                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                   July 19, 2012 Session

             CITY OF MEMPHIS CIVIL SERVICE COMMISSION
                                 v.
                         STEVEN PAYTON

              Direct Appeal from the Chancery Court for Shelby County
                 No. CH-11-0253-2     Arnold B. Goldin, Chancellor


               No. W2011-02501-COA-R3-CV - Filed November 7, 2012



                              SEPARATE CONCURRENCE
                            ______________________________

HOLLY M. KIRBY, J., CONCURRING SEPARATELY:

I concur in the majority’s holding that the followup drug screen at issue was not a “[r]ecord[]
of the identity, diagnosis, prognosis, or treatment” of Mr. Payton, and therefore was not
covered by 42 U.S.C.A. § 290dd-2(a).

I write separately to clarify the status of the law in the wake of our decision. The case of
Dickson v. City of Memphis Civil Service Comm’n, 194 S.W.3d 457 (Tenn. Ct. App. 2005),
discussed at length in the majority opinion, held under similar facts that the results of the
employee’s followup drug screen were inadmissible in the absence of a written consent form
that complied with the federal regulations. The holding in Dickson was based on the premise
– indeed, the assumption – that 42 U.S.C.A. § 290dd-2 was applicable to the results of the
subject employee’s followup drug screen. In the case at bar, we hold that the followup drug
screen was not a record of the patient’s “identity, diagnosis, prognosis, or treatment,” and so
42 U.S.C.A. § 290dd-2 is not applicable to a followup drug screen. This holding is directly
contrary to the premise of this Court’s holding in Dickson.

Our holding in this case is in accordance with what common sense tells us, that the purpose
of the followup drug screen was to ensure the safety of the citizens who depend on the City’s
firefighters, not to assist in Payton’s treatment. Indeed, in researching this issue to reach our
decision in this case, this member of the Court found no case in the nation holding that
followup drug testing is subject to Section 290dd-2. Such a holding would be at odds with
the intent and purpose behind Section 290dd-2. A consent form that comports with the
federal regulations must necessarily include a “statement that the consent is subject to
revocation at any time” except under limited specific circumstances. 42 C.F.R. § 2.31(8).
Requiring such a consent form would make the City’s EAP program untenable, because it
would allow a firefighter who had completed substance abuse treatment and had been
returned to active duty to simply revoke his consent to disclosure of the results of any
followup drug tests. The City would thus be left with an active duty firefighter with a known
history of substance abuse and no ability to do followup drug screens. Such a situation
would leave the City with little choice but to scrap its substance abuse program and discharge
employees with an addiction problem on the first offense. Clearly, then, any holding that the
followup drug screens are protected under Section 290dd-2 would be contrary to the intent
and purpose of that statute.


I write separately to more fully explain my reasoning, and also to state expressly that our
holding in this case abrogates the Court’s prior holding in Dickson v. City of Memphis Civil
Service Comm’n.




                                           _______________________________________
                                           HOLLY M. KIRBY, JUDGE




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