In today's "litigate first/negotiate later" climate, drug and alcohol collection sites and third party administrators (TPA) should attempt to reduce the peculiar risks associated with their business. Understanding a bit more about insurance policies that cover such risks is the place to start.

Comprehensive General Liability (CGL) Policy:
Although a CGL policy can be endorsed in such a manner as to provide specialized coverage for particular business enterprises, the standard CGL policy only provides coverage for "bodily injury" or "property damage" caused by an "occurrence." CGL policies typically define "bodily injury" as "bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom." Jurisdictions vary as to whether mental anguish or emotional distress are considered "bodily injury." "Occurrence" is defined as "an accident, including continuous and repeated exposure to substantially the same general harmful conditions." Importantly many CGL policies contain an endorsement excluding coverage for professional services, such as those which may be preformed by a collection site or TPA.

Professional Liability Policy:
A Professional Liability insurance policy is essentially an "errors and omissions" insurance policy to insure against liability arising out of mistakes inherent in the practice of a particular profession or business and often insures against "injuries arising out of or the rendering of or failure to render professional services." It is this type of coverage that collection sites and TPAs should look to for claims arising out of mistakes associated with testing such as mishandling a specimen, errors in the collection process, improperly reporting test results, providing incorrect policy development services, etc. Claims for invasion of privacy, negligence, outrage, slander and libel (defamation) may result from such mistakes.

Ask the Right Questions Today:
Asking your insurance broker the following questions today may help you decide if you have a gap in coverage:
(1) If a donor slips on urine and breaks his leg in my tiled restroom, am I covered? Yes* No*
(2) If my collector mislabels urine samples and an innocent person has a positive result reported to his employer and is fired, am I covered? Yes* No*
(3) If I mistakenly fax a positive test result for a CEO to the local newspaper, it shows up on the front page, he is publicly ridiculed and his Board lets him go as a result of the bad PR, am I covered? Yes* No*
(4) If I give a city incorrect policy development advice (such as blanket testing all city employees) that gets the city sued for allegedly violating the employees' 4th Amendment rights, am I covered? Yes* No*
Answers:
Answering "no" to question number one, may let you know you don't have even a good CGL policy. (CGL policy should cover basic slips and falls on your premises.) Answering "no" to questions 2, 3 or 4 may let you know you should seriously consider purchasing a professional liability policy.
____________________________________________

DISCLAIMER: 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 Birmingham, Alabama law firm of Wallace, Jordan, Ratliff & Brandt, L.L.C. who advises collection sites, TPAs, employers, work comp administrators, and MROs on a variety of Drug and Alcohol testing issues and risk reduction programs. Tom wishes to express his appreciation to Mark Hogewood of the Insurance Practice section of their firm for his contribution to this DATIA Legal Update. Tom may be reached at (205) 870-0555 or te@wallacejordan.com. Feel free to forward, distribute and copy this DATIA Legal Update as long as you include all headers and other identifying information.

DoT Asks for Comments about SAP Certification

The Department of Transportation (DoT) wants to increase the number of authorized Substance Abuse Professionals (SAPs) who may participate in drug and alcohol testing program. The DoT has requested that an independent certification agency make recommendations as to which SAP certification programs should be included by DoT.
Specifically, the DoT issued an Advanced Notice of Proposed Rulemaking (ANPRM) requesting comments on whether the DoT should require all SAP certification programs to receive certification from the National Commission for Certifying Agencies (NCCA) before they are included in DoT's drug and alcohol testing program.
Because of the number of groups who have requested SAP status under the DoT rules and because of the amount of time and resources such approval takes, the DoT has suggested that the NCCA may be better able to review the SAP certification programs. Once NCCA has granted certification, that group could be included in DoT's program.Today, only two SAP certification groups are used under the Department of Transportation's program. Both the National Association of Alcoholism and Drug Abuse Counselors Certification Commission and the International Certification Reciprocity Consortium/Alcohol & Other Drug Abuse are named in the regulations as acceptable certification programs for SAP approval.
The SAP is a crucial component of DoT's drug and alcohol testing program because they are responsible for employee substance abuse assistance treatment and follow-up evaluations. Understanding the importance of SAP certification, DoT has said that they want an outside source to be responsible for recommending additional SAP certification programs
Under 49 CFR part 40.3, a SAP is defined as a "licensed physician (Medical Doctor or Doctor of Osteopathy); or a licensed or certified psychologist, social worker, or employee assistance professional; or an addiction counselor (certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission or by the International Certification Reciprocity Consortium/Alcohol & Other Drug Abuse). All must have knowledge of and clinical experience in the diagnosis and treatment of alcohol and controlled substances-related disorders."
DATIA will work with the DATIA Government Relations Committee to provide DoT with comments by the August 2, 1999 deadline. If DATIA members want to respond to DoT's request for comments they can get a copy of the ANPRM at DATIA's website at www.datia.org.

