1. Beginner FTA Drug and Alcohol Program Management Delivered by: Diana Byrnes, C-SAPA Leila Procopio-Makuh, C-SAPA 11 th Annual FTA Drug and Alcohol Program National Conference Sacramento, California March 22, 2016

2. Two fatal accidents that were catalysts to the development of mandated testing – Amtrak and Conrail collision – NYC Subway accident Legislative History Discussion

3. January 4, 1987

4. August 28, 1991

5. Determined to be a result of prohibited drug use and alcohol misuse, emphasized the need for mandates to ensure: Timely post-accident testing and the requirement to remain available for testing Reasonable suspicion training to remove an employee from safety-sensitive duty when warranted Random testing of safety-sensitive employees, as a deterrent Significance of the Fatal Events

6. Approved by Congress Oct. 28, 1991 – Directed USDOT to develop rules concerning the procedures for testing – Directed each DOT administration to develop industry specific rules for testing in that industry Omnibus Transportation Employee Testing Act

7. Overview of USDOT Authority USDOT Rule 49 CFR Part 40 FRA FTA 49 CFR Part 655 PHMSA FMCSA FAA USCG

8. Procedures for Drug and Alcohol Testing in the Transportation Workplace – Essentially addresses the “how” of the testing program How specimens are collected & analyzed How the results are reported How employee’s rights are protected How violating employees can return to duty USDOT Rule 49 CFR Part 40

9. Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations – Essentially addresses the “who” & “when” of the testing program Who is covered by the regulation – Agency applicability – Employee applicability When are tests required (testing circumstances and thresholds) FTA Rule 49 CFR Part 655

10. Employee Rights Regulatory Balancing Act Both regulations attempt to strike a balance between protecting employee rights and protecting the traveling public. Public Safety

11. Employer Compliance USDOT RULE 49 CFR PART 40 FTA RULE 49 CFR PART 655 Employers are responsible for compliance to both regulations Testing VendorsContractors

12. Part One Implementing FTA Regulations

13. Part One Agenda: 49 CFR Part 655 Agency and Employee Applicability Policy Statement Requirements Drug & Alcohol Program Manager (DER) Education and Training Requirements FTA Testing Circumstances Record Maintenance – Results – DAMIS Reports – FTA Auditing ✚ = other sessions offered on this topic during the conference

14. Agency applicability – Grantees and sub-grantees of Section 5311, 5307 and 5309 funding – Contractors that stand in the shoes of the grantee or sub-grantee Employee applicability – Any employee that performs a safety-sensitive function or could be called upon to perform a safety-sensitive function Applicability

15. Safety-Sensitive Functions Operate a revenue service vehicle (in & out of service) Perform maintenance on a revenue service vehicle Control the movement of a revenue service vehicle Operate a non-revenue vehicle that requires CDL Carry a firearm as part of transit security 1 2 3 4 5

16. Maintenance contractors of: – Section 5307 or 5309 grantees in population areas <200K – Section 5311 sub-grantee agencies Note: the exemption only applies to maintenance that is contracted out; in-house maintenance personnel are covered employees Exemptions:

17. Components of an FTA Compliant Program Agency Substance Abuse Policy Drug & Alcohol Program Manager (DER) Education and Training FTA Testing Circumstances Record Maintenance

18. Components of an FTA Compliant Program Agency Substance Abuse Policy

19. Policy must be dated & approved by governing board and disseminated to all covered employees. Required provisions include (in part): – Identity of contact person – Prohibited behaviors, drugs & alcohol misuse – Testing circumstances & procedures – Requirement to submit & actions that constitute a refusal – Consequences for violations (Zero Tolerance or Second Chance) Substance Abuse Professional Resource Policy Statements [655.15]

20. Available on the FTA Safety & Oversight Website: 1.Policy Builder: https://transit- safety.fta.dot.gov/DrugAndAlcohol/Tools/Poli cyBuilder/CreatePolicy.aspx https://transit- safety.fta.dot.gov/DrugAndAlcohol/Tools/Poli cyBuilder/CreatePolicy.aspx 2.Policy statement checklist: http://www.fta.dot.gov/TSO/about_FTA_160 52.html http://www.fta.dot.gov/TSO/about_FTA_160 52.html Policy Writing Tools

21. Components of an FTA Compliant Program Agency Substance Abuse Policy Drug & Alcohol Program Manager (DER)

22. Designated Contact/Employer Representative – Point of contact for testing program within your agency – Receives results, communicates with collectors, MRO, SAP and other vendors – Manages the random testing pool – Maintains testing records in confidence – Has the authority to remove an employee from safety-sensitive duty after receiving MRO verified positive drug test results and confirmed alcohol test results Drug & Alcohol Program Manager (DER)

23. – Collects and maintains documentation for: Policy dissemination Education and training Post-accident and Reasonable Suspicion testing decisions – Reviews the Employer copies of the CCFs for errors; corrects errors when found Note: Large transit systems may have several individuals performing the role of the DER Drug & Alcohol Program Manager (DER)

24. Components of an FTA Compliant Program Agency Substance Abuse Policy Education and Training Drug & Alcohol Program Manager (DER)

25. Covered employee education and training: – Display and distribute informational material and hot-line number for employee assistance – 60 minutes of training on the effects and consequences of prohibited drug use & indicators of drug use Supervisory/company officials: – 60 minutes on physical, behavioral & performance indicators of drug use – 60 minutes on physical, behavioral & performance indicators of alcohol misuse ✚ FTA Education and Training [655.14]

26. Components of an FTA Compliant Program Agency Substance Abuse Policy Drug & Alcohol Program Manager (DER) Education and Training FTA Testing Circumstances

27. Testing Circumstances (Test Types) Pre-employment [655.41-.42] Random [655.45] Post-Accident [655.4 &.44] Reasonable Suspicion [655.43] Note: Return to Duty and Follow Up testing will be addressed in Part Two of this presentation. 1 2 3 4

28. Pre-employment

29. Pre-Employment Testing [655.41-42] Urine drug testing required, alcohol testing authorized Test all safety-sensitive applicants and transferees – Notify in writing that negative result is required – Employer must receive negative result, prior to safety-sensitive functions – Includes behind-the-wheel training Canceled tests must be retaken No waivers accepted Pre-employment test also required prior to resuming s-s functions following a leave of 90 days or > IF employee’s name was removed from random pool ✚

30. Drug and Alcohol Background Check: – Obtain written consent from applicant No consent = no safety-sensitive functions – Send written consent and request to each DOT regulated previous employer within the previous 2 years – Document good faith efforts – Employee may be placed into s-s duty as long as good faith efforts were made – If violations are reported, applicant must have completed the RTD process before performing s-s job functions ✚ Pre-Employment Background Check [40.25]

31. Sample Consent and Request Form Provided as electronic handout.

32. Random

33. Random Testing [655.45] 2016 annual FTA minimum testing rates: – 25% of s-s employee pool for drugs – 10% of s-s employee pool for alcohol Consortiums can meet percentages as a whole Scientifically valid selection method Update pool prior to generating selection list Generate no less frequently than quarterly Use alternate ONLY when selected employee is not available for the entire testing period Over generate to ensure compliance – Employers can establish higher testing rates

34. Random Testing [655.45] Once notified employees must “drop everything and go” Ensure that selection list remains confidential Be aware of potential non-verbal advance notice Conduct testing throughout all hours of the day and all days of the week that s-s functions are being performed Unannounced and unpredictable testing = an effective random testing program Cancelled tests do not count toward meeting compliance Maintain all documentation related to selection process ✚

35. Post Accident

36. Definition of an FTA accident 655.4 : “An occurrence associated with the operation of a vehicle if: An individual dies, OR An individual suffers bodily injury and immediately receives medical treatment away from the scene of the accident OR One or more vehicles sustain disabling damage and are transported away from the scene by tow truck or other vehicle” With respect to a rail car, trolley car, trolley bus or vessel is removed from operation Post Accident Testing [655.4]

37. Sample Post Accident Documentation Form Provided as electronic handout.

38. If accident meets the definition: – Due to fatality = always test – Due to medical treatment and/or disabling damage = test unless the safety-sensitive employee’s actions can be completely discounted as a contributing factor Document decision-making process Conduct both drug & alcohol tests, when required Medical treatment of employee takes priority Document reasons for delays in alcohol testing after 2 hours Testing windows: 8 hours for alcohol, 32 for drug Employee failing to remain available for testing = refusal. ✚ Post Accident Thresholds Continued [655.44]

39. Reasonable Suspicion Testing

40. Only trained supervisors are authorized to make referrals – Only one supervisor is needed Observations must be “specific, contemporaneous and articulable” Based on appearance, behavior, speech or body odors Not a diagnostic tool Used to “rule out” drugs or alcohol as causal factor for signs and symptoms observed Document signs and symptoms Perform tests promptly (can perform both drug & alcohol) – Document delays in alcohol testing beyond the first 2 hours ✚ Reasonable Suspicion [655.43]

41. Sample Reasonable Suspicion Documentation Form Provided as electronic handout.

42. Components of an FTA Compliant Program Agency Substance Abuse Policy Drug & Alcohol Program Manager (DER) Education and Training FTA Testing Circumstances Record Maintenance

43. Testing Records to be Maintained Documentation of reason for testing (post- accident decision form, random list, etc.) Testing Notification Form Employer copy of Federal CCF (for drug tests) MRO verified test result Employer copy of DOT ATF (for alcohol tests)

44. Notify employees of testing requirement, in writing Communicate the necessary test information to the collector (in accordance with 40.14) – Donor name & unique identifying # – Reason for Test (test type) – Testing authority (FTA) – Contact information for DER & MRO Notice to Test Form

45. Sample Notification Form Provided as electronic handout.

46. Sample Filing System for Drug Testing Records Testing Notification Form Reason for testing document (i.e.; random selection list, post-accident testing decision, etc.) 4 3 2 1 Employer Copy of the Federal CCF MRO Verified Result Report Chronological Order

47. Additional Documents to Maintain Copies of FTA and USDOT regulations Agency policy and proof of dissemination All records related to training – Sign-in sheets, agendas, course materials, etc. Records related to the D&A background checks (40.25) Documents related refusals to test Annual MIS Reports Documentation of testing vendor qualifications (MRO, SAP, Collectors, BATs)* *Will be covered in Part Two

48. Document Storage Maintain all testing records: – In a locked cabinet – In a locked office – Limit access to only those that “need to know” Do not combine NON-DOT and DOT records Do not combine other personnel records with D&A records Records may be stored electronically, provided that they can be printed for compliance monitoring/auditing

49. Annual MIS Reporting Drug and Alcohol Management Information Systems- aka: “DAMIS” – Annual testing numbers and results (no identifying information) are collected for the purpose of monitoring testing on a national level – Web-based reporting is strongly encouraged – FTA sends a mailing at the end of each year with your agency’s username and password for electronic data entry – FTA DAMIS Hotline: (617)494-6336 ✚

50. Part Two USDOT Transportation Workplace Testing Procedures

51. Part Two Agenda: 49 CFR Part 40 Vendors & Qualifications Urine Drug Testing Process Medical Review Process Alcohol Testing Return to Duty Process Resources ✚ = other sessions offered on this topic during the conference

52. Vendors Necessary to Execute Testing Urine Specimen Collector DHHS Certified Laboratory Medical Review Officer Alcohol Test Technician Substance Abuse Professional

53. DOT qualified collector [40.33] – Basic knowledge of the DOT testing program – Complete training and proficiency demonstration – Refresher training at least every 5 years – Error correction training when fatal flaws occur Must maintain documentation of qualifications – Employers should periodically monitor collection site staff qualification documents Urine Specimen Collector

54. At a minimum, the collection facility must have: – A privacy enclosure for urination single toilet room preferred – A water source for hand washing preferably separate from toilet – No water sources accessible (toilet tank, sink, etc.) Bluing agent in toilet bowl – No areas that can be used to conceal contaminants – Restricted access signs posted ✚ Urine Specimen Collection Site

55. Communication Circle for Urine Drug Testing 1 DER receives employer copy of the CCF and checks it for any errors (such as incorrect test type). DER awaits MRO verified results Collector follows instructions on the testing notification form and collects specimen using a Federal CCF. Collector transmits Employer Copy of CCF to DER Employee immediately leaves work site and proceeds directly to collection facility with paperwork DER notifies employee (in writing) of the requirement to submit to an FTA required drug.

56. Basic Collection Steps Presenters will show a 13-min. portion of the USDOT video: Mock Collection Instructions The video will demonstrate the steps taken during a routine urine collection. Link to the full video: https://www.transportation.gov/sites/dot.dev/files/asset_videos/collection_video/OSTVideoPlayer3.htm

57. Insufficient volume (aka “Shy Bladder) – Collector discards specimen if less than 45 mL – Donor is directed to a supervised waiting area – Donor is offered no more than 40 ounces of fluid over a period of no more than 3 hours – Collector must document attempts and fluid provided – Failure to provide sufficient specimen = medical evaluation within 5 business days Problem Collection #1: Insufficient Volume

