EXPERIENCED DAPM TRAINING 11 th Annual FTA Drug and Alcohol Program National Conference March 2016

Trainers Mike Redington (617) Lori DeCoste (617)

APPLICABILITY Funding applicability Safety sensitive functions

Who must have an FTA D&A Program? Recipients (Grantees) of FTA Transit Funds : Urbanized Area Formula (Operating & Capital) : Transit Capital Investment (Capital) : Non-Urbanized Area Formula (Operating and Capital)  Serving population less than 50,000  5311(c) Tribal Transit Program (TTP) Subrecipients and Contractors of FTA Grantee, when: - Recipient (grantee) uses the subrecipient/contractor to provide some or all of its safety-sensitive activities - Subrecipient/contractor uses vehicles purchased with FTA capital funding

Who must have an FTA D&A Program? Recipient of FTA Capital Assistance (5309/5311) - Segregate FTA funding - Limit application of FTA testing to capital project funded by FTA Recipient of FTA Operating Assistance (5307/5311) - FTA funding cannot be segregated - All operations are subject to FTA D&A requirements  Includes safety-sensitive contractors

Safety-Sensitive Functions Operating a revenue service vehicle, including when not in revenue service Operating a non-revenue service vehicle when required to be operated by a CDL holder - Tow trucks? Maintaining a revenue service vehicle or equipment used in revenue service - Signal workers? - Track maintenance? - New track construction? Controlling dispatch or movement of a revenue service vehicle - Flaggers? - Occasional occurrences (e.g. during transit vehicle accident)? Carrying a firearm for security purposes - Police stationed at transit system?

PRE-EMPLOYMENT TESTING PE testing vs. other medical exams PE test refusals Previous employer records requests

Pre-Employment Testing vs. CDL/State/Local Medical Exam CDL, State, or local requirements may also include a physical exam that contains a drug test NOT a valid FTA pre-employment test  Applicants and collectors may not know the difference! - Be sure to be clear when requesting

Pre-Employment Testing - Refusals Different than other test types (random, post-accident, etc.) NOT a refusal if applicant: - Fails to appear for testing - Leaves the collection site prior to commencement of test  A drug test commences when donor accepts or selects the specimen cup  An alcohol test commences when donor accepts or selects the mouthpiece  Reminder: Employer must provide a SAP referral to any applicant who fails or refuses a DOT pre-employment test

§40.25 – The Basics "Must an employer check on the drug and alcohol testing record of employees it is intending to use to perform safety-sensitive duties?“ As a potential employer, you must: - Obtain written consent from applicants to request drug and alcohol testing information from previous 2 years  An employee that refuses to provide consent is not eligible for hire in a SS position - Contact previous employers – written consent must accompany the request - Ask applicant whether he or she has tested positive or refused a DOT pre- employment test in the previous two years  Question must be separate from the previous employer records release form

§40.25 – The Details As the potential employer: Only applies to employees seeking to begin performing SS duties for you for the first time - If employee leaves for a period of time (not exceeding 2 years) and returns? (ODAPC Q&A 09/01)  If information received previously is still on file, you do not need to seek to obtain testing information again  Must seek information from any other DOT employers who employed the person during absence If possible, obtain and review information prior to applicant’s placement into SS functions - If not possible – within 30 days after employee begins SS functions (or at least a good faith effort)

§40.25 – The Details As the potential employer: If violations exist, you need proof of completion of RTD requirements - Employer may determine this to his or her own satisfaction (SAP Guidelines)  E.g. have prospective employee meet with your SAP, or have your SAP confer with the prospective employee’s SAP - If employee has not completed the follow-up testing plan, you must see it through after hire (§40.307(e)) Keep a written record of the information received, or of your good faith effort for at least 3 years

§40.25 – The Details As the previous employer receiving the inquiry: Ensure applicant’s signature accompanied the request Also include any information you received about the employee from a former employer  Even if that information dates back more than 2 years ago (ODAPC Q&A 09/01) Release of information must be in a written form that ensures confidentiality - Include written record of information released  date  person/employer released to  summary of information provided

RANDOM TESTING The safety-sensitive DAPM Multiple modes Using alternates Random spread

The Safety-Sensitive DAPM Are you actually safety-sensitive? When can you be tested? - Drugs: any time on duty - Alcohol: just before, during, or just after safety-sensitive functions DAPM in the random testing pool requires additional arrangements

Multiple Modes What Pool? - Separate pool for each DOT mode→ Test at required testing rate - All DOT employees in one pool → Test at the highest percentage rate established How many tests (testing rate)? Mode 2016 Random Drug Rate 2016 Random Alcohol Rate FTA25%10% FMCSA25%10% FRA25%10% FAA25%10% PHMSA25%n/a USCG25%n/a All the same!

Random Selection – Using Alternates Alternates may only be used if the originally selected employee cannot be tested during entire selection period - Must have a legitimate reason for excusing the original employee  “Operational difficulties” not legitimate - Must document why original employee could not be tested Alternates must be selected when original selection list is generated - May not be selected as a separate draw - Must be identified as an alternate The Alternative: test at a higher rate throughout the year to make up for missed tests due to excusals

Random Testing – Reasonably Spread §655.45(g): employers must ensure the dates for random tests are spread reasonably throughout the calendar year and are conducted at all times of the week and day when safety-sensitive functions are performed Batch Testing - Often signals that very few (if any) random tests will occur later in the selection period → reduces deterrent effect of the random testing program - Common causes:  On-site or mobile collector  Restrictive collection site  Lack of training from employer

Records Review – Graphic Analysis Reasonably spread = GOOD Batch Testing = BAD

What’s wrong with this picture?

Off-Hours Testing Important to conduct alcohol tests during late night/early evening - Night-time is the most common time for consuming high levels of alcohol - Early morning shifts – high concentration levels from sustained intoxication from previous night How to get them done? - Schedule in advance – early arrangements with collection site (may pay premium) - Special arrangement with collector  The collector (not the collection site) is qualified to perform DOT tests - Hospital - Police

End-of-Shift Interpretation An employer can establish a process for employees who provide advance, verifiable notice of scheduled medical or childcare commitments Allowance for DAPM: - Schedule alcohol tests no later than 30 minutes before employee’s shift ends - Schedule drug tests no later than 3 hours before employee’s shift It’s important to revisit agreement with employees often to ensure commitments are still valid

POST-ACCIDENT TESTING Best information available

Best Information Available Decision to test/not to test made by employer (company official, supervisor) at the scene Use best information available at the time - any and all information obtained during the on-site portion of the accident information - do not ‘reverse’ decision based on facts that may emerge later Onboard cameras? - May be used only if easily viewable at the scene, without delay of the test Ensure decision-makers sufficiently document any decision not to perform an FTA test (after thresholds are met)

REASONABLE SUSPICION TESTING Authorized to make a referral

Reasonable Suspicion Testing A safety-sensitive employee must submit to a drug and/or alcohol test when the employer has a reasonable suspicion that the employee has used a prohibited drug or misused alcohol Reports, Tips, Fights, Signs or Symptoms, Etc. Face-to-Face Evaluation Test or Release

Authorized to Make a Referral Who should be authorized to make a referral? - Company officials who will be in contact with safety-sensitive employees  Dispatchers  Street supervisors  Maintenance supervisors Employees (not authorized) should know who to contact if suspicious

Positive Random or PA Test? Random or post-accident positive (esp. alcohol) – Why wasn’t this detected by a supervisor?

RETURN-TO-DUTY AND FOLLOW-UP TESTING Part-time safety sensitive

Part-Time Safety-Sensitive Infrequent SS duties (e.g. primarily admin, on light-duty, etc.) - Employer may direct safety-sensitive as it sees fit Seasonal employees - Pauses during times when employee is inactive - Maximum 60-month duration of follow-up testing may sometimes extend beyond 5 calendar years

NOTIFICATION FORMS Information to collection site Direct observation

Information Provided to Collection Site §40.14 Employer must provide the following to the collector for each drug test: - Name of employee - Employee SSN or ID# - Laboratory name and address (can be pre-printed on CCF) - Employer name, address, phone number, fax number (can be pre-printed) - DER name and phone number - MRO name, address, phone number, and fax number (can be pre-printed) - DOT Agency regulating the employee’s ss duties (checkmark can be pre-printed) - Test Reason - Whether the test is to be observed or not - (Optional) C/TPA name, address, phone number, fax number (can be pre-printed) Best practice: Use a notification form to provide this information

Direct Observation Whether the test is to be observed or not - Most common information missing from notification forms Collectors should not “automatically” conduct directly observed testing for RTD/FU – they must be directed to do so by the employer

REFUSALS TO TEST Who determines?

Refusal to Test Only MROs, evaluating physicians, and employers can determine whether or not a refusal occurred Employer Decides Fail to appear for a drug or alcohol test Fail to remain at collection site Fail to provide a urine specimen Fail to provide an adequate amount of saliva or breath Fail to sign Step 2 of ATF Fail to permit a monitored/observed collection Fail to take a 2 nd drug test as directed Fail to cooperate Fail to raise and lower clothing during an observed collection Possess/wear a prosthetic device Admit to collector to having adulterated/substituted specimen Fail to undergo a medical evaluation after insufficient breath specimen A collector must document behavior at the collection site – but the employer makes the final determination

VENDOR OVERSIGHT Oversight activities Testing sites – mock collections and CCF review Third party administrators

Oversight Activities If your vendors are not compliant – YOU are not compliant - If you use a service agent (a collector, BAT, MRO, SAP, TPA) and the service agent fails to comply with DOT rules, DOT can take action against you Specifics not prescribed by DOT - DOT allows to request qualifications, exam certifications, etc.

THE COLLECTION SITE

Collection Site Oversight Best Practices (for Collection Site) - Perform periodic on-site reviews (if applicable) - Review testing records – CCFs and ATFs - Require correction/cancellation as appropriate - Breath collection/ urine collection checklists - CCF/ATF review checklists - Example of completed CCF - Collection site affidavit forms - Collection Site Audit Interview questionnaires video video

Collection Site Integrity – the Risks Substitution of specimen - Donor’s ability to dispose of or conceal paraphernalia brought into the enclosure - Donor’s ability to access paraphernalia already in the enclosure - Hiding places even for small objects Dilution of specimen - Donor’s unauthorized access to water sources - Adulteration of specimen - Donor’s unauthorized access to soaps, sanitizers, etc.

Secure water sources - Turn off water, tape faucet handles, bluing in toilet and tank, tape toilet tank Remove sources of adulterants - Soap, disinfectants, sanitizer, etc. Eliminate undetected access - Windows, side doors, hallways, etc. Secure/eliminate areas for hiding/concealing - Ledges, cabinets, trash receptacles, under sink areas, dropped ceiling tiles Collection Site Integrity – the Solutions

Collection Site – CCF Review Step 1: - A: Employer name, address, phone # - required information TPA information allowed – must transmit to employer - B: MRO – current contact information - D: DOT Agency – FTA, not FMCSA (most common error) - E: Reason for test

Collection Site – CCF Review Step 2: - Directly observed  Always for return-to-duty and follow up tests  Other reasons per §40.67  Observed not checked when required?  Call collection site… if not observed, send donor back immediately - Remarks required if:  Shy bladder  Directly observed by a same gender observer (if different than collector)  Temperature out of range  Employee not cooperating (won’t sign CCF, print name, etc.)

Collection Site – CCF Review Step 3: - Initial bottle seals while on the bottle

Collection Site – CCF Review Step 4: - §40.209(b)(9) – Must include specific courier name  “Courier” not allowed - must be specific (e.g. FedEx, DHL, etc.)

Collection Site – CCF Review Step 5 - Employee’s name, telephone number, and date of birth - Date of test - Employee signature  If no signature, is this documented in the Remarks Section of Step 2?

