic
diseases such as diabetes and hypertension. Parity will maximize fair access for America’s
working families to treatment - our most effective weapon in the battle against addiction -
without placing a mandate upon employers. Under parity, employer health plans set the same
aggregate limits on lifetime and annual dollar caps on alcohol and drug addiction coverage as.
they set for medical and surgical services. Parity applies to deductibles, co-payments and
treatment limits on visits.

Most employer provided insurance policies today discriminate against alcoholism or drug
addiction. According to the Bureau of Labor Statistics, in 1995, roughly 80% of employees
working for medium and large employers have health plans that cover some level of
detoxification/treatment for these diseases. However, fewer than 7% of these employer provided
health plans covered alcoholism and drug addiction treatment to the same extent as other medical
conditions. Employees’ plans that do cover treatment, requiring greater patient burden for cost
sharing, copayment, and deductibles, while offering less coverage for number of visits or days of
coverage and annual/lifetime dollar expenditure limits for treatment. For example, a typical
insurance plan might cap lifetime medical benefits at $1,000,000. The same plan might cap
‘substance abuse treatment lifetime benefits at only $25,000 or $5,000.

NAADAC is aware of concerns that health care costs under such a plan may rise. However, The
Costs and Effects of Parity for Mental Health and Substance Abuse Insurance Benefits,
conducted by Mathematica Policy Research, Inc. and released in March, 1998, projected 0.2%
cost increases based upon data from states which have enacted parity for mental health and
substance abuse treatment. Another study, conducted by the actuarial firm of Milliman and
Robertson, found that composite cost increases for employer provided plans would amount to
only 0.5%. Given the seriousness of the diseases of alcoholism and drug addiction, and the
minimal costs of implementation, parity is affordable.

In its analysis of employers in states with parity laws, the Mathematica study found that
employers, when permitted to do so, did not eliminate their coverage to avoid parity
requirements. In addition, the study found that, “Employers have not attempted to avoid parity
laws by becoming self-insured.” In fact, the study investigators found little evidence of any
attempts to avoid parity. Study informants cited the low costs of parity as a reason for not
‘changing their employee health insurance package. Companies continue to provide alcoholism
and drug addiction treatment coverage because treatment helps employees retum to fall
productivity and it is affordable. In addition, the study found that employers do not pass on the


55

In particular, the Institute recognizes the threat that drug abuse ~ cognizant that alcohol is a
major drug of abuse — poses for employers and employees alike. Among other consequences, drug
abuse decreases productivity and increases accidents, absenteeism, product defects, medical and
insurance costs, and employee theft.” Clearly, employers and employees have a large stake and a

legitimate role to play in the “war on drugs.”

Vv. Employer and Employee Rights

For employees, the consequences of drug abuse can be tragic not only for abusers and their
families, but also for co-workers and customers who are put in jeopardy by others’ illicit use of
drugs. Moreover, beyond the physical dangers, employees’ jobs may be jeopardized if a company's
profitability is undermined by the poor performance, mistakes, and accidents of drug abusers.

° The U.S, Govemment recently reported that the estimated losses in productivity in 1992 caused by drug and
alcohol abuse were $81.9 billion. “The Economic Costs of Alcohol and Drug Abuse in the United States,
1992.” National Institute on Drug Abuse & National Institute on Alechol Abuse and Alcoholism. Rockville,
Maryland, May 1998.

Ih 1991, the reported cost of drug abuse to the business community was $75 billion annually, or
approximately $640 per employed person based on 117 million U.S. workers. Tasco, Frank T., Chairmar;,
Marsh & McLennan Companies, and Chairman, The President's Drug Advisory Council. Address delivered
to President Bush and the President's Drug Advisory Council. Nav. 15, 1991.

The US. Postal Service would have saved $52 million by 1989 had it screened out all drug-"positive” postal
service applicants in 1987. Employees testing "positive on their pre-employment drug tests were 77 percent
‘more likely to be fired in their first three years of employment, and were absent from work 66 percent more
often than those who tested "negative." Normand, Jacques, Stephen Salyard, and John J. Maloney. “An
Evaluation of Pre-employment Drug Testing,” Journal of Applied Psychology. Vol. 75, No. 6. 1990. pp.
629-639,

Employees testing “positive” on pre-employment drug tests at Utah Power & Light were five times more
likely to be involved in a workplace accident than those who tested “negative.” Crouch, Dennis J., Douglas
. Webb, Paul F. Buller, and Douglas E. Rollins. "A Critical Evaluation of the Utah Power and Light
Company's Substance Abuse Management Program: Absenteeism, Accidents, and Costs.” Drugs in the
Workplace: Research and Evaluation Data, NIDA. 1989. pp. 169-193.


2

sure every employee that drug use will be detected and will not be
tolerated, our society will be a lot better off. Finally and rhetori-
cally, I ask, how do we identify and treat those employees without
drug testing?

Td like now to turn to my good friend, Congressman Barrett, for
his opening statement.

Mr. BaRRETT. Thank you, Chairman Hastert. I’m pleased to be
here this morning. I’m pleased that we have two panels of distin-
guished witnesses from government, academia, the private sector,
and the scientific community. I welcome you all here this morning
to examine drug testing approaches and technologies that may
have applications in the private sector workplace. Just as impor-
tant, I look forward to exploring the important role of drug treat-
ment in creating drug-free workplaces across the country.

In the private sector, employers have had a relatively free hand
to include drug testing as a condition of employment. Since 1987,
the number of U.S. corporations that use drug testing has risen
277 percent. Ninety percent of Fortune 500 companies use drug
tests to screen potential employees, including on-the-job screening.
That means as many as 30 million employees in our country are
subject to drug testing annually. The question of whether that ex-
plosion in drug testing has made a difference in the past decade
or promises results in the future is something our witnesses will
help us answer today.

ring our consideration of this subject, I hope we can be guided
by a few fundamental principles. Drug testing must be accurate,
particularly in the workplace, where employment decisions can
have enormous impact on people’s lives. Drug testing standards
must be applied fairly and consistently, and the method used to de-
tect drugs must not yield disparate results based on race or eth-
nicity. Finally, drug testing policy methods—and methods—must.
take into account the personal privacy interest of those being test-
ed and test results must be kept confidential. Perhaps most Impor-
tant of all, drug testing must go beyond simply punishing drug
users. If drug testing is to become part of an effective drug strat-
egy, workplace testing programs must be accompanied by an array
of treatment and counseling actions. The point is to keep our wor!
force healthy, drug-free, and, if at all possible, gainfully employed.
I look forward to hearing the testimony this morning.

Mr. Hastert. I thank the gentleman from Wisconsin. I, too, join
with him. I think there needs to be good, credible standards. I also
believe that those people who are employed and test positive need
to be helped to move forward so they are gainfully employed. I look
forward to working with you.

Does anybody else have an opening statement? Mr. Barr.

Mr. Barr. Thank you, Mr. Chairman. I would like to commend
the Chair for pulling together this hearing today. We all know, at
least most of us know, and all of us certainly on this subcommittee
know, the dangers of mind-altering drugs, particularly the dangers
posed in the workplace. We know that the vast majority of persons
who use illegal drugs are employed. We know that a large percent-
age of those—some one-sixth of the entire population—employed
population works for the Government. I think, therefore, it’s very
important that we explore the reasons why there is hesitancy or


174

National Drug Court Institute Review 72

14. Shaffer, Howard J. “Denial, Ambivalence, and
Countertransference Hate.” The Dynamics and
Treatment of Alcoholism. Edited by Levin, J. and
Weiss, R. Jason Aronson, New Jersey, 1994.


163

Ms brpbtin

NAADAC
National Association of Alcoholism
and Drug Abuse Counselors

1911 North 7
TO8/741 708

Myer Drive, Suite 900, Arlington, Vi
OO/SIROUT FAK: TOOT 7038 BOVTTANSG

MEMORANDUM

TO: House Government Reform and Oversight Committee's Subcommittee on National
Security, International Affairs, and Criminal Justice

FROM: The National Association of Alcoholism and Drug Abuse Counselors (NAADAC)

RE; Follow-up information answering questions from Subcommittee hearing on Drug Testing
and Drug Treatment (June 5, 1998).

SUBJECT: Studies supporting validity of treatment effectiveness analysis using self reported
data

DATE: June 16, 1998

Psychology of Addictive Behavior's report on the Drug Abuse Treatment Outcome Study
(DATOS) states that, “A significant body of research on self-reported data suggests that most
data so obtained are reasonably reliable and valid.” The following citations substantiate the
validity of treatment effectiveness studies utilizing self-report data.

1) Amsel, Z., Mandell, W., Matthias, L., Mason, C., & Hocherman, I. (1976). Reliability and
Validity of Self-Reported Activities and Drug Use Collected from Narcotic Addicts,
International Journal of the Addictions, 11, 325-326,

2) Bonito, A., Nureo, D. N., & Shaffer, J. W. (1976). The Verdicality of Addicts’ Self-Reports
in Social Research. International Journal of Addictions, 11, 719-724.

3) Hser, Y., Anglin, M. D., & Chou, C, (1992). Reliabihty of Retrospective Self-Report by
Narcotics Addicts. Psychological Assessments, 4, 207-213.

4) Maisto, S. A., McKay, J. R., & Connors, G. J. (1990). Self-Report Issues in Substance Abuse:
State of the Art and Future Directions. Behavioral Assessment, 12, 117-134.

5) McElrath, K., Chitwood, D. D., Griffin, D. K., & Comerford, M. (1994). The Consistency of
Self-Reported HIV Risk Behavior Among Injection Drug Users. American Journal of Public
Health, 84, 1965-1970.

6) Weatherby, N. L., Needle, R., Cesari, H., Booth, R, McCoy, C. B., Watters, J. K., Williams,
M., & Chitwood, D. D. (1994). Validity of Self-Reported Drug Use Among Injection Drug
Users and Crack Cocaine Users Recruited Through Street Outreach. Evaluation an Program
Planning, 17, 347-355.


72

Corporate policies against placing recovering alcoholics and drug addicts in safety-sensitive

Positions are consistent with business necessity and the safe performance requirements of the job.

Both the courts and regulatory agencies historically have accepted the proposition that
certain medical conditions are inherently disqualifying for positions with a high safety component
because these conditions can have a severe impact on an individual's conduct and job performance
without prior warning.”! The reasons for this disqualification are obvious: some positions involve
such a high element of safety responsibility that lives literally hang in the balance. Individuals with
a history of serious medical conditions that may — without waming — impair performance and pose
an unacceptable risk to life and property when such individuals occupy certain positions. While the
timing of such a threatening recurrence typically cannot be predicted, the seriousness of the
potential harm justifies the exclusion of these individuals from appropriately designated

‘employment positions.

Historically, the courts have accepted this treatment for medical conditions such as diabetes
and epilepsy, which long have been viewed as posing unacceptable risks for highly safety-sensitive
positions. Categorical exclusions of individuals with these conditions have been utilized by various
Federal, state, and local agencies in both their employment of government workers (such as FBI
agents), and in their regulation of fields of commerce (e.g., those engaged in public or commercial
transportation).

* See, eg., Chandler v. City of Dallas, 2 F.3d 1385 (5* Cir. 1993), cert. denied, $11 U.S. 1011, 114 8. Ct.
1386 (1994) (finding that dnvers with insulin-dependent diabetes or vision impairment that fail to meet safety
standards are not otherwise qualified as a matter of law), Ward v. Skinner, 943 F.2d 157 (1* Cir. 1991), cen.

denied, 503 U.S. 959 (1992) (Department of Transportation blanket exclusion of medication-dependent
epileptics from driver positions was reasonable safety rule).


21

TESTIMONY
before the Congress of the United States
House of Representatives
Committee on Government Reform and Oversight

by
Donald Ian Macdonald, M.D.

1 appreciate the opportunity to speak with the committee about the important subject of drugs in
the workplace. My remarks today will be based on my experience as a provider of drug-free
workplace services and as an advisor on national drug control policy. The issues of drugs in the
workplace will be my focus and I will try to frame my remarks in the broader context of a national
drug control policy that, in my view, gives them insufficient attention.

Our company, Employee Health Programs (EHP) of Bethesda, Maryland provides drug-free
workplace services to more than three thousand client employers including large and small
corporations, government entities, a congressional office, a professional sports league, and even a
country. Many of our clients are in federally mandated testing programs but the majority of the
drug tests that we conduct are not mandated. Our physician staff answers our 800 line 24 hours a
day, 365 days a year, responding each day to calls from hundreds of individuals who call to
discuss their positive drug tests. These trained physicians, certified as medical review officers
(MROs), discuss test results with workers seeking to find legitimate medical explanations for their
laboratory confirmed positive tests. Our MROs speak with laboratories, pharmacies, physicians,
and others as required by the circumstances of each case and keep copious notes of all that they
do, Additional testing is ordered as required and donors are informed of their rights to have a
portion of their specimen re-analyzed at another laboratory.

All of our employees including myself are subjected to random testing, a procedure that we
believe sends a strong signal to our employees and clients that we intend to be a drug free
workplace. Ours is not unlike the motivation to provide a good example to the country that led

to the signing of an Executive Order in 1986 calling for a drug-free federal workforce and testing
of federal non-military workers. We believe that the Congress has the opportunity to set a similar
example and send a strong anti-drug message by initiating the member and staff testing program
that has been proposed

Many see drug testing as a great way to reduce accidents, raise productivity, and lower health
care costs in industry and experience is showing this to be the case' ?. This is an important
concept but not, in my mind, as important as the effect such programs will have on dealing with

' 4, Satya, §.D,& Mahoney, JJ.(1990) An E of dug testing, Jour of Applied Psychology,
15, 629-639,

2 Delancey MM; Does drug esting work 2% Ba nse fora Dru Fee Werkplce, Washington, DC 1954.


10

(A) The results of that test were disclosed to a person other than the employer, an authorized
employee, agent, or representative of the employer, the tested employee, or the tested
prospective employee, or the authorized agent or representative of the employee; and

(B) The information disclosed was a "false positive" test result; and

(C) The “false positive" test result was disclosed negligently; and

(D) All elements of an action for defamation of character, libel, slander, or damage to reputation
as established by the relevant state's statute or common law, are satisfied.

Section 14. No employer requirement to implement a policy or testing — No cause of action
arises in favor of any person against an employer based upon the failure of the employer to establish
a program or policy on substance-abuse prevention, or to implement drug or alcohol testing.

Section 15, Confidentiality of results — All communications received by an employer, relevant
to employee or prospective employee drug- or alcohol-test results, and received through the
employer's drug-testing program are confidential communications and may not be used or received

in evidence, obtained in discovery, or disclosed in any public or private proceeding, except in a
proceeding related to an action taken by an employer under this Title.

XI. The Need to Permit Employers to Remove Substance-Alusing Employees from
Safety-Sensitive Positions

Section 10 of the Private-Sector Drug-Free Workplace Act'? addresses a current concem
which is critically important. The Public and Employee Safety Assurance Act, which follows,

addresses the same concern — and in a more effective manner.

