| |
Inside This Issue:
DATIA Comments Impact Final On-DOT MIS Form
|
The vast majority of DATIA’s comments to the Department of Transportation (DOT) regarding their proposal to revise the Management Information Systems (MIS) reporting form were included in the final form and ruling issued on July 25, 2003. As a result of the association’s input and DOT leadership, the final form is a workable, simplified form that will lessen the burden on industry service agents.
The important changes to the new MIS form are as follows:
1. DATIA requested that the new One-DOT MIS form not be used until 2004. This was to allow service agents and employers to configure their computer systems to collect the correct data for the new form (i.e. refusals, etc.). The final regulation states that the form is not to be used until 2004 to report 2003 data.
2. DATIA asked that the DOT reiterate the need for employers to maintain data/records on the items no longer being reported in the MIS (i.e. supervisor training, number of employees returned to duty, etc.). In the preamble to the final rule, the DOT reiterates the need to retain this information and the fact that not doing so will result in noncompliance.
3. DATIA noted that discussion was missing regarding how to report data on employees that perform cross-modal duties. The DOT clarified this in regulatory text and in the instructions for the form (and stated they were “settling the issue” since there has been confusion on this before). In the final rule, the DOT instructs that employees are to be counted towards and reported for the mode that they perform greater than 50% of their duties.
4. DATIA requested that instruction on section II-B include how to report if the employer does not have employees in all categories. The DOT included instructions on this in the final rule and form instructions.
5. DATIA reported that some large employers do daily or weekly random selections and to use the proposed formula of counting the total number of employees at each random selection, adding these numbers together at the end of the year, and taking the average was time consuming and increased the probability of error in dealing with so many numbers. The DOT agreed and indicated that employers need not record the total number of employees at each random selection, as long as it is done no less than once a month.
6. DATIA pointed out a typo in that FTA has only five categories of employees rather than six. This change was made in the final regulation.
|
7. DATIA felt that the instruction to leave spaces blank rather than entering a zero would lead to data being inadvertently omitted. The DOT agreed and inserted instructions that the employer could either leave the space blank or enter a zero.
DATIA supported the DOT’s rulemaking and intention to streamline the reporting process for employers and C/TPAs. The ability to utilize one form, which collects the same data, regardless of the modal agency that mandates the employer will greatly benefit the industry. In addition, the elimination of unnecessary data from the form will shorten the time to complete the form. DATIA encourages all members to review the form and make any necessary operational changes as soon as possible. The Federal Register announcement is available online at www.datia.org. In addition, all Red Book Update subscribers will be receiving an updated CFR 49 Part 40, which incorporates the new rule and form.
|
DATIA Submits Comments Concerning Substituted Specimens
|
DATIA identified potential problems with the Department of Transportation’s (DOT) interim final rule concerning reporting specimens as dilute or substituted in its comments to the DOT on August 4, 2003. While DATIA is in favor of the rule’s intent, there are some areas that need to be clarified for effective implementation.
The initial problem that DATIA identified within the rule as written is that MROs are required to report specimens with a creatinine level less than 5mg/dL, but greater than or equal to 2mg/dL, as either negative or positive dilute. The way that laboratories report specimens with a creatinine less than 5mg/dL, however, was not changed in the regulatory text. Specimens with a creatinine less than 5mg/dL are still only reported as “substituted”, without positive or negative, as required by §40.97. To meet the DOT’s intent, §40.97 will need to be changed to instruct laboratories to report substituted specimens as also positive or negative.
The second scenario that DATIA addressed was whether or not MRO assistants can review reports of negative specimens greater than or equal to 2mg/dL but less than 5mg/dL. Since these test results are no longer considered a “substituted” result, but more an “ultradilute”, and MRO assistants are able to review negative dilute results, DATIA informed the DOT that MRO assistants should be able to review these results and requested that this scenario be addressed §40.127 and §40.129.
|
Finally, DATIA questioned why specific gravity was removed from the equation. In §40.93 the criteria for a substituted specimen is a specimen with a creatinine of less than 5mg/dL AND a specific gravity of less than or equal to 1.001 or greater than 1.020. In the DOT’s Interim Final Rule, however, the only criteria discussed is the creatinine. Specific gravity is still a valid measure to determine the validity of a specimen and we would hope that the DOT would include this measure in their final rule.
