Dozens of DATIA members swarmed over Capitol Hill on Friday, February 25, as part of the association's first-ever Capitol Hill Day. Meeting attendees met with members of their Congressional delegation and staff to discuss issues of concern to those in the industry, particularly the U.S. Dept. of Transportation's (DOT) proposed revisions to Part 40, and its potential to impact the way consortia and third party administrators (C/TPA) operate their businesses and service employers.

DATIA members were seeking to enlist the help of their Congressional delegation to intervene by contacting the Secretary of Transportation to impress upon him the critical role played by C/TPAs and other service agents. DATIA members also alerted their Representatives and Senators to the potential cost and administrative burden that employers, both large and small, would be faced with if the proposed regulatory change to require that medical review officers (MROs) report test results directly to the employer, and not to intermediaries, was initiated. Members of Congress were asked to recommend to Secretary Slater that DOT clearly defines and maintains the role of consortia and third party administrators as "agents of the employer," enabled to provide comprehensive services to the employer.

Members reported significant interest by their delegations. The groundwork was laid for possible Congressional assistance in the future if the rules do not reflect industry concern.

Capitol Hill Day followed well attended sessions on how to lobby, and a panel discussion with key staff from DOT responsible for the proposed revision to Part 40. Mary Bernstein, Director of DOT's Office of Drug and Alcohol Policy, discussed the proposed changes to Part 40 indicating that the proposals are nothing new, but simply codify existing guidance and other interpretations. On the C/TPA reporting issue, Bernstein told attendees that a 1995 DOT guidance stated unless a DOT modal administration permits the reporting of results by consortia or third party administrators, results may only be reported by the MRO. Bernstein encouraged attendees to send their individual comments on the proposed Part 40 rewrite to is it better to go from A to B to C than from A to C?"

the docket by April 7, and include as many anecdotal examples as possible to support assertions made in the comments regarding the proposal's potential to impact the industry and the employers that the industry services.

Robert Ashby, DOT's Deputy General Counsel for regulation and enforcement, stirred attendees even more when he asked the audience to submit comments demonstrating how it could be beneficial for the industry if third party administrators are authorized to report test results to employers. "I need to hear that two phone calls are cheaper and more efficient and less likely to result in administrative error than one…why Meeting attendees responded that this view does not reflect what goes on in the real world. MROs simply do not have the time to place dozens of calls to employers reporting test results. Instead, the industry believes it is far more efficient for MROs to place one call, or fax, to a consortia or third party administrator with a list of results, and have the C/TPA place the individual calls. In addition, MROs are not equipped, as are C/TPAs and other service providers, to advise employers on procedures in the event of a positive test, or provide other value added services that employers, both large and small, have come to depend upon.

To maintain the momentum begun by DATIA's members meeting with their Congressional delegations, DATIA has followed up with a personal letter to all members of the House and Senate, explaining the value-added benefits that consortia, third party administrators and other service providers provide to the business community, and requesting Members contact Secretary Slater with the industry's concern. To reinforce this message, DATIA urges its members to follow up on this letter by phoning their individual Member, urging their immediate action. To reach any member of the House, phone (202) 225-3121, in the Senate phone (202) 224-3121.

Finally, DATIA would like to remind everyone of the necessity to respond individually to the DOT's Part 40 Notice by the April 7, 2000 deadline. To obtain a copy of the DOT's Notice of Proposed Rulemaking, visit the DATIA website at www.datia.org. To view comments submitted to the docket already, visit the DOT website at www.dot.gov.

1. EDUCATE YOURSELF &endash; There is no substitute for taking the time to make a serious study of the proposed Part 40 regulations. They encompass more than a hundred interpretations issued by DOT since 1988, as well as several new and unique directives.

 2. EDUCATE YOUR CLIENTS &endash; Word has clearly not gotten out about the extensive regulatory changes on the horizon. It is up to the drug testing professionals around the country to take on this task. For example, in Alabama we are participating in a half day seminar entitled "DRUG AND ALCOHOL TESTING ALERT: DOT, MRO, AND LEGAL UPDATE ON PART 40 REWRITE (PROPOSED)." The session is sponsored by the Alabama Chapter of the National Safety Council, the Alabama District Office of the DOT and co-sponsored by 6 major associations with members who have regulated employees. The DOT staff will cover significant proposed regulatory changes, Dr. C.B. Thuss, Jr., CMRO and I will repeat the popular "Adulterants: Beat the Cheats" and specifically show the new regulatory changes in conjunction with the collection process, and I will finish up with a legal update on policy changes required by Part 40 Proposed.