These provisions would permit employers to permanently remove from the most highly

safety-sensitive positions those employees (or deny employment to those job applicants) who test

“positive” for drugs or alcohol, provided it is consistent with the employer's established policy and

not contrary to contractual obligations (such as collective bargaining agreement provisions).

'® See Section 10 of Section LX, at 20, supra.

22


146

the controlled human studies, concentration variations of up to 5 fold have been measured for
the same dosage of cocaine. Because larger concentrations of drugs in hair are easier to
detect, African Americans may be more readily identified as drug users compared to other
groups. This is especially true at the lower use rate that occurs in the employed and

recreational drug users.

Conclusions
In summary, hair analysis for drugs of abuse has several areas that need further research
regarding low use detection, passive exposure, and racial bias before the promises of hair

testing can be more fully realized.


63

The bortom line on this legistation is: employers who follow drug-testing safeguards and

exemplary procedures in their substance-abuse prevention programs would be immune from legal

challenges for acting in "good faith" on the results of employee drug tests.

‘Seven Major Advantages of the Private-Sector Drug-Free Workplace Act

It is voluntary. Employers could not argue that this legislation is a regulatory
imposition, because they could simply choose not to use the accuracy and faimess
safeguards articulated in this bill. Of course, they would not qualify for the benefit
of this bill — a “shield” from legal claims based on their acting in "good faith” on the
test results.

It_is_pro-employee Employees would benefit from increased employer
responsibility in testing because testing inaccuracies would be far less likely to
occur. Respect for employee rights in the process would be put at a premium. (Of
course, by promoting workplace safety and health, this bill would achieve an even
more significant employee benefit.)

It is revenue-neutral. This bill would not cost taxpayers a dollar. Rather, it would
create a private-sector incentive for action that is in both employers' and employees’
interests. There is no need for government regulation and enforcement since the
process is self-policing: an employer who does not comply simply would be subject
to potential legal liability.

Itwould reduce litigation. By limiting the causes of action and encouraging model
programs with a proper balance of employer and employee interests, this bill would
reduce litigation, legal fees, the backlog in the courts, and the unproductiveness of
an increasingly litigious society. It therefore matches up very comfortably to the
legislative interests of tort reform.

Itrepresents the “carrot” approach for employers, not the "stick” approach, by giving
employers the incentive ~ if they are going {o do drug or alcohol testing — to do it the
right way.

It would en: business focus on drug-abuse prevention. Of the “Fortune
200" corporations, 98 percent do drug testing of one or more classes of employees or
job applicants."® This bill would send a credible message to employers that their
commitment to drug-free workplaces is necessary and appropriate.

“* Corporate Membership Surveys. The Business Roundtable. New York, N.Y. December 1991.


20

need to build these real demand reduction strategies into their
everyday functioning. The most promising new area today is the
criminal justice system (CJS) where the strict drug-free standard
needs to be established and enforced: If you are under any form of
JS supervision (in jail or prison, on parole or probation) you
will be drug tested. If you test positive, indicating recent
illegal drug use, you will lose privileges and be subject to more
intensive supervision and more frequent drug testing. Repeated
violations of the drug-free standard while under CJS supervision
will lead to escalating penalties to ensure that no one under
supervision continues to use illegal drugs.

There are many other places where illegal drug use tripwires
reed to be put in modern American society, including public and
orivate schools and on our highways. They need to be extended in
she workplace and developed in other institutions, especially in
yealth care and in disability and welfare programs.

The initial consequences for violation of drug-free tripwires
need not be draconian. To work to deter drug use, the consequences
for initial detection of illegal drug use need only to be swift and
zertain. They need to lead illegal drug users into tighter
supervision to actively detect any continued illegal drug use over
prolonged periods of time. Repeated violations of the drug-free
standard should be met with escalating punishments. Drug users
need to be educated about the disease concept of addiction.

6. Add hair testing to urine testing for more effective drug
jetection in many settings, especially preemployment drug testing


37

compensation and health care costs, Moreover, substance abuse in the workplace has a

demonstrated and substantial adverse impact on employee productivity and morale.

‘The American workplace has responded with substance-abuse prevention programs.
‘Numerous studies and individual corporate experiences alike confirm that efforts to
reduce substance abuse in the workplace can be extraordinarily effective. The prevalence
of drug testing throughout the employer community alone demonstrates that companies
recognize that their programs work. Last year, more than 40 million drug tests were
performed in the American workplace — a 1000% increase in the past 10 years. There is,
additionally, a “migratory effect” which has forced drug users seeking employment into
the workplace of smaller employers who do not perform drug testing due to the fear of

legal liability, and to the complexity of some state and local laws.”

National Medical Review provides guidance and medical consultation to our clients to
assist them in developing and maintaining their drug-free workplace programs. We stay
up-to-date on all federal, state, and local laws, and assist our clients in staying informed

as well. When necessary, we provide expert testimony for our clients.

? 4 recent SAMHSA (Substance Abuse and Mental Health Services Administration) survey found that
workers in small businesses of 1-to-24 employees have the highest rate of current illicit drug use at 11
Percent, By contrast, workers in businesses of 251-499 employee and 500 more employes repr
much lower current illicit drug use rate of 5.4% each. The survey affirmed the correlation between

drug use and workplace substance-abuse prevention programs that include drug testing. Only
22.5% of workers employed in small-sized businesses are subject to drug testing, while 52.2% of workers
in medium-sized businesses and 68% at large-sized businesses are subject to drug testing. From the
Institute for a Drug-Free Workplace’s Legislative Update, May 29, 1998.


157

@

FIT
The Employee Safety Screener

It’s wise man who stays home when he's drunk.
Euripides, The Cyelops (c. 425 B.C.)

The strongest have their moments of fatigue.
Nietzsche, The Will to Power (1888)

66% of Aviation Accidents
95% of Highway Accidents
50% - 95% of Industrial Accidents
Accidents due to Human Error,
Government Statistics (1994)

Introduction

‘On a daily basis, impaired workers injure themselves, damage equipment and products,
contribute to low productivity, poor quality and morale. This is costing companies billions of
dollars.

Since the early 1900's companies have spent 100’s of millions of dollars improving safety and
productivity. The primary focus has been on training. tools/equipment and
procedures/processes.

However, government statistics demonstrate that certain risk factors are associated with
accidents and errors. Drugs, such as marijuana, cocaine, opiates, amphetamines, as well as
fatigue (sleepiness), are similarly cited as increasing the risk of accidents and errors. Hence,
individuals under the influence of one or more of these factors are potentially people of “high
tisk”. Not just high risk of catastrophic accidents, but high risk of causing equipment damage,
lost time and poor work quality.

PMI, INC. Keeping an Eye on Safety, Quality and Productivity


57

Policy Statement — as necessary and appropriate. These safeguards and procedures - and others —
are specifically articulated in the "Private-Sector Drug-Free Workplace Act” (which the President's
‘Commission endorsed and we commend to your attention today), and include: (1) acting in
accordance with a written corporate policy; (2) performing confirmatory tests using a different
chemical process to help ensure accuracy before acting upon a “positive” drug screen; (3) ensuring
chain-of-custody and proper documentation for test samples; (4) maintaining the confidentiality of
test results as reasonably and appropriately as feasible; (5) using certified laboratories with
scientifically and medically accepted laboratory protocols and procedures to assure accuracy and
faimess, and (6) using Medical Review Officers to verify all confirmed “positive” drug-test results.

While recognizing the n

ity of procedural and policy safeguards to drug testing, and the
limitations of drug testing (vis-d-vis an overall, comprehensive drug-abuse prevention program), the
Institute also fully recognizes that drug testing, if done properly: (1) can be a vital component of an
effective drug-abuse prevention program; (2) is fair and accurate; (3) can act as a strong deterrent to
drug abuse; (4) is a legitimate and appropriate prerogative of employers; and (5) is ultimately in the
best interests of both employees and employers.

VIL. Magnitude of the Drug Abuse in the Workplace Problem

‘SmithKline Beecham announced on April 7, 1998 the results of its annual "index" of drug-
testing results.'° It found a "positive" rate of 5 percent on nearly 5 million drug tests of US.
employees and job applicants. One-in-twenty Americans, knowing they were subject to testing, still

"© SmithKline Beecham Press Release: "Workplace Drug Test Positives Decline By Nearly 14%."
Collegeville, Pennsylvania. April 7, 1998.


23

1935. ‘That is one of the most important dates in the history of
addiction.

The 12-step programs use the wisdom gained from six decades of
saving lives from addiction to alcohol and other drugs. These are
not religious programs, but they have an important spiritual basis.
The bedrock of the values of the 12-step programs is honesty, the
potent antidote for addictive thinking.

Among the most powerful anti-addiction efforts in America
today are the Driving While Intoxicated (DWI) programs which
intervene in no-nonsense ways in the lives of about one and a half
million Americas a year. DWI programs contribute greatly to the
safety of our highways and to the recovery of hundreds of thousands
ef alcoholics. These low-cost state and local law enforcement
efforts are systematically linked to the 12-step programs, as are
most contemporary drug courts. These are two good models for how
to use the 12-step programs in real demand reduction.

In conclusion, I call your attention to my many published
papers and two books which review most of these issues in greater
detail than i can pursue today. In addition to The Selfish Brain:
Learning From Addiction mentioned earlier, I wrote A Bridge to
Recovery--An Introduction to 12-Step Programs with John P.
McGovern, M.D., a widely honored physician and a great leader in
our nation's efforts to prevent and treat addiction. I have
written extensively about drug testing in general and about hair

testing in particular, including a paper for Medical Review

12


144

their cut-off. Likewise, in an early Navy study conducted by a commercial laboratory, only 23%
of the Navy individuals in drug rehabiitation were detected as positive by hair testing for
cocaine, These studies are not alone. Henderson, Harkey, and Jones have administered
single doses of labeled cocaine to addicts. In only 4 out of 26 cases the levels were above
commercial positive cut-off levels. These 4 positives were non-Caucasians. Baumgartner has
estimated that one would need to ingest at least 264 mg/month of cocaine to be positive by hair
analysis. Thus, recreational drug use of a few times per week or per month will likely be

undetectable, especially for certain hair types.

False accusation of drug use due to passive exposure:
We devoted considerable effort in the late 1980s to establish the mechanism of drug
incorporation into hair. We proposed that some or all of the drugs in hair originated from sweat.
The proportion of drugs coming from sweat has great importance because drugs may be in
sweat for two reasons: (1) A drug user may ingest drugs and the drugs appear in sweat, or (2)
‘Anon-drug using individual may come in contact with sufficient quantities of drugs and
contaminate his/her sweat. The contaminated sweat then leads to being falsely accused of
being a drug user by a hair test some days after the contamination event. We conducted many
hundreds of laboratory experiments that showed that drugs are absorbed into hair from dilute

solutions in as little as five minutes and once present will not completely wash out. These

experiments were so successful that many laboratories now prepare hair standards by similar
procedures - hair standards that for all intents and purposes are indistinguishable from the hair
of real drug users. An analogy for hair may be a concrete block wall - solid looking but

permeable to water as any one with a leaking basement may attest.


90

Mr. DEBERNARDO. The average alcoholics die 12 years—well, 1
think health and life is more important than the job. Now, frankly,
one of the very good things about corporate America and its pro-

‘ams is employee assistance programs. The lowest recidivism rate
for patients in treatment is in company-referred patients in EAPs
and treatment. So you have the best shot of straightening out your
life if your company’s referred you. Typically, it includes the prom-
ise of continued employment, of continued salary while you’re on
the treatment program. There’s confidentiality. You’re supported by
coworkers who have similar problems and there’s family counsel-
ing, as well. What corporate America does in this regard I think
is very responsible.

Dr. LAPPE. Can I also add that the Americans With Disabilities
Act protects rehabilitated drug users from discrimination. We have
that.

Mr. CuMMINGS. All right. Thank you very much.

Mr. DEBERNARDO. You know, Mr. Cummings, if I could just make
one additional comment. There is what’s called the tough love pol-
icy. At some point, you have to enforce your policy. People can’t
have free rides.

Mr. CumMINGS. Oh, I agree.

Mr. DEBERNARDO. So in that regard, loss of a job for somebody
who’s got a chronic drug abuse problem and refuses treatment or
refuses to cooperate in treatment or straighten themselves out—I
mean, that’s the appropriate course.

Mr. CuMmMINGs. Mr. Chairman, just one comment. You know,
when I was in the Maryland legislature, I was in charge of work-
men’s compensation; I was the top person in the House. One of the
things that I was trying to put forth was something that you all
said about the escalating consequences. People didn’t seem to get
it then. They seem to be getting it now since I left. But because
that just made sense to me. You don’t just kick a guy out—or a
woman out—from the very beginning. You try to figure out ways
that if they do, you give them an incentive for treatment. Hope-
fully, they'll do it and there won’t be any negative consequences;
there'll be positive consequences. I think that goes along with what
you were just saying to some degree.

Thank you all.

Mr. DEBERNARDO. ed.

Mr. Barr [presiding]. The gentleman from Florida, Mr. Mica.

Mr. Mica. Thank you, Mr. Chairman. Mr. Chairman, since we
don’t have too much time, I’m going to yield some of my time to
my colleague. I heard the talk today about the need to go more to
mandatory, rather than voluntary testing. Is that correct? I see, do
you support that, Dr. DuPont?

Dr. DUPONT. Yes, we do.

Mr. Mica. Dr. Macdonald? I think you spoke to that——

Dr. MACDONALD. I’m not sure exactly what you mean by manda-
tory, but random testing——

Mr. Mica. Well, in my mind, it is a condition of —

Dr. MACDONALD. Pre-employment testing in many people’s minds
is an intelligence test. If you can’t stay off the drugs for 2 or 3
days, you're either awfully stupid or awfully hooked.


172

National Drug Court Institute Review 70

nipulated and tested in drug court settings by future in-
vestigators. Researchers could employ focus groups to
assess the impression of the judge’s actions on partici-
pants and, ultimately, correlate this with outcome. The
ideal set-up for comparison evaluations would be a stable
drug court treatment program with an explicit sanction
algorithm overseen either by judges who rotate or by
more than one judge simultaneously presiding over status
and sanctions hearing. Though the “drug court model”
does create concerns that some judges may attempt to act
as therapists, the seemingly extraordinary potential of this
model, warrants its continued development and study.

REFERENCES

1. Anglin, Douglas, Longshore, Douglas, Tumer, Su-
san, McBride, Duane, Inciardi, James and Michael
Prendergast. “Studies of the Functioning Effec-
tiveness of Treatment Alternatives to Street Crime
(TASC).” U.C.L.A. Drug Abuse Research Center
1996.

2. Cooper, Caroline S. “Drug Court Survey Report:
Executive Summary.” Office of Justice Programs,

3. National Drug Court Institute Judicial Advisory
Meeting. “In your own opinion, what are the six
most important characteristics of an effective drug
court judge, in order of importance?,” Survey.
February 28 — March 1, 1998.

4. Drug Court Standards Committee, National Asso-
ciation of Drug Court Professionals, “Defining
Drug Courts: the Key Components.” Office of
Justice Programs, U.S. Department of Justice, Na-
tional Institute of Justice, Washington, D.C., Janu-
ary 1997.


44

Alternatively, the employer can choose to assume the test reflects the use of an illicit drug

— and risk legal action if an employee successfully proves that conclusion wrong.

Chain-of-custody, GC/MS confirmatory tests, and the use of an MRO are all elements of
a responsible drug-free workplace program which protects the employer from legal
liability, protects the employee from erroneous test results, prevents inappropriate

adverse employment action, and protects the integrity and effectiveness of the drug-

testing process.

Remarkably, most states do not require employers to utilize chain-of-custody procedures,
to ensure that initial positive tests are confirmed using GC/MS, or to utilize an MRO as
part of the confirmation process.

Moreover, for employers not testing pursuant to DOT or other federal requirements, there
is no federal law either encouraging or requiring employers to follow these safeguards.
‘As a result, employers may choose not to utilize any of these highly appropriate
safeguards in their drug-testing programs.

‘A number of states have, however, adopted legislation either encouraging or requiring

employers to maintain appropriate chain-of-custody procedures, to confirm all initial
positive tests by GC/MS, and to use MROs. These state laws, while appropriate, often

12


85

Pongress. Sir, as I articulated in the memo, yes, I think there are
legal concerns with progressing in that direction. I am a very
strong supporter of drug testing and I would like to see drug test-
ing here on Capitol Hill. I think there are a number of scenarios
by which drug testing is appropriate and would be | ly defen-
sible. But I don’t believe that suspicionless testing of Members of
Congress would withstand legal challenge.

Mr. BARRETT. Do you draw the—and I understand where you
would be a strong supporter of testing here on Capitol Hill and
that there are ways that it could be done. Are there ways it could
be done for Members?

Mr. DEBERNARDO. You know—~

Mr. BARRETT. When you say there are ways it can be done, are
you referring to employees——

Mr. DEBERNARDO. Yes. Staff versus Members. In terms of Mem-
bers, I would think that the conditions upon which drug testing
would be able to withstand legal challenge would be if there was
suspicion-based testing. So if there was a for-cause or a reasonable
basis, or if there was an identified drug problem among Members
of Congress, so there was a justification. That was one thing that
the Supreme Court made clear that in the Miller v. Zoeller case:
There was no basis to assume that candidates for a political of-
fice—there was no identified problem. This was not addressing a
known problem so, therefore, it really was a baseless basis to have
testing. If, in fact, we identified that Members of Congress had a
significant ratio of drug problems—rate of drug problems—or if
there were other interests; if there were security threats; or some
Members of Congress were carrying firearms onto the floor; or
there were threats of active violence by a Member of Congress, him
or herself, that would be a different situation, but, obviously,
there’s none of that.

Mr. BarreETT. And you believe that—if I may, Mr. Chairman, just
one quick comment—you believe that the national security excep-
tion that was created in the D.C. circuit case, you think that would
be adequate to cover the staff, or where do you see the constitu-
tionality of the staff issue come in?

Mr. DEBERNARDO. Sure, I think there’s a strong basis to test ele-
ments of the staff on Capitol Hill. Certainly security guards who
carry firearms—that’s a no-brainer; that’s going to very clear.
People who are in safety-sensitive positions who are operating—
there’s a limited number of people operating vehicles; certainly that
would be justifiable. I think staffers who have positions that affect
national security or criminal justice law enforcement, those in-
volved in finances and certain offices here, security people here—
arguably as Representative Solomon said—I have worked closely
with Representative Solomon in the past and have nothing but
praise for his efforts in this regard. But as he pointed out, those
with access to the House floor, that would be an example. In the
case that he referred to I think is a basis, and certainly that’s dis-
cussed in our memo. Those who have access to the House floor
would be analogous to those who have access to the President and
the executive branch and have passes for the Old Executive Office

uilding.

Mr. BARRETT. OK, thank you.


176

drugs to individuals, you can detect them in the patch. That if you
have large clinical populations, such as detained parolees in a large
Statewide program, determine its effectiveness. And it can detect
three times as many positives as urine.

Mr. Mica. Is the government using it?

Mr. ForTNER. Yes, sir. It is cleared under the administrative of-
fice of the U.S. courts, all 94 districts have access and are using
it.

Mr. Mica. Are they using it?

Mr. ForTNER. Yes, sir, they are. I have testified in eight cases
across the country, Federal probation parole pretrial in which those
were the results used to take action against those detainees. Now,
certainly, as evident from what the subcommittee has heard today,
hair testing, while it offers some very promising opportunities, still
has a number of questions that, because it hasn’t gone through the
same scrutiny and FDA review, scientific advisory board-type ap-
proach, leads it to interpretation from various individuals. And 1
would certainly suggest that that would indicate additional re-
search and studies going forward.

Mr. Mica. See you’re—now you're getting into it, too. Dr.
Kidwell.

Mr. ForTNER. Well, but, commercially, I don’t know that it’s an
issue. With the sweat patch, PharmChem has marketing and dis-
tribution rights, but there are many labs across the country that
can do that analysis.

Mr. Mica. Dr. Kidwell, what’s the Navy using, primarily?

Dr. KIDWELL. Only urine.

Mr. Mica. And you haven’t used either of the others?

Dr. KIDWELL. We've looked at them scientifically.

Mr. Mica. Are they as effective?

Dr. KIDWELL. Effective is defined as how? The trouble——
yr. Mica. Can hair give me a 3-month versus a 3-day? Or is
that——

Dr. KIDWELL. It has been alleged to do that, yes.

Mr. Mica. And his patch, have you not had any experience with
it?

Dr. KIDWELL. I have looked at it, but I haven’t had extensive-———

Mr. Mica. Do you put this out for bid? I mean, some—the drug
testing?

Dr. KIDWELL. You mean, how is urine testing?

Mr. Mica. Urine—yes, how—the urine analysis, you're doing it
internally?

Dr. KIDWELL. Oh, I’m not the one who's doing it. The Navy ——

Mr. Mica. No, I mean the Navy. I'm talking about the Navy.

Dr. KIDWELL. Oh. The Navy has three drug testing laboratories
doing urine. One in Great Lakes, near Chicago; one in San Diego;
and one in Jacksonville, FL.

Mr. Mica. Internal or commercial?

Dr. KIDWELL. Internal but I believe there is one commercial lab-
oratory also testing for the Navy.

Mr. Mica. Well, my time’s expired, but I’d like to know more
about the effectiveness of these tests. We’ve got more hearings to
come up and then the cost and implementation effect and what re-


62

IX. van of the Privats tor we lace Act

The Institute strongly believes that the goals of achieving drug-free workplaces and ensuring
accuracy and faimess in workplace drug-testing programs would both be effectively served by
enactment of legislation embracing the concepts of the legislation endorsed by the President's
Commission on Model State Drug Laws and the Institute, and enacted into law in Alaska, Arizona,

Idaho, lowa, and Utah.

This approach has major advantages. The Private-Sector Drug-Free Workplace Act would
expressly permit private-sector employers to drug and alcohol test any of their employees and

prospective employees, provided specific accuracy and faimess standards are met.

‘These standards would require, among other things: (1) a written policy that is distributed to
employees; (2) employer payment for the tests and, for employees, wages for the time in which the
test is administered; (3) a second (or "confirmatory" test (using a different chemical process than
the first test) prior to any employer action; (4) use of certified laboratories for confirmation tests; (5)
maintenance of confidentiality to preserve employees' privacy; (6) safeguards in the collection,
labeling, storage, and transportation of samples; and (7) the use of Medical Review Officers to
confirm all drug-test “positives” before any adverse employment action is taken, including denial of

employment.


86

Mr. Hastert. I thank the gentleman. The gentleman from Geor-
gia, Mr. Barr.

Mr. Barr. Thank you, Mr. Chairman. I don’t quite understand,
Mr. deBernardo, this access to the House floor. I mean, either—it
seems to me either drug testing is appropriate for congressional
employees and Members or it isn’t. What is the distinction? What
additional danger—if there is a danger—as opposed to if you walk
on the House floor, as opposed to walking into a Member's office,
passing a Member in the hallway, the whole range of both issues,
people with which every—virtually every staffer and Member up

ere comes in contact with?

Mr. DEBERNARDO. Sir, the idea, I think, is that there are certain
areas on Capitol Hill where the risk is magnified. So, the fact that
the—

Mr. BARR. Wouldn’t it be magnified in a Member’s office more so
than on the floor?

Mr. DEBERNARDO. Well, on the floor, you know, you could have
400 Members of Congress together at once.

Mr. Barr. Not likely, but—{laughter.] It’s just I’m concerned——

Mr. DEBERNARDO. Certainly you can have—-

Mr. Barr [continuing]. To me, it’s sort of rather arbitrary, to say
the least. I’d like to explore, though, for a moment the broader
issue of drug testing—of random drug testing of Federal em: loves
and congressional employees. I know that sort of theory te ind
those who argue against it is that it’s a fourth amendment intru-
sion because inherently it’s the Government that’s doing the testing
as the employer. Are there not, though—what would be your view
on looking at this, as I know you have, more on a contractual basis
or on an implied consent basis? People don’t have a right to a Gov-
ernment job. Therefore, as a condition of that similar to people who
don’t have a right to be licensed to drive when that is a privilege
similar to employment. Why not look at this—if our goal is to help
reduce, do something to reduce the use of mind-altering drugs in
this country, something which I consider the administration has
basically abrogated it at this point, but if we in the Congress are
trying to do something about that, would not random drug testing
of Federal employees be an important part of that? We tried that,
I guess, back in the 1980’s and it seemed to have some impact.

at being the case, would your advice to the Congress be for us
to be aggressive and proactive and imaginative, some legisla-
tion, and you know, if those that think that Federal employees
have a right to use drugs, let them challenge it in the courts. But
let’s tee this up and move it forward. Would you see any reason not
to do that?

Mr. DEBERNARDO. I do see a reason not to do that. I’m managing
partner of the Washington office for Littler Mendelson—it’s the
largest employment law firm in the country. We advise many,
many employers on employment issues, more than anybody in the
country, and many on the drug prevention issue. So if Mobil or
Georgia Pacific or IBM come to me, they want to know what they
can do and what is the most legally defensible way of doing it.

The downside risk is, if there were implemented on Capitol Hill
a drug-testing program, there undoubtedly will be a legal challenge
to that. I have no questions that there are Members of Congress,


121

1. Less Intrusive.

The sweat collection process generally is perceived to be less invasive than
collection of urine samples. For example, in studies of sweat patches used on
individuals’ upper arms, no effort was made to ensure that same-sex laboratory
personnel applied or removed the patch. Nevertheless, no participant objected to
having members of the opposite sex perform these procedures.

2. Longer Detection Period

Unne testing typically can detect only that drug use which has occurred within
the 12-to-72 hours previous to specimen collection. Ip. contrast, a sweat patch worn
for up to a week is capable of detecting drugs of abuse used just before and during
that entire time period. Therefore, the window of detection can be considerably longer
for the sweat patch than is the window for urine testing.

This extended period improves detection. In a study of the patch conducted in
a prison setting (the Michigan Department of Corrections study, which I discuss in
greater detail later in this testimony), the patch was 39% more effective at detecting
drug use than was urine testing, even though the urine testing was conducted
roughly three times as often as was sweat-patch testing.

3. More Precise Test Results.

The molecules of the actual "parent" drug, as well as the drug's metabolites,
can be collected and identified in sweat. Urine tests, by contrast, typically detect only
a drug's metabolites. The detection of the parent drug is particularly useful in


124

lower because of the limited amount of fluid available for testing. Urine samples
collected two days before the application of the sweat patch, during patch wear, and
two days after the patch was removed were correlated to the patch's results for
analysis.

The results of the study were instructive: the sweat patch detected 39 percent
more drug users than did urine testing, even when the data was not adjusted for the
fact that almost three times the number of urine specimens were collected. In total,
140 patches from 95 subjects were screened and confirmed positive for drug use,
representing a 9 percent positive rate. By contrast, only 104 urine specimens from 69
subjects were confirmed positive, representing a 6.5 percent positive rate.

The patch detected more than four times as many cocaine users than were
detected through urine testing. A total of 5.8 percent of the subjects tested with the
patch were positive for cocaine, while 1.4 percent of the subjects’ urine specimens
were positive for cocaine. While the patch detected about the same number of opiate
users as urine testing, the patch test provided confirmation of heroin use by more
than 60 percent of the positive subjects. Two patches were positive for
amphetamines; no urine specimens were positive for amphetamines.

Finally, while patch testing was three times less effective in detecting
marijuana use in the program, the test technology for THC (the psychoactive
ingredient in marijuana) detection has since been significantly modified to

compensate based on analysis of the data.

Ue


31

Mr. Hastert. Thank you very much, Dr. Macdonald. Appreciate
your testimony and we'll have some questions for you in a little bit.

Dr. Lappe—is that right?

Dr. Lappe. Lappe, that’s correct.

Mr. HasTerT. Thank you for being with us today. Please proceed
with your testimony.

Dr. LAPPE. Good morning, Chairman Hastert and members of the
subcommittee. My name is Murray Lappe, and I’m the medical di-
rector of National Medical Review Offices in Los Angeles, a drug-
testing company.

Td like to say that drugs, being a very, very powerful substance,
have not found countermeasures in our society at-large nor in the
family. But the workplace has found countermeasures to counter-
act, through drug testing, the use of drugs in the workplace. Drug
testing is a powerful tool. It has been successful in the private sec-
tor to detect drug use accurately and to deter drug use through the
penalties of company policies for the use of drugs while employed.

There are three essential components of a drug testing program:
First, a sample must be properly collected, legally defensible; sec-
ond, the sample must be analyzed properly; third, the employee,
subject to testing, must have an opportunity in privacy and con-
fidentiality to discuss a positive result with a neutral third-party

rior to that information being released back to their employer.
at private, or that neutral third-party, is called a medical review
officer in workplace jargon. That model was created by the Federal
programs, and in particular, the Department of Transportation
mandate for drug testing in the transportation workplace.

So that every time a laboratory detects the presence of drugs in
a sample, that that information would be transmitted to a neutral
party who is skilled and qualified as a physician in the area of sub-
stance abuse and drug testing. The individual has an opportunity
to discuss in private their medical history, the legal therapeutic
drugs that they’re taking, possibly foods or over-the-counter sub-
stances that might have interfered with the test. The physician has
the authority to overturn the laboratory positive result and return
a passing remark, or negative result, to the workplace to protect
that individual’s right to privacy. So no adverse employment action
would ever be taken in the face of an existing medical condition,
protecting the individual’s rights to privacy under the Americans

‘ith Disabilities Act and also protecting the employer from liabil-
ity.

The National Medical Review applauds this subcommittee in its
effort to identify and support the most accurate and technically su-
perior drug-free workplace programs and commends to the commit-
tee’s attention the model legislation by the Institute for a Drug-
Free Workplace.

