          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In the Matter of the Commonwealth        :
of Pennsylvania Department of State,     :
Bureau of Professional and               :   CASE SEALED
Occupational Affairs (State Board of     :
Nursing Investigation No.                :
14-51-05195),                            :
                         Petitioner      :
                                         :
             v.                          :   No. 242 M.D. 2016
                                         :   SUBMITTED: July 8, 2016
Abington Health,                         :
                          Respondent     :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge




OPINION BY
SENIOR JUDGE LEADBETTER                                   FILED: October 28, 2016


             Before the Court for disposition are the parties’ cross-applications for
summary relief. Petitioner is the Department of State, Bureau of Professional and
Occupational Affairs, State Board of Nursing. Respondent is Abington Health, the
sole corporate member and parent company of Abington Memorial Hospital,
located at 1200 Old York Road, Abington, PA. May 2, 2016, Stipulation of Facts
(Stip.), ¶¶ 1 and 2. The cross-applications at issue are as follows: (1) Petitioner’s
application to enforce investigative subpoena seeking the drug and alcohol test
results of a registered nurse (hereafter “Nurse”) whose employment Abington
terminated based on those results; and (2) Abington’s application for summary
relief requesting an opinion holding that the confidentiality provisions of the
Pennsylvania Drug and Alcohol Abuse Control Act (the Control Act)1 do not apply
to drug and alcohol test results held by Abington Hospital as an employer and an
order directing Abington to release Nurse’s test results to Petitioner. We grant
both of the cross applications and direct Abington to release Nurse’s test results in
accordance with the subpoena that the State Board of Nursing issued pursuant to
Section 15.5 of the Professional Nursing Law.2 In so ruling, we reject the United
States District Court’s interpretation of the Control Act in Murray v. Surgical
Specialties Corp., No. 97-0444, 1999 U.S. Dist. Lexis 277 (E.D. Pa., January 13,
1999).
              In pertinent part, the stipulated facts are as follows. Nurse worked as
a registered nurse at Abington for approximately six years. Based on a reasonable
suspicion that she was under the influence of drugs and/or alcohol in violation of
an applicable policy, Abington as Nurse’s employer collected a specimen and sent
it to an outside laboratory for drug and alcohol testing. Stip., ¶¶ 5-7. Based on the
drug test results, Abington terminated her employment in February 2014. Id., ¶ 7.
Subsequently, pursuant to notification from a third-party that Nurse had failed a
drug test while working for Abington, Petitioner launched an investigation and
served a subpoena on Abington relating to allegations that Nurse had tested
positive for controlled substances. Id., ¶¶ 8 and 9 and Exhibit A (subpoena). In
response, Abington produced her personnel documents but not the test results,
citing a concern regarding the possible applicability of Murray. Id., ¶¶ 10-11. The
parties further stipulated that Nurse did not consent to the disclosure of the test


    1
      Act of April 14, 1972, P.L. 221, as amended, 71 P.S. §§ 1690.101 - 1690.115.
    2
      Act of May 22, 1951, P.L. 317, as amended, added by Section 13 of the Act of December
20, 1985, P.L. 409, 63 P.S. § 225.5.



                                            2
results to Petitioner, that neither the testing nor the results were related to medical
treatment provided to her by Abington, that Abington required her to submit to
testing in connection with her employment, and that Abington obtained the results
as her employer. Id., ¶¶ 12 and 13. Finally, the parties agreed that Petitioner
sought the results to validate the report that Nurse had failed a drug test while
working for Abington in order for Petitioner to proceed with appropriate action
concerning her nursing practice. Id., ¶ 14.
              The narrow issue before us is whether the confidentiality provisions of
the Control Act, applicable to patients and their patient records generated for
purposes of drug and alcohol treatment, also apply to employees and their drug and
alcohol test results generated for employment purposes.3 We look first to the plain
language of the Control Act and then to how the Murray court interpreted it.
              By way of brief background, the purpose of the Control Act was to
establish the Pennsylvania Advisory Council on Drug and Alcohol Abuse and to
impose duties on the Department of Health “to develop and coordinate the
implementation of a comprehensive health, education, and rehabilitation program
for the prevention and treatment of drug and alcohol abuse and dependence.” In re
Search Warrant Application No. 125-4, 852 A.2d 408, 412-13 (Pa. Super. 2004).
Of course, “[a] vital component for ensuring the participation of those in need of
treatment is the protection of their confidentiality.” Id. at 413. To that end,
Section 8(c) of the Control Act covers “patients” and “patient records” and
provides:


    3
      Statutory interpretation is a question of law and, accordingly, our review is plenary. S.E.
Reprographics, Inc. v. Bureau of Prof’l & Occupational Affairs, 139 A.3d 323, 331 (Pa. Cmwlth.
2016).



                                               3
                     (c) All patient records and all information
               contained therein relating to drug or alcohol abuse or
               drug or alcohol dependence prepared or obtained by a
               private practitioner, hospital, clinic, drug rehabilitation
               or drug treatment center shall remain confidential and
               may be disclosed only with the patient’s consent and only
               (i) to medical personnel exclusively for purposes of
               diagnosis and treatment of the patient or (ii) to
               government or other officials exclusively for the purpose
               of obtaining benefits due to the patient as a result of his
               drug or alcohol abuse or drug or alcohol dependence
               except that in emergency medical situations where the
               patient’s life is in immediate jeopardy, patient records
               may be released without the patient’s consent to proper
               medical authorities solely for the purpose of providing
               medical treatment to the patient.
71 P.S. § 1690.108(c) (emphasis added).4

    4
        The remaining provisions of the “Confidentiality of records” section, wherein the
legislature’s use of the term “patient” is pervasive, provide:
                        (a) A complete medical, social, occupational, and family
               history shall be obtained as part of the diagnosis, classification and
               treatment of a patient pursuant to this act. Copies of all pertinent
               records from other agencies, practitioners, institutions, and medical
               facilities shall be obtained in order to develop a complete and
               permanent confidential personal history for purposes of the
               patient’s treatment.
                     (b) All patient records (including all records relating to any
             commitment proceeding) prepared and obtained pursuant to this
             Act, and all information contained therein, shall remain
             confidential, and may be disclosed only with the patient’s consent
             and only (i) to medical personnel exclusively for purposes of
             diagnosis and treatment of the patient or (ii) to government or
             other officials exclusively for the purpose of obtaining benefits due
             the patient as a result of his drug or alcohol abuse or drug or
             alcohol dependence except that in emergency medical situations
             where the patient’s life is in immediate jeopardy, patient records
             may be released without the patient’s consent to proper medical
             authorities solely for the purpose of providing medical treatment to
             the patient. Disclosure may be made for purposes unrelated to
(Footnote continued on next page…)


                                                 4
               In Murray, which Abington cited in support of refusing to release
Nurse’s test results to Petitioner, the federal court applied Section 8(c) of the
Control Act in determining that an employee’s drug test results, taken for
employment purposes, was protected from disclosure by virtue of the Act’s
confidentiality provisions. Murray worked for the defendant, Surgical Specialties
Corporation (“SSC”), at a job which required her to sit for long periods of time.
Soon after starting there, she began selling Tastykakes to her co-workers. A short
time later, she applied for disability benefits due to back problems and was off
from work. When Murray continued to sell Tastykakes to her co-workers during
that time period, SSC discharged her from employment allegedly for violating its
employment policies by visiting co-workers in the parking lot and delivering
Tastykakes. Subsequently, Murray filed an unlawful termination action pursuant
to the Americans with Disabilities Act.5 During the course of discovery, SSC
served a subpoena on Tastykake Bakery, Murray’s part-time employer, seeking her
employment records, including but not limited to drug test results. Tastykake
provided certain documents, but objected to providing test results based on the

_____________________________
(continued…)
             such treatment or benefits only upon an order of a court of
             common pleas after application showing good cause therefor. In
             determining whether there is good cause for disclosure, the court
             shall weigh the need for the information sought to be disclosed
             against the possible harm of disclosure to the person to whom such
             information pertains, the physician-patient relationship, and to the
             treatment services, and may condition disclosure of the
             information upon any appropriate safeguards. No such records or
             information may be used to initiate or substantiate criminal charges
             against a patient under any circumstances.
Section 8(a) and (b) of the Control Act, 71 P.S. § 1690.108(a) and (b).
    5
      42 U.S.C.S. §§ 12101 - 12213.



                                                5
confidentiality provisions of the Control Act. In subsequently denying SSC’s
motion to compel Tastykake to produce certain employment records, the court held
that the disclosure of an employee’s drug test results was barred under Section 8(c)
of the Control Act. Noting that the Control Act did not define “patient” and that its
purpose was to protect the release of confidential drug and alcohol tests, the court
concluded that the plaintiff could be considered a “patient” and that Tastykake,
which had obtained and prepared the drug test results that were part of her
employment records, could be considered a “private practitioner.”                    We reject
Abington’s reliance on Murray as a justification for refusing to release Nurse’s test
results to Petitioner.6
              As an initial matter, we note that if Abington had been treating Nurse
as a patient for drug and alcohol abuse or dependence, then it would have been
obliged as a hospital to maintain the confidentiality of her patient records. As we
previously observed, Section 8(c) the Control Act provides for the confidentiality
of “[a]ll patient records and all information contained therein relating to drug or
alcohol abuse or drug or alcohol dependence prepared or obtained by a private
practitioner, hospital, clinic, drug rehabilitation or drug treatment center . . . .”
(emphasis added.) Contrary to the construction of the Murray court, we conclude
that “patient” does not include Nurse in her capacity as an employee who provided
a specimen for drug and alcohol testing pursuant to her employment.



    6
      This Court is not bound by the federal court’s determination. See Gallo v. Conemaugh
Health Sys., 114 A.3d 855, 863 (Pa. Super. 2015), appeal denied, 132 A.3d 458 (Pa. 2016)
(holding that, although Pennsylvania courts are not bound by determinations of the federal court,
Pennsylvania courts may find a federal court’s interpretation of a Pennsylvania statute to be
persuasive).



                                               6
               As the Murray court noted, the term “patient” is not defined in the
Control Act. Whereas the federal court seemed to apply an unintended meaning to
the term, we are guided by the well-established statutory construction tenet to
afford undefined terms their plain and ordinary meaning and to construe them in a
sensible manner. Adams Outdoor Adver., L.P. v. Zoning Hearing Bd. of Smithfield
Twp., 909 A.2d 469, 483 (Pa. Cmwlth. 2006). In that regard, our Supreme Court
has noted that, “the common and approved meaning of a word may be ascertained
from an examination of its dictionary definition.” Bruno v. Erie Ins. Co., 106 A.3d
48, 75 (Pa. 2014). In determining the meaning of the word “patient,” the Court in
Bruno noted the term’s accepted meaning as “one under medical care.”                             Id.
(citation omitted).       Accordingly, consistent with the common and accepted
meaning of the term “patient,” we conclude that the Control Act affords
conditional confidentiality7 only to a patient who provided a specimen for purposes
of drug or alcohol treatment and not to an employee, such as Nurse, who did so for
employment purposes.8

