The NTSB has just released a report highly critical of the Department of Transportation’s (DOT) background verification regulation, known as 49 CFR Part 40.25, echoing other industry critics of the regulation. The failure marks given to the DOT on “§40.25” is consistent with the position of the American Trucking Association (ATA) and labor groups, who urge, along with DATIA, that a national database be substituted for the failed §40.25 as soon as possible.

This background verification provision was recently expanded to all transportation modes, having been in effect for only the Federal Motor Carrier Safety Administration (FMCSA) for the past five years. An open comment period for one industry (maritime) generated unanimous opposition to the rule by affected employers, but DOT moved forth to implement the new rule effective August 1, 2001. The NTSB study illustrates the concerns of the industry about the ineffectiveness of §40.25, and demonstrates that a national database could have helped avoid a recent major accident.
In a September 10, 2001 Safety Recommendation to the FMCSA, the NTSB stated, “This investigation found that no mechanism exists for identifying drivers who have tested positive for drugs.” (The background verification provision was in effect for FMCSA at the time of the accident). The investigation of the May 22, 1999 bus accident that killed 22 passengers and injured many more revealed that when the driver applied for the position, he omitted two employers, in which he had been dismissed for testing positive for marijuana. The investigation also identified that the employer sent requests for prior drug and alcohol testing information to the two employers provided on the driver’s employment history, both of which were authorized by the bus driver. However, the employer did not receive a response from either company.

In light of these findings, the NTSB found three key problems with the background check provision. The first problem found that the driver was able to avoid negative scrutiny from his employer by omitting parts of his employment history. Although required by the regulation to provide an employment history, drivers are unlikely to provide accurate information when they know that it will show they have a prior positive test result. This fact was also illustrated by ATA in comments to the FMCSA regarding a national database. In regards to the new requirement for prospective employers to ask applicants if they have a prior positive test result, the NTSB stated, “The Safety Board does not believe this self-reporting method will effectively identify problem drivers because drivers are unlikely to provide information that may limit their employment opportunities.”

The second problem revealed by the investigation was that although the employer obtained the driver’s permission to investigate his employment history, it did not receive a response from any of the former employers it contacted.

The third issue consisted of no enforcement mechanism or incentive existed to compel previous employers to comply with information requests. Current regulations allow for this non-reporting of drug and alcohol testing information by previous employers by stating that current or potential employer need only make a “good faith effort” to obtain the information.

The NTSB summarized their findings by stating that “because employees are unlikely to divulge positive drug test results and because prospective employers may not have sufficient employment history or the authority to obtain information from previous employers regarding positive drug tests, the Safety Board concludes that results of tests for controlled substances performed under the U.S. Department of Transportation testing guidelines, even when positive, are often not available to prospective employers, making it difficult for them to make well-informed hiring decisions.”

The NTSB also concluded “that the current Federal drug testing regulations cannot adequately identify owner-operators who abuse controlled substances.”

These problems with the background check are not new and are not limited to rare occurrences. ATA, which represents every type and class of motor carrier in the country, refers to these problems as “common knowledge.” DATIA has addressed these problems in detail to the FMCSA and the DOT on multiple occasions. They were discussed in letters to DOT on April 9, 2001 and August 8, 2001; and in DATIA’s comments on the proposed modal regulations (June 14, 2001), on §40.25 (July 16, 2001), and on the establishment of a national database (August 8, 2001).

DATIA, on behalf of its members, has actively advocated the need for a national database for positives. With the new requirement to perform background checks on all DOT covered employers, DATIA’s focus shifted to not only advocating the establishment of a national database for drug and alcohol test histories, but to also support the elimination of the current background check provision. If the provision isn’t working, it is simply an unneeded burden for service agents and employers with minimal safety benefits for the transportation industry. DATIA will keep its members and the industry informed as we continue to move forward on this issue.

Recently, DATIA analyzed the new conforming rules to the Department of Transportation’s (DOT) 49 CFR Part 40 and has highlighted important changes to the modal regulations.

Federal Aviation Administration (FAA)
Regarding the FAA Approved Consortia, since 49 CFR part 40 contains requirements for consortia, the FAA eliminated its consortia approval process. All FAA approvals are rescinded and consortia that were previously approved by the FAA can no longer state that they are “FAA Approved.” The FAA has also replaced references to consortia within the regulations with the term “Consortia/Third Party Administrators (C/TPAs).” Employer drug and alcohol program plans are still required to be filed and approved by the FAA, and C/TPAs may continue to prepare and forward the employer’s plan submissions to the FAA as long as the employer signs and certifies the document. In addition, employers who previously submitted a “Consortium Member Antidrug/AMPP Certification Statement” do not need to resubmit their plans since they are substantively the same as the individual plans now required. Previously, only “FAA Approved” Consortia could combine employees from different employers, however, now that practice is allowed by all C/TPAs.

As part of “allowing testing for drugs other than the NIDA 5,” previously, employers could get approval from the FAA to test for additional drugs (the Department of Health and Human Services had established an approved testing protocol). Since §40.85 prohibits testing for additional drugs, the FAA has removed this from their regulations.

