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Regulatory Overview

Issue of Reporting of Test Results

Specific Citations from the Code of Federal Regulations

A. In Support of Medical Review Officer Reporting Results to Consortium/Third Party Administrator

Department of Transportation
49 CFR Part 40 & Guidance

(1) Regulatory Language

49 CFR part 40, Section 40.3 Definitions.

"The following definitions apply to this part:

Employer. An entity employing one or more employees that is subject to DOT agency regulations requiring compliance with this part. As used in this part, employer includes an industry consortium or joint enterprise comprised of two or more employing entities."

(2) Preamble Language

Procedures for Transportation Workplace Drug and Alcohol Testing Programs; Proposed Rule
December 15, 1992 Vol 57, No 241 page 59410

"Section 40.1 would also emphasize that other parties involved in the testing process-such as consortia, contractors, and agents - "stand in the shoes" of the employer. They are, therefore, subject to the same obligations and requirements as the employer."

(3) DoT Guidance

DoT Guidance on the Role of C/TPAs issued July 25, 1995

"C/TPAs may receive from employers or other parties and maintain all records concerning DoT alcohol and drug testing programs, including individual test results, both positive and negative."

"Operating administrations are authorized to make exceptions to this general rule (MRO reporting only to the employer) in situations where it may be impractical for the individual test results to be sent to individual employers before going to the C/TPA..."

(4) Alcohol & Drug Rules an Overview issued February 1994

"Employers are responsible for implementing and conducting the testing programs. They may do this using their own employees, contract services, or by joining together in a consortium that provides services to all member companies."

Federal Highway Administration
49 CFR Part 382

(1) Regulatory Language

49 CFR Part 382.107

"The following definitions apply to this part:

Consortium means an entity, including a group or association of employers or contractors, that provides alcohol or controlled substances testing as required by this part, or other DOT alcohol or controlled substances testing rules, and that acts on behalf of the employers.

The term employer includes an employer's agents, officers and representatives."

(2) DoT Guidelines

DoT Guidelines for Implementing the FHWA Anti-Drug Program, Chapter 5.5, March 1992

"the MRO must report the verified positive test and the identity of the substance(s) found to the employer or the employer's designated agent according to the established company procedure."

DoT Guidelines for Implementing the FHWA Anti-Drug Program, Chapter 9.3.1, March 1992

"The consortium would have power to conduct business for its members, enter into contracts, and be their legal representative according to a charter and by-laws."

United States Coast Guard
46 CFR Part 16

(1) Preamble Language

Programs for Chemical and Alcohol Testing of Commercial Vessel Personnel; Final Rule
November 21, 1988 Vol 53 No 224 page 47073-4

"employer is defined to include both marine employers and sponsoring organizations, as described below. Many of the regulations in this part refer to employers, vice marine employers. In such cases, marine employers may utilize sponsoring organizations to fulfill specified regulatory responsibilities."

"sponsoring organization is broadly defined to include companies, consortiums, corporations, associations, unions, or other organizations with which marine employers or their employees are associated. Many of the regulations in this part refer to employers, vice marine employers. In such cases, marine employers may utilize sponsoring organizations to fulfill specified regulatory responsibilities."

"marine employer is broadly defined to mean a vessel's owner, managing operator, charter, agent, master, or person in charge. Many of the regulations in this part pertain specifically to the marine employer. Who specifically executes the regulatory requirement will often depend on the circumstances of a given situation. Where doubt exists as to who will carry out a particular regulatory requirement, written company guidance should be provided."

Programs for Chemical and Alcohol Testing of Commercial Vessel Personnel; Final Rule
November 21, 1988 Vol 53 No 224 page 47076

"The MRO provides the final report to the employer or the employer's designated agent."

(2) Regulatory Language

46 CFR Part 16, Sec. 16.105

"Definitions of terms used in this part.

Employer means a marine employer or sponsoring organization."

46 CFR Part 16, Sec. 16.370 Medical Review Officer

(c) If the MRO verifies a laboratory confirmed positive report, the MRO shall report the positive test result to the employer or the employer's designated agent.

B. Department of Transportation & Federal Highway Guidance
NOT In Support of Medical Review Officer Reporting Results to Consortium/Third Party Administrator

(1) DoT Guidance on the Role of C/TPAs issued July 25, 1995

Medical Review Officer Issues

"it is not appropriate for the MRO or BAT to send the results only to the C/TPA, which subsequently retransmits them to the employer."

THIS LANGUAGE IS INCONSISTENT WITH LANGUAGE ISSUED IN THE SAME GUIDANCE AND IS NOT LAW OR OFFICIAL REGULATION:

"C/TPAs may receive from employers or other parties and maintain all records concerning DoT alcohol and drug testing programs, including individual test results, both positive and negative."

"Operating administrations are authorized to make exceptions to this general rule (MRO reporting only to the employer) in situations where it may be impractical for the individual test results to be sent to individual employers before going to the C/TPA..."

(2) FHWA Guidance issued April 4, 1997

Section 40.33 Reporting and Review of Results Question 4

"The rules do not permit the C/TPA to receive drug testing results directly from either the laboratory or from the MRO. The laboratory results are reported directly to the MRO, and the MRO results are reported directly to the employer."