FTA Drug and Alcohol Program National Conference

April 5 – 7, 2011

Presented by:Russ Parish – Arkansas Transit

AssociationVicky Warner – Indiana RTAP/RLS &

Associates Inc.

Managing Your Transit Contractors

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To provide Participants with the technical knowledge necessary to perform a comprehensive assessment of their drug and alcohol testing program

To aid each participant in performing oversight of their vendors

To aid each participant in developing a plan of corrective action

To create a forum for the exchange of ideas and best practices

To provide valuable resources to aid in program administration and oversight

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Assess compliance with drug and alcohol testing regulations (49 CFR Part 655 and 49 CFR Part 40)

Performed by team of experts 4-6 auditors 2 to 4 days on-site Comprehensive Mock Collection Includes audit of safety sensitive contractors Includes audit of vendors Systems may be audited more than once

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Notification in writing and request for information Rural systems and their respective state DOTs are

contacted simultaneously Submittal of info within two weeks Site visits within six weeks Scheduled to avoid conflicts with other FTA

oversight functions Laptop real-time interview process Exit interview- letter and final report with

deficiencies Report- Final and non-negotiable 90 days for response and documentation of

correction of deficiencies

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Ensure all relevant personnel are available during the visit ◦ Program Manager◦ Other agency staff as appropriate◦ Vendors◦ Safety-sensitive contractors and their vendors

Upon notification of audit, immediately undertake efforts to collect, copy and submit relevant documentation to FTA◦ Recipient/subrecipient information ◦ Contractor information

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View audit in a positive manner Arrange to have ready access to all relevant records

and documents ◦ Must be available on-site ◦ Data from vendors ◦ Data from safety-sensitive contractor

Impart the seriousness of the audit to those individuals that will be involved

Give complete cooperation Be prepared to provide complete documentation Provide clear, descriptive answers

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Applicable regulations (FTA vs. FMCSA) Policy Flaws After hours collection not being performed Post-accident testing procedures ill-defined Random selection/notification process compromises

integrity of program Confidentiality of information compromised Recordkeeping incomplete Program not current- Revised Rules Vendor non-compliance Safety sensitive contractor non-compliance Safety sensitive employee incorrectly identified

Download and use the FTA audit questions from the Office of Safety and Security website located on their technical assistance page – http://transit-safety.fta.dot.gov

Request the following material for a desk review prior to any scheduled site visit◦ Copy of the current drug and alcohol policy◦ Hire dates and pre-employment testing logs◦ Random draw lists and random testing logs◦ Copies of vendor credentials (MRO, SAP, laboratory, BAT &

Collectors)◦ Records of Post accident test for previous year (longer if a very

small provider)◦ Information regarding cancelled or non-negative test results◦ Information on the EBT that is being utilized by the provider◦ Copies of semi-annual statistical reports

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Audit testing records: an employer may disclose drug and alcohol testing information including test results to the State oversight agency or grantee required to certify compliance

Require timely responses and supporting documentation for any issues identified during the review

Require and monitor reports

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The recipient of FTA funds must certify compliance with the requirements set forth in 49 CFR Part 655 on an annual basis

Must be signed by the recipient’s governing board or authorizing official

Criminal penalties for false statements or misrepresentations

Section 5311 systems certify compliance to their respective State DOTs

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Responsible for actions of officials, representatives, and service agents

All agreements between employers and service agents are deemed as a matter of law to require compliance

Service agents must provide documentation of credentials

Good faith effort is not a defense for non-compliance

Employer is responsible for obtaining test results and other information that is needed for compliance purposes

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Policies and procedures must be in place to ensure post-accident tests are performed as soon as possible following an accident - Testing often omitted or significantly delayed - Ill-defined policies - No documented procedure - Inadequately trained supervisor - Lack of supervisor empowerment

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Non-routine and sporadic performance of safety-sensitive function - Drug tests, anytime during shift - Alcohol tests just before, during, or after performance of safety-sensitive function

Fluctuating employee base - Number in pool X percent of testing - Number of draws to be conducted per year

Program administrator in pool - alternative contact notified when administrator’s number is selected

Employee must be notified of the testing authority

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6:00 AM Open

6:00 PM Close

Number and explanation for cancelled tests

Collection and transfer of split specimens

Volume capacity, location, and service hours

After hours testing

Ease of communicating and reporting

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Collection sites Medical Review Officers HHS laboratories (blind samples) BATs/STTs Substance Abuse Professionals Service agent compliance required

- Compliance required as a matter of law - Non-compliance may result in a public interest exclusion (PIE)

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HHS Lab report semi-annual test reports to employers

NPRM – IITF Report the same

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Able to withstand challengeDocument policies and proceduresDocument every test decision

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Employer or service agents cannot require an employee to sign a consent, release, Waiver of Liability, or Indemnification Agreement withrespect to drug and alcohol tests

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A chain of custody and control form for every test A negative test result for every new hire Written notice to applicant with

acknowledgement and signature Date, time, and result of each test conducted Test date prior to hire date Previous employer drug and alcohol test records

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Random draw lists A chain of custody and control form for each test

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Accident Identification Information: documentation of whether circumstances meet definition of accident

Documentation for every covered accident on decision to test or not

Documentation supporting determination of whether the employee could be completely discounted as a contributing factor

Time/date of accident and test Documentation of reason for test delay

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Employer must define who has access to files and for what purpose

Access by others should be restricted FTA recipients may have access to contractor’s

employee-specific information

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A separate release must be signed each time information is to be disclosed

Releases must be signed by employee anytime information is to be released to - The employee - Union representatives - Subsequent employers - To any other third party designated by the employee

