Negligent drug screening company and reckless diclosure of PHI...

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JRugsy

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I went for a very legal and very routine pre employment screening process for a large car dealership I had a job offer with pending background, credit, and drug screening. I went to the screening company the company uses and everything but the drug test went well (and not because of me).

I will keep this as short as possible, but there are a lot of details so bear with me. The first part of the screening process was submitting a sample for urinalysis which I did. After filling the cup and handing my specimen over, I informed the receptionist/collector that there is a medication I take that will make my urinalysis show positive for amphetamines. I handed her my prescription bottle, she took it, did a search in her database to verify, and then proceeds to ask me what I take it for. She was very persistent on obtaining a medical reason, even though I didn't want to divulge because it was none of her business, but after her explaining that she needs to note it in my file because I need a valid medical reason for taking it I confirmed her question of "Do you take this for _____?!" She supposedly documented all that in my file so I figured I had nothing to worry about with it, but I was still worried of a non-negative test result hindering employment. During my interview process at the screeening company (for background, credit, and accuracy of information on apllication) I also informed the interviewer without any extensive details that there is a medication I take that will show up for amphetamines to which he said "ok" and told me to make sure the receptionst/collector knew. I did so, again, before leaving just to be sure.

I did this all on Monday, March 29, and was informed by the dealership that under the worst conditions I wold hear something back by Thursday of that week. After hearing nothing that week, I called up to the dealership and spoke to the manager who interviewed me (also a good friend of mine) and asked him to look into what the status of the claim was. I spoke with him everyday that week until late Friday when he finally was given a reason on why it was taking so long: my drug test came up positive, but no information was given why as to keep with privacy laws. I tried contacting the screening company to no avail as it was too late in the day to reach them so I waited until Monday to call back.

On Monday, April 12, I called the screening company to find out the results of the drug test and what it was positive for. It took quite a bit of brow beating speaking to the receptionist/collector (same one that supposedly noted my prescription) to verify not only that the urinalysis came back positive and another 10-15 minutes to get her to confirm that it was for amphetamines and solely because of my prescription. Upon further questioning of why the test was reported to the dealership as positive and not negative because of a valid medical condition/prescription the receptionist claims that "the precription information (type and amount) was noted on the paperwork sent to the dealership as well as the medical condition that requires you to take it." Wait, do what? She continued with "I need you to fax over a copy of the prescription to us so that we can fax it to them and clear you for employment." What? So you're telling me you didn't note the prescription since you need another copy to verify? Was the most current bottle not good enough? I gave up, called my pharmacy, and had another copy faxed over to them. It took me calling the next two days, a few times per day, until they forwarded the info on to the dealership. This was late in the day Wednesday, April 14, that they confirmed they sent it via fax to the HR Director who was in charge of all this stuff. So on Thursday, April 15, I call the HR Director and ask her if I was cleared yet. She tells me no because the prescription label the pharmacy sent was filled after the date of the test (I had refilled my prescription since the test) so they needed a copy of the one prior to the test. I told her no problem and asked if it was noted on there that I take this prescription to which she said no. I had to go back to the pharmacy, pick up a copy of the prior prescription, and scan-to-email to the HR Director which was completed by 3:30pm on that day. Knowing that I was cleared, I went to the dealership before noon on Friday, April 16, and spoke with the manager I knew that was trying to hire me. They had hired someone late on Thursday, April 15, because they needed someone and my getting cleared for employment had taken too long. The GM decided to hire another applicant because their need outweighed the ability to wait (which was 100% understandable after three weeks of this mess).

To top it off, after going through all this crap with the screening company, I sent the following email anonymously questioning their policies to get a better understanding of how it worked and to know whether I should be concerned with seeking legal help or not:


To whom it may concern,
I am curious on what your drug testing protocols are, how positive tests are reported (to the potential employer and the applicant), how you handle reporting prescriptions the applicant may take, and what laws/regulations/codes/guidelines drug testing companies must follow.

Thank you for your time and I hope to hear from you soon.

Sincerely,
Jonathan R.

Email: ******@yahoo.com

Their response (edited for privacy reasons):

4-21-10
Dear Mr. (insert my last name here):
If you have not been hired by [insert dealership name here] and you are trying to determine why you were not hired, please remember that when you were interviewed by [the screening company] it was carefully explained that [the screening company] does not tell its clients who to hire or not hire and that if you were not hired, [the screening company] would not know why or be able to tell you why. However, your e-mail seems to imply that you may think you were not hired because of a drug test result.

