a course for the advanced substance abuse professional presented by: american substance abuse...

A Course for the Advanced Substance Abuse Professional

Presented by:American Substance Abuse Professionals® (ASAP)

The Adventures of Sandra SappThe Adventures of Sandra Sapp

Reed A. Morrison, Ph.D. President/CEO, ASAP

888-792-ASAP(2727) | go2asap.com

Copyright 2007-2011 American Substance Abuse Professionals, Inc ®


Case #1Case #1

Sandra Sapp completed an initial SAP evaluation and referred the

employee to the Baltimore Intensive Recovery Program (BIRP).

Sandra made sure the employee signed a Statement of

Understanding that stipulated how and to whom case information

could be shared. The employee attended an intake and began

treatment at BIRP. After the intake, Sandra faxed a copy of the

Statement of Understanding to BIRP.


Case #1 (cont'd)Case #1 (cont'd)

When Sandra called the treatment counselor at BIRP to check on

the employee’s compliance, she was told that HIPAA forbade them

to release client information. What should Sandra do?



A. Report BIRP to the DOT for failure to release compliance information.

B. Apologize, then plead with the BIRP counselor to help her out.

C. Tell the BIRP counselor that he is wrong & that according to DOT regulations, DOT cases are HIPAA exempt. BIRP must supply the requested information.

D. Explain the DOT position on HIPAA. If the BIRP counselor resists, ask the counselor to originate a HIPAA compliant ROI, request the employee to sign it and fax/mail it to her.



The correct answer is “D”

Sandra talked to the BIRP counselor & explained how the DOT

provides for releases of information. The counselor held to his

HIPAA position. Sandra then faxed a traditional ROI to the

counselor. A few days later she received a signed ROI, originated

by BIRP. When she called the counselor for information, he gladly

complied. Sandra vowed that she would never go through this

lengthy process again.

What should she do in the future to avoid this problem?


Case # 1 (cont'd)Case # 1 (cont'd)

A. She should ask her SAP clients to sign both a HIPAA ROI and a Statement of Understanding.

B. When she makes initial referral contact to a treatment program, she should discuss policies for releasing information and make necessary arrangements.

C. She should cross the obnoxious BIRP program off her referral list.

D. She should increase her professional liability insurance coverage.



The correct answer is “B”

Sandra now discusses release of information policy with treatment centers when she makes the referral. She is able to avoid procedural conflicts with treatment programs and instead primes the relationship for cooperation and effective compliance monitoring. The HIPAA issue is an important one for the SAP process. SAPs may wish to refer to DOT guidance found on the ODAPC website under Questions and Answers.

http://www.dot.gov/ost/dapc/questions/HIPAA_Stmnt_0706.pdf


Case #2Case #2

Downwind Airlines had a close-call on a runway and referred the

pilot, Dizzy Dave to Sandra Sapp for a SAP evaluation. Sandra

performed the evaluation and sent Dizzy to treatment.

Next, she monitored compliance to her recommendations, and

when satisfied, invited Dizzy to return to for a follow-up

evaluation.



Sandra performed the evaluation, determined that Dizzy complied with her recommendations, wrote her follow-up report ,and mailed it to the Downwind DER.

The DER received the report and immediately called Sandra. The DER was furious because the SAP report said that Dizzy complied with recommendations, but it did not say that he was eligible to be returned to duty by his employer. Instead the report stated:


A. It said that since Dizzy is an FAA/DOT employee he must be fired after a violation. There are no second chances for pilots under the FAA/DOT.

B. It said that because he is a pilot, Dizzy’s eligibility to return-to-duty (RTD) is pending the issuance of a medical certificate by the Federal Air Surgeon.

C. Dizzy has psychological problems and should be barred from even setting foot on an aircraft.

D. All of the above.





An employer must not permit an employee who is required to hold

a medical certificate in accordance with 14 CFR Part 67 (First,

Second, or Third-Class Airman) to return to covered duty until the

employee has received a medical certificate or a special issuance

medical certificate from the Federal Air Surgeon (in addition to

meeting RTD requirements of 49 CFR Part 40). A SAP follow-up

report is still necessary for RTD, but it alone can not establish

eligibility for a certificate holder to return to safety-sensitive duty.



