DOT DOES IT AGAIN – ANOTHER DRUG/ALCOHOL FINAL RULE

On Monday, August 16, 20010, the Department of Transportation (DOT) published a Final Rule (FR) to its Procedures for Transportation Workplace Drug and Alcohol Testing Programs. The purpose of this FR is to provide consistency between the DOT regulation and the Department of Health and Human Services (HHS) Mandatory Guidelines for Federal Workplace Drug Testing Programs.

Some employers may wonder what these two regulations from different agencies have to do with the DOT requirements for drug and alcohol testing in the transpiration industry. The simple answer is that the DOT is required by the Omnibus Transportation Employee Testing Act of 1991 to follow the HHS scientific requirements for drug testing procedures and the type of illegal drugs that are tested. For those who are interested, the preamble in the FR provides a clear and lengthy historical background related to this requirement.

As a result of this mandate, the DOT is required to follow most of the HHS laboratory testing procedures, use HHS certified drug testing laboratories, and test for those drugs that are authorized by HHS. There are procedures, such as collection of urine specimens or medical review officer (MRO) reporting, that are not tied to HHS requirements and in those areas, the DOT sometimes varies in its procedures from those required by HHS.

Bottom line question – what is the impact on the transportation employer who is under DOT regulatory authority? Again, the simple answer is not much, but there are a few items that will have impact on the testing process and employers must be aware of these.

The first major issue that faced the DOT was the HHS procedure permitting the use of Instrumented Initial Testing Facilities (IITF) to conduct initial drug testing. What this means is that HHS would certify a facility that would perform only the initial screening testing of urine samples. If the initial screen was negative, a negative report would be sent to the employer. If the initial screen was non-negative, the specimen would have to be sent to a “full-fledged” laboratory for confirmation testing.

The DOT’s interpretation of the Omnibus Act was that the Act precluded the DOT from using IITFs since it requires “that all laboratories involved in the controlled substances testing of any individual under this section shall have the capability and facility, at such laboratory, of performing screening and confirmation tests.” Since IITFs do not have any confirmation capabilities, the DOT’s position is that IITFs may not be used in the DOT drug testing program. This means that employers must be vigilant in their dealings with laboratories or third parties that provide drug testing services and ensure that specimens are not sent to IITFs.

The second major change is related to the DOT including the HHS expanded amphetamine testing. Initial and confirmatory testing will be conducted for Methylenedioxymethamphetamine (MDMA) – also known as Ecstasy, and confirmatory testing for Methylenedioxyamphetamine (MDA) and Mehylenedioxyethylamphetamine (MDEA). The impact of this change on employers may be that those employers who specifically identify in their policy the type of drugs for which they test, may now need to go back and add these analytes to that list and, of course, ensure that this information is provided to all their safety-sensitive employees.

Again, following the changed HHS requirements, the DOT is also lowering the cutoff testing levels for cocaine and amphetamines. The initial test cutoffs for cocaine metabolites would go from 300 to 150 ng/mL, while confirmation test cutoffs would go from 150 to 100 ng/mL. For amphetamines, the initial cutoffs would go from 1,000 to 500 ng/mL, while confirmation tests for amphetamines and methamphetamines would go from 500 to 250 ng/mL.

Based on the change in cutoff levels, employers may experience an increase in the number of positive results reported to them, especially for cocaine. It probably would be beneficial to ensure that the lowering of the testing cutoffs is well publicized to those in safety-sensitive positions.

Under their new Mandatory Guidelines, HHS is directing laboratories to conduct testing for 6-Acetylmorphine (6-AM) on all initial tests on all specimens. 6-AM is a unique metabolite produced when a person uses heroin. Since all DOT drug testing is conducted in HHS-certified laboratories, all urine specimens collected under DOT authority will now be tested for 6-AM. The DOT is including this process in its FR to ensure that the transportation industry understands this change.

The FR also eliminated the requirement for each MRO to take 12 hours of continuing education every three years. Instead, each MRO will need to be re-qualified, including passing an examination given by an MRO training organization, every five years. And finally, for consistency, the DOT is harmonizing a number of definitions in its rule with definitions in the HHS Mandatory Guidelines and adding several new ones.

This Final Rule is effective October 1, 2010. A copy may be viewed on the DOT website at: www.dot.gov/ost/dapc.