Drug & Alcohol Newsletter Issue 36

Spring 2008
Issue 36
U.S. Department of Transportation Federal Transit Administration Office of Safety and Security
Introduction - The Federal Transit Administration (FTA) published its revised rule on prohibited drug use and the prevention of alcohol misuse (49 CFR Part 655) on August 1, 2001. The FTA published the revised Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit to provide a comprehensive overview of the regulations.
     Since the Guidelines were published, there have been numerous amendments, interpretations, and clarifications to the Drug and Alcohol testing procedures and program requirements.
     This publication is being provided to update the Guidelines and inform your transit system of these changes. This update is the thirty-sixth in a series.
Regulatory Clarification 2 Rx and OTC Medications 6
For Your Information 3 - 4 Technical Assistance 7
Questions & Answers 5    
Common Audit Findings 5    
IFR Authorizes Release of Information When Required by State Law

hands holding federal registerOn June 13, 2008, the Department of Transportation (DOT) amended 49 CFR Part 40.331 by publishing an Interim Final Rule (IFR). The IFR authorizes employers to disclose drug and alcohol violations of commercial motor vehicle (CMV) operators to State commercial driver licensing authorities when required by state law. The release of information can be done without employee consent. The IFR also permits third-party administrators (TPAs) to release drug and alcohol violations of CMV owner-operators to licensing authorities.

Several states have passed legislation requiring the release of drug and alcohol testing violations for all Commercial Drivers License (CDL) holders to their licensing authorities without the employees’ consent. This includes test results conducted under FMCSA (Part 382) and FTA (Part 655) authority. The information that must be released includes positive test results and test refusals.

Under the state laws, violation of the DOT drug and alcohol testing rules results in the suspension or revocation of the violator’s CDL. The suspension lasts until the violator has successfully completed the Return-to-Duty process including treatment and assessment by a Substance Abuse Professional (SAP). The legislation was formulated to address the safety risks associated with CMV operators who change jobs following a drug or alcohol test violation without undergoing the required treatment or SAP assessment.

The DOT supports these actions, as they are believed to have important safety benefits. Consequently, the IFR was published to eliminate any real or perceived barriers to these state legislative actions and to authorize employers to comply with the State law requirements without conflict with Part 40 confidentiality requirements. Reporting is only authorized in those states that have enacted legislation (e.g., Washington and Oregon).

The IFR was published in the Federal Register, Volume 73, No.115, on pages 33735-33737 and can be downloaded from the Office of Drug and Alcohol Policy and Compliance website at http://www.dot.gov/ost/dapc/news. Comments regarding this IFR should be submitted to docket number DOT-OST-2008-0184 by August 12, 2008. To submit your comments electronically, go to http://www.regulations.gov and follow the online instructions for submitting comments.
MIS Report Late Notices Out Soon

Each employer covered by the FTA drug and alcohol testing program is required to submit annual MIS reports that summarize test results for the preceding calendar year. The 2007 report was due to FTA by March 15, 2008. Those employers who did not submit their reports by the due date will be sent a reminder letter within the next few weeks.

Employers that do not respond to the reminder letter will be considered in non-compliance. Employers that need assistance with the completion of their report are encouraged to contact the FTA Drug and Alcohol Project Office at (617) 494-6336 or send an email to fta.damis@volpe.dot.gov.
Conference Presentations Available

FTA Drug and Alcohol Program National ConferenceThe 3rd Annual FTA Drug and Alcohol Program National Conference was a huge success with record numbers in attendance. This year’s conference received rave reviews for its session topics, expert presenters, and panel discussions. Presentations from the conference can be downloaded from the FTA website at http://transit-safety.volpe.dot.gov/DrugAndAlcohol/
FTA Drug & Alcohol
Regulation Updates
Issue 36, page 2
Pre-employment Test Refusals Clarified for Collectors The definition of a refusal to take a DOT drug test is defined in §40.191. The regulation lists nine employee actions that will be considered a refusal. Individuals taking pre-employment tests have only eight actions that are considered a refusal and three actions that have special caveats. A summary of these actions is provided in the following table.

The Federal Transit Administration (FTA) has become aware that some collection sites are not enforcing the test refusal provisions for pre-employment tests. At these collection sites, collectors mistakenly believe that if a test is for pre-employment, the individual can leave anytime during the collection process and it will not be considered a test refusal. This is incorrect. If an applicant for a safety-sensitive position leaves a collection facility after the testing process has begun, but before the testing process is completed, the collector must report the test as a test refusal even if the test is for pre-employment. The testing process is considered to have begun once the individual is given the collection cup.

Once an individual has been determined to have refused a test, the collector must terminate the portion of the testing process that is underway, document the refusal on the “Remarks” section of the Chain of Custody and Control Form (CCF), and immediately notify the Designated Employer Representative (DER).

