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Inside This Issue:
Expand Your Horizons With DATIA
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Join hundreds of other drug and alcohol testing professionals on May 29-31, 2003 at The Opryland Hotel in Nashville, TN for DATIA’s 7th Annual Conference. This year’s conference will be the biggest event DATIA has ever had by far. The drug and alcohol testing industry is growing in many different directions, with more and more professionals diving into new territories like student drug testing, alternative specimen testing, and many more. This industry is rapidly changing and it is important that your businesses grow with the times. If your company is not already up to date on all of the new developments in the drug and alcohol testing industry over the past year, this conference is just what you need to bring your office up to date.
The meeting will begin on May 29, 2003 with a welcoming reception. This will be your first introduction to the exhibit hall. It is not often that you are able to come face to face with many of the distributors and vendors of products and services that your company uses on a daily basis. This is your opportunity to speak with representatives from these companies to purchase new materials or ask them any questions you may have. You can also become familiar with new companies that have products or services, which may be useful to your company. DATIA’s exhibitors consist of laboratories, software providers, testing equipment providers, consortium, and Medical Review Officers just to name a few. With 50 booths that have been known to sell out year after year, you will not be disappointed in what this exhibition has to offer. The exhibit hall is one of the best venues for networking with other professionals as well. Visit DATIA’s website at http://www.datia.org/conference/2003/2003exhibitor_list.html for a listing of the exhibitors and a floor plan of where their booths will be located.
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Opening the speaker presentation portion of the conference this year is Eric Hess of US Investigations Services. He will kick off the meeting with tools on how to position your business to succeed in today’s marketplace. Following Mr. Hess are case specific presentations that will introduce you to new areas such as the drug court system, supervisor training, state law implications, ethics, and more. And, back by popular demand, DATIA has Dr. Leo Khadejian returning to speak about the potential of alternative specimen testing. DATIA members will have a membership meeting for a recap on all of DATIA’s accomplishments and goals for the year, and you will be introduced to the new members of DATIA’s Board of Directors. As you can see, this will be two days packed with valuable information for you to use in your business.
After you’ve participated in the seminars and your mind is taking all of this new information in, you’ll need a break. Join DATIA for a trip to the Grand Ole Opry. DATIA has reserved seats at this show for Friday and Saturday night. The Grand Ole Opry is one of the most famous places in Nashville known for putting the “music” in “Music City, USA”. Nashville doesn’t stop there so DATIA has arranged for a hospitality desk to be available to the attendees. You’ll be able to find out about the city’s finest restaurants, boutiques, and tourist attractions. The Opryland Hotel is an attraction all on it’s own with nine acres of lush gardens, winding pathways, and sparkling watefalls. If you’ve never stayed at the Opryland Hotel, this is your opportunity to experience southern hospitality at its finest.
Tune Into DATIA on May 29-31, 2003 as you expand your horizons in the drug and alcohol testing industry. Visit DATIA’s website at http://www.datia.org for more information on this year’s annual conference.
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Congress Calls for Termination of DTAB
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On February 25, 2003, House Energy and Commerce Oversight and Investigations Subcommittee Chairman James Greenwood (R-PA) called on HHS Secretary Tommy Thompson to report on a course of action and timetable for including alternative drug tests in federal workplace programs in light of unacceptable delays. This action is of utmost importance to the industry, as we look for ways to combat specimen adulteration and incorporate alternative specimens into more effective drug testing programs.
Because of ongoing delays at the Substance Abuse and Mental Health Services Administration (SAMHSA) to include alternative specimen drug tests in federal workplace programs, Greenwood requests that departmental action be taken. He quotes from congress in the 1991 Omnibus Transportation employee Act stating “ that the greatest efforts must be expended to eliminate the abuse of alcohol and the use of illegal drugs”. Greenwood insists that drug testing in the federal workplace should be stronger and this can only happen by introducing and accepting alternative specimens in the HHS guidelines. Alternative specimen drug tests are being used by many businesses in the private sector. In 2001 and 2002 Psychemedics Corporation received clearance for a five-panel drug test using human hair analysis for detection. It would make sense that federal workplace drug testing would remain in line with the latest advances in drug testing. Greenwood feels that the varying results of alternative specimen tests as compared to urine analysis is significant to the strengthening of federal workplace drug testing
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The letter outlines how SAMHSA has declined to commit to a timetable on when alternative drug tests would be included in the federal program. SAMHSA’s Drug Testing Advisory Board (DTAB) has failed to publish proposed guidelines on alternative specimens for notice and comment. In several DTAB meetings over the past five years, DTAB has postponed the publication of alternative specimen guidelines to federal workplace drug testing six times. It is Greenwood’s understanding that there may not be a final decision or ruling on alternative matrices until 2004, or even as late as 2006. Greenwood reminded Secretary Thompson that he has the authority to terminate the DTAB at anytime in light of their inability to gain any new ground with regards to alternative specimens being added to the HHS guidelines.
