FTA Drug & Alcohol Program National Conference March, 2010

FTA Drug & Alcohol Program National Conference March, 2010
Program Manager Seminar FTA Drug & Alcohol Program National Conference March, 2010

Welcome We are: FTA Drug & Alcohol Program Auditors George Gilpatrick & Joe Lofgren

Welcome You Are: New Drug & Alcohol Program Managers (DAPMs)
General Managers New DAPM Assistants Transitioning into/out of DAPM role Trainers

Course Overview Subjects of Discussion:
Regulation History and Overview Prohibitions & Testing Overview The DAPM Role and Management Theory Your Program’s Policy Records Management Internal Oversight DOT D&A Management Information System (MIS) Best Practices

Schedule

Glossary Adulterated Specimen – A urine specimen containing a substance not expected to be present (at all or at a certain volume) in human urine Alcohol Concentration - The alcohol in a volume of breath expressed in terms of grams of alcohol per 210L of breath ATF - Alcohol Testing Form (the alcohol equivalent to the CCF) BAT - Breath Alcohol Technician (Collector) Canceled Test – A result that is neither negative nor positive CCF - Custody & Control Form (Chain of Custody, or COC) C/TPA – A service agent that provides/coordinates elements of your program DAPM - Drug & Alcohol Program Manager (usually same as DER) DER - Designated Employer Representative (usually same as DAPM)

Glossary, Continued Dilute Specimen - A specimen with creatinine and specific gravity values that are lower than expected for human urine. (US)DOT - Department of Transportation (in Washington, DC) FTA - Federal Transit Administration (Part of DOT) FU - Follow-up Testing MRO – Medical Review Officer ODAPC – DOT’s Office of Drug and Alcohol Policy & Compliance RTD - Return to Duty Testing SAP – Substance Abuse Professional SS – Safety-sensitive Verified Test - A drug test result or validity testing result from an HHS-certified laboratory that has undergone review and final determination by the MRO.

! Iconography Review and Check for Errors Use Forms Here
Check your Policy Training/Certification Important Common Mistake Time-sensitive Requirement !

The Regulations 49th Code of Federal Regulations Part 40 Part 655

Regulation History & Overview
Congress Found that: (1) alcohol abuse and illegal drug use pose significant dangers to the Nation; (2) The Nation's citizens depend on the operators to perform in a safe manner; (3) the greatest efforts must be expended to eliminate the abuse of alcohol and use of illegal drugs by operators; (4) the use of alcohol and illegal drugs has been proven to have been a critical factor in transportation accidents; (5) the testing of uniformed personnel of the Armed Forces has shown that the most effective deterrent is increased testing, including random testing; (6) adequate safeguards can be implemented to ensure privacy; (7) rehabilitation is a critical component of any testing program. Public Law (H.R. 2942)

Regulation History & Overview, Cont.
October ‘91 Omnibus Transportation Employee Testing Act 93% combined vote Covers more than 12m employees February ‘94 FTA Adopts 49 CFR Parts 653 & 654 Compliance Required by 1/1/95 (Large Operators), or 1/1/96 (Small Operators)

Regulation History & Overview, Cont.
March ‘97 FTA Drug & Alcohol Program Audits Begin August ‘01 49 CFR Part 40 Updated FTA Combines Parts 653 & 654 into Part 655

Key Sections – Part 655 Definitions – 655.4
Prohibited Drug Use – Prohibited Alcohol Use – Pre-employment Testing – Reasonable Suspicion Testing – Post-accident Testing – Random Testing – Return-to-Duty/Follow-up Testing – Retention of Records – MIS Reporting –

Key Sections – Part 40 Definitions – 40.3
Employer Responsibilities – Subpart B The Verification Process – Subpart G The Return-to-Duty Process – Subpart O Role/Responsibilities of Service Agents – Subpart Q

Prohibitions & Testing Overview
Drug Use, Alcohol Abuse, and Federal Testing

! Prohibited Drugs The “NIDA 5” Marijuana Cocaine Amphetamines Opiates
Phencyclidine (PCP) Use of these substances is prohibited at all times Prohibitions may be added (over-the-counter, Rx, etc.) Remind them that added prohibitions may not be tested for Federally. Cutoff Concentrations for Initial & Confirmation Tests !

The Drug Testing Process
Employee Selected Refusal Remove from Duty, Refer to SAP Sample Collected Sample Couriered to Lab Lab Analysis Medical Review Officer Negative DAPM Test Complete Positive 1. Employee Verification 2. DAPM POSITIVE TEST !

Prohibited Alcohol Use
Covered Employees may not use alcohol: While performing a safety-sensitive function Within four (4) hours of beginning the performance of a safety-sensitive function Within eight (8) hours after an accident (or until a post-accident alcohol test has been performed) While on Call* * The employee must be given the opportunity to acknowledge the use of alcohol at the time of notification.