You need to understand that [the screening company] serves as an interviewing service. As you were told, the simple purpose of [the screening company] is to obtain historical information from you about your past, including but not limited to your previous job history and credit history – which [the dealership] uses along with other factors to evaluate you for a possible offer of employment. As was explained to you, hiring decisions are made by upper management at our client's corporate office, not by supervisors or persons in mid-level management who may have interviewed you for an opening. When you were interviewed by [the screening company] it was explained to you that there are many factors taken into consideration by upper management when making a hiring decision. For example:

Did you tell the truth on the application and when your prospective employer interviewed you? Do you have prior experience and demonstrable success doing the type of work for which you applied? The reasons you left previous jobs. The length of time you remained at previous jobs. What they learned about you if they contacted your previous employers. If you have criminal history did you tell the truth about it on their application and when interviewed by [the screening company]? If you are currently charged with a criminal offense and awaiting trial. If you have outstanding arrest warrants. Your credit history (if you are behind on bills or if you have been placed for collection by creditors). Your driving record (accidents, tickets and unpaid tickets). Do you have outstanding "traffic tickets" that are un-paid? Do you have a history of writing NSF or bad checks? Do you have any outstanding NSF or bad checks? Results of any required drug test.

Your e-mail only requests information about drug testing. Your drug test was positive for amphetamine. When interviewed, you mentioned that you take medication for [insert medical condition here]. When it was reported to [the dealership] that your drug test was positive for amphetamine it was also reported that you said you are taking a medication that contains amphetamine. Several days later you even sent to this office a copy of a CVS Pharmacy document proving you have a legal prescription for the medication. When we received that CVS document it was forwarded to [the dealership] for their edification.

Our clients do not assign to [the screening company] responsibility of contacting your former employers, or of obtaining driving records or consumer credit histories from credit bureaus. In other words, whatever was learned about you from previous employers was learned by [the dealership], not by [the screening company]. [The screening company] does not know what they learned about your job performance, dependability, or circumstances under which you left those jobs. If a detailed and official record of your consumer credit history was obtained, it would have been obtained by [the dealership] from banking sources or any one of the three (3) national credit bureaus that provide such information. If your Motor Vehicle record was obtained, it was obtained by [the dealership] or their insurance company – not by [the screening company].
-The Screening Company-

It's funny too how they underline and/or embolden the places where they claim to have no part in checking, but indicate that that is the reasons why I was not eligible for the job. My credit is horrible right now because I have been without a job and no income at all for the last three months now. The dealership has confirmed on many occasions that it is solely the drug test that hindered my employment and since I cleared what the screening company screwed up I am eligible for employment when an opening comes up.
 
So now I'm curious what the screening company could be held responsible for.

Defamation:
for incorrectly labeling me as a drug abuser by irresponsibly and inaccurately disclosing my test results as positive even though they had all the information they needed not to.

HIPAA/Texas Medical Privacy Act Violations:
(1) by supposedly disclosing my medical condition (which could be considered a disability) before employment to a potential employer resulting in me losing the oppurtunity for a job. The reason the dealership gave me for not getting the job was solely the positive test result and now I am clear for employment assuming another job comes a long any time soon and they don't associate my employment with all this drama.

(2) for disclosing very personal information via unsecured email without my consent or any proof that it was my email address or me sending the original email to them. Even if it was from my unsecured email, they could not know if it was me that they were sending it to since they did not call me to verify, did not disclose the risks of communicating such sensitive information via unsecured email, or even label the document to be for my eyes only and all the other crap to persuade unassuming people to not look at it unless they wanted to be involved in legal trouble.

Violations of ADA could result since my medical condition could be qualified as a disability under ADA since it does prevent/hinder my ability to work when I am not taking my medication.

I also believe that there must be some SAMHSA regulations violated, but don't know much about them and cannot find much information about the SAMHSA required processes from a SAMHSA certified lab (yes, they use certified labs only). Are SAMHSA certified laboratories required to make use of an Medical Review Officer (MRO)? If so, there is a big problem with me not getting a call from one.

Any insight is appreciated as I am very frustrated and still trying to clear my name at the screening company since most dealerships in my area use them for testing.
 
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