1. FTA DRUG & ALCOHOL PROGRAM NATIONAL CONFERENCE APRIL, 2011 DRUG & ALCOHOL PROGRAM MANAGER SEMINAR

2. WELCOME We are: FTA Drug & Alcohol Program Auditors George Gilpatrick & Joe Lofgren 2

3. WELCOME You Are: New Drug & Alcohol Program Managers (DAPMs) General Managers New DAPM Assistants Transitioning into/out of DAPM role Trainers 3

4. COURSE OVERVIEW  Subjects of Discussion: Regulation History and Overview Prohibitions & Testing Overview The DAPM Role and Management Theory Your Program’s Policy Records Management Internal Oversight DOT D&A Management Information System (MIS) Best Practices 4

5. SCHEDULE 5

6. GLOSSARY  Adulterated Specimen – A urine specimen containing a substance not expected to be present (at all or at a certain volume) in human urine  Alcohol Concentration - The alcohol in a volume of breath expressed in terms of grams of alcohol per 210L of breath  ATF - Alcohol Testing Form (the alcohol equivalent to the CCF)  BAT - Breath Alcohol Technician (Collector)  Canceled Test – A result that is neither negative nor positive  CCF - Custody & Control Form (Chain of Custody, or COC)  C/TPA – A service agent that provides/coordinates elements of your program  DAPM - Drug & Alcohol Program Manager (usually same as DER)  DER - Designated Employer Representative (usually same as DAPM) 6

7. GLOSSARY, CONTINUED  Dilute Specimen - A specimen with creatinine and specific gravity values that are lower than expected for human urine.  (US)DOT - Department of Transportation (in Washington, DC)  FTA - Federal Transit Administration (Part of DOT)  FU - Follow-up Testing  MRO – Medical Review Officer  ODAPC – DOT’s Office of Drug and Alcohol Policy & Compliance  RTD - Return to Duty Testing  SAP – Substance Abuse Professional  SS – Safety-sensitive  Verified Test - A drug test result or validity testing result from an HHS-certified laboratory that has undergone review and final determination by the MRO. 7

8. ICONOGRAPHY  Review and Check for Errors  Use Forms Here  Check your Policy  Training/Certification Important Common Mistake Time-sensitive Requirement 8

9. THE REGULATIONS 49 TH CODE OF FEDERAL REGULATIONS  PART 40  PART 655  PART 382 9

10. REGULATION HISTORY & OVERVIEW  Congress Found that: (1) alcohol abuse and illegal drug use pose significant dangers to the Nation; (2) The Nation's citizens depend on the operators to perform in a safe manner; (3) the greatest efforts must be expended to eliminate the abuse of alcohol and use of illegal drugs by operators; (4) the use of alcohol and illegal drugs has been proven to have been a critical factor in transportation accidents; (5) the testing of uniformed personnel of the Armed Forces has shown that the most effective deterrent is increased testing, including random testing; (6) adequate safeguards can be implemented to ensure privacy; (7) rehabilitation is a critical component of any testing program. 10 Public Law 102-143 (H.R. 2942)

11. REGULATION HISTORY & OVERVIEW, CONT. October ‘91 Omnibus Transportation Employee Testing Act 93% combined vote Covers more than 12m employees February ‘94 FTA Adopts 49 CFR Parts 653 & 654 Compliance Required by 1/1/95 (Large Operators), or 1/1/96 (Small Operators) 11

12. REGULATION HISTORY & OVERVIEW, CONT. March ‘97 FTA Drug & Alcohol Program Audits Begin August ‘01 49 CFR Part 40 Updated FTA Combines Parts 653 & 654 into Part 655 12

13. REGULATION HISTORY & OVERVIEW, CONT. 2008 49 CFR Part 40 Updated Mandatory Direct Observation for RTD/FU 2009 FTA Clandestine Collections Program Begins 2010 DHHS Updates Testing Protocols, Adds MDMA 49 CFR Part 40 Updated 13

14. KEY SECTIONS – PART 655 § Definitions – 655.4 § Prohibited Drug Use – 655.21 § Prohibited Alcohol Use – 655.31-35 § Pre-employment Testing – 655.41-42 § Reasonable Suspicion Testing – 655.43 § Post-accident Testing – 655.44 § Random Testing – 655.45 § Return-to-Duty/Follow-up Testing – 655.46-47 § Retention of Records – 655.71 § MIS Reporting – 655.72 14

15. KEY SECTIONS – PART 40 § Definitions – 40.3 § Employer Responsibilities – Subpart B § 40.11-40.29 § The Verification Process – Subpart G § 40.121-40.169 § The Return-to-Duty Process – Subpart O § 40.281-40.313 § Role/Responsibilities of Service Agents – Subpart Q § 40.341-40.355 15

16. PROHIBITIONS & TESTING OVERVIEW DRUG USE, ALCOHOL ABUSE, AND FEDERAL TESTING 16

17. PROHIBITED DRUGS  The “NIDA 5” Marijuana Cocaine Amphetamines (w/ MDMA) Opiates Phencyclidine (PCP)  Use of these substances is prohibited at all times  Prohibitions may be added (over-the-counter, Rx, etc.) 17 Cutoff Concentrations for Initial & Confirmation Tests

18. THE DRUG TESTING PROCESS 18

19. PROHIBITED ALCOHOL USE  Covered Employees may not use alcohol: While performing a safety-sensitive function Within four (4) hours of beginning the performance of a safety-sensitive function Within eight (8) hours after an accident (or until a post- accident alcohol test has been performed) While on Call* * The employee must be given the opportunity to acknowledge the use of alcohol at the time of notification. 19

20. ALCOHOL TESTING  Devices approved by NHTSA Evidential Breath Testing Machine (EBT) Prints Result Only device that can be used for confirmation test Alcohol Screening Device Does not print result Approved by NHTSA, but cannot be used for confirmation testing Saliva Testing Strip most common 20

21. ALCOHOL TESTING PROCESS 21

22. THE FIVE TYPES OF FTA TESTING  Pre-Employment Before 1 st performance of SS Function After 90+ day absence (never a RTD!)  Random Deters use among community; Must be unpredictable  Post-Accident FTA testing after serious accidents  Reasonable Suspicion Specific, articulable reason for testing  Return-to-Duty/Follow-up Only after a positive/refusal, and after SAP referral 22

23. THE DRUG & ALCOHOL PROGRAM MANAGER  YOUR ROLE AS DEFINED BY THE REGULATIONS  YOUR ROLE WITHIN YOUR ORGANIZATION  THE SCOPE OF YOUR FUNCTION 23

24. 49 CFR PART 40 & THE DER (DAPM) Part 40 Defines the Designated Employer Rep as: Part 40 Also Notes that: 24 “An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes.” “The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents [TPAs, MROs, SAPs, Collectors/BATs] cannot act as DERs.”