Alcohol Testing Devices approved by NHTSA
Evidential Breath Testing Machine (EBT) Prints Result Only device that can be used for confirmation test Alcohol Screening Device Does not print result Approved by NHTSA, but cannot be used for confirmation testing Saliva Testing Strip most common

Alcohol Testing Process
!

The Five Types of FTA Testing
Pre-Employment Before 1st performance of SS Function After 90+ day absence (never a RTD!) Random Deters use among community; Must be unpredictable Post-Accident FTA testing after serious accidents Reasonable Suspicion Specific, articulable reason for testing Return-to-Duty/Follow-up Only after a positive/refusal, and after SAP referral

The Drug & Alcohol Program Manager
-Your role as defined by the Regulations -Your role within your Organization -The scope of your Function

49 CFR Part 40 & The DER (DAPM)
Part 40 Defines the Designated Employer Rep as: Part 40 Also Notes that: “An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes.” “The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents [TPAs, MROs, SAPs, Collectors/BATs] cannot act as DERs.”

You & Your Organization
Distance to Safety-Sensitive Personnel Can you meet DOT’s requirement to “remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties…?” Safety-sensitive Roster (“Pool”) Awareness Do you know before each draw who is currently SS? Are you linked into Payroll, Operations, or Human Resources? Do you know who your covered contractors are? Are you Plugged In? !

The Things You’ll Do Pre-employment Processing Policy & Training
Random Testing Post-Accident Testing Reasonable Suspicion Testing Return-to-Duty Testing Follow-up Testing Vendor Monitoring

Pre-Employment Processing
§655.41(a)(1): “Before allowing a covered employee or applicant to perform a safety-sensitive function for the first time, the employer must ensure that the employee takes a pre-employment drug test administered under this part with a verified negative result.”

The Pre-Employment Test
Contingent upon offer Negative result must be in hand prior to SS duty Pre-employment Alcohol Testing You may choose to do this (it’s an IQ test!) If you do, you must do it with Federal forms, and for all SS applicants/employees. If SS emp is away 90+ days, and out of random testing pool, perform a pre-employment test!

Background Checks 49 CFR Part 40 Section 25 requires Backgrounds Make your requests under 40.25, not 382! SS employers from last 2 years Within 30 days of hire You must ask the employee: “have you, in the last two years, failed or refused a DOT pre-employment test?” You must ask this because, had he failed/refused, you would have no employer of whom to make the above request! You must return requests made of you

P.E.T.E.R. The Pre-employment Testing Exemption Request
Contact Jerry Powers if: You are absorbing another entity or being absorbed by another entity Changes to your company are administrative only Pre-employment negatives are available for all employees

Policy & Training Compliance Dissemination Training

Your Policy Check compliance annually Do you have a model policy?
49 CFR Part 40 changed in August of 2008 – have you updated your policy? Do you have a model policy? Make sure it’s localized! Make sure your Board/GM knows! Disseminate & Explicate Your job is to help employees get it! Get a receipt from each employee (it’s proof!)

Training 60 min of Training for each Safety-sensitive Employee – Effects of Drug Use 120 min of Training for each Supervisor authorized to make Reasonable Suspicion Determinations: 60 min on Drug Use 60 min on Alcohol Use Training Video is available free from The FTA There is no official certification for this: self-certify!

Random Testing Deter, Detect, Deter
§655.45(f): “The employer shall randomly select a sufficient number of covered employees for testing during each calendar year to equal an annual rate not less than the minimum annual percentage rates for random drug and alcohol testing determined by the Administrator.”

Random Testing Determine your draw period
Cannot be less than quarterly Determine your rate (FTA Minimum is 25%/10%) A percentage of the number of safety-sensitive staff you employ throughout the year, on average You can test at a higher rate Your policy should indicate your rate Talk about pool dilution if pool not up to date

The Random Draw (or “Pull”)
For 2009, you must test 25%/10% of the average number of safety-sensitive employees An example: Q1: 336 SS emps Q2: 342 SS emps Q3: 361 SS emps Q4: 341 SS emps Average  (1380/4)=345 (this is the # of emps for MIS); Test for Drug: 25% = (87+ tests  22/q) Test for Alcohol: 10% = (35+ tests  9/q)

Random Testing Pools Keep your roster up to date
Use payroll, log, or other consistent mechanism US DOT covered employees only! Get this info to your C/TPA (as applicable) on time Ensure that your C/TPA gets it back to you!