Td like to add that in the private sector, 40 million drug tests
were done last year. We know that there is a migratory effect, that
is, workers who use drugs seek employment in workplaces that
don’t test for drugs. The positive rate is substantially higher in the
smaller employers who fear the complexity of the laws and the
legal liability in doing drug testing. This model legislation, which
is voluntary, would encourage employers with drug-free workplace
programs to utilize state-of-the-art testing methods that would pro-


156

tion or complaint about what we are doing. They themselves actu-
ally run the entire program now.

Mr. Barr. I think that’s—with all due respect to everybody
else—probably the most important perspective that we can have on
this. And I appreciate it.

Yd asked you earlier about the retinal eye exam which, from the
standpoint of the intrusiveness of the different types of detection
procedures that we’re talking about here, anything from a blood
sample to a urine sample to a hair sample to a retinal eye exam,
the retinal eye exam would be the least intrusive, it would seem.
Given that, if I could turn to the two doctors anchoring the ends
of our panel here, beginning with you, Dr. Mieczkowski, are you fa-
miliar with the retinal eye exam that Mr. Green talked briefly
about and whether it has some applicability as a very, very unob-
trusive testing mechanism?

Mr. MIECZKOWSKI. No, I’m not, Mr.—I mean, I’m aware it exists
and I’ve heard of it, but I really have no expertise or knowledge
T could show that you wanted.

Mr. Barr. Thank you. Dr. Kidwell, are you familiar with it? Is
it something that is really being looked at in terms of drug testing?

Dr. KIDWELL. No, again, I’m aware it exists, but that’s all.

Mr. Barr. OK. Hopefully we'll see more on that.

Mr. GREEN. Mr. Chairman, if I could just add one point is that,
you know, the retinal eye scan is being used at the Federal level.
I believe at the FAA and it also is being used in the military and
through your rail system, from the people that I am associating
with.

Mr. Bark. Is it that it would not—would it indicate directly drug
usage or the symptoms of possible drug——

Mr. GREEN. All it is, it would provide a symptom, whether it be
drugs or alcohol, as was communicated here. Or it could be an
issue of sleep deprivation. What it is measuring is job performance
and if you are not up to performing a given task, whether it be
working around a piece of heavy equipment or driving a tandem
dump truck around the Washington Beltway, you should not be in
that position. And so it does not communicate whether you are
doing drugs, alcohol, or sleep deprived. It just says you are not fit
for duty.

Mr. Barr. Do the results depend on whether you have blue eyes
or green eyes or brown eyes?

Mr. GREEN. No, sir. There is no racial bias associated with it.

Mr. Barr. Maybe something that really has a great deal more
hope if we can sort of get something that is objective like that and
nonintrusive.

Mr. GREEN. I’ve used it now for 4¥2, almost 5 years and it is a
good screening mechanism. And I offer you to go on out to my office
and see it in use.

Mr. Barr. Well, we might do that and if you have some material
on that, it would be very helpful for us to look at if you could sub-
mit that.

Mr. GREEN. I will be glad to get that information for you, sir.

[The information referred to follows:]


‘Mr. Chairman,

Thank you for allowing me the opportunity to testify before you today about drug testing
in the workplace. I also appreciate the work you put into the bill we introduced yesterday
requiring drug testing of Members of Congress and staff.

Those who ridiculed the idea of drug testing Members and staff should take a close look
at the Stigile decision by the U.S Court of Appeals for the District of Columbia. This
upheld the decision to require employees with access to the Old Executive Building to
submit to random drug tests, regardless of the nature of their work. In other words, it
is virtually certain that the courts will uphold the provision in our bill requiring testing of
all legislative staff in the personal offices, leadership staff and most committee staff. Yet,
we are also very serious about testing Members of Congress. How can we justify testing
our legislative staff and not subject ourselves to the same requirement?

I know there are Constitutional concerns and that this may end up before the Supreme
Court and I do not believe we have a serious drug problem in the Congress. What I do
believe is that we have the responsibility and the duty to set an example for the rest of the
federal government - which is the largest employer in the United States - and the rest the
country.

legal drug use is the single most serious problem we face as a nation. It is the common
denominator in the problems facing America! Illegal drugs are the biggest problem facing
our education system... with drug use on the rise by eighth graders and heroin use on the
rise by college students. legal drugs drive our health care costs through the roof... with
emergency rooms packed with the victims of drug related shootings and drug overdoses.

In addition, thousands of babies are born each year addicted to illegal drugs!!!

legal drug use is also the reason behind most of the crime and violence in this country.
Over 50% of all men arrested for murder test positive for illicit drugs at the time of arrest.
Drugs are a factor in half of all family violence, and most of this violence is directed
against women and children!

‘Iegal drugs hurt our educational and health systems and create most of the violence in
this country... but what about its impact on our economy and the workplace? We all
know that illegal drug use causes countless billions of dollars of lost productivity to our
‘economy each year but let me be more specific by noting the results of a study conducted
by the U.S.Postal Service. The study concluded that persons who test positive for drug
use were 70% more likely to be involuntarily terminated over a three year period. The
study also found that people testing positive for drugs were absent from their jobs 12% of
the time while negative testers were absent 6% of the time.

The typical drug abusing worker:
-is late for work 300% more often than the non-abusing worker


139

Works Cited and Consulted

1. Center for Substance Abuse Treatment, National Treatment Improvement Evaluation Study,
September 1996.

2. State of California Department of Alcohol and Drug Programs, April 1994: Evaluating
Recovery Services: The California Drug and Alcohol Treatment Assement.

3. GAO Report to Congressional Requesters, Health, Education, and Human Services Division,
March 1998: Drug Abuse: Research Show Treatment Is Effective; but Benefits May be
Overstated.

4, Harwood, Henrik J et al., Lewin-VHI Inc., Healthcare Reform and Substance Abuse
Treatment: The Cost of Financing Under Alternative Approaches, 1994, p. 13.

5. Institute of Health Policy, Brandeis University, Substance Abuse: The Nation's One Health
Problem, 1993.

6. Institute of Medicine: Managing Managed Care, Quality Improvement in Behavioral Health,
Volume 1, Prepublication Copy, 1996, p. 3-8.

7. Legal Action Center, December 29, 1997: Parity Talking Points.
8. Legal Action Center, Drug Testing in Connection with Welfare Reform.

9. Let's Look at the Evidence: A Compilation of Key Findings from Recent Treatment
Effectiveness Studies; Addiction & Recovery. March 1992, p. 19-20.

Cited:

Filstead, William J, Two-Year Treatment Outcome; Study by Parkside Medical Services
Corporation. August 1991.

Hoffman, Norman G, Treatment Outcomes from Abstinence-based Programs; presented
at 36* Intemational Institute of the Prevention and Treatment of Alcoholism, Stockholm,
Sweden. June 1991.

Holder HD, Blose JG, Alcoholism Treatment and Total Health Care Utilization and
Costs, JAMA. 1986, 256: p 1456-60.

NIDA research review paper, January 1988: Effectiveness of Drug Abuse Treatment.

NIDA-supported longitudinal study, 1989: Treatment Outcome Prospective Stud(TOPS).

Tabbush, Victor, The Effectiveness and Efficiency of Publicly Funded Drug Abuse
Treatment and Prevention Programs in California: A Bencfit-Cost Analysis, UCLA Graduate
‘School of Management. March 1986.

Walsh DC, Hingson RW, Merrigan DM, et al, A Randomized Trial of Treatment Options

{for Alcohol Abusing Workers; New England Journal of Medicine. 1991, 325: p775-782.

10. McLellan, A Thomas, Is Drug Dependance a Treatable Medical Illness, March 1998.


147

Selected References:

"Analysis of Phencyclidine and Cocaine in Human Hair by Tandem Mass Spectrometry", D.A. Kidwell,
Joumal of Forensic Science, 38 272-284(1993)

“External Contamination of Hair by Drugs of Abuse; An issue in Forensic Interpretation, D.L. Blank and
D.A. Kidwell, Forensic Science Intemational 63 145-156(1993).

“Comments on Sample Preparation Techniques", D.A. Kidwell and D.L. Blank, Forensic Science
Intemational 63 137-143(1993). (invited commentary)

"Testing for Drug Use via Hair Analysis", D.A. Kidwell, European Scientific Notes Information Bulletin, 93-
08 514-520 (October 1993)

"Mechanisms of incorporation of Drugs into Hair and the Interpretation of Hair Analysis Data’, D.A. Kidwell
and D.L. Blank, In: E.J. Cone, M.J. Welch, and M.B. Grigson Babecki, eds., Hair Testing for Drugs of
Abuse: International Workshop on Standards and Technology, National institutes of Health Publ. #95-
3727, Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 1995, pp. 19-90.
(tefereed book chapter)

“Decontamination Procedures for Drugs of Abuse in Hair. Are They Sufficient?", D.L. Blank and D.A.
Kidwell, Forensic Science International, 70 13-38(1995).

“Drugs in Hair: How Do They Get There?", D.A. Kidwell and D.L. Blank, in: Cone, E.J., ed. Proceedings
of the 2nd intemational Conference on Hair Testing for Drugs of Abuse. National institute on Drug Abuse
Research. DHHS Pub. No. Washington, DC: Supt. Docs., U.S. Govt. Print. Off., in press. (refereed book
chapter)

‘Cocaine in hair, saliva, skin swabs, and urine of cocaine users childrens, F.P. Smith and D.A. Kidwell,
Forensic Science International, 83 179-189{1996).

&Cocaine Detection in a University Population by Hair Analysis and Skin Swab Testing, D.A. Kidwell,
MA. Blanco, and F.P. Smith, Forensic Science International, 84 75- 86(1997).

‘tEnvironmental Exposure - The Stumbling Block of Hair Testingss, DL. Blank and D.A. Kidwell, in Drug
Testing in Hair, Pascal Kintz, Ed., CRC Press, Boca Raton, FL, 1996, pp. 17-68.

& Monitoring and Deterring Drug Uses, D.A. Kidwell, J.C. Holland, M.A. Blanco, ONDCP/CTAG
Proceedings August 1997,17:35-44.


153

Dr. KIDWELL. This is a further study by Ed Cone at the NIDA
Addiction Research Center which has not been published. So it’s
more like a private communication.

Mr. SoubDER. At some point I'd like Dr. Mieczkowski’s comments
on that, if you’re familiar. Thanks.

Mr. Barr. I thank the gentleman from Indiana. The gentleman
from Florida, Mr. Mica’s recognized for 5 minutes.

Mr. Mica. Thank you, Mr. Chairman. A couple of questions, if I
may. Ms. Kibben. I guess in your testimony or you have also
devocated by your association, you want—you would like alcohol in-
cluded in any kind of testing program?

Ms. KIBBEN. Well, we do believe that alcohol is the most widely
used drug problem in America with the condition of addiction that
we're considering. And we know that alcohol is a hard one to test

for.

Mr. Mica. It’s also a legal substance. What would be your posi-
tion if we, as a Congress, said that anyone who receives Federal
compensation or a Federal employee must first submit to a drug
test and would not be eligible for employment or compensation if
they tested positive?

Ms. KIBBEN. And we're talking, now, testing positive for illegal,
illicit—

Mr. Mica. Yes; right.

Ms. KiBBEN. OK. You know, I believe that that is a deterrent and
I think that’s a step in the right direction. I don’t have anything

ainst, for pre-employment or post-employment condition of em-
ployment, the use of drug testing. I think drug testing can be a
very effective tool to intervene. My only point of—well, perhaps not
my only point my strongest point of contention with it is when it’s
independent of any treatment services, or independent from any-
thing other than a way of using it in the whole scope of providing
services.

As, I think it was Dr. Macdonald, earlier said that it can be an
effective way to raise the bottom, it also can be up to the employee
about whether they apply for the job or whether they seek treat-
ment, whatever it is. But the absolute concrete evidence about
whether addiction—I mean, whether an illicit substance has been
used can be a very helpful tool.

Mr. Mica. The other position I guess you’ve taken is that—or
your association has taken—that if you’re employed and you are
subject to either mandatory or random testing, that it not be used
in a punitive fashion that there be some treatment. Is that correct?

Ms. KIBBEN. Yes; that’s correct.

Mr. Mica. Do you think that’s the obligation of public and pri-
vate employers?

Ms. KIBBEN. Well, I can tell you that what I’ve seen, that works
with the clients I’ve worked with—and I’m thinking particularly of
physicians and nurses that have a random drug testing as a part
of their ongoing continuing care plan—it is by far one of the best
measures to get them back into recovery, if they're, you know,
heading toward relapse.

I also find that most of them, also, do not knock on my door and
say, oh, gee, it’s a nice day to get sober. I think I'll get help today.
And when they have a positive drug test that they have to answer


46

legally challenged. Such an exchange is appropriate and sound public policy, and we

commend the Committee for its attention to these worthwhile goals.

Conclusion

Thank you, Chairman Hastert and members of this Subcommittee, for inviting NMRO to
share its experiences with, and recommendations for, the very best and most appropriate
practices in workplace substance-abuse prevention. If you have any questions for me, £

would be happy to answer them.

14


6

is that they submit to a random drug test—random drug test, not
mandatory. That may or may not be constitutional.

But the third category would be all new hires as a condition of
employment, taking into consideration that perhaps, if they were
originally hired and it was a condition of employment, maybe that
would be an excuse for the Supreme Court to say it was unconsti-
tutional. So therefore, the third category would be new hires as a
condition of employment. I think, especially under some of the deci-
sions that have now come out of the big courts and the Supreme
Court, I think that would even be constitutional.

The fourth category would be, in other words, a request by the
supervisor for testing for drugs if there was a suspicion—you know,
probable cause.

Then fifth would be random drug testing of all security and safe-
ty. We know that’s already been upheld by the court, so that cer-
tainly would be upheld under this bill.

Finally, any employee who has access to the floor of Congress—
and you know that over in the old Administrative Office Building,
where members of the administration have access to that building
and to the White House, that’s already been found to be constitu-
tional. So we say any employee who has access to the floor of the
House. Now who is that? I have here Representative Ken Bentsen,
who just happens to appear on the list, but it would be 80 percent
of all of his employees, maybe even more, who would have access
to the floor of the Congress. If you flip over and you go to the Com-
mittee on Government Reform and Oversight, Mr. Chairman, it’s
almost everybody—in other words, at one time or another—the ma-
jority whip’s office, and all of the other minority and majority of-
fices. So in that sixth category, you would be talking about just

out all.

If we were to do this, we would certainly set the example. I know
some Members are going to argue and with all sincerity that Mem-
bers of Congress shouldn’t be because they are elected by the peo-
ple and they are different. I think the Georgia court, you know,
there was a problem there in their decision. But the truth is, we
can’t include our employees and then not include ourselves. I mean,
let’s include ourselves, and then if it’s challenged and if it goes to
the court, let’s let the court rule on all of these. Once we get that
ruling on these six categories, we'll know where we stand, but we
will have at least told the American people that we really want to
try to contribute and do something.