A review of the DOT’s docket shows mixed feelings on the interim final rule. Indeed the issue is controversial since lowering the substitution criteria may result in persons who purposely dilute their urine being reported as negative dilute. The alternative, however, of reporting persons with naturally dilute urine as “substituted” is unconscionable. As the DOT moves forward on this issue, DATIA will keep its members informed.
|
|
Sharpe v. St. Luke’s Hospital: May Change Forever the Way We View Collector Liability
|
| By Tom Eden & Michael Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C. |
A Pennsylvania court
recently held that a hospital, which collects samples for drug testing under contract with an employer, owes a duty of care to the employee undergoing that testing. In Sharpe v. St. Luke’s Hospital, a courier for Federal Express, Renee Sharp, was directed to report to St. Luke’s Hospital for a random drug screening. Under a contract with Federal Express, the Hospital collected urine samples and then forwarded those samples to an outside laboratory for testing. On the day in question, Sharpe alleges numerous events transpired at the Hospital that affected the chain of custody associated with her urine sample, as a result of which it was misidentified, mishandled, and ultimately falsely tested positive for cocaine. As a result, Federal Express fired Sharpe.
Sharpe filed a lawsuit against the Hospital asserting claims of negligence and deliberate and reckless misconduct and alleging that the Hospital “had a duty of care to perform specimen collection in accordance with the Code of Federal Regulations governing specimen collection and in accordance [with] the requirements placed upon a medical facility performing to the appropriate and generally accepted standards [for] urine specimen collection.” The Hospital moved for summary judgment, contending that it owed no duty to Sharpe and asserting that, because it collected Sharpe’s specimen in accordance with its contract with Federal Express, no professional or contractual relationship had been created between it and Sharpe, thus obviating the existence of a duty on its part. The trial court agreed with this Hospital, but on appeal the court held that the Hospital did owe to Sharp “a duty of reasonable care with regard to collection and handling of her urine specimen for the employment-related drug testing.” The court then sent the case back to the trial court for a jury trial to determine whether the Hospital had actually breached its duty.
|
Practical Counsel:
1) Start using a collection contract that clearly lays out who is responsible for what with indemnification clauses;
2) Get liability insurance that covers negligent collection so you will not have to foot the lawyers’ bill even when you are right;
3) Conduct a risk management audit to see where your holes are and use independent test donors to see how your staff is doing;
4) Only use collectors who have been through a certified collector training program;
5) Secure a relationship with knowledgeable counsel to help you with solutions when the specimen hits the fan.
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 and Mike Jackson are management labor attorneys 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 and Mike Jackson may be reached by telephone at (205) 870-0555 or by e-mail at te@wallacejordan.com or mlj@wallacejordan.com. Please visit our web site at www.wallacejordan.com (which contains federal drug-testing regulations and other drug-free workplace resources at www.wallacejordan.com/drugfree.htm).
|
FMCSA Proposes to Increase Length of Required Driver History.
|
Currently motor carriers are required to obtain a potential driver’s previous two years worth of drug and alcohol testing program results and violations. The Federal Motor Carrier Safety Administration (FMCSA), however, is looking to change that. In regulations issued on July 17, 2003, the FMCSA proposed to specify what minimum safety performance history information new or prospective employers would be required to seek concerning commercial drivers and from where that information should be obtained.
DATIA has forwarded the proposed rule to its Legislative and Regulatory Committee, and the rule has generated much discussion. DATIA will be developing its comments to the FMCSA on behalf of the industry later this month, however, we will provide here a brief discussion of the committee’s comments.
The majority of the committee supports the FMCSA’s intent in writing the regulation, however they point out numerous implementation problems. The first problem identified is that the current requirement to obtain a driver’s two-year drug and alcohol testing history is not working. Not all employers are requesting the information, and even fewer are providing it when requested. Increasing the length of the history to be provided will not result in increased compliance. If anything, it may decrease compliance since there will be extra work involved.
|
Committee members further point out that there is little enforcement by the FMCSA to encourage employers to request the information or to provide it to other employers. Until there is such enforcement, additional burdens on employers and C/TPAs will be only that - burdens. There will be no safety benefits.