Employee must not be given access to SAP follow-up testing plan

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No signed release is required when information is provided to: The National Transportation Safety Board when

investigating an accident A decision maker in a lawsuit grievance or

administrative proceeding initiated by or on the behalf of the employee tested and resulting from a positive test result or test refusal

The DOT or any DOT agency with regulatory authority over the employer or any of its employees, or to a State Oversight committee authorized to oversee rail fixed guide way systems

State DOT or grantee that has oversight responsibility and is required to certify compliance to FTA

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No signed release is required when information is provided to: (cont’d) A criminal or civil action resulting from an

employee’s performance of safety-sensitive duties in which a court or competent jurisdiction determines the test information is relevant to the case and orders the employer to produce the information

Release must be made with a binding stipulation that the decision maker will make the information available only to parties to the proceeding

Release of information to law enforcement agencies based solely on the request of the law enforcement agency is not allowed

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State commercial driver’s licensing (CDL) authorities when a state law require such reporting

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Employers and service agents must allow DOT agency access to: Facilities All written, printed, computer-based programs,

and reports Laboratories are not allowed to release a

specimen without obtaining ODAPC permission

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Apply strict confidentiality standards to all aspects of your substance abuse program, particularly with respect to identification of any specific individual

Apply the golden rule

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DO NOT ASSUME THAT VENDORS ARE CONDUCTING TESTS IN

COMPLIANCE WITH REGULATIONS – THAT INCLUDES TPA’S AND

CONSORTIA!

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Employer discretion Maintain confidentiality Must meet time requirements Must provide DOT requested information to

employer within two days

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Transmit drug test information from MRO to employer - Test refusals - Cancelled tests - Split specimen - Retest requirements reconfirmation - Insufficient specimen - Drug test results - Shy bladder refusal - Dilute specimens - Transmission of CCF - Changed test result - Transmission of lab- Confirmed positive for stand statistical report down - Transmission of 2 years - Direct observation collections test results to - Employee no-shows subsequent employers - DER contact information - Alcohol screen and confirmatory test results < 0.02

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Transmission of laboratory drug test results to MRO

Transmission of medical information from MRO to employers

Transmission of SAP reports to employers Transmission of positive alcohol test results

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May operate random testing programs May maintain random pool May assist with other types of testing May assist in implementation of follow-up testing plans May receive and maintain all records without employee

consent - Test results - Program operation records

Must transfer records immediately upon request without fee

Must notify employee immediately of business status change

Must not act as DER

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Utilize the FTA consortium/TPA audit questions

Conduct Semi annual or annual reviews May require statistician validate the

scientific validity of the random draw programs utilized

Require annual MIS for the entire consortium for state wide programs

Follow-up/require written responses to any problems reported by systems using C/TPA

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Conduct periodic mock collections to identify procedural flaws

Investigate any reports by employees of flawed procedures

Provide vendors copies of USDOT and FTA handbooks and procedural manuals

Require documentation of vendor credentials

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Even though not a regulatory requirement, consider requiring vendors to hold memberships in their respective industry’s trade association

Monitor cancelled test rates, and require detailed explanations for each cancelled test

Include specific and detailed minimum performance standards in contracts that provide disincentives for cancelled tests or non-performance

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If vendors are unwilling or unable to perform their duties consistent with the regulations, cancel their contract and obtain service elsewhere

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Drug & Alcohol Testing Industry Association(800) 355-1257 www.datia.org

American Association of Medical Review Officers(919) 489-5407

American Society of Addiction Medicine(301) 656-3920

American College of Occupational and Environmental Medicine (847) 228-6850

Substance Abuse Program AdministrationAssociation (800) 672-7229

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MROs will no longer be required to obtain 12 hours of continuing education every three years.

Instead MROs will be required to be retrained and pass an examination every five years. ◦ The examination must be given by a

recognized MRO certification board or subspecialty board for medical practitioners.

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What is a PIE? - Public Interest Exclusion - not allowed to work in DOT programs

Purpose of PIE - Protect public interest - Protect employer and employee from serious noncompliance

Basis for PIE being issued - DOT determines failure or refusal to provide service consistent with DOT rules - Failure to cooperate with DOT or inspections, compliance and enforcement reviews, or requests for documentation

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DOT policy on PIE proceeding - Only in cases of serious, uncorrected non-compliance

Affects safety Outcomes of test results Privacy and confidentiality Affects due process Affects honesty and integrity of testing program Failure to provide cooperation and info to DOT

representatives - Regulation provides 14 examples

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Michael R. Bennett and Workplace Compliance, Inc. 7/31/09 – 7/31/14

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Safety-sensitive contractors that “stand in the shoes” of the subrecipient are required to have drug and alcohol testing programs that meet the same requirements Maintenance contractors of systems that serve populations

of <= 200,000 are exempt Second tier maintenance contractors are exempt Rule applies to contractors (i.e. taxi operators) when the

transit provider enters into a contract with one or more entities.

Rule does not apply when the patron chooses the operator Suggested oversight procedures

Provide copy of the regulations and DOT/FTA guidance Make compliance a condition of the contract.

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Conduct periodic assessment using checklist Policy Testing procedures Testing categories Training Recordkeeping

Audit testing records: an employer may disclose drug and alcohol testing information including test results to the State oversight agency or grantee required to certify compliance

Require and monitor reports Include in own program

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Identify safety-sensitive contractors which “stand in the shoes” of the recipient

Require contract or contract language specifying requirements for a compliant drug and alcohol testing program including specific performance standards

Do not assume that contractors, no matter how reputable, are in compliance

Develop an on-going monitoring program Immediately take corrective action to remedy

problems found

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