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Inside This Issue:
Conference to Feature Fresh Approaches In Seattle
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In less than six months, the DATIA 2004 Annual Conference will be upon us, and DATIA has already been fielding calls from interested participants, exhibitors, and sponsors. The anticipation for DATIA’s 8th Annual Conference is very apparent.
The theme for DATIA’s 2004 Conference, Awaken Your Senses: Fresh Ideas for Drug and Alcohol Testing, refers not only to the abundance of fresh air, coffee, and foods in Seattle, but more importantly to the trend within the industry to search for new ways of conducting business, offering more efficient program management, and helping clients by offering -new services and fresh approaches to meet their goals.
Using feedback and suggestions from attendees at the 2003 conference, DATIA’s Annual Conference Committee has developed an agenda that is sure to WOW attendees who travel to beautiful Seattle next April. The conference will kick off with renowned speaker Winston Hall who will present an interactive seminar entitled “Attracting and Retaining a Talented Workforce”. DATIA members and conference attendees have indicated that employee turnover is one of the top problems they face. Mr. Hall will provide attendees with the foundation for successfully managing today’s thriving workforce. After all, the competitive edge of tomorrow’s leading companies lies with the talent of current employees.
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Finding new ways of marketing your company is another issue that DATIA members have indicated they face. Tracy Schneider, principal of TLS Marketing Consultants, will provide attendees with proven ways to get your business’ name seen by potential clients without breaking the bank. TLS Marketing Consultants is a marketing communications firm specializing in low-cost, unconventional marketing techniques and DATIA is pleased that Ms. Schneider will be able to provide her expertise to conference attendees.
The conference will also provide a wealth of information on issues specific to the drug and alcohol testing industry. Sessions scheduled include Standardizing Company Procedures for Success, Drug and Alcohol Testing as a Homeland Security Tool, Maintaining Positive Client Relations, The Here and Now of Adulterants - Reports From the Front Lines, The Future of the CCF - Will it be Obsolete?, a brainstorming session with the DATIA Board of Directors to answer attendees most pressing questions on issues they face, and a session on the effects of prescription and OTC drugs on safety-sensitive performance, and the causes of “false positives”.
Not only will the 2004 Conference be educational, it will also be fun. Optional events planned include a private tour of the Boeing Plant, a trip to the famed Washington Tulip Festival, a day at Snoqualmie Falls and the Chateau Ste. Michelle Winery, and dinner on the Spirit of Washington Dinner Train. Brochures will be mailed in November, and future newsletters will highlight conference sessions and speakers.
We look forward to seeing you April 15-17, 2004 in Seattle! |
Alternative Specimen Training Now Integral Part of DATIA Collector Training Course
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As an educational leader in the drug and alcohol testing industry, DATIA strives to customize the Certified Professional Collector Trainer (CPCT) course to meet the latest trends and regulations of the industry. Point of collection testing and alternative specimen testing are rapidly growing developments in the non-mandated testing arena with a myriad of different testing devices and procedures. DATIA decided it was time to provide a standard for this type of testing and added onsite urine testing, oral fluid testing, hair testing, and sweat patch testing to the CPCT course. DATIA’s training guidebooks and course agenda were completely restructured. The course no longer focuses primarily on Department of Transportation testing, but non-mandated testing as well. DATIA brought this new aspect to the CPCT course on September 19 and 20, 2003, in Salt Lake City, Utah, and the class was a winner! DATIA is excited more than ever about the training classes to come. (See schedule on Page 11)
The highly anticipated new course was full on both days in Salt Lake City. There was a mixture of new and repeat course participants. At the end of each class attendees were asked to fill out an evaluation form, which is used by the DATIA staff to make improvements wherever they are needed. The DATIA staff was very pleased to see that 80% of the attendees rated the overall effectiveness of the new training course as a 9 out of 10 (10 being excellent). Some of the comments expressed on the forms were ” This was a very good course. I liked the inclusion of non-mandated testing”, “ Great presentation, very informative and helpful”, and “I thought it was a great learning experience. I feel that I took a lot away from the day spent in class”. Each attendee now has step-by-step guidelines for performing alternative specimen collection and onsite testing. Many participants experienced in alternative specimen testing indicated that they would use the CPCT guidelines when they return to their facilities. Other novice collectors now have opened their eyes to a new world full of possibilities for company growth.