 3. COLLECTOR RETRAINING &endash; This is a highly significant issue that you will need to address over the next several months. I can not recommend highly enough DATIA's certified collector training program which I have been informed will be updated in conjunction with the regulatory changes. Being able to show that your collection site is accredited is highly significant when things do go wrong and you are able to prove that you have taken the necessary due diligence steps to train your collectors. The next best training method is clearly an interactive model where the trainee must answer a series of questions and then be graded on the outcome.

 4. DRUG-FREE POLICY UPDATES &endash; Based upon our review of the proposed regulations, all regulated policies will be made obsolete. To minimize legal exposures, I have often recommended that collectors and TPAs not become involved in client policy drafting. In the words of Lewis Grizzard, a famous Southern humorist, "I was married to three lovely ladies but can't recall any of their names, I merely called them all plaintiff." The reason that TPAs and collection sites should use great caution in the area of policy drafting is because they do not wish to have their name listed as a "defendant" on any complaint filed by a disgruntled employee. We have solved this dilemma for our clients by developing and licensing a computer-generated model where the employer actually creates their own customized, state-specific drug-free policy and essential forms in a matter of minutes. The software includes the appropriate disclaimers and click-through agreements. Your attorney should be able to offer similar proactive resources. If not, we are prepared to assist on a nationwide basis.

5. CLIENT CONTRACTS &endash; Pursuant to Part 40.11 of the proposed regulations there is included a mandatory contract provision. This presents an excellent opportunity for the drug testing professionals to rewrite their own contracts with employers to cover both the issues of basic payment terms, terms of service, confidentiality, expectations, who will serve as the designated employer representative, record keeping, as well as indemnification and liability issues. Much of the litigation that arises in this area is because there is no written contract detailing the terms and expectations that arise in such a relationship. This is where an attorney's proactive counsel can be extremely helpful in protecting your business.

 6. MRO RELATIONSHIPS &endash; In accordance with Part 40.3 the designated employer representative cannot also be the service agent (TPA, collector, etc.) except where a DOT agency has issued regulations permitting them to do so. Under Part 40.157 it is the MRO who is to make the reports directly to the designated employer representative when an employee has tested positive or otherwise adulterated a specimen. It is therefore essential to begin the process of reviewing your MRO relationships and seeking legal counsel on how to best protect your trade secrets and client relationships but still comply with the proposed regulatory changes. There is clearly a legal strategy we are using for our clients that would allow you to address both issues. Your attorney may have similar insights.

 7. BEGIN YOUR PREPARATIONS TODAY &endash; Waiting until the last minute will not be an option for the drug testing professional. Put together your own action steps and seek out the necessary resources and relationships before they become scarce and crunch time hits. Remember, Part 40 Proposed is anticipated to be made final before year end.

DISCLAIMER: The above should not be construed as legal advice or legal opinion as to any specific facts or circumstances. The contents are intended for general information only, and you are urged to consult your attorney concerning your own situation and any specific legal questions you may have. Tom Eden is a management labor attorney with the law firm of Wallace, Jordan, Ratliff & Brandt, L.L.C. who advises collection sites, TPAs, employers, work comp administrators, and MROs on a variety of drug and alcohol testing issues and risk reduction programs. Tom may be reached at (205) 870-0555 or te@wallacejordan.com. Please visit our Web Site at www.wallacejordan.com (which contains federal drug testing regulations and other drug free workplace resources).

National Transportation Safety Board Makes Recommendations Regarding Prescription and Over-the-Counter Medications

The National Transportation Safety Board (NTSB) recently made recommendations to the U.S. Dept. of Transportation (DOT), its modal administrations, and the U.S. Food and Drug Administration (FDA) relative to the use of licit prescription and over-the-counter medications by vehicle operators. The recommendations stem from over 100 accidents that the Safety Board has investigated since 1987 in which the use of licit medications by an operator had been causal or contributory to the accident.

In announcing the recommendations, the NTSB cited, among numerous accidents, the June 20, 1998 accident on the Pennsylvania Turnpike involving an intercity bus. In that incident, the bus, on a scheduled route from New York to Pittsburgh, left the right side of the road and struck the back of a parked tractor semi-trailer. The bus driver and six passengers were killed. The NTSB toxicology tests found 0.073 mcg/nl of diphenhydramine (an over-the-counter antihistamine commonly known by the trade name Benadryl) in the driver's blood, and determined that the accident was caused, in part, by the driver's use of this medication. The NTSB also noted that there is relatively little regulatory guidance available from DOT, its modal administrations, the FDA or other regulatory agencies for vehicle operators with regard to use of over-the-counter and prescription medication.

The NTSB is making four recommendations to the DOT: (1) That it establish a list of approved medications and/or classes of medications that may be used safely when operating a vehicle, and expressly prohibit the use of any medication not on that list, except in certain situations. (2) The modal administrations (RSPA, FAA, FMCSA, FRA, FTA, USCG) establish procedures by which modal vehicle operators who medically require substances not on the DOT's list of approved medications be allowed, when appropriate, to use those medications while operating a vehicle. (3) The modal administrations educate vehicle operators about the potential for medications to adversely affect their ability to safely operate vehicles, and that the modal administrations that regulate vehicle operators in surface modes work with DOT to obtain more comprehensive data on the nature and extent of medication involvement in fatal surface mode accidents. (4) The FDA establish and require the use of a clear warning label for medications that may interfere with an individual's ability to operate a vehicle.

To obtain a complete copy of the NTSB's recommendations to the DOT and its modal administrations, point your web browser to http://www.ntsb.gov/recs/letters/2000/i00_1_4.pdf. If you do not have access to the Internet, contact DATIA at (703) 548-0901.

SAMHSA Announces Guide to Grant Programs

 The Substance Abuse and Mental Health Services Administration (SAMHSA) recently announced the availability of Snapshot, a new series dedicated to simplifying and amplifying information about SAMHSA's grant programs. The goal of the series is to provide service providers, state and local substance abuse and mental health administrators, educators, consumers, and family organizations with all the information they need about SAMHSA grant programs in one readable and compact source.

Snapshot is available at no cost from SAMHSA. To obtain a copy, send an e-mail to snapshop@samhsa.gov, or visit their web site at http://www.samhsa.gov/GRANT/0229snapshot.htm. Requests can also be faxed to (301) 443-1587.

DATIA Launches Drugtestingnews.com!

Drugtestingnews.com is the first one-stop all-inclusive "web portal" encompassing all areas of drug and alcohol testing news and information. Drugtestingnews.com's mission is to provide a central source of information on drug and alcohol testing articles in the national media, federal and state government, the private sector, and the judicial system.

Drugtestingnews.com covers legal issues and court cases, the latest developments and technological advancements in drug and alcohol testing, and tips on prevention and treatment programs in the workplace or schools. It is a one-page daily resource containing links to all necessary information for substance abuse professionals.

Drugtestingnews.com is an important development for DATIA. This new web site is used as a vehicle to draw in more members to DATIA. Substance abuse professionals that are not familiar with DATIA, its membership and programs can link to the DATIA web site from Drugtestingnews.com.

This new web site contains a "What's New" category that links to the most current news in all areas of drug and alcohol testing. The latest articles published by experts in drug testing and technology, a national survey releasing drug data, or an important court case ruling would appear in this particular category. A "Legislative/Regulatory" category includes legislation and regulations addressing the workplace and schools in the area of drug and alcohol testing and other substance abuse related issues. A "Legal/Court Cases" section encompasses relevant court rulings and legal issues. The "Business/Economic" topic furnishes the viewer with up to date tips and information on small business and the financial aspects of drug and alcohol testing. A "Technology/Science" section addresses any new advances, techniques, or discoveries important to the drug and alcohol testing and substance abuse arena. The "Prevention/Treatment" category links to strategies, fact sheets, and guides to prevention and treatment from small business programs to school prevention programs.

DATIA closely monitors federal agencies, new regulations, drug and alcohol testing technology, court cases, and prevention and treatment to provide the most comprehensive web site available to members of small business, substance abuse professionals, drug and alcohol testing professionals, and the general public. Please visit this web site at http://www.drugtestingnews.com and send DATIA your comments, feedback, or any important links.