In fact, it is the duty of the SAP to ask an FAA employee if they

hold a medical certificate. According to 14 CFR Part 121,

Appendices I & J:

During the SAP interview required for a verified positive test result or a refusal to submit to a

test, the SAP must ask and the individual must answer whether he or she holds or would be

required to hold an airman medical certificate issued under 14 CFR part 67 of this chapter to

perform a safety-sensitive function for the employer. If the individual answers in the

affirmative, the individual must obtain an airman medical certificate issued by the Federal

Air Surgeon dated after the verified positive drug test result date or refusal to test date.

After the individual obtains this airman medical certificate, the SAP may recommend to the

employer that the individual may be returned to a safety-sensitive position. The receipt of an

airman medical certificate does not alter any obligations otherwise required by 49 CFR part

40 or this appendix.


Case #3Case #3

Another Downwind pilot, Kenny Land, heard about Sandra Sapp

from Dizzy Dave and called her for an appointment. He recently

had a DUI conviction and wanted to start the SAP process as soon

as he could. When Sandra heard that Kenny had a DUI conviction,

she said:



A. “Have you reported this to FAA’s Security and Investigations Division? A DUI does not directly result in a DOT alcohol violation. The FAA’s investigation will determine the course of action that you must follow.”

B. “Self-referrals, under FAA regulations, do not require a SAP evaluation. Call your EAP or a qualified treatment professional.

C. “Let’s schedule an appointment for a SAP evaluation and begin the return-to-duty process, but be aware that you must also obtain an airman medical certificate issued by the Federal Air Surgeon dated after your DUI before I can recommend your eligibility to return to safety-sensitive duty.”

D. None of the above.



The correct answer is “A”

Sandra was aware that, for FAA pilots, a DUI does not directly lead

to DOT 49 CFR Part 40 alcohol violation. Sandra also knew that

under 14 CFR 61.15, all pilots must send a Notification Letter to the

FAA’s Security and Investigations Division, within 60 calendar days

of the effective date of an alcohol-related conviction or

administrative action. She let Kenny know that he could obtain a

template for the Notification Letter and the address for the Security

and Investigations Division on the FAA’s website:

http://www.faa.gov/pilots/medical/



Kenny was disappointed by this news, then said, “OK, but what if I

don’t report it? The FAA will never know, right?”

Sandra said:



A. “You got me there Kenny-boy. The FAA will never know and my

professional ethics prevent me from reporting you.”

B. “The FAA will find out on their own. If they discover that you

failed to report, there are consequences.”

C. “I have to turn you in because SAPs must report DOT violations

of FAA certificate holders to the Federal Air Surgeon.”





The FAA will find out on their own. Under 14 CFR part 67.7 access to the

National Driver Register: At the time of application for a certificate issued

under this part, each person who applies for a medical certificate shall execute

an express consent form authorizing the Administrator to request the chief

driver licensing official of any state designated by the Administrator to transmit

information contained in the National Driver Register about the person to the

Administrator. The Administrator shall make information received from the

National Driver Register, if any, available on request to the person for review

and written comment.



Additionally, under 14 CFR 61.15:

Failure to send a Notification Letter within 60 days to FAA’s

Security & Investigations Division is grounds for:

Denial of an application for any certificate, rating, or authorization issued

under this regulation for up to one year after the date of the motor vehicle

action

Suspension or revocation of any certificate, rating, or authorization issued

under this regulation


Case #4Case #4

The Downwind DER sent Sandra Sapp yet another referral, a flight

attendant named Paul Perkey. Paul registered positive for cocaine

on a reasonable suspicion test while on a stopover in Paris. He

was relieved of duty and flown back to the U.S. where he was

instructed to see Sandra. Sandra met with Paul for 5 minutes,

then sent him home. She called the DER and told her:



A. “Paul was too intoxicated to be evaluated. He can return after he gets inpatient treatment.”

B. “His test was invalid because the French have different cut-off levels for positive tests.”

C. “His test was invalid invalid because it took place in Paris.”




The correct answer is “C”

No part of a DOT testing program may be performed outside the

territory of the United States. If an employee is assigned to perform

covered duty outside the U.S., they must be removed from the

random testing pool until they return to covered duty in the U.S.

See 14 CFR Part 121, Appendix I, XII; Testing Outside the Territory of

the United States. A. No part of the testing process (including

specimen collection laboratory processing, and MRO actions) shall be

conducted outside the territory of the United States.