Random Testing Pools continued
C/TPA: A Consortium/Third Party Administrator assists in the maintenance and application of your testing program A consortium is made up of independent systems who combine their safety-sensitive pools into one larger pool. A consortium must perform random testing selections at the highest applicable minimum rates

Random Testing & the TPA
A Third Party Administrator may perform numerous functions: Random Selection MRO Services Collection Sites/Collection Site Oversight Records Maintenance & Retention A TPA may not: Transmit Laboratory Reports from the Lab to the MRO Transmit Alcohol Results of from BAT to Employer

Random Testing Continued
Selection Lists must be securely maintained (2yrs+) Locked cabinet, minimal distribution Secure fax line, , etc. Notification of Random Testing Chain of Notification (Supervisors? Dispatchers?) Who ensures spreading of random tests? Constraints on random alcohol testing You may only perform random alcohol testing just before, during, or just after safety-sensitive duties. !

Immediacy Section (h) states that Each employer must decide how much time a notified employee has to report for testing. An employee’s failure to arrive at the collection site in the allotted time constitutes a Refusal to Test **Refusals Are Positive Tests!** “Each employer shall require that each covered employee who is notified of selection for random drug or random alcohol testing proceed to the test site immediately.”

Random Testing must be spread: Throughout the Year Throughout the Week Throughout All Hours of Safety-Sensitive Duty Spread may be proportional; it is not an even spread The goal of spreading tests is to increase deterrence through unpredictability !

Random Testing Result Processing You should receive the employer copy of the CCF/ATF within two (2) days of the test You should receive a result from the MRO/TPA within a few business days Do Not assume that “no news is good news” Keep track of results due, chase them down if necessary

Post-Accident Testing Training, Analysis, Timeliness
§655.44: “As soon as practicable following an accident… an employer shall conduct drug and alcohol tests on each covered employee operating the mass transit vehicle at the time of the accident.”

Post-Accident Testing
Training Who You, as the program manager, should be familiar with all aspects of the Federal Requirements Road Supervisors, as the primary on-scene decision makers Other supervisors/dispatchers/managers

Post-Accident Testing Continued
Post-Accident Testing Thresholds The event must be “associated with the operation of a vehicle” The event must have resulted in one or more of the following conditions:

FATALITY Always Test All Operators Other SS Emps INJURY Treatment Away from Scene Best Available Info DISABLING DAMAGE Any Vehicle *Removed from service * Applies to fixed-rail vehicles only!

“Best Available Info” You’re not psychic (probably) “At the Scene” means… “at the scene” (not: later…) nikscott.com

SO: If you document: “they’re ok now,” then… they’re ok now If you document: “he had nothing to do with it,” then… he had nothing to do with it FTA Will Back You Up One of the most common audit findings is: Post-Accident Over-Testing

Who to test after: A fatality, each surviving covered employee operating the mass transit vehicle at the time of the accident, as well as any other covered employee whose performance could have contributed to the accident, as determined by the employer using the best information available at the time of the decision

Who to test after: An accident not involving the loss of human life, each covered employee operating the mass transit vehicle… unless the employer determines, using the best information available at the time of the decision, that the employee’s performance can be completely discounted The employer shall also drug and alcohol test any other covered employee whose performance could have contributed to the accident

Post-Accident Testing - Discounting
A note on Discounting: Auditors find that inability to discount is frequently used in-and-of itself as a threshold (i.e., a reason to test) Supervisors also commonly discount in report narrative, then check “can’t discount” on a PA decision form A helpful way to think through non-fatal accidents is to invert the process hierarchy:

Post-Accident Testing - Discounting
Non-Fatal Event Discount Employee Threshold Not Applicable NO TEST, or Non-FTA Test Can’t Discount Employee Threshold Met: Injury/Dis-D Yes FTA Test No

More on Thresholds: Injured parties must receive medical attention away from the scene of the accident Assistance on-the-scene from EMS does not count Disabling damage can occur to the transit vehicle or to a privately-owned vehicle Disabling damage (§655.4) does not include: Damage that can be remedied temporarily at the scene Tire disablement without other damage Headlamp or tail light damage Damage to turn signals, horn, mirrors or windshield wipers

Key Time-frames in Post-Accident Testing Alcohol Testing: Should be conducted within two (2) hours of accident If not, you must document reason for delay If more than eight (8) hours pass, you must cease attempts to conduct test and update documentation Drug Testing: Must be conducted within 32 hours of accident Medical Treatment/Accident Resolution comes first !

Putting it together: Use forms Use FTA’s cards ( safety.fta.dot.gov/publications) Results from other State, Local, or Federal authorities (if you were not able to get a test done) Back to service? Some systems return their employees to service right away, some wait until a test result comes back…

Break New DAPM Seminar M. Redington 15 Minutes Mar. 2010 2

Reasonable Suspicion Testing
§655.43(a): “An employer shall conduct a drug and/or alcohol test when the employer has reasonable suspicion to believe that the covered employee has used a prohibited drug and/or engaged in alcohol misuse.”

