fta drug and alcohol program national conference april 5 – 7, 2011 presented by: russ parish –...
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FTA Drug and Alcohol Program National Conference
April 5 – 7, 2011
Presented by:Russ Parish – Arkansas Transit
AssociationVicky Warner – Indiana RTAP/RLS &
Associates Inc.
Managing Your Transit Contractors
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To provide Participants with the technical knowledge necessary to perform a comprehensive assessment of their drug and alcohol testing program
To aid each participant in performing oversight of their vendors
To aid each participant in developing a plan of corrective action
To create a forum for the exchange of ideas and best practices
To provide valuable resources to aid in program administration and oversight
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Assess compliance with drug and alcohol testing regulations (49 CFR Part 655 and 49 CFR Part 40)
Performed by team of experts 4-6 auditors 2 to 4 days on-site Comprehensive Mock Collection Includes audit of safety sensitive contractors Includes audit of vendors Systems may be audited more than once
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Notification in writing and request for information Rural systems and their respective state DOTs are
contacted simultaneously Submittal of info within two weeks Site visits within six weeks Scheduled to avoid conflicts with other FTA
oversight functions Laptop real-time interview process Exit interview- letter and final report with
deficiencies Report- Final and non-negotiable 90 days for response and documentation of
correction of deficiencies
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Ensure all relevant personnel are available during the visit ◦ Program Manager◦ Other agency staff as appropriate◦ Vendors◦ Safety-sensitive contractors and their vendors
Upon notification of audit, immediately undertake efforts to collect, copy and submit relevant documentation to FTA◦ Recipient/subrecipient information ◦ Contractor information
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View audit in a positive manner Arrange to have ready access to all relevant records
and documents ◦ Must be available on-site ◦ Data from vendors ◦ Data from safety-sensitive contractor
Impart the seriousness of the audit to those individuals that will be involved
Give complete cooperation Be prepared to provide complete documentation Provide clear, descriptive answers
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Applicable regulations (FTA vs. FMCSA) Policy Flaws After hours collection not being performed Post-accident testing procedures ill-defined Random selection/notification process compromises
integrity of program Confidentiality of information compromised Recordkeeping incomplete Program not current- Revised Rules Vendor non-compliance Safety sensitive contractor non-compliance Safety sensitive employee incorrectly identified
Download and use the FTA audit questions from the Office of Safety and Security website located on their technical assistance page – http://transit-safety.fta.dot.gov
Request the following material for a desk review prior to any scheduled site visit◦ Copy of the current drug and alcohol policy◦ Hire dates and pre-employment testing logs◦ Random draw lists and random testing logs◦ Copies of vendor credentials (MRO, SAP, laboratory, BAT &
Collectors)◦ Records of Post accident test for previous year (longer if a very
small provider)◦ Information regarding cancelled or non-negative test results◦ Information on the EBT that is being utilized by the provider◦ Copies of semi-annual statistical reports
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Audit testing records: an employer may disclose drug and alcohol testing information including test results to the State oversight agency or grantee required to certify compliance
Require timely responses and supporting documentation for any issues identified during the review
Require and monitor reports
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The recipient of FTA funds must certify compliance with the requirements set forth in 49 CFR Part 655 on an annual basis
Must be signed by the recipient’s governing board or authorizing official
Criminal penalties for false statements or misrepresentations
Section 5311 systems certify compliance to their respective State DOTs
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Responsible for actions of officials, representatives, and service agents
All agreements between employers and service agents are deemed as a matter of law to require compliance
Service agents must provide documentation of credentials
Good faith effort is not a defense for non-compliance
Employer is responsible for obtaining test results and other information that is needed for compliance purposes
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Policies and procedures must be in place to ensure post-accident tests are performed as soon as possible following an accident - Testing often omitted or significantly delayed - Ill-defined policies - No documented procedure - Inadequately trained supervisor - Lack of supervisor empowerment
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Non-routine and sporadic performance of safety-sensitive function - Drug tests, anytime during shift - Alcohol tests just before, during, or after performance of safety-sensitive function
Fluctuating employee base - Number in pool X percent of testing - Number of draws to be conducted per year
Program administrator in pool - alternative contact notified when administrator’s number is selected
Employee must be notified of the testing authority
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6:00 AM Open
6:00 PM Close
Number and explanation for cancelled tests
Collection and transfer of split specimens
Volume capacity, location, and service hours
After hours testing
Ease of communicating and reporting
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Collection sites Medical Review Officers HHS laboratories (blind samples) BATs/STTs Substance Abuse Professionals Service agent compliance required
- Compliance required as a matter of law - Non-compliance may result in a public interest exclusion (PIE)
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HHS Lab report semi-annual test reports to employers
NPRM – IITF Report the same
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Able to withstand challengeDocument policies and proceduresDocument every test decision
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Employer or service agents cannot require an employee to sign a consent, release, Waiver of Liability, or Indemnification Agreement withrespect to drug and alcohol tests
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A chain of custody and control form for every test A negative test result for every new hire Written notice to applicant with
acknowledgement and signature Date, time, and result of each test conducted Test date prior to hire date Previous employer drug and alcohol test records
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Random draw lists A chain of custody and control form for each test
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Accident Identification Information: documentation of whether circumstances meet definition of accident
Documentation for every covered accident on decision to test or not
Documentation supporting determination of whether the employee could be completely discounted as a contributing factor
Time/date of accident and test Documentation of reason for test delay
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Employer must define who has access to files and for what purpose
Access by others should be restricted FTA recipients may have access to contractor’s
employee-specific information
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A separate release must be signed each time information is to be disclosed
Releases must be signed by employee anytime information is to be released to - The employee - Union representatives - Subsequent employers - To any other third party designated by the employee
Employee must not be given access to SAP follow-up testing plan
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No signed release is required when information is provided to: The National Transportation Safety Board when
investigating an accident A decision maker in a lawsuit grievance or
administrative proceeding initiated by or on the behalf of the employee tested and resulting from a positive test result or test refusal
The DOT or any DOT agency with regulatory authority over the employer or any of its employees, or to a State Oversight committee authorized to oversee rail fixed guide way systems
State DOT or grantee that has oversight responsibility and is required to certify compliance to FTA
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No signed release is required when information is provided to: (cont’d) A criminal or civil action resulting from an
employee’s performance of safety-sensitive duties in which a court or competent jurisdiction determines the test information is relevant to the case and orders the employer to produce the information
Release must be made with a binding stipulation that the decision maker will make the information available only to parties to the proceeding
Release of information to law enforcement agencies based solely on the request of the law enforcement agency is not allowed
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State commercial driver’s licensing (CDL) authorities when a state law require such reporting
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Employers and service agents must allow DOT agency access to: Facilities All written, printed, computer-based programs,
and reports Laboratories are not allowed to release a
specimen without obtaining ODAPC permission
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Apply strict confidentiality standards to all aspects of your substance abuse program, particularly with respect to identification of any specific individual
Apply the golden rule
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DO NOT ASSUME THAT VENDORS ARE CONDUCTING TESTS IN
COMPLIANCE WITH REGULATIONS – THAT INCLUDES TPA’S AND
CONSORTIA!
