Record Keeping – Is There an Easier Way?

Records, documents, files, paper everywhere! Are you drowning in paper or is everything in an electronic database and you are keeping it forever?

The Department of Transportation (DOT) directs employers to maintain certain records related to the drug and alcohol testing program. Additional requirements are also placed on employers by the various modal administrations (Federal Motor Carrier Administration FMCSA, Federal Aviation Administration, etc.) and are specific to that particular transportation industry. The following comments are geared primarily to employers subject to FMCSA regulations.

As an employer, you have enough problems keeping track of all the governmental and bureaucratic requirements related to your core business. Tracking record requirements for your drug and alcohol program is probably your least favorite thing. However, during an audit if these records are not up to par, you may face some serious fines. Did you know that in some cases, using a driver whose record indicates a positive test result, but does not show that the driver went through a substance abuse professional (SAP) evaluation and treatment, may subject you to a $10,000 a day fine? That is definitely not good for business.

As an employer you have a few options:
· Keep all required records yourself at your place of business.
· Keep some of your records at your place of business and other records by your Third Party Administrator (TPA) with whom you have a contract for your drug and alcohol testing program.
· Let your TPA keep all your records for you.

Here are the regulatory requirements (FMCSA) that you have to follow:

Subpart D - Handling of Test Results, Records Retention, and Confidentiality
§ 382.401 Retention of records.
(a) General requirement. Each employer shall maintain records of its alcohol misuse and controlled substances use prevention programs as provided in this section. The records shall be maintained in a secure location with controlled access.

(b) Period of retention. Each employer shall maintain the records in accordance with the following schedule:
(1) Five years. The following records shall be maintained for a minimum of five years:
(i) Records of driver alcohol test results indicating an alcohol concentration of 0.02 or greater,
(ii) Records of driver verified positive controlled substances test results,
(iii) Documentation of refusals to take required alcohol and/or controlled substances tests,
(iv) Driver evaluation and referrals,
(v) Calibration documentation,
(vi) Records related to the administration of the alcohol and controlled substances testing programs, and
(vii) A copy of each annual calendar year summary required by §382.403.
(2) Two years. Records related to the alcohol and controlled substances collection process (except calibration of evidential breath testing devices).
(3) One year. Records of negative and canceled controlled substances test results and alcohol test results with a concentration of less than 0.02 shall be maintained for a minimum of one year.
(4) Indefinite period. Records related to the education and training of breath alcohol technicians, screening test technicians, supervisors, and drivers shall be maintained by the employer while the individual performs the functions which require the training and for two years after ceasing to perform those functions.

Note: Paragraph (c) of this rule text provides further descriptions of the types of records that are to be maintained. If you are maintaining your own records, you need to read this section. One other gem of wisdom from this paragraph: “If the record is required to be prepared, it must be maintained.”

This sounds like a lot of stuff to be worried about; and it is! If you opt for maintaining all files/documents yourself, then you have to follow the above requirements to the letter. If you want your TPA to maintain your files, there are a few items you need to consider.

First of all, you or the TPA must be able to produce copies of all the files needed for an audit within two business days. This can be a problem for many larger companies with multiple sites if the TPA stores the paper files exclusively in a central location. That is why maintaining electronic files with your TPA can be especially helpful because the files are always accessible to the satellite locations.

If you want to keep some files yourself and have the TPA keep other files, you need to determine who maintains which files. You don’t want to be in a situation where during an audit you think the TPA has certain files and they tell the inspector that they thought you kept the files. However, if you have the TPA image all of your documents to an electronic format, you can be assured that you always have access to any file.

So, it’s a no-brainer that if you keep your own files, you have to keep all of them for the required time spelled out in the regulations.

If a TPA maintains some of your files, you should still keep copies of the employer’s chain of custody form (CCF), the MRO results report, copies of the SAP reports, and certainly relevant documentation related to reasonable suspicion and post-accident testing. Auditors will generally want to see these “original” copies.

There are some advantages to a TPA maintaining your files. Usually, TPAs are more knowledgeable than employers as to what the regulations require and how to implement these requirements. They also have much more sophisticated computer systems on which to maintain all of these records.
For example, besides maintaining all files related to random selection and testing, data for the annual MIS report, results of all tests conducted, etc., a TPA can maintain all of your driver qualification files on their system, providing you with notifications of specific actions required to update the files, trigger various reports, arrange for medical examinations, and any other action required to maintain the files in accordance with the regulations. This can certainly remove some of the paper work burden facing an employer and streamline the whole process.

As an employer, you need to determine what other files you want the TPA to maintain for you. Do you want them to keep copies of reports explaining why a reasonable suspicion test was conducted; reports of why a post-accident alcohol or drug test was not performed within the specified time frame; alcohol and drug information from previous employers; supervisory training records, etc., or will you be more comfortable having these records at your place of business?

Once you bite the bullet and make some of these decisions, your life should get a lot easier and you will not have to panic when you hear the word audit!