DATIA has been lobbying for a national database of drug and alcohol testing results for commercial drivers since 1997, and members of the Legislative and Regulatory Committee point out that such a database would be much more beneficial than the proposed FMCSA regulation currently on the table.
DATIA will be formulating its comments on the proposed regulation and submitting its comments to the FMCSA by the end of August. DATIA also encourages members to submit their own comments to the docket. The complete Federal Register announcement can be found at www.datia.org.
|
Industry Turns Out for Workshop on Non-Mandated Testing Programs
|
On July 17th at The Hotel Washington in downtown Washington, DC, DATIA held another successful workshop, this time on “Drug and Alcohol Testing Programs for Non-Mandated Employers.” 85 attendees from all over the country arrived in DC for the workshop.
The day started with a panel of speakers: Jim Campbell of Ambassador Medical Services, Joe Reilly of Florida Drug Screening, and Jon Vogler of Houston Medical Testing Services. The three spoke on “What Makes a Company Implement a Testing Program” and discussed key marketing points to expand your business. Joe talked about the various ways to market your business, including chambers of commerce, associations (such as DATIA!), and trade shows, as well as the importance of having a well-trained and educated staff to assist you in your marketing process. Jim then moved on to on-site testing programs, surface testing, and new technologies in the industry. Jon closed out the session by talking about how to increase your profits, including paternity testing, partnering with other companies, cold-calling, and government contracts. He also highlighted how to become a supplier of drug testing products to increase revenue. The session was very well received, and the trio was swamped with questions throughout the rest of the day!
After a short break, Tom Eden, an attorney for Wallace, Jordan, Ratliff & Brandt, LLC, spoke on learning from other’s lawsuits. The attendees loved Tom’s introduction, highlighting frivolous lawsuits, including the infamous “McDonald’s Hot Coffee Lady” as well as many other lawsuits that had the room chuckling. Tom then moved on to discuss lawsuits affecting the industry, including labs vs. collectors vs. collection facilities and liability, what responsibility a hospital has to a donor, and who may conduct random urine tests on employees.
|
After a networking lunch where attendees were seated with others in their home state, Dr. Richard Bucher kicked off the afternoon with a session on “Key Ingredients to Counseling Clients Through Program Development.” The main focus of this session was to discuss drug free workplace programs, and how to develop them for your clients. The reasons to have a program were discussed, as well as how to set up the program and federal and state laws and rules and regulations.
The next session was led by Don Rothschild of Peak Paths in Colorado. Entitled “The Test was Positive, Now What,” Don’s session discussed the value of good employees, counseling them through drug and alcohol problems, and how to do so. He presented the positives and negatives of retaining employees who have failed their tests, the benefits of EAP’s and the various ways to involve SAP’s in your business.
The final session of the day was a rousing debate between Josephine Kenney of ChoicePoint and Nancy Delogu of the law firm Littler Mendelson on HIPAA and its effects on drug & alcohol testing. Nancy and
Josephine each made excellent points and the issue will certainly not be resolved any time soon, but all attendees came away from the session with a wealth of knowledge to consider.
Many attendees met after the workshop was over on the beautiful rooftop patio, overlooking Washington landmarks and scenery. Most agreed that it was another successful DATIA workshop, and they are looking forward to next year’s conference!
For those that missed the workshop, the handbook can be purchased on the DATIA web site for $40 at www.datia.org.
|
Mark Your Calendar for DATIA’s 2004 and 2005 Conferences
|
With over 500 attendees at DATIA’s 7th Annual Conference and Exposition, the industry is already looking forward to the 2004 and 2005 conferences. In fact, DATIA has already heard from attendees who have booked their rooms in Seattle and have started planning a vacation around the 2004 Annual Conference.
