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Presented by:

Laura Lacey Dashner, LCSW American Substance Abuse Professionals (ASAP)

www.go2asap.com

888-792-ASAP©2008 American Substance Abuse Professionals, Inc., All Rights Reserved

Pitfalls & Practicalities:Guidance for the DOT

Substance Abuse Professional (SAP)

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• Motivation: To help protect public safety, expand practice, build

specialty practice

• Training, experience and credentials, as specified by 40.281

• Working knowledge of DOT part 40

• Office with privacy; equipped with phone (fax, e-mail optional)

• Home offices and solo offices without security options are not

recommended.

• Evaluation instrument, example SASSI-3 (800-726-0526), or

MAST. Depression screening tool also recommended by DOT.

• Familiarity with local treatment/education facilities and options

per level of care. Best to have contacts & have phone

numbers on hand.

What do I need to perform a SAP evaluation ?

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How is the SAP Evaluation different from a Clinical Evaluation?

Client is public safety, not an individual, group, company, agency, etc.

SAP evaluation is governed by Federal regulations: 49 CFR Part 40.

Much information is not covered by HIPAA

Releases confidential information via Statements of Understanding

Traditional release of information forms (informed consent forms) are not used except if needed to communicate with treatment providers.

It does not culminate in a reported medical/psychiatric diagnosis.

It must be reported in a prescribed format mandated by DOT regs (40.311).

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What paperwork should I have on hand?

Statement of Understanding (optional & recommended)

Rehabilitation Agreement (optional & recommended)

Clinical Evaluation questionnaire/outline (optional & recommended)

Format for SAP Evaluation (optional – see 40.311)

Evaluation instrument, e.g., SASSI-3, MAST, etc.

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Confidentiality per the SAP Guidelines

It is imperative to SAP functioning to receive and communicate pertinent information regarding the employee’s drug and alcohol test results and treatment progress. Part 40 places no restrictions on the SAP’s communication with the MRO or treatment provider.

Part 40 authorizes the SAP to provide written reports directly to the employer without a release.

It is your duty to explain the kind of information that must (per the regulations) be shared with the employer as a part of the compliance report.  Without all of the information in the compliance report, the employee cannot be considered for return to duty.

Standard exceptions to confidentiality pertain: • Suspected child abuse and/or neglect • Suspected abuse/neglect of an elderly person • Duty to warn • Certain types of legal proceedings

You must make these records available at the request of DOT representatives (inspectors conducting audits or safety investigations), and representatives of the National Transit Safety Board (NTSB) in any accident investigation.

It is advisable to keep all of your SAP records in one central file to ensure easy access in case of an audit, or a request from a hiring employer or an employee.

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How do I get reimbursed?

Direct fee for service for independent referrals. Payment in advance or at onset of evaluation is recommended.

Payment arrangements per contract from third parties (30-60 days payable)

Insurance does not typically reimburse because the SAP evaluation must not include a medical/psychiatric diagnosis.

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What if I’m not paid?

Per 40.289, payment for the SAP evaluation and services is left for employees and employers to decide. The employer is not obligated to pay for the services.

Signing a contract with SAP Services Network or EAP provides protection.

When working directly with an employee or DER, it is best to request payment in full prior to services rendered.

A contract with employee can provide protection, however, if an evaluation has been competed, you must release report before initiating action to recover delinquent payment.

You may not refuse to see the employee for a follow-up evaluation based on failure to pay for services.

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What information should I request from or review with the referral source and employee?

Get DOT-relevant information, e.g., mode, covered position, duties. Get multiple contact numbers for employees. Type of violation, e.g., date of test, type of test, positives (for levels

contact MRO) Name and number for MRO (Medical Review Officer); ask employee

to bring CCF (Chain of Custody Form) for MRO contact info. Does the employee have health insurance? Ask employee to bring

card. (This is for treatment referral.) Name, phone number, and address of DER (Designated Employer

Representative – often a Safety Manager) Obtain a brief verbal explanation of situation from SAP Services

Co./DER (for comparison with employee’s version). Clarify reimbursement procedures & prepare Employee for

contracting. Be sure employee knows that treatment costs are not covered by SAP evaluation costs.