Only a trained supervisor may make a reasonable suspicion determination Only one (1) supervisor is required You can require that two or more are present, but the initiating supervisor must make “final call” Training must meet the requirements of § and §655.14(b)(2) 60 minutes on observable signs of drug use 60 minutes on observable signs of alcohol use It’s up to you to decide who is a “supervisor”

Reasonable Suspicion Testing Cont.
Reasonable Suspicion Testing must be based on “specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the covered employee (§655.43(b)).” No anonymous tips No “gut feelings” An accident is not a symptom (it may trigger an interview)

Common observations include: Bloodshot, glassy, or dilated eyes Slurred or unusually mumbled/stuttered speech Unusual or erratic gait Unusually combative or garrulous The Portland Mercury

Reasonable suspicion alcohol testing may only be performed if the observation is made: “during, just preceding, or just after the period of the workday that the covered employee is required to be in compliance with this part (§655.43(c)).”

Key Time-frame in Reasonable Suspicion Testing Alcohol Testing: Should be conducted within two (2) hours of accident If not, you must document reason for delay If more than eight (8) hours pass, you must cease attempts to conduct test and update documentation

Documentation relating to reasonable suspicion determinations must be maintained for two (2) years (§655.71(c)). Use forms! Remember to maintain documentation relating to reasonable suspicion training as well

Back to service? Some systems return their employees to service right away, some wait until a test result comes back…

Return-to-Duty Testing
§655.46: “Where a covered employee refuses to submit to a test, has a verified positive drug test result, and/or has a confirmed alcohol test result of 0.04 or greater, the employer, before returning the employee to duty to perform a safety-sensitive function, shall follow the procedures outlined in 49 CFR Part 40 [Subpart O].”

Part 40, Subpart O outlines the duties of the Substance Abuse Professional (SAP) and the return-to-duty and follow-up testing processes. Dr. Katz, © Comedy Central

The return-to-duty cycle is comprised of three main parts: Referral, Initial SAP Evaluation & Recommendation Follow-up Evaluation & Recommendation Return-to-Duty Test w/ Negative Result

Return-to-Duty Testing continued
Referral – after a DOT violation, you refer the employee to a qualified SAP The SAP must meet the requirements of §40.281: (a) Credentials (Social Worker, Counselor, Psych, etc.) (b) Knowledge of Part 40, and experience in the diagnosis and treatment of related disorders (c) Qualification training (a test) pursuant to this Part (d) Continuing education (12 CEUs per 3 years) SAPs are NOT “certified” by DOT!

Initial Evaluation and Recommendation: SAP interviews the employee and recommends a course of education and/or treatment SAP must always recommend some kind of education and/or treatment Neither you nor the employee may seek a “2nd opinion” You must receive and maintain a copy of this report !

Follow-up Evaluation and Recommendation: SAP interviews employee after education/treatment has begun You must receive and maintain a copy of this report SAP decides to release for return-to-duty test Only the employer may decide “fitness for duty” The employee can not return to safety-sensitive duty until you are in receipt of RTD negative(s)

Follow-up Testing §655.47: “An employer shall conduct follow-up testing of each employee who returns to duty, as specified in 49 CFR Part 40, subpart O.” §40.309(a): “As the employer, you must carry out the SAP's follow-up testing requirements. You may not allow the employee to continue to perform safety-sensitive functions unless follow-up testing is conducted as directed by the SAP.”

Follow-up Testing continued
Substance Abuse Professional determines the number and frequency of follow-up tests SAP must require at least 6 tests in the first year SAP may not prescribe “at least 6 tests” - the number must be fixed Tests will be drug, alcohol, or both Testing may only continue for 60 months (5 years)

NEW REGULATION ALL Return-to-Duty and Follow-Up MUST be conducted as directly observed

SAP may front-load or taper the frequency For example: 1 test per month for the first 6 months, then 1 test every other month for an additional 12 months 1 test every other month for the first 12 months, then 1 test per month for 12 months SAP may review and modify the follow-up testing plan, as necessary

SAP is the sole determiner of the number and frequency of follow-up tests, DAPM must actually schedule the tests Like random testing: unannounced and unpredictable You may not substitute other tests for these tests You may not go above and beyond the SAP’s plan SAP’s follow-up testing plan “follows” the employee to any other DOT-reg’d employer

More on Your Policy §655.12: “An anti-drug use and alcohol misuse program shall include the following: (a) A statement describing the employer’s policy on prohibited drug use and alcohol misuse in the workplace, including the consequences associated with prohibited drug use and alcohol misuse…”

More on Your Policy Your policy must:
Be adopted by the local governing board or entity Identify you, the DAPM, by name or position Include specific prohibitions, and the consequences of violating those prohibitions Offset clearly any elements that are included under local authority Must list each refusal condition defined by Part 40