Actions Considered to be a Drug Test Refusal under Section 40.191
Action Pre-Employment All Test Categories Except Pre-Employment
1. Fail to appear for a test within a reasonable time as directed by the employer. Not a Refusal Refusal
2. Fail to remain at the test site until the testing process is complete. Refusal, if individual leaves after testing process has commenced Refusal
3. Fail to provide a urine specimen. Refusal, if individual fails to provide a specimen once the testing process has commenced Refusal
4. Fail to permit direct observation of a specimen when required Refusal Refusal
5. Fail to provide a sufficient amount of urine when directed and there is no adequate medical explanation for the failure. Refusal Refusal
6. Fail or decline to take a second test when directed to do so. Refusal Refusal
7. Fail to undergo a medical examination when directed to do so. Refusal if employer has made a contingent offer of employment Refusal
8. Fail to cooperate with any part of the testing process (DER makes final refusal determination). Refusal Refusal
9. The Medical Review Officer reports that you have a verified adulterated or substituted test result. Refusal Refusal
Fluids Must be Monitored During Waiting Period If an employee is unable to provide 45 mL of urine, the collector is to discard the specimen and instruct the employee that he/she has up to three hours to provide another specimen with sufficient volume. During the three-hour period, the employee may consume up to 40 ounces of fluid distributed reasonably throughout the period.

The collector is responsible for monitoring the employees’ fluid intake during the waiting period and providing accurate and consistent measurements of the fluids consumed. Employees should not be given ready access to a limitless supply of fluids (i.e., water fountain, beverage machine, personal water bottle) where the quantity cannot be controlled or measured. The Department of Health and Human Services (DHHS) set the limit at 40 ounces to minimize the possibility of dilution.

There are a number of ways that collectors successfully monitor fluid intake and ensure that employees are provided the amount of fluid to which they are entitled. The most common methods include filling a pre-measured pitcher or using commercially-packaged 20 ounce water bottles. Filling cups with water is not acceptable as there can be significant variation in the amount of water that is poured into a glass or cup.
Regulatory Clarification Page 2 Spring 2008
Regulation Updates
Issue 36, page 3
Detailed Test Result Data Available The eleventh annual report of transit industry drug and alcohol test results for calendar year 2005 has been published and is available for download. The publication can be obtained from the FTA Office of Safety and Security Website at: http://transit-safety.volpe.dot.gov/Publications. The report provides a summary of the data reported from the industry on the Management Information System (MIS) report submissions for 2005 and a summary of the data for the period ranging from 1995 to 2005. In 2005, 3,091 employers were covered by the FTA drug and alcohol testing regulation (49 CFR Part 655) and 260,045 employees were subject to testing. The positive rate for random drug testing was 0.79% less than half of the 1.76% rate experienced in 1995. Likewise, the 2005 violation rate for random alcohol tests was 0.12% less than half of the violation rate of 0.25% reported in 1995. Even though the 2006 Annual Reports have yet to be published, the 2006 verified positive drug test rates and 2006 alcohol violation rates continue to fall.

Of the 77,088 pre-employment tests conducted in 2005, 1,692 applicants or 2.42% had a positive test result with 67.0% of those being positive for marijuana, 27.4% positive for cocaine, 5.9% positive for amphetamines, 1.7% for opiates, and less than 1% for phencyclidine (PCP). Of the 140,045 random tests performed on safety-sensitive employees, only 991 or 0.79% tested positive. Of these, 52.0% were positive for marijuana, 39.4% for cocaine, 8% for amphetamines, 3.3% for opiates, and less than 1% for PCP. A comparison of the pre-employment and random test results would indicate that the pre-employment test tends to be more effective at identifying marijuana users than other drug users, where the drugs and/or their metabolites can be detected for much shorter periods of time.Man working at PC

Of the test types, reasonable suspicion had the highest positive rate with 13.11% of the 557 tests conducted. Of the positive reasonable suspicion tests 52.5% were positive for cocaine, 32.8% were positive for marijuana, 14.8% were positive for amphetamines, and 1.6% were positive for opiates. Of 13,790 post-accident tests conducted in 2005, 184 were positive (1.51%) of which 47.3% were positive for cocaine, 39.7% were positive for marijuana, 7.6% were positive for amphetamines, 4.9% were positive for opiates, and 2.2% were positive for PCP. Of the tests that were triggered by an incident (accident or reasonable suspicion observation), cocaine positives outnumbered marijuana positives, and amphetamine positives nearly doubled the random amphetamine positive rate. There were only 1,028 return-to-duty tests performed. As expected, only 1.56%, or 14 individuals, tested positive with over half (57.1%) testing positive for marijuana. Of the 7,223 follow-up tests conducted, 103 or 1.59% tested positive with the majority (51.4%) testing positive for cocaine, 38.8% positive for marijuana, 7.8% positive for amphetamines and 7.1% were positive for opiates. These positive rates are reflective of the addictive nature of each of these substances.

Alcohol positive rates were fairly consistent among testing categories except for reasonable suspicion testing that resulted in an alcohol positive rate of 15.16% and return-to-duty testing that had an alcohol positive rate of 0.00%. The positive rates for random, post-accident, and follow-up testing were relatively low at 0.12% for random, 0.17% for post-accident, and 0.26 for follow-up testing.

Of each of the safety-sensitive employee categories tested in 2005, revenue vehicle operators had the highest positive rate for all testing categories combined with a drug positive rate of 1.54%. Transit employees that have CDLs, but who do not operate revenue service vehicles, have the second highest drug positive rate with 1.40%, and revenue vehicle and equipment maintenance employees have a 1.11% positive rate. Revenue vehicle controllers/dispatchers and armed security personnel have the lowest rates with 0.68% and 0.54%, respectively reflecting the low number of post-accident tests conducted on this employee classification. Revenue Vehicle Equipment Maintenance employees have the highest reasonable suspicion positive rate with 17.86% while revenue vehicle operators and non-revenue CDL drivers have the highest post-accident positive rates with 1.55% and 2.86%, respectively.

Non-revenue vehicle CDL holders have the highest alcohol positive rate of 0.39%. Revenue vehicle operators and revenue vehicle and equipment maintenance employees have alcohol positive rates of 0.25% and 0.27%, respectively. Revenue vehicle controllers/dispatchers and armed security personnel have the lowest alcohol positive rates with 0.12% and 0.08%, respectively. Contractor safety-sensitive employees have a relatively high overall drug positive rate of 2.26%, which is two and a half times greater than the transit employer positive rate of 0.87%. The alcohol positive rate of safety-sensitive contractors and transit employees are more in line with one another. The contractor alcohol positive rate is 0.36%, and the transit employer rate is 0.21%.
For Your Information Page 3 Spring 2008
FTA Drug & Alcohol
Regulation Updates
Issue 36, page 4
Detailed Drug and Alcohol Test Results (2005) Drug and Alcohol Tests by Testing Category

Percent of Positive Test Results by Drug and Testing Category

Drug and Alcohol Test by Employee Category

Source: Drug and Alcohol Testing Results 2005 Annual Report, USDOT
For Your Information Page 4 Spring 2008
Regulation Updates
Issue 36, page 5
The restroom facilities at our collection site are also used for their employees and patients. They keep hand soap in the restroom for hygiene purposes. Is this okay?

When the restroom is being used for purposes other than a DOT specimen collection, soap should be provided, as required by OSHA. However, when the restroom is used for a DOT collection, soap and all other items that could be potential adulterants must be removed from the room.

In 2004, the Department of Transportation (DOT) published an Interim Final Rule (IFR) on Validity Testing. The IFR amended the drug testing procedures in relation to adulterated, substituted and diluted specimen results. Is this rule still interim?

As of the publication date of this newsletter, the rule still had interim status, but it is anticipated that a final rule will be issued this summer. The DOT is awaiting sign-off by the Office of Management and Budget (OMB).

In the last issue of this newsletter, the DOT announced that it had developed a poster listing ten key steps to collection site security. I understand that I can get a copy of the poster from FTA’s website at http://transit-safety.volpe.dot.gov. Will there be anything else to help us ensure that our collection sites understand the procedure?

The DOT Office of Drug and Alcohol Policy and Compliance (ODAPC) is currently developing a video through the Transportation Safety Institute (TSI) that will demonstrate collection site security. The video should be completed this summer and will be available for download from the ODAPC website at http://www.dot.gov/ost/dapc.

My company has not conducted reasonable suspicion training in several years. How often is refresher training required?

Supervisors and other company officials who may be called on to make a reasonable suspicion determination are required to have 60 minutes of training on the physical, behavioral, and performance indicators of probable drug use, and at least 60 minutes of training on physical, behavioral, speech, and performance indicators of probable alcohol misuse. Supervisors are only required to have this training one time, and there is no regulatory requirement for refresher training. If all of your company’s supervisors have already had this training, then the company’s choice to not provide additional training is acceptable. These requirements, however, should be considered minimum. Your company is allowed to exceed these requirements. A common industry practice is to provide refresher reasonable suspicion training every two to three years.
People workingCollection Site Compliance

The FTA has always included mock urine and breath specimen collections as part of its audit process. In response to recent nationally publicized concerns regarding the quality of the specimen collection process, FTA has undertaken a program of clandestine collections in conjunction with the Office of Drug and Alcohol Policy and Compliance. FTA auditors acting as safety-sensitive employees have been evaluating collections sites and reporting their findings to FTA and ODAPC.

Service agents found to have egregious violations will be reviewed to determine if a Public Interest Exclusion (PIE) is warranted. Service agents who receive a PIE will be placed on a “List of Excluded Drug and Alcohol Service Agents” published on the DOT’s website at http://www.dot.gov/ost/dapc and in the Federal Register. The service agent must also notify in writing each of its DOT-regulated employers for which it performs services of the PIE.
Q & A/Common Audit Findings Page 5 Spring 2008
FTA Drug & Alcohol
Regulation Updates
Issue 36, page 6
Rx/OTC Use and the Older Transit Driver Hands holding a medicine bottle; Multiple medications with one bottle spillingMany transit systems report that a number of their safety-sensitive employees are 65 years old or older. An aging workforce presents many new challenges for employers, especