A major concern for law enforcement personnel regarding Employee Assistance Programs (EAP) is a distrust of outsiders. This distrust often stems from a fear of the unknown. Fears that information shared with a provider may end up departmental gossip. Or that what is shared will unknowingly jeopardize one’s career. The question remains: does confidentiality have limits? Is the information shared with EAP providers protected, or could it filter back into the department? And do officers have the right to be concerned?
Rest assured, patient-provider confidentiality is maintained through the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The HIPPA Act in part, was devised to protect patient information from those persons or entities that had no justifiable need or right to such information. However, officers are correct to question the limits of confidentiality, because certain communication is not protected. In fact, confidentiality cannot be maintained if it involves “… information affecting national security or posing threat to yourself or another individual, criminal behavior, and child or elder abuse….” (United States Department of Agriculture (USDA), n.d.). Plain and simple, if such information is disclosed; providers are mandated to report it to the proper authorities.
Are there additional concerns? Well, according to Sean Riley, Founder and Executive Director of Safe Call Now, Yes. Riley (2012) explained even though EAP’s have an important place in patient care, a fine line exists when addressing issues like substance abuse and addiction. Further maintaining that providers, by virtue of their roles have a greater obligation to employers than to employees. Employers want healthy, productive employees, in-turn they contract EAP services to help make this happen.
So how can employees feel more empowered and more willing to use the services of EAP’s? Riley pointed out that officers could start by asking plenty of questions of EAP providers. Questions should be direct and nothing should be considered off limits. Questions should be asked about limits of confidentiality, if records can be subpoenaed and under what circumstances they can occur. If EAP’s have a bigger obligation to the employer than the employee, and asking about what will occur throughout the process and if limits of confidentiality are subject to change.
Records maintained by EAP’s can be subpoenaed (Darr, 2012; Riley, 2012). This is rare, but it is possible that what one shares with an EAP provider could end up in court. Patient records that were once considered confidential could become public record. So again, confidentiality has its limits. Many patients are unaware of the ability to subpoena records, but any records can be subpoenaed at any time (Darr, 2012). Patients discovering this after the fact may further distrust EAP’s.
A second concern causing hesitancy of EAP’s is the lack of standardization. Officers are often unsure what to expect from EAP providers. Even more, officers remain hesitant because they rarely witness or hear about fellow officers utilizing EAP services. Part of the argument can be that organizations using EAP’s have many choices and options when doing so. This contributes to differences in programs and types of assistance being offered.
The following is a general scenario of what can be expected from a mandatory and a self-referral. Remember, each case in individually unique and may not result in the same or similar actions. Also important to note is the American’s with Disabilities Act of 1990. Although the Act does not protect certain illegal substance abusers and alcoholics who “cannot safely perform their jobs, it does protect those who have been rehabilitated or who are participating in supervised rehabilitation programs and not currently using drugs” (Penn Behavioral Health Corporate Services, 2008, p. 2).
The scenario involved a police officer allegedly reporting for duty smelling of alcohol. A blood–alcohol test (BAT) was conducted and it was determined that the employee had a blood-alcohol concentration (BAC) of .02. The BAC of .02 alone, according to Darr (2012) is grounds for a mandatory EAP referral. The following is a general step-by-step of what can be expected after receiving a mandatory referral for someone reporting for work smelling of alcohol and being under the influence.
Mandatory EAP Referral
Initially, the EAP provider determines subject compliancy with the mandatory referral. The provider determines if the actions that led to the referral directly or indirectly affect the employee’s work performance. Reporting to work smelling of alcohol or being under the influence does not necessarily suggest that work performance has been affected (Darr, 2012). Lastly, the provider acknowledges the employee’s participation or lack of in the program.
The provider discusses the EAP process, patient-provider confidentiality, and what types of information is not protected. An evaluation is conducted concerning the subject’s social history of drugs/alcohol use/abuse and the Michigan Alcohol Screening Test (MAST) is conducted to determine whether a substance abuse problem is present. Once a determination is made, at a minimum the subject is provided with educational materials and outside referrals if appropriate. Once an outside referral is suggested; arrangements are made with the patient’s insurance provider in order to develop an appropriate treatment program and treatment plan.
If treatment is suggested, it is offered. However, it remains the employee’s responsibility to accept help and to take action. Management officials are NOT notified if the employee goes in to short or long-term treatment. This information is protected by HIPPA. However, employers are aware that EAP’s are being used, to justify return on investment (ROI) and beneficial purposes of such programs.
Short-term treatment plans are usually conducted on an outpatient basis. During short-term care, patients are generally required to maintain communication with their EAP provider throughout treatment. Short-term treatment programs are offered to help the patient remain working during treatment.
Long-term treatment plans may require an absence from working duties, due to facility locations and time requirements for extended care. If long-term care is suggested, employees are generally responsible for contacting Human Resources to make such arrangements (Darr, 2012). Again, management is not notified when someone goes into treatment, they are merely notified that EAP services are being utilized.
Using the preceding scenario, a police officer reports for work smelling of alcohol. The difference, this officer asks for a referral to EAP. Arrangements will be made to get the officer safely to the EAP provider.
The provider determines if a problem exists, and to what extent it hinders work performance. Evaluations and assessments of the patient’s history of drug or alcohol abuse are made, social history of abuse is also addressed, and MAST is again conducted (Darr, 2012). During a self-referral the provider makes note of patient participation. However, participation is usually is not an issue with most self-referrals. Providers make determinations regarding the need for outside referrals if appropriate and follow-up treatment when necessary. Just like the mandatory referral, confidential information is not relayed back to management regarding the patient’s care. This information is protected under HIPPA. However, Riley (2012) maintained that EAP records can be subpoenaed and that all potential patients should be made aware of this information before care is sought.
It is important to remember that one’s participation in the EAP is NOT mandatory. Officers can refuse treatment. However, EAP’s are used to provide alternatives to termination, and a refusal to participate in the EAP after a mandatory referral may lead to termination of employment. Also, participation in the EAP does not protect one from administrative actions, even during a self-referral.
Dr. Olivia Johnson holds a master’s in Criminology and Criminal Justice from the University of Missouri, St. Louis and a doctorate in Organizational Leadership Management from the University of Phoenix – School of Advanced Studies. Perseverance in raising awareness to officer wellness resulted in her being named the Illinois State Representative for the National P.O.L.I.C.E. Suicide Foundation. This role led to her being invited to speak at the FBI’s Behavioral Science Unit’s 2010 – Beyond Survival Toward Officer Wellness (BeSTOW) Symposium. Dr. Johnson is a veteran of the United States Air Force and a former police officer. She collaborates with several journals regarding law enforcement and military issues and is the expert in police leadership issues writer for Law Enforcement Today. Her services are contracted out by Crisis Systems Management to train military personnel worldwide on Critical Incident Peer Support (CIPS).
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