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Inside This Issue:
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DATIA’s 6th Annual Conference Offers Real World Solutions to Your Business
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The DATIA 2002 Annual Conference to be held May 2-4, 2002 at the San Antonio Adam's Mark will feature top notch speakers within the drug and alcohol testing industry. DATIA's 6th Annual Conference and Exposition - “Roaming the Range of Drug and Alcohol Testing: Case Studies Illustrating What Works and What Doesn't” - will be the drug and alcohol testing industry's biggest event of the year by far, providing attendees insight, information, and advocacy on issues that impact providers of drug and alcohol testing services.
In light of events that have increased the nation's focus on safety issues, drug and alcohol testing has become more important than ever. This year's agenda will focus on providing attendees with real world solutions to providing comprehensive drug and alcohol testing services to ensure safety and compliance. The conference will look at whether drug and alcohol testing has provided employers with their expected results and will provide ways to increase the effectiveness of drug and alcohol testing in today’s competitive world.
Top-level speakers from federal agencies and the industry will address the conference and interact with attendees to discuss several areas of crucial importance. The DATIA conference will also provide the opportunity for individuals to learn from the experiences of other industry professionals on how to best implement drug and alcohol testing. DATIA's unique and needed role as an educator for the industry ensures that the conference will be the first of its type with an agenda that promotes learning from the experience of others in the industry.
Advancements in technology have been made at an unprecedented pace within the drug and alcohol testing industry, and have already begun to have an effect on professionals that provide services in the industry. This conference will provide attendees with comprehensive information on the technological advancements made within the industry and what they mean for both providers and end-users of drug and alcohol testing.
DATIA’s keynote speaker for the upcoming conference is the world renowned, Dr. Leo Kadehjian, a biomedical consultant, lecturer, and writer on clinical, scientific, regulatory, and legal issues in drugs of abuse testing. Dr. Kadehjian has provided consulting services to IBM, Exxon International, Texaco, and General Motors, and is currently working as a consultant for Substance Abuse Specialties, Inc. (SASI), who has sponsored Dr. Kadehjian’s presentation for the conference . Dr. Kadehjian received his Bachelor’s degree in Organic Chemistry from M.I.T., and his Ph.D. in Biochemistry from Stanford University.
At the DATIA conference, Dr. Kadehjian will be addressing the topic of urine specimens and will comment on adulteration of other specimens, including the various adulterants used in vitro (added to a specimen) in attempts to thwart the testing process, from the earlier used common household chemicals through more sophisticated adulterants such as glutaraldehyde, nitrites, chromates, and peroxide/peroxidase systems. He will also discuss which assays are most affected, their mode of action, and detection both on-site and by the laboratory.
Dr. Kadehjian will also talk about dilution (essentially the only potentially effective in vivo adulteration). He will review basic kidney physiology, the mechanics of excess fluid consumption and urine dilution. He will explain which assays are most affected, and detection of dilution through creatinine and/or specific gravity determinations, both on-site and at the laboratory. He will also review the federal regulations, legal, and policy issues concerning adulteration and dilution.
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Another presentation that can’t be missed is the “State Law Implications for Drug and Alcohol Testing,” presented by Josephine Kenney, Director of Special Services and Compliance for ChoicePoint. Ms. Kenney has been involved in the third party administration of substance abuse testing programs for 13 years. She is credited with obtaining the first Consortium Plan approval from the Federal Aviation Administration. She is a graduate of Hartford College for Women, Smith College, and the University of Connecticut School of Law. Ms. Kenney is admitted to practice before the Superior Court of Connecticut and The United States District Court District of Connecticut.
She is ChoicePoint’s primary industry representative and manages the CP/NSA field office in Connecticut, where she is responsible for training, Employee Assistance Programs, the SAP/Return to Duty Service, substance abuse policy review, and program audits.
Ms. Kenney will present to attendees the critical importance of legitimate authority to conduct drug and alcohol testing. She plans to explain the various sources of legal authority to conduct testing and the relative weight of each as legal justification for drug and alcohol testing. To that end, she will review Federal statutory authority, State and local statutory authority, local laws and ordinances, federal and state regulatory authority and the impact of case law or lack of case law precedent. She will review each of the U.S. DOT Agency’s preemption sections as they relate to other legal authority to test, and will explain how these legal sources of authority effects C/TPA and other Service Agents’ client service delivery and internal processes and procedures. Finally, Ms. Kenney will explain how to obtain and keep current with the sources for authority to test.
Also, Joe Reilly, President of Florida Drug Screening, Inc., and a member of DATIA’s Board of Directors, will talk about writing a winning grant proposal. Mr. Reilly has been a recipient numerous times of the Small Business Administration’s Paul Coverdell Drug Free Workplace grant. He will discuss techniques and offer suggestions on writing grant proposals and how to approach the grant application (see Joe Reilly’s article on page 8). Also, presenting on this panel will be Patrick Jarrett of Trident National Corporation and Jeff Sims of a’Test Consultants. Both are recipients of the Drug Free Workplace grant.
For those in the know, there is plenty of money provided in the form of grants to be used by drug and alcohol testing professionals. But finding the source of grants, and more importantly, being selected as a grant recipient is harder than it seems. In this session, organizations providing grants and successful grant recipients will share their secrets on how to locate and receive grant monies for drug and alcohol testing.
As a drug and alcohol-testing provider, this is the one conference that can't be missed. Don't let this opportunity to meet with key legislative and regulatory officials, industry experts, and leaders in the advancement of drug and alcohol testing pass you by. We look forward to seeing you at this premier industry event in San Antonio, TX.
The San Antonio Adam's Mark is situated on a scenic bend of the famous San Antonio Riverwalk. The Adam's Mark is centrally located in the downtown area within walking distance of the Alamo, Market Square, and numerous shops, restaurants, and entertainment. For more information and a complete agenda, visit www.datia.org.
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DATIA Seeks Solution to Safety Sensitive Employees With Concurrent Employers
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In November 2001, DATIA received copies of drug and alcohol testing program agreements, which enable employers to release an employee’s drug and alcohol test results to the employee’s concurrent employers. Unsure as to whether this constituted a blanket release, DATIA forwarded the forms to the Department of Transportation (DOT) and were subsequently informed that the forms were indeed blanket releases and that their use was prohibited by 49 CFR part 40.
While the DOT has clarified that such forms may not be used, the problem of how to handle employees with multiple concurrent employers still exists. As such, DATIA has requested that the DOT establish a working group to address the problems encountered by employers in employing safety sensitive employees who concurrently work for multiple employers. The DOT has indicated that there are not a large number of safety sensitive employees who work for multiple DOT-covered employers, however, our members’ experiences show otherwise.
The first problem encountered by employers in hiring a person that also works in a safety sensitive position for other employers is determining in which drug and alcohol-testing program the employee must be enrolled. Does the employee need to be in both employers’ programs, or can one employer use the employee’s test results from the other employer to satisfy the drug and alcohol testing requirements? This is just one of the many questions received by DATIA concerning this situation. If the employee must be in both testing programs, this increases the costs of drug and alcohol testing for employers and increases the likelihood that the employee with multiple employers will be chosen for random testing. On the other hand, how can two employers share an employee’s test results without using what the DOT terms a blanket release?
The second problem occurs when an employee with multiple employers receives a verified positive drug or alcohol test. DATIA receives inquiries on a weekly basis questioning what to do when an employee tests positive for one employer, and the employer or consortium knows that the employee also works for another DOT covered employer. Currently, we must tell them that they can do nothing. Under DOT rules, the employee will be removed from safety sensitive duty for the employer that they tested for, but will not be removed from safety sensitive duty for Employer B (who is prohibited from receiving test information from Employer A without a specific written authorization for that single test result from that employee who tests positive). This means that the employee can continue to work for Employer B in a safety sensitive position despite the positive drug or alcohol test.
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This, in effect, negates any consequences of the positive drug and alcohol test result. Since each employer is responsible for adhering to the DOT drug and alcohol testing regulations for each of his/her DOT covered employees, why is it that an employer cannot learn of an employee’s drug and alcohol testing violations that occur while concurrently working for another employer? To allow the employee to continue performing safety sensitive duties for any employer, regardless of which employer was responsible for having the employee tested, severely compromises the safety benefits of drug and alcohol testing.
In addition, the employee in almost all cases terminates employment with Employer A following a positive test and is then free to move on to any new employer without going through the required follow-up process. Employers are not privy to an employee’s DOT drug and alcohol test violations, except during the pre-employment background checks in which most employees will selectively omit employers where they have tested positive. Since the employee can still use Employer B as his employment history and selectively “omit” Employer A, the non-negative test result for Employer A will not “follow” him when a new employer researches his previous two year’s of DOT drug and alcohol test results.
These situations are more prevalent than first thought, and cause concern for employers and the drug and alcohol testing industry. DATIA has proposed that a working group be established to study and determine the best possible solution to this situation. Safety and confidentiality concerns both need to be met, and DATIA’s position is that those who routinely deal with this situation first hand are best apt to provide possible solutions. Ideally, the working group would consist of DOT covered employers, government officials, industry group representatives (representing both the employers and the service providers), and drug and alcohol testing providers.
DATIA welcomes input on members’ experiences in dealing with similar situations, and has sent a member survey to members. We will furnish members with the outcome of the survey and the response received from DOT concerning our request.
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It’s The Law: Part 40: No Private Right to Sue
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| By Tom Eden, Esq., Wallace, Jordan,
Ratliff & Brandt, L.L.C. |
After submitting a hot urine specimen (104.6 degrees with body temperature of 98.2 degrees) with specific gravity of 1.0 (indicating the specimen as too clear for normal urine), the contract driver left the testing site without permission.
The collector initially indicated “within range” on the Federal Custody and Control Form (CCF) but later altered some of the copies (but not all) to indicate that the specimen was not within the proper temperature range. The collector stated in her deposition, “I had never encountered an abnormal specimen before and assumed that the driver’s specimen would be normal as well.” A call was made to the trucking company informing them of the situation.
The company refused to allow the contract driver to give a second specimen because he had left the collection facility, and it directed that the “hot specimen” be sent to the lab. The collector’s notes were confusing and contradictory on many of the issues, and no correction affidavits were completed. The lab test was negative but had a specific gravity and creatinine level below that required by the Federal Regulations. There were numerous telephone discussions between the trucking company, collector, TPA, and MRO concerning what to do, and no consensus was reached. The contract driver was finally terminated because he allegedly took the trucking company’s tractor-trailer across state lines without permission. At some point in the process, the contract driver was required to sign a waiver of liability document.
Following his termination, the contract driver sued the trucking company, TPA, and collection site in U.S. District Court in Ohio and included in his complaint a claim that 49 CFR 40.25, which is promulgated under the Federal Omnibus Transportation Employee Testing Act, created a private right of action for the alleged violation committed in requiring him to execute a waiver of liability.
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The court went through an exhaustive analysis of the criteria used by the United States Supreme Court and Congress to determine whether a federal statute allows for a private right of action by an individual when a regulatory violation has occurred. The United States Court of Appeals for the Sixth Circuit in Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299 (6th Cir. 2000), concluded that the regulatory scheme under 49 CFR Part 40 (“Part 40”) does “not evidence a concern for the protection of drivers who believe they have been aggrieved through the testing process.” The Sixth Circuit therefore ruled that Part 40 - and the statutes under which it is promulgated - did not create a private right of action for the aggrieved contract driver and affirmed the dismissal of the claim based on the alleged regulatory violation.
Lesson Learned:
There is no substitute for a properly trained certified collector and having a clearly defined set of procedures in your company policy that will be followed when things go wrong. Even though the trucking company, TPA, and collection site prevailed in the end, it cost several thousands of dollars and hundreds of hours to defend.
Learn more about the legal issues surrounding drug and alcohol testing at the upcoming DATIA Annual Conference, where Tom Eden will be presenting a discussion on “The Hottest Legal Issues in Drug Testing: How to Avoid a Courtroom Casualty.”
Disclaimer & Acknowledgements: 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 advise collection sites, TPAs, employers, workers’ compensation administrators, and MROs on a variety of drug and alcohol testing issues, policy development, and risk-reduction programs. Tom Eden may be reached by telephone at (205) 870-0555 or by e-mail at te@wallacejordan.com. Please visit his web site at www.wallacejordan.com (which contains federal drug-testing regulations and other drug-free workplace resources at www.wallacejordan.com/drugfree.htm).
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Supreme Court Sets Date for School Drug Testing Case
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The Supreme Court will hear oral arguments in the case of Board of Ed., Pottawatomie Cty. v Earls at 10:00 am on March 19, 2002. The case could have severe implications on school drug testing programs depending on the courts ruling. Specifically, the court will decide how much of a drug problem a school has to have in order to drug test its students.
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Those that wish to attend should contact Pamela Talkin, Office of the Marshall, Supreme Court of the United States, 202-479-2971 (fax). If you are unable to secure a reserved seat, public seats are available on a first-come, first-served basis. For those unable to attend, DATIA will report the day’s events to its members, so visit www.datia.org.
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DATIA Training Q&As
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Question: I am a DATIA member, is my facility automatically DATIA accredited?
Answer: No, DATIA membership and DATIA accreditation are not the same thing. DATIA offers two certification programs, including the Certified Professional Collector Trainer™ (CPCT) program and the Certified Professional Collector™ (CPC) program. To become a CPCT, you must attend the training course, which requires that you must have performed at least 100 specimen collections and/or have at least six months of experience in performing specimen collections.
Once you complete the course, you take a written exam. Upon passing that exam, you receive your designation as a CPCT. You are then able to train other collection staff at your company. Once that staff has completed training by you, the CPCT, they are then eligible to take the certification exam. Once the exam is passed they receive the designation CPC. Once your whole collection staff is trained and certified, your facility is then eligible to apply for the next program DATIA offers, called the Accredited Collection Facility (ACF) program.
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The ACF program enables your collection facility to demonstrate to your clients and industry peers that you are committed to offering superior collection services. Once all your collection staff is DATIA certified, you must simply fill out the application for ACF and mail it in. Once your application is reviewed and it is determined that your company adheres to all ACF standards, your company is awarded ACF status. This accreditation does not require any additional fees.
Finally, DATIA offers a Nationally Accredited for Administration of Drug and Alcohol Testing Programs (NAADATP). This accreditation is associated with our Drug & Alcohol Program Management course, which will prepare you to professionally manage and administer drug and alcohol-testing programs as a Consortia, Third Party Administrator (C/TPA), or in-house program administrator. Upon completion of this course, you are eligible to apply for the NAADATP registration. You simply fill out the application and register to take the exam. Once your application has been reviewed and it is determined that your company adheres to the NAADATP standards, you take the written exam. Once you pass, your business is awarded NAADATP status.
You do not have to be a member to participate in any of the above programs and members are not automatically a part of the above programs. For more information call (800) 355-1257 or visit DATIA’s web site at www.datia.org.
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DATIA Regional Training Program Begins May 1, 2002
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The Drug and Alcohol Testing Industry Association’s (DATIA) expansion of its Certified Professional Collector™ (CPC) and Certified Professional Collector Trainer™ (CPCT) program, under development since last fall, has been formally approved by its Specimen Collection Committee and Board of Directors. The Regional Certified Professional Collector Trainer™ (R-CPCT) program will be fully operational on May 1, 2002.
Areas where training is needed most include the smaller collection sites and medical offices that do occasional collections in very rural areas. While these companies’ employees need training, they are often financially unable to travel and attend a course. DATIA, however, is a strong advocate that face-to-face training is needed to adequately train a person to perform specimen collections.
The regional training expansion of DATIA’s current program will enable these smaller companies to receive the training without large travel expenditures. In addition, DATIA has set a maximum amount that R-CPCTs may charge for the course to ensure that the course fees offered by R-CPCTs are affordable.
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DATIA is also concerned about ensuring the competency of its R-CPCTs, while expanding the program to include regional training courses. The R-CPCTs selected will be able to present the course to the standards established by DATIA for the CPCT course that is now offered exclusively by two DATIA instructors.
Attendees of the regional courses will receive instruction on how to properly perform specimen collections in accordance with Department of Transportation (DOT) regulations, as well as collections for non-mandated companies. The course will enable participants to satisfy the DOT qualification training and proficiency demonstration requirements. Furthermore, after successfully passing the DATIA Collector Certification Exam, attendees will be recognized as Certified Professional Collectors™ (CPC).