SAP can “bail out” at intake! (Employee may be hostile; regs for a mode may be unfamiliar, etc., etc., etc.)

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How is a SAP evaluation conducted?

Prepare the employee with a discussion of the DOT Mandated process that begins with the initial SAP evaluation. Let them know what to expect and when. Do not promise them quick/easy solutions. Employees may be anxious, resentful, confused!

Discuss the employee’s violation of the regulations. A violation is not only defined as a positive drug and/or alcohol test. DOT rule violations include:

A refusal to test An adulterated specimen A substituted specimen A verified breath alcohol test result with a level at or over .04. (A breath

test between .02 and .039 has consequences under the regulations, but does not require a SAP evaluation)

A verified positive DOT drug test Any other violation of the DOT mode specific prohibitions against drug

or alcohol use

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How is a SAP evaluation conducted?

The DOT SAP guidelines call for a “Standard Psychosocial Assessment” that includes an in-depth drug and alcohol use history:

Onset Duration Frequency and Amount of Use Substances of Use and Choice Associated health, work, person, and interpersonal

problems Current mental health status

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How is a SAP evaluation conducted?

It also must include an evaluation of non-verbal cues: Physical appearance Postures and carriage Ability to make eye contact and ability to relate in person Any other physical characteristics that may be indicative

of substance use. The use of an objective assessment tool, e.g., the

SASSI-3, MAST, etc. must be included. Consultation with the MRO: The SAP may choose to

consult with the MRO who verified the employee’s test for information such as test levels or medical information.

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Co-Occurring Disorders

The mutuality of substance abuse and mental health disorders are well-established. The coactive natures of the two categories often perpetuate a downward spiral of addiction and psychopathology that can only be stopped by specialized treatment.

The SAP is frequently challenged by co-morbidity and co-occurring disorders.

Unfortunately, dual diagnosis programs are rare in many areas of the country.

SAPs can be faced with the question of which disorder to treat first.

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Co-Occurring Disorders

Here are some ‘rules of thumb’:

Urgent and emergent situations (suicide, homicide, situations where the safety of the employee or others is threatened) regardless of diagnostic category, require immediate attention.

If a dual diagnosis unit is not available, make referrals to two facilities, but remember, the SAP report must not contain references to mental health disorders and must not report diagnoses of any kind.

The SAP may suggest the employee self-refer to the employer’s employee assistance program (EAP) for mental health treatment, but may not require it as part of the DOT SAP process.

Compliance to an integrated dual diagnosis treatment may be considered when evaluating compliance to SAP recommendations, but compliance to separate mental health treatment may not.

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Working in and around the “DOT 5”

The SAP, during the course of an evaluation, may discover that the employee also abuses a substance that is not one of the ‘DOT 5’ (amphetamines, opiates, cannabis, cocaine and PCP).

Remember, the SAP report can not make reference to substances of abuse other than the ‘DOT 5’. Also, the SAP report can not recommend treatment for other substances. Finally, the SAP cannot rely upon compliance reports that specifically target other substances.

The SAP may, however, verbally alert a treatment center to a need to treat a non-DOT substance.

A reputable treatment program will test the employee for a broad range of substances, not just the ‘DOT 5’.

If the SAP has recommended that the employee complete a course of treatment with a substance abuse treatment program, that program will not “graduate” the employee until he/she is free of all substances and has satisfied the program’s criteria for success.

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What if the employee denies the problem?

Employees will often deny or minimize their substance use. The use of collateral evidence is often vital for making appropriate treatment recommendations.

DOT regulations (40 .293 (f) 1 and (g)) specifically prohibit the SAP from considering employee excuses regarding the positive test, including but not limited to:

Assertions of use of hemp oil, medical marijuana use, “contact positives”, poppy seed ingestion, job stress, or personal opinions the SAP may have about the justification or rationale for drug and alcohol testing.