Under the “Substance Abuse Professional (SAP) and Medical Review Officer (MRO) Responsibilities,” MROs may perform both MRO and SAP responsibilities. However, to do so, the MRO must meet both the MRO and SAP qualifications as outlined in CFR 49 part 40. Previously, the MRO would determine when a return to duty test would occur and the number of follow-up tests an employee should have. These responsibilities have been transferred to the Substance Abuse Professional (SAP).

Included in the “Holders of 14 CFR part 67 medical certificates” section of the regulation, the responsibility of forwarding the SAP report to the Federal Air Surgeon has been transferred to the employer.

Federal Motor Carrier Safety Administration (FMCSA)
Under the “Employee Admission of Alcohol and Controlled Substances Use,” the FMCSA added a new section into the regulations allowing, but not requiring, employers to establish programs that permit employees to self-identify drug use or alcohol abuse without DOT consequences. In the program, the employee must disclose his/her drug or alcohol problem prior to reporting for safety-sensitive duty on any given day. If the employee fails to obtain the recommended treatment, he/she is considered to have violated the conditions of the employer’s self-admission program. The employee must then be removed from safety-sensitive duty and complete the DOT required return to duty process.

As part of “Random Testing,” rather than publishing the random testing rate at the beginning of each year, the FMCSA will publish the rates only when a change in the rates is required. In addition, the regulations have been clarified to state that each driver selected for testing shall have an equal chance of being tested each time selections are made. This is to prohibit employers from choosing “alternates” when the employee selected for testing is unavailable.

Federal Railroad Administration
Changes were made only to conform to CFR 49 Part 40.

Federal Transit Administration (FTA)
CFR 49 parts 653 and 654 have been combined into CFR 49 part 655.

Under “Access to Records,” the FTA has added a paragraph authorizing an employer to disclose drug and alcohol testing information maintained by the state oversight agency or grantee responsible for certifying compliance with the CFR 49 parts 40 and 655 to the FTA.

Regarding “Maintenance Contractors,” the FTA reiterated that maintenance contractors are subject to the requirements of CFR 49 part 655. However, FTA has made three exceptions to the requirement. First, recipients funded with 49 USC 5311 funds who contract out maintenance service are exempt. Second, recipients of Federal Transit Funds under 49 USC 5307 and 5309 in an area with less than 200,000 in population that contract out maintenance service are exempt. Third, maintenance providers of safety-sensitive functions that are used on an ad-hoc or one-time basis are exempt.

Previously under “Pre-employment testing,” the FTA regulations stated that a person could not be hired until a negative drug test result had been obtained. This regulation has been changed to state that the person cannot perform safety-sensitive functions prior to receiving a verified negative drug test result. The FTA also clarified that a person who has been absent from his/her position for 90 days or more and has not been in the random testing pool, must take a pre-employment test prior to resuming safety-sensitive functions. If the person remained in the random testing pool during that time, he/she does not need to take another pre-employment test.

United States Coast Guard
Under the “Substance Abuse Professional (SAP) and Medical Review Officer (MRO) Responsibilities,” MROs may perform both MRO and SAP responsibilities. However, to do so, he/she must meet both the MRO and SAP qualifications as outlined in CFR 49 part 40.

While positives have been required to be reported to the Coast Guard Officer in Charge, Marine Inspection by the crewmember’s employer, this section has been changed to include reporting by the “sponsoring organization.” In addition, Medical Review Officers are encouraged in §16.203 (b) (2) to report verified positive test results to the Coast Guard, especially for unemployed or self-employed mariners.

In the previous issue of DATIA News, several areas regarding hair testing for drugs were discussed including the advantages to hair testing, drug use and the Americans with Disabilities Act (ADA). In conjunction with this topic, are guidelines to follow regarding hair testing and the ADA.

Risk-Reduction Practical Guidelines

Below is a brief “Do & Don’t” list regarding hair testing and the Americans with Disabilities Act and good risk-reduction practices.

Do: Obtain specific written consent covering hair specimens before collection.

Getting written consent prior to any kind of drug testing is a wise policy for employers and could save them from some difficult legal problems later. Policies, consent, and COC forms should consistently refer to “hair” as a type of specimen that is subject to collection under the entity’s drug free policy. This could also be carefully written into the DOT-regulated policies under a “company policy” section separate and apart from complying with DOT mandates.

Do: Use a Certified Medical Review Officer (CMRO) qualified to review hair-testing results.

Use 49 CFR Part 40 as the guidepost for analyzing all types of employee drug testing procedures, if applicable. Hair testing is substantially different from urine testing and your CMRO needs to be trained in those differences.

Do: Maintain confidentiality.

Test results should be kept in a file separate from the employee’s general personnel file and locked in a secure place. Results should be discussed only on a need-to-know basis and released only with the express, written consent of the employee. Look at the DER responsibilities under 49 CFR Part 40 (revision effective August 1, 2001) for guidance.

Do: Regard proof of rehabilitation with prudence.

