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The Minnesota Department of Human Services (DHS) serves as a statutory authority for both licensing enforcement of substance use disorder treatment programs (Minnesota Statues 245G/245F and Administrative Rules 32/2960) and policy guidance for those programs both licensed by or enrolled with Minnesota Health Care Programs (MHCP) to provider services in accordance with Minnesota Statutes 254A.03 and 254B.05.
DHS has been contacted regarding the use of drug detection dogs in substance use disorder treatment settings. The Department does not support this practice. It is our position that the introduction of law enforcement personnel utilizing drug detection canine fundamentally changes the treatment milieu, has the potential to create any number of negative unintended consequences ‐ including serious concerns involving racial equity and compounding trauma ‐ and raises questions about the ramifications if drugs are discovered, including potential legal and ethical violations as well as impact and unintended consequences of this practice. These comments are specific to the use of bringing in trained drug detection dog and handler teams, hereafter referenced as drug detection dogs, for the purposes of discovering drugs/contraband and would not be at all applicable to the use of dogs in animal‐assisted therapy, which is an effective therapeutic tool supported by significant research.
Though DHS recognizes the need for SUD programs, particularly those providing residential treatment services, to have policies prohibiting the presence of drugs or certain contraband for the health and safety of all residents, the use of drug detection dogs raises serious privacy implications in the absence of a legitimate reason or probable cause for the search. Clients in SUD residential settings are protected by the Health Care Bill of Rights, Minnesota Statute 144.651, as well as all rights of privacy protected by both the Health Insurance Portability and Accountability Act (HIPAA, 45 CFR 160-164) and the Confidentiality of Substance Use Disorder Patient Records found in 42 CFR Part 2.
Given these rights embedded within the licensing regulations for SUD treatment programs, DHS would question whether the use of drug detection dogs, in sweeping searches across the facility, including patient rooms, is even allowable. It would seem to violate the current rights language. Moreover, given our statutory mission to promote the highest attainable standards of treatment and effectiveness for our clients, we would emphasize going beyond whether such practices are simply allowable to whether they are advisable.
DHS believes that the use of drug detection dogs in treatment settings fundamentally transforms the treatment environment such that it becomes less of a treatment setting and more of an adversarial and potentially hostile environment where, in the absence of any probable cause, all clients come to be regarded as a suspects. DHS has concerns that this will result in diminishing any trusting relationship at the facility and, by extension, precluding the development of a therapeutic relationship with treatment professionals. DHS contends that it is also inconsistent with the provider’s obligation to develop a person‐centered individual treatment plan. There is nothing individualized or person‐centered about being required to submit to search by a drug detection dog as a condition of accessing treatment.
Additionally, DHS highlights the potential conflict between the use of drug detection dogs and potential privacy implications pursuant to CFR 42 Part 2. The act of bringing the dog and its handler into the setting to conduct the search reveals the presence of individuals in the facility seeking SUD treatment with no discernable treatment function. It also raises questions about process if the dog alerts to the presence of substances. Clients in a residential setting are the most vulnerable as a function of their acuity and placement. The potential of discharge as a product of a symptom of the illness the client is seeking services for is contradictory to the purpose of stabilization and coordination of care with ongoing treatment. The use of drug dogs shifts from focus from a supportive and stabilizing environment to that of suspicion and punishment.
Again, we would point to CFR 42 Part 2 regulations that would seemingly prohibit such notification barring a client’s informed consent. If such notification is prohibited, it would seem the dogs serve no purpose other than to, at best, create an unnecessarily adversarial and hostile treatment milieu and, at worst, criminalize the treatment environment in a way that has the potential to both violate client rights and erect barriers to continuity of much needed care.
DHS does not view the use of drug detection dogs as consistent with trauma‐informed care principles. Many clients in SUD settings have had interactions with law enforcement as a result of their substance use. For many of them, these interactions have been intensely traumatic. We maintain concerns that the implementation of a law enforcement tactic, such as the use of drug detection dogs, in a treatment setting has great potential to re‐traumatize clients in what should be a safe and therapeutic environment where they have an opportunity to begin to address previous trauma ‐ not to have that trauma triggered unnecessarily.
This issue must also be considered recognizing the reality of systemic racism affecting Black, Indigenous and People of Color (BIPOC) communities and the many years of trauma related to negative interactions with a biased and prejudicial law enforcement system as a result of that racism. DHS has additional concerns regarding the potential for BIPOC clients in SUD treatment settings to be further traumatized by the seeming criminalization of the treatment environment and the potential for racial inequity in the deployment of drug detection dogs in these settings.
DHS does not envision a guideline or policy that can sufficiently address the fundamental alteration of the treatment environment created by the presence of drug detection dogs conducting facility searches. We do recognize and understand the need to keep SUD treatment settings free of substances, and the challenges providers wrestle with in their attempts to do so, but it is the position of DHS that there are already provisions allowing providers to conduct a search when there is reasonable suspicion to do so. The use of drug detection dogs, however, is contrary to what is currently accepted practice. It results in a search of everyone, treating all clients as potential suspects, in a seeming attempt to proactively prevent the presence of substances in its facility without regard for the rights of all clients or the significant potential to do real and lasting harm.
DHS strongly opposes the use of drug detection dogs in SUD treatment facilities. We believe that the legal and ethical principles and requirements surrounding privacy suggests that such tactics are not only inadvisable but unallowable. However, were such a practice allowed in these treatment facilities, we would emphatically urge programs to develop strong limitations and guidelines on when and how they could be used. At a minimum, those parameters and policies would need to take into account not only clients’ right to privacy, but the potential for significant harm associated with trauma and racial inequities in the execution of drug detection dog searches by providers in an unregulated industry, recognition of the potential fallibility of drug detection dogs, include due process provisions, clarity on what actions a facility may take if substances are discovered via such a search, and what information, if any, may be shared with individuals outside the facility.
In a collaborative effort between the Behavioral Health Division and the Office of the Ombudsman for Mental Health and Developmental Disabilities (OMHDD), please review the OMHDD’s statement on the use of drug detection dogs in substance use disorder treatment settings.
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