58. Collector must inspect specimen for signs of tampering – Temperature out of range (range is 90-100 degrees) – Odd appearance, color, odor Collector must: – Process specimen and indicate observations in remarks line of CCF and/or temp range box – Notify donor of requirement to immediately collect a second specimen under direct observation – Donor’s refusal to submit to a second collection is a refusal to test Problem Collection #2: Signs of Tampering

59. Step One: Observing donor prior to collection – Observer must be same gender as donor (can be collector if same gender) – Observer must watch donor lift his/her upper body clothing to mid-chest, lower his/her lower body clothing to mid-thigh and completely turn around to reveal that donor is not concealing a device intended to thwart the drug test – Donor may return his/her clothing to its natural position Direct Observation Collection

60. Step Two: Observed collection – Observer must watch the donor’s urine leave the body and enter the collection cup – If observer is not also the collector, the observer is instructed by the collector on how to observe the donor and then collector finishes the collection process after specimen is collected ✚ Direct Observation Collection Cont.

61. Laboratories that analyze DOT urine specimens must be certified by the Department of Health and Human Services (HHS) Labs are highly regulated and frequently inspected Labs must use “Part 40” procedures Lab rejects specimens for testing if: – insufficient urine – specimen has been damaged (or tampered with) – numbers on the CCF and label do not match Lab must report confirmed results to an MRO (never directly to employer) Laboratory

62. Must be a licensed physician, knowledge of substance abuse disorders and the testing process Must complete training, pass an exam and be certified by a nationally-recognized certification board – Re-certified every 5 years MRO is the gatekeeper of the DOT testing process MRO is the only individual that can verify a result MRO verified results are the only result of record – Employers cannot take action on an unverified result Medical Review Officer

63. MRO or their designee (under supervision of MRO) must review the lab report and CCF for flaws and notify collector and/or lab to correct any flaws – MRO must personally review 5% of the negative lab confirmed results, per quarter, up to 500 Lab confirmed negative results are verified and released to the employer after the lab report and MRO copy of the CCF are received and reviewed MRO (or designee) must report verified results to DER Process for Lab Confirmed Negative Results

64. Urine Drug Testing Flow Chart 231 Specimen is collected by a DOT qualified collector Collector sends specimen to an HHS certified lab for analysis MRO reports the verified result to the DER. DER takes appropriate action per DOT rule & agency policy. Lab confirmed result is reported to Medical Review Officer MRO verifies test result which may include an interview with the employee 4 DER maintains the event record: 1. Reason for testing (random list, post-accident decision or reasonable suspicion form) 2. Employee Notification form 3. Employer copy of the CCF 4. MRO verified result report

65. MRO Process for Lab Confirmed Non-Negative Results Laboratory confirmed results are reported to a qualified MRO MRO must make 3 attempts to reach the donor (employee) within the first 24 hours after receiving the lab confirmed non- negative result. MRO reports result to employer on the same business day or next business day after result is verified If positive, employer must immediately remove employee from s-s duty and refer to a DOT qualified SAP 3 1 2 MRO conducts phone interview with donor MRO determines if a legitimate medical explanation exists MRO issues Medical Miranda (informs donor that information remains confidential unless it jeopardizes public safety) MRO informs donor of the result that he/she will report to employer MRO provides split specimen request instructions

66. MRO verified as “Refusal due to adulteration or substitution” – Treat same as a positive test result MRO canceled or invalid – Follow MRO instruction on result (or call with questions) – If pre-employment or RTD a negative is required, so must retest MRO verified negative-dilute: – Creatinine >5 mg/dl you must follow your policy regarding re-tests (must be consistent & not directly observed) – Creatinine between 2-5 mg/dl- you MUST conduct a second collection under direct observation DER Actions: “Odd Results”

67. Alcohol Testing

68. All DOT covered employees are prohibited from performing safety-sensitive duties with a BAC level of 0.02 or greater Only qualified Breath Alcohol Technicians (BAT) and Screening Test Technicians (STT) are able to conduct DOT alcohol testing BAT and STT must complete initial qualification training & proficiency demonstrations – Refresher training is required every 5 years – Error correction training must be performed within 30 days of error notification Alcohol Test Technicians

69. Communication Circle for Alcohol Testing 1 If screening test is 0.02 or > a confirmation test must be performed using an EBT. Tech transmits results to employer* Technician uses DOT ATF to conduct alcohol test. If screening is <0.02, employee is released and ATF is transmitted to employer. Employee immediately leaves work site and proceeds directly to testing facility DER notifies employee (in writing) of the requirement to submit to an alcohol test.