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Employer discretion Maintain confidentiality Must meet time requirements Must provide DOT requested information to
employer within two days
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Transmit drug test information from MRO to employer - Test refusals - Cancelled tests - Split specimen - Retest requirements reconfirmation - Insufficient specimen - Drug test results - Shy bladder refusal - Dilute specimens - Transmission of CCF - Changed test result - Transmission of lab- Confirmed positive for stand statistical report down - Transmission of 2 years - Direct observation collections test results to - Employee no-shows subsequent employers - DER contact information - Alcohol screen and confirmatory test results < 0.02
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Transmission of laboratory drug test results to MRO
Transmission of medical information from MRO to employers
Transmission of SAP reports to employers Transmission of positive alcohol test results
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May operate random testing programs May maintain random pool May assist with other types of testing May assist in implementation of follow-up testing plans May receive and maintain all records without employee
consent - Test results - Program operation records
Must transfer records immediately upon request without fee
Must notify employee immediately of business status change
Must not act as DER
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Utilize the FTA consortium/TPA audit questions
Conduct Semi annual or annual reviews May require statistician validate the
scientific validity of the random draw programs utilized
Require annual MIS for the entire consortium for state wide programs
Follow-up/require written responses to any problems reported by systems using C/TPA
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Conduct periodic mock collections to identify procedural flaws
Investigate any reports by employees of flawed procedures
Provide vendors copies of USDOT and FTA handbooks and procedural manuals
Require documentation of vendor credentials
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Even though not a regulatory requirement, consider requiring vendors to hold memberships in their respective industry’s trade association
Monitor cancelled test rates, and require detailed explanations for each cancelled test
Include specific and detailed minimum performance standards in contracts that provide disincentives for cancelled tests or non-performance
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If vendors are unwilling or unable to perform their duties consistent with the regulations, cancel their contract and obtain service elsewhere
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Drug & Alcohol Testing Industry Association(800) 355-1257 www.datia.org
American Association of Medical Review Officers(919) 489-5407
American Society of Addiction Medicine(301) 656-3920
American College of Occupational and Environmental Medicine (847) 228-6850
Substance Abuse Program AdministrationAssociation (800) 672-7229
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MROs will no longer be required to obtain 12 hours of continuing education every three years.
Instead MROs will be required to be retrained and pass an examination every five years. ◦ The examination must be given by a
recognized MRO certification board or subspecialty board for medical practitioners.
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What is a PIE? - Public Interest Exclusion - not allowed to work in DOT programs
Purpose of PIE - Protect public interest - Protect employer and employee from serious noncompliance
Basis for PIE being issued - DOT determines failure or refusal to provide service consistent with DOT rules - Failure to cooperate with DOT or inspections, compliance and enforcement reviews, or requests for documentation
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DOT policy on PIE proceeding - Only in cases of serious, uncorrected non-compliance
Affects safety Outcomes of test results Privacy and confidentiality Affects due process Affects honesty and integrity of testing program Failure to provide cooperation and info to DOT
representatives - Regulation provides 14 examples
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Michael R. Bennett and Workplace Compliance, Inc. 7/31/09 – 7/31/14
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Safety-sensitive contractors that “stand in the shoes” of the subrecipient are required to have drug and alcohol testing programs that meet the same requirements Maintenance contractors of systems that serve populations
of <= 200,000 are exempt Second tier maintenance contractors are exempt Rule applies to contractors (i.e. taxi operators) when the
transit provider enters into a contract with one or more entities.
Rule does not apply when the patron chooses the operator Suggested oversight procedures
Provide copy of the regulations and DOT/FTA guidance Make compliance a condition of the contract.
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Conduct periodic assessment using checklist Policy Testing procedures Testing categories Training Recordkeeping
Audit testing records: an employer may disclose drug and alcohol testing information including test results to the State oversight agency or grantee required to certify compliance
Require and monitor reports Include in own program
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Identify safety-sensitive contractors which “stand in the shoes” of the recipient
Require contract or contract language specifying requirements for a compliant drug and alcohol testing program including specific performance standards
Do not assume that contractors, no matter how reputable, are in compliance
Develop an on-going monitoring program Immediately take corrective action to remedy
problems found
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