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Inside This Issue:
DATIA Introduces a New Executive Director
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As the drug and alcohol testing industry continues to grow and change, so must the industry's association. DATIA continually experiences exponential growth in membership, consistently offers innovative programs, and maintains staff and management dedicated to quality customer service.
Continuing DATIA's growth, promoting the interests of the industry, and providing unique programs and resources requires a group of dedicated professionals who can continue to expand and represent an ever-changing industry.
To ensure that we continue up that path, we're making some changes at headquarters. Executive director Laura Shelton, who has immersed herself in drug and alcohol testing industry issues for more than seven years, will move up to the managing director position, allowing for a new executive director.
Melissa Moskal will assume the executive director role effective September 1. Many of you have met Melissa recently in her interim position of director of government relations, where she has already made great strides on DATIA's behalf. Melissa comes to DATIA with much experience in public relations and working on policy issues. She has most recently worked with various transportation organizations on many issues, including drug and alcohol testing, and developing accreditation programs. The experience and energy that Melissa brings to DATIA will provide a fresh perspective to the many issues facing the industry today, and advance the association to the next level.
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After graduating from the George Washington University in Washington, D.C., with a degree in political science, Melissa spent five years working for a major educational non-profit as conference planner, issues manager, and national spokesman. She was a frequent guest on talk radio shows across the country, and television shows like Politically Incorrect with Bill Maher and Hannity & Colmes. During one Politically Incorrect appearance--perhaps as a sign of things to come--she debated and promoted the merits of workplace drug testing! Her extensive experience in issue advocacy will be an asset to DATIA.
Melissa says that the drug and alcohol testing industry “is dynamic, and constantly changing,” and that she looks forward to the challenge. “New technologies, new regulations, and new opportunities seem to present themselves everyday. I very much look forward to working with the board of directors, the staff, and the membership to guide DATIA's daily operational management, and to identify new areas in which DATIA can better serve the industry for everyone's benefit.”
Melissa can be reached at mmoskal@datia.org. |
DATIA’s 2004-2005 Action and Agenda Items
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The DATIA Board of Directors has approved new Action and Agenda Items for 2004-2005. These priorities reflect DATIA's core mission, help maximize the association's impact and effectiveness, and act as a guide for the board and staff throughout the year.
From time to time we will call upon the membership to help us with these action and agenda items. We look forward to your participation and to
another successful year!
• Work with the Department of Health and Human Services (HHS) to ensure the inclusion of acceptable guidelines for alternative specimen (hair, sweat, and saliva) and point-of-collection testing into federal drug free workplace programs. Provide education and guidance to members and the industry about the proper use of point-of-collection and alterative specimen collection and testing. DATIA has already taken the lead in this area, by working with HHS over the past several years, and submitting comprehensive comments when the proposed rules were finally released.
• Facilitate the development of studies showing the efficacy of drug and alcohol testing. Showing how drug and alcohol testing can help employers, schools, and others is key to having them implement drug and alcohol testing programs.
• Promote the importance of drug and alcohol testing as part of drug free workplace programs to federal agencies, Congress, and private-sector employers.
• Provide input on key issues affecting the industry in the Department of Transportation (DOT) 49 CFR Part 40 and modal administration regulations when the industry identifies problems in implementation. Throughout the year, the various DOT agencies will announce new regulations, and DATIA will continue to provide comment and assistance.
• Work to establish legislation that provides tax credits for small businesses that start drug free workplace programs. Implementing a drug free workplace program can be costly for employers, though not as costly as the potential absenteeism, accidents, health-benefit utilization, and turnover of drug-using employees. Tax credits offer incentive for small businesses to start drug free workplace programs, and recoup some of the costs associated with it.
• Work with the DOT to ensure that all modal agencies, regional compliance offices, and auditors are providing information to service providers that are in compliance with DOT regulations. Work to ensure that proper training and directives are provided by DOT to all field offices and auditors. The DOT regulations are cumbersome and confusing, oftentimes requiring clarification from the top brass. DATIA will work to make sure that all involved in DOT testing know the regulations, and are compliant.