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Recently Screened Excuses

“My semi was hijacked and the hijackers forced me to smoke crack.”

“My girlfriend didn't want me to be on the road anymore, so every night after I would go to sleep, she would blow marijuana smoke in my face so that I would test positive and get fired.”

“I tested positive for alcohol because I put vinegar on my salad.”

“I don't smoke marijuana to get high, I smoke it because Arnold Schwarzenegger used to. I'm a body builder too, and it helps to relax your muscles.”

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You may contact the MRO!

Remember, the SAP Guidelines encourage consultation with the MRO. (Ex: This is often helpful when you have questions about marijuana levels.)

The MRO’s phone number can usually be obtained from the CCF brought in by the employee or from the DER.

For obvious reasons, MROs often request that questions be faxed on the SAP’s letterhead with the employee’s name, SSN, employer’s name, reason for request and your question.

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The SAP should be knowledgeable about available treatment and education and must consider:

Client’s insurance coverage wherever possible– it is often best to call the insurance company while the client is present in order to determine what programs are covered.

Client’s ability to pay The employer’s treatment contracts The employer policies regarding availability of

leave for treatment. The availability of the treatment program These considerations, however, must never

supersede the SAP’s responsibility to public safety. Let your best clinical judgment prevail!

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To whom may the SAP refer the client?

Per 40.299, the SAP must not refer an employee to the SAP’s private practice or to a person or organization from whom the SAP receives payment or in which the SAP has a financial interest.

A SAP may refer a client to any of the following regardless of the SAP’s relationship to that organization:

A public agency The employer’s contracted treatment provider The sole source of therapeutically appropriate

treatment under the employee’s insurance coverage The sole source of treatment reasonably available to

the employee.

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Who connects the employee to treatment?

The SAP connects the employee to treatment. The SAP should contact the recommended treatment provider to facilitate the referral. If is often helpful to call the provider while the employee is in your office. The SAP does not have to schedule the first appointment; however, you may find that subsequent compliance monitoring will be simplified if you do.

Since treatment providers are often unfamiliar with the SAP process, your contact with the provider will encourage coordination of your recommendations with treatment. Otherwise, the provider may unwittingly sabotage your recommendations and de-rail the SAP process.

The SAP must communicate/fax/mail the treatment plan (SAP Report) to the provider.

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Initial Evaluation Report

The SAP report must:• Be on the SAP’s own letterhead.• Include the following:

• Employee’s name and SSN• Employer’s name and address• Reason for the assessment (specific violation of

DOT regulations and violation date)• Dates of the assessment• SAP’s education and/or treatment

recommendation • SAP’s telephone number

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Initial Evaluation Report

The DOT regulations do not require that the report be typed, but it is strongly encouraged in order to avoid any confusion or misunderstanding.

The DOT discourages the use of a “fill-in-the-blank” format (SAP Q&Q 09/2001).

An original signed official copy of the report must be sent to the DER. It must be signed and dated.

The report may not go through a third party, but must go directly to the DER!

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What must not be included?

The DOT does not state what must not be included; however, the regulations are very specific about what must be included and the report should contain that information and nothing more.

Other information including diagnosis, clinical information or other mental health issues are NOT to be included.

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What if the DER objects to the recommendations?

A DER who is unhappy with a SAP evaluation may think that a second opinion, or a referral to another SAP is an option.

DOT regulations do not allow for second opinions, nor are referrals to a another SAP permitted. However, circumstances, such as illness, death, or moving to another state, may force a case to be transferred to a new SAP.

Again, a collaborative relationship that allows communication and education about the DOT Return to Duty Process is optimal and usually solves the problem.

If a SAP finds that a DER insists upon violating this rule (or any other DOT regulation), the SAP may appeal to the DOT for intervention.

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What if the employee objects to the recommendations?

40.295 notes that neither the employee nor the employer may seek a second evaluation once the employee has been evaluated by a qualified SAP.