Policy – Refusal Conditions
Failure To: Appear at all, or in a timely manner* Remain until the testing process is complete** Provide a sample** Provide a full sample w/o medical reason Undergo a medical evaluation Cooperate w/ any part of the process Permit monitoring/observation Take a second test, as ordered Sign step 2 of the Alcohol Testing Form The submission of a verified adulterated/substituted test *Not a refusal for pre-employment testing **Not a refusal for pre-employment testing, provided testing has not yet begun

Policy – Refusal Conditions Cont.
On August 25, 2008, the following refusals were added (§40.191(a)(9-10)): The possession or wearing of a prosthetic or other device that could be used to interfere with the collection process Failure to follow an observer’s instructions to raise/lower clothing and underpants, and to turn around to permit the observer to ascertain the presence/absence of interfering paraphernalia Admission to the collector/MRO of adulteration or substitution

Local Policy Decisions
Decisions you must make locally: “2nd Chance” Policy Negative-Dilute Policy A second negative-dilute is always negative You must treat all employees the same You may have different policies for different test types

Pre-employment Alcohol Testing If you do this, you must do it for all SS applicants/employees. Random Testing Rate For 2009: 25% or more must be tested for drug use 10% or more must be tested for alcohol misuse

Which groups of employees are safety-sensitive Dispatchers? Volunteers? Security? Supervisors? Management?

Records Management Pre-Employment Random Post-Accident Reasonable Suspicion RTD/Follow-up Training Records Vendor Certs §655.71(a): “General requirement. An employer shall maintain records of its anti-drug and alcohol misuse program as provided in this section. The records shall be maintained in a secure location with controlled access.”

Pre-Employment Previous Employer (Background) Checks
Pre-employment Negative Date of Safety-sensitive Service 90-day Safety-sensitive Window

Background Checks Make the request per §40.25
A request form can be found at: You may verbally ask if they’ve failed/refused a regulated pre-employment test (§40.25j)… but it’s better to document it Employee may not continue to perform safety-sensitive functions for more than 30 days without documentation of efforts to obtain this info

Background Checks continued
As the employer from whom this information is requested, you must, “after reviewing the employee's specific, written consent, immediately release the requested information to the employer making the inquiry.” (§40.25(h)) Information you obtained from a previous employer shall be included with the information you forward to the requesting employer Records related to this request must be maintained for three years (§40.333(a)(2))

Negative Result You may not use the employee in safety-sensitive service until you are in receipt of a verified negative Non-safety-sensitive training, orientation, etc. is fine A canceled test must be made up You must maintain this negative result for at least one year Most choose to maintain this through emp’s period of service

Service Periods If: more than 90 days pass after your receipt of a verified negative pre-employment result, and the applicant/employee is not yet in the random testing pool, then Another pre-employment negative must be received prior to service (never a return-to-duty!) For records-analysis purposes, it is recommended to keep track of the date an employee/applicant enters into safety-sensitive service (as opposed to a payroll “hire” date !

Pre-employment Testing
Questions Open Q&A for: Pre-employment Testing

Random Testing Rosters, Pools, & Selection Lists Your Testing Rate
Immediacy The Deterrent Spread Test Results Self-auditing

The Selection Process Employees in selection roster (or “pool”) must match the categories covered in your policy Consistent system for updating your roster Use a consistent source for updates Either make your updates instantly (e.g., upon hire/term) or make updates prior to each and every draw If a TPA performs your draws, make sure you update their list before the draw Selections must be scientifically valid

The Selection Process continued
Remember! If employee is out of service for 90+ days, and is out of your random testing pool during that period: You must be in receipt of a verified negative pre-employment test prior to their return to service Again, not a Return-to-Duty test! Yes, you can leave an employee in the pool, even if they’re not working… If that employee is selected for testing, and they do not return to service during the current selection period (month, quarter, etc.), simply record the reason the test was not performed, and move on

! Your Testing Rate The 2009 FTA testing rates are as follows:
Drug Testing: 25% | Alcohol Testing: 10% Updated rates for all industries can be found at Joint FTA/FMCSA Pools must test at higher rate You may test above 25% and 10% These are the minimum testing rates A note on your policy: You must change and disseminate only if you specifically note the Fed rate as 50% !

Your Testing Rate continued
§655.45(b): §655.45(c)(1): “… Each year, the Administrator will publish in the Federal Register the minimum annual percentage rates for random drug and alcohol testing of covered employees. ” “When the minimum annual percentage rate for random drug testing is 50 percent, the Administrator may lower this rate to 25 percent of all covered employees if the Administrator determines that the data received under the reporting requirements of section of subpart H for the two preceding consecutive calendar years indicate that the reported positive rate is less than 1.0 percent.”