Because it doesn’t matter about all the interdiction you have; it
doesn’t matter about all the treatment; it doesn’t matter about all
the education—those things are terribly important. But society
itself has to say no and we need to go after those weekend rec-
reational drug users. How best to do it than we and our employees
who come from that type of society?

Having said that and taken too much of your time, I really ap-
preciate your letting me testify today, and I'd be glad to try to an-
swer any questions before I go back to a Rules meeting.

[The prepared statement of Hon. Jerry Solomon follows:]


40

false-positive test result. If a legitimate medical explanation is found and verified, the
MRO simply reports to the employer that the individual has passed the test.

The MRO also reviews each sample's chain-of-custody to ensure that the sample has

been handled properly from collection through to the final laboratory confirmation test.

By acting as a neutral third party, the MRO protects employees from being wrongly
accused of illegal or illicit drug use, while protecting employers from potential liability
associated with drug testing, and helps them comply with the Americans with Disabilities
Act (ADA), by eliminating their need to discuss sensitive medical issues directly with
employees, and by helping avoid adverse employment action based upon an employee's
legitimate medical treatment for a condition covered by the ADA.

Employers who utilize an MRO’s services therefore can take employment action with the
highest level of confidence that a positive test result is truly positive due to the illegal use
of one or more controlled substances. Moreover, employees who test positive are treated

with dignity and respect while the cause of the positive test is being investigated.

The use of MROs was first required federally by the Department of Health and Human
Services for federal workplace drug-testing programs, and subsequently by the U.S.
Department of Transportation as a necessary legal requirement for transportation-related
drug-testing programs. Currently, a number of states also have adopted laws that require
‘employers to utilize MROs for drug-testing programs. Unfortunately, however, many

states neither require an MRO, nor regulate workplace drug testing.


120

‘The patch is typically worn on the upper outer arm, or on the lower midriff. It
should be worn for a minimum of 24 hours to ensure that a adequate amount of sweat
is collected, but may be worn for a period of up to two weeks. The skin where the
patch is to be worn is cleaned with an alcohol wipe prior to application. Studies of the
patch in use indicate that the adhesive used in PharmChekTM is very well-tolerated; it
is very uncommon for individuals to have any skin sensitivity to the patch.

‘The patch is tamper-evident, and each patch is imprinted with a unique
number to aid in chain-of-custody and identification. After the patch is removed, the
absorbent pad is removed from the patch and sent to PharmChem Laboratories to be
tested for drugs of abuse. Clinical studies have shown that drugs and drug
metabolites on the pad are stable for days at room temperature and months in the
freezer, obviating the need for highly specialized and expensive packaging or
shipping.

Once the pad is received at PharmChem, any drugs present are washed from it
into a liquid extraction solvent. The liquid is then tested using immunoassays similar
to those used in testing urine samples. The liquid is tested for five specific drugs:
cocaine, opiates, amphetamines, PCP, and marijuana, Positive immunoassay results

are confirmed by gas chromatography/mass spectrometry (GC/MS)

Improvement Over Urine Testing for Drugs of Abuse
‘The PharmChekTM sweat patch provides several distinct advantages over urine

testing:


19

It is reasonable to expect that addicted people return
something for the treatment that they receive, including paying for
at least part of their own care and contributing community service
and documented periods of freedom from alcohol and other drug use
after treatment.

In the past two decades addiction treatment has become one of
the leading paths by which addicted people find their ways into
lifelong membership in the 12-step fellowships. Treatment is not
only a point of introduction to these fellowships, but it is also
a way for addicts and their families to understand and to begin to
use these fellowships.

Treatment needs active drug testing to work. Treatment cannot
work without a systematic incentive to get well and to stay well.
I invite the Subcommittee to look into the way Impaired Physicians
Programs work in every state in the union. They all rely on a
compassionate and tough use of drug testing and 12-step fellowships
with addiction treatment often being part of the mix. These
programs set the standard in terms of low recidivism.

5. ires ni t into all Ss a ife
to identify illegal drug use and to ensure that interventions are
conducted to bring it to a stop. Modern drug testing technology
provides a powerful basis for illegal drug use identification. The
experience of the U.S. military with drug testing linked to tough
consequences is an excellent model, as is the increasing use of
drug testing and Employee Assistance Programs (EAPs) in private

sector workplaces over the past decade. Other social institutions


14

supply reduction reduces the purity and raises the price of illegal
@rugs. It makes it harder and riskier to sell and to use illegal

drugs.
Today I will focus on seven points, each of which is developed

in The Selfish Braii

Learning From Addiction and in my other
writings, so I will state them here in summary form to encourage
vigorous and full discussion with the Subcommittee. These seven
points are part of a single, comprehensive view of the problem of
addiction as a uniquely modern, uniquely human, and terribly
serious problen.

1. Addiction is a life: wh. trac’
fro eated use ; It is characterized by
two principal features, continued use despite the manifest problems
generated by that use, and by dishonesty. Addiction to illegal
drugs is a biopsychosocial disorder with deep roots in all three
areas: biology, psychology, and the social environment.

The disease of addiction comes from the use of addicting
substances as these chemicals interact with the users! brains. No
use and addiction does not start. That is the central point of
prevention of addiction -- prevent use of addicting substances and
you prevent addiction. Drug use is a personal choice that has
important legal and moral dimensions.

I recognize that some people who may be attracted to my tough
approach to demand reduction will be disturbed by my use of the
word "disease" to describe addiction to illegal drugs. One reason

the disease concept is unpopular is that it implies that addicts


3

those that argue that Federal employees somehow are in a special
category. Even though they work for the public—are employed by
the public and in many instances perform very sensitive, unique
tasks—that somehow their employment by the public, rather than
hold them to a higher standard, entitles them to a lower standard,
that they have a right to use drugs and not be tested as those in
the private sector are.

The logic of that escapes me, although I’m sure some of the wit-
nesses today will explain to us why that is logical. But I do think
that we need to look at the reasons why we are running into this
problem and look for ways to get around it. Certainly the courts—
the Supreme Court—has not addressed this issue head-on and
hopefully it will. Hopefully, it will recognize that it certainly is in
the public interest to have its public employees subject to drug
tests the same way as persons in the private sector; that rather
than hold or entitle public employees to a lower standard and basi-
cally give them a free ride and hold private sector employees to a
higher standard that does provide a safer environment for the pub-
lic—that the court will agree with that.

I think that there are some parallels that can be drawn with re-
gard to other sectors where testing is appropriate, even though it

joes involve the Government. Rather than allow those who argue
on behalf of drug users and against drug testing by public employ-
ees to sway the day up here, I think that we ought to be creative
and work in the public interest, not especially on behalf of special
interests. For example, those who have interest to perform certain
type of tests and those tests may be considered more intrusive and,
therefore, they don’t—they’re not favored. I think that we ought to
be proactivists in this area and support the public interest in hav-
ing the public employees subject to random testing.

I think that this is an important step in it direction to air
these issues and I think develop a public record and, if necessary,
legislation to ensure that the public is protected. At least insofar
as the very minor intrusion, if one even considers it an intrusion,
the public employees should be subject to random drug testing to
determine whether or not they are violating the law. That we can,
through this hearing, develop the appropriate legislation if that is
necessary—although I don’t believe that it is. We ought to move
forward, Mr. Chairman. I appreciate these hearings and your con-
tinued work on its behalf.

Mr. HastTERT. I thank the gentleman for his statement. Any com-
ments from Mr. Mica?

Mr. Mica. Thank you, Mr. Chairman. I do want to commend you
on calling this hearing today and for, again, your leadership on this
entire issue of devastating effects of illegal drugs and narcotics in
our society, and particularly in our workplace. The statistics I’ve
read is that 70 percent of those who use illegal drugs are in fact
employed—some in the private sector and some in the public sec-
tor. It’s very important, I think, that we as Members of Congress
look at both the activity in the private sector and the public sector,
and what methods of drug testing are both cost effective and also
efficient for the taxpayers, but also can give us the best results and
a handle on this situation.


132
strong record, only one in four people who need treatment receive

it.

Given the red light, I’m going to skip to the end and say, in con-
clusion, a drug testing program must include an assessment and
treatment component. And we too are very strong proponents for
the pany issue that was referenced earlier by Representative
Souder. Ramstad’s bill will ensure adequate insurance coverage for
treatment for employees and improves the health, safety, and wel-
fare of America’s work force and their families. NAADAC is eager
to work with the subcommittee to develop policies that encourage
the provision for appropriate, professional and effective and safe
treatment of America’s workers.

Once again, thank you for inviting me and NAADAC. We look
forward to working with Chairman Hastert, Representative Bar-
rett, and the subcommittee on these important issues.

[The prepared statement of Ms. Kibben follows:]


110

At Chamberlain Contractors, we test on many levels; conditional employment
drug screen with physical, random drug screen for 10% of the entire employee
population monthly, at-fault accidents for both vehicular and Worker’s Comp. claims,
and for those individuals who are in safety sensitive positions. We also now use a
retinal eye scan to test the responsiveness of the pupil to light and motion.

If government is interested in developing a drug and alcohol testing program,
they can overcome the concerns relating to confidentiality.

It’s time for the government to become a leader instead of a follower in the
implementation of drug testing.

Small business owners/entrepreneurs are historically great enablers, enabling
negative behaviors to be reinforced by the persons they employ. At Chamberlain
Contractors, we oftentimes would get, “Do you have a minute?” or a given afternoon,
which would turn into a $1,000 loan to prevent the individual’s belongings being
turned out on the street because he couldn’t pay for in arrears rent. Of course, you
always want to help your fellow man. Unfortunately, by doing so, you provide the
fuel for the continuation of the negative behavior to occur. The following moming,
the individual would not show up to work. He would have paid his drug dealer or
purchased additional substances. He would, of course, have his belongings put out
on the street. He would be back again borrowing money to get a new apartment. His


69

recovering drug addict, drug abuser, alcoholic, recovering alcoholic, or alcohol abuser, or to the
reinstatement or rehiring of any employee in a sensitive position for whom an employer has
administered a drug or alcohol test consistent with this Act that has produced a confirmed "positive"
drug- or alcohol-test result.

Section 11. Employer protection from litigation — No cause of action is or shall be established
for any person against an employer who has established a policy and initiated a testing program in
accordance with this Title, for any of the following:

(A) Actions in good faith based on the results of a “positive” drug or alcohol test, or the refusal
of an employee or job applicant to submit to a drug test;

(B) Failure to test for drugs or alcohol, or failure to test for a specific drug or other controlled
substance;

(C) Failure to test for, or if tested for, failure to detect, any specific drug or éther substance, any
medical condition, or any mental, emotional, or psychological disorder or condition; or

(D) Termination or suspension of any substance-abuse prevention or testins, program or policy.
Section 12. Causes of action based on test results

(A) No cause of action is or shall be established for any person against an employer who has
established a program of drug or alcohol testing in accordance with this Act, unless the
employee's action was based on a “false positive” test result, and the employer knew or
clearly should have known that the result was in error, and ignored the true test result
because of reckless, malicious, or negligent disregard for the truth and/or the willful intent to
deceive or be deceived.

(B) In any claim, including a claim under this Title, where it is alleged that an employer's action
was based on a "false positive” test result:

(1) There is a rebuttable presumption that the test result was valid if the employer
complied with the provisions of this Title; and

(2) The employer is not liable for monetary damages if its reliance on a "false positive"
test result was reasonable and in good faith.

(C) There is no employer liability for any action taken related to a “false negative" drug or
alcohol test.

Section 13. Limits to defamation causes of action — No cause of action for defamation of
character, libel, slander, or damage to reputation is or shall be established for any person against an
employer who has established a program of drug or alcohol testing in accordance with this Title,
unless:

21


24

Officers (MROs) on the appropriate interpretation of hair test

results.

Thank you Mr. Chairman and members of the Subcommittee. I
welcome your comments and questions. I salute you for your
important efforts to chart a new course for our national drug
policy with a focus on the cutting edge issues in drug testing and

drug treatment.

13


143

Unresolved Issues in Hair Analysis for Drugs of Abuse
Summary of Research

For the past 13 years the Naval Research Laboratory has been evaluating hair analysis as an
adjunct to or replacement for urinalysis in detecting and deterring ilicit drug use. This
presentation summarizes some of the research findings that we and others have made in this
area. For more extensive discussions on our findings, | have attached leading references to the

written record to document the summaries that | am presenting today.

Early on in our research effort we uncovered a number of concems about hair testing that
called into question some proposed scientific hypothesis. These concems focused on three
broad areas: (1) Low use detection. Detection of a single use of a drug or a drug taken in
minute dosages, such as LSD. (2) Passive exposure. Being falsely accused of drug use for
merely working or living around drugs. (3) Racial bias. Not all hair absorbs and retains drugs

equally welt which can raise faimess issues in testing.

\ would like to delve into each of these three areas in more detail.

Low use detection:
‘One use of hair analysis is as an adjunct to urinalysis to assess if a urine positive was
accidental use or a one-time use. Alternatively, hair analysis could be used to refute a
urinalysis positive. Unfortunately, in both scenarios hair analysis would need to have the same
sensitivity as urinalysis in detection of single or low drug use. For our research, we have
monitored the hair of individuals in drug rehabilitation and have failed to detect cocaine in 58%

of the individuals at the positive levels where the commercial hair analysis laboratories make


10

STATEMENTS OF ROBERT L. DUPONT, PRESIDENT, INSTITUTE
FOR BEHAVIOR AND HEALTH; MURRAY LAPPE, MRO PRESI-
DENT, NATIONAL MEDICAL REVIEW OFFICES, INC.; IAN MAC-
DONALD, M.D., CHAIRMAN, EMPLOYEE HEALTH PROGRAMS;
AND MARK DEBERNARDO, ATTORNEY AND EXECUTIVE DI-
RECTOR, INSTITUTE FOR A DRUG-FREE WORKPLACE

Dr. DuPont. Thank you very much, Mr. Chairman. I’m delighted
to be able to submit formal testimony with some detail to it and
this opportunity to summarize three points.

The first—and most fundamental—is a redefinition of the con-
cept of demand reduction with a focus on socially imposed con-
sequences for drug users with the goal of discouraging drug use

nd maintaining a drug-free standard in this society. The single

eatest failure of our national drug policy has been our difficulty
focusing on the user and imposing consequences. These con-
sequences need not be draconian, but they need to be-stiff and seri-
ous and escalated for repeated offenses. This redefinition is not in
any way contrary to the goals of treatment or prevention, but is a
necessary precondition for treatment and prevention to work. Dr.
Macdonald is going to develop this concept in more detail. I want
to echo and support everything he says. He is a great leader in this
field. His vision is unique and tremendously valuable.

I want to underline the point that demand reduction is not sim-
ply conventional prevention and treatment. Demand reduction is
socially imposed consequences, drug testing in the workplace bein;
an outstanding example. Another outstanding example is the D'
program that is having a profound beneficial effect on highway
safety in this country. So that’s the first point.

The second point I want to make is that it’s very important that
hair testing be added to urine testing and, for that matter, sweat
testing be added as well, to increase the effectiveness of drug test-
ing. Hair has a tape recording of recent drug use. Hair is created
on the head about half an inch a month. So an 1¥2 inch piece of
hair has a 90-day record of drug use. It is extremely important,
particularly in preemployment testing in the workplace, that hair
testing be used.

Not only is the 90-day surveillance window important, but also
the resistance to deception. With urine testing, deception is a very
serious problem, particularly among the most serious drug users.
Also, the poppy seed problem in urine testing has made it virtually
ineffective at detecting heroin use. The new concern about hemp oil
and hemp products also threatens the use of urine testing for mari-
juana positives as well. Those problems don’t exist for hair testing
which also is less intrusive than urine testing.

I call your attention to two charts that are put up down here that
show that hair testing identifies far more positives than urine test-
ing in two settings. First, is the criminal justice system—the chart
on the right which shows that in juvenile arrestees, 8 percent were
urine positive and 57 percent were positive by hair tests. Second,
the left, is data from the private sector that shows that, there
again, there’s very substantial increase in positive tests with hair
testing. These increases in positive tests mean that the drug test
is not only identifying more drug use, but that the deterrence effect
of testing is very substantially increased. So it is very important


141

Mr. Barr. Thank you, Ms. Kibben.

Dr. Kidwell, if you would please summarize your statement and
it will be submitted into the record in full.

Dr. KIDWELL. Thank you, Mr. Chairman. It’s a privilege to speak
with you and the committee today.

For the past 13 years, the Naval Research Laboratory has been
evaluating hair analysis as an adjunct to a replacement for urine
analysis, detecting and deterring illicit drug use. This presentation
summarizes some of the research findings that we and others have
made in this area.

Early on in our research effort, we uncovered a number of con-
cerns about hair testing that called into question some proposed
scientific hypotheses. These concerns focused on three broad areas:
low-use detection, that is, detection of a single use of a drug or a
drug taken in minute dosages, such as LSD; passive exposure, that
is, being falsely accused of drug use for merely working or livin;
around drugs; and racial bias, that is that not all hair absorbs ‘and
retains drugs equally well, which can raise issues on fairness in

ting.

I would like to delve into each of these three areas in more de-
tail. The first area of concern is false accusation of drug use due
to passive exposure. We devoted considerable effort in the late
1980’s to establish the mechanism of drug incorporation into hair.
We pro that some or all of the drugs in hair originated from
sweat. The proportion of drugs coming from sweat has great impor.
tance because drugs may be in sweat for two reasons: one, a drug
user may ingest igs and the drugs appear in sweat or, two, a
non-drug-using individual may come in contact with sufficient
quantities of drugs to contaminate his or her sweat. The contami-
nated sweat then leads to being falsely accused of being a drug
user by a hair test some days after the contamination event.

We conducted many hundreds of laboratory experiments that
show that drugs are absorbed into hair from dilute solutions of
drugs in as little as 5 minutes and, once present, will not com-
pletely wash out. These experiments were so successful that many

ratories now prepare hair standards by similar procedures,
hair standards that, for all intents and purposes, are indistinguish-
able from the hair of real users. An analogy for hair may be
a concrete block wall, solid-looking, but permeable to the outside as
anyone with a leaking basement may attest.

two separate studies, we illustrated that passive exposure can
occur under realistic conditions by examining the hair of children
living with cocaine-using mothers. Our first study produced such
unexpected results that we repeated it with a secon group of sub-
jects. In both studies, the children had similar cocaine levels in
their hair as did the drug-using mothers. Furthermore, no cutoff
level could be proposed to differentiate the non-using children from
the drug-using mothers. An independent study by Louis, et al.,
found similar results. The children in an sed environment
show positive hair tests. Anecdotal evidence indicates that passive
exposure can occur in employment situations as well, especially
where drug exposure and sweating occur together.

The second area of concern that I want to amplify on is racial
bias or matrix bias. Through our laboratory experiments we quick-


29

of our present national strategy shows that many still believe that Elliot Ness can get the job done.

We have a demand strategy that appropriately includes prevention and treatment efforts but barely
addresses the great majority of American users who have passed the prevention stage and either
do not need treatment, do not yet require treatment, or are in need of treatment but not receiving
it. We do have programs for testing those in the criminal justice system and in the military but the
civilian workforce, where most adult Americans spend their day, is pretty much ignored by the
federal strategy. Exceptions are in the programs mandated by the Department of Transportation
and the Nuclear Regulatory Commission but neither of these covers anywhere near a majority of
American workers.

I would be the last one to downplay the importance of prevention but we must see prevention
programs as investments in the future and not a solution to today’s problems. They are not the
user-based programs that Bejerot would have us adopt as the centerpiece of our national strategy.

Treatment programs are user-focused but they reach only the dependent user and ignore the much
larger group of users who are not in treatment. Although the value of treatment is well
documented,‘ not all treatment is as good as it might be. So-called “treatment on demand”
programs that put the responsibility for successful treatment on the government or the provider of
treatment and not on the user have led to a revolving door system in which there is little
‘consequence to a user who comes in for a brief period of “treatment” and then decides to go back
on the street and resume his drug use. Bejerot’s comment was, “A voluntary treatment system is
as effective as a voluntary penal system.” An old maxim says that if the user has not “hit bottom”
he will be a poor candidate for treatment success. We believe this to be true but we also believe
that in a user-focused strategy, a stick can be provided that can raise the bottom. For treatment
tied to workplace drug testing, the consequences of continued employment can be strong
incentives to abstain and to avoid relapse.

Workers, in trouble with alcohol and other drugs, who are performing satisfactorily on the job are
often in the earlier and more easily treatable stages of chemical dependency. Random testing
programs that identify these workers before they “hit bottom” can be very successful. David
Smith, M.D., a recognized expert in the field of addiction medicine and the supervisor of a large
corporate testing and rehabilitation program, is convinced of the value that workplace testing
brings to workers as well as employers’. The carrot of continued employment based on
measurable abstinence has effectively raised the bottom for many.

Aside from a number of creative, promising, and abandoned user-focused programs, such as the
DEA’s seizure of cars in the Bronx or the program dubbed the “Miami Sting” by columnist
George Will, this country’s principal user-focused programs have been drug testing programs.
Testing programs in the military, in the penal system, and in the workplace have all been
successful at lowering drug use among the populations being tested. The SmithKline Index

* analyzing of findings from the National Houachold survey on drug abuse: population eximater: SAMSHA/HHS, Rockville, MD 1994,

+ smith DE: Peron communication.


166

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140

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for a Mental Diness Parity provision to S. 1028, “The Health Insurance Reform Act of 1995.”
1996, p. 5.

12, National Association of Alcoholism and Drug Abuse Counselors: Alcoholism and Drug
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13. National Institute of Health News Release, December 15, 1997: New Research Documents
Success of Drug Abuse Treatments.

14. National Institute of Health News Release, May 13, 1998: Economic Costs of Alcohol and
Drug Abuse Estimated at $246 Billion in the United States,

15 National Medical Services Tests, Forensic Hair Drug Testing: A Scientific Introduction, web-
site hup /www omslab com/haicint2 him!

16. Simpson D,Curry S, Drug Abuse Treatment Outcome Study (DATOS), Psychology of
‘Addictive Behaviors. Dec 1997, vol. 11:4.

17. Sing M, Hill S, Smolkin S, Heiser N, Insurance Benefits: The Costs and Effects of Parity for
Mental Health and Substance Abuse Insurance Benefits, U.S. Department of Health and Human
Services, Substance Abuse and Mental Health Services Administration. 1998,

18. Substance Abuse and Mental Health Services Administration, Statistics Sourcebook. 1995, p.
69, 117.

19, US. Department of Justice, Office of Justice Programs, National Institute of Justice, January
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Program, 1992: A National Report: Drugs, Crime, and the Justice System.


91

Mr. Mica. Then we get into the question of 2 or 3 days, which
it appears the urine test seems to substantiate, versus the hair test
which can give us information over a broader timeframe. Which
would you favor, Dr. Macdonald?

Dr. MACDONALD. Well, let me just say about the urine testing,
even with this minimum window, the national percentage of pre-
employment tests that are positive are about 5 percent. There are
a lot of people that come in and test before the other. The issue
of hair testing that Dr. DuPont and others stress does give you a
much longer, broader look at people.

Mr. Mica. But which do you favor?

Dr. MACDONALD. Well, I still am in this undecided camp. All of
the questions about hair testing have not been satisfactorily an-
swered, at least in my opinion. Dr. DuPont, who is my good friend
and trusted coauthor, doesn’t exactly come down in the same place.
If I could honestly get from enough members of the scientific com-
munity to endorse workplace hair testing, we can do a toxicology
on hair and I would also endorse it. So that’s really sort of where

am.

Mr. Mica. So you don’t think, at this point, hair testing has the
validity of the urine testing? Is that what you're saying?

Dr. MACDONALD. I think that I’m not expert enough to decide
that, but that the experts that I’ve turned to, the great majority,
have said they have serious reservations.

Mr. Mica. Dr. DuPont, what’s your opinion?

Dr. DuPont. I've been in the drug abuse field for 30 years. I was
here when urine testing came in and these same folks had the
same concerns about the fact that we hadn't dotted all “i’s” and
crossed all the “t’s” with urine tests. We did battle on that and
urine drug tests have become just accepted now. The same thin;
is happening with hair testing. We’re on the same path. I thin
this controversy will have exactly the same outcome. The science
is there, but there are many people for many reasons who are re-
luctant to bless it, so now it’s a battle. I feel confident that hair
testing is the way of the future for most drug tests for the reasons
that we’re talking about today. And even the opponents agree with
that. It’s just a matter of when is the time.

From my point of view, the time to adopt hair testing was 10
years ago. From their point of view, it’s 5 years from now. It’s not
a question of whether you do it, it’s when. I think the time is well
past because the science is there.

Mr. Mica. Well, I have many additional questions. I’m going to
submit them in writing. But I will yield to my colleague at this
point.

Mr. SouDER. Welcome, you all. I have a series of questions here
that I'll give you in writing and, hopefully, rapidly. My subcommit-
tee moved that Portman bill up to Talent at the full committee
level in the Small Business and he was just asking me some ques-
tions on the floor. And I’ve got one in particular I wanted to flag
here for Dr. Lappe. Is that correct?

Dr. Lappe. Yes, that’s correct.

Mr. Souper. In your testimony, you refer to a study, actually Dr.
deBernardo’s group, and he also refers to it in his testimony, about
the migratory effect of small businesses because they aren’t doing


11

that hair testing be added to the drug testing techniques in every-
lay use.
Mr. Hastert. Would the gentleman yield? I hate to interrupt
here, but is that a time function or is that a quality function?

Dr. DuPont. It’s a time function. Basically, a urine test has a
surveillance window of 1 to 3 days while a hair test has a surveil-
lance window of 90 days.

Now the final point I want to make—and I've still got a green
light here which is a wonderful relief—is that almost unspoken in
discussions of what’s happening in our national war on drugs is
what I describe as the secret weapon in the war on drugs. That se-
cret weapon is the 12-step programs: Alcoholics Anonymous, Nar-
cotics Anonymous, and ‘AL Ano Most discussions fail to recognize
that the way real people get well from drug problems is by partici-
pating in these fellowships of recovery. The disease of addiction is
a disease that has a profound spiritual dimension. Recovery also
has a very profound spiritual dimension.

I invite the members of the committee and anyone else who is
interested in seeing the devastation of drugs and alcohol on peo-
ple’s lives and also in seeing the wonder of recovery, the miracle
of recovery, to go yourself to an AA or an NA meeting. I say this
in little exaggeration: in the United States you are never more
than 2 hours and 2 blocks from the 12-step program meeting. Look
around you, find a meeting, and go to it. tou will see there evi-
dence of how serious this disorder is on the one hand and how it
can be overcome on the other hand. This evidence is right in your
face and it will be very, very dramatic. You won’t need any fancy
studies to prove it.

The 12 steps are absolutely ubiquitous in this country. It is not
drug treatment. It is something that helps people keep well and re-
orient their lives in positive ways. AA is one of the great gifts of
America to the world in terms of dealing with the drug and alcohol
problem. It started in Akron, OH, in 1935. It is a modern miracle
and is the secret weapon in the war on drugs. Thank you, Mr.
Chairman.

[The prepared statement of Dr. DuPont follows:]


oT

Additionally, | have conducted evaluations of several issues of controversy
regarding hair analysis. This includes evaluation of the potential hazards of
“passive contamination" of the hair by environmental contact with drugs and the
putative relationship between hair analysis and ‘racial bias". Our research fails to
‘show that either of these effects are significant and do not appear to have a
meaningful impact on the accuracy and utility of hair-based drug analysis.

We have also examined the degree to which the quantified values of drugs
uncovered in the hair may be used to assess the degree or intensity of drug use
in individuals. In general, we have found that hair analysis presents sufficient
information to make a rank-order assessment of drug use (¢.9., drug use as
“high”, “medium”, or "low"). However, hair analysis cannot be used to "back-
calculate" a specific dose taken by a person.

We have also examined the degree to which hair analysis may be used to infer a
pattern of past use by segmental analysis of hair strands. Generally, we have
found it useful for assessment purposes. For example, we clearly and
consistently see diminution of drugs and drug metabolites in the hair of persons
in treatment programs who have stopped using drugs. However, like dosage, hair
analysis cannot pinpoint an exact moment in time when a person used a drug. It
does, however, allow some inference over a several week period. For example, a
sample of hair approximately 1.5 inches long would allow us to examine a three
month period of time and estimate whether the consumption patterns changed
Over that three month interval. The ability to do this historical assessment is
contingent on the subject having hair of sufficient length, of course.

in sum, my work has shown that hair analysis is a credible and useful tool for the
purposes of drug monitoring. It is my view that in many circumstances the use of
drug testing is a critical element. Hair analysis, especially coupled with other
testing procedures such as urine and IMS testing, represents an extremely
effective tool to detect drug use and also forms a potent deterrent for those
undergoing treatment or otherwise involved in programs which require drug
abstinence.


102

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118

In the 1970s, PharmChem was the first laboratory to apply strict chain-of-
custody procedures to criminal justice and drug-treatment testing.

In the 1980s, PharmChem applied those procedures to workplace drug testing
and developed the detailed testing procedures that were validated by the U.S.
Supreme Court in its landmark decision National Treasury Employees Union v. Von
Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989). In 1988, those
procedures were incorporated into the regulations adopted by the U.S. Department of
Health and Human Services for all federal workplace drug testing.

In the 1990s, PharmChem has developed the PharmChekTM sweat patch drug-
detection system. The PharmChekTM sweat patch allows drugs and alcohol to be
detected for a more substantial period than is available using urine testing, is much
less invasive of employee privacy than urine testing, and is more cost-effective. In
addition, PharmChem has recently added the PharmScreenTM on-site rapid drug test,

which provides almost instant results to employers in time-sensitive industries.

Design and Operation of the PharmChekTM Sweat patch
Researchers discovered some time ago that drugs a person ingests are later
excreted in that person's sweat. By capturing sweat over a period of time, therefore,
scientists can learn whether an individual recently has ingested an illicit drug or
alcohol. PharmChem, in conjunction with Sudormed. Inc., a medical device company,

developed a practical way to capture sweat for testing. Known as the PharmChekTM


65

PRIVATE-SECTOR
DRUG-FREE WORKPLACE ACT

Section A. Title — This Title shall be known and cited as the "Private-Sector Drug-Free
Workplace Act.

Section 2. Finding — Whereas drug and alcoho! abuse by employees has been demonstrated to
seriously compromise workplace safety and health, and to endanger the public at large and the
environment, be it enacted that this Title shall become law.

Section 3. Definitions — As used in this Title:
(A) "Alcohol" means ethanol, isopropanol, or methanol.

(B) "Drugs" means any substance considered unlawful under the Controlled Substances Act (21
US.C. § 812 et seq.).

(©) “Employer” means any person, firm, company, corporation, labor organization, employment
agency or joint labor-management committee, including any public utility or transit district,
which has one or more full-time employee(s) employed in the same business, or in or about
the same establishment, under any contract of hire, express or implied, oral or written,
"Employer" does not include, for purposes of this Act, the United States, the states, or other
public-sector incorporated municipalities, counties, or districts, or any Native American
tribe.

(D) "Employee" means any person in the service of an employer, as defined in Subsection (C) of
this Section.

(E) “Good faith" means reasonable reliance on facts ~ or that which is held out to be factual —
without the intent to deceive or be deceived and without reckless, malicious, or negligent
disregard for the truth,

(F) "Prospective employee" means any person who has made application to an employer,
whether written or oral, to become an employee.

(G) "Sample" means any sample of the human body capable of revealing the presence of alcohol
or other drugs or their metabolites.

Section 4. Applicable conditions for a legal policy — It is lawful for an employer to test
employees or prospective employees for the presence of drugs or alcohol, in accordance with the
provisions of this Title, as a condition of continued employment or hiring. However, in order to
qualify for a bar from being subjected to legal claims for acting in good faith on the results of a drug
or alcohol test, employers must adhere to the accuracy and faimess safeguards included in
subsequent Sections of this Title.


mat

In addition, the Public and Employee Safety Assurance Act permits employers to remove,
from consideration for the most highly safety-sensitive jobs, those individuals with a history of

substance abuse.

Individual assessments of fitness — as required under current law’? — should not be required
to disqualify a recovering alcoholic or drug addict from employment or continued employment in
designated safety-sensitive positions. Alcoholism and drug addiction are not distinguishable from
other disabilities — such as diabetes and epilepsy — that have been viewed as disqualifying (even in
the absence of individual assessments) in such very limited, specific, and highly safety-sensitive

types of employment.

In the interests of enhanced employee safety and health, employers should be able to
lawfully bar recovering alcoholics and drug addicts from certain positions all of the time. Some
positions pose such inherent dangers that the risk of catastrophic accident and potential harm to life
and property demands elimination of any known danger, even risks that cannot be quantified

precisely.

Even if employers cannot terminate recovering alcoholics and drug addicts who occupy
designated safety-sensitive positions, it is not discriminatory to offer such employees alternative
positions with the same pay, seniority status, and benefits in order to minimize the risks to the

employee, his or her co-workers, the public, the environment, and the company's interests at large.

?° Americans with Disabilities Act, 42 U.S.C. § 1212(d).

23


16

relapses are inevitable or that addicted "patients" should be
absolved of responsibility for relapses. Again, it is only when
the best is expected and only when addicted people carry the heavy
burden of personal responsibility for all of their behaviors that
getting well from addiction is possible.

My view on drug control policy is diametrically opposed to
"harm reduction," a new name for the old idea that the most
appropriate social policy toward addictive substance use is to
accept that the use of illegal addictive substances is normal and
inevitable. The goal of harm reduction is to find clever ways to
reduce some of the painful consequences of illegal drug use without
stopping illegal drug use itself. In this harm reduction view,
socially imposed consequences for illegal drug use create the
"harm" which is most of our "drug problem." Harm reductionists
conclude that socially imposed consequences for illegal drug use
are wrong.

In contrast to this seductive and dangerous view, I believe
that socially imposed consequences offer the best hope for both the
prevention and the treatment of addiction. Society does not create
the major harm from drug use. The use of illegal drugs is what
creates the vast majority of the harm created by illegal drugs. 1
believe effective harm reduction should aim to reduce illegal drug
use. That is not a popular idea with contemporary harm
reductionists who turn a blind, if not a sympathetic, eye toward
illegal drug use. Their views are easily seen in their support for

needle exchanges and medical marijuana.


160

Results from the Workplace

‘What happens when the FIT is used in a real industrial setting? The recent experience of one
Fortune 500 company illustrates the impact.

The plant employs approximately 2500 and includes union and non union workers. More than
150 workers were screened daily over a four month period. Workers who were identified as
high risk were evaluated to help determine a possible reason for the result. The evaluation,
conducted by the medical staff at a nearby hospital included a brief history, urine drug screen
and a blood alcohol determination.

There were 169 total participants screened over 20,000 times and six people (.03% of tests)
were identified by the FIT as high risk. Of these six people, three were found to have blood
alcohol concentrations, one had taken a large dose of antihistamine and one had the flu and had
not slept well. This experience successfully demonstrates that the FIT can make a significant
impact on workplace safety. quality and productivity

Summary

Everyone experiences daily changes in their alertness, decision making abilities and motor
skills, These changes may occur as a result of inadequate sleep. illness, the use of medications,
alcohol. or other durgs. Such changes can put an employee at “high risk” of causing errors and
having accidents.

The FIT isa scientifically validated and field tested tool that can assist employers in reducing
the very real risk of the impaired worker by screening for the current presence of factors that can
cause an employee to be “high risk”. Reducing this nish will help companies achieve an elevated
level of safety, quality and productivity be ensuring that the workforce is “fit-for-duty”,

PMI, INC. Keeping an Eve on Safety, Quality and Productivity


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21

and long-term drug testing on parole and probation. ‘The current
reliance on urine testing needs to be expanded to include hair,
sweat, and saliva testing. In particular, the hostility to wider
use of hair testing needs to be resolved since the benefits of hair

testing for illegal drugs -~ the resistance to deception, the ease

ef collection, and the 90-day window of detection -- are of
tremendous value to the nation's efforts to discourage illegal drug
use.

Hair testing has many advantages when compared to urine
testing. It uses the same immunoassay screening test followed by
a mass spectrometry confirmation. In disputed cases it is possible
to take a second hair sample, something that cannot be done with
urine testing because of the limited window of detection for urine
testing.

The criticisms of hair testing have been studied extensively
and sound answers exist for each of them, including the concerns
over racial bias and passive exposure which have been shown not to
be issues of practical importance. Because some people who resist
drug testing, and others who have professional and financial
interests in urine testing, have joined forces to oppose wider use
of hair testing, I encourage the Subcommittee to explore the
science behind hair testing and the unwarranted opposition to wider
application of hair testing. ‘The simple and fundamental standard
needs to be the public interest. When that standard is applied,
hair testing joins urine testing as two important components of an

effective drug abuse prevention strategy.

10


50

California, Kansas, and Louisiana; the governments of the Bahamas, Japan, and Spain; and nearly

20 national trade associations.

1 appreciate this opportunity to: (1) testify in support of responsible workplace drug-testing
and drug-abuse prevention programs; (2) submit to this Subcommittee two legislative proposals
which we believe to be both pro-employer and pro-employee, and which ~ more importantly — are

pro-employee-safety; and (3) testify in support of H.R. 3853, the Drug-Free Workplace Act of 1998.

The Institute for a Drug-Free Workplace is a non-profit coalition of major businesses and
business organizations dedicated to preserving the interests of employers and employees in effective
and responsible drug- and alcohol-abuse prevention programs. The Institute includes in its
membership more than 100 major employers and employer organizations, including many of the
largest companies in the United States, and a wide range of chambers of commerce, trade

associations, and community coalitions representing businesses of all sizes.

The Institute was the only business witness before the President's Commission on Model
State Drug Laws; the only business witness in the 103" Congress on H.R. 33, the Dingell-Bliley
drug-testing bill; one of the business witnesses before this Subcommittee on workplace drug-testing
issues in the 104" Congress; and the sole or primary business witness at legislative and regulatory

hearings more than 30 times at the state level.


95

hair analysis presents sufficient information to make a rank-order
assessment of drug use, that is, drugs as something like high, me-
dium, or low. However, hair analysis cannot be used to back-cal-
culate a specific dose of drug taken by a person.

We have also examined the degree to which hair analysis may
be used to infer a pattern of past use by segmental analysis of hair
strands. Generally, we have found it ‘asefal for assessment pur-
Roses. For example, we clearly and consistently see diminution of

rugs and drug metabolites in the hair of persons in treatment pro-
grams who have stopped using drugs.

However, like dosage, hair analysis cannot pinpoint an exact mo-
ment in time when a person used a drug. It does, however, allow
some inference over a several-week period. For example, we con-
ventionally treat a hair sample of approximately 1¥2 inches as al-
lowing us to examine approximately a 3-month timeframe and to
estimate whether the consumption patterns changed over that 3-
month period. The ability to do this Fistorical assessment is contin-
gent on the subject, of course, having hair of sufficient length.

In sum, my work has shown that hair analysis is a credible and
useful tool for the purposes of drug monitoring. It is my view that,
in many circumstances, the use of drug testing is a critical element
for many kinds of programs. Hair analysis, especially when coupled
with other testing procedures, such as urine testing and IMS test-
ing, represents in total an extremely effective tool to detect drug
use and also forms a potent deterrent for those undergoing treat-
ment or otherwise involved in programs which require drug absti-
nence. Thank you.

[The prepared statement of Mr. Mieczkowski follows:]


Good moming, Chairman Hastert and Members of the Subcommittee. My name is
Murray Lappe, and I am President and Medical Director of National Medical Review
Offices, Inc., (NMRO) in Los Angeles, California. It is a pleasure to be here today to
share with you our experience, and to discuss the procedures and policies that produce a
successful drug-free workplace program.

Previously, I was in the private practice of occupational medicine, and directed one of the
nation’s first workplace drug-testing programs in 1983. I enjoyed my medical career, but
felt that in order to effectively promote substance abuse-prevention, I had to dedicate
myself to a Medical Review Officer (MRO) practice exclusively. Ten years ago, I

founded NMRO in order to pursue a career as a full-time MRO.

NMRO iis now the largest MRO provider in the world, and a leader in its field. We have
more than 130 employees, a computer network with direct links to more than 50 drug-
testing laboratories certified by the Department of Health and Human Services (DHHS),
and review nearly 5 million workplace drug tests each year. We have unparalleled
resources to provide oversight and medical review services to workplace substance-abuse

prevention programs nationwide. National Medical Review Offices has contributed to,


168

National Drug Court Institute Review 43

OBSERVATIONAL STUDY OF
COURTROOM DYNAMICS
IN SELECTED DRUG CouRTS
By Sally L. Satel, MD”

In this ground breaking article, Dr. Sally Satel
(93) reviews the literature in the field, interviews drug
court judges and program participants and observes 15
courtroom settings in an attempt to describe and analyze
the role of the drug court judge. This far ranging article
of first impression looks at what makes a good drug court
judge, the psychological implication of the drug court ju-
dicial model and how the drug court environment can ef-
fect program outcomes.

Dr. Satel is a practicing psychiatrist as well as a
lecturer at Yale University School of Medicine. She has
written extensively on drug abuse and cocaine addiction.
Her clinical and research expertise is in addiction medi-
cine. She has worked in the Washington, DC Drug Court
as a Staff Psychiatrist and consultant.

©

This article was supported by the Robert Wood Johnson Foundation


133

NAADAC
National Association of Alcoholism
and Drug Abuse Counselors

1911 North Fort Myer Drive, Suite 900. Arlington, VA 22200
708/741-7686 800/548-0497 « FAX: 703/741-7698 800/377-1136

Statement for the Record

on behalf of
‘THE NATIONAL ASSOCIATION OF ALCOHOLISM AND DRUG ABUSE COUNSELORS

on
“Cutting Edge Issues in Drug Testing and Drug Treatment”

House Government Reform and Oversight Committee’s Subcommittee on National Security,
International Affairs and Criminal Justice

Hearing Held on June 5, 1998

‘Thank you for inviting the National Association of Alcoholism and Drug Abuse Counselors
(NAADAC) to testify. We are very pleased to be given this opportunity. On behalf NAADAC,
please accept the following comments regarding current drug testing and drug treatment.
NAADAC, with 17,000 members, is the largest national organization representing the interests
of alcoholism and drug abuse treatment and prevention professionals across the United States.

NAADAC supports the implementation of workplace policies and procedures for testing,

See eee ee cea eae ee fers deelolce snd rag eatin,
‘Appropriate workplace assessment and testing which leads to treatment will combat addiction
and save individuals’ lives, restore families, and improve communities. These policies can be
used as a part of the requirements to meet drug free workplace standards. NAADAC also
supports, where appropriate, training in such policies and procedures for appropriate personnel as
well as fitness for duty exams.

‘One of the most important aspects of a drug screening policy is its intent. We do not endorse
testing used for punitive measures. The purpose of testing should be to identify employees with
alcoholism or drug addiction and enter them into treatment and help them retura to full
productivity in their job. Positive screens should be accompanied by a thorough assessment by &
‘qualified practitioner. We further endorse the referral ofthe identified employee to
certified/licensed drug abuse counselor when treatment is deemed appropriate. Also, we believe
there should be adequate insurance coverage for an employee to reccive the appropriate level of
‘treatment.

‘NAADAC contends that identification, referral to appropriate treatment and follow-up of
employees to be a joint responsibility shared by the employee, employer and professional
treatment resources for a period of no less than two years. In addition, NAADAC acknowledges
that the recovering employees, once appropriate assistance has been offered, must be held
responsible and accountable for his/her recovery and all behaviors before and after treatment.


17

2. Clearly separate legal from illegal drugs. They ,are
different biologically and historically. Social policy toward them
needs to be separated. Legal drugs for adults (alcohol and
tobacco) are not subject to an absolute drug-free standard, while
other drugs (such as marijuana, cocaine, and heroin) are. Alcohol
use and tobacco use by minors are illegal and subject to the strict
drug-free standard.

critics of the current drug policy not only in the United
States but throughout the world are now eagerly blurring the line
between legal and illegal drugs. Removing the bright line between
legal and illegal drugs has bad effects on public policy toward
both legal and illegal drugs. There are good reasons that the
currently illegal drugs are illegal. It is important to the
nation's public health to keep them illegal. Whatever new policies
are adopted toward the adult use of alcohol and tobacco, these
policies need to be separated from how the nation treats illegal
drugs.