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DATIA’s master instructor, Sherry Vogler, used several devices provided by DATIA’s course sponsors as visual aids during the course. These visual aids and hands-on demonstrations allowed attendees to see firsthand how the collection and testing process works for alternative specimens and onsite testing. (See related article in next column.)
As word gets out on the dynamic new course, DATIA expects future courses to fill up quickly. Interested persons can register via the website at www.datia.org/education/educationmainpage.htm or by calling DATIA at 800-355-1257. Companies interested in sponsoring the course can contact Laura Shelton at 800-355-1257. |
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It's The Law: Service Agent Liability: Ninth Circuit Weighs In Against LabOne
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| By Tom Eden & Michael Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C. |
In a much anticipated decision, the United States Court of Appeals for the Ninth Circuit has ruled on the issue of service-agent liability and found that LabOne negligently analyzed and reported results of a Delta Airlines flight attendant, resulting in a $400,000 jury verdict.
Yasuko Ishikawa, a Delta flight attendant, was fired for failing a drug-detection urine test. While she was flying from Japan to Portland, Oregon, on September 20, 1999, Ishikawa was told she would be required to take a random test when the plane landed. The flight took nine hours, and Ishikawa drank several liters of water and tea during the flight. When the plane landed she provided the urine sample. LabOne’s report said that Ishikawa’s sample’s specific gravity was 1.001 and its creatinine level was 5 mg/dL. LabOne reported to Delta “specimen substituted: not consistent with normal human urine.”
The sample Ishikawa provided had been split and one part preserved. During litigation the judge granted an order requiring that the second half of the sample be tested by another federally approved laboratory. This test, on the same urine from when she got off the plane from Japan, showed a creatinine level of 5.3 mg/dL and specific gravity of 1.002. That made it a “dilute specimen” but not a “substituted specimen.” Among the many things that the court found LabOne was doing wrong was truncating the creatinine result to an integer (i.e., nothing past the decimal point). Its machine was programmed to give only the integer. Truncating means cutting off the decimal, so even a 5.9 creatinine level would be reported as only 5. What the court found material was that Ishikawa’s passing result of 5.3 was converted to a failing result of 5 by LabOne.
Significantly, Ishikawa did not sue LabOne for any federal claim, but sued instead for the state common-law tort of negligence. Ishikawa alleged that LabOne was negligent in analyzing and reporting the results of her urine sample in six different ways. The jury found LabOne was negligent and awarded $400,000 in damages.
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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).
In affirming the lower court’s verdict, the Ninth Circuit Court of Appeals struck down LabOne’s principal argument that Ishikawa was not entitled to sue at all because the federal statute and regulations do not provide for a private right of action, and that her state common-law action was preempted. The court pointed out that Ishikawa did not pursue some supposed private right of action under the federal drug-testing scheme. Both the Second Circuit and Sixth Circuit Courts of Appeal have held that the federal drug-testing statutory scheme does not create a private right of action. After exhaustively discussing this subject, the Ninth Circuit Court of Appeals ruled that there was no express federal preemption by statute, or otherwise, and allowed the $400,000 negligence verdict to stand against LabOne.
Practical Counsel:
1) Conduct a risk management to see what are your highest areas of exposure and take the necessary steps to plug the holes;
2) Utilize contracts that clearly lay out who is responsible for what and that contain indemnification clauses;
3) Obtain liability insurance that covers all of your potential risk areas so you will not have to pay legal fees and expenses, even when you are right;
4) Secure a relationship with a knowledgeable attorney to help you with creative solutions before you become a courtroom casualty.