Your Testing Rate continued
The testing rate reflects a percentage of the number of employees in your pool, not a percentage of the individuals in your pool. So: Some employees may get tested more than once, Some employees may not get tested at all

Immediacy & The Notification Process
§655.45(h) states: Furthermore: “Each employer shall require that each covered employee who is notified of selection for random drug or random alcohol testing proceed to the test site immediately.” “If the employee is performing a safety-sensitive function at the time of the notification, the employer shall instead ensure that the employee ceases to perform the safety-sensitive function and proceeds to the testing site immediately.”

Immediacy & The Notification Process
You/supervisors must be cognizant of your local policy for immediacy If you escort employees, this is of course less of an issue A notification form does all the work for you! It tells the employee why they’re being tested ( It verifies the date and time of notification It verifies the date and time of the employee’s arrival to the testing site

The Deterrent Spread of Testing
§655.45(g) states: So, what do random spreads look like? “Each employer shall ensure that random drug and alcohol tests conducted under this part are unannounced and unpredictable, and that the dates for administering random tests are spread reasonably throughout the calendar year. Random testing must be conducted at all times of day when safety-sensitive functions are performed.”

Year-Spread - Good

Year-Spread – Not so Good

Year-Spread – Bad!

The Deterrent Spread Spread testing throughout days & hours of Service
FTA stressed this in a ‘98 interpretation: What do week/hour spreads look like? “A grantee's drug and alcohol program manager must schedule random testing for any time a safety-sensitive function is being performed. In addition, random testing must occur throughout the period when safety-sensitive functions are being performed. Employees performing safety-sensitive functions after normal business hours or on the weekends remain subject to random testing. The fact that random testing during "off hours" may be an administrative inconvenience is not an acceptable reason not to test.” (Casper ‘98)

Week-Spread - Good

Week-Spread – Not So Good

Week-Spread – Bad!

Hour-Spread - Good

Hour-Spread – Not Good

The Deterrent Spread Remember: The spread is proportional to service
Track your spreads! Remember: The spread is proportional to service Alcohol Testing may only be performed Just before safety-sensitive duty During safety-sensitive duty Just after safety-sensitive duty Drug testing may be performed at any time If only one employee works on Sundays, and that employee is not selected for testing, then it’s fine to not test on Sunday during that period

Random Testing Results
Make sure results are coming in a timely fashion Don’t assume “no news is good news” Develop a results-tracking system Maintain negative results for at least 1 year All positive results must be maintained for 5 years Random testing selection lists must be maintained (securely) for at least 2 years

Random Testing – Self Audit
Three questions to ask yourself: Who was sent for testing? When selected? What safety-sensitive function? Selected (and tested) for drugs, alc, or both? When did they go for testing? During the period in which they were selected? At an optimally deterrent time? Immediately upon notification?

Random Testing – Self Audit cont.
Is the test complete? Did you receive your copy of the CCF/ATF? Did you receive a result in a timely fashion? Did you take action, if necessary? Did you record and file the complete testing event? During an audit, we would look for: A selection list A notification form A CCF/ATF A result

Questions Open Q&A for: Random Testing

Accident Reports Decision-Making Documentation CCFs/ATFs Results

Accident Reports The Reporting Chain Date & Time of Accident
Street supervisors? Drivers only? You? Date & Time of Accident Disposition of Individuals Fatalities Injuries requiring medical treatment away from the scene

Accident Reports continued
Disposition of Vehicles Any vehicle receives disabling damage (i.e., gets towed) Event narrative While you might not maintain accident reports yourself, make sure you have access

Decision-making Documentation
Use a form, you’ll be very glad! Guide the decision-maker: Threshold(s) met Other employees Discounting Timing Time of Accident, Time of Alcohol Test, Time of Drug Test Delay-related notes This documentation must be maintained for 2 years

Post-Accident Tests/Results
Check the CCF & ATF when they come in Alcohol test should be first! Test Results: Did they come in a timely fashion? Action taken, as necessary? If you were unable to complete a test, were you able to obtain a result from another local, State, or Federal authority? (§655.44(f)) Did you record and file a complete testing event?

Questions Open Q&A for: Post-Accident Testing

Reasonable Suspicion Who makes the call
Contemporaneous, Articulable Observations Alcohol Testing, and Time Frames

Who Makes the Call Trained supervisors only
One hour of training on the signs and symptoms of drug use, and one hour of training on the signs and symptoms of alcohol misuse Only one supervisor is required, though you may seek additional presence Keep training curricula, sign-in sheets, certs At least two years

Observations & The Interview
Test can only take place after an interview in which a trained supervisor documents: “specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the covered employee.” (§655.43(b)) Anonymous/Phone tips are not reasons to test, but anything can trigger an interview Observation must be made just before, during, or just after safety-sensitive duty