Collection Site – CCF Review General: - DOT CCF?  “Federal Drug Testing Custody and Control Form” - All fields complete - Dates are correct and consistent - Writing is legible - You received the correct copy (Copy 4 – Employer) - If applicable, alcohol test before drug

Collection Site – CCF Review What if errors are found? Employer must correct error – contact collection site - Missing information (collector)  Supply missing information in writing  Supply statement that information is correct and accurate  Same business day - Non DOT form for a DOT test (collector)  Supply affidavit (memorandum) - Non-DOT form contains all required info - Form used inadvertently or as a method to complete test - Steps to prevent further use of non-DOT form - Split specimen, sent to a HHS lab

Collection Site – CCF Review What if errors are found? Employer may correct some errors – mark correction on CCF - Incorrect/Missing DOT Agency (most common error) - Incorrect/Missing Test Type - DOB and Current Date reversed  Circle/cross out, initial, date

Fatal Flaws Fatal flaws: - Collector fails to print and sign his/her name - Specimen ID numbers on the specimen bottle and CCF do not match - Specimen bottle seal is broken or shows evidence of tampering - Insufficient specimen due to leakage or other causes MRO determines collector is at fault – cancels drug test MRO reports cancelled test to employer, noting collector error Employer is responsible for notifying the collection site of the error and the retraining requirement; and for ensuring that the training takes place - Collector has 30 days to undergo error correction training - Collector may still perform collections

Continued Non-Compliance What do you do if you know your collection site is not completing compliant collections? - Work with collection site to correct errors - Report it to the program manager of your DOT agency (FTA – Iyon Rosario) - Find a new collection site

THIRD PARTY ADMINISTRATORS

Functions of the TPA D&A program functions may be outsourced to a vendor – consortium/third- party-administrator (C/TPA) - Random selections - Prepare of annual MIS reports - Coordinate urine collections, laboratory testing, and MRO services - Coordinate alcohol testing - Coordinate SAP referrals  C/TPA must ensure that the services it provides comply with DOT regulations - but you, as the employer, are ultimately responsible

TPA Best Practices YOU may dictate: - Random testing specifics  When/how random selection lists arrive  Test day and time  Number of tests and testing rate  Frequency of selection/altering schedule - Location of the records - What information is transmitted through TPA  Test Results, CCF copies (Except MRO copy)…see Appendix F of Part 40

CONTRACTOR OVERSIGHT Responsibility Suggested Activities

Responsibility The direct recipient of FTA funding, however, remains responsible to FTA both for carrying out the regulations and for ensuring that any person or organization performing a safety-sensitive function on its behalf is in compliance with FTA regulations with effective ongoing oversight. (FTA Circular C E) If your contractors are not compliant – you are not compliant

Suggested Activities Obtain a copy of the contractor’s drug and alcohol policy and determine if its compliant - Or provide a copy of your own compliant policy Conduct periodic assessments Ensure their service agents are qualified under Part 40 Require periodic management reports on policy modifications, changes in service agents, training, etc. Audit testing records on site Require and monitor quarterly and annual MIS reports Require immediate corrective actions to remedy problems identified Invite contractors to participate in your training programs

MIS REPORTING Reporting requirements Multiple modes

MIS – FTA Reporting Requirements Prepare and maintain annual summary of testing results MIS report is “employer based” - Each employer submits a separate MIS with FTA results  No consortium reports  No combined reports Submit results to FTA - When requested (e.g. annual reporting, audit, triennial, etc.) - March 15 for annual MIS Ensure accuracy and timeliness - Grantees → contractors, subrecipients, TPAs, etc.

MIS – Multi-Modal Employers When an employer is regulated by multiple DOT agencies, but: individual employees perform duties regulated by a single DOT agency - Ex: Employer operates transit buses (FTA) and school buses (FMCSA), but each employee operates only one type of bus - Submit separate agency specific MIS forms - Do not double report

MIS – Multi-Modal Employers When an employer is regulated by multiple DOT agencies, and: individual employees perform duties regulated by multiple DOT agencies - Ex: Employer operates transit buses (FTA) and school buses (FMCSA), and an employee could operate either vehicle - Report employees under DOT agency for which they are randomly tested - OR - Report employees under DOT agency for which majority of safety sensitive duties are conducted

WHAT IF YOU HAVE QUESTIONS? FTA contacts FTA D&A resources

HELP! Iyon Rosario – FTA Drug & Alcohol Program Manager - (202) , Mike Redington – (U.S. DOT / Volpe Center) - (617) , Lori DeCoste – (U.S. DOT / Volpe Center) - (617) , FTA D&A Project Office - (617) ,

Forms - Post-accident, Reasonable Suspicion, Notification, Previous Employer Policy Help - Checklist, Sample Policies, Policy Tool Video - Reasonable Suspicion Conference & Training Schedules Register for Newsletter

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