August 8, 2001
US Department of Transportation
Dockets Management Facility
Room PL-401
400 Seventh Street, SW
Washington, DC 20590
Docket #FMCSA-2001-9664
Dear Sir/Madam:
In response to the July 9, 2001 Federal Motor Carrier Safety Administration’s (FMCSA) request for comments on the drug test results study, the Drug and Alcohol Testing Industry Association (DATIA) would like to submit the following comments. DATIA
represents over 1,000 industry professionals including Consortia/ Third Party Administrators (C/TPA), collection facilities, Medical Review Officers, Substance Abuse Professionals, laboratories, breath alcohol technicians, equipment manufacturers, and employers. On behalf of our members, we commend the FMCSA for looking into such a much-needed program to track non-negative drug test results for CDL holders and are optimistic that the administration can reach a consensus on how to effectively implement such a program.
It is imperative that a national database to track test results for safety sensitive transportation employers is established for multiple reasons. Many times a safety sensitive employee leaves a position after testing positive only to accept a job at another employer without revealing his/her previous positive result. As the DOT stated in their recent document in response to comments on pre-employment inquiry results, “This is a situation in which ignorance, far from being bliss, becomes a threat to transportation safety.” While performing background checks is now required by CFR 49 part 40, there are many loopholes that can be used to circumvent the requirement including lying on the part of the potential safety sensitive employer. As a result, a national database for employers to learn of past drug and alcohol testing violations for potential employees is imperative for transportation safety.
DATIA would also like to respond directly to the questions posed by the FMCSA in their request for comment.
1. DATIA believes that a central database for non-negative test results may represent a decrease in the paperwork and cost burden on employers. The current DOT background inquiry process contained in 49 CFR § 40.25 generates more paperwork and relies on written contact of numerous previous employers who may or may not respond in a timely fashion, and on the representations of the prospective applicant, which would often be inaccurate. A central database would provide a prospective employer an alternative to the exhaustive check required by § 40.25, and the information's accuracy will be near absolute. Also, following a public comment period the Coast Guard now requires non-negative test results to be reported to the local MSO office, and not a single public comment in the docket indicated that this would be a burden. Therefore, this is not a new idea, and it is strongly supported by industry as evidenced by DATIA’s Nationally Accredited for Administration of Drug and Alcohol Testing Programs (NAADATP) program -- which currently requires C/TPAs to report non-negative test results to the federal agencies.
2. DATIA believes that establishing a state-by-state database to maintain the records would be costly and confusing at best. With 50 offices for each modal agency, there will certainly be “lack of communication” issues similar to the coordination problems with state department of motor vehicle offices. For this reason, the database should be a national database maintained by the DOT (either in-house or contracted out). DATIA’s position is that the benefits of such a database far outweigh any costs in implementing and maintaining the program. Since the program must remain confidential, most if not all information must be transmitted through confidential written means. DATIA would envision the national database to be relatively straightforward from an operational prospective. The ongoing costs would entail a small data entry staff to enter non-negative test results and to respond to requests for prospective employee drug and alcohol testing histories.
3. The confidentiality of test results would be maintained just as they are now under the DOT drug and alcohol testing regulations. DATIA suggests that information only be provided to and retrieved from the database through confidential written communications. For example, test results would only be reported using a faxed or mailed copy of the MRO’s verified test result. Similarly, employee histories would only be released to the prospective employer if the prospective employee has signed a “consent to release records” form. Further, to ensure that employees are made aware that non-negative test results will become part of a national database, FMCSA should require regulated companies to make employees aware of this database in their respective drug free workplace policies. DATIA does not support the use of secure access pass codes, etc., for such a database since employers must only be allowed to access records for employees that they are prepared to hire.
4. DATIA supports establishment of a process to allow drivers to correct or expunge information from their records. For example, if an MRO changes a test result due to new information from the donor this information must be sent to the database and the original non-negative result deleted. Once a driver has completed the return to duty process this information must also be included in the database. It would be reasonable to maintain results on the database for a longer time for drivers who do not complete the return to duty process than those who do complete the required treatment and follow-up testing process. For example, DATIA suggests that once a driver has completed the return to duty process their positive test result would be expunged after two years of no infractions while an employee who does not complete the follow-up program would have his/her non-negative test result in the database for up to 10 years. This would be consistent with many states’ motor vehicle laws where infractions stay on a driving record for 10 years.
5. As discussed in #2, DATIA strongly believes that the benefits far outweigh the costs. In such a program, however, the costs would be minimal since all correspondence would be handled via written means. More in-depth study would determine the amount of staff needed, however, since the positivity rates for all modes are low DATIA anticipates a staff of no more than three persons – one to record incoming test results, one to handle outgoing answers to requests for histories, and one program manager.
6. DATIA can see no disadvantages to such a national database, whereas the advantages would be enormous. Employers are already required to query a prospective employee’s previous employers during the prior two years. Since this can be anywhere from one to twenty employers or more, querying a single database can only be an improvement. In addition, when querying a prospective employee’s previous employers the employee must be relied upon to provide a truthful and comprehensive work history. Any “omissions” from an employee’s work history could lead to the hiring of a person with a record of non-negative drug and alcohol testing results without having completed the required return-to-duty process. Such a database will prevent any “omissions” from an employee’s drug and alcohol testing history.
7. DATIA believes that only the staff maintaining the database should be authorized to make queries to the database. To ensure confidentiality, a consent form must be signed by the prospective employee whose records are being queried such as is currently required for DOT background checks. Even if registered employers of CDL holders use secure passwords there is no way to ensure that the records they query are for legitimate prospective employees.
8. DATIA’s position is that the database should be owned by the DOT. Since a DOT violation is a DOT violation regardless of which agency mandates the employee’s position, the DOT is the best place for the database. This way a person once mandated by the Federal Transit Administration that tested positive and is now looking for a position with the FMCSA can have his or her drug and alcohol testing history tracked by prospective employers regardless of which agency’s regulations they are mandated by.
9. As stated previously, the database should be housed nationally at the federal level rather than at the state or local level.
10. The confidentiality of test results would be safeguarded much as it is now. Only written requests for test results would be accepted with a signed consent form from the prospective employee. In addition, non-negative test results may only be submitted via a copy of the MRO verified drug testing custody and control form or positive breath alcohol testing form.
11. Oregon currently has such a program in place, however, DATIA has no concrete information on the success or problems encountered in the program
DATIA appreciates your time in reviewing the above comments. The creation of such a national database has been an issue with DATIA members since the association’s creation in 1995. Such a database would increase transportation safety, and would do so in such a way that employers would be able to effectively comply with the requirements. In fact, since compliance with the FMCSA’s current background check requirement is weak such a database would significantly increase compliance within the transportation industry.
Should you have any questions regarding our comments, DATIA would like to make its staff and Board of Directors available to the FMCSA for clarifications and amplifications. Again, thank you for the opportunity to provide these comments.
Sincerely,
Laura E. Shelton
Executive Director
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