25. YOU & YOUR ORGANIZATION  Distance to Safety-Sensitive Personnel  Can you meet DOT’s requirement to “remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties…?”  Safety-sensitive Roster (“Pool”) Awareness  Do you know before each draw who is currently SS?  Are you linked into Payroll, Operations, or Human Resources?  Do you know who your covered contractors are? Are you Plugged In? 25

26. THE THINGS YOU’LL DO Pre-employment ProcessingPolicy & TrainingRandom TestingPost-Accident TestingReasonable Suspicion TestingReturn-to-Duty TestingFollow-up TestingVendor Monitoring 26

27. PRE-EMPLOYMENT PROCESSING §655.41(A)(1): “BEFORE ALLOWING A COVERED EMPLOYEE OR APPLICANT TO PERFORM A SAFETY-SENSITIVE FUNCTION FOR THE FIRST TIME, THE EMPLOYER MUST ENSURE THAT THE EMPLOYEE TAKES A PRE- EMPLOYMENT DRUG TEST ADMINISTERED UNDER THIS PART WITH A VERIFIED NEGATIVE RESULT.” 27

28. THE PRE-EMPLOYMENT TEST  Contingent upon offer  Negative result must be in hand prior to SS duty  Pre-employment Alcohol Testing  You may choose to do this  (it’s an IQ test!)  If you do, you must do it with Federal forms, and for all SS applicants/employees.  If SS emp is away 90+ days, and out of random testing pool, perform a pre-employment test! 28

29. BACKGROUND CHECKS  49 CFR Part 40 Section 25 requires Backgrounds  Make your requests under 40.25, not 382!  SS employers from last 2 years  Within 30 days of hire  You must ask the employee:  “have you, in the last two years, failed or refused a DOT pre- employment test?”  You must ask this because, had he failed/refused, you would have no employer of whom to make the above request!  You must return requests made of you 29

30. P.E.T.E.R. The Pre-employment Testing Exemption Request  Contact Jerry Powers if:Jerry Powers You are absorbing another entity or being absorbed by another entity Changes to your company are administrative only Pre-employment negatives are available for all employees 30

31. Compliance Dissemination Training POLICY & TRAINING 31

32. YOUR POLICY  Check compliance annually  49 CFR Part 40 changed in October of 2010 – have you updated your policy?  Do you have a model policy?  Make sure it’s localized!  Make sure your Board/GM knows!  Disseminate & Explicate  Your job is to help employees get it!  Get a receipt from each employee (it’s proof!) 32

33. TRAINING  60 min of Training for each Safety-sensitive Employee – Effects of Drug Use  120 min of Training for each Supervisor authorized to make Reasonable Suspicion Determinations: 60 min on Drug Use 60 min on Alcohol Use  Training Video is available free from FTA  There is no official certification for this: self-certify! 33

34. RANDOM TESTING DETER, DETECT, DETER §655.45(F): “THE EMPLOYER SHALL RANDOMLY SELECT A SUFFICIENT NUMBER OF COVERED EMPLOYEES FOR TESTING DURING EACH CALENDAR YEAR TO EQUAL AN ANNUAL RATE NOT LESS THAN THE MINIMUM ANNUAL PERCENTAGE RATES FOR RANDOM DRUG AND ALCOHOL TESTING DETERMINED BY THE ADMINISTRATOR.” 34

35. RANDOM TESTING  Determine your draw period  Cannot be less frequent than quarterly  Determine your rate (FTA Minimum is 25%/10%)  A percentage of the number of safety-sensitive staff you employ throughout the year, on average  You can test at a higher rate  Your policy should indicate your rate 35

36. THE RANDOM DRAW (OR “PULL”)  This year, you must test 25%/10% of the  average number of safety-sensitive employees  An example: Q1: 336 SS emps Q2: 342 SS emps Q3: 361 SS emps Q4: 341 SS emps  Average  (1380/4)=345 (this is the # of emps for MIS);  Test for Drug: 25% = 86.25 (87+ tests  22/q)  Test for Alcohol: 10% = 34.5 (35+ tests  9/q) 36

37. RANDOM TESTING POOLS Keep your roster up to date Use payroll, log, or other consistent mechanism US DOT covered employees only! Get this info to your C/TPA (as applicable) on time Ensure that your C/TPA gets it back to you! 37

38. RANDOM TESTING POOLS CONTINUED  C/TPA:  A Consortium/Third Party Administrator assists in the maintenance and application of your testing program  A consortium is made up of independent systems who combine their safety- sensitive pools into one larger pool.  A consortium must perform random testing selections at the highest applicable minimum rates 38

39. RANDOM TESTING & THE TPA  A Third Party Administrator may perform numerous functions:  Random Selection  MRO Services  Collection Sites/Collection Site Oversight  Records Maintenance & Retention  A TPA may not: Transmit Laboratory Reports from the Lab to the MRO Transmit Alcohol Results of 0.02 + from BAT to Employer 39

40. RANDOM TESTING CONTINUED  Selection Lists must be securely maintained (2yrs+)  Locked cabinet, minimal distribution  Secure fax line, email, etc.  Notification of Random Testing  Chain of Notification (Supervisors? Dispatchers?)  Who ensures spreading of random tests?  Constraints on random alcohol testing You may only perform random alcohol testing just before, during, or just after safety-sensitive duties. 40

41. RANDOM TESTING CONTINUED - IMMEDIACY  Section 655.44(h) states that  Each employer must decide how much time a notified employee has to report for testing.  An employee’s failure to arrive at the collection site in the allotted time constitutes a Refusal to Test. **Refusals Are Positive Tests!** 41 “Each employer shall require that each covered employee who is notified of selection for random drug or random alcohol testing proceed to the test site immediately.”