Disclaimer & Acknowledgments: 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 email at te@wallacejordan.com.
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DOT Moves Forth With Establishment of Guidelines For Electronic Communications
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On September 18 and 19, 2003, the Department of Transportation’s Electronic Transmission and Storage of Drug Testing Information Federal Advisory Committee met for the second time. The committee met for the first time in June of 2002, where subcommittees were formed to work on recommendations for the DOT. During the 2003 meeting these recommendations were presented and discussed. DATIA was shocked that, other than representatives from modal agencies, a DATIA representative was the only person in attendance as a member of the public.
The issue of electronic transmission and storage of drug testing information will affect everyone involved in the drug and alcohol testing process, and the committee’s work is therefore important to everyone in the industry. Eric Quilter of Compliance Information Systems, Inc., a former DATIA Board Member and member of the DOT’s Federal Advisory Committee, will be making a presentation during DATIA’s 2004 Annual Conference on the recommendations made by the committee to the DOT. Below is a brief synopsis of the committee’s recommendations.
DATA Elements and Record Format
Currently, service agents are increasingly using electronic communication to transmit information relating to workplace drug testing programs. There are no defined standards, however, and many communication formats are not portable between agents. “The subcommittee recommendation for a unified approach to electronic reporting of drug testing results is based upon the adoption and use of standards for formatting electronic messages and for coding of laboratory test names and results,” the subcommittee wrote. The subcommittee further states that it recommends the use of Health Level 7 (HL7) as the standard for drug test results reporting. HL7 is an accepted standard for electronic messaging of health information and is the standard for development of the computerized medical record. In lieu of using HL7 as the standard, the committee also discussed developing its own standard. Doing so would require the creation of an Industry Working Group to propose the file format. Laboratories are also increasingly using Logical Observation Identifiers, Names and Codes (LOINC) for the specification of test names, which the committee has recommended to be used for drug test information.
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Digital Signatures and Security of Transmission
The Digital Signatures and Security of Transmission Subcommittee realized the need for the DOT to provide more specific guidelines concerning the use of electronic communications; however, they also see the need to provide flexibility. Such flexibility will enable service agents and employers to adapt their use of technology to the degree that works best for their situation. The subcommittee also noted that information technology evolves much faster than the rulemaking process, and, therefore, the DOT should establish objectives and standards rather than mandating specific methods or technologies.
One major item that the subcommittee identified was the confusion concerning the difference between a digital signature and a digitized signature. Digital signatures (using digital certificates to “sign” electronic data providing for its integrity and accuracy) combined with encryption techniques are recognized as legally binding per the Electronic Signatures in Global
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Member Spotlight: Medcare Specalists
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When MedCare Specialists first joined DATIA in 2001, MedCare was a collection site serving 20 clients in east Texas. Over the past two years, they have grown to serving over 600 clients all over the country. They now perform consortium services and have an onsite MRO. They also offer national consulting in program management, as well as drug free policy development for both government and private agencies. Curtis Berkley, Director of Operations, is also a DATIA regional trainer and travels all over the country providing training. Berkely credits MedCare Specialists’ affiliation with DATIA for the company’s growth.
“I first heard about DATIA after I had worked here for about a year. I felt like there was a lot about servicing our clients that we weren’t accomplishing,” Berkley says. Although MedCare was doing their job, and doing it correctly, the only information they had came from laboratories. MedCare felt like they needed to become as knowledgeable as possible about the entire industry. “We were doing everything right, everything the labs had told us, but we wanted to know more,” Berkley explained. It was at that point that he met with others in the organization and they decided together that DATIA was going to be an all-or-nothing endeavor. They decided to go “all in” to DATIA.
Almost immediately, Berkley became as involved as possible. He attended a Student Drug Testing workshop, and signed up a few months later for the CPCT and Program Management courses. He looked into other associations, but “we felt that DATIA offered the most comprehensive range of training and expertise and that they provided a national standard. We knew if we were doing what DATIA offered, we were as knowledgeable as we could possibly be.”
