DOT Drug and Alcohol Testing -
Key Terms and Acronyms

The Federal Motor Carrier Safety Regulations (FMCSRs) have a lot of terms and definitions that a motor carrier must know in order to fully comprehend the regulations. This is especially true in the area of DOT drug and alcohol testing. To some carriers, this is outside of their comfort zone. If the regulations don’t directly discuss how to operate and maintain a rig or how many hours a driver can operate a commercial motor vehicle, it’s like reading Greek.

The following are often-used terms found in Part’s 40 and 382. They describe how a carrier administers its drug program with the use of third-parties.

What is a service agent?
A service agent is any person or entity, other than an employee of the employer, who provides services specified under this part to employers and/or employees in connection with DOT drug and alcohol testing requirements. This includes, but is not limited to, collectors, BATs and STTs, laboratories, MROs, substance abuse professionals, and C/TPAs. To act as service agents, persons and organizations must meet the qualifications set forth in applicable sections of this part. Service agents are not employers for purposes of this part.

Service agents can provide a variety of services, including random selections, breath alcohol testing, evaluations, etc. The roles and responsibilities of service agents are described in Subpart Q. The motor carrier is responsible for Part 40 compliance even if it uses a service agent! As stated in §40.15(c): “Your good faith use of a service agent is not a defense in an enforcement action initiated by a DOT agency in which your alleged noncompliance with this part or a DOT agency drug and alcohol regulation may have resulted from the service agent’s conduct.”

What is a Consortium/Third-Party Administrator (C/TPA)?
A Consortium/Third-Party Administrator (C/TPA) means a service agent th provides or coordinates one or more drug and/or alcohol testing services for Department of Transportation (DOT)-regulated employers.

C/TPAs typically provide or coordinate the provision of a number of such services. C/TPAs perform administrative tasks concerning the operation of employers’ drug and alcohol testing programs. This term (C/TPA) includes, but is not limited to, groups of employers who join together to administer, as a single entity, the DOT drug and alcohol testing programs of its members. C/TPAs are not “employers” for the purpose of Part 382 and Part 40 regulations.

What is a Designated Employer Representative (DER)?
The Designated Employer Representative, or DER, is an employee authorized to take immediate action to remove employees from (or have them removed from) safety-sensitive duties and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the employer. Only an employee (or the employer directly) may act as a DER. This is one of the only roles that a service agent can never perform.

What is a Medical Review Officer (MRO)?
A medical review officer (MRO) is defined as “a person who is a licensed physician (Doctor of Medicine or Osteopathy) and who is responsible for receiving and reviewing laboratory results generated by an employer’s drug testing program and evaluating medical explanations for certain drug test results.”
The MRO acts as an independent and impartial “gatekeeper.” He/she is an advocate for the accuracy and integrity of the drug testing process. The MRO’s duties include:

• Providing a quality assurance review of the drug testing process
  
• Determining whether there is a legitimate medical explanation for confirmed positive, adulterated, substituted, and invalid drug test results from the laboratory
  
• Investigating and correcting problems where possible
  
• Ensuring the timely flow of test results and other information to employers
  
• Protecting the confidentiality of drug testing information.

An MRO’s medical review of an employee’s drug test results does not constitute an established doctor-patient relationship.

What is a Substance Abuse Professional (SAP)?
A substance abuse professional (SAP) is defined as “a person who evaluates employees who have violated Department of Transportation (DOT) drug and alcohol regulations and makes recommendations concerning education, treatment, follow-up testing and aftercare.” An individual must have certain credentials, knowledge, and training to act as a SAP.
He/she must be a:

• Licensed physician (Doctor of Medicine or Osteopathy);
  
• Licensed or certified social worker
  
• Licensed or certified psychologist
• Licensed or certified employee assistance professional; or Drug or alcohol counselor certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission (NAADAC) or by the International Certification Reciprocity Consortium/Alcohol and Other Drug Abuse (ICRC).

A SAP must have knowledge and clinical experience in the diagnosis and treatment of alcohol and controlled substances-related disorders. He/she must also know the Part 40 regulations, other applicable DOT agency regulations, and the DOT’s SAP Guidelines.

What is a (BAT)?
BAT refers to a Breath Alcohol Technician. A person who instructs and assists employees in the alcohol testing process and operates an evidential breath testing device.

Saliva Alcohol Testing
The Breath Alcohol Technicians (BAT) have saliva alcohol testing devices available in addition to the breath alcohol testing device. They have these devices for one reason. When a driver has a respiratory problem (e.g., asthma, bronchitis, emphysema) and cannot blow an adequate amount of breath into the breath alcohol testing device, the saliva alcohol testing device can be used instead. This is also referred to as “shy lung”. Silica test are utilized to test for an alcohol negative result (less than .02). With the BAT having this device available, it allows the driver to still give a negative result without being required to go through a medical evaluation with a licensed physician who has expertise in the medical issues raised by the driver’s failure to provide an adequate amount of breath (e.g., a pulmonary specialist).

However, the saliva alcohol testing device can only be used for the screening (first) test. If the saliva device reads .02 or greater, the driver must then wait 15-30 minutes and provide an adequate amount of breath on a breath alcohol testing device (confirmation test). If the driver cannot, the driver will be required to go through a medical evaluation with a licensed physician who has expertise in the medical issues raised by the driver’s failure to provide an adequate amount of breath.

We believe Breath Alcohol Technicians that have breath alcohol testing devices should include the saliva alcohol testing devices.

We strongly support procedures which will assure that our members stay in compliance with the Federal regulations. If a saliva alcohol test is conducted on a driver and the saliva alcohol test results is .02 or higher, a confirmation test must be conducted. If the collector does not have a breath alcohol testing device to conduct the confirmation test within 30 minutes after the screening test, that contracted collection site is in violation of the Federal drug and alcohol testing regulations.

Ultimately, these violations could lead to fines by the USDOT or even CHP. If our collection sites that we contract with continued this practice, they could receive a Public Interest Exclusion (PIE) and be excluded from conducting drug and alcohol collections for DOT clients. By association and contract we could also could find ourselves under the threat of a PIE.

What is public interest exclusion (PIE)?
The purpose of the public interest exclusion (PIE) is to protect transportation employers and employees from serious noncompliance with DOT drug and alcohol testing rules by ensuring that employers conduct business only with responsible service agents as defined above.

The DOT uses PIEs to exclude any service agent from participating in its drug and alcohol testing program that by serious noncompliance has shown that is it not currently acting in a responsible manner. The process by which a service agent is issued a PIE is found in Subpart R of Part 40.

The DOT maintains a document called “List of Excluded Drug and Alcohol Service Agents” which lists those agents who cannot be used in DOT drug and alcohol programs. This document can be found at the DOT website.