42. RANDOM TESTING CONTINUED - SPREAD Random Testing must be spread: Throughout the Year Throughout the Week Throughout All Hours of Safety-Sensitive Duty  Spread may be proportional; it is not an even spread  The goal of spreading tests is to increase deterrence through unpredictability 42

43. RANDOM TESTING CONTINUED Random Testing Result Processing 1.You should receive the employer copy of the CCF/ATF within two (2) days of the test 2.You should receive a result from the MRO/TPA within a few business days  Do Not assume that “no news is good news”  Keep track of results due, chase them down if necessary 43

44. POST-ACCIDENT TESTING TRAINING, ANALYSIS, TIMELINESS §655.44: “AS SOON AS PRACTICABLE FOLLOWING AN ACCIDENT… AN EMPLOYER SHALL CONDUCT DRUG AND ALCOHOL TESTS ON EACH COVERED EMPLOYEE OPERATING THE MASS TRANSIT VEHICLE AT THE TIME OF THE ACCIDENT.” 44

45. POST-ACCIDENT TESTING  Training  Who 1.You, as the program manager, should be familiar with all aspects of the Federal Requirements 2.Road Supervisors, as the primary on-scene decision makers 3.Other supervisors/dispatchers/managers 45

46. POST-ACCIDENT TESTING CONTINUED Post-Accident Testing Thresholds 1.The event must be “associated with the operation of a vehicle” 2.The event must have resulted in one or more of the following conditions: 46

47. POST-ACCIDENT TESTING CONTINUED 47 FATALITY Always Test All Operators Other SS Emps INJURY Treatment Away from Scene Best Available Info Other SS Emps DISABLING DAMAGE Any Vehicle Best Available Info Other SS Emps *Removed from service * Applies to fixed-rail vehicles only!

48. POST-ACCIDENT TESTING CONTINUED “Best Available Info”  You’re not psychic (probably)  “At the Scene” means… “at the scene” (not: later…) 48 nikscott.com

49. POST-ACCIDENT TESTING CONTINUED  SO:  If you document: “they’re ok now,” then… they’re ok now  If you document: “he had nothing to do with it,” then… he had nothing to do with it  FTA Will Back You Up  One of the most common audit findings is:  Post-Accident Over-Testing 49

50. POST-ACCIDENT TESTING CONTINUED Who to test after:  A fatality, each surviving covered employee operating the mass transit vehicle at the time of the accident, as well as any other covered employee whose performance could have contributed to the accident, as determined by the employer using the best information available at the time of the decision 50

51. POST-ACCIDENT TESTING CONTINUED  Who to test after:  An accident not involving the loss of human life, each covered employee operating the mass transit vehicle… unless the employer determines, using the best information available at the time of the decision, that the employee’s performance can be completely discounted The employer shall also drug and alcohol test any other covered employee whose performance could have contributed to the accident 51

52. POST-ACCIDENT TESTING - DISCOUNTING A note on Discounting:  Auditors find that inability to discount is frequently used in-and-of itself as a threshold (i.e., a reason to test)  Supervisors also commonly discount in report narrative, then check “can’t discount” on a PA decision form  A helpful way to think through non-fatal accidents is to invert the process hierarchy: 52

53. POST-ACCIDENT TESTING - DISCOUNTING 53 Non-Fatal Event Discount Employee Threshold Not Applicable NO TEST, or Non-FTA Test Can’t Discount Employee Threshold Met: Injury/Dis-D YesFTA TestNo NO TEST, or Non-FTA Test

54. POST-ACCIDENT TESTING CONTINUED  More on Thresholds:  Injured parties must receive medical attention away from the scene of the accident  Assistance on-the-scene from EMS does not count  Disabling damage can occur to the transit vehicle or to a privately-owned vehicle  Disabling damage (§655.4) does not include: Damage that can be remedied temporarily at the scene Tire disablement without other damage Headlamp or tail light damage Damage to turn signals, horn, mirrors or windshield wipers 54

55. POST-ACCIDENT TESTING CONTINUED  Key Time-frames in Post-Accident Testing Alcohol Testing:  Should be conducted within two (2) hours of accident  If not, you must document reason for delay  If more than eight (8) hours pass, you must cease attempts to conduct test and update documentation Drug Testing:  Must be conducted within 32 hours of accident Medical Treatment/Accident Resolution comes first 55

56. POST-ACCIDENT TESTING CONTINUED  Putting it together:  Use forms  Use FTA’s cards (http://transit- safety.fta.dot.gov/publications)  Results from other State, Local, or Federal authorities (if you were not able to get a test done)  Back to service?  Some systems return their employees to service right away, some wait until a test result comes back… 56

57. BREAK 57

58. REASONABLE SUSPICION TESTING §655.43(A): “AN EMPLOYER SHALL CONDUCT A DRUG AND/OR ALCOHOL TEST WHEN THE EMPLOYER HAS REASONABLE SUSPICION TO BELIEVE THAT THE COVERED EMPLOYEE HAS USED A PROHIBITED DRUG AND/OR ENGAGED IN ALCOHOL MISUSE.” 58

59. REASONABLE SUSPICION TESTING  Only a trained supervisor may make a reasonable suspicion determination  Only one (1) supervisor is required  You can require that two or more are present, but the initiating supervisor must make “final call”  Training must meet the requirements of §655.43 and §655.14(b)(2) 60 minutes on observable signs of drug use 60 minutes on observable signs of alcohol misuse  It’s up to you to decide who is a “supervisor” 59

60. REASONABLE SUSPICION TESTING CONT.  Reasonable Suspicion Testing must be based on “specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the covered employee (§655.43(b)).”  No anonymous tips  No “gut feelings”  An accident is not a symptom  (it may trigger an interview) 60

61. REASONABLE SUSPICION TESTING CONT. Common observations include: Bloodshot, glassy, or dilated eyes Slurred or unusually mumbled/stuttered speech Unusual or erratic gait Unusually combative or garrulous 61

62. REASONABLE SUSPICION TESTING CONT.  Reasonable suspicion alcohol testing may only be performed if the observation is made:  “during, just preceding, or just after the period of the workday that the covered employee is required to be in compliance with this part (§655.43(c)).” 62

63. REASONABLE SUSPICION TESTING CONT. Key Time-frame in Reasonable Suspicion Testing Alcohol Testing:  Should be conducted within two (2) hours of determination  If not, you must document reason for delay  If more than eight (8) hours pass, you must cease attempts to conduct test and update documentation 63

64. REASONABLE SUSPICION TESTING CONT. Documentation relating to reasonable suspicion determinations must be maintained for two (2) years (§655.71(c)). Use forms! Remember to maintain documentation relating to reasonable suspicion training as well 64

65. REASONABLE SUSPICION TESTING CONT. Back to service? Some systems return their employees to service right away, some wait until a test result comes back… 65

66. RETURN-TO-DUTY TESTING §655.46: “WHERE A COVERED EMPLOYEE REFUSES TO SUBMIT TO A TEST, HAS A VERIFIED POSITIVE DRUG TEST RESULT, AND/OR HAS A CONFIRMED ALCOHOL TEST RESULT OF 0.04 OR GREATER, THE EMPLOYER, BEFORE RETURNING THE EMPLOYEE TO DUTY TO PERFORM A SAFETY- SENSITIVE FUNCTION, SHALL FOLLOW THE PROCEDURES OUTLINED IN 49 CFR PART 40 [SUBPART O].” 66

67. RETURN-TO-DUTY TESTING Part 40, Subpart O outlines the duties of the Substance Abuse Professional (SAP) and the return-to-duty and follow-up testing processes. 67 Dr. Katz, ©1995-1999 Comedy Central

68. RETURN-TO-DUTY TESTING The return-to-duty cycle is comprised of three main parts: 68 Referral, Initial SAP Evaluation & Recommendation Follow-up Evaluation & Recommendation Return-to-Duty Test w/ Negative Result

69. RETURN-TO-DUTY TESTING CONTINUED  Referral – after a DOT violation, you refer the employee to a qualified SAP  The SAP must meet the requirements of §40.281:  (a) Credentials (Social Worker, Counselor, Psych, etc.)  (b) Knowledge of Part 40, and experience in the diagnosis and treatment of related disorders  (c) Qualification training (a test) pursuant to this Part  (d) Continuing education (12 CEUs per 3 years)  SAPs are NOT “certified” by DOT! 69

70. RETURN-TO-DUTY TESTING CONTINUED  Initial Evaluation and Recommendation:  SAP interviews the employee and recommends a course of education and/or treatment  SAP must always recommend some kind of education and/or treatment  Neither you nor the employee may seek a “2 nd opinion”  You must receive and maintain a copy of this report 70

71. RETURN-TO-DUTY TESTING CONTINUED  Follow-up Evaluation and Recommendation:  SAP interviews employee after education/treatment has begun  You must receive and maintain a copy of this report SAP decides to release for return-to-duty test Only the employer may decide “fitness for duty” The employee can not return to safety-sensitive duty until you are in receipt of RTD negative(s) 71

72. FOLLOW-UP TESTING §655.47: “AN EMPLOYER SHALL CONDUCT FOLLOW-UP TESTING OF EACH EMPLOYEE WHO RETURNS TO DUTY, AS SPECIFIED IN 49 CFR PART 40, SUBPART O.” §40.309(A): “AS THE EMPLOYER, YOU MUST CARRY OUT THE SAP'S FOLLOW-UP TESTING REQUIREMENTS. YOU MAY NOT ALLOW THE EMPLOYEE TO CONTINUE TO PERFORM SAFETY-SENSITIVE FUNCTIONS UNLESS FOLLOW-UP TESTING IS CONDUCTED AS DIRECTED BY THE SAP.” 72

73. FOLLOW-UP TESTING CONTINUED  Substance Abuse Professional determines the number and frequency of follow-up tests  SAP must require at least 6 tests in the first year  SAP may not prescribe “at least 6 tests” - the number must be fixed  Tests will be drug, alcohol, or both  Testing may only continue for 60 months (5 years) 73

74. FOLLOW-UP TESTING CONTINUED  SAP may front-load or taper the frequency  For example:  1 test per month for the first 6 months, then 1 test every other month for an additional 12 months  1 test every other month for the first 12 months, then 1 test per month for 12 months  SAP may review and modify the follow-up testing plan, as necessary 74

75. FOLLOW-UP TESTING CONTINUED  SAP is the sole determiner of the number and frequency of follow-up tests, DAPM must actually schedule the tests  Like random testing: unannounced and unpredictable  You may not substitute other tests for these tests  You may not go above and beyond the SAP’s plan  SAP’s follow-up testing plan “follows” the employee to any other DOT-reg’d employer 75

76. MORE ON YOUR POLICY §655.12: “AN ANTI-DRUG USE AND ALCOHOL MISUSE PROGRAM SHALL INCLUDE THE FOLLOWING: (A) A STATEMENT DESCRIBING THE EMPLOYER’S POLICY ON PROHIBITED DRUG USE AND ALCOHOL MISUSE IN THE WORKPLACE, INCLUDING THE CONSEQUENCES ASSOCIATED WITH PROHIBITED DRUG USE AND ALCOHOL MISUSE…” 76

77. MORE ON YOUR POLICY  Your policy must:  Be adopted by the local governing board or entity  Identify you, the DAPM, by name or position  Include specific prohibitions, and the consequences of violating those prohibitions  Offset clearly any elements that are included under local authority  Must list each refusal condition defined by Part 40 77