40.297 notes that no one (employer, employee, managed care provider, MRO nor any service agent) may change the SAP evaluation or recommendations for assistance.

However, the SAP may modify the initial recommendation if new information comes to light.

If the employee refuses your recommendations, the SAP should send a non-compliance letter to the DER.

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Time Limits for Treatment?

The SAP guidelines note that when the SAP’s clinical judgment determines that the client has not demonstrated successful compliance, the SAP should notify the employer in writing.

Companies often request that a rehabilitation agreement be included in the paperwork signed at the evaluation that establishes a reasonable timeline for initiating treatment. Company policies often call for and include a rehab contract.

Otherwise, no time line is given (by the DOT) for determining non-compliance.

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Time Limits

An employee may decide to temporarily disengage from the return to duty process at any time. And, they may re-engage at any time.

Employers and SAPs have various strategies for managing the time factor.

Employers may impose time limits as per their company substance abuse policies, i.e., they may have a company policy for terminating an employee upon the first positive test, or at any time during the return to duty process.

Employers may also choose to offer the employee a non-safety sensitive job. The employee may choose, at any time, to re-engage in the Return to Duty process to become eligible to return to a safety-sensitive position. The employer, of course, must decide to make the safety sensitive position available to the employee who has established eligibility.

A terminated employee may choose to engage or re-engage in the Return to Duty Process with a prospective employer or independently.

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What should a non-compliance letter contain?

Must be on SAP letterhead Employee’s name and SSN Employer’s name and address Reason for the initial assessment (specific DOT violation and date) Dates of the initial assessment and synopsis of treatment plan. Name of practice or service providing the recommended education

and/or treatment Inclusive dates of employee’s program participation (if any) Clinical characterization of employee’s program participation (if any) Dates of any follow-up appointments (if any) SAP’s clinical reason for determining that the employee has not

demonstrated successful compliance SAP’s telephone number

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Do I need an ROI to monitor treatment?

Instead of a conventional Release of Confidential Information, the sharing of confidential DOT case information is best administered via a Statement of Understanding.

The Statement of Understanding identifies the employee, the information to be shared among eligible parties, the parties involved and the boundaries of consent.

It excludes language relating to time limitation and revocation of consent.

Traditional ROIs are often requested by treatment programs to permit treatment compliance monitoring. Many SAPs include the treatment program on the Statement of Understanding and, if necessary, issue a traditional ROI for the treatment program.

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How do I monitor compliance?

40.301 (b) (1) The SAP must “confer with or obtain appropriate documentation from the appropriate education and/or treatment program professionals where the employee was referred” to complete the follow-up evaluation.

The SAP should base determination of compliance upon “written reports from and personal communication with the education and/or treatment program”. (SAP guidelines p.9).

Written reports should be a progress report or discharge summary.

Personal contact may be telephonic regarding an employee’s progress, prognosis for success and any other information; it should be based on more then just attendance.

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How do I monitor compliance?

Documentation should be included in the case record (separated from clinical notes).

The SAP will need to document on the SAP report the “clinical characterization” of the employee in the program, therefore, the SAP may want to contact the treatment/education program at least once before the follow-up.

The SAP may also choose to monitor employee on a weekly basis.

Although not recommended, the SAP may also choose to wait and contact treatment/education when the employee has contacted the SAP to schedule a follow-up.

Depending upon your agreement/arrangement with the employer (DER), the SAP may also want to keep the employer (DER) informed immediately of any non-compliance.

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What if, during compliance monitoring, the employee needs a higher level of care?

Yes, a SAP can recommend a higher level of care. Example: There may be circumstances when the employee is relapsing in the recommended program and may need inpatient.

You can revise the original report without seeing the employee face-to-face. Send revised report to the DER and notify the employee.

c. Make sure your contract with the employee/DER authorizes payment for additional SAP evaluations if deemed clinically necessary!

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How do I conduct a Follow-Up Evaluation?

As the SAP, conduct a face-to-face clinical interview.

Discuss treatment/education experience.

Review reports and information from treatment/education program.