    7
       Section 8(c) of the Control Act permits a patient’s records to be released, without his or her
consent, “in emergency medical situations where the patient’s life is in immediate jeopardy[.]”
     8
       Although construction of the term “private practitioner” is not before us, we also conclude
that the Murray court erred in construing that term to include Tastykake Bakery as an entity that
was obliged to maintain the confidentiality of an employee’s drug test. While it is true that the
word “practitioner” is not defined in the Control Act, Section 2(a) of the Control Act, 71 P.S. §
1690.102(a), provides that the definitions in the Controlled Substance, Drug, Device and
Cosmetic Act (Controlled Substance Act) shall apply to the Control Act. Section 2(b) of the
Controlled Substance Act defines “practitioner” as follows:
             (i) a physician, osteopath, dentist, veterinarian, pharmacist,
             podiatrist, nurse, scientific investigator, or other person licensed,
             registered or otherwise permitted to distribute, dispense, conduct
             research with respect to or to administer a controlled substance,
             other drug or device in the course of professional practice or
             research in the Commonwealth of Pennsylvania; (ii) a pharmacy,
(Footnote continued on next page…)


                                                 7
              Moreover, as the employer of a nurse who it reasonably suspected was
under the influence of drugs and/or alcohol such that it required her to submit a
specimen for testing, Abington was obliged to release Nurse’s test results to the
Board in accordance with its investigative subpoena. While the Control Act has a
laudable purpose, protecting the confidentiality of those seeking treatment for drug
and alcohol related issues so that they will not be deterred from seeking treatment,
the confidentiality provisions contained therein are inapplicable here. What is
applicable is Section 14(a)(2) of the Professional Nursing Law, charging the State
Board of Nursing with refusing, suspending, or revoking the license of a nurse who
may be incapable of competently practicing professional nursing with reasonable
skill and safety to patients due to “physiological or psychological dependence upon
alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair
judgment or coordination, so long as such dependence shall continue.” 63 P.S. §
224(a)(2). Appropriately, the focus of both the Control Act and the Professional
Nursing Law is on the patient. The important distinction is that the Control Act
focuses on the patient seeking treatment for drug or alcohol related problems,
whereas the Professional Nursing Law primarily focuses on the patient whose
safety could be threatened by the diminished skills of a nurse/employee potentially
impaired by drugs or alcohol.

_____________________________
(continued…)
             hospital, clinic or other institution licensed, registered, or
             otherwise permitted to distribute, dispense, conduct research with
             respect to or to administer a controlled substance, other drug or
             device in the course of professional practice or research in the
             Commonwealth of Pennsylvania.
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-102(b). Contrary to the Murray
court’s determination, Tastykake Bakery is not a “practitioner,” private or otherwise.



                                             8
             Accordingly, we grant the Board’s cross application to enforce its
investigative subpoena seeking the drug and alcohol test results of Nurse. In
addition, we grant Abington’s cross application seeking an order from this Court
requiring that it release Nurse’s test results to Petitioner and thereafter to file a
certificate of compliance with this Court, which Petitioner shall serve on Nurse.
             The subject records shall be maintained under seal and shall be
disclosed by the parties only to the extent necessary in connection with the Board’s
investigation and related administrative proceedings.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge




                                         9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In the Matter of the Commonwealth        :
of Pennsylvania Department of State,     :
Bureau of Professional and               :   CASE SEALED
Occupational Affairs (State Board of     :
Nursing Investigation No.                :
14-51-05195),                            :
                         Petitioner      :
                                         :
            v.                           :   No. 242 M.D. 2016
                                         :
Abington Health,                         :
                         Respondent      :

                                   ORDER
            AND NOW, this 28th day of October, 2016, Petitioner’s cross
application to enforce investigative subpoena is hereby GRANTED, as well as
Respondent’s cross-motion, and Respondent is directed to release Nurse’s drug and
alcohol test results to Petitioner in accordance with that subpoena. Further, after
Respondent complies with the subpoena, we direct it to file a certificate of
compliance with the Commonwealth Court Chief Clerk’s Office.             Once the
certificate of compliance has been filed, the Chief Clerk is directed to mark this
case closed and discontinued. Upon Petitioner’s receipt of documents and a copy
of the certificate of compliance, we direct it to serve Nurse with the certificate.
            The subject records shall be maintained under seal and shall be
disclosed by the parties only to the extent necessary in connection with the
Board’s administrative proceedings.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge
