Confirmed impairment not required in order for board to mandate drug testing of nurse who self-reported DWI

A nurse’s self-report of a DWI (driving while intoxicated) offense in which her blood had twice the legal level of alcohol for driving was sufficient to give the licensing board reasonable suspicion that she was an impaired provider and may be trying to hide evidence of substance abuse, an appellate court in Kansas ruled May 28.

The decision upheld discipline imposed on the nurse, Ashley Sullivan, who had refused to comply with a mandatory drug and alcohol screening (Sullivan vs. Kansas State Board of Nursing).

In 2011, Sullivan was arrested for driving while intoxicated and eventually entered a diversion program which would allow the offense to be dismissed after two years of probation.

When Sullivan reported the incident to the state Board of Nursing, it referred her for an evaluation, in which the evaluator initially concluded that she likely suffered from substance dependence.

Although the doctor who provided that evaluation later revised it to reflect that Sullivan did not, in fact, have a high probability of a substance abuse disorder, the result of the first conclusion was that the Kansas Nurses Assistance Program required Sullivan to enter an extended evaluation program involving random drug tests and forbearance from alcohol and other substances. During her participation in the program, the program found evidence that Sullivan may have been over-hydrating in an attempt to mask substance abuse, and it ordered random blood and hair tests to check for substance use.

When Sullivan did not comply with that order, the board moved to revoke her license on the grounds that her failure to cooperate with the Program constituted unprofessional conduct. Following a hearing, the board revoked her license and Sullivan appealed. A state district court affirmed the decision and the case then went up to the Court of Appeals of Kansas.

On appeal, Sullivan argued that the board did not have the power under its authorizing statutes to require potentially-impaired providers to comply with the assistance program—i.e., that its power was limited only to those providers it knew were impaired.

The court did not agree with this seemingly-circular argument, noting simply that Kansas law authorizes the board to refer nurses to an assistance program if they have reasonable cause to believe that the nurse is impaired and that a refusal to comply with that program is grounds for discipline.

Regardless of the evaluating doctor’s changed conclusion regarding the probability that Sullivan was suffering from substance abuse, and regardless of the eventual dismissal of her criminal charge, Sullivan’s report to the board of a DWI where she had twice the legal blood alcohol limit provided sufficient grounds for a reasonable belief that she was a potentially-impaired provider.

As such, Sullivan’s failure to comply with the Program justified the Program’s decision to report her non-cooperation and the board’s decision to discipline her. Additionally, the court held, evidence showing that Sullivan had an abnormal intake of water and her refusal to submit to an alternative test for the presence of substances provided the board a second reasonable ground to believe she was impaired because she may have been trying to hide drug or alcohol abuse.

Having rejected Sullivan’s arguments, the court upheld her discipline.