After completing the training course and passing his exam, he quickly trained the other collectors in his facility and had them certified as well. MedCare then became an Accredited Collection Facility.
Beginning the process with DATIA involved a lot of hard choices, according to Berkley. He says, “The hardest thing to do is to admit that you’re not necessarily doing the best job you could be doing. So we committed our time, money, and energy, with no real guarantee of it coming back to us. But we really believed DATIA was the best thing for us.” Over the years, though, clients have started to see a change in the quality of service they are providing and the knowledge MedCare is offering. Clients began to contact the company more regularly with questions on drug testing and, eventually, began asking them to develop their Drug Free Workplace policies and manage their consortium services. More importantly, their clients began referring them to other companies and, before they knew it, MedCare had gone from servicing clients within a 20-mile radius to serving clients all over the country.
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Some companies may ask, “Why should we be a member of DATIA when we have all the clients we need?” But Berkley says it’s not just about getting more clients. Even if a company has all the clients it needs, DATIA “teaches you to provide them with the best available service. It allows you to keep the clients you already have.” He continues, “None of our clients called us and said ‘Gee, we really wish you were a member of DATIA’, or ‘We really wish you’d be DATIA certified’, but once we began providing them with an entirely different level of care, they realized just how valuable it is.”
Again, many clients may not necessarily feel that a company is doing something wrong, but “DATIA just showed us a better, more efficient, more productive way of doing things.”
Last month, MedCare began discussing upgrading their membership. While they had joined at the regular level only two years earlier, they wanted to do more to support DATIA. The more they became involved with DATIA, they began noticing trends, particularly the lack of standardized excellence of routine procedures and regulations, in the industry. “It was shocking how many in the industry were lacking in procedures, and just following simple regulations. I really believe the industry is going to grow, and the only thing that’s going to stymie the growth is bad collectors and bad facilities.”
Berkley says they never really considered going to the corporate level, and instead decided to go “straight to the top.” He says that it wasn’t so much a question of, “What will this do for MedCare?” but rather, it was a show of support for DATIA. The company had been singing DATIA’s praises for so long, he decided it was time to show their support financially as well.
“We became sustaining members because we wholeheartedly believe that DATIA is the benchmark for standards in the drug and alcohol testing industry, and we believe that the further DATIA spreads throughout the industry, that it won’t just be for the betterment of MedCare, or even of DATIA, but it will be for the betterment of the entire industry.”
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DATIA to Host Israeli Anti Drug Authority Delegates
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On November 7th, delegates from the Israeli government’s Anti-Drug Authority will participate in a meeting with DATIA to learn how they can work towards a drug-free workplace in Israel. Administrators of the Department of Labor’s Working Partners Program have also accepted DATIA’s invitation to participate in this exciting meeting.
The Israeli Anti-Drug Authority Law of 1988 established the Anti-Drug Authority of Israel whose main function is to formulate policy with regard to the prevention of drug abuse, treatment and rehabilitation of drug addicts, and enforcement of the laws and penalties pertaining to drug abuse. In addition, the Authority is to actively pursue such policies by coordinating activities between government offices and between government and non-government bodies in Israel that deal with drugs, to encourage and support research in the area of drug abuse, to establish ties with agencies abroad who work in this field, and to encourage the training of personnel needed to deal with the problem of drug abuse in Israel.
On an earlier trip to the United States, delegates of the Anti-Drug Authority visited with the National Drug Court Institute in Washington, D.C. During this trip, the delegates will be in New York, New York; Baltimore, Maryland; and Washington, D.C., to gain first hand information on early childhood use prevention and establishing a drug free workplace.
DATIA is honored to have been contacted regarding meeting with the delegates and will inform our members of the outcome of the meeting.
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DATIA Submits Comments on Proposed Driver Safety Regulations
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In late August, DATIA submitted comments to the Federal Motor Carrier Safety Administration’s (FMCSA) supplemental notice of proposed rulemaking concerning safety performance history of new drivers. In its comments, DATIA identified numerous implementation problems with the proposed rule.
