Managing Your Transit Contractors FTA Drug and Alcohol Program National Conference April 5 – 7, 2011 Presented by: Russ Parish – Arkansas Transit Association Vicky Warner – Indiana RTAP/RLS & Associates Inc. 1

COURSE OBJECTIVES To provide Participants with the technical knowledge necessary to perform a comprehensive assessment of their drug and alcohol testing program To aid each participant in performing oversight of their vendors To aid each participant in developing a plan of corrective action To create a forum for the exchange of ideas and best practices To provide valuable resources to aid in program administration and oversight

FTA Audits Assess compliance with drug and alcohol testing regulations (49 CFR Part 655 and 49 CFR Part 40) Performed by team of experts 4-6 auditors 2 to 4 days on-site Comprehensive Mock Collection Includes audit of safety sensitive contractors Includes audit of vendors Systems may be audited more than once

Audit Process Notification in writing and request for information Rural systems and their respective state DOTs are contacted simultaneously Submittal of info within two weeks Site visits within six weeks Scheduled to avoid conflicts with other FTA oversight functions Laptop real-time interview process Exit interview- letter and final report with deficiencies Report- Final and non-negotiable 90 days for response and documentation of correction of deficiencies

Preparation for Audit Ensure all relevant personnel are available during the visit Program Manager Other agency staff as appropriate Vendors Safety-sensitive contractors and their vendors Upon notification of audit, immediately undertake efforts to collect, copy and submit relevant documentation to FTA Recipient/subrecipient information Contractor information

Preparation for Audit (continued) View audit in a positive manner Arrange to have ready access to all relevant records and documents Must be available on-site Data from vendors Data from safety-sensitive contractor Impart the seriousness of the audit to those individuals that will be involved Give complete cooperation Be prepared to provide complete documentation Provide clear, descriptive answers

Problems Commonly Reported Applicable regulations (FTA vs. FMCSA) Policy Flaws After hours collection not being performed Post-accident testing procedures ill-defined Random selection/notification process compromises integrity of program Confidentiality of information compromised Recordkeeping incomplete Program not current- Revised Rules Vendor non-compliance Safety sensitive contractor non-compliance Safety sensitive employee incorrectly identified

Utilize The FTA’s Format Download and use the FTA audit questions from the Office of Safety and Security website located on their technical assistance page – http://transit-safety.fta.dot.gov Request the following material for a desk review prior to any scheduled site visit Copy of the current drug and alcohol policy Hire dates and pre-employment testing logs Random draw lists and random testing logs Copies of vendor credentials (MRO, SAP, laboratory, BAT & Collectors) Records of Post accident test for previous year (longer if a very small provider) Information regarding cancelled or non-negative test results Information on the EBT that is being utilized by the provider Copies of semi-annual statistical reports

Utilize The FTA’s Format – (continued) Audit testing records: an employer may disclose drug and alcohol testing information including test results to the State oversight agency or grantee required to certify compliance Require timely responses and supporting documentation for any issues identified during the review Require and monitor reports

SYSTEM OVERSIGHT

CERTIFICATION OF COMPLIANCE The recipient of FTA funds must certify compliance with the requirements set forth in 49 CFR Part 655 on an annual basis Must be signed by the recipient’s governing board or authorizing official Criminal penalties for false statements or misrepresentations Section 5311 systems certify compliance to their respective State DOTs 12

EMPLOYER REQUIREMENTS Responsible for actions of officials, representatives, and service agents All agreements between employers and service agents are deemed as a matter of law to require compliance Service agents must provide documentation of credentials Good faith effort is not a defense for non- compliance Employer is responsible for obtaining test results and other information that is needed for compliance purposes 12

COMMON PROBLEMS: POST ACCIDENT TESTING PROCEDURES Policies and procedures must be in place to ensure post-accident tests are performed as soon as possible following an accident - Testing often omitted or significantly delayed - Ill-defined policies - No documented procedure - Inadequately trained supervisor - Lack of supervisor empowerment 12

RANDOM TESTING ISSUES Non-routine and sporadic performance of safety- sensitive function - Drug tests, anytime during shift - Alcohol tests just before, during, or after performance of safety-sensitive function Fluctuating employee base - Number in pool X percent of testing - Number of draws to be conducted per year Program administrator in pool - alternative contact notified when administrator’s number is selected Employee must be notified of the testing authority 12

RANDOM TESTING SPREADSHEET 6:00 PM Close 6:00 AM Open

ARE YOU SATISFIED WITH YOUR VENDOR? Number and explanation for cancelled tests Collection and transfer of split specimens Volume capacity, location, and service hours After hours testing Ease of communicating and reporting 12

TRANSIT EMPLOYERS MUST MONITOR Collection sites Medical Review Officers HHS laboratories (blind samples) BATs/STTs Substance Abuse Professionals Service agent compliance required - Compliance required as a matter of law - Non-compliance may result in a public interest exclusion (PIE) 12

RECORDS REVIEW

Lab Reports HHS Lab report semi-annual test reports to employers NPRM – IITF Report the same 12

Paper trails Able to withstand challenge Document policies and procedures Document every test decision 12

CONSENT FORMS CANNOT BE REQUIRED Employer or service agents cannot require an employee to sign a consent, release, Waiver of Liability, or Indemnification Agreement with respect to drug and alcohol tests 12

PRE-EMPLOYMENT DOCUMENTATION A chain of custody and control form for every test A negative test result for every new hire Written notice to applicant with acknowledgement and signature Date, time, and result of each test conducted Test date prior to hire date Previous employer drug and alcohol test records 12

RANDOM TESTING DOCUMENTATION Random draw lists A chain of custody and control form for each test

POST-ACCIDENT TEST DOCUMENTATION Accident Identification Information: documentation of whether circumstances meet definition of accident Documentation for every covered accident on decision to test or not Documentation supporting determination of whether the employee could be completely discounted as a contributing factor Time/date of accident and test Documentation of reason for test delay 12

CONFIDENTIALITY The confidentiality of drug testing information is a critical concern of all employees Inadvertent disclosure of the names of employees who were tested and their test results, may result in legal action Records must be maintained in a secure location with controlled access (separate from personnel records) 12

CONFIDENTIALITY (CONTINUED) Employer must define who has access to files and for what purpose Access by others should be restricted FTA recipients may have access to contractor’s employee-specific information 12

INFORMATION RELEASE A separate release must be signed each time information is to be disclosed Releases must be signed by employee anytime information is to be released to - The employee - Union representatives - Subsequent employers - To any other third party designated by the employee Employee must not be given access to SAP follow- up testing plan 12

INFORMATION RELEASE (CONTINUED) No signed release is required when information is provided to: The National Transportation Safety Board when investigating an accident A decision maker in a lawsuit grievance or administrative proceeding initiated by or on the behalf of the employee tested and resulting from a positive test result or test refusal The DOT or any DOT agency with regulatory authority over the employer or any of its employees, or to a State Oversight committee authorized to oversee rail fixed guide way systems State DOT or grantee that has oversight responsibility and is required to certify compliance to FTA 12

INFORMATION RELEASE (CONTINUED) No signed release is required when information is provided to: (cont’d) A criminal or civil action resulting from an employee’s performance of safety-sensitive duties in which a court or competent jurisdiction determines the test information is relevant to the case and orders the employer to produce the information Release must be made with a binding stipulation that the decision maker will make the information available only to parties to the proceeding Release of information to law enforcement agencies based solely on the request of the law enforcement agency is not allowed 12

INFORMATION RELEASE (CONTINUED) State commercial driver’s licensing (CDL) authorities when a state law require such reporting 12

INFORMATION RELEASE (CONTINUED) Employers and service agents must allow DOT agency access to: Facilities All written, printed, computer-based programs, and reports Laboratories are not allowed to release a specimen without obtaining ODAPC permission 12

RESPONSIBILITY FOR CONFIDENTIALITY Apply strict confidentiality standards to all aspects of your substance abuse program, particularly with respect to identification of any specific individual Apply the golden rule 12

VENDOR OVERSIGHT

THAT INCLUDES TPA’S AND CONSORTIA! DO NOT ASSUME THAT VENDORS ARE CONDUCTING TESTS IN COMPLIANCE WITH REGULATIONS – THAT INCLUDES TPA’S AND CONSORTIA! 12

C/TPAS AS INTERMEDIARIES Employer discretion Maintain confidentiality Must meet time requirements Must provide DOT requested information to employer within two days 12

C/TPAS AS INTERMEDIARIES (CONTINUED) Transmit drug test information from MRO to employer - Test refusals - Cancelled tests - Split specimen - Retest requirements reconfirmation - Insufficient specimen - Drug test results - Shy bladder refusal - Dilute specimens - Transmission of CCF - Changed test result - Transmission of lab - Confirmed positive for stand statistical report down - Transmission of 2 years - Direct observation collections test results to - Employee no-shows subsequent employers - DER contact information - Alcohol screen and confirmatory test results < 0.02 12