Complete program details will be sent to all current Certified Professional Collector Trainers™ within a month, and the committee will begin its difficult task of selecting the R-CPCTs so that they can be announced in late April. |
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Take Advantage of DATIA’s Programs
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Are you aware of the many benefits DATIA has to offer? DATIA is constantly working to provide its members’ benefits that are important to their business, including government relations, education, increased standards for professional business practices, and marketing to consumers of drug and alcohol testing services.
Because DATIA is in close proximity to Washington, DC, its government relations program is able to successfully represent the interests of its members on Capitol Hill. Through lobbying, DATIA manages to ensure that the Department of Transportation and Health and Human Services continue to introduce rules and regulations that promote increased growth of the industry.
Educating members on new developments within the industry is a benefit that DATIA continually maintains. DATIA’s Red Book is a publication that provides comprehensive updated regulatory information critical to the industry. The Red Book update service provides subscribers with updates on all changes to federal drug and alcohol testing regulations. A bi-monthly newsletter is mailed to members updating them on the latest association news, industry business trends, legislative and regulatory information, and legal aspects of drug and alcohol testing.
Recently, DATIA eNewsweekly was introduced to the membership. This newsletter is sent to the membership via email every week providing members with up-to- date information and answers to frequently asked questions that relate to this industry. DATIA’s two websites (www.datia.org and www.drugtestingnews.com) serve to keep members current on new regulations, legislation, court cases, and industry press.
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The Annual Conference unites industry leaders, government officials, and key policy makers, and provides a unique opportunity for members to network. The conference also allows attendees to get a first hand look at new and emerging technology and products for drug and alcohol testing.
The Industry Directory and Buyers’ Guide is an online resource that allows members to market their companies to consumers of drug and alcohol testing services. Users can search by services and products provided, city, state, zip, company name, proximity to a location, and accreditation status. The database links to members’ web sites and provides a map to members’ offices.
Also, DATIA members receive discounts on and access to the only Professional Liability insurance programs available for drug and alcohol testing professionals.
DATIA worked with BB&T Huffiness-Russell Insurance to provide members with a discount on Professional Liability insurance (contact BB&T at 1-800-849-1887).
DATIA also worked with Airborne Express to provide our members with discounts on their shipping needs (contact Airborne Express at 1-800-MEMBERS).
If you need further details or have any suggestions on how DATIA can add to its membership benefits, please contact DATIA at 1-800-355-1257 or info@datia.org.
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Grants for the Drug & Alcohol Testing Professional
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By Joe Reilly, Florida Drug Screening, Inc.
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Millions of dollars are available annually to organizations applying for the various grant programs sponsored by various agencies of the Federal Government. We read nearly every day about government spending, but many of us do not realize that we might be eligible to receive some of the money the government gives away every year. There are thousands of grant programs for established businesses and newcomers. Many of these programs are geared towards non-profit organizations; many towards partnerships between for-profits and non-profits, and sometimes for-profit businesses are eligible for these grant programs on their own.
Non-profits also receive grant funding from private foundations. Such organizations have a 501(c)(3) status or the like, which allows them to receive grant money from private foundations for all sorts of purposes.
What is the secret to getting a grant award? My thoughts would be that the first step would be to find the grant opportunity to fit what you are all about. This would depend on what type of business or what type of for profit or non-profit organization you are involved in. A search on the Internet or on a government web sites produces overwhelming amounts of information about grant availability and grant opportunities. But be careful because a lot of the sites are for businesses attempting to sell you information about finding or applying for grants.
As a private business owner, I never really thought of grant funding for projects in my business. That is until 1998 when I first heard of the United States Small Business Administration (SBA) Drug Free Workplace Demonstration Grant. Fortunately, I was a member of DATIA and learned of this opportunity through DATIA’s newsletter and received more detailed information at DATIA’s 1999 annual conference in St. Louis, MO.