The theme for DATIA’s 2004 Annual Conference and Exposition is “Awaken Your Senses - Fresh Ideas for Drug and Alcohol Testing”. With the abundance of fresh food, coffee, and the great outdoors in Seattle, the theme is very fitting. The conference will focus on new ways to approach drug and alcohol testing, helping attendees find solutions to their problems, and providing new opportunities in which to venture. The meeting will take place April 15 - 17, 2004 at the Westin Seattle in downtown Seattle. Within walking distance to Pikes Place Market, restaurants, shopping, and attractions, the meeting site will allow attendees to enjoy great seminars throughout the day and unwind at night. |
|
Your DATIA Membership Has Been Your Voice on Key Issues & Made An Impact
|
September represents many things -the start of the school year, the end of summer, the beginning of fall, football games, and turning leaves. It is also the time to renew your DATIA membership if you haven’t done so already.
DATIA does so much throughout the year that even the staff has a hard time remembering all that we do. As such, we thought it would be helpful to review some highlights of our activities with the membership. DATIA has recently reached some milestones. We are at our highest membership now with 1150 members - 20 Sustaining Members, 94 Corporate members, and 1036 Regular members. This support has enabled DATIA to actively and aggressively represent the interests and needs of the drug and alcohol testing industry, as well as increase the professionalism within and public perception of the drug and alcohol testing industry.
Since last September, six regulations have been proposed that directly affect the drug and alcohol testing industry. DATIA is the only association that has provided comments on and analysis to the industry on all of these regulations. We have championed for changes favorable to the industry and have made a positive impact on the final rules (see MIS article, Page1). Federal regulations and requests for comments that DATIA has participated in include the DOT’s MIS form revisions, the DOT’s proposed changes regarding substituted specimens, the FMCSA’s proposed exemption from the drug and alcohol testing regulations for certain motor carriers, the FMCSA’s proposed revisions regarding obtaining a driver’s drug and alcohol testing results history, the Coast Guard’s proposed changes regarding post accident alcohol testing, and the FRA’s proposed changes regarding foreign based railroad employees.
|
A unique benefit of DATIA is that in addition to providing feedback and analysis on proposed regulations, DATIA proactively works with the federal agencies to affect change. DATIA maintains a rapport with the DOT and frequently submits questions to them regarding how to handle special situations that arise for service providers. For example, DATIA maintained contact with the DOT to ensure that an official Q&A was issued regarding the affect of HIPAA on mandated drug and alcohol testing. DATIA has also presented conflicting regulatory text to the DOT for revisions. In dealing with federal agencies, DATIA works to ensure that issues remain in the forefront and are not forgotten. This ensures that key policy makers are aware of the importance of issues to the industry and to let them know that interested parties are anxiously awaiting their next actions. |
Demonstration Grants Announced for Student Drug Testing Programs
|
The Department of Education (DOEd) announced the availability of $2M in demonstration grants for local educational agencies (LEA), and public and private entities to develop or enhance, implement, and evaluate student drug testing programs. The DOEd estimates that seven grants between $200K and $400K will be awarded for a 36 month period. In addition, the DOEd anticipates that additional funds will be made available for fiscal year 2004. These additional funds will be granted to those on the rank-ordered list that do not receive funds in fiscal year 2003.
In regards to substances to be tested for, the grant provides for testing of anabolic steroids, inhalants, and tobacco (for those under 18) in addition to controlled substances and alcohol. If random drug testing is implemented, the program may include student athletes, students participating in competitive extracurricular activities, and those students who, along with their parents, consent/volunteer to participate in random drug testing. Student drivers are not included in the list of those allowed to be subject to random drug testing.
To receive funding, approved programs must meet the following requirements. (1) A target population must be identified and a significant need for drug testing within the target population must be demonstrated; (2) the drug testing program must be part of a comprehensive drug prevention program; (3) a comprehensive plan for referral to treatment or counseling must be outlined for those that test positive; and (4) a plan for ensuring the confidentiality of test results must be provided.
|
The Secretary of Education has set an overall performance target that calls for a 5% reduction in student drug use annually. Those applications that best show a strong capacity to help achieve this target, and to provide reliable data on this indicator have the best change of receiving the grants.