FHWA Maintains 50 Percent Random Rates
The Federal Highway Administration (FHWA) has said that they will continue to require a 50% random drug testing rate and a 10% alcohol testing rate for commercial drivers' license (CDL) holders for 1999. FHWA has also said that the random alcohol-testing rate will remain at 10% of all CDL holders.
Chain of Custody Form Changes It's Look
The Substance Abuse and Mental Health Administration (SAMHSA) continues to revise the Federal Chain of Custody Form (CCF) as it is due to expire in July 2000. The form has significantly changed since last seen at DATIA's Annual Conference, in part, due to DATIA members' suggestions. In mid-July, SAMHSA plans to publish a revised copy of the Federal CCF in the Federal Register for public comment. To see the latest draft edition of the new form, visit DATIA's webpage at www.datia.org.

What's Happening in the States?

Arkansas &endash; A new Worker's Compensation Law, effective July 29, 1999, will give employers a minimum five percent discount on their worker's compensation insurance premiums. The bill had wide support in the state and moved relatively quickly through the state legislature. Under this law, employers may terminate their employees if they refuse to take a drug or alcohol test or if they test positive to the test. Employees testing positive will not be eligible for worker's compensation benefits.
Hawaii &endash; On-site pre-employment drug testing screening awaits approval by Governor Cayetano. If approved by the Governor, the law would allow employers to use US Food and Drug Administration (FDA) and State Director of Health approved on-site drug tests for preemployment testing. Training for the on-site devise, proper chain of custody and confirmation by a MRO are required.
Idaho &endash; Beginning July 1, 1999 employers will be able to receive workers' compensation insurance discounts for implementing drug free workplace programs. DATIA would like to recognize DATIA Board member Colleen Weinhoff for her tremendous work in making this law happen. Colleen wrote letters to the Governor and attended local political meetings to educate officials on the benefits of drug free workplace programs. More DATIA members should take Colleen's example and get involved with local government to help pass similar legislation.
Oregon &endash; The state legislature recently approved a bill that would require split specimens and permit employees who test positive to have the second specimen tested at their own expense. Both job applicants and employees will be able to send the second specimen to the lab of their choice if the first specimen comes out positive. This bill is still waiting for final approval by the Governor.
South Carolina &endash; Legislation passed in the Senate and is pending in the House (S277) that, if passed, would criminalize the selling or transporting of urine with the intent for that urine to be used to falsify a urine drug test. The first offense could mean a maximum fine of $5,000 and imprisonment of up to 3 years. Nebraska, Pennsylvania and Texas are the only states to have similar criminal laws.
Tennessee &endash; Governor Sundquist recently signed a law that would make an employee who tests positive for drugs and/or who has alcohol in their system ineligible from collecting unemployment compensation. The new law signed on May 19, 1999, makes employees who have an alcohol test result of 0.1 for non-safety sensitive employees and 0.04 for safety sensitive employees or have tested positive for an illicit drug to be terminated and ineligible for unemployment compensation.