Case #5 Case #5

Bob Blaimliss, a railroad engineer, appeared for a SAP evaluation with

Sandra Sapp. He had refused to take a random test and was told that

he had to see a SAP for an evaluation. Sandra conducted the

evaluation, recommended a course of treatment, then told him that

she would monitor his progress and meet with him again in nine

months. Bob was shocked and protested. He told Sandra he needed

to get back to work as soon as possible. Furthermore, he threatened

to sue Sandra if she persisted with her plan.

Sandra replied:



A. “Sorry Bob, but according to FRA regulations, employees who refuse to test must be suspended for nine months before they are permitted to return-to-duty.”

B. “I’m going to have a baby and I will be on leave for the next nine months.”

C. “Bob, your behavior is inappropriate and for that reason I will see you when I’m good and ready. Besides, my uncle is a malpractice attorney.”

D. “OK Bob, please forgive me, you’re correct. I’ll see you as soon as you complete my treatment recommendations.”




When an FRA employee unlawfully refuses to submit an alcohol or

breath test, the employee is disqualified from the performance of

covered duties for a minimum of nine months (49 CFR 219.107)

and is subject to completion of the return-to-duty (RTD)

procedures 49 CFR 219.104. Upon return-to-duty after the nine

month period, the employee must complete the RTD process

including compliance with SAP recommendations.


Case #6Case #6

Willy Show, a DOT covered truck driver, was referred to Sandra Sapp by

his DER. He tested positive for cocaine on a random DOT test. Willy called

Sandra, as instructed by the DER, but instead told her he would not attend

the SAP evaluation. He claimed that just after he was notified of the

random test, he informed his DER that he accidentally drank a drink that

contained cocaine at a friend’s birthday party and that he would probably

test positive. Furthermore, he said that even though he used cocaine by

accident, he would voluntarily seek treatment. According to Willy, he

would not need a SAP evaluation.

This is what Sandra did:



A. Sandra congratulated Willy for his honesty and recognized his right to voluntary treatment that released him from his obligation to enter the DOT/SAP process.

B. Sandra referred Willy to the DOT Employee Handbook and told him that he must have a SAP evaluation if he wants an opportunity to return to safety sensitive duty.

C. Sandra told Willy to talk to his DER. This issue should be handled by the DER and not the SAP.

D. Sandra doubted that Willy accidentally drank cocaine and insisted that he attend the SAP evaluation.




Sandra correctly referred Willy to the ODAPC Employee Handbook

on ODAPC website where it states on page 14:

“Remember: Self-reporting just after being notified of a test does

not release you from your responsibility of taking the test, and it

also does not qualify as a voluntary referral.”

http://www.dot.gov/odapc/documents/EmployeeHandbookOctober2010.pdf



Voluntary self-referral occurring before a test notification allows

the employee to seek treatment without entering the DOT/SAP

return-to-duty process.

See Federal Motor Carrier Safety Administration (FMCSA)

regulations: 49 CFR part 382.121.


Case #7Case #7

Henry Hyflier the DER for the Megabucks Corporation called

Sandra Sapp and asked her to manage the follow-up testing

program for a Megabucks DOT covered employee she had

evaluated and for whom she made recommendations for a follow-

up testing plan. He was a very busy man and wanted her to

choose the dates for his employee’s follow-up test schedule and

notify the employee when they are required to test. Money was

no object.

Sandra replied:



A. “I can choose the test dates because I am a SAP, but I can not notify employees; that’s the DER’s job.”

B. “Yes I’ll do it. The DOT says that an employer may hire a service agent to manage follow-up testing programs and SAPs are service agents.”

C. “According to the DOT, only the employer/DER may choose follow-up test dates (unless the employee is an owner-operator or self-employed). However, if you provide me with the dates, I can notify the employees.”

D. “I can do it Henry, but my time is money.”




The SAP who performed the Return-to-Duty evaluation must recommend

the follow-up testing plan; the employer/DER must choose the follow-up

test dates which must be unannounced and without a predictable pattern

(40.309 (b); SAPs may be hired to notify employees for the follow-up

testing plan (40.347 (a) & (c).

But remember, the employer may not choose test dates in cases where

the person to be tested is the owner-operator or self-employed individual

(40.355 (g) & (h).


