Substance Abuse Professional Return-to-Duty Process Understanding the Employer & DOT-SAP Roles Jon P. Speckman, MSM, LCAS, CCS th Annual FTA Conference Phoenix, Arizona

Introduction - Qualification  Jon P. Speckman, MSM, LCAS, ICAADC, CCS MSM – Masters of Management MSM – Masters of Management LCAS – Licensed Clinical Addiction Specialist –NC LCAS – Licensed Clinical Addiction Specialist –NC ICAADC – ICRC Advanced Alcohol & Drug Counselor ICAADC – ICRC Advanced Alcohol & Drug Counselor CCS – NC Certified Clinical Supervisor CCS – NC Certified Clinical Supervisor Field of Substance Abuse for 30+ years Field of Substance Abuse for 30+ years 16 yrs. – Clinical Treatment 16 yrs. – Clinical Treatment 10 yrs. – Third Party Administrator 10 yrs. – Third Party Administrator 12 yrs. – Consultant, Trainer, Clinician/Evaluator 12 yrs. – Consultant, Trainer, Clinician/Evaluator Small Employee Assistance service Small Employee Assistance service  What Credentials are Important – Why? 2

DOT Expectations  DOT very wisely recognized 3 things: 1. Alcohol & Drug problems are a safety issue for transportation 2. Each case is individual – there is no “one size fits all” 3. Professionals are better suited than regulation in setting individual corrective action 3

DOT Regulations Overview  The Process Puts responsibility on employee who violated rules Puts responsibility on employee who violated rules Penalizes (fines) employer ONLY for use of “non-compliant” employee Penalizes (fines) employer ONLY for use of “non-compliant” employee Does not require employer to do things outside their control Does not require employer to do things outside their control Allows an employer to help but only REQUIRES employer not to use “unqualified” individuals Allows an employer to help but only REQUIRES employer not to use “unqualified” individuals Does not allow SAP to determine “nothing required” after a violation Does not allow SAP to determine “nothing required” after a violation 4

The Key Players WHOEmployer& Substance Abuse Professional 5

WHO - The Employer §40.23 (d) As an employer, when an employee has a verified positive, adulterated, or substituted test result, or has otherwise violated a DOT agency drug and alcohol regulation, you must NOT return the employee to the performance of safety-sensitive functions until or unless the employee successfully completes the return-to- duty process of Subpart O of this part. §40.23 (d) As an employer, when an employee has a verified positive, adulterated, or substituted test result, or has otherwise violated a DOT agency drug and alcohol regulation, you must NOT return the employee to the performance of safety-sensitive functions until or unless the employee successfully completes the return-to- duty process of Subpart O of this part. 6

WHO - The Designated Employer Representative (DER)  Employer - DER -§40.3 (Definition) 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 cannot act as DERs. 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 cannot act as DERs. 7

WHAT - The DER Role  Employer - DER DOT defines the DER position as responsible for all confidential communications DOT defines the DER position as responsible for all confidential communications FIRST the DER sees that violating employee is immediately removed from safety sensitive duties FIRST the DER sees that violating employee is immediately removed from safety sensitive duties DER provides referral to SAP(s) regardless of what personnel action occurs DER provides referral to SAP(s) regardless of what personnel action occurs DER is communicator with SAP DER is communicator with SAP Even if not coming back – violation information Even if not coming back – violation information No additional consent needed from employee No additional consent needed from employee 8

WHAT - The DER Role  Employer DER (continued) DER should know the SAPs on your list DER should know the SAPs on your list SAP should be local person first SAP should be local person first Meet & know your SAP - know their practice, get SAP credentials Meet & know your SAP - know their practice, get SAP credentials Talk about your understandings & expectations for anyone you send to SAP Talk about your understandings & expectations for anyone you send to SAP Only use national / non-local when your employees are not local or local SAPs change frequently Only use national / non-local when your employees are not local or local SAPs change frequently 9

WHO - The SAP  The - Substance Abuse Professional DOT recognized need to use professionals for a health problem affecting safety DOT recognized need to use professionals for a health problem affecting safety Limit SAPs to those professionals with credentials and substance abuse training Limit SAPs to those professionals with credentials and substance abuse training Requires “adjustment” to SAP’s usual clinical focus on patient to include public safety Requires “adjustment” to SAP’s usual clinical focus on patient to include public safety Requires separation of SAP & treatment Requires separation of SAP & treatment Requires education or treatment at minimum Requires education or treatment at minimum Requires written communication with the employer Requires written communication with the employer 10

WHO - SAP Credentials  Only These Professionals -§ Licensed Physician (MD or DO) Licensed Physician (MD or DO) Licensed or Certified Licensed or Certified  Social Worker  Psychologist  Employee Assistance Professional  Marriage & Family Therapists  State Alcohol or Drug Counselor n Only if NAADAC or ICRC Certified NBCC -Master Addictions Counselor NBCC -Master Addictions Counselor 11

WHAT - SAP Required Knowledge  Regardless of Degree or Credential - §  Experience in Addiction Services Diagnosis and treatment of alcohol & controlled substances-related disorders Diagnosis and treatment of alcohol & controlled substances-related disorders  Knowledge of DOT Requirements The DOT SAP Return-to-Duty Process The DOT SAP Return-to-Duty Process The DOT regulation 49 CFR Part 40 The DOT regulation 49 CFR Part 40 The DOT Agency rules for your company The DOT Agency rules for your company The DOT SAP Guidelines The DOT SAP Guidelines ALL changes that occur to the above ALL changes that occur to the above Available at Available at 12

WHAT - Qualification Training  Key DOT Drug testing requirements Collections, lab, MRO & problems in testing Collections, lab, MRO & problems in testing  Key DOT Alcohol testing requirements Testing process, BAT, STT & problems in testing Testing process, BAT, STT & problems in testing  SAP qualifications and prohibitions Limits referral to SAP’s own services - ethics Limits referral to SAP’s own services - ethics Initial evaluation, referral, follow-up evaluation, continuing care, the Follow-up testing plan Initial evaluation, referral, follow-up evaluation, continuing care, the Follow-up testing plan  SAP consultation and communications  Reporting and recordkeeping requirements  Issues the SAP may & MAY NOT confront 13

WHAT - SAP National Exam  Complete a Nationally Recognized Exam One time – Qualification only One time – Qualification only  National Exams are: EAPA – Employee Assistance Professional Assoc. EAPA – Employee Assistance Professional Assoc. NAADAC – Association of Addiction Professionals NAADAC – Association of Addiction Professionals ICRC – International Credentialing & Reciprocity ICRC – International Credentialing & Reciprocity SAPAA – Substance Abuse Program Administrators SAPAA – Substance Abuse Program Administrators Others can be found on DOT – ODAPC website Others can be found on DOT – ODAPC website 14

WHAT - Ongoing Requirements  Continuing Education 12 PDH or CEUs every 3 years Following Qualification Exam 12 PDH or CEUs every 3 years Following Qualification Exam Must be in DOT SAP relevant material – NOT just any training Must be in DOT SAP relevant material – NOT just any training  Credential Documentation SAP’s Sole responsibility SAP’s Sole responsibility Qualifying Credential Qualifying Credential Certificate of SAP Exam Certificate of SAP Exam Demonstrate 12 PDH or CEUs every 3 years from date of exam Demonstrate 12 PDH or CEUs every 3 years from date of exam 15

Subpart O Required  What Requires the SAP Process be conducted? Positive drug or alcohol test Positive drug or alcohol test Applicant OR Employee Applicant OR Employee Refusals to Test (11 items now) Refusals to Test (11 items now) Pre-duty use violation Pre-duty use violation On duty use On duty use Drugs/Alcohol in vehicle Drugs/Alcohol in vehicle NOT – DWIs in Personal Car NOT – DWIs in Personal Car 16

SAP is Required? WHAT ARE THE SAPSERVICES? 17

SAP Return-to-Duty Process  Definition - § (a) No Employee who has violated the DOT regulations may perform Safety Sensitive duties for ANY DOT regulated employer until he/she has completed the initial evaluation, referral for education treatment, follow-up evaluation AND passed a return-to-duty drug and/or alcohol test. No Employee who has violated the DOT regulations may perform Safety Sensitive duties for ANY DOT regulated employer until he/she has completed the initial evaluation, referral for education treatment, follow-up evaluation AND passed a return-to-duty drug and/or alcohol test. 18

SAP Required Services  SAP Required Services? §  SIX ELEMENTS: I. Initial Clinical Assessment II. Referral to Education or Treatment III. Managing Referral Access IV. Follow-up Clinical Assessment V. Establish Follow Up Testing Plan VI. Provide Employer Letters After Initial Assessment After Initial Assessment After Follow-up Assessment with testing plan After Follow-up Assessment with testing plan 19

