1. Federal Transit Administration
2018 Tri-State Transit Conference
North Conway, NH
Federal Transit Administration
Drug and Alcohol Compliance Program
Joseph Lofgren, Cahill Swift, LLC
Senior Audit Team Leader
Room Welcome

2. Overview FTA’s Drug & Alcohol Compliance Auditing Program
Core, Ongoing, and Emerging Issues
Compliance Trends
2018 Part 40 (Updated Panel, etc.)
MRO Verification Process & Safety Concerns
Horizon
Overview

3. Audit Program & Current/Emerging Issues

4. The Omnibus Transportation Employee Testing Act
Passed by Congress in 1991
Established FTA’s authority for D&A
Directed DOT to
Implement testing for all modes
Implement strong safeguards
Require HHS-approved labs
Require split-specimen testing
Test in five circumstances

5. MAP-21 (2012) Established the Office of Safety Review
Volunteer Bus Review Program
State Safety Oversight
Drug and Alcohol
Emergency Preparedness

6. Lay of the Land 2017 MIS Data*: 608 Grantees 3320 Entities
311,064 Safety-Sensitive Employees 
98,412 Random Drug Tests (32% selection, 1.07% positive rate) 
55,240 Random Alcohol Tests (18% selection, 0.30% positive rate) 
13,020 Post-Accident Drug Tests (1.57% positive rate)
12,227 Post-Accident Alcohol Tests (0.20% positive rate)
*2017 data as of 3/15/2018

7. Safety Sensitive Employment (cy2017)

8. Safety Sensitive Employment (Tri-State, 2017)
Operators: 1,376
Dispatchers: 216
Maintenance: 146
CDL/Other: 5
Armed Security: 0
Ferry: 166
TOTAL: 1,909
Safety Sensitive Employment (Tri-State, 2017)

9. Collection Site Inspections
Audits
Collection Site Inspections
Newsletter
Training
Regulatory Guidance
Program Components

10. Core Issues Random testing Post-accident testing
Employee training / DER turnover
Collection site monitoring

11. Core Issue: Random Testing
Timely & Equitable Selections
Immediacy
Excusals
Deterrent Spread

12. Core Issue: Post-accident Testing
Misunderstanding Thresholds
Testing after Discounting
Documented Inconsistency
Immediacy

13. Core Issue: Training/Turnover
Employees: 1hr Training
Supervisor Training (PA/RS)
No Continuity Planning
Lack of Policy Understanding

14. Core Issue: Collection Site Monitoring
Basic errors
Fatal flaws
Unclear D.O. protocols
No relationship

15. Ongoing Issues Previous-employer checks (§ 40.25) § 40.25(j)
Employee Training
1hr Video Now Available!
YouTube: “FTA drug abuse awareness video”
eCCF
New CCF
Ongoing Issues

16. Multi-modal programs
USCG/FTA
FMCSA/FTA
FRA/FTA
Ongoing Issues

17. Ongoing Issues Consultants are Service Agents
Federal Register Notice August 8, 2016
(Part 40 definition clarified)
D&A Consultants are subject to audits / eligible for P.I.E.
May receive NOCA, NOPE
Ongoing Issues

18. Ongoing Issues State marijuana laws
Education about firm federal regulations necessary
Clarity in training is crucial
MRO commitment to Part 40 marijuana prohibitions
Ongoing Issues

19. Ongoing Issues Opioid testing implementation
Increased education and clarification from employers needed
Additional verification efforts for MROs
Opioid safety concerns
Ongoing Issues

20. Emerging Issues FTA’s 2017 Random Drug Testing Positive Rate…
Positive rate above 1% threshold (~1.06%)
Rate is national aggregate
§ (c)(2) requires rate increase
25% -> 50%
Data validation continues
Database closed 9/4
Emerging Issues

21. Coverage Issues Tribal Nation Funding
Audits & technical assistance to new recipients/sub-recipients
Many similarities to remote/rural providers
Transportation Network Companies

22. Compliance Trends

23. Compliance Trends: Policies
0.02 Alcohol Prohibition
FTA’s prohibition is 0.04
Self-referral -> “Substance Abuse Professional,” DOT RTD/FU, etc.
Reasonable suspicion for fights, possession

24. Compliance Trends: DAPM/DER
§ 40.25(j) requirements
Municipal stovepipes
Post-accident testing for unconscious/deceased employee
What to do w/ non-DOT CCF

25. Compliance Trends: Required Testing
Pre-employment: Communication
Reasonable Suspicion: Documentation
Post-accident: Over-testing, delay documentation
Random: Spreads, Spreads, Immediacy, and Spreads
RTD/FU: Missed tests

26. Compliance Trends: Legal
Coverage: DAPM/DER unaware of covered contractors
Policy: Inconsistent with other company/obtaining policies

27. Compliance Trends: Collection Sites
Instructions/Back of CCF
Collector completes the CCF out of order (Step 45 instead of… Step 54)
Collector dates bottle seals while on CCF
Collector does not secure enclosure
Collector does not observe employee during initial steps