C/TPAS MAY NOT ACT AS INTERMEDIARIES Transmission of laboratory drug test results to MRO Transmission of medical information from MRO to employers Transmission of SAP reports to employers Transmission of positive alcohol test results 12

C/TPAS PROGRAM ADMINISTRATION May operate random testing programs May maintain random pool May assist with other types of testing May assist in implementation of follow-up testing plans May receive and maintain all records without employee consent - Test results - Program operation records Must transfer records immediately upon request without fee Must notify employee immediately of business status change Must not act as DER 12

C/TPA Oversight Utilize the FTA consortium/TPA audit questions Conduct Semi annual or annual reviews May require statistician validate the scientific validity of the random draw programs utilized Require annual MIS for the entire consortium for state wide programs Follow-up/require written responses to any problems reported by systems using C/TPA

COMPLIANCE TIPS Conduct periodic mock collections to identify procedural flaws Investigate any reports by employees of flawed procedures Provide vendors copies of USDOT and FTA handbooks and procedural manuals Require documentation of vendor credentials 12

COMPLIANCE TIPS (CONTINUED) Even though not a regulatory requirement, consider requiring vendors to hold memberships in their respective industry’s trade association Monitor cancelled test rates, and require detailed explanations for each cancelled test Include specific and detailed minimum performance standards in contracts that provide disincentives for cancelled tests or non- performance 12

COMPLIANCE TIPS (CONTINUED) If vendors are unwilling or unable to perform their duties consistent with the regulations, cancel their contract and obtain service elsewhere 12

TRADE ASSOCIATIONS Drug & Alcohol Testing Industry Association (800) 355-1257 www.datia.org American Association of Medical Review Officers (919) 489-5407 American Society of Addiction Medicine (301) 656-3920 American College of Occupational and Environmental Medicine (847) 228-6850 Substance Abuse Program Administration Association (800) 672-7229 12

SAP CREDENTIALS (EXAMPLE)

MRO CREDENTIAL (EXAMPLE)

MRO Credentials (October 1, 2010) MROs will no longer be required to obtain 12 hours of continuing education every three years. Instead MROs will be required to be retrained and pass an examination every five years. The examination must be given by a recognized MRO certification board or subspecialty board for medical practitioners.

COLLECTOR CREDENTIALS (EXAMPLE)

COLLECTOR CREDENTIALS (EXAMPLE)

PUBLIC INTEREST EXCLUSION What is a PIE? - Public Interest Exclusion - not allowed to work in DOT programs Purpose of PIE - Protect public interest - Protect employer and employee from serious noncompliance Basis for PIE being issued - DOT determines failure or refusal to provide service consistent with DOT rules - Failure to cooperate with DOT or inspections, compliance and enforcement reviews, or requests for documentation 12

PUBLIC INTEREST EXCLUSION (CONTINUED) DOT policy on PIE proceeding - Only in cases of serious, uncorrected non- compliance Affects safety Outcomes of test results Privacy and confidentiality Affects due process Affects honesty and integrity of testing program Failure to provide cooperation and info to DOT representatives - Regulation provides 14 examples 12

PIEs IN EFFECT Michael R. Bennett and Workplace Compliance, Inc. 7/31/09 – 7/31/14 12

CONTRACTOR OVERSIGHT 12

Contractor Oversight Safety-sensitive contractors that “stand in the shoes” of the subrecipient are required to have drug and alcohol testing programs that meet the same requirements Maintenance contractors of systems that serve populations of <= 200,000 are exempt Second tier maintenance contractors are exempt Rule applies to contractors (i.e. taxi operators) when the transit provider enters into a contract with one or more entities. Rule does not apply when the patron chooses the operator Suggested oversight procedures Provide copy of the regulations and DOT/FTA guidance Make compliance a condition of the contract. 12

Contractor Oversight (continued) Conduct periodic assessment using checklist Policy Testing procedures Testing categories Training Recordkeeping Audit testing records: an employer may disclose drug and alcohol testing information including test results to the State oversight agency or grantee required to certify compliance Require and monitor reports Include in own program 12

Safety-Sensitive Contractor Identify safety-sensitive contractors which “stand in the shoes” of the recipient Require contract or contract language specifying requirements for a compliant drug and alcohol testing program including specific performance standards Do not assume that contractors, no matter how reputable, are in compliance Develop an on-going monitoring program Immediately take corrective action to remedy problems found 12