Alcohol Testing, and Time Frames
Testing must be performed as soon as the decision to test is made Reasonable Suspicion Alcohol Testing: 2hrs, document 8hrs, cease attempts, update documentation Alcohol testing before drug testing, if applicable

Questions Open Q&A for: Reasonable Suspicion Testing

Return-to-Duty/Follow-up
Event Narrative & Chronology Return-to-Duty Testing Follow-up Testing

Event Narrative & Chronology
Records related to a positive or refusal should clearly detail circumstances, actions, and outcomes Initial testing event Immediate Action Policy and Consequences SAP Referral

Narrative & Chronology
Initial testing event Reason for the test Notification dates/times Related documents CCFs/ATFs Test Results MRO Correspondence Immediate Action Action Taken (e.g., Removal from Duty) Internal Correspondence

Policy and Consequences Terminated Second Chance A good time to check that you have a policy receipt SAP Referral Record of the referral You must make this referral even if you have a zero-tolerance policy! !

SAP Reports & Documents Make sure you’re always getting these three items from the SAP: Initial Evaluation w/ Treatment/Education Recommendation Follow-up Evaluation, with SAP’s disposition Follow-up Testing Plan (employee can not see!) You must maintain these reports and associated documents for five (5) years (§40.333(iv))

The Return-to-Duty Process
The SAP will tell you in the follow-up disposition report if they feel that the employee is ready to take a return-to-duty test A Fitness-for-Duty determination must be made locally – SAP can not make this call for you The SAP will decide weather the RTD test is for drugs, alcohol, or both – not up to you You must be in receipt of a verified negative test before employee returns to service !

Follow-up Testing Must be conducted per SAP’s plan
Must be spread out, unpredictable, and immediate Employee remains in the random testing pool A random test can not be a substitute for a follow-up test, nor can any other test be a substitute for a follow-up test. If you hire an employee who has not completed their SAP’s plan, you must see it through

Questions Open Q&A for: Positive Tests
Return-to-Duty & Follow-up Testing

Training Employee Training Supervisor Training

Employee Training 60 min. on the effects and consequences of prohibited drug use (all ss emps) 60 min. on the indicators of drug use & 60 minutes on the indicators of alcohol misuse (supervisors) Training only needs to take place once Many employers do frequent refresher training Documentation must be maintained for 2 years

Vendor Certifications
§40.15(b) states: “As an employer, you are responsible for ensuring that the service agents you use meet the qualifications set forth in this part (e.g., § for MROs). You may require service agents to show you documentation that they meet the requirements of this part (e.g., documentation of MRO qualifications required by §40.121(e)).”

Vendor Certifications
The following materials are commonly maintained in support of this Part: MRO certifications/credentials SAP certifications/credentials Urine Collector certifications Breath Alcohol Technician certifications NHTSA Device compliance notices Random number generation – compliance documentation

Oversight §40.15(c) states:
“You remain responsible for compliance with all applicable requirements of this part and other DOT drug and alcohol testing regulations, even when you use a service agent. If you violate this part or other DOT drug and alcohol testing regulations because a service agent has not provided services as our rules require, a DOT agency can subject you to sanctions.” Contractors Third-party Administrators Other Vendors Internal Audits

Contractor Oversight §655.81 states:
“A grantee shall ensure that the recipients of funds under 49 U.S.C. 5307, 5309, 5311 or 23 U.S.C. 103(e)(4) comply with this part.”

Contractor Oversight Contractors who perform safety-sensitive functions must meet all requirements of Parts 655 & 40 They must have: Compliant policies Clearly identified categories of covered employees Readily apparent pre-employment processes All applicable training & certifications Info for a qualified SAP MIS Compliance

Contractor Applicability

Contractor Oversight - Testing
Contractors must perform compliant testing: Random Testing Adequately Spread Minimum Testing Rates You can absorb a contractor’s ss emps into your pool Post-Accident Testing Must meet FTA testing thresholds, time requirements Return-to-Duty/Follow-up Testing Compliant, Spread, Documentation in Place

Third-party Administrators
! TPAs work for you – ask them lots of questions! Be aware of the functions they may be performing for you: Are they doing your random pulls? Are they maintaining records? Are they securing vendor qualifications? Are they reporting results? Consistently and in a timely fashion? Do they assist in MIS assembly?

Third-party Administrators cont.
If you’re in a consortium, is your TPA: Submitting blinds, if applicable? (2000+ emps in pool) Testing at the appropriate minimum rate? TPA Prohibitions: May not stand in for DER (you!) May not transmit results from lab to MRO May not transmit alcohol pos from BAT to DER Remember, you are responsible for your TPAs

Vendor Oversight Be aware of each vendor’s role, and monitor their compliance as best you can MROs are regulated by Part 40, Subpart G (§ §40.169) SAPs are regulated by Part 40, Subpart O (§ §40.313) Collection Sites are regulated by the bulk of Part 40 Check CCFs and ATFs as soon as they come in!