Are There Holes In The DOT Drug Testing Program...

Or Are You Getting Your Money's Worth?


The Subcommittee on Highways and Transit met on November 1, 2007 and reviewed testimony related to vulnerabilities in the Drug and Alcohol Testing programs administered by motor carriers. A number of incidents prompted the Subcommittee to direct the General Accountability Office (GAO) to conduct an in-depth review of conditions at facilities that perform urine specimen collections for drug tests regulated by the Department of Transportation (DOT).

On February 19, 2007, Fox News report aired in Minneapolis, MN indicating problems in four out of five collection facilities, which afforded employees opportunities to cheat or circumvent the urine specimen collection process. Another important figure released was a recent Oregon State Police report that showed an 8.9% positive rate on their most recent roadside Operation Trucker Check. The DOT estimation of the positive drug rate is 1.7%.

To make matters worse, in 2005 GAO testified before Congress that approximately 400 products were available on the market specifically designed to beat a drug test. The lack of consistent and secure procedures in the collection facilities only seems to contribute to the Congressional concern about the effectiveness of the drug testing program.

There are a number of ways to look at these contradictory data, but suffice it to say, not all collection problems are of such nature that they would increase the possibility of someone cheating on a drug test. In fact, the high percent of positive results in the Oregon report includes the detection of prescription drugs (which DOT does not test for) and does not include potential “down grades” to negative results by a medical review officer.

So, is the program successful and are you getting your money’s worth?
You bet the program is working! Quest Diagnostics, one of the larger Health and Human Services certified drug testing laboratories, publishes a Drug Testing Index which shows a dramatic decrease in drug positive rates from 1988 to 2006: 13.6% versus 3.8% for more than 9 million tests in 2006. A breakout for Federal and DOT results indicates a positive rate for of 2.0% for 2006. You can check this out on their web site at: http://www.questdiagnostics.com/employersolutions/dti/2007_03/dti_index.html.
Drug testing in general has decreased drug usage by individuals in safety-sensitive jobs (e.g., drivers). Therefore, how could an employer increase the likelihood that a drug program will be successful?

First of all, as an employer, you have little impact on what happens at the collection site. You have to assume that the staff conducting the collections has been properly trained and are aware of procedures that hey have to use. Of course, one major problem is that urine specimen collection generally is not a clinic’s primary function and it may not receive the attention it deserves.

Lesson #1
There is nothing wrong with periodically asking one of your employees who went through the collection process to describe to you what the procedures were like or to specifically tell you if there were any actions which may have appeared as inappropriate. Of course, you have to take these second hand reports with a grain of salt, but if you hear the same potential problem from two or three of your employees, you need to take action. This could be as simple as calling the collection site and asking them what their procedure is in that particular area. (We have to assume that as an employer, you have some knowledge of what constitutes a proper collection.) If you use a third party administrator (TPA), you should pass your concerns on to them for resolution. The TPA can visit the collection site, can review their procedures, and can correct any deviations.

Lesson #2
Devote some time and thought is to your drug and alcohol policy and what it states in reference to certain procedures. For example, how much notice do you give to applicants about when they are to go for a drug test? By the way, this is really an IQ test; if you tell an applicant to take a drug test three days from now and they come back positive, not only do you not want to hire them because they are using drugs, but they are also not very smart!

Your procedure should give applicants minimal notice of when a drug test will be conducted and the process should not be predictable. The same goes for your current employees. When you tell one of them to take a drug test, what is the time span for arrival at the collection site? Do they have the whole day during which they can go to the clinic? In other words, if you tell an employee in the morning to go sometimes that day to the clinic for a drug test, that individual has all day to try and obtain some adulterants, a prosthetic device, clean urine, etc. At this point, you have just wasted your money on a drug program that will not be effective.

Your policy should state that the employee has a specific time to get to the collection site (based on travel distance, etc.) and that the only exceptions would be documented problems, such as an auto accident, emergency room visit, or abduction by space aliens. Arrival after that time is considered refusal to test. Make it plain and simple.

Some employers make a glaring mistake when they identify an employee who is acting in such a way that a reasonable suspicion test is required. (Same goes for post-accident testing.) They either tell the employee to go on his/her own to the collection site or they tell the employee to finish working and then go to the collection site. In either case, the employer is risking potential legal liability. All you need is a subsequent accident on the job or on the way to the collection site and you are up to your armpits in litigation. Bottom line: if you think a reasonable suspicion test is required, take the employee yourself to the collection site or have a collector come to the work-site.

On-Site Collection
Every employer should seriously consider having the urine specimen collection conducted at the job site. Many TPAs train and employee individuals who can conduct urine specimen collections and breath alcohol tests outside a clinic environment, right on the jobsite. This prevents the employees being tested from having any opportunity to obtain adulterants, clean their urine, or develop excuses for why they could not make it to the clinic. Additionally, the cost of an on-site collection may not be as expensive as it may appear initially. Don’t forget to factor in the cost related to having two or three employees on the clock, but not working while they go to a clinic for a drug test. If the average salary is $30.00 per hour and the round trip to the clinic plus the time spent providing the sample averages out to three hours; three employees taking a drug test will cost you $270.00 in non-productive work time. On-site testing could bring that down by a third.