• Work with Congress to develop and support legislation and initiatives aimed at ending the use of adulterants to thwart drug tests. Work to increase public awareness of the public safety dangers of such fraudulent tactics, and work to establish laws at the federal level that are similar to those passed a handful of states.
• Develop an accreditation program for companies that implement strong Drug Free Workplace programs. Just like the accreditation programs for drug and alcohol testing providers, DATIA will provide standards for companies that wish to start drug free workplace programs, and independently accredit those who meet and exceed the standards.
• Develop and successfully execute a course for Designated Employer Representatives (DERs). Key to strong and fully compliant drug testing is ensuring that all involved know their role, and know the regulations. Industry professionals feel that DERs will be more effective if they are trained not only by their employer, but also by the industry.
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• Develop and successfully execute a course for Medical Review Officer (MRO) assistants. Similar to the reasons for the DER course, an MRO assistant training course will be based on input from the membership to train MRO assistants in the complexities of drug testing regulations and the role they play.
• DATIA will work with HHS and DOT on the optional availability of electronic versions of the federal custody and control form (CCF), and the acceptance of electronic signatures. DATIA will work with these agencies to provide comment and input on how to eliminate much of the burdensome paperwork associated with drug and alcohol testing.
• Work with the DOT, the Federal Motor Carrier Safety Administration (FMCSA), and key government officials to move towards the timely development and implementation of a national database of DOT refusals to test, positive drug and alcohol test results, and return-to-duty status for all employees covered by 49 CFR Part 40 regulations.
• Work with Congress to support legislation and initiatives aimed at furthering school drug testing. Work to increase public perception and acceptance of school drug testing and to increase the amount of funding and technical assistance available to school systems that want to establish drug free school programs that incorporate drug testing.
• Successfully move DATIA programs and resources to an online format, including collector training, collector certification, and the Red Book. Moving the Red Book online will provide for easier updates and searches. Online training and certification will allow for greater numbers of collectors to be trained, especially those in more rural areas.
• Work to reauthorize the Drug Free Workplace Grants program, which DATIA successfully expanded to include eligibility for for-profit industry service providers. DATIA will also provide assistance to members in applying for the grants.
• Create an Advisory Panel to report to the Board on technical issues.
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Avoiding Landmines in Drug Testing Policy Drafting
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In a recent California workers' compen-sation case, an employer that had a policy to only perform drug testing on employees who had been in an on-the-job accident was fined by an administrative judge for having an “impermissibly discriminatory policy.” The employee sustained an industrial injury to his right wrist and spine when lifting blocks of metal while employed as a push brake operator for the employer. The employee refused to provide a post-accident urine sample for a drug test. The employer terminated the employee and did not permit him to come back to work after his doctor cleared him to return to modified work. All issues except the employer's possible liability for impermissible discrimination under California Labor Code § 132a were settled.
The workers' compensation judge found that the employer's drug testing policy was impermissibly discriminatory since it was drafted unfairly and focused exclusively on industrially injured workers. The judge initially imposed a $10,000.00 fine and awarded the employee reinstatement plus back wages and benefits. On reconsideration, the judge upheld the fine but vacated the award of reinstatement and back pay because the employee was either temporarily disabled by reason of his injury (not the discrimination) or qualified for vocational rehabilitation, which he voluntarily declined. Sam Shamon, Petitioner v. Workers' Compensation Appeals Board, Stockton TRI Industries, Inc., Respondents, 68 Cal. Comp. Cas 1408, *; 2003 Cal. Wrk. Comp. LEXIS 466, **
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Practical Counsel:
• It is advisable to seek legal counsel when drafting a policy in any jurisdiction, but especially so where the laws and court system may not be friendly to drug testing.
• Make sure that your policy is fair and balanced in its approach to reaching the goal of a Drug Free Workplace and does not solely focus in on disqualifying an employee from a statutory benefit.