Note behavioral changes

Discuss plans for continued treatment/education.

Discuss return-to-duty and the aftercare process including follow-up unannounced testing program responsibilities.

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What is the purpose of a Follow-Up SAP Evaluation?

• You are not performing a fitness for duty evaluation; the decision to return an employee to safety sensitive work is strictly up to the employer, based on your reports and the MRO's findings during the return to duty test.

• You are ensuring compliance with the recommendations you made, based on your initial evaluation, feedback from the provider you referred to and the compliance or non-compliance report you sent.

• Once you notify the DER of compliance, it is his/her responsibility to inform the MRO who will schedule the return to duty test and any subsequent medical exams. The employer has the final say concerning the return to safety sensitive work. Please see Subpart O, 40.305 of the regulations for further information

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What if I find that the employee has not followed my recommendations?

You should complete a non-compliance letter to send to the employer so that the employer is aware that the employee is not eligible for consideration for return to duty.

The non-compliance letter should make clear what steps are needed for the employee to be in compliance/

You may contact the employer to see if they want to authorize additional follow-up evaluations or more time for employee to make progress. (SAP Guidelines p.11)

You may opt to meet the employee face to face to address non-compliance. (Often, when the employee has decided not to comply, a meeting with the SAP is avoided.)

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May I schedule the follow-up before the employee completes my recommendations? What if the employee

finishes treatment, but then disappears?

Schedule the follow-up evaluation once the employee demonstrates compliance with your recommendations of the initial evaluation.

You may conduct the follow-up evaluation prior to completion of the entire initial recommendations unless the employee is in inpatient/day-treatment/partial hospitalization. However, remember the DER does not have to monitor aftercare compliance. If you are not confident the DER will monitor aftercare compliance personally or by proxy (via a third party), require the employee to complete treatment prior to the follow-up evaluation and/or prior to RTD.

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If the employee disappears before follow-up after completing treatment, you should notify the DER.

The employers’ company policy may help you apply leverage, i.e.,

the employee may be lose the job if non-compliant. The employer may require the employee to participate in these recommended services as part of a Return-to-Duty agreement; if the employee fails to comply he/she may be subject to disciplinary action. See 40.303 (b) (c), SAP guidelines page 10.

If the employee eventually attends the follow-up, a thorough evaluation should take place to determine if the employee had relapsed before you recommend him/her as eligible to return to work.

If the employer monitors completion of recommendations after RTD, they may do it themselves or make use of a service agent, e.g., a SAP, a SAP Services Company, an EAP.

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Do I have to do the follow-up evaluation? What if I’m sick or if I move or if I just don’t feel like it, or what if I’m threatened

by the employee?

The employee must have a follow-up evaluation before he/she can be eligible for RTD.

The SAP may no longer be in the area. The employee may have moved. (SAP Guidelines question #10) In these cases a new qualified SAP may perform the follow-up evaluation.

The safety of the SAP must not be jeopardized nor tolerated.

An employee who threatens the safety of a SAP may be reported to the DER, the DOT and/or the local police.

Legal threats to a SAP must not be allowed to sway the SAP’s clinical judgment and recommendations. Legal threats should be treated like any legal threat to a licensed clinician. The clinician may choose to rely upon the advice of professional boards, professional associations, professional liability attorneys, personal attorneys and personal advisors.

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The SAP designs the aftercare test schedule. According to 40.307 (d), the minimum recommendation is 6 tests within the first 12 months following RTD.

These tests should spread out over the 12 months and not grouped together. (SAP Guidelines p. 12)

Keep in mind that most relapses occur during the first 12 months; construct the schedule accordingly.

The plan should include the number of tests, the frequency and type of testing (drugs, alcohol or both).

Do not specify test dates. This is the responsibility of the employer (who may assign it to a service agent).

Do not suggest specific testing for a type of drug. See 40.307.