Getting back to the GAO and the Oregon State Police data; what does it indicate? There is some difference between the Oregon data and what DOT and Quest Diagnostics are reporting. There probably are some problems at collection sites and there are employees who will try to subvert the system. You can’t catch everyone who is trying to cheat, but you can certainly make it a lot harder. Will these few simple actions on your part improve the actual urine specimen collection process? Probably not significantly, but it may decrease the ability of certain individuals to “plan” on how to overcome a drug test. It is important that you don’t give them that extra time and opportunity when you notify them about an upcoming test. A little effort on your part will save you money in the long run.

About the Author
Don Shatinsky Former Senior Drug and Alcohol Policy Advisor at DOT, one of the authors of the Federal drug/alcohol testing regulations (49 CFR Part 40), and now a consultant in the drug testing field and a Regional Representative for Concorde, Inc. The opinions expressed in this Blog are for educational and informational purposes only. Any personnel or legal actions should be based on the actual rule text.

Post-Accident Testing

POST-ACCIDENT TESTING WHAT DO THE FEDS WANT?
By Don Shatinsky
Former Senior Drug and Alcohol Policy Advisor at DOT and one of the authors of the Federal drug/alcohol testing regulations (49 CFR Part 40), now a consultant in the drug testing field and a Regional Representative for Concorde, Inc. The opinions expressed in this Blog are for educational and informational purposes only. Any personnel or legal actions should be based on the actual rule text.

ACCIDENTS HAPPEN – RIGHT?

You bet, that’s why they are called accidents, and you have no control over them. What you do have control over is what happens following the accidents. Do you wind up doing something stupid that may result in fines and/or litigation or do you know what to do and stay out of trouble?
Just a Note: we are talking here about the highway industry. Approximately 90% of the Department of Transportation (DOT) drug and alcohol testing is in this category. Post-accident testing for aviation or rail is significantly different, but comprises only a small percentage of the over all transportation testing.

All good questions and the following will hopefully help you sleep better. There are really two decisions you have to make:
· The accident meets DOT criteria, or
· The accident does not meet DOT criteria

Simple, right? No, because many safety managers test everyone and then try to sort out if it was supposed to be a DOT test or non-DOT test.

Remember this!!! To apply this simple rule, you have to know which drivers are covered by DOT regulations. Again, simple, but there are still managers and supervisors who miss the boat.

Your driver comes under Federal regulations if:
The driver is using a commercial driver’s license (CDL); and
Operates a commercial motor vehicle (CMV) that has a gross vehicle weight rating of 26,001 pounds or more; or
Drives a vehicle designed to transport 16 or more passengers, including the driver; or
Drives a vehicle of any size used in the transportation of materials found to be hazardous under the Hazardous Materials Transportation Act and is required to be placarded under 49 CFR Part 172, subpart F.

One last two-step process. Drivers who are subject to post-accident testing are those who:
While performing safety-sensitive functions (i.e., driving a CMV) are involved in an accident resulting in a loss of human life, or While performing safety-sensitive functions are involved in a nonfatal accident resulting in the driver receiving a citation under State or local law for a moving traffic violation arising from the accident.

The question that frequently comes up is that the citation by law enforcement is not issued until the next day; say 12 hrs after the accident. What is the employer to do? For drugs you have up to 32 hours following the accident to perform the test. However, since the 8-hour window for alcohol testing has passed, you cannot test for alcohol. Once the clock runs out, you may not conduct any DOT testing.

Why is it important to determine if a test is supposed to be a DOT test or one under company policy? Because the government has limited authority to order an individual to provide a urine specimen for a drug test. When a company conducts a test using the Federal Chain of Custody Form, the company is notifying the driver or employee that the government is requiring this test. If it was supposed to be a non-DOT test, the government gets very unhappy – because you as an employer are misrepresenting their authority – and they have no problems levying fines for such actions on your part. Enough said; play by the rules and you should not be afraid of an audit.

Couple issues to remember. If you don’t do the alcohol test within 2 hours you must maintain a record of why the test could not be performed; then you have up to 8 hours in which to try and conduct the breath alcohol test – and again document why it could not be done earlier. The same goes for a drug test: if you cannot perform a drug test within the 32 hr. time frame you need to document the reason(s) and maintain that file.

And finally, drivers subject to post-accident testing must refrain from using alcohol for 8 hours following the accident or until completing a post-accident alcohol test, whichever comes first. It is imperative that the employers provide drivers with necessary post-accident information, procedures, and instructions prior to their operating a CMV, so that they and the employer will be able to comply with the rules.

Bottom line – know the rules and follow them!