At least one court that looked at employees fired for using illegal drugs decided that the fact that the employees were undergoing rehabilitation at the time of their dismissal was irrelevant to the question of whether they had illegally used drugs recently enough to satisfy the “current illegal use” definition. Collings v. Longview Fibre Co., 63 F.3d 828, 833 (9th Cir. 1995).

However, as noted above, a person who has been rehabilitated from past illegal drug addiction may fall under the protection of the ADA if they meet the Act’s definition of “disability” (physical or mental impairment substantially

OxyContin is a semisynthetic opioid analgesic prescribed for chronic or long-lasting pain. The medication’s active ingredient is oxycodone, which is also found in drugs like Percodan and Tylox. However, OxyContin contains between 10 and 160 milligrams of oxycodone in a timed-release tablet. Painkillers such as Tylox contain 5 milligrams of oxycodone and often require repeated doses to bring about pain relief because they lack the timed-release formulation.

OxyContin, also referred to as “Oxy,” “O.C.,” and “killer” on the street, is legitimately prescribed as a timed-release tablet, providing as many as 12 hours of relief from chronic pain. It is often prescribed for cancer patients or those with chronic, long-lasting back pain. The benefit of the medication to chronic pain sufferers is that they generally need to take the pill only twice a day, whereas a dosage of another medication would require more frequent use to control the pain. The goal of chronic pain treatment is to decrease pain and improve function.

OxyContin abusers either crush the tablet and ingest or snort it or dilute it in water and inject it. Crushing or diluting the tablet disarms the timed-release action of the medication and causes a quick, powerful high. Abusers have compared this feeling to the euphoria they experience when taking heroin. In fact, in some areas, the use of heroin is overshadowed by the abuse of OxyContin.

Substantial profits are made in the illegal sale of OxyContin. A 40-milligram pill costs approximately $4 by prescription, yet it may sell for $20 to $40 on the street, depending on the area of the country in which the drug is sold.

OxyContin can be comparatively inexpensive if it is legitimately prescribed and if its cost is covered by insurance. However, the National Drug Intelligence Center reports that OxyContin abusers may use heroin if their insurance will no longer pay for their OxyContin prescription, because heroin is less expensive than OxyContin that is purchased illegally.

Recently, many reports of OxyContin abuse have occurred in rural areas that have housed labor-intensive industries, such as logging or coal mining. These industries are often located in economically depressed areas, as well. Therefore, people for whom the drug may have been legitimately prescribed may be tempted to sell their prescriptions for profit. Substance abuse treatment providers say that the addiction is so strong that people will go to great lengths to get the drug, including robbing pharmacies and writing false prescriptions.

For additional information on OxyContin, access the Substance Abuse and Mental Health Services Administration’s web site at www.health.org.

DATIA is asked many questions regarding its Certified Professional Collector Trainer (CPCT™) Course and the Accredited Collection Facility Application. Below are answers to some frequently asked questions often posed to DATIA staff.

QUESTION: If I received my training guidebook at a Certified Professional Collector Trainer (CPCT™) course prior to the rule changes and the guidebooks have since been revised to incorporate the new changes, do I receive the updated version of the manual for free?

ANSWER: Like most reference books and manuals, new editions of DATIA’s Specimen Collection Manual are not free. DATIA informs members when the federal rules that govern drug and alcohol testing are changed or modified. Our manuals always reflect current rule changes. If ever a guidebook is purchased prior to a revision, the revised edition of the guidebook must be purchased.

QUESTION: Once I attend a Certified Professional Collector Trainer (CPCT™) course, how do I register to take the certification exam and how is it administered?

ANSWER: At the CPCT™ training course you will be given a CPCT™ exam registration form. The form includes the date you would like to take the test, when/where you took the CPCT™ training course, and your general contact information, such as your address, number, fax etc. This form must either be completed and faxed to DATIA or turned in on-site at the training course. The exam is administered every Thursday (with the exception of holidays and if

the Thursday is during the week of a scheduled training course) by fax. A confirmation letter will be sent to you by the Wednesday before the exam. The day of your exam, you will receive your faxed test questions and answer sheet by 10 a.m. eastern time. You have until 5 p.m. Eastern time to return it by fax to DATIA.

QUESTION: How can my facility become accredited and how much does it cost?

ANSWER: You must complete an Accredited Collection Facility program application. The application ensures that the facility is upholding the highest professional standards in the following two main areas: 1) the collection facility and its operation, and 2) the collection facility’s personnel. All accredited collection facilities are required to maintain a staff of Certified Professional Collectors (CPC™) and a Certified Professional Collector Trainer (CPCT™).

To obtain accredited status, collection facilities are also required to adhere to strict standards in areas such as regulatory compliance, company services standards, specimen handling, operational practices, business ethics, and facility equipment. Once the Accredited Collection Facility Application is reviewed and it is determined that the facility upholds all standards, accreditation status is granted. There are no additional fees for accreditation.

For information on the CPCT™ Course or the Nationally Accredited for Administration of Drug and Alcohol Testing Programs (NAADATP) course, or to download a brochure and application, access www.datia.org.