Mark Your Calendars! DATIA 5th Annual Conference

The DATIA 5th Annual Conference will be held May 31-June 2, 2001 at the WigWam Resort in Phoenix, Arizona. The DATIA 2001 Conference will once again include top notch speakers within the drug and alcohol testing industry speaking on current and cutting edge topics, speakers that will help move your company forward in the industry, as well as feature the association's 1st Annual Member Golf Tournament. The association has secured a guest rate of $130 at this nationally acclaimed 5 star resort which boasts 3 championship golf courses, 9 tennis courts, 2 pools, and a myriad of other activities for guests to enjoy while on the property. For more information on the meeting location, visit www.wigwamresort.com, and keep posted for the conference agenda in early September.

Recently, DATIA developed a survey concerning the U.S. Dept. of Transportation's proposed revisions to regulations governing its mandated drug and alcohol testing program (49 CFR Part 40). The survey sought member opinions in eight (8) areas of interest. There were 1,100 surveys distributed to the membership and DATIA received 160 responses (14.5% of the membership). Following are the summarized results of the survey:

1. Public Interest Exclusions (PIES)

a. Do the normal open legal and judicial system's procedures (where the service agent could be fined or charged with an offense such as fraud) have more safeguards and procedural objectivity than a private DOT procedure?

67 YES (41.8%); 70 NO (43.75%); 23 NO ANSWER (14.4%)

b. Should DOT consider allowing other service agents such as consortia, third party administrators, collectors, etc., to set and enforce their own industry developed and accepted standards that would permit only those service agents meeting certification standards to be allowed to provide DOT mandated testing services?

94 YES (58.75%); 55 NO (34.4%);

6 NO ANSWER (3.75%)

c. In your view, does the DOT proposal make it clear what could constitute serious non-compliance versus a minor mistake?

18 YES (11.25%); 134 NO (83.75%); 8 NO ANSWER (5%)

d. Should DOT consider the BAT certification process as a model program that could be adapted for other service provider certification?

113 YES (70.6%); 38 NO (23.75%); 9 NO ANSWER (5.6%)

e. Should DOT consider using a panel of drug and alcohol testing industry experts to review possible Part 40 violations by service agents to determine if they are, in fact, significant or minor, with DOT providing an appropriate response based on the industry panel's recommendation?

120 YES (75%); 35 (21.9%) NO; 5 NO ANSWER (3.1%)

f. Do you believe that such an industry advisory panel would be more open and objective than a private DOT proceeding?

114 YES (71.3%); 40 NO (25%); 6 NO ANSWER (3.75%)

g. In your view, would the PIE provision become bogged down with disputes among industry competitors reporting each other for "serious violations" when economic factors (lost business, retaliation, etc.) were the real issue?

105 YES (65.6%); 45 (28.1%) NO; 10 NO ANSWER (6.25%)

h. Should DOT allow a complaint from an industry competitor to be sufficient enough grounds to initiate a PIE?

20 YES (12.5%); 132 NO (82.5%); 8 NO ANSWER (5%)

2. Service Agent Assurance

a. Do you believe that a service agent contract will serve to ensure accountability and quality of service between industry professionals and their customers?

82 YES (51.25%); 67 NO (41.9%); 11 NO ANSWER (6.9%)

b. Should such a contract be required, as the DOT proposes?

82 YES (51.25%); 67 NO (41.9%); 11 NO ANSWER (6.9%)

3. Role of Consortia and Third Party Administrators

a. Would this provision remove key C/TPA functions and valued added services your program currently provides to clients?

94 YES (58.75%); 54 NO (33.75%); 12 NO ANSWER (7.5%)

b. In your experience, are MROs able to provide the employers value-added services that go along with a test result, such as information on removing an employee following a positive result, follow-up programs, reporting to an agency, etc.?

70 YES (43.75%); 83 NO (51.9%); 7 NO ANSWER (4.4%)

c. In your experience, are MROs sufficiently knowledgeable on modal (FAA, Coast Guard, FTA, etc.) specific procedural issues posed by an employer in response to receiving drug test results or questions that are accurately answered by the C/TPA?

62 YES (38.75%); 89 NO (55.6%); 9 NO ANSWER (5.6%)

d. In your experience, do small businesses usually (50 persons or less) have the resources available to provide a dedicated Designated Employer Representative to receive and act upon test results from the MRO in a timely fashion?

63 YES (39.4%); 90 NO (56.25%); 7 NO ANSWER (4.4%)

e. In your experience, is an MRO available frequently enough to properly report all drug tests, both positive and negative, to the employer in a timely fashion?

72 YES (45%); 81 NO (51%); 7 NO ANSWER (4.4%)

f. Would you support a possible DATIA proposal where C/TPAs would be allowed to receive negative results from the MRO on behalf of the employer, and allow the MRO to report confirmed positive results simultaneously to the employer and the C/TPA?