While the amount of grant monies available is less than we would have liked to see, DATIA feels that this can have significant positive effects on the advancement of student drug testing programs. Informal studies already performed show the positive benefits of drug and alcohol testing, and should these demonstration grant programs further evidence this fact, the potential for future federal funds to support student drug testing programs increases. In addition, the grant calls for programs to be reviewed by legal counsel, which will lead to quality programs that utilize standards and guidelines. As such, the programs conducted using demonstration grants that show a decrease in drug use by students have the potential for establishing model programs for additional schools to use in the future.
The deadline for applications to be submitted was August 20, 2003. DATIA received numerous calls from members interested in applying for the grants, and will notify the membership of those that receive the grants once they are announced by the DOEd.
|
Texas Passes Law Requiring Reporting of Drug Testing Results
|
June 20, 2003 the state of Texas passed a law that requires, among other things, employers to report positive drug testing results to the Texas Department of Public Safety. Texas now joins Oregon and Washington in what appears to be a growing trend for states to attempt to address problems associated with the federal drug and alcohol testing requirements. The problem, however, is that there is a hodgepodge of state requirements, all of which are slightly different and only apply to drivers holding a commercial drivers license from that particular state.
In addition to requiring the reporting of positive results, motor carriers that register within the state of Texas must certify to the department that they are in compliance with the Federal Motor Carrier Safety Administration’s (FMCSA) 49 CFR Part 382 drug and alcohol testing regulations. Should a motor carrier be utilizing the services of a C/TPA, this information must also be supplied to the department, and the carrier must notify the department when they change C/TPAs.
The Committee Report concerning the new law indicates that the new provisions were developed in response to Texas’ high number of accidents involving large trucks. Specifically, “according to the National Conference of State Legislatures, Texas ranks first in the nation in the number of large trucks involved in crashes, the number of fatal accidents involving large trucks, and the number of fatalities in these accidents.”
The law goes into effect on September 1, 2003, however, most drug and alcohol testing providers and motor carriers within Texas are unaware of the new requirements. As with the laws in Oregon and Washington, DATIA is sceptical that there will be a high compliance rate with the new requirements.
|
The recent law in Texas brings a new emphasis for the need of the FMCSA to seriously consider a national database of positive test results for the motor carrier industry. By operating on a federal level, there would be consistency within the reporting requirements, one source for employers to query for previous drug and alcohol testing results, and the ability to monitor the effectiveness of the reporting program. In addition, the FMCSA would be able to enforce the reporting requirement as part of its federal audits of motor carriers.
In December of 2001, the FMCSA was to have presented a study of the feasibility of establishing such a database to Congress, however, the report has yet to be seen. DATIA has contacted the FMCSA numerous times to inquire about the report’s status, but has been unable to get a definitive answer.
A look at the public docket concerning the FMCSA’s study on the feasibility of establishing a national database shows widespread support of the initiative. This support comes not only from the drug and alcohol testing industry, but also from motor carriers. They see the database as a tool to assist them in making sound hiring decisions and improving their company’s safety performance.
DATIA will continue to aggressively push for a national database of positive test results that will also contain information on the return to duty status of those that tested positive. In the meantime, we will monitor the implementation of the Texas law with the assistance of our members in Texas. The full Texas law can be found at www.datia.org. |
Upcoming Important DATIA Dates
|
|
September
1st - DATIA Membership Renewal Date
19 & 20 - DATIA Certified Professional Collector TrainerTM (CPCT) and Secrets to Drug and Alcohol Testing Program Management Seminar courses in Salt Lake City, UT
October
1st - Membership status dropped for non-renewed members
17 & 18 - DATIA Certified Professional Collector TrainerTM (CPCT) and Secrets to Drug and Alcohol Testing Program Management Seminar courses in Kansas City, MO
November
7 & 8 - DATIA Certified Professional Collector TrainerTM (CPCT) and Secrets to Drug and Alcohol Testing Program Management Seminar courses in Kansas City, MO
|
March 2004
11 & 12 - DATIA Certified Professional Collector TrainerTM (CPCT) and Secrets to Drug and Alcohol Testing Program Management Seminar courses in Philadelphia, PA
April 2004
15 - 17 DATIA 2004 Annual Conference and Exposition
15 & 18 - DATIA Certified Professional Collector TrainerTM (CPCT) and Secrets to Drug and Alcohol Testing Program Management Seminar courses in Seattle, WA
|
|
