1. Presented by: Robbie L. Sarles
Understanding the Updated USDOT Drug & Alcohol Testing Regulation (49 CFR Part 40)
Presented by: Robbie L. Sarles
President
RLS & Associates, Inc.
April 4, 2018
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2. REMEMBER! RLS is NOT is not an official or representative of:
United States Department of Transportation (USDOT)
USDOT – Office of Drug & Alcohol Policy and Compliance (ODAPC)
Any USDOT – Agency
(i.e., FTA, FMCSA, FRA, FAA, PHMSA, etc.)

3. Best Practices
NOT Required by USDOT, FTA or Any Other Modal Administration
NOT A Regulatory Requirement
Addresses Issues That Might Already Be Covered Under Employer’s Own Company/Agency Authority
ATTENTION:
ANY TEXT WHICH IS BLUE IS MEANT TO INDICATE THAT IT IS NOT A USDOT REQUIREMENT/REGULATION.
THESE PROVISIONS WOULD BE BEST-PRACTICES/SUGGESTIONS AND UNDER THE AUTHORITY OF THE EMPLOYER

4. AGENDA Background Summary of Changes Workplace Impact Questions
Additional Resources

5. Action Items
When you see a red star throughout this slideshow – this will indicate to you that there is a potential ACTION ITEM for your attention.

6. U S D O T Background 49 CFR Part 40 FAA FMCSA USCG FRA PHMSA FTA
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7. Background “The What?” “The When?”
49 CFR Part 40 is USDOT’s D&A regulation covering testing procedures
Part 40 has been updated
“The When?”
Jan 2017 – USDOT issued NPRM
Nov 2017 – Final Rule published in Federal Register
Jan 1, 2018 – Effective Date for all changes

8. Background
“The Who?”
Applicable to entire DOT industry (FTA, FMCSA, FRA, FAA, PHMSA, USCG, etc.)
ANYONE subject to 49 CFR Part 40
Employers, MROs, SAPs, Collection Sites, etc.

9. Summary of Changes Drug Testing Panel Modifications
“Opiate” changes to “Opioid”
Four new opioids added to testing panel
Chemical Name
Common Brand Names
Hydrocodone
Norco® ; Vicodin® ; Lortab®
Hydromorphone
Dilaudid® ; Exalgo®
Oxycodone
Oxycontin® ; Roxicodone® ; Percocet®
Oxymorphone
Opana®

10. Summary of Changes Drug Testing Panel Modifications (continued)
“MDA” added to screening test
“MDEA” removed
Revisions / Updates to Terms & Definitions
“DOT, the Department, DOT agency”
Modified to encompass all DOT agencies, (FAA, FRA, FMCSA, FTA, PHMSA, NHTSA, OST, and any designee of a DOT agency)
Clarified USCG’s relationship with USDOT

11. Summary of Changes Revisions / Updates to Definitions (continued)
“Drugs” – modified to match the additions and revisions as discussed earlier
“Alcohol Screening Device” & “Evidential Breath Testing Device (EBT)”
List of approved devices now listed on ODAPC’s website (instead of in the federal register)
“Substance Abuse Professional”
List of qualified agencies for drug and alcohol counselor licenses/certificates will now be listed on ODAPC’s website

12. Summary of Changes ODAPC List-Serve
All service agents REQUIRED to “subscribe”
Sign-up via
Prohibition of Use of Federal Branding, etc.
Blind Specimen Testing No Longer Required

13. Summary of Changes Urine Collection / Testing
Urine only allowable specimen (no blood, hair, sweat, etc.)
No DNA testing allowed
3 new “Fatal Flaws”
No CCF with urine specimen at Lab
No urine specimen with CCF at Lab
Only if a specimen was actually collected
Two separate collections on only one CCF

14. Summary of Changes Urine Collection / Testing (continued)
Insufficient “Questionable Specimens” - Always discard & remark
New CCF Changes
Removed “DOT” box in Step 1D
Revised list of drugs in Step 5A

15. Summary of Changes Urine Collection / Testing (continued)
Use of “old” / “new” CCF
“New” CCF authorized for use Jan 1, 2018
Continued use of old CCF authorized through June 30, 2018
No ‘memorandum for the record required’ through June 30, 2018 for use of “old” CCF
“New” CCF MUST BE utilized July 1, 2018

16. Summary of Changes MRO Verification Process
Clarification of the term “prescription”
Prescription (Rx) must be consistent with Controlled Substances Act (CSA)
MRO-ordered additional testing
Authorized without prior ODAPC consent
Meth false positives due to Rx/OTC meds
Illicit THC vs. Marinol

17. Summary of Changes MRO Rx Verification Process
MRO release of information – Medically unqualified / Significant safety risk
Step 1 – Verify test result
Step 2 - Initial MRO determination
MRO notifies employee of medically unqualified / significant safety risk
Step 3 - Five-days for prescribing physician to contact MRO
Employee facilitates contact

18. Summary of Changes MRO Rx Verification Process (continued)
MRO release of information – Medically unqualified / Significant safety risk (continued)
Step 4 – Prescribing physician statement to MRO
Step 5 – Possible employer notification
Based on outcome of Steps 1 - 4

19. Summary of Changes Other Minor Misc. Changes
Removal of outdated compliance dates
Minor editorial corrections
Update/revisions to weblinks
Revisions to Appendix items

20. Workplace Impact Policy Revisions – Change “opiate” to “opioid”
Remove (or edit) “breakdown” of 5-panel drug sub-categories
Remove (or edit) drug cut-off levels
Revise your “definitions” (if applicable)
ASD, EBT, SAP, DRUGS, USDOT

21. Workplace Impact
Policy Revisions – BEST PRACTICES (NOT REQUIRED BY USDOT)
If your policy currently has a section on Rx/OTC medication use
Update to address MRO determinations of “Medically Unqualified / Significant Safety Risk”
If your policy DOES NOT have a Rx/OTC medication use section
Consider adding a short paragraph

22. Workplace Impact OTHER BEST PRACTICES (NOT REQUIRED BY USDOT)
(continued)
Service Agent education
Summary of Regulatory changes
Make sure they have a copy of the revised regulation
Give them the link on how to sign-up for ODAPC’s List Serve
Require evidence that they actually signed up for ODAPC’s List-Serve

23. Workplace Impact “Medically Unqualified / Significant Safety Risk”
Final word is the MRO’s DISCRETION
What are the REAL implications?
Access to prescribing physician
Expiration of Rx
No recent contact to prescribing physician
What to do when/if you get the phone call
This is 100% employer’s determination (No USDOT regulation)
Unless USDOT - CDL medical standards apply

24. Workplace Impact “Medically Unqualified / Significant Safety Risk”
Employers should be pro-active in creating a “Fitness-for-duty/Wellness” policy (NOT A USDOT REGULATION)
Legal/Union/Collective Bargaining Concerns

25. Implications
MRO Approach To Decision Making Process Is Not Defined In the Regulation
MRO discretion based on medical judgement
ODPAC Guidance Forthcoming
MRO philosophy, assessment of liability and risk management practices will influence approach
Case-by-case determination

26. Implications Possible MRO Determinations
Silent—No safety risk, no employer knowledge, no employer action
Notification of safety issue—Employer action
Follow procedure for CDL standard violation if appropriate
Liability Considerations
Human Resource
Legal Considerations
Collective Bargaining

27. Best Practice Proactively Discuss Philosophy and Procedures with MRO
If MRO Philosophy Is Inconsistent with Employer Philosophy or Intent of Regulation, Identify New MRO
If MRO Is Unwilling or Unable to Perform This Function, Identify New MRO
Define MRO Safety Issue Notification Procedures, Documentation and Timeline
Negotiate Cost of MRO Safety Assessment

28. Implications
Employee Facilitation of Prescribing Physician/MRO Contact
Employees May Have Difficulty Accessing the Prescribing Physician In a Timely Manner
If More Than 5 Days Are Needed To Obtain an Appointment or Otherwise Get In Contact
The Prescribing Physician Is Unaware or Does Not Understand the Importance of the Contact
Employee Has Had No Recent Contact or Ongoing Relationship with the Prescribing Physician
Employee Does Not Know How to Facilitate the Contact Between the Physician and the MRO

29. Best Practice Assist Employees In Being Proactive
Educate Employees on Safety Risks of Rx
Provide A Summary of Regulatory Changes
ODAPC Notice
Review New/Revised Employer Policy
Define Process and Provide Guidance On How to Notify Prescribing Physician to Contact MRO

30. Best Practice Encourage Employees to Obtain Updated Rx
Current Rx Is More Than One Year Old
Rx States “Take As Needed” For An Injury That Is No Longer Being Treated By the Prescribing Physician
Employee Does Not Have an Ongoing Relationship with the Prescribing Physician
ER/Urgent Care or Doc-in-a-Box Physicians

31. Best Practice Encourage Employees to Obtain Updated Rx (cont.)
Revisit Treatment Options With Prescribing Physician for Chronic or Reoccurring Conditions To Minimize Safety Impacts While Not Compromising Medical Care
Encourage Employees Using Opioids to Discuss Dosing Option with Prescribing Physician
Timing
Dosage
Alternative Pain Management Options

32. Best Practices
Provide Employees with a Physician Rx Medical Authorization Form
Job Description Highlighting Safety-Sensitive Duties
Area for Prescribing Physician to Indicate Possible Safety Risks With Corresponding Restrictions, If Any
Notification that Prescribing Physician May Be Contacted By MRO If A Safety Concern Exists

33. Best Practices
Inform Applicants of Possible Prescribing Physician/MRO Contact Requirement
Provide Explicit Directions As Early on In the Hiring Process As Possible
Emphasize That a Valid Rx Does Not Necessarily Mean Disqualification.
Rx Is Only An Issue When It Rises to the Level of Safety Risk.

34. Implications Employer’s Response Not Defined
Assessment of Nature and Scope of Safety Risk
Short-term, Long-term, Permanent
Course of Action/Remedy
Monitoring Process and Revaluation
Medical Advisory and Decision Making Process
Employee Consequences And Due Process
Documentation, Record-keeping, and Confidentiality
Liability and Risk Management

35. Employer Challenge
Best Practice Is to Develop An Effective Rx Fitness-for-Duty Program
A program that minimizes the associated impairment risks of taking legally and illegally obtained prescription medications while performing transit–related, safety-sensitive functions

36. Best Practice Establish a Fitness-for-Duty Program Policy Consequences
Medical Review of Employees Deemed to be a Safety Risk
Procedures
Employee Education
Documentation, Reporting, Confidentiality

37. Questions?

38. Resources USDOT - ODAPC Resources
Final Rule:
Brief summary of changes:
CCF Notice:
Policy Notice:
Employee Notice:

39. Resources Other Resources
National RTAP Recorded Webinar (Part 40 Update):
National RTAP Recorded Webinar (Fitness For Duty):
A more in-depth look at key factors in developing a fitness-for-duty policy