Greenwood asked that HHS assume direct control of the alternative specimen test policy and report in writing to the Subcommittee on Oversight & Investigations on an appropriate course of action and timetable for this action. DATIA will be actively following HHS’ response to the committee’s letter.
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It's The Law: Supreme Court Agrees to Review Disability Cases
Tom Eden of Wallace, Jordan, Ratliff & Brandt, L.L.C.
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The US Supreme Court has recently agreed to consider whether companies that refuse to rehire rehabilitated drug addicts can be sued under a federal law that protects people with disabilities. The case tests company employee policies that make lifetime bans against people who break rules, like using drugs, then want a second chance at a job after receiving addiction treatment.
Justices will review the treatment of a man who lost his job as a technician working on missile systems after he tested positive for cocaine. Joel Hernandez tried to get rehired at Hughes Missile Systems, now part of Raytheon Co., but was rejected because the company does not hire back employees terminated for breaking misconduct rules. An appeals court ruled that the company’s policy violated the 1990 Americans with Disabilities Act, which forbids discrimination against the disabled. The policy hurts people who have been successfully rehabilitated and are protected by ADA, a divided panel of the 9th U.S. Circuit Court of Appeals said.
Hernandez had spent 25 years at the Tucson, Ariz., plant, working his way up from janitor until he was told he had to quit or be fired in 1991 because of the drug test. His position was that he now attends Alcoholics Anonymous meetings and has been drug-free for more than a decade. “He turned his life around and forswore drugs and alcohol,” the justices were told in the Supreme Court Petition.
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Raytheon was supported in its appeal by the Equal Employment Advisory Council, which represents about 340 companies that employ more than 20 million people. This case represents a tide of cases challenging blanket exclusion because of past drug use. It is expected that the Court’s decision will provide much guidance to employers on the legal requirements when presented with a dilemma of this nature.
Practical Counsel:
First, when making a decision concerning the rehire of a former employee, decision makers must be aware of all of the circumstances concerning the former employee’s termination or resignation. Second, if there is any evidence that the former employee was a drug addict, but has been rehabilitated, the employer is advised to proceed very carefully. Third, remove from your company policies blanket “no rehire” provisions for those that test positive. It is not a far stretch for the EEOC or a court to find an ADA violation when faced with a good faith record of rehabilitation.
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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DATIA Responds to Inaccurate Portrayal of Drug Testing
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On February 11, 2003, Real Sports on HBO aired a story discussing drug testing of student athletes. The story was not unbiased and contained false information and myths. While the drug and alcohol testing industry was not consulted prior to the story being aired, DATIA decided that the industry needed to speak up after the fact to present the “other side”.
On February 24, 2003, DATIA sent a letter to Mr. Armen Keteyian, Correspondent, Real Sports. In the letter, DATIA expressed its concern that the show gave a one-sided and inaccurate view of student drug testing. The story was swayed to give viewers the impression that the drug and alcohol testing of students is used for punishment purposes, instead of as a deterrent method. National surveys show that drug and alcohol abuse is a nationwide problem reaching children from all walks of life and DATIA’s view is that student drug testing should be used as a prevention method, just as vaccines are used to prevent disease.
The letter went on to provide clarity in regards to the policy used when testing students. A young athlete on the show talked about not wanting to “pee in front of someone”. In its letter, DATIA makes it clear that the drug and alcohol testing industry recognizes this as unacceptable and has advocated not using direct observation collections as part of its position statement on student drug and alcohol testing. DATIA informed Mr. Keteyian that drug and alcohol testing professionals have the children’s safety, dignity, and potential first and foremost in their thoughts at all times. Student drug testing is not a punishment program, but rather a program to ensure that the students grow to be productive adults capable of reaching their full potential.
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Mr. Keteyian and his researchers were encouraged to learn more about the industry’s position and work on student drug testing.
Submitting such a letter to clarify the positive impact of drug and alcohol testing is not a first for DATIA. In 2002, DATIA submitted a Letter to the Editor of US News and World Report, which was printed in the magazine in September of 2002. This letter directly challenge the information provided by the magazine in an August 2002 article concerning inaccuracies in workplace drug testing.
It is through these efforts that DATIA serves to provide the general public correct information on drug and alcohol testing. Many journalists and the general public still do not accept drug and alcohol testing, and continue to perpetuate inaccurate information and myths concerning the effectiveness and accuracy of the industry’s actions.DATIA will continue to monitor media reports concerning drug and alcohol testing and will respond on behaf of the industry to ensure that correct information is provided.