70. Screening specimens may be either saliva or breath, but confirmation specimen MUST be breath Devices must be approved by the NHTSA and listed on the CPL (with no asterisk) If both drug & alcohol testing are required, alcohol test first Technician must use a DOT Alcohol Testing Form (ATF) Employee must provide positive ID Technician explains the procedure and shows the employee the instructions on back of ATF Alcohol Testing Procedures

71. If saliva test results in a non-negative, EBT confirmation test must take place after a waiting period of no less than 15 minutes, but no more than 30 Tech selects a sealed mouthpiece and inserts it into the EBT device (while in view of employee) Employee is instructed to blow steadily and forcefully Tech shows employee the reading on the device The result is printed on, or affixed to, the ATF Confirmation result is the result of record Tech must immediately notify employer of any confirmation result at 0.02 or above. Alcohol Testing Procedures Continued

72. DER must immediately remove an employee with a confirmed alcohol test result of 0.02 or greater A result of 0.02-0.039 requires removal for a period of at least 8 hours, or until test results fall below 0.02 A result of 0.04 or above, is considered a “positive” test result – Remove employee from s-s duty, refer to an SAP, follow policy consequences Alcohol Results

73. Return to Duty Process

74. Substance Abuse Professional A “SAP” must: – Meet the career qualification credentials, per 49 CFR Part 40, Subpart O – Have basic knowledge of 49 CFR Part 40 – Clinical experience in the diagnosis and treatment of substance abuse disorders – Qualification training – Pass an exam administered by a nationally- recognized organization – Continuing education every three years ✚

75. Substance Abuse Professional Evaluation SAP is an advocate for the traveling public (not employer or employee) SAP must ensure that a violating employee is not placed back into s-s duty until he/she has been rehabilitated and does not pose a safety risk Evaluation must be face-to-face Employee must adhere to SAP’s prescribed course of treatment – SAP cannot benefit financially from the prescribed treatment Employee is re-evaluated after treatment, if successful, SAP can “release” employee to return to s-s duty Employer is not obligated to return the employee to duty

76. Return-to-Duty Steps Face-to-face initial evaluation with a DOT qualified SAP Released by SAP, must pass a Return-to-Duty test (drug test, alcohol test or both, as determined by SAP) 3 Successful completion of prescribed course of treatment & 2 nd evaluation by SAP 21 3 2 1

77. Return-to-Duty Testing Return-to-Duty drug test must be performed as a directly observed collection Employer must receive a negative test result prior to the first performance of s-s functions The Return-to-Duty test may be a drug test, an alcohol test, or both. Determined by SAP Employers typically ask the employee to sign a “second chance” agreement prior to undergoing a Return-to-Duty test Note: There is no other use for this test type. Return-to- Duty testing is never authorized unless the employee has previously violated the DOT testing program and has completed the RTD process

78. Follow-Up Testing Follow-up testing is an added measure to ensure that the employee remains drug or alcohol free SAP determines the frequency and duration of follow up testing that employee will be subject to – Minimum is 6 tests in the first 12 months Follow-up drug testing is always a directly observed collection Employee must never be given advance notice Employee is subject to all other testing while in the follow-up program Follows employee through breaks in service and to subsequent employers

79. Resources

80.  Copies of your agency’s policy and the regulations (DOT &FTA)  Education and training materials in accordance with 655.14*  Federal Drug Testing Custody and Control Forms (CCF)  Form to notify employees of the requirement to submit to a test and to communicate the testing information to the collector (40.14)  Names and addresses of the DOT qualified collectors and breath alcohol technicians that serve your agency  Tool for updating the employee random pool prior to each new draw (such as an Excel spreadsheet)  Computer-based random selection software (or a vendor)  Post-accident & Reasonable Suspicion Documentation forms DER Checklist for the "Tools of the Trade”

81. Resources for DERs FTA Transit Safety & Oversight: http://transit- safety.volpe.dot.gov/DrugAndAlcohol/Default.aspx#1http://transit- safety.volpe.dot.gov/DrugAndAlcohol/Default.aspx#1 DOT’s Office of Drug & Alcohol Policy & Compliance: https://www.transportation.gov/odapc https://www.transportation.gov/odapc Transportation Safety Institute (training courses): http://www.rita.dot.gov/tsi/node/96 http://www.rita.dot.gov/tsi/node/96 FTA DAMIS Telephone Hotline: (617)494-6336 ✚

82. Q&A