78. POLICY – REFUSAL CONDITIONS  Failure To:  Appear at all, or in a timely manner*  Remain until the testing process is complete**  Provide a sample**  Provide a full sample w/o medical reason  Undergo a medical evaluation  Cooperate w/ any part of the process  Permit monitoring/observation  Take a second test, as ordered  Sign step 2 of the Alcohol Testing Form  The submission of a verified adulterated/substituted test 78 * Not a refusal for pre-employment testing **Not a refusal for pre-employment testing, provided testing has not yet begun

79. POLICY – REFUSAL CONDITIONS CONT.  On August 25, 2008, the following refusals were added (§40.191(a)(9-10)):  The possession or wearing of a prosthetic or other device that could be used to interfere with the collection process  Failure to follow an observer’s instructions to raise/lower clothing and underpants, and to turn around to permit the observer to ascertain the presence/absence of interfering paraphernalia  Admission to the collector/MRO of adulteration or substitution 79

80. LOCAL POLICY DECISIONS Decisions you must make locally:  “2 nd Chance” Policy  Negative-Dilute Policy  A second negative-dilute is always negative  You must treat all employees the same  You may have different policies for different test types 80

81. LOCAL POLICY DECISIONS  Pre-employment Alcohol Testing  If you do this, you must do it for all SS applicants/employees.  Random Testing Rate  Currently: o 25% or more must be tested for drug use o 10% or more must be tested for alcohol misuse 81

82. LOCAL POLICY DECISIONS  Which groups of employees are safety-sensitive  Dispatchers?  Volunteers?  Security?  Supervisors?  Management? 82

83. §655.71(a): “General requirement. An employer shall maintain records of its anti-drug and alcohol misuse program as provided in this section. The records shall be maintained in a secure location with controlled access.” 83 RECORDS MANAGEMENT  Pre-Employment  Random  Post-Accident  Reasonable Suspicion  RTD/Follow-up  Training Records  Vendor Certs

84. PRE-EMPLOYMENT PREVIOUS EMPLOYER (BACKGROUND) CHECKS PRE-EMPLOYMENT NEGATIVE DATE OF SAFETY-SENSITIVE SERVICE 90-DAY SAFETY-SENSITIVE WINDOW 84

85. BACKGROUND CHECKS  Make the request per §40.25  A request form can be found at: www.dot.gov/ost/dapc/documents.html  You may verbally ask if they’ve failed/refused a regulated pre-employment test (§40.25j)… but it’s better to document it  Employee may not continue to perform safety-sensitive functions for more than 30 days without documentation of efforts to obtain this info 85

86. BACKGROUND CHECKS CONTINUED  As the employer from whom this information is requested, you must, “after reviewing the employee's specific, written consent, immediately release the requested information to the employer making the inquiry.” (§40.25(h))  Information you obtained from a previous employer shall be included with the information you forward to the requesting employer  Records related to this request must be maintained for three years (§40.333(a)(2)) 86

87. NEGATIVE RESULT You may not use the employee in safety-sensitive service until you are in receipt of a verified negative  Non-safety-sensitive training, orientation, etc. is fine  A canceled test must be made up  You must maintain this negative result for at least one year  Most choose to maintain this through emp’s period of service 87

88. SERVICE PERIODS  If: more than 90 days pass after your receipt of a verified negative pre-employment result, and the applicant/employee is not yet in the random testing pool, then  Another pre-employment negative must be received prior to service (never a return-to-duty!)  For records-analysis purposes, it is recommended to keep track of the date an employee/applicant enters into safety-sensitive service (as opposed to a payroll “hire” date 88

89. QUESTIONS OPEN Q&A FOR:  PRE-EMPLOYMENT TESTING 89

90. RANDOM TESTING ROSTERS, POOLS, & SELECTION LISTS YOUR TESTING RATE IMMEDIACY THE DETERRENT SPREAD TEST RESULTS SELF-AUDITING 90

91. THE SELECTION PROCESS  Employees in selection roster (or “pool”) must match the categories covered in your policy  Consistent system for updating your roster Use a consistent source for updates Either make your updates instantly (e.g., upon hire/term) or make updates prior to each and every draw  If a TPA performs your draws, make sure you update their list before the draw  Selections must be scientifically valid 91

92. THE SELECTION PROCESS CONTINUED  Remember!  If employee is out of service for 90+ days, and is out of your random testing pool during that period: You must be in receipt of a verified negative pre- employment test prior to their return to service Again, not a Return-to-Duty test!  Yes, you can leave an employee in the pool, even if they’re not working…  If that employee is selected for testing, and they do not return to service during the current selection period (month, quarter, etc.), simply record the reason the test was not performed, and move on 92

93. YOUR TESTING RATE  The Current FTA testing rates are as follows:  Drug Testing: 25% | Alcohol Testing: 10%  Updated rates for all industries can be found at http://www.dot.gov/ost/dapc/rates.html http://www.dot.gov/ost/dapc/rates.html  Joint FTA/FMCSA Pools must test at higher rate (50%)  You may test above 25% and 10%  These are the minimum testing rates  A note on your policy: You must change and disseminate only if you specifically note the Fed rate as 50% 93

94. YOUR TESTING RATE CONTINUED §655.45(b): §655.45(c)(1): 94 “… Each year, the Administrator will publish in the Federal Register the minimum annual percentage rates for random drug and alcohol testing of covered employees. ” “When the minimum annual percentage rate for random drug testing is 50 percent, the Administrator may lower this rate to 25 percent of all covered employees if the Administrator determines that the data received under the reporting requirements of section 655.72 of subpart H for the two preceding consecutive calendar years indicate that the reported positive rate is less than 1.0 percent.”

95. YOUR TESTING RATE CONTINUED The testing rate reflects a percentage of the number of employees in your pool, not a percentage of the individuals in your pool. So: Some employees may get tested more than once, Some employees may not get tested at all 95

96. IMMEDIACY & THE NOTIFICATION PROCESS §655.45(h) states: Furthermore: 96 “Each employer shall require that each covered employee who is notified of selection for random drug or random alcohol testing proceed to the test site immediately.” “If the employee is performing a safety-sensitive function at the time of the notification, the employer shall instead ensure that the employee ceases to perform the safety-sensitive function and proceeds to the testing site immediately.”

