U.S. Department of Transportation

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U.S. Department of Transportation
DOT Drug Alcohol Testing Update for FEDERAL
TRANSIT ADMINSTRATION ANNAUL CONFERENCE Nashvi
lle, TN APRIL, 2009
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Current Topics

• Collection Site Security and Integrity
• Specimen Validity Final Rule
• Myths about Direct Observation
• On the Horizon

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GAO Report RecommendationsMay 2008

• DOT Secretary expedite efforts to
• 1. Improve safety audits and
• 2. Implement a national database for CDL driver
  DOT testing violations.
• Congress consider
• 1. Legislation to ban products designed to beat
  drug tests
• 2. Providing civil penalty authority against
  service agents and
• 3. Encouraging or requiring states to suspend /
  revoke CDLs of drivers who
• test positive or refuse tests.

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DOT Clandestine Inspections Prevalent Egregious
Failures

• Access to Adulterant Dilution Materials
• Secure Water Sources
• Supervise Employees
• Empty Pockets

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DOT Clandestine Inspections Prevalent Egregious
Failures

• Unauthorized Personnel
• Wash Hands
• Time Limits

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EMPHASIS FOR DOT INSPECTIONS OF COLLECTION SITES

• DOTs 10 Steps to Collection Site Security and
  Integrity sent to over 23,000 collection sites
  
• Flash Video
• Increase DOT Agency USCG Inspector Training and
  Number of Inspections
• Inspection Data Base
• Clandestine Inspections
• Civil Penalty Authority PIE

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Recent DOT Regulation Policy Updates

• Interim Final Rule June 13, 2008
• Permits Employers TPAs for Owner-Operators to
  report CMV driver testing violations to State CDL
  licensing authorities.
• Final Rule June 25, 2008 effective August 25,
  2008
• Test all DOT specimens for SVT.
• Labs submit semi-annual data reports to DOT.
• Close endless loop for Invalid Results and
  streamline results reporting.
• Direct Observation procedures check for
  beat-the-test devices.
• Collection, SAP, and new Employer Handbook were
  updated (www.dot.gov/ost/dapc).

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Recent DOT Regulation Policy Updates

• Interpretive Qs As July 31, 2008
• New MRO procedures for Invalids with pH in 9.0 -
  9.5 range.
• Federal Register Notice August 26, 2008
• Announced a 30-day comment period on the issue of
  whether direct observations should be mandatory
  for all return-to-duty and follow-up tests.
• The comment docket closed on September 25.
• This Notice postponed the effectiveness of only
  one of the Final Rule provisions.
• The Notice reiterated that the new direct
  observation provisions are effective August 25,
  2008 for all required direct observations.

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Specimen Validity Testing (SVT) Final Rule
Effective 08/25/2008

• Collector
• Enhanced direct observation protocol
• The observer requests the employee to raise his
  or her shirt, blouse or dress / skirt, as
  appropriate, above the waist, just above the
  navel and lower clothing and underpants to
  mid-thigh and show the observer, by turning
  around, that the employee does not have such a
  device.

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SVT Final Rule Effective 08/25/2008

• Lab
• Specimen Validity Testing is mandatory
• Semi-annual statistics to ODAPC

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Laboratory Drug Testing Data July December 2008
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Laboratory Drug Testing Data July December 2008
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Laboratory Drug Testing Data July December 2008
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SVT Final Rule Effective 08/25/2008

• MRO
• Close the loop on Invalids
• Procedures for when a negative result is required

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SVT Final Rule - Effective 08/25/2008

• Employer
• The definition of refusal is expanded to
  include when an employee
• Admits to the collector that he/she adulterated
  or substituted his/her specimen.
• Behaves in a confrontational way that disrupts
  the collection process.
• Fails to follow the observers instructions to
  raise and lower his/her clothing and turn around
  to permit the observer to determine if he/she has
  a prosthetic or other device that could be used
  to interfere with the collection process.
• Possesses or wears a prosthetic or other device
  that could be used to interfere with the
  collection process.
• Fails to wash his/her hands after being directed
  to do so.

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Misinformation about the New Final Rule

• Misinformation DOT proposed and requires
  Direct Observation for every test.
• Since 1989, direct observation has been, and will
  continue to be, required for only a handful of
  DOT tests.  And No, Direct Observation was not
  proposed and is not required for every
  collection. 
• Direct Observation is now, and was in the past,
  required when
• -- Specimens show signs of tampering at
  collection sites e.g., cold, hot, discolored
  specimen and through laboratory testing e.g.,
  invalid result with no medical explanation,
  dilute specimens with creatinine 2-5
• -- The MRO cancels verified positives and
  refusals to test because the split specimen was
  not available for testing and
• -- Employers direct collection sites to perform
  Direct Observation for follow-up and
  return-to-duty testing. 
• The DOT proposes to make Direct Observation
  mandatory for follow-up and return-to-duty
  testing, believing that enhancements are needed
  due to the employees heightened reasons to cheat
  a test because of relapse risks from substance
  abuse.

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Misinformation about the New Final Rule

• Misinformation The DOT requirement that
  observers watch the employees urine go directly
  from the person into the collection cup is brand
  new.
• Since 1989, the body to bottle direct
  observation procedure has been in place. 
• Some collection sites and observers may not have
  always adhered to the long-standing requirement.
• Because of the proliferation of devices designed
  to beat a drug test, to include realistic-looking
  prosthetic devices, we added another step to the
  DO process to raise and lower clothing.

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Misinformation about the New Final Rule

• Misinformation Collection sites and employers
  are going to have a difficult time finding same
  gender observers, as required in the new rules,
  because the old rule permitted opposite gender
  observers if the observer was a medical
  professional.
• Since 1989, observers have had to be the same
  gender as the employee. 
• There have never been opposite gender observers.
  
• Not even opposite gender medical professionals
  could serve as observers.
• All collection sites and employers have always
  had to be on stand-by for having same gender
  observers available.

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Misinformation about the New Final Rule

• Misinformation The major TPA Collection Site
  organizations say they are not ready for the new
  Direct Observation procedures.
• The vast majority of the major TPAs, collection
  site organizations, and associations representing
  nearly all of collection sites have assured the
  DOT that they are ready.
• Nearly every small collection organization we
  have talked with has told us they are ready, too.
  
• Collection sites who have indicated to DOT that
  they will not be ready have also fairly
  consistently told us they often failed to
  conduct directly observed collections under the
  old rules, using the old procedures.
• If sites were ready under the old rules, they are
  ready under the new rules!

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Misinformation about the New Final Rule

• Misinformation Only trained collectors can be
  observers.
• Observers have never been required to be trained
  collectors.
• Observers can be trained collectors, but need not
  be.
• Observers simply need to receive instruction from
  the collector on the correct procedures to
  follow.
• ODAPC has published an instruction sheet for
  observers that can be downloaded from our website.

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Misinformation about the New Final Rule

• Misinformation Collectors can cancel a test if
  the site does not have a same gender observer.
• Collection site personnel have no authority to
  cancel a DOT test.
• Part 40 states that, in the event a directly
  observed collection should have been accomplished
  but was not, it has to be accomplished when the
  discovery is made.

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Misinformation about the New Final Rule

• Misinformation When an employer elects to do a
  Direct Observation for Return to Duty or
  Follow-up, the employer can also elect to use the
  old procedures rather than the new procedures.
• Since August 25, 2008, all Directly Observed
  collections have been required to use the new
  procedures for checking for prosthetic and other
  devices. 
• This includes Direct Observations conducted as an
  employer option in follow-up and return-to-duty
  testing situations, as well as for mandatory
  Direct Observations, in situations when the
  employee submits a cold specimen, or the employee
  has no legitimate medical reason for an invalid
  test result, etc.

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Recent Guidance

• NEW Collection Site Security and Integrity
  -Video March 23, 2009

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On the Horizon

• Collection Site Compliance Reviews
• MRO Guidelines
• Collector Guidelines

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Office of Drug and Alcohol Policy and Compliance
Bob Ashby Office of General Counsel
Jim Swart Director
Patrice Kelly Deputy Director
Mark Snider Senior Policy Advisor
Bohdan Baczara Policy Advisor
Cindy Ingrao Senior Policy Advisor
Vicki Bellet Maria Lofton Administrative
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The ODAPC Websitewww.dot.gov/ost/dapc