128 YES (80%); 28 NO (17.5%); 4 NO ANSWER (2.5%)

g. Would you support a possible DATIA proposal to allow C/TPAs to receive and report all confirmed test results for small employers of 10 or fewer employees, and not require direct MRO reporting to these small companies?

98 YES (61.25%); 56 NO (35%); 6 NO ANSWER (3.75%)

h. Do you believe that allowing the C/TPA to act as the "agent of the employer" in receiving both positive and negative test results is:

14 NOT IMPORTANT (8.75%); 23 NEUTRAL (14.4%); 22 SOMEWHAT IMPORTANT (13.75%); 95 VERY IMPORTANT (59.4%); 6 NO ANSWER (3.75%)

4. Drug Testing Forms and Materials

a. In your experience, would a universal chain of custody form (CCF) with a check box to indicate whether a "Federal" or "Non-Federal" test was being performed address this concern and not compromise the integrity of DOT mandated tests?

117 YES (73.1%); 39 NO (24.4%); 4 NO ANSWER (2.5%)

b. Would a universal CCF lessen the chance of a staff person completing the inappropriate form for the test being performed?

123 YES (76.9%); 36 NO (22.5%); 1 NO ANSWER (.63%)

c. Would the requirement to use a testing kit conforming to DOT standards help to ensure proper and consistent collection procedures?

127 YES (79.4%); 31 NO (19.4%); 2 NO ANSWER (1.25%)

d. Are the current measures used to secure testing materials and supplies adequate?

144 YES (90%); 11 NO (6.9%); 5 NO ANSWER (3.13%)

e. Are you aware of any instances of widespread tampering with, or theft of, testing materials or supplies?

2 YES (1.25%); 157 NO (98.13%); 1 NO ANSWER (.63%)

5. Collector and MRO Training

a. Do you believe that implementing training requirements for collectors and MROs will serve to increase the integrity and quality of drug tests by further reducing the chances of error?

145 YES (90.63%); 13 NO (8.13%); 2 NO ANSWER (1.25%)

b. Will such training allow collectors and MROs to remain current of changing regulations and technologies?

145 YES (90.63%); 13 NO (8.13%); 2 NO ANSWER (1.25%)

c. To ensure the quality of the training being received by collectors, should some sort of standard training and certification process for the trainer be required?

140 YES (87.5%); 16 NO (10.0%); 4 NO ANSWER (2.5%)

d. Could adequate training be considered something as simple as reviewing current videotape or written training material on appropriate procedures, followed by a test?

124 YES (77.5%); 31 NO (19.4%); 5 NO ANSWER (3.13%)

6. Conflict of Interest Provision

a. Have you encountered a specific situation where you believe that a real conflict of interest existed between the MRO and a Laboratory?

28 YES (17.5%); 127 NO (79.4%); 5 NO ANSWER (3.13%)

b. Have you encountered a specific situation where you believe that a real conflict of interest existed between the MRO and a Consortium/Third Party Administrator?

23 YES (14.4%); 133 NO (83.13%); 4 NO ANSWER (2.5%)

7. Adulterants

a. In your experience, have adulterants and other attempts to tamper with specimens brought into question the integrity and quality of services provided by the testing industry to its customers?

94 YES (58.75%); 62 NO (38.75%); 4 NO ANSWER (2.5%)

b. Are the additional costs associated with an adulterants test panel outweighed by the positive benefits for the employer and the general public?

117 YES (73.13%); 34 NO (21.25%); 9 NO ANSWER (5.63%)

 8. Electronic Records and Signatures

a. Will the use of e-forms and e-signatures streamline the collection process and increase the accuracy of the information provided on these forms?

74 YES (46.25%); 68 NO (42.5%); 18 NO ANSWER (11.25%)

b. Will electronic media reduce administrative and storage costs?

102 YES (66.25%); 44 NO (27.5%); 14 NO ANSWER (8.75%)

c. Is the testing industry advanced enough to warrant considering the use of e-forms and e-signatures?

71 YES (44.4%); 73 NO (45.6%); 16 NO ANSWER (10%)

d. Should DOT and HHS work cooperatively to permit the optional use of e-forms and e-signatures within three (3) years?

125 YES (78.13%); 25 NO (15.6%); 10 NO ANSWER (6.25%)