Everybody knows that MD following an individual's name means they're a medical doctor, and CPA signifies the individual has met standards and fulfilled requirements to be a certified public accountant. More than a few cryptic initials following a name, thousands of associations utilize professional certification to recognize individuals for their dedication to their chosen career and their ability to perform to set standards. Ask a certified professional "why?" and they'll tell you that the certification process is one of the single most important steps you can make in career development. Here are the top ten reasons you should consider professional certification:

1. Certification demonstrates your commitment to the profession. Receiving your certification shows your peers, supervisors and, in turn, the general public your commitment to your chosen career and your ability to perform to set standards. Certification sets you apart as a leader in your field.

2. Certification enhances the profession's image. Association certification programs seek to grow, promote, and develop certified professionals, who can stand "out in front" as examples of excellence in the industry or field.

3. Certification reflects achievement. A certified professional has displayed excellence in their field or industry and fulfilled set standards and requirements.

4. Certification builds self-esteem. Association certification programs create a standard for a particular profession, complete with performance standards, ethics, and career paths. You'll see yourself as a certified professional, who can control his or her own professional destiny and find a deep sense of personal satisfaction.

5. Certification establishes professional credentials. Since it recognizes your individual accomplishments, certification stands above your resume, serving as an impartial, third party endorsement to your knowledge and experience. And when the public looks for individuals qualified to perform services, they seek individuals-like you-who have achieved certification.

6. Certification improves career opportunities and advancement. Certification gives you the "edge" when being considered for a promotion or other career opportunities. Certification clearly identifies you as an employee who can adapt to changes in work, technology, business practices, and innovation.

7. Certification prepares you for greater on-the-job responsibilities. Since certification is a voluntary professional commitment to an industry or field of knowledge, it is a clear indicator of your willingness to invest in your own professional development. Certified professionals are aware of the constantly changing environment around their profession and possess the needed tools to anticipate and respond to change.

8. Certification provides for greater earnings potential. As a certified professional, you can expect many benefits, but for today's downsized, right-sized, topsy-turvy working world, salary increases speak for themselves.

9. Certification improves skills and knowledge. Ideally, achieving certification shows your individual competence by confirming proficiency and career involvement and assuring knowledge.

10. Certification offers greater professional recognition from peers. Hear that applause? It's all for you! As a certified professional you can expect increased recognition from your peers for taking that extra step in your professional development.
Check into certification soon. It will give your career and professional life a real boost, making your climb up the ladder of success a breeze. For complete information on the DATIA Certified Professional Collector™(CPC™) and Certified Professional Collector Trainer (CPCT™) program, click here.

The DATIA Internet Searchable Industry Directory Database, which has been on the web since November 1998, continues to receive thousands of searches monthly. Clearly, the database has become a vital resource for industry professionals and consumers of drug and alcohol testing services to locate drug and alcohol testing providers. To further the growth and success of the database, the site is about to undergo a major expansion to include mapping and proximity features.

Persons searching for drug and alcohol testing providers will be able to search for providers within a radius of any given city. For example, an employer needs a pre-employment test done for an employee that lives in a remote town in Mississippi. Since many small towns do not have collection sites located within them, the employer can search for a site within 25 miles from the potential employee's house. Once a matching provider is found, the employer can them print out a map directly from the database website showing directions to the collection site

from the potential employee's house. This saves an immense amount of time for both the employer and potential providers. The employer does not need to call 20 different providers to find the one closest to the potential employee, and the testing providers do not need to field calls from persons actually looking for a provider located 20 miles from them.

The benefits of these new features are endless. Persons searching for sites servicing small town areas will be better able to find drug and alcohol testing services, and persons searching for sites in large metropolitan areas will be better equipped to find providers closest to where they are needed. In addition, providers included in the database will receive an increased number of inquiries from consumers actually ready to contract for services in their area.

DATIA is excited about the benefits of these new features and encourages all members and industry consumers to visit the enhanced database ASAP! The database can be found at www.drugtestinginfo.com.