97. IMMEDIACY & THE NOTIFICATION PROCESS  You/supervisors must be cognizant of your local policy for immediacy  If you escort employees, this is of course less of an issue  A notification form does all the work for you!  It tells the employee why they’re being tested  It verifies the date and time of notification  It verifies the date and time of the employee’s arrival to the testing site 97

98. THE DETERRENT SPREAD OF TESTING §655.45(g) states: So, what do random spreads look like? 98 “Each employer shall ensure that random drug and alcohol tests conducted under this part are unannounced and unpredictable, and that the dates for administering random tests are spread reasonably throughout the calendar year. Random testing must be conducted at all times of day when safety-sensitive functions are performed.”

99. YEAR-SPREAD - GOOD 99

100. YEAR-SPREAD – NOT SO GOOD 100

101. YEAR-SPREAD – BAD! 101

102. THE DETERRENT SPREAD  Spread testing throughout days & hours of Service  FTA stressed this in a ‘98 interpretation:  What do week/hour spreads look like? 102 “A grantee's drug and alcohol program manager must schedule random testing for any time a safety-sensitive function is being performed. In addition, random testing must occur throughout the period when safety- sensitive functions are being performed. Employees performing safety- sensitive functions after normal business hours or on the weekends remain subject to random testing. The fact that random testing during "off hours" may be an administrative inconvenience is not an acceptable reason not to test.” (Casper ‘98)

103. WEEK-SPREAD - GOOD 103

104. WEEK-SPREAD – NOT SO GOOD 104

105. WEEK-SPREAD – BAD! 105

106. HOUR-SPREAD - GOOD 106

107. HOUR-SPREAD – NOT GOOD 107

108. THE DETERRENT SPREAD  Remember:  The spread is proportional to service  Alcohol Testing may only be performed Just before safety-sensitive duty During safety-sensitive duty Just after safety-sensitive duty  Drug testing may be performed at any time  If only one employee works on Sundays, and that employee is not selected for testing, then it’s fine to not test on Sunday during that period 108

109. RANDOM TESTING RESULTS  Make sure results are coming in a timely fashion  Don’t assume “no news is good news”  Develop a results-tracking system  Maintain negative results for at least 1 year  All positive results must be maintained for 5 years  Random testing selection lists must be maintained (securely) for at least 2 years 109

110. RANDOM TESTING – SELF AUDIT  Three questions to ask yourself: 1.Who was sent for testing? When selected? What safety-sensitive function? Selected (and tested) for drugs, alc, or both? 2.When did they go for testing? During the period in which they were selected? At an optimally deterrent time? Immediately upon notification? 110

111. RANDOM TESTING – SELF AUDIT CONT. 3.Is the test complete? Did you receive your copy of the CCF/ATF? Did you receive a result in a timely fashion? Did you take action, if necessary? Did you record and file the complete testing event?  During an audit, we would look for: o A selection list o A notification form o A CCF/ATF o A result 111

112. QUESTIONS OPEN Q&A FOR:  RANDOM TESTING 112

113. LUNCH 113

114. POST-ACCIDENT TESTING ACCIDENT REPORTS DECISION-MAKING DOCUMENTATION CCFS/ATFS RESULTS 114

115. ACCIDENT REPORTS  The Reporting Chain  Street supervisors?  Drivers only?  You?  Date & Time of Accident  Disposition of Individuals  Fatalities  Injuries requiring medical treatment away from the scene 115

116. ACCIDENT REPORTS CONTINUED  Disposition of Vehicles  Any vehicle receives disabling damage (i.e., gets towed)  Event narrative  While you might not maintain accident reports yourself, make sure you have access 116

117. DECISION-MAKING DOCUMENTATION  Use a form, you’ll be very glad!  Guide the decision-maker: Threshold(s) met Other employees Discounting Timing  Time of Accident, Time of Alcohol Test, Time of Drug Test  Delay-related notes  This documentation must be maintained for 2 years 117

118. POST-ACCIDENT TESTS/RESULTS  Check the CCF & ATF when they come in Alcohol test should be first!  Test Results: Did they come in a timely fashion? Action taken, as necessary? If you were unable to complete a test, were you able to obtain a result from another local, State, or Federal authority? (§655.44(f)) Did you record and file a complete testing event? 118

119. QUESTIONS OPEN Q&A FOR:  POST-ACCIDENT TESTING 119

120. REASONABLE SUSPICION WHO MAKES THE CALL CONTEMPORANEOUS, ARTICULABLE OBSERVATIONS ALCOHOL TESTING, AND TIME FRAMES 120

121. WHO MAKES THE CALL  Trained supervisors only  One hour of training on the signs and symptoms of drug use, and one hour of training on the signs and symptoms of alcohol misuse  Only one supervisor is required, though you may seek additional presence  Keep training curricula, sign-in sheets, certs  At least two years 121

122. OBSERVATIONS & THE INTERVIEW  Test can only take place after an interview in which a trained supervisor documents:  “specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the covered employee.” (§655.43(b))  Anonymous/Phone tips are not reasons to test, but anything can trigger an interview  Observation must be made just before, during, or just after safety-sensitive duty 122

123. ALCOHOL TESTING, AND TIME FRAMES Testing must be performed as soon as the decision to test is made Reasonable Suspicion Alcohol Testing:  2hrs, document  8hrs, cease attempts, update documentation  Alcohol testing before drug testing, if applicable 123

124. QUESTIONS OPEN Q&A FOR:  REASONABLE SUSPICION TESTING 124

125. RETURN-TO- DUTY/FOLLOW-UP EVENT NARRATIVE & CHRONOLOGY RETURN-TO-DUTY TESTING FOLLOW-UP TESTING 125

126. EVENT NARRATIVE & CHRONOLOGY Records related to a positive or refusal should clearly detail circumstances, actions, and outcomes Initial testing event Immediate Action Policy and Consequences SAP Referral 126