Congress passed the Drug-Free Workplace Act of 1998, which established a Drug-Free Workplace Demonstration Program within the U.S. Small Business Administration. The Act allowed the SBA to make grants to eligible intermediaries to assist small businesses financially and technically in establishing drug-free workplace (DFWP) programs. An eligible intermediary was defined as an entity that was actually in the business of setting up Drug Free Workplace Programs. This was clearly a grant opportunity for those businesses in the drug and alcohol testing industry and I decided to take a shot at it.
This was my first experience applying for any kind of grant, but I was successful and received the grant in 1999, it was extended in 2000 for another year and now I have received another grant award for the period from September of 2001 through September of 2002. So what was the secret to getting this grant? I believe that being an organized and detail-oriented person, with the ability to follow instructions, greatly increased my chances for receiving this grant award. I found that the program announcement and the instructions for grant application were extremely straightforward but also very detail oriented. I read over the program announcement several times and then read it over again equipped with my yellow marker. I looked for key words and phrases that were emphasized and repeated, I then highlighted these key words and phrases. This process helped me to understand what the SBA was looking for. Carefully following the instructions and required format for the grant application, I first drafted an outline and then started to write my 18-page plan for my Drug Free Workplace Program Grant project. I paid particular attention to the evaluation factors listed on the grant application and the number of points, which would be awarded for each section of the proposed plan. I drafted our grant application to specifically answer the questions asked and proposed a plan of action to accomplish the goals and objectives I outlined in my plan. These were the same goals and objectives outlined in the Drug Free Workplace Act of 1998 which were to assist and encourage small businesses to become Drug Free Workplaces.
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My application was one of 160 the SBA received in response to the initial DFWP program announcement. Panels of Federal employees reviewed the applicants’ technical proposals. The reviewers were from SBA and other Federal agencies, including the Office of National Drug Control Policy, the Department of Labor, and the Department of Health and Human Services. The scores of all applicants were then sent to the Department of Justice, which performed a computerized normalization of the scores. The applicants were then narrowed to 37 finalists. SBA then reviewed and ranked the cost proposals of the 37 finalists. The 16 highest ranked applications received grant awards and funding. The grants ranged from $100,000 to $608,076. Considering only 160 applications were received, it wasn’t bad odds to be chosen one of the 16 awarded this grant.
Are there more grant opportunities specifically for drug and alcohol testing providers? I believe there are, but there is lots of work involved in finding these opportunities, which sometimes can seem like searching for a needle in a haystack. Partnerships with non-profit organizations may be necessary. President Bush recently signed into law the No Child Left Behind Act of 2001, making this the first legislation that authorizes federal funds that may be used for school drug testing. You may also want to look into the Drug Free Communities Act of 1997, which authorizes the Office of National Drug Control Policy to carry out a national initiative that awards federal grants directly to community coalitions in the United States.
Many times these grant programs encourage collaboration among organizations and agencies in both the private and public sectors. Another source is http://www.hhs.gov/grantsnet/, which has a wealth of information regarding Federal grants. GrantsNet is an Internet application tool created by the Department of Health and Human Services (DHHS) Office of Grants Management (OGM) for finding and exchanging information about HHS and other Federal grant programs.
Regarding SBA’s program and the Drug Free Workplace Act of 1998, in 2001 it was renamed the Paul D. Coverdell Drug Free Workplace Program and Congress re-authorized $5 million of grant monies for each of the fiscal years from 2001 through 2003 to help fund drug free workplace programs. DATIA will keep members fully informed as to any program announcements for this grant opportunity. The SBA recently submitted a report to Congress regarding the grant program and this report is available on the SBA web site at http://www.sba.gov/news/drugfree/dfwpreport.html.
Additional information regarding grant programs will be available at DATIA’s upcoming annual conference in San Antonio, Texas (May 2 – 4). I will be joining a panel discussion entitled “Where to Find Grants and How to Write a Winning Grant Proposal.” During this discussion, I will be sharing more on what I included in my applications to be awarded twice the SBA’s Drug Free Workplace Demonstration Program Grant. Other panel members will discuss their secrets on how to locate and receive grant monies for drug and alcohol testing.
Joseph F. Reilly is President of Florida Drug Screening, Inc., a national provider of drug and alcohol testing and specimen collection services. Joe is also a member of DATIA’s Board of Directors.
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