Vendor Oversight – Collections
The Traveling Public US Congress US DOT FTA You Coll/BAT

Internal Audits You can audit your own system, your contractors, or your vendors – you’re responsible for all of them The interviews used by FTA auditors to determine compliance are available for download at If you find problems, require remediation

Questions Open Q&A for: Contractor & Vendor Oversight

The D&A Management Info System
§655.72(a) states: “Each recipient shall annually prepare and maintain a summary of the results of its anti-drug and alcohol misuse testing programs performed under this part during the previous calendar year.” This is (DA)MIS Due Date Website Usage How-to Retention

MIS Reporting - Basics Reporting to the D&A MIS system is required annually, by March 15th Submit all information accurately and in a timely fashion (§655.72(c)) Online reporting is quick and easy: Contact the Volpe Center for assistance: // !

MIS Reporting – DOT’s Usage
FTA Uses MIS Reporting Data to: Recognize trends in use and abuse Objectively determine and analyze the effectiveness of the testing program Demonstrate industry compliance to DOT & Congress Determine future random testing rates Schedule D&A compliance audits Note: A low positive rate might be a reason for an audit just as much as a high positive rate – people are… human!

MIS Reporting – How To If you’re a pass-through (MPR, State, etc.)
Fill out your MIS forms with zeros Make sure your contractors/subs get their info in If you’re a grantee or contractor/sub-recipient Calculate number of employees To calculate the total number of covered employees, add the total number of covered employees eligible for testing during each random testing selection period for the year and divide that total by the number of random testing periods. Note: no company will need to factor the average number of employees more often than once per month. Enter number of results in appropriate column If you have a TPA and/or are in a Consortium Be sure to include the TPA’s name on your MIS

MIS Reporting – How To, cont.
If you’re regulated by multiple DOT agencies: Submit separate MIS reports, one to each agency Do not double-report Submit each SS Emp where he performs the most work

MIS Reporting – How To, cont.
Safety Sensitive Emps FTA FTA MIS FMCSA FMCSA MIS

MIS Reporting - Retention
MIS Reports must be maintained for five (5) years Remember that if you’re in a consortium, you may locally test below the FTA minimums… don’t worry!

Questions Open Q&A for: MIS Reporting

Best Practices These practices and procedures might help you to more easily manage your testing program Policies Forms Logs Pre-employment Random Post-Accident Reasonable-Suspicion RTD/FU

Policies Use a model policy Make sure it’s locally appropriate
Keep it up to date (the regs change and grow!)

Forms Pre-employment Previous Employer Requests
Notification & Result Tracking Random Deterrent Spread Compliance Post-accident Decision-making Process Post-accident Time-frame Compliance Reasonable Suspicion Condition Summary, Decision Process Time-frame Compliance

Logs Basic logs can help you keep constant, accurate info about your compliance status Use a basic spreadsheet to collect pertinent info Add charts, links, macros… go nuts! Be sure to keep sensitive data secure !

Pre-employment Testing
Keep pre-employment negatives beyond FTA’s retention requirement Keep them as long as you employ the individual Record date of safety-sensitive duty In addition to date of hire 40.25 Log your good-faith efforts

! Random Testing Systematic Pool Maintenance
To spread tests, track your progress It’s easier than it sounds Not as many tests as you think need to be off-hours Early/Late Alcohol Testing

Random Testing – Full Circle
POOL SELECT NOTIFY TEST RESULT FILE

Awareness of the Regs, Consistent Training Dispatchers Employees Supervisors Management Good, guiding forms Review and learn from mistakes

Awareness of the Regs, Consistent Training Complete Event Package Extensive documentation All the facts Policy awareness Appropriate action

RTD/Follow-up Testing
Case Awareness Know the Facts Know the Case-specific Requirements Communication SAP MRO Follow-up Log/Schedule Up-to-date Tailored to each plan

Oversight Internal Contractors Vendors Self-audit Robust training
Consistent communication Contractors Audit Periodic compliance (beyond MIS) Training assistance Vendors Periodic compliance certification Continuous product analysis

Questions Open Q&A for: The Role of the DAPM

Contacts & Resources

Contacts Jerry Powers, FTA D&A Program Manager
(617) Mike Redington, RITA/Volpe Center (617) Eve Rutyna, RITA/Volpe Center (617) FTA Drug and Alcohol Hotline (617) For questions regarding an audit, contact the audit team leader

Resources FTA Safety & Security: FTA D&A MIS Reporting:
FTA D&A MIS Reporting: DOT Office of Drug & Alcohol Policy & Compliance: FTA Drug & Alcohol Forum:

Thank you

FTA Drug & Alcohol Program National Conference March, 2010

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FTA Drug & Alcohol Program National Conference March, 2010

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