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DATIA Comments on FRA Proposal to Expand Drug and Alcohol Testing Program
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On February 20, 2003, DATIA submitted comments in reference to the Federal Railroad Administration’s (FRA) Notice Inviting Comment concerning application of their drug and alcohol testing regulations to employees of foreign railroads who are based outside of the United States and perform train or dispatch services in the United States.
DATIA suggested that the FRA, much like the Federal Motor Carrier Safety Administration (FMCSA), require that all persons performing safety sensitive duties within the U.S. for the railroads be subject to the FRA drug and alcohol testing regulations regardless of where the company is domiciled. Furthermore, foreign railroad foreign based (FRFB) employees who perform train service and/or dispatch service outside of the U.S., but that control or affect train movement in the U.S., should also be subject to the FRA drug and alcohol testing regulations. Regardless of where an employee’s company is located, or where the employee is physically located, if the employee is performing safety sensitive duties that directly affect the safety of railroad operations in the US, he/she should be required to comply with the FRA drug and alcohol testing regulations.
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The Notice Inviting Comments specifically asked commentors to submit comments on the September 2002 Canadian Human Rights Commission Policy on Alcohol and Drug Testing. While Canada certainly does have different views concerning drug and alcohol testing, they have made exemptions to their policies regarding cross-border trucking and bus operations. DATIA stressed that the same exemptions should be made regarding foreign railroad foreign based (FRFB) employees. If this cannot be achieved through the regulatory process, then DATIA suggested that the FRA work with NAFTA’s (North American Free Trade Act) Land Transport Standards Subcommittee and Transport Canada to establish guidelines and standards that will meet both the FRA’s goals for increased safety and Canada’s human rights policies.
As new information on this proposal is made available, DATIA will provide it to its members. Background information on the issue, including the Canadian Human Rights Commission Policy on Alcohol and Drug Testing can be found in the Issues section on DATIA’s website.
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CG Proposes for Mariners to Conduct Alcohol Screening Aboard Vessels
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The Coast Guard has formally proposed to
require all marine firms to implement new post-accident alcohol testing measures, including carrying alcohol screening devices(ASD) on board at all times, and being trained on their use. This Notice was published in the Federal Register on February 28, 2003 to invite public comment.
As background, the 1998 Coast Guard Authorization Act requires the Coast Guard to establish procedures ensuring alcohol testing is conducted within two hours of a serious marine casualty. The Coast Guard proposes to establish requirements for testing within the statutory time limits, to expand the existing requirements for commercial vessels to have alcohol-testing devices on board, and to authorize use of a wider variety of testing devices.
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DATIA is currently analyzing how this will affect drug and alcohol testing professionals, and is formulating official comments through its Legislative and Regulatory Committee and Board of Directors. Persons wishing to submit individual comments must send them to the DOT Docket Management System by June 30, 2003. DATIA will post its comments on the web once they have been submitted to the Docket. |
HHS Withdraws Specimen Validity Testing Guidelines
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At the latest meeting of the Drug Testing Advisory Board (DTAB), Dr. Robert Stephenson II, Director of the Substance Abuse and Mental Health Services Administration’s (SAMHSA) Division of Workplace Programs, announced that the Department of Health and Human Services (HHS) was withdrawing its proposed specimen validity testing (SVT) guidelines. This comes as a result of a meeting held by SAMHSA, the Department of Transportation (DOT) and the Federal Aviation Administration (FAA) to evaluate and study whether certain transportation employees could inadvertently fail to meet the current SVT standards due to treatments for certain health-related issues, working conditions, or dietary habits.
HHS has stated that they are now convinced that certain people can naturally produce a specimen, which would be considered “substituted” by the proposed guidelines. HHS’ new plan is to release the revised specimen validity testing guidelines in conjunction with their mandatory testing guidelines for alternative specimens. The specimen validity testing guidelines have been worked on by HHS for the past two years, and the alternative specimen guidelines have been worked on for over five years.
In an October 3, 2002 letter to Congress, DOT, and HHS, DATIA provided analysis and research showing that the SVT guidelines were flawed and that those reasons stated above (treatments for certain health-related issues, working conditions, or dietary habits) could produce “substituted” specimens according to the proposed criteria.