I. Initial Assessment §  Face-to-face evaluation - Local 1. Clinical Diagnostic Evaluation 2. Requires use of a test instrument 3. Screens for any problem 1. Substance abuse, Mental Health, etc. 4. Establish treatment goals 5. “NO PROBLEM FOUND” not an option 6. Results in Initial Letter to employer 7. Establishes goals No Consideration of employee “claims” No Consideration of employee “claims” Wrong test, no reason, etc. Wrong test, no reason, etc. 20

II. Referral to Service § Always Requires Referral Always Requires Referral Can’t refer to SAP’s own practice Can’t refer to SAP’s own practice Facilitates entry to services Facilitates entry to services Education Services Education Services Structured education program Structured education program Monitored self-help Monitored self-help Specific goals to achieve Specific goals to achieve Treatment Services Treatment Services Possible inpatient – used rarely Possible inpatient – used rarely Outpatient most common Outpatient most common Weekly to multiple times a week Weekly to multiple times a week Often a combination of services Often a combination of services May have two levels over time May have two levels over time 21

III. Referral Monitoring §  Communicates with Treatment Monitors if change is necessary Monitors if change is necessary Receives clinical progress updates Receives clinical progress updates  Works with counselor if problems Receives final discharge summary Receives final discharge summary Consults with counselor on any follow up needs Consults with counselor on any follow up needs  Prepares for Re-evaluation Reviews written progress reports Reviews written progress reports Consults with counselor Consults with counselor 22

IV. Follow-Up Evaluation §  Face to Face with employee Focuses on employee’s learning Focuses on employee’s learning Understanding of problem Understanding of problem Internalization of goals Internalization of goals Behavior and lifestyle changes Behavior and lifestyle changes  Two Outcomes Possible Successful Compliance – Return-to-Duty Successful Compliance – Return-to-Duty  SAP only authorizes R-T-D testing  Employer decides actual Return-to-Duty Unsuccessful Compliance – NO RETURN Unsuccessful Compliance – NO RETURN  Employer sets personnel action Evaluates Need for Ongoing support Evaluates Need for Ongoing support SAP must set follow up testing needs SAP must set follow up testing needs Can recommend self-help, aftercare counseling, etc. Can recommend self-help, aftercare counseling, etc. 23

V. Follow-Up Testing Plan §  SAP Establishes – Employer Carries out Recognizes relapse potential – safety risk Recognizes relapse potential – safety risk Testing should be employee specific – based on SAP’s knowledge of use pattern Testing should be employee specific – based on SAP’s knowledge of use pattern Requires MIMIMUM 6 tests in 1 st year Requires MIMIMUM 6 tests in 1 st year Can go up to 60 months – based on need Can go up to 60 months – based on need Rate depends on employee need for support Rate depends on employee need for support Usually drug/person specific Usually drug/person specific More intense the craving – more frequent the follow- up testing – Cocaine-Meth vs. Marijuana More intense the craving – more frequent the follow- up testing – Cocaine-Meth vs. Marijuana Less intense – less frequent Less intense – less frequent Should be supportive not punitive Should be supportive not punitive SAP sets frequency and volume SAP sets frequency and volume Employer sets actual dates Employer sets actual dates 24

VI. Required Reports § Letter After Initial Evaluation Letter After Initial Evaluation 1. Employee name & SS# (D-O-B) 2. Employer name & address 3. Reason – specific violation & date 4. Date(s) of assessment 5. SAP’s education/treatment required 6. SAP’s phone & contact information On SAP’s own letterhead On SAP’s own letterhead No Personal Clinical Information No Personal Clinical Information No diagnosis, personal history, etc. No diagnosis, personal history, etc. 25

VI. Required Reports - Continued Letter After Follow-Up Evaluation Letter After Follow-Up Evaluation Same 1-6 items from 1 st letter Same 1-6 items from 1 st letter 7.Name of education/treatment service 8.Inclusive dates of participation 9.Clinical characterization of participation 10. SAP’s determination of employee’s successful/unsuccessful compliance 11. Specific follow-up testing plan  Best if an attachment – not in letter  SAP can re-evaluate after a year After Care needs if any 1.Must be presented at follow-up 2.Monitored by employer 26

SAP Letter EXAMPLES  Review SAP Sample Letters Initial Letter Initial Letter Successful Letter Successful Letter Follow-Up Testing Schedule Follow-Up Testing Schedule Unsuccessful Letter Unsuccessful Letter 27

Documentation? HOW DO I DOCUMENT COMPLIANCE SAP SERVICES? 28

EMPLOYER DOCUMENTS §  Successful Compliance with Subpart O Copy of original violation Copy of original violation Document removing from safety sensitive duties with SAP resources Document removing from safety sensitive duties with SAP resources Initial evaluation letter Initial evaluation letter Follow-up letter Follow-up letter Follow-up testing schedule Follow-up testing schedule Negative Return-to-Duty drug and/or alcohol tests Negative Return-to-Duty drug and/or alcohol tests Copies of ALL follow-up tests as required in SAP schedule of testing Copies of ALL follow-up tests as required in SAP schedule of testing 29

EMPLOYER DOCUMENTS §  Unsuccessful Compliance Subpart O Copy of original violation Copy of original violation Document removing from safety sensitive Duties with SAP resources Document removing from safety sensitive Duties with SAP resources Initial evaluation letter Initial evaluation letter Follow-up Letter indicating unsuccessful compliance Follow-up Letter indicating unsuccessful compliance Any additional correspondence to/from SAP – Possible re-evaluation, etc. Any additional correspondence to/from SAP – Possible re-evaluation, etc. NO DOT TESTING ALLOWED NO DOT TESTING ALLOWED Termination letter or transfer of job duties to NON-safety-sensitive duties Termination letter or transfer of job duties to NON-safety-sensitive duties 30

SUMMARY - EMPLOYER DUTIES  As an employer, you are responsible for your program- even if parts contracted  You must receive both letters from the SAP BEFORE you TEST  You manage the follow-up testing dates - be sure to comply  You still must provide a referral to SAP Employee even if terminating Employee even if terminating Applicant even if not hiring them Applicant even if not hiring them  SAPs are a resource for you  Document all efforts 31

Common Questions Myths/Issues-1  AM I SUPPOSED TO KNOW THE SAP? Yes, if you plan on returning an employee you must be on the same page as the SAP you use. Yes, if you plan on returning an employee you must be on the same page as the SAP you use.  Can my SAP put a Friday Positive back to work on Monday? NO, unless a SAP can clearly justify why a safety sensitive employee who has been trained in prohibited drug use in DOT work would suddenly violate those rules and jeopardize his/her career, not just a job. NO, unless a SAP can clearly justify why a safety sensitive employee who has been trained in prohibited drug use in DOT work would suddenly violate those rules and jeopardize his/her career, not just a job. 32

Common Questions Myths/Issues-2  Can my SAP require a Marijuana positive to also stop drinking alcohol? YES, every SAP must fully evaluate the individual and their clinical problems and treat whatever the issues are – not just the identified drug they were positive for on a test. YES, every SAP must fully evaluate the individual and their clinical problems and treat whatever the issues are – not just the identified drug they were positive for on a test.  Can we do more follow-up tests than the SAP stipulates? NO, as an employer or DER you must do only what the SAP stipulates on a DOT violation. NO, as an employer or DER you must do only what the SAP stipulates on a DOT violation. 33

Common Questions Myths/Issues-3  Who is supposed to explain the “Dropping your pants in Return-to-Duty and Follow-up testing? The DER, the SAP and/or the collector should clearly explain to the employee the collection process under direct observation so there is no misunderstanding. The DER, the SAP and/or the collector should clearly explain to the employee the collection process under direct observation so there is no misunderstanding.  What’s the deal with an employee using “bath salts” or that “legal Marijuana” stuff? In the last 10 years, the use of products touted on the market as harmless bath salts or legal marijuana are far from either. These are situations where routine products are treated with chemicals that mimic stimulants in bath salts and mimic the effects of THC by spraying incense or herbs with chemicals. ALL SUCH PRODUCTS ARE ILLEGAL NOW In the last 10 years, the use of products touted on the market as harmless bath salts or legal marijuana are far from either. These are situations where routine products are treated with chemicals that mimic stimulants in bath salts and mimic the effects of THC by spraying incense or herbs with chemicals. ALL SUCH PRODUCTS ARE ILLEGAL NOW 34

Questions QuestionsABOUT DRUGS or PROCESS 35

RESOURCES   safety.volpe.dot.gov/DrugAndAlcohol    36

QUESTIONS & EVALUATION LAST CHANCE  Anything you didn’t get answered about the Return-to-Duty process? Employer Employer Substance Abuse Professional Substance Abuse Professional Documentation Documentation  Please complete your evaluation 37

THANK YOU 38 NEED HELP FTA – ODAPC – If you can’t find the answer you need, call me for assistance: Jon P. Speckman, MSM, LCAS, CCS, or