Follow-up test schedule

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Aftercare Recommendations

The SAP may recommend continuing care if clinically indicated. Examples of commonly recommended continuing care include self help meeting participation or treatment aftercare groups. It is the employer’s responsibility, rather than the SAP, to ensure compliance to aftercare recommendations.

As noted before, the SAP may also have the follow-up evaluation prior to treatment completion and in those cases may recommend completion of the initial recommendation.

Be aware that the DOT regulations do not require the employer to monitor the aftercare recommendations.

If the employee is self-employed, or with a small company, it is ‘best practice’ to make sure the employee completes treatment before RTD.

The SAP’s liability is minimized when public safety is afforded primary focus and documentation is thorough. Although the SAP’s recommendations are for the appropriate minimal level of treatment, caution should be exercised regarding recommendations that may be too low (level).

SAP reports may be revised. When revised, indicate original recommendations and state the necessity for a change in the level of care (either higher or lower).

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What goes in the follow-up report?

Employee’s name and social security number Employer’s name and address Reason for initial assessment (specific DOT violation and date); ex:

Violation of FMCSA, Controlled Substances and Alcoholo Use and Testing. Positive test for opioates and marijuana; test performed on July 1, 2005 or test refused on July 1, 2005.

Date(s) of initial assessment Synopsis of treatment plan Name of education/treatment program Inclusive dates of employee’s program participation SAP’s clinical determination as to whether the employee has demonstrated

successful compliance Follow-up testing plan Employee’s continuing care needs with specific treatment, aftercare, and or

support group services recommendations

Note: The Department of Transportation does not want to the SAP to use a "fill-in-the-blank"/ "check-the-appropriate-boxes" type of pre-printed form. (see Part 40 Questions and Answers 09/01)

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Example 1

EXAMPLE 1: The employee does not give any indication of having a substance dependence problem. He is referred by the SAP to a 8 week educational program that meets for 2 hours per week. After 4 weeks of participation, the provider reports the employee is actively participating and demonstrates a clear understanding of the risks involved in alcohol and drug abuse. Although the SAP originally recommended that the employee complete his education program before he would be eligible for a follow-up evaluation, the SAP now believes that the follow-up evaluation might be in order.

It is perfectly acceptable for the SAP to consider conducting the evaluation after the employee has completed three or four sessions out of eight. If during the course of the meeting, if the SAP feels the employee is in compliance, the SAP can write the compliance report, clearly stating that the employee must complete the remaining sessions, with the dates, etc. The employer then decides whether or not to begin the return to work process.

·       

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Example 2

  EXAMPLE 2: The employee has been referred to an inpatient program where there has been a detox but minimal treatment. However rather continue in residential, the employee has now "stepped down" to an intensive partial hospitalization program. The provider reports very good progress. The original SAP report recommended a follow-up after the employee completes an inpatient program. How should the SAP respond?

You are not allowed to schedule your evaluation until the partial hospitalization treatment program is completed, regardless of the employee's progress. An employee in an inpatient, partial inpatient or day treatment program cannot be considered for the evaluation meeting until that phase of treatment is complete. Please see the SAP Guidelines, page 8. Once the employee has completed that segment and is engaged in weekly meetings or less intensive treatment, it would be appropriate to consider scheduling the follow-up evaluation. As above, based on that meeting and feedback from the provider, you will make your determination.

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Example 3

EXAMPLE 3: The employee is referred to outpatient counseling for counseling and education around substance use, choices, judgment and safety issues. Your initial recommendation is for six sessions with the counselor. After three or four sessions, feedback from the counselor indicates attendance at sessions and minimal participation - there is no hostility, the employee comes to the sessions on time, does not appear to be under the influence, etc. You meet with the employee and determine that although there is "compliance" in a technical sense, this employee is not "getting it" and a compliance report would not be appropriate.

You discuss this with the employee, emphasizing the seriousness, etc., and refer back to the counselor to at least complete the recommended sessions, with the option of increasing the number of sessions based on what happens in the remaining meetings. You then continue to have contact with the counselor, amend the plan if necessary and meet again to determine compliance.

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Questions and Discussion