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DATIA notified HHS that many studies existed, but were not evaluated by their office prior to issuing the proposed regulations, on the effects of factors such as altitude, menstrual cycle, diet, etc. on the body’s body fluid balance and urine output. Studies were referenced by DATIA on the decline of creatinine and urea clearances in women during mid-menstrual cycle (Mid-menstrual cycle decline in creatinine and urea clearances. Nephron 67: 158-66 (1994)) as well as the effect of high altitude on body fluid metabolism causing increased water loss and diuresis. (Body fluid and energy metabolism at high altitude. Handbook of Physiology 1277-1285) DATIA also pointed out that the decreased humidity (10-20%) in airline cabins and the increased water intake by those on board to counteract the dry atmosphere, creates a unique situation whereby multiple factors, all of which are normal, can lead to an exceptionally dilute specimen.
While DATIA is pleased to see the withdrawal of the proposed SVT guidelines by HHS, the fact remains that the same criteria are part of the DOT CFR 49 Part 40 drug and alcohol testing regulations. While Part 40 states that validity testing is “allowed” but not required, using the values of “creatinine less than or equal to 5 mg/dL and specific gravity of less than or equal to 1.001 or greater than 1.020” will continue to cause normal specimens to be reported as substituted. Although new guidelines are being developed by HHS, they are not expected anytime soon since the original guidelines took two years work just to be proposed. Ultimately, the guidelines currently in use and in Part 40 should be revoked until correct guidelines are developed.
We will continue to monitor this issue and work to ensure that correct guidelines are developed and used.
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Thank You Conference Sponsors and Exhibitors
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DATIA would like to give a special Thank You to each of its 2003 Annual Conference Sponsors and Exhibitors registered as of April 18, 2003. We encourage each conference attendee and DATIA member to visit these companies to learn more about thier products and services.
Company Name Booth Number Website
Platinum Sponsor
Sentinel Scientific, LLC 33 www.sentinelsci.com
Gold Sponsor
Medical and Drug Testing Laboratory 38
Silver Sponsor
BB&T Huffines Russell Insurance 8 www.BBandT.com
Comprehensive Heath Services, Inc. 18 www.chsmedical.com
Quest Diagnostics Incorporated www.questdiagnostics.com
Willow Laboratories and Medical Center 48 www.willowlaboratories.com
Platinum Exhibitor
Applied Biotech Inc. 34 www.forefrontdiag.com
eScreen 13 www.escreen.com
Florida Drug Screening/MDMRO 2 www.Floridadrugscreening.com
Kroll Laboratory Specialists 16 www.krollworldwide.com
Orchid GeneScreen 17 www.orchid.com
PharmChem, Inc. 21 www.pharmchem.com
Rapid Diagnostics 30 www.rapiddiag.com
Gold Exhibitor
American Substance Abuse Professionals, Inc. 19 www.go2asap.com
Chematics, Inc. 23 www.chematics.com
DNA Diagnostics Center 11 www.dnacenter.com
Medical Laboratory Solutions, Inc. 3 www.lsbiomed.com
Bronze Exhibitor
Advanced Toxicology Network 14
Alcohol Countermeasure Systems 15 www.acs-corp.com
AlcoPro, Inc. 37 www.alcopro.com
Alfa Scientific Designs, Inc. 41 www.alfascientific.com
Alpha Pro Solutions 47 www.alphaprosolutions.com
American Bio Medica Corporation 32 www.abmc.com
BioChemical Diagnostics, Inc. 27 www.biochemicaldiagnostics.com
Branan Medical Corporation 12 www.brananmedical.com
Clinical Reference Laboratory 29 www.crlcorp.com
CMI, Inc 26 www.alcoholtest.com
Comprehensive Heath Services, Inc. 18 www.chsmedical.com
CTS Distributing, Inc. 31 www.hmts.com
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Drug Free Enterprises, Inc. 20 www.drug-check.com
Immunalysis Corp 6 www.immunalysis.com
Intoximeters, Inc. 5 www.intox.com
Kahntact USA, Inc. 42 www.kahntactmet.com
Lifeloc Technologies 22 www.lifeloc.com
LifePoint 35 www.lifepointinc.com
LifeSign, LLC 46 www.lifesignmed.com
Live Response 9 www.rdoffice.net
Lynn Peavey Company 24 www.peaveycorp.com
Medical and Drug Testing Laboratory 38
Medtox Laboratories, Inc. 25 www.medtox.com
Microbac Laboratories, Inc. 7 www.microbac.com
Noble Medical 28 www.noblemedical.com
Northwest Drug Testing 10 www.nwtinc.com/wdtindex.htm
OraSure Technologies, Inc. 50 www.orasure.com
Scanlon Associates 1 www.drugpak.com
Sciteck Clinical Laboratory 36 www.sciteck.org
TECO Diagnostics 39 www.tecodiag.com
U. S. Department of Labor/Working Partners 49 www.dol.gov/dol/workingpartners.htm
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