The first issue that DATIA addressed was compliance. Currently, employers are required to request drug and alcohol test records from the previous employers of new employees for their previous two years of employment in a safety sensitive position. This requirement is contained in CFR 49 Part 40.25. Reports from DATIA members and the industry show that there is little compliance with this requirement. First, the employers are not requesting the information and those that do request the information are not receiving it from the previous employers. There are many reasons for this including (1) smaller employers are not aware of the requirement, (2) employers are unsure of what format to use to request the information, (3) employers receive requests in multiple formats and are not sure whether they should respond, etc. Employers are not complying with the requirement to investigate drug and alcohol test results for the previous two years, which makes DATIA doubtful that they would comply with the FMCSA’s proposal to request the information for the previous three years.
In a September 2001 Safety Recommendation to the FMCSA, the National Transportation Safety Board (NTSB) issued statements regarding the ineffectiveness of the FMCSA’s background check requirements. In the Safety Recommendation, 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 Safety Recommendation. The NTSB’s investigation of a May 22, 1999, bus accident that killed 22 passengers and injured many more revealed that: (1) when the driver applied for the position, he omitted two employers, in which he had been dismissed for testing positive for marijuana, from his employment history, and (2) 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.
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Neither of these problems was addressed in the FMCSA’s proposed rulemaking. Adding an extra year to the length of the history will not change the fact that employers do not respond to the requests and that employees omit information from their applications. The only effective solution for these problems is the establishment of a national database of drug and alcohol testing records for safety-sensitive employees. In fact, the FMCSA was tasked with studying the feasibility of such a database and to prepare and send a report with their findings to Congress. This report was due on December 31, 2001, however, to the best of DATIA’s knowledge this has not been accomplished.
Until the FMCSA adequately assesses the merits of such a database and how such a system would substantially increase safety, the FMCSA should not impose additional requirements on employers and service agents that will not have sufficient benefits. DATIA will continue to follow this rulemaking and update its members as new events occur |
Thank You to DATIA CPCT Course Sponsors and Content Contributors
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DATIA would like to thank Northwest Toxicology in Salt Lake City, Utah; Psychemedics Corporation in Cambridge, Massachusetts; and Varian, Inc. in Cary, North Carolina for their sponsorship of DATIA’s revamped collector training course. The class could not have been a success without the support of these sponsors.
Prior to the first course, DATIA sent information to product manufacturers informing them of the sponsorship opportunities. Companies that sponsor the training courses are offered the opportunity to have samples of their products used during the course in hands-on demonstrations. This allows the company to gain exposure for their product, while at the same time enhancing each attendee’s learning experience. Sponsorships are for the duration of a year, and additional sponsorships are available. To inquire about sponsorship, please contact Laura Shelton at 800-355-1257.
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Upcoming Important DATIA Dates
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In order to provide the large number of specimen collectors access to quality training on collecting alternative specimens and performing onsite testing, DATIA has scheduled courses in over six locations through the end of 2004. In addition interested parties can take advantage of DATIA’s Secrets to Successful Drug and Alcohol Testing Program Management Course. Those who attend both courses will receive a discount on their course registration fee. To register, contact DATIA at 800-355-1257 or register online at www.datia.org/education/educationmainpage.htm.
Orlando, FL
November 7, 2003, or November 8, 2003
Embassy Suites Downtown
Philadelphia, PA
March 12 , 2004, or March 13, 2004
Loews Hotel
Seattle, WA-
April 14, 2004, or April 18, 2004
Westin Seattle
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Minneapolis, MN
May 14, 2004, or May 15, 2004
Hilton Minneapolis
Houston, TX
September 17, 2004, or September 18, 2004
Intercontinental Houston
Atlanta, GA
October 22, 2004, or October 23, 2004
Omni Hotel at CNN Center
San Francisco, CA
November 19, 2004, or November 20, 2004
The Argent Hotel
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