127. NARRATIVE & CHRONOLOGY Initial testing event Reason for the test Notification dates/times Related documents CCFs/ATFs Test Results MRO Correspondence Immediate Action Action Taken (e.g., Removal from Duty) Internal Correspondence 127

128. NARRATIVE & CHRONOLOGY Policy and Consequences Terminated Second Chance  A good time to check that you have a policy receipt SAP Referral Record of the referral You must make this referral even if you have a zero-tolerance policy! 128

129. NARRATIVE & CHRONOLOGY  SAP Reports & Documents  Make sure you’re always getting these three items from the SAP: 1.Initial Evaluation w/ Treatment/Education Recommendation 2.Follow-up Evaluation, with SAP’s disposition 3.Follow-up Testing Plan (employee can not see this!)  You must maintain these reports and associated documents for five (5) years (§40.333(iv)) 129

130. THE RETURN-TO- DUTY PROCESS  The SAP will tell you in the follow-up disposition report if they feel that the employee is ready to take a return-to- duty test  A Fitness-for-Duty determination must be made locally – SAP can not make this call for you  The SAP will decide weather the RTD test is for drugs, alcohol, or both – not up to you  You must be in receipt of a verified negative test before employee returns to service 130

131. FOLLOW-UP TESTING  Must be conducted per SAP’s plan  Must be spread out, unpredictable, and immediate  Employee remains in the random testing pool  A random test can not be a substitute for a follow-up test, nor can any other test be a substitute for a follow-up test.  If you hire an employee who has not completed their SAP’s plan, you must see it through 131

132. QUESTIONS OPEN Q&A FOR:  POSITIVE TESTS  RETURN-TO-DUTY & FOLLOW-UP TESTING 132

133. TRAINING EMPLOYEE TRAINING SUPERVISOR TRAINING 133

134. EMPLOYEE TRAINING  60 min. on the effects and consequences of prohibited drug use (all ss emps)  60 min. on the indicators of drug use & 60 minutes on the indicators of alcohol misuse (supervisors)  Training only needs to take place once  Many employers do frequent refresher training  Documentation must be maintained for 2 years 134

135. VENDOR CERTIFICATIONS §40.15(B) STATES: “AS AN EMPLOYER, YOU ARE RESPONSIBLE FOR ENSURING THAT THE SERVICE AGENTS YOU USE MEET THE QUALIFICATIONS SET FORTH IN THIS PART (E.G., §40.121 FOR MROS). YOU MAY REQUIRE SERVICE AGENTS TO SHOW YOU DOCUMENTATION THAT THEY MEET THE REQUIREMENTS OF THIS PART (E.G., DOCUMENTATION OF MRO QUALIFICATIONS REQUIRED BY §40.121(E)).” 135

136. VENDOR CERTIFICATIONS The following materials are commonly maintained in support of this Part: MRO certifications/credentials SAP certifications/credentials Urine Collector certifications Breath Alcohol Technician certifications NHTSA Device compliance notices Random number generation – compliance documentation 136

137.  §40.15(c) states: “You remain responsible for compliance with all applicable requirements of this part and other DOT drug and alcohol testing regulations, even when you use a service agent. If you violate this part or other DOT drug and alcohol testing regulations because a service agent has not provided services as our rules require, a DOT agency can subject you to sanctions.”  Contractors  Third-party Administrators  Other Vendors  Internal Audits 137 OVERSIGHT

138. CONTRACTOR OVERSIGHT §655.81 STATES: “A GRANTEE SHALL ENSURE THAT THE RECIPIENTS OF FUNDS UNDER 49 U.S.C. 5307, 5309, 5311 OR 23 U.S.C. 103(E)(4) COMPLY WITH THIS PART.” 138

139. CONTRACTOR OVERSIGHT  Contractors who perform safety-sensitive functions must meet all requirements of Parts 655 & 40  They must have: Compliant policies Clearly identified categories of covered employees Readily apparent pre-employment processes All applicable training & certifications Info for a qualified SAP MIS Compliance 139

140. CONTRACTOR APPLICABILITY 140

141. CONTRACTOR OVERSIGHT - TESTING  Contractors must perform compliant testing:  Random Testing Adequately Spread Minimum Testing Rates  You can absorb a contractor’s ss emps into your pool  Post-Accident Testing Must meet FTA testing thresholds, time requirements  Return-to-Duty/Follow-up Testing Compliant, Spread, Documentation in Place 141

142. THIRD-PARTY ADMINISTRATORS  TPAs work for you – ask them lots of questions!  Be aware of the functions they may be performing for you:  Are they doing your random pulls?  Are they maintaining records?  Are they securing vendor qualifications?  Are they reporting results?  Consistently and in a timely fashion?  Do they assist in MIS assembly? 142

143. THIRD-PARTY ADMINISTRATORS CONT.  If you’re in a consortium, is your TPA:  Submitting blinds, if applicable? (2000+ emps in pool)  Testing at the appropriate minimum rate?  TPA Prohibitions:  May not stand in for DER (you!)  May not transmit results from lab to MRO  May not transmit alcohol pos from BAT to DER  Remember, you are responsible for your TPAs 143

144. VENDOR OVERSIGHT  Be aware of each vendor’s role, and monitor their compliance as best you can  MROs are regulated by Part 40, Subpart G (§40.121- §40.169)  SAPs are regulated by Part 40, Subpart O (§40.281- §40.313)  Collection Sites are regulated by the bulk of Part 40  Check CCFs and ATFs as soon as they come in!  New Custody and Control Forms must be used starting October 1, 2011.  In the meantime, collector must write testing agency (FTA, FMCSA, etc.) into Step 2 of CCF 144

145. VENDOR OVERSIGHT – COLLECTIONS The Traveling Public US Congress US DOT FTA You Coll/BAT 145

146. INTERNAL AUDITS You can audit your own system, your contractors, or your vendors – you’re responsible for all of them The interviews used by FTA auditors to determine compliance are available for download at http://transit- safety.fta.dot.gov/Safety/DATesting/Audithttp://transit- safety.fta.dot.gov/Safety/DATesting/Audit If you find problems, require remediation 146

