Letter to DATIA in entirety, response follows

September 13, 1999

Jeffrey C. Smith
Drug & Alcohol Testing Industry Association
1600 Duke Street, Suite 220
Alexandria, VA 22314

Dear Mr. Smith:

I am writing to you to express my concerns about DATIA's continued public statements (as expressed in several recent trade publications) that the Department of Transportation is misinterpreting its own rules and in some way threatening the existence of consortia/third party administrators (C/TPA).

This is especially troubling in the light of DATIA's upcoming national training programs geared toward appropriate implementation and management of C/TPAs. I applaud DATIA for conducting this type of training. However, I want to ensure that your training program represents the current DOT position clearly and does not confuse your training attendees with misinformation or misinterpretation of regulatory requirements.

We have met several times and discussed these issues at great length. I do not need to repeat the rational that supports the Department's current position. However, I will reiterate just two items: First, the Department has always supported the use if C/TPAs by employers to help conduct the drug and alcohol testing program for the transportation industry and has no intention of changing this position; secondly, regardless of the various definitions of employers and/or their agents (including those in the current DOT C/TPA Guidelines), the Department had intentionally limited the disclosure of testing results by the Medical Review Officer and Breath Alcohol Technician to the actual employer (although permitting simultaneous reporting to the employer and the C/TPA). Recognizing modal differences in implementation of the rules, the US Coast Guard is the only modal administration which currently accepts exceptions to this reporting procedure (46 CFR 16.370(c)). However, this exception must not be constued as applying to the other modal administrations. At the present time, all of the other modal administration policies and guidelines are in consonance with the Department's C/TPA guidance published on July 25, 1995.

As I previously stated, the Department strongly supports the need for training of C/TPAs which support the DOT drug and alcohol testing program, and I expect DATIA to provide this training in the proper context of the current DOT rules and requirements. It would be extremely unproductive and damaging to the industry to have a C/TPA provide a service to an employer based on what they learned at the DATIA training program and to subsequently have that employer cited by a modal administration for non-compliance. Regardless of how your membership currently interprets our regulations, this letter, as well as our face-to-face meetings where we have verbally given you the same information, clearly states the Department's current position on these issues.

I do understand DATIA's concerns in this area and I again encourage you to clearly present your association's concerns and suggestions when the Part 40 notice of proposed rulemaking is published. Your input and that of other C/TPAs is important and the Department will seriously review and consider all comments prior to publishing the final rule.

I am also sending a copy of this letter to the Substance Abuse Program Administrators Association to ensure consistency in interpretation of the Department's rules in this area by all C/TPAs.

Sincerely,

Mary Bernstein
Director, Office of Drug and Alcohol Policy and Compliance

DATIA letter to DOT in entirety

September 20, 1999

Mary Bernstein
Director, Office of Drug and Alcohol Policy and Compliance
US Department of Transportation
400 Seventh Street, SW
Washington, DC 20590

Dear Ms. Bernstein:

Thank you for your letter of September 13, 1999, regarding your concern that the upcoming national DATIA forums on Consortium and Third Party Administrator (C/TPA) management reflect the "current position" of the Department of Transportation (DoT) regarding the reporting of test results. We agree that the role of C/TPAs in the test reporting process is an important issue, and that is why our association has sought to bring public attention and discussion to the issue. We wish you had not declined to give "the rationale that supports the Department's current position" or any regulatory or legal citations in your letter, because such factual information would be especially helpful in our upcoming course in understanding the basis of your position.

Your letter stated: "[T]he Department had intentionally limited the disclosure of testing results by the Medical Review Officer and Breath Alcohol Technician to the actual employer (although permitting simultaneous reporting to the employer and the C/TPA)." This "current position" does not allow the MRO to report to the C/TPA and in turn for the C/TPA to report negatives and confirmed positives to the client/member, except in the Coast Guard, according to your letter.

We do not know the basis of this position that the MRO cannot report exclusively to the C/TPA, and have found and provided you in writing specific regulatory language [referenced here] which appears to contradict the "current position." We also brought to your attention the Coast Guard language, and we are pleased that there is now mutual agreement on the applicability of that language. But we need more information to understand any factual basis in law or regulation, on the "current position" in order to present it to our membership and course participants as fact.

As we have stated in previous meetings with you and DoT staff, DATIA's research, supported by our Board and members, is that DoT's "current position" that MROs must report to the "actual employer" does not faithfully reflect the Code of Federal Regulations (CFR). Further, I recall that the DoT staff's "current position" became the position only in late 1994, approximately at the beginning of the Clinton Administration, but no statutory or regulatory modification accompanied this change in position. To support DATIA's view, I have provided you and your staff with a three page detailed memo (copy attached) which enumerates the CFR citations which appear clearly to be in conflict with the post -1994 DoT "current position." As a result of the factual information, input from members, and my experience in managing a C/TPA for 11 years, I have confidence that the law and regulations support our members' practice of receiving test results exclusively, and have pursued it with vigor in public forums, as is our job.

The basis for our association's concern with the DoT staff's post -1994 "current position" is underscored by a recent member survey which found that most of our C/TPA members receive test results (negatives and confirmed positives) from the MRO on an exclusive basis, and in turn immediately transmit the result to the client employer. The MRO, in these cases relies on the C/TPA as the "agent of the employer" to report the negatives and confirmed positives. Most of these C/TPAs were formed previous to the 1994 DoT change in position. Hence our statements in the press that the DoT staff's "current position" threatens the C/TPA industry. Again, I reference the enclosed memo supporting this practice of C/TPAs of acting as the "agent of the employer" including the citation from the Code of Federal Regulations in 49 CFR part 40.3.

As we have discussed, prohibiting the MRO from reporting only to the C/TPA as the agent of the employer would have a number of negative effects. First, it would economically advantage only large C/TPAs with in-house MROs, threatening small C/TPAs without such capabilities, or making them turn their mailing lists and proprietary client information over to MROs. Second, it would be unworkable and costly for small employers who currently rely on the C/TPA's role to handle testing details for them. Third, instead of reporting to a C/TPA as a group, MROs would have to deal with millions of companies directly on every test result, not just to confirm positives, and this would undoubtedly drive up the costs and thus lower compliance rates, even if it was workable.

At this point, most important to the resolution of this crucial issue, and for our upcoming C/TPA courses, is for DATIA to receive from your office any citation(s) from the Code of Federal Regulations (CFR), or the enabling statutory legislation, or any controlling legal authority that supports the DoT "current position" on this issue. I have requested this on three occasions, and will immediately incorporate it in our course materials and discussion. Regrettably, no such citation or reference to controlling legal authority was contained in your September 13, 1999 letter. As you know, and was discussed at our recent meeting, DoT staff's "current position'" or even "guidance," (which had no public comment period or input) does not supersede CFR or statutory law. Further some terms in your letter such as "actual employer" and "limited the disclosure" are not terms contained or defined in the CFR, and I would hope you would explain them further.

Our association's objective is to discuss and hopefully resolve this issue with the goal of increasing compliance with the mandated drug testing rules. I think we share this goal. I know you are fully aware and appreciative of the unique and important role of C/TPA in serving employers. To this end, I will be sure to distribute your letter at our course and to our members, as well as any supplemental information you wish to provide regarding specific regulatory or statutory language, which supports your current position. While our course is more focused on the standards of managing a C/TPA, and not teaching the DOT rules, we believe this discussion is productive and helpful.

Sincerely,

Jeffrey C. Smith
President
Drug & Alcohol Testing Industry Association (DATIA)