Today most young people do not recognize that alcohol and
tobacco are illegal for them because the laws against youthful use
of alcohol and tobacco are so seldom enforced. I strongly support
far more aggressive and consistent enforcement of the laws now on
the books related to young people using drugs, as well as laws
against young people using alcohol and tobacco.

3. Respect the illeqal drug user as a person, but take all

asonab: i i illega: . Recognize that

addiction is often chronic and relapsing, but expect addicted


61

testing programs. In fact, only 22.5 percent of employees at small businesses are covered by a
workplace drug-testing policy. In contrast, 52.2 percent of employees at mid-sized employers
(employing between 25 and 499 individuals), and 68 percent of employees at the largest

employers (500 or more), are subject to drug testing.'”

The Drug-Free Workplace Act of 1998 would encourage small businesses to address the
problem of drug abuse in their workplaces, by creating a demonstration program to: (1) educate
small businesses on the advantages of drug-free workplace programs; (2) provide financial
incentives and technical assistance to small businesses that do develop such programs; and (3)
assist businesses to educate their employees — and their children — about the dangers of drug

abuse.

To qualify for the benefits that H.R. 3853 would create, an employer would be required
to adopt a written policy prohibiting illegal drug abuse; adopt an employee drug-testing policy;
provide basic training on substance abuse to employees and supervisors; make available

additional education for parents; and provide access to an employee assistance program.

Representative Portman’s goal is to help smaller businesses realize that it is more cost-
effective to address workplace drug abuse than to ignore the problem ~ a premise the Institute
supports wholeheartedly. H.R. 3853 recognizes that the employer community overall has been
highly successful in addressing the problems of substance abuse, and the Institute commends
Representative Portman for his efforts to extend workplace drug-abuse prevention programs to

employers of all sizes.

"Id. at 39.


130

commendable efforts to create incentives for employees to get and stay off drugs. In
this regard, PharmChem would be happy to assist the Subcommittee in any
appropriate manner in its consideration of legislation affecting workplace substance
abuse prevention programs, emerging technologies for detection of substance abuse,

and employers’ legitimate and necessary role in addressing drug abuse prevention.


114

STATEMENT ON
NEW TECHNOLOGIES FOR DRUG-ABUSE PREVENTION

before the

SUBCOMMITTEE ON NATIONAL SECURITY,
INTERNATIONAL AFFAIRS AND CRIMINAL JUSTICE

of the
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT,
UNITED STATES HOUSE OF REPRESENTATIVES

PHARMCHEM LABORATORIES, INC.

Introduction and Overview of Position

Good morning, Mr. Chairman, and members of the Subcommittee. My name is
Neil Fortner, and I am Vice President of Laboratory Operations for PharmChem
Laboratories, Inc., which is headquartered in Menlo Park, California. 1 also serve as
Scientific Director and oversee the laboratory operations of PharmChem's U.S.-based
laboratories. I hold a B.S, and an MS. in Biochemistry and am presently completing
my Ph.D. in Neurochemistry.

T have published numerous scientific papers in the area of forensic toxicology
and have provided expert testimony in more than 350 cases involving drug testing in
all types of courts.

Tam also a member of several scientific associations, including the American
Academy of Forensic Sciences, the Society of Forensic Toxicologists, the American

Board of Forensic Examiners, and the American Association of Clinical Chemists. I


116

the more commonly used urine testing. The PharmChekTM sweat patch can be
applied to a person's upper arm for a period of days during which time it collects
drugs that are excreted along with the body's natural loss of moisture from the skin.
The sweat patch is approved by the Food and Drug Administration of the U.S.
Department of Agriculture and is capable of detecting five drugs of abuse.

‘The PharmChekTM sweat patch has performed well in several studies and as
part of the federal probation and parole program. We are optimistic that it will prove
to be a popular and effective tool for workplace substance-abuse detection and
deterrence as well.

In addition, in response to the increased demand for on-site drug testing,
PharmChem now offers the PharmScreenTM rapid test. The PharmScreenTM testing
device has been incorporated into our full-service product line, further increasing the
options available to drug-free workplace programs.

‘Thank you for providing PharmChem Laboratories this opportunity to present
testimony to the Subcommittee. Mr. Chairman, I commend you for taking such an
active role in the area of drug-abuse prevention, and I am pleased to have the

opportunity to describe PharmChem's efforts in this area.


4

The cost of drug abuse treatment in our Nation now exceeds $3
billion a year. The question of drug testing and drug testing itself
has turned into a small cottage industry with big numbers. It’s im-
portant that we get, again, an accurate reading on the tests that
are being done in the private sector and in the public sector, and
that we look for effective methods of incorporating those tests in
our criminal justice system, in our society at large, and make them
available again at every level. I think we have that important re-
sponsibility.

With that, Mr. Chairman, I thank you for your leadership. I look
forward to hearing the witnesses and their testimony today and
next week, and what we can do again in a cost-effective manner
and effective analysis of what’s going on in our workplace. Thank
you.

Mr. Hastert. I thank the gentleman from Florida.

Now, it’s a great honor to introduce our first witness. This gen-
tleman certainly needs no introduction here, but certainly a good
friend and colleague and chairman of the Rules Committee, Jerry
Solomon from New York. Jerry, thank you for being with us today
and welcome.

STATEMENT OF HON. JERRY SOLOMON, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW YORK

Mr. SoLomon. Thank you, Mr. Chairman. I’m just a little out of
breath here. We were trying to rush over to the floor to be timely.
I know how it is when committees and subcommittees like yous
are holding meetings. As chairman of the Rules Committee, if peo-
ple are late I usually don’t take it kindly. So, I appreciate you bear-
ing with me.

ir. HASTERT. We're probably not quite as tough as the chairman
of the Rules Committee. [Laughter.]

Mr. SoLomon. Mr. Chairman and members, I just want to com-
mend your subcommittee on holding these hearings and on your
overall effort dealing with one of the most devastating problems
that this country has. I have five children and raised those five
children during a period of time when drug use among us, espe-
cially among youngsters, was just beginning. Now I have six grand-
children. Some of the stories that one of my grandchildren tells me
about drug use in a university that she’s attending, and others in
high school, and even in the lower grades—it is just heartbreaking:
That is why I’m just so proud of your committee that you would
undertake to try to deal with this terrible thing that’s happening
to a whole new generation.

As the chairman knows, I just was in Europe with him and di-
verted from part of that NATO meetings to go to the Netherlands.
I saw in the city of Amsterdam terrible situations where they have
just had a philosophy of tolerance toward illegal drugs. To see
what’s happening to those people in their twenties and thirties,
and even into their forties, is just terrible. We just cannot let that
happen to American society.

at is one of the reasons I would just ask unanimous consent,
if you would, to have my entire statement appear in the record and
I won’t bother going into all of that. I hope that you would all take
the time to look at it.


93

ciate your testimony and the answer to the questions and we would
appreciate it if any followup questions which are sent to you would
be responded to as quickly as possible. We thank you and we will
stand in recess for about 15 minutes while we go vote and then we
will be honored to hear the second panel.

[Recess.]

Mr. Barr. The subcommittee will reconvene.

And if we could ask our panelists to take the seats with the ap-
propriate name card. On behalf of Chairman Hastert, I’d like to
welcome you all and thank you for appearing before us today. I'd
like to briefly introduce the panelists and then we will have them
sworn in. We'll proceed.

I think you all probably know the rules fairly well. We have 5
minutes. You certainly do not need to take the entire 5 minutes.
Your full written statements and any attachments thereto will be
entered into the record and there may be a number of followu
questions which you could answer both today and there may be fol-
lowup questions in writing. We would appreciate you all respond-
ing in writing as quickly as possible to those questions.

tarting from my left, we have Dr. Tom Mieczkowski who’s a
professor at the University of South Florida. We have Mr. Harold
Green, president of the Chamberlain Contracting Co. We have Mr.
Neil Fortner, vice president of Laboratory rations for
PharmChem Laboratories. We have Ms. Roxanne Kibben, president
of the National Association of Alcoholism and Drug Abuse Coun-
selors. And we have Dr. David Kidwell who’s a chemist with the
Naval Research Laboratory. Welcome and I appreciate you all
being here today.

It is a rule of the committee that all witnesses who appear before
us be sworn.

[Witnesses sworn.]

Mr. Barr. We could now start with Dr. Mieczkowski. If you
would, please, you have 5 minutes to read into the record or make
such statement as you might like. And, again, your full statement
will be entered into the record.

STATEMENTS OF TOM MIECZKOWSKI, PH.D., PROFESSOR, UNI-
VERSITY OF SOUTH FLORIDA; HAROLD GREEN, PRESIDENT,
CHAMBERLAIN CONTRACTORS; NEIL FORTNER, VICE PRESI-
DENT, LABORATORY OPERATIONS, PHARMCHEM LABORA-
TORIES; ROXANNE KIBBEN, PRESIDENT, NATIONAL ASSO-
CIATION OF ALCOHOLISM AND DRUG ABUSE COUNSELORS;
AND DAVID KIDWELL, PH.D., NAVAL RESEARCH LABORA-
TORY

Mr. MIECZKOWSKI. Thank you for the opportunity to express my
views on the important issue of drug policy. I shall confine my
opening remarks to the specific areas of interest that I have ex-
plored in my research.

I have, since the early 1980’s, been an active researcher in the
area of drug abuse.

Mr. Barr. Doctor, could you pull the mic just a little bit closer,

lease. It makes it a lot easier Both for us and for the audience to
ear, as well as for the court reporter.


38

All of our clients’ drug tests are sent exclusively to laboratories certified by DHHS.’
These laboratories ensure the highest quality analytical service, and provide NMRO and
its clients with the most legally defensible test results. While employers in the private
sector who are not regulated by the federal DOT are not required to use DHHS-certified
laboratories, we insist that all of our clients do so to provide the American worker with
the highest standard of care available today.

‘NMRO has created a unique nationwide laboratory-information network. We are on-line
with more than 50 DHHS-certified drug-testing laboratories, so that when a laboratory
completes the testing process, our MROs access the information on-line and begin the

review process immediately.

NMRO delivers final results to its customers in a variety of ways, according to their
needs. Information about employee drug-test results is available to our clients 24 hours a
day via an on-line computer service, or via a 24-hour automated telephone system, in
addition to the more traditional methods, like fax and secure e-mail. The confidentiality
of the employee is always placed foremost.

Our efforts are geared toward providing our clients with the information they need — in a
secure format — as soon as it is available. In fact, since drug testing is in fact an

information science, information solutions are employed, so that hiring decisions are

* Previously known as “NIDA-certified laboratories,” although the laboratory certification function has
been shifted by DHHS from NIDA to the Substance Abuse and Mental Health Services Administration
(SAMHSA).


158

Government regulators, industry and labor have endeavored to reduce the incidents of
impaired workers. Strict hours-of-service and other work rules attempt to decrease worker
fatigue. Random testing for alcohol and other drugs identifies some abusers. In spite of these
efforts, many workplace accidents and performance errors continue to occur. Performance
impairment, regardless of its cause, is a significant contributor to unsafe behavior and reduced
quality in the workplace.

These concerns have led to.a growing interest in “fitness-for-duty” testing. Such testing, usually
done at the beginning of a shift, screens for workers that are at “high risk”. This has created a
need for a reliable and economical way to identify on a real-time basis, in a non-invasive
manner, employees of “high risk”.

The FIT” System

FIT is the first system specifically designed for the workplace asa practical tool that reduces the
risk of accidents and errors by screening for the “current” presence of factors that can cause an
employee to be “high risk”.

The FIT isa self-administered, user friendly product. The subject simply looks into a view port
and follows a lighted target for approximately 30 seconds. The non-invasive test is completely
safe and causes no discomfort. The result, given as a simple low risk or high risk, is available
immediately. The FIT can be used as part of a daily screening program, as part of a high
frequency random screening program or as a“for cause” screener to actively manage the risk of
impaired workers.

How Does the FIT Work?

Using a thirty second self administered test, the FIT employee screener compares involuntary
eye reactions to an employee's own baseline. This brief eye test identifies changes in the central
nervous system that result from the active influence of factors that can impair a person's
decision making, concentration, and motor skills.

Baselines are a key part of the FIT operation. A baseline is established for each individual
during the first week of testing. This baseline contains all the information necessary to compare
a current reading to the expected range of responses for that individual,

‘The FIT measures a set of eye parameters and compares these to a set of baseline parameters for
that individual. Based on this comparison, the FIT produces a low risk or high risk output. The
FIT reliably produces a /ow risk output for people under normal conditions and a high risk
output for people who are under the influence of specific risk factors such as alcohol, drugs or
extreme sleepiness.

PMI, INC. Keeping an Eye on Safety, Quality and Productivity


125

‘The study also demonstrated that the patches inay be worn effectively. In 85
percent of the cases in which wear data was reported on the chain-of-custody form,
the patch was worn without discomfort or problems with detachment. However, in
some high-security facilities prisoners were more likely to refuse to wear the patches,
and those prisoners had a greater incidence of the patch “falling off" than those

prisoners who were participating in a work-release program.

Additional Studies and Supporting Research

As noted earlier, the Food and Drug Administration of the United States
Department of Agriculture has approved the sweat patch for purposes of testing for
cocaine, opiates (including heroin), amphetamines (including methamphetamines),
PCP (phencyclidine), and THC (marijuana).

The PharmChekTM sweat patch drug test also has been studied in a number of
different clinical settings. For example, comparative studies of urine testing versus
sweat patch testing were initiated at the United States Probation Office and the
United States Pretrial Service Office for the Central District of California, and at the
California State Department of Corrections, Parole, and Community Services
Division.

In addition, a number of researchers have performed their own experiments
using the sweat patch. For example, Dr. Edward J. Cone, Chief of the Chemistry and
Drug Metabolism Section at the Addiction Research Center of the National Institute

on Drug Abuse, and his colleagues have performed extensive research on the ability of

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41

lement Responsible Wor substi

Most responsible workplace substance-abuse prevention programs include drug testing.
Drug-testing requirements can range in breadth and application quite widely. Most
employers who perform drug testing require pre-employment drug tests. Some
employers have implemented universal random testing - for every employee from the
company president to the newest clerical hire. Other companies may implement more
limited employee drug testing. For example, many employers require employees to
submit to drug tests only “for-cause”, when an employee is exhibiting symptoms that
may indicate a substance-abuse problem. In this case the employee is usually tested for

both drugs and alcohol use in violation of company policy.

Companies may require follow-up testing for individuals who have recently participated
in rehabilitation efforts, or post-accident testing for employees involved in accidents, or
random testing, i.c., testing without notice — especially for those employees in safety-

sensitive positions.

No matter what size the employer, nor the extent of the testing program, responsible
employers should implement safeguards that maximize the accuracy and minimize the

intrusiveness of workplace drug testing.

Responsible workplace drug-testing programs maintain chain-of-custody procedures,
including documentation that tracks the specimen from the time of collection until sample

testing is completed at the laboratory. Chain-of-custody procedures give the employee