Lawmakers Make Good Their Vow To Address the Faults in the Drug Testing Program with Legislation

A new DOT ruling will make cheating on a drug test harder. For the past few months we have been keeping you abreast of the ongoing events stemming from an undercover public news release which aired in February 2007 pointing out the deficiencies within the DOT collection procedures at various collection sites.

• November 1, 2007 – Government Accountability Office (GAO) released a 28 page report that not only uncovered the deficiencies within the DOT collection procedures at a variety of the collection sites, but also uncovered the vast availability of products designed to defeat or manipulate drug tests by drug users.
  
• May 21, 2008 – GAO report publicly released a separate 74 page report - The GAO’s “best” recommendations for executive action to strengthen the DOT drug-testing program.
  
• June 13, 2008 – The interim final rule, authorizing employers and TPAs on behalf of the owner-operator, to disclose to State commercial driver licensing (CDL) authorities the drug and alcohol violations of employees who hold CDLs and operate commercial motor vehicles (CMVs), when a State law requires such reporting.
  
• June 25, 2008 – The Department of Transportation (DOT) issued major changes to its CFR 49 Part 40 Regulations. This is a final rule change, and becomes effective August 25, 2008. The DOT amended certain provisions to change instructions to collectors, laboratories, medical review officers (MRO), and employers regarding adulterated, substituted, diluted, and invalid urine specimen results. The U.S. Transportation Secretary, Mary Peters states that nationwide approximately 12.1 million transportation employers, safety-sensitive transportation employees, collectors, labs, and medical review will be affected by the new rule.

Personally I am pleasantly surprised at the diligence displayed by Lawmakers which vowed to address the faults in the program with legislation. Rep. Peter A. DeFazio, D-Ore., Rep. John L. Mica, R-Fla., and Rep. James L. Oberstar, D-Minn. and Chairman of the House Transportation and Infrastructure Committee make up a bi-partisan coalition calling for reform. This is the most significant overall regulation changes I have seen specifically focused on singling out the “cheaters” and in a relatively short amount of time based on past ruling implementation standards.

New DOT Rule to Increase Frequency
of A Direct Observed Drug Collection

The New Final Rule makes specimen validity testing mandatory within regulated transportation industries. In other words, the labs will no longer have the option of testing urine samples for signs of cheating, but instead will be required to test every specimen for possible adulterants and urine substitutes.

In addition, a number of changes were made concerning procedures for direct observed urine collections which will directly affect employers, donors, collection site personnel, laboratory personnel and Medical Review Officers (MRO). With the new stricter ruling it will be interesting to see how this all plays out. With an estimated 85% of the collectors being female and 90% of the commercial drivers being male I would guess there will be a potential problem of a shortage of availability of same gender observers.

The person observing the direct observed collection must be of the same gender as the donor. It is never permitted to have an opposite gender person to act as the observer not even in the case of a licensed physician or certified medical personnel. The observer can be a different person from the collector and need not be a qualified collector. The immediate supervisor of a particular employee may act as an observer of the same gender if there is no alternate method at the collection site to conduct an observed collection. An employee who is a safety-sensitive position and subject to the DOT drug testing rules should not be a collector, an observer or a monitor for co-workers who are in the same testing pool or who work together with that employee on a daily basis. Also to avoid a potential conflict of interest, a collector, observer or monitor should not be someone that is associated to the employee, such as a relative or close personal friend.

In addition, between the laboratories having to test all specimens for validity testing and collections having to have more male gendered observers available we are sure to see an increase in problems within the collection process and the overall cost for drug collections to raise considerably.

The following drug tests require direct observed collection:

• A donor with a negative dilute specimen with creatinine in the 2-5 range, this will be MRO directed.
  
• A donor with an invalid test result with no valid medical explanation.
  
• A donor who’s test result was positive, adulterated, or substituted and their split specimen was not available for testing. Reasons why the split may not be available may consist of, not originally collected, missing, insignificant volume or destroyed in transit.
  
• A donor who submits an out-of-temperature range specimen or a tampered-with specimen at the time of collection.
  
• A donor with prior positive drug tests or refusals. All return-to duty and follow-up drug tests are required as a direct observation. In prior rulings it was an employer’s option to require an observed drug collection, but in the new ruling it is now mandatory.

A New Meaning to
Observed Drug Collection

Currently there are three basic types of devices primarily used to substitute a urine sample:

1. One device has a long plastic tube connected to a bottle containing heated urine.
   
2. Another device consists of a short plastic tube attached to a battery-heated plastic bag.
   
3. Another device goes a step further by replacing the tube with very realistic prosthetic genitalia designed to match the employee’s skin tone.

The new direct observed procedures require the observer to check for these types of devices when an employee is subject to an observed collection.

The new guidelines state that employees having observed collections must be instructed to:

• raise clothing just above the navel;
  
• lower all clothing (outer and under garments) to mid-thigh;
  
• then turn around to show the same gender observers they do not have prosthetic devices for beating the tests.

If no device is detected, the employee is permitted to return clothing to its proper observed-collection position, then the observed collection will take place.

The following actions now constitute a Refusal to
Test and are also noted in the new guidelines:

• An employee admits to the collector that he or she adulterated or substituted their specimen.
  
• The employee behaves in a confrontational way that disrupts the collection process.
  
• The employee fails to follow the observer’s instructions to raise and lower their clothing and to turn around to permit the observer to determine if the employee has a prosthetic or other device that could be used to interfere with the collection process.
  
• The employee possesses or wears a prosthetic or other device that could be used to interfere with the collection process.
  
• The employee refuses to wash his or her hands – after being directed to do so.

The new Guidelines are effective August 25, 2008 and are available at: www.dot.gov/ost/dapc/udsc.html.

Sincerely,

Lonnie Johnson
Operation Director