• When considering an adverse course of action against an employee who tests positive, or refuses to be tested, request an independent appraisal of your considered course of action to see if any legal roadblock or warning post exist. A 20-minute phone consultation can often save you big $$$$.
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 advisse 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 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).
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DATIA’s 10th Anniversary Celebration
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DATIA will officially celebrate its 10th anniversary during its 2005 Annual Conference and Exposition being held May 12-14, 2005 at Disney's Coronado Springs Resort in Lake Buena Vista, Florida. Over the summer, we have been receiving an unusually high number of calls regarding the conference and are excited at the interest already being displayed by the industry in participating in this event.
"Celebrate the Magic" will kick off with an extended exhibitor reception on Thursday, May 12, 2005. Thanks to exhibitor and attendee feedback, we have modified the exhibit hours to better serve the needs of all attendees. Thursday's reception will be held from 4 PM to 8 PM and will feature many special guests. Presenting sponsors, sponsors, and exhibitors will be showcased and will be available to discuss their newest items and services with attendees. In addition, during this time voting will occur for numerous awards available for attendees, exhibitors, and sponsors. The exhibit hall will also be open from 10 am to 3:30 PM on Friday, May 14th. At 3:00 PM on Friday, prize drawings will be held for what will be the largest array of prizes, including cash giveaways, for attendees in DATIA's history.
Presenting Sponsor hospitality suites were such a big hit in 2004 that they will continue again in 2005. Even better, DATIA has secured rooms that will provide attendees with an opportunity to stroll out onto the balcony to enjoy the evening breeze. In addition to evening entertainment provided by Presenting Sponsors on Friday, a celebration for everyone will be held on Saturday. "You are the Magic--Celebrating DATIA's 10th Anniversary" will be a gala event held on the beach within the resort. Stroll under the twinkling lights, dance to the music, and soak up the moonlight, all while you enjoy delicious food and drink with friends and colleagues you've come to know and spend time with over the last ten years.
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While DATIA's 2005 Annual Conference and Exposition will feature a wealth of entertainment options, the educational sessions on Friday and Saturday are sure to be the reason you decide to attend. Sessions will not only celebrate how far the industry has come over the last decade, but also provide insight and ideas on what the future holds. In addition, you will receive comprehensive information on how to secure your organization's future success as the industry continues to grow and change.
Finally, we invite you to bring your family to join in on the fun! DATIA will be offering discount Disney Theme Park tickets to attendees and their guests so that you can enjoy all that Disney has to offer. Guests will also have the option to participate in Thursday's reception and Saturday's Gala event.
Brochures will be mailed to prospective exhibitors and sponsors in October. If you would like to ensure that you receive this prospectus, please send an email to lshelton@datia.org. Attendee brochures will be mailed in November. We look forward to seeing you at this milestone event.
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DATIA's 10th Anniversary Awards Ceremony
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As part of its 10th Anniversary Celebration, DATIA will be recognizing those who have made a profound impact on the industry. We will also be recognizing those who have continually shown their support of the association through consistent participation in DATIA events, programs, and committees. We will be presenting awards during the 10th Anniversary Celebration on Saturday, as well as during DATIA's Membership Meeting. So many DATIA members have made technological advances in the industry, created new programs that have become standard practice for many, advanced the public's perception of drug and alcohol testing by providing exemplary customer service and ethics, and gone above and beyond to promote drug and alcohol testing. We are pleased to be able to recognize and celebrate these members’ accomplishments during this event.
In the next month, a formal Call for Nominations will be sent to each member asking for nominations for each award, and we'd like to give you a heads up to start thinking of who you feel embodies the traits of each award. Look for your Nomination Ballot in October. Nominations for industry awards will be peer-reviewed and winners will be confidentially notified of their selection prior to the conference to ensure that they can be in attendance to accept the award. If you think we have overlooked an award, please send your idea to lshelton@datia.org.