Case #8Case #8

Sandra took a call from Harry Hazzard, an employee of Pipes R Us’

a pipeline transport company that falls under the auspices of the

Pipeline & Hazardous Material Safety Administration (PHMSA).

Harry tested positive on a random BAT and was given Sandra’s

telephone number to arrange for a SAP evaluation.

Harry launched into a long, involved story with intricate

explanations for the positive test, when Sandra interrupted him

and said:


Case #8Case #8

A. “Sorry Harry, but you don’t need a DOT SAP evaluation. PHMSA does not authorize random tests for alcohol. However, I strongly recommend you call your EAP or a credentialed alcoholism counselor for an evaluation and treatment.”

B. “I will be glad to meet with you, but according to PHMSA’s Office of Drug & Alcohol Policy & Investigations, I need the referral to come from your MRO.”

C. “Harry, I’m burned-out on SAP evaluations, let me give you a referral to another SAP.”

D. Sorry Harry, according to DOT regulations, PHMSA initial evaluations are not performed by the SAP; the preliminary evaluation is carried out by the MRO. The MRO may choose to refer to the SAP if deemed medically appropriate.




Sandra correctly informed Harry that PHMSA does not authorize

random testing for alcohol. They do test for alcohol for post-

accident and reasonable suspicion situations (49CFR part

199.225). This fact did not absolve Sandra of her professional

responsibility. Sandra knew that Harry needed help and wisely

referred him to appropriate resources. She also called Harry’s

DER to alert him to Harry’s situation and to PHMSA requirements

for random testing.


Case # 9Case # 9

Foggy, a ferryboat operator for the Sea You Later Ferry Service

called Sandra to request a SAP Evaluation. He tested positive on

a random alcohol test. He was removed from safety-sensitive

duty. His employer told him that the return-to-duty process began

with a SAP evaluation and he was referred to Sandra.

Sandra replied:



A. “Sorry, a SAP does not provide gatekeeper duties for ferryboat operators. They are not regulated by the DOT. However, I can help you with a referral.”

B. “The USCG does not authorize random alcohol tests. You do not need a SAP evaluation; however, you should be evaluated and possibly treated. I can help you with a referral to your EAP or to an alcoholism treatment specialist.”

C. “OK, let’s set-up an appointment.”





Sandra knows that drug and alcohol testing for ferryboat operators is

subject to regulations of both the Federal Transit Administration (FTA)

and the U.S. Coast Guard (USCG). She also knows that a DOT Final

Rule (effective January 2, 2007) clarified drug and alcohol testing

requirements for ferryboat operators and specified that ferryboat

operators remain subject to FTA requirements for random alcohol

testing. The FTA follows DOT CFR 49 Part 40 guidelines that place the

SAP in the ‘gatekeeper’ role in the return-to-duty process. She

correctly offered an appointment for Foggy.See 49 CFR Part 655


Case #10Case #10

Keep’em Rolling Transport Company referred truck driver Stanley Stupor

to Sandra Sapp for a SAP evaluation. Stanley tested positive for opiates

on a post-accident test. Sandra performed the evaluation and referred

him to a treatment program that included an inpatient detox phase

followed by a four week intensive outpatient treatment phase followed by

an eight week aftercare phase. Stanley resisted the referral. He was eager

to get back to his job and he had heard about a new program that quickly

returned people to work. The program uses suboxone as a detox and

maintenance therapy. It also had an outpatient counseling component

that he could attend after work.

Sandra said:



A. “Fine. I didn’t know about this program, but as long as it’s state certified I can send you there.”

B. “Sorry Stanley, but suboxone is not yet approved by the FDA. I can’t send you to a program that uses an experimental drug.”

C. “Sorry Stanley, but suboxone treatment is prohibited by the DOT. Unless they change their ruling, you will have to seek a different kind of treatment.”

D. “Suboxone treatment is fine Stanley and I will be glad to send you to the program, but you have to keep in mind that you cannot have a CDL (Commercial Drivers License) and take suboxone. If you want to return to safety-sensitive work and drive, you will need to have a different kind of treatment.”




Suboxone treatment per se is not prohibited by the DOT, but

driving a commercial motor vehicle (CMV) in interstate commerce

while taking suboxone is. Although suboxone is not yet

mentioned by name in the regulations, it contains buprenorphine

and the DOT considers it in the same category as methadone.

See Federal Motor Carriers Safety Administration (FMCSA) §391.41

Physical Qualifications for Drivers:

Methadone is a habit-forming narcotic which can produce drug

dependence and is not an allowable drug for operators of CMVs.


Case # 11Case # 11

Sandra took a call from Larry Lavalite, a California-based truck

driver who was referred by his DER after registering a positive

random test for marijuana. Larry appeared for the evaluation and

brought a prescription with him. It was a prescription for medical

marijuana. He said he had shown it to his employer’s MRO and

the MRO ignored it. Since medical marijuana was legal in

California, he asked Sandra to confirm that he did not need a SAP

evaluation.

Sandra said:



A. “Sorry, this is a bogus prescription; only marinol is legal in California.”

B. “Sorry Larry, the legal use of Medical marijuana was over-turned by the Supreme Court in 2005.”

C. “Sorry Larry, your MRO was right. The DOT prohibits the use of marijuana during the performance of safety-sensitive duties.”

D. “Dude, it’s cool,; just chill.”




Although California and 16 other states and DC have provisions for the legal

use of marijuana for medical purposes, DOT regulations are federal and

prohibit the use of marijuana in any form while engaged in DOT covered

safety-sensitive duty.

See ODAPC publication: Employee Handbook, p. 4, footnote 5.

While a minority of states allow medical use of marijuana, federal laws and

policy do not recognize any legitimate medical use of marijuana. Even if

marijuana is legally prescribed in a state, DOT regulations treat its use as

the same as the use of any other illicit drug.


Case # 12Case # 12

Sandra Sapp performed a follow-up SAP evaluation for Freddy

Frost, an employee of the Deep Freeze Ice Cream Company. On

her follow-up SAP report, Sandra included a follow-up testing plan.

She recommended that Freddy be tested 12 times during the first

year after his return to safety-sensitive duty. The DER, after

receiving the report, called Sandra to say her recommended

follow-up testing plan would not work.



The DER went on to explain that Deep Freeze planned to lay-off

the majority of their workers, including Freddy, during the winter

months when the ice cream market was slow. They would re-call

them in April. It was October. Does he have to test Freddy 12

times in the next six months? And what becomes of the follow-up

testing plan when Freddy returns in April?

Sandra replied:



A. “Choose the follow-up test dates for Freddy and test him until the layoff. When he returns in April, test him for the remaining number of tests.”

B. “I didn’t know about your lay-off policy. I will revise my recommendations to the minimum 6 tests during the first year after return to duty.”

C. “You must test him according to my recommendations even if that means testing him during the layoff period.”

D. “This is an unusual circumstance. Do whatever you think is best.”




The SAP creates the follow-up testing plan. The DER is required to

follow the plan and to choose the dates to satisfy the plan.

According to 49 CFR part 40.307 (e):

The requirements of the SAP's follow-up testing plan “follow the

employee” to subsequent employers or through breaks in service.



The DER agreed. He thought her plan was a good one. He liked it so much that he would ‘help-out’ by throwing-in some additional tests here and there, just to keep Freddy on his toes.

Sandra replied:



A. “Thanks, I appreciate your help and I’m sure that Freddy would benefit.”

B. “I think 12 tests would be enough; however, I can not interfere if adding tests is part of your company policy.”

C. “If you think Freddy needs more tests, we can discuss it and, if I agree, I can revise my recommendations. Otherwise, DOT regulations say that only the SAP may create the follow-up testing plan. The employer may not unilaterally add or subtract tests without violating DOT policy.”

D. “Whatever.”




DOT regulations prohibit the employer from modifying the SAP’s

recommendations for the follow-up testing plan.

According to 49 CFR part 40.307 (4):

As the employer, you must not impose additional testing

requirements (e.g., under company authority) on the employee

that go beyond the SAP's follow-up testing plan.



The SAP may choose to modify the plan. See 49 CFR part 40.307 (f):

As the SAP, you may modify the determinations you have made

concerning follow-up tests. For example, even if you recommended

follow-up testing beyond the first 12-months, you can terminate the

testing requirement at any time after the first year of testing. You

must not, however, modify the requirement that the employee take at

least six follow-up tests within the first 12 months after returning to

the performance of safety-sensitive functions.