28. Compliance Trends: TPAs
Rubber-stamping test results without quality-control on CCFs
Blurring line of responsibility by performing some MRO duties (prohibited)
Providing inaccurate regulatory guidance to industry

29. Compliance Trends: Medical Review
Weekends off
P.O. Box
SAP Access

30. Compliance Trends: SAPs
No initial report
Self-referral
6x12
Drug “and/or” alcohol

31. 2018 Testing Panel

32. 2018 Panel: What & When Marijuana | PCP | Cocaine
Amphetamines (AMP/MAMP, MDMA, MDA, MDEA)
Opiates (Codeine/Morphine, 6AM)
2017 testing panel
Amphetamines (AMP/MAMP)
MDMA, MDA (initial analyte), MDEA
Codeine/Morphine
6AM
Hydrocodone/Hydromorphone
Oxycodone/Oxymorphone
“iates”->”ioids”
Still a “five panel” test
Now (1/1/2018)
2018 Panel: What & When
*DHHS FR

33. 20042011:
ER visits for non-medical use of narcotic pain relievers up 153%
Opiates/Opioids up 183%*
Hydromorphone up 438%
Oxycodone up 263%
Hydrocodone up 100%+
2012 Workplace (non-federal) information showed synthetic positives second only to marijuana.
2018 Panel: Why
*DHHS FR

34. 2018 Part 40 – Other Changes Revised Shy Bladder Process
Discard original suspect specimen if shy bladder D.O. unsuccessful
New Fatal Flaws
(1) There is no CCF;
(2) two separate collections were performed using one CCF; and
(3) there was no specimen submitted to the laboratory with the CCF
Revised Stat Sums
To accord w/ new panels
No more blind specimens
2018 Part 40 – Other Changes

35. 2018 Part 40 – Other Changes (Continued)
NHTSA-approved ASDs and EBTs will appear on ODAPC’s website
Collectors, alcohol testing technicians, MROs, and Substance Abuse Professionals will be required to subscribe to ODAPC's list-serve
Unauthorized use of DOT-branded items (such as logos or emblems) on a service agent’s website, publications, etc. =
2018 Part 40 – Other Changes (Continued)

36. 2018 Part 40 – Other Changes (Continued)
Only urine specimens can be collected and analyzed at HHS-certified laboratories.
Explicit prohibition on the use of DNA testing on DOT drug-testing specimens (§40.153).
Substance Abuse Professional certification organizations moved from rule text to ODAPC website.
MIS instructions moved to ODAPC’s website.
2018 Part 40 – Other Changes (Continued)

37. 2018 Part 40 – Other Changes (Continued)
The term ‘prescription’ has been clarified;
Rxs must be “consistent with” Controlled Substances Act
MRO has authority to conduct D,L stereoisomer and THC-V testing
MRO’s safety-concern timing modified (more to come)
2018 Part 40 – Other Changes (Continued)

38. Safety Concerns

39. MRO Safety Concern: What it is
§ : When must the MRO report results and medical information gathered in the verification process?
(a) As the MRO, you must…report drug test results and medical information… if you determine, in your reasonable medical judgment, that:
(1) The information is likely to result in the employee being determined to be medically unqualified under an applicable DOT agency regulation; or
(2) The information indicates that continued performance by the employee of his or her safety-sensitive function is likely to pose a significant safety risk.
(b) The third parties to whom you are authorized to provide information by this section include the employer, a physician or other health care provider responsible for determining the medical qualifications of the employee under an applicable DOT agency safety regulation, a SAP… a DOT agency, or the National Transportation Safety Board…

40. MRO Safety Concern: What it is (continued)
§ : What does the MRO tell the employee at the beginning of the verification interview?
(e): You must also advise the employee that, before informing any third party about any medication the employee is using pursuant to a legally valid prescription consistent with the Controlled Substances Act, you will allow 5 business days from the date you report the verified negative result for the employee to have the prescribing physician contact you to determine if the medication can be changed to one that does not make the employee medically unqualified or does not pose a significant safety risk. If, in your reasonable medical judgment, a medical qualification issue or a significant safety risk remains after you communicate with the employee's prescribing physician or after 5 business days, whichever is shorter, you must follow § If, as the MRO, you receive information that eliminates the medical qualification issue or significant safety risk, you must transmit this information to any third party to whom you previously provided information under §

41. MRO Safety Concern: What it isn’t
New!
Only the 5-day allowance (prior to employer notification of Rx) is new
All other elements essentially obtain

42. MRO Safety Concern Policy Considerations: What was your policy before?
Discuss with counsel, representation

43. MRO Safety Concern FAQs: May not give MRO list of acceptable Rx
Does not extend Rx verification period
No… marijuana is not allowed…

44. On the Horizon

45. Upcoming/potential initiatives
Alternate Specimen Methods
Oral Fluids
Hair Testing
Clearinghouse
Rate Changes
Innovations from You!

46. Technical Assistance Iyon Rosario Volpe D&A Project Office
(202)
Volpe D&A Project Office
(617)
Cahill Swift D&A Team:
(617)