Industry Awards
Exemplary Service to DATIA
Recognizes the person who has gone above and beyond to better DATIA and the industry through input and new ideas.
Technological Innovation Award
Recognizes the person or company whose advances in technology have shown the most innovation and provided a great benefit to the industry.
Inspiration Award
Recognizes the person whose story for how they came to be in this field is the most inspirational.
Rags to Riches Award
Recognizes the entrepreneur who has come the farthest in the industry through innovation and hard work.
Exemplary Professionalism Award
Recognizes the person or company who shows exemplary dedication to and innovation in customer service, ethics, and working with clients and the industry to increase the public's perception of drug and alcohol testing.
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Public Awareness Award
Recognizes the person or company whose dedication to promoting drug and alcohol testing in a positive manner has resulted in increased public awareness of the merits and benefits of drug and alcohol testing.
Awards Voted for On-site
Most Creative Exhibit Booth
Membership Awards
Decade Club
Those companies who have been members for 10 years (joined in 1995 and still active members) will be inducted into the Decade Club.
Membership Innovation
Recognizes the member whose suggestion/input has resulted in a new member benefit that has made the greatest impact on the association and its member services.
Perfect Attendance
Members who have participated in every annual conference through attending, exhibiting, or sponsoring will be recognized.
There for Others
The member who participates in the online member forum the most will be recognized for his/her willingness to provide information to other members.
Professionalism Award
Companies who have maintained their Accredited Collection Facility and/or Nationally Accredited for Administration of Drug and Alcohol Testing Programs accreditation for the longest will be recognized.
Get Out There Award
The RCPCT who has promoted professionalism within the industry by training the most CPCs will be recognized.
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Spotlight: Workfit Medical, LLC
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WorkFit Medical, LLC became a Corporate member of DATIA in April of this year, and within a matter of two months they decided to upgrade their membership status to Sustaining. As a result, we were very interested in spotlighting this company and learning more about their reasons for upgrading. It is very pleasing to see that DATIA members recognize the value of their membership in this association.
Workfit Medical, LLC was started in June of 2002 by Dr. C. Jay Ellie Jr., MD and Troy Overholt, BS RN. Dr. Ellie is board certified in internal medicine and practices emergency medicine in the Fingerlakes area of western New York. He is also AAMRO certified. Troy Overholt is a registered nurse who has practiced occupational health in an industrial setting for the prior 10 years.
Both of these individuals had a sense of the plight of workplace health issues in their region, but from very different perspectives. WorkFit was born from the interest and knowledge of these two individuals, with a goal of providing a high level of service, and creating a business model that would sustain this level of service.
In two years the business has grown significantly. Just 30 days ago, they opened their newest location. While their locations only number two currently, they are already looking at more locations that are underserved for occupational health. With their own certified MRO, and a dedicated staff of individuals having the ability to adopt and deliver the “whatever it takes” attitude, WorkFit continues to grow.
Workfit has established a unique business model, which seems to be very different from other companies. Workfit never asks for a contract. They believe that if the best service is given to both their employers and patients, then a contract is not necessary to keep a customer. While this sounds perhaps arrogant, it is a strong selling point to their potential customers, knowing that there is nothing keeping them from shopping around.
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Appointments are also not necessary at Workfit Medical, LLC. While this is a very foreign idea regarding any healthcare practice, it has become a staple of their business model. The Workfit office has four restrooms, two of which are easily converted to drug testing bathrooms. Everyone in the office is trained as a DOT collector. This means the receptionists, the physician assistants, the nurse practitioners, and the CEO. It is not uncommon to see the CEO doing collections at any point in the day. This is a furtherance of the “whatever it takes” attitude.
They only take an appointment if someone needs to come in after 5 PM, or before 8 AM. It does get busy at times, however, with the use of cross training they are able to handle swiftly all of the customers.
Workfit conducts quality assurance surveys to see how things are going. Clients of the clinic are surveyed to make sure that they are given the highest level of service. The results of the surveys are used to make any necessary changes to their business practices.
WorkFit Medical, LLC joined DATIA at the end of the membership cycle this year, as a way to prospect for more business and grow as a company. While the cost of Corporate membership was not an easy expense to approve, it did not take long to prove its value to their business. Because of their membership in DATIA, Workfit Medical now boasts clients in Alaska and many other far away states. As a result of their membership, they quickly started to pick up customers from out-of-state as well as in-state.
When it came to membership renewal time, Workfit decided to upgrade. They have found DATIA not only to be a great resource to business growth through new business, but also a resource to exchange ideas and discuss issues with other people across the country who are doing similar things.
Mr. Overholt said that Workfit Medical, LLC has been “pleasantly surprised by the amount of interest shown by customers who utilize DATIA as a resource for occupational health services.” Their goal is to use DATIA membership to not only build a larger customer base, but also to build on MRO services.
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DATIA’s Forum Experiences a Busy Summer
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This summer, DATIA’s forum has been very busy. Industry professionals have had many questions that they need answered, and their peers have been giving great answers. DATIA’s website is a wonderful resource for drug and alcohol testing professionals, and the forum is becoming one of the more popular sections of the site. There are so many odd circumstances that occur during your daily business practices that are not addressed in the regulations or guidelines. Through the forum you can find out how other industry professionals handle those issues. Here are some of the questions and answers that have been posted on the forum this summer.
Question:
Where in the regulation does it state the location requirements of the MRO? Can the MRO be geographically located in a different state than the MRO office and assistants?
Answer:
Section 40.127 and the following sections of Part 40 outline the MRO functions in reviewing negative and positive test results. Some of the functions for reviewing negative results can be done by "staff under your (the MRO's) direct, personal supervision" 40.127(g). As I understand it, the DOT considers "direct, personal supervision" that which occurs when the MRO and his/her staff are located in the same office or in close proximity so that the MRO can effectively supervise day to day activities.
Question:
I cannot find anywhere in the Part 40 that Breath Alcohol Technicians must have certificates and that copies of these certificates must be given to C/TPA, employers, etc. upon request. We have many TPAs who request these certificates and I am at a loss for why. Was this something that was done in the past and has continued on?
Answer:
As a C/TPA, our SOP requires that we either get a certificate or other document showing that either the BAT or collectors are "trained and qualified." We do not accept, for the most part, a letter from the site saying that everyone is qualified. If they would list out each collector and BAT that would be acceptable.
In most cases, there is some kind of certificate that is issued by the person doing the training, or at least that they attended the training.
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Section 40.33(g) of the DOT regulations states that collectors “must maintain documentation showing that you currently meet all requirements of this section.”, and section 40.213(g) states the same for BAT’s or STT’s.
Question:
When the FMCSA guidelines use the word "immediately" [for example Part 382.305(l), Each employer shall require that each driver who is notified of selection for random alcohol and/or controlled substances testing proceeds to the test site immediately;], what is the actual time requirement? Is it one hour, five minutes, etc?
Answer:
There isn't an actual time. But once they are notified, they are to report directly to the collection facility, "Pass go, do not stop and collect your $200.00." The driver must report to that facility immediately following notification, and they are not to perform any additional safety sensitive functions until they have completed the collection process.
Question:
What are the guidelines for unusual collection sites like a port-a-potty? What do we do if all of the toilets have automatic flushers that have no way to flush manually?
Answer:
I need to do collections with sites that have "port-a-pottys" and as long as you inspect the structure for any means of adulteration and remove anything that could be used for adulteration, it will be fine. No need for bluing either, as all port-a-pottys I've seen have the blue chemical in the holding tank anyways.
For auto flush toilets, all you need to do is put a piece of tape over the "eye" so it won’t flush. When you’re done with your collections, remove the tape.
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DATIA Submits Additional Comments to FAA
DATIA recently submitted additional comments to the Federal Aviation Administration (FAA) regarding their clarification of drug testing for “each person who performs a safety-sensitive function directly or by contract (including by subcontract at any tier) for an employer.” The FAA received a large number of comments about this particular phrase when the rulemaking was first published in 2002, and therefore re-opened the comment period. DATIA supports the administration's clarifying language in this SNPRM to include drug and alcohol testing for subcontractors at any tier who perform safety sensitive functions. DATIA again suggested that language be added to the final rule to require documentation that a contract employee is enrolled in the contractor's FAA-mandated drug and alcohol testing program. DATIA also supports the administration's extension of the amount time (from 60 to 90 days) required for pre-employment testing to be completed on existing subcontractors who have not previously been tested. The rulemaking and comments may be viewed at http://dms.dot.gov under docket FAA-2002-11301.
Small Business Administration Grant Update
After the Small Business Administration's (SBA) Coverdell Drug-Free Workplace Program sent word to several companies that their current grants would be cut-off in favor of sending funding only to Small Business Development Centers, DATIA went into action. In the Drug-Free Workplace Act of 1998, DATIA worked with Congress to ensure that funding would be available to private entities as well as government entities (such as Small Business Development Centers). Cutting off grants for private entities would be counter to the law's intent. After pressure from DATIA, the SBA reversed their decision and reinstated grant opportunities for private companies. This step is important as Congress is now reviewing legislation to reauthorize these grants for future years (see next story). DATIA's actions to retain current funding for private entities (i.e. DATIA members) will send a message to Congress that these entities provide crucial education to employers on drug free workplace policies.
Legislative Watch
The Drug Free Workplace Act (HR 4119) is currently before the House Committee on Small Business. It renews funding at $1.5 million per year through 2006. However, the bill stipulates that funding will only be available to current grantees. When Congress re-convenes after Labor Day, DATIA will work with the legislation's sponsors and the Small Business Committee to ensure the opportunity for all eligible intermediaries to apply for the grants.
DATIA urges interested members to contact Congress about this issue. The contact information for the legislation's sponsor and key members of the small business committee are below. (Some members do not provide regular e-mail addresses, but prefer for electronic correspondence to be submitted through a form on their website.)
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Rep. Rob Portman-OH (bill sponsor)
portmail@portman.house.gov
Rep Don Manzullo-IL (committee chairman)
http://www.house.gov/manzullo/
Rep. W. Todd Akin-MO rep.akin@mail.house.gov
Rep. Madeleine Bordallo-GU madeleine.bordallo@mail.house.gov
Rep. Jeb Bradley-NH http://www.house.gov/bradley
Rep. Shelley Moore Capito-WV http://www.house.gov/capito/
Rep. Ed Case-HI
ed.case@mail.house.gov
Rep. Chris Chocola-IN http://www.house.gov/chocola
Rep. Danny Davis-IL http://www.house.gov/davis/
Rep. Jim DeMint-SC jim.demint@mail.house.gov
Rep. Steve King-IA steve.king@mail.house.gov
Rep. Thaddeus McCotter-MS thaddeus.mccotter@mail.house.gov
Rep. Grace Flores Napolitano http://www.house.gov/napolitano/
Rep. Tom Udall-NM
tom.udall@mail.house.gov
Rep. Nydia Velazquez-NY nydia.velazquez@mail.house.gov
Summary of HHS Comments on Alternative Specimens
The Department of Health and Human Services (HHS) received nearly 300 public comments on their alternative specimen drug testing proposals. Many, like those submitted by DATIA, offered substantive comments on how the proposals can be modified to be more effective and realistic for the industry. More than 100 of comments--20% of which were identical form letters--advocated for greater use of oral fluid testing in all scenarios. Approximately 100 additional letters commended the adoption of alternative specimens to the advantage of those afflicted with paruresis, or shy bladder. A number of comments suggested that the new methods should be eliminated completely because alternative specimens can never match the “gold standard” of urine testing. A smaller percentage of comments were received from those who feel that drug testing is an invasion of privacy or unconstitutional. DATIA will keep members informed as HHS moves forward with this.
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