Case #13Case #13

Sandra evaluated truck driver Ned Nodder who tested positive for

opiates on a post-accident test. Ned produced a prescription for

pain killers that his doctor wrote for him two years ago. He

maintained they were legitimately prescribed and that he was

taking them per his doctor’s instructions. Furthermore, he had

shown the prescription to the technician at the test collection

facility and to the MRO who verified his positive test. Why, he

asked, did he have to have a SAP evaluation?

Sandra replied:



A. “Obviously a mistake was made. The DOT permits use of prescribed medications for safety-sensitive employees unless prohibited by requirements for a specific license or certificate such as those needed by pilots or mariners.”

B. “You have to be evaluated because the drugs are pain killers.”

C. “You have to be evaluated because your prescription is too old.”





The FMSCA prohibits drivers from using prescribed controlled medications:

If a driver uses a drug identified in 21 CFR 1308.11(391.41(b)(12) or any other substance such as amphetamine, a narcotic, or any other habit forming drug, The driver is medically unqualified.

See Frequently Asked Questions – Medical #2 on the FMSCA website. This section may also be accessed from the ODAPC website under Frequently Asked Questions



This is the case unless a medically documented exception is made:

… the prescribing doctor can write that the driver is safe to be a commercial driver while taking the medication. In this case, the Medical Examiner may, but does not have to certify the driver.




Sandra, however, knew that even if a prescription was written for a medically documented exception,

Controlled substances expire no later than one year after the date of the original prescription.


Ned’s prescription was two years old. Therefore, Ned’s test results violated DOT regulations and he needed to embark upon the SAP process if he wanted to become eligible to be returned to safety-sensitive duty.


Case #14Case #14

Sandra Sapp received an angry phone call from USCG credentialed

mariner Patty Picton. Sandra had been Patty’s SAP two years ago

when she had complied with recommendations & was returned to

safety sensitive duty by her employer. She was angry about her

follow-up testing schedule. She thought it wasn’t fair that she was

still being tested two years after she returned to safety sensitive

work. Besides, all her tests had been negative. She accused

Sandra of being punitive and demanded that she change her test

recommendations. Sandra replied:



A. “Sorry Patty, but a SAP cannot change follow-up test recommendations.”

B. “Sorry Patty, but a SAP may not reveal a follow-up testing plan. I am permitted to revise it if I find warranting circumstances. I will review your case with your employer’s DER, but I cannot reveal any revisions that may result from the review.”

C. Sorry Patty. I only recommended 6 tests for one year. I will call your employer right away & demand that he stop testing you.”

D. “Sorry Patty, you are a credentialed mariner and according to USCG regulations, the employer can therefore add any amount of follow-up tests to a SAP’s recommendations.”




Sandra, of course, could not reveal her follow-up test plan to

Patty. She did, however, review her follow-up SAP report for

Patty and saw that she had recommended six follow-up tests

for the first 12 months following return to duty. She next

contacted the DER and found that the MRO had extended

Patty’s follow-up test period three years beyond Sandra’s

original recommendation!

What did Sandra do next?



A. She called the DOT and reported the MRO for violating 49 Part 40 regulations.

B. Called her professional liability insurance agent and asked for more coverage.

C. She told the DER that since he did not follow her SAP follow-up testing recommendations he was in violation of 49 Part 40. He must immediately cease and desist carrying out the MRO’s revision.

D. Nothing. She knew that according to USCG regulations 46 Part 16.201 (f) (1) & (2) the MRO was authorized to extend the follow-up testing period as long as it did not exceed the 60 month limit.




In the practices of most SAPs, USCG cases are relatively rare and

USCG cases where the MRO extends follow-up testing are even

rarer. However, this does happen and the regulations allow for it.

Therefore, there was nothing Sandra had to do. In the future, to

avoid being caught off guard by irate employees, Sandra will

probably ask USCG DERs to let her know when test

recommendations have been extended by the MRO.

Please feel free to ask questions

Thank You!Thank You!

Reed A. Morrison, Ph.D. President/CEO

American Substance Abuse Professionals (ASAP)888-792-ASAP | go2asap.com

Copyright 2007-2011 American Substance Abuse Professionals, Inc ®

a course for the advanced substance abuse professional presented by: american substance abuse...

Documents