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DATIA Compares Its Position to the Proposed 49 CFR Part 40 and the Final Part 40

DATIA introduces a side by side comparison of DATIA's position to the proposed and the final rule on Part 40.

Proposed Part 40	DATIA's Position	Final Part 40
Public Interest Exclusion (PIE) section indicated that an egregious violation by a service provider would trigger the PIE process.	PIE section should include examples of the types of violations that are considered serious enough to warrant a PIE proceeding.	PIE section includes 14 examples of noncompliant actions egregious enough to warrant a PIE proceeding.
A PIE issued for noncompliance by a service provider applied to all DOT drug and alcohol testing services provided by the company.	In the case of service providers who perform a range of services (i.e. – medical review, collections, consortium) a PIE should apply only to those services that were involved in the act that triggered the PIE.	The scope of a PIE will be determined during the proceeding, but will apply to the services that are involved with or affected by the noncompliance that forms the factual basis for issuing the PIE.
Minimal due process included in the PIE process.	DOT should clearly delineate the process through which allegations against a service provider would flow in the issuance of a PIE as a final step.	PIE section contains a detailed process through which allegations against a service provider would flow in the issuance of a PIE as a final step.
Medical Review Officer (MRO) required to send verified drug test results directly to the Designated Employer Representative (DER). Reporting through a Consortium/Third Party Administrator (C/TPA) is prohibited.	C/TPAs should be able to act as an agent of the employer in administering drug testing programs to include reporting of verified positive and negative drug test results.	C/TPAs authorized to receive results from the MRO, and transmit results to the DER. Appendix F lists all information that a C/TPA is authorized to transmit to employers.
Consortium removed from Employer definition. No definition of Consortium contained in the proposal.	Consortia should be defined in such a way to allow consortia to fulfill necessary roles on behalf of their clients (employers) to include receiving and reporting test results, filing MIS reports, maintaining employee records, etc.	C/TPA definition included. Appendix F lists all information that a C/TPA is authorized to transmit to employers.
Statistical Reports from Laboratories required to be sent twice per year regardless of whether or not enough tests were performed to generate a report. Reports stating that insufficient testing was conducted to generate a summary will be sent.	Eliminate statistical reports entirely OR, at a minimum, eliminate the sending of blank reports.	Blank statistical reports for companies with fewer than 5 tests are not sent. Only statistical reports with more than five tests are to be sent from the laboratory.
MROs required to attend training at least once every two years OR self-certify that he/she has read and understands the applicable DOT guidelines.	MROs should be certified by an independent entity using face-to-face training and a proficiency examination.	MROs required to be certified by a recognized MRO certification board, and must complete 12 professional development hours (i.e. CME) of continuing education every three years.
Collectors required to be trained to proficiency on collection procedures contained in the DOT regulation.	Collectors should be required to attend face-to-face training and demonstrate their proficiency through an examination.	Collectors required to demonstrate their proficiency through an examination.
Person training collectors must be sufficiently knowledgeable on the collection procedures contained in the DOT regulations.	Trainers should be required to attend face-to-face training and demonstrate their proficiency through an examination.	Trainer must have regularly been conducting DOT collections for a period of at least one year, conducting collector training on DOT guidelines for a year, or must successfully complete a “train the trainer” course.
Donors required to remove boots prior to the collection taking place.	Very arbitrary to require only boots to be removed. This requirement should be removed.	Requirement removed.
A donor’s failure to drink liquids in a shy bladder situation constitutes a refusal to test.	Agree, refusing to cooperate in the testing process should constitute a refusal to test.	Requirement removed.
Presentation of a dilute specimen by a donor should require an immediate direct observation collection.	Agree, any specimen not appearing to be normal should trigger an immediate direct observation collection.	Requirement removed.
Mandatory validity testing by laboratories on all DOT mandated drug testing specimens.	Agree, the benefits of validity testing outweigh the costs associated with the additional testing.	Validity testing of specimens by laboratories is mandatory.
Collections for DOT tests must use a collection kit conforming to DOT requirements.	Agree, would assist in assuring proper and consistent collection procedures.	Use of collection kits conforming to DOT requirements is required.
Regulated employers and their service agents are required to sign a contract provision committing them to compliance with Part 40 provisions.	Agree, contracts will serve to ensure accountability and quality of service between service providers and clients.	Replaced required contract provision with a regulatory statement, which provides that all agreements and requirements between employers and service agents are deemed, as a matter of law, to require compliance with Part 40.
Employers with fewer than 2000 employees are exempt from submitting blind specimens. Employers with over 2000 employees must submit blind specimens at a 1% rate with a cap of 50 blind specimens per year.	Eliminate blind specimen testing or place the expense for the tests on the laboratory.	No significant changes.
DOT solicited comment on the current Breath Alcohol Testing Form.	Remove “breath” from form as there is more than one method to detect alcohol, include the Designated Employer Representative’s name and phone number, add an area to include the instrument used to test the employee (saliva/breath), include the name and phone number for the company that the testing technician work for, add an area on the front of the form for results.	All DATIA comments incorporated into new alcohol testing form.
DOT solicited comment on the potential for conflict of interest between and MRO and C/TPAs.	No need to impose restrictions on relationships between an MRO and C/TPA as no situations of impropriety have been encountered.	No significant restrictions.
DOT solicited comment on the use of electronic records and signatures.	Support all initiatives to reduce administrative and storage costs through the use of electronic media.	Permit greater use of faxes, scanned images, and electronic result reporting from laboratories to MROs. DOT is working with HHS to develop additional guidelines for increased use of electronic media in the future.