147. QUESTIONS OPEN Q&A FOR:  CONTRACTOR & VENDOR OVERSIGHT 147

148. BREAK 148

149. §655.72(a) states: “Each recipient shall annually prepare and maintain a summary of the results of its anti- drug and alcohol misuse testing programs performed under this part during the previous calendar year.”  This is (DA)MIS  Due Date  Website  Usage  How-to  Retention 149 THE D&A MANAGEMENT INFO SYSTEM

150. MIS REPORTING - BASICS Reporting to the D&A MIS system is required annually, by March 15 th Submit all information accurately and in a timely fashion (§655.72(c)) Online reporting is quick and easy:  http://damis.dot.gov  Contact the Volpe Center for assistance:  617.494.6336  http://damis@dot.gov http://damis@dot.gov 150

151. MIS REPORTING – DOT’S USAGE  FTA Uses MIS Reporting Data to: Recognize trends in use and abuse Objectively determine and analyze the effectiveness of the testing program Demonstrate industry compliance to DOT & Congress Determine future random testing rates Schedule D&A compliance audits  Note: A low positive rate might be a reason for an audit just as much as a high positive rate! 151

152. MIS REPORTING – HOW TO  If you’re a pass-through (MPR, State, etc.)  Fill out your MIS forms with zeros  Make sure your contractors/subs get their info in  If you’re a grantee or contractor/sub-recipient  Calculate number of employees  To calculate the total number of covered employees, add the total number of covered employees eligible for testing during each random testing selection period for the year and divide that total by the number of random testing periods.  Enter number of results in appropriate column  If you have a TPA and/or are in a Consortium  Be sure to include the TPA’s name on your MIS 152

153. MIS REPORTING – HOW TO, CONT. If you’re regulated by multiple DOT agencies: 1.Submit separate MIS reports, one to each agency 2.Do not double-report  Submit each SS Emp where he performs the most work  If you don’t know, just pick one! 153

154. MIS REPORTING – HOW TO, CONT. Safety Sensitive Emps FTA FTA MIS FMCSA FMCSA MIS 154

155. MIS REPORTING - RETENTION  MIS Reports must be maintained for five (5) years  Remember that if you’re in a consortium, you may locally test below the FTA minimums… don’t worry! 155

156. QUESTIONS OPEN Q&A FOR:  MIS REPORTING 156

157. These practices and procedures might help you to more easily manage your testing program  Policies  Forms  Logs  Pre-employment  Random  Post-Accident  Reasonable-Suspicion  RTD/FU 157 BEST PRACTICES

158. POLICIES Use a model policyMake sure it’s locally appropriate Keep it up to date (the regs change and grow!) 158

159. FORMS Previous Employer Requests Notification & Result Tracking Pre- employment Notification & Result Tracking Deterrent Spread Compliance Random Decision-making Process Post-accident Time-frame Compliance Post-accident Condition Summary, Decision Process Time-frame Compliance Reasonable Suspicion 159

160. LOGS  Basic logs can help you keep constant, accurate info about your compliance status  Use a basic spreadsheet to collect pertinent info  Add charts, links, macros… go nuts!  Be sure to keep sensitive data secure 160

161. PRE-EMPLOYMENT TESTING Keep pre-employment negatives beyond FTA’s retention requirement Keep them as long as you employ the individual Record date of safety- sensitive duty In addition to date of hire 40.25 Log your good-faith efforts 161

162. RANDOM TESTING Systematic Pool Maintenance To spread tests, track your progress  It’s easier than it sounds  Not as many tests as you think need to be off-hours Early/Late Alcohol Testing 162

163. RANDOM TESTING – FULL CIRCLE POOLSELECTNOTIFYTESTRESULTFILE 163

164. POST-ACCIDENT TESTING Awareness of the Regs, Consistent Training  Dispatchers  Employees  Supervisors  Management Good, guiding forms Review and learn from mistakes 164

165. REASONABLE SUSPICION TESTING Awareness of the Regs, Consistent Training Complete Event Package  Extensive documentation  All the facts  Policy awareness  Appropriate action 165

166. RTD/FOLLOW-UP TESTING Know the Facts Know the Case-specific Requirements Case Awareness SAP MRO Communication Up-to-date Tailored to each plan Follow-up Log/Schedule 166

167. OVERSIGHT  Internal  Self-audit  Robust training  Consistent communication  Contractors  Audit  Periodic compliance (beyond MIS)  Training assistance  Vendors  Audit  Periodic compliance certification  Continuous product analysis 167

168. QUESTIONS OPEN Q&A FOR:  THE ROLE OF THE DAPM 168

169. 169 CONTACTS & RESOURCES

170. CONTACTS  Jerry Powers, FTA D&A Program Manager  (617) 494-2395  Gerald.Powers@dot.gov Gerald.Powers@dot.gov  Mike Redington, RITA/Volpe Center  (617) 494-2197  Michael.Redington@dot.gov Michael.Redington@dot.gov  Eve Rutyna, RITA/Volpe Center  (617) 494-3447  Eve.Rutyna@dot.gov Eve.Rutyna@dot.gov  FTA Drug and Alcohol Hotline  (617) 494-6336  Fta.damis@dot.gov Fta.damis@dot.gov  For questions regarding an audit, contact the audit team leader 170

171. RESOURCES  FTA Safety & Security:  http://transit-safety.fta.dot.gov http://transit-safety.fta.dot.gov  FTA D&A MIS Reporting:  http://transit-safety.fta.dot.gov/Safety/DAMIS.asp http://transit-safety.fta.dot.gov/Safety/DAMIS.asp  DOT Office of Drug & Alcohol Policy & Compliance:  http://www.dot.gov/ost/dapc http://www.dot.gov/ost/dapc  FTA Drug & Alcohol Forum:  http://transit-safety.fta.dot.gov/Safety/BBS/default.asp 171

172. THANK YOU 172