AUGUST/SEPTEMBER 2008

DOT proposes major changes in specimen collection, validity testing and reporting requirements

Responding to almost a decade of suspicion that commercial drivers and other safety-sensitive workers have been beating drug tests by adulterating specimens, substituting clean urine, and failing to provide accurate information to new employers, the Department of Transportation (DOT) is making some major changes.

In a May 21, 2008 press conference, Peter DeFazio, Chairman of the Subcommittee on Highways and Transit, demanded that improvements in drug testing programs be made to better identify and keep illegal drug users off the road. Based on a Government Accounting Office (GAO) investigation, DeFazio cited major loopholes in drug and alcohol testing for commercial motor carrier drivers. He called upon the DOT to toughen regulations, increase oversight of the collection and testing system, and pursue legislation to create a national registry of test results to prevent drivers who test positive from hopping from state to state to obtain a commercial drivers license.

DeFazio criticized a "loophole-ridden system when it comes to drug and alcohol testing in the motor carrier industry that allows an unknown number of truck drivers to abuse drugs and operate large trucks."

For instance, there is virtually no oversight of drug testing collection sites. GAO undercover investigators found that 22 out of 24 collection sites failed to follow DOT-required protocols. At nearly every facility investigated, it was not difficult to smuggle in synthetic urine that fooled the labs running the tests. Although industry reports a positive drug test rate of between 1.6 and 2 percent, a 2007 Oregon State Police operation found that out of 500 anonymous tests of commercial drivers, 9.65 percent tested positive.

A conversation between TAP and DOT’s Office of Drug and Alcohol Compliance revealed that they are well aware of devices available in the marketplace that are designed to tamper with specimens by bringing "clean" heated urine into the collection.

Another problem is "job-hopping" truckers who don’t have their past drug-use history follow them because they don’t list jobs where they failed a drug test on their employment history. GAO found that drivers just need to stay clean long enough to get a negative test before applying to work for another carrier.

When five years of drug test results from one medium-sized drug testing company in Texas were subpoenaed, it was found that 698 individual drivers failed a drug test with one employer, but then passed a pre-employment test for a new employer–in many cases, just weeks after failing the first test. Many of these individuals were ultimately hired by the second employer, who had no knowledge of the prior failed test.

Perhaps worst is the finding that many drivers are not even being tested for drugs. Since 2001, FMCSA’s compliance reviews indicate that more than nine percent of the carriers had no drug testing programs at all, yet still managed to pass safety audits.

DeFazio vowed to propose legislation that would address the problems. Separately, he hoped to ban products marketed for the sole purpose of subverting a drug test which have no other legitimate use, and take them off the market.

The DOT has announced a final rule change and an interim rule change that both go into effect in August, 2008.

The Final Rule, effective August 25, 2008, makes specimen validity testing mandatory for all DOT drug tests and changes procedures for direct observed collections.

1

Laboratories must test all DOT specimens for specimen validity (i.e., adulterants and urine substitutes), and must follow all Department of Health and Human Resources (HHS) protocols for doing so.

2

Same-sex observers will check donors for items such as prosthetic devices designed to carry clean urine. Donors must raise and lower clothing, and then put it back into place for the observed collection.

3

Observed collections will now be required, rather than optional, for all return-to-duty and follow-up drug testing and will continue to be mandatory for employees with dilute specimens, invalid tests with no medical explanation, situations where split specimens were not available after a positive, adulterated or substituted result, and out of range temperatures.

4

In an effort to thwart those who would manufacturer products designed to adulterate specimens, the Final Rule will no longer have easyto- follow tables and charts outlining the adulterants for which laboratories are testing and the scientific cutoff levels for testing them.

5

The following occurrences are now considered a refusal to test: a. The donor is found to possess or wear a prosthetic or other device that could be used to interfere with the collection process, b. The donor refused to follow collector instructions during an observed collection process to raise and lower clothing as specified in regulations, and c. The donor admits to the collector or MRO that he/she adulterated or substituted the specimen.

6

The Final Rule closes a potentially endless loop on invalid specimen results; and employees requiring negative results (for example, pre-employment tests), when they have medical reasons for providing invalid results. It enables such employees to obtain negative results through medical evaluations to rule out signs and symptoms of drug use.

An Interim Final Rule was issued on June 13 and is open to public comment until August 12, 2008. This rule authorizes employers to disclose to state commercial drivers licensing (CDL) authorities (DMV in California) the drug and alcohol violations of employees who hold CDLs and operate commercial motor vehicles. This rule also permits third party administrators to provide the same information when state law requires them to do so for owner-operator drivers with CDLs.

It is important to note that employers may report positive DOT drug and alcohol tests to DMV but they are not required to do so. At least not yet.

Although DOT seems slow to act, the agency continues to address loopholes and inconsistencies in the regulations. It is clear that the drug and alcohol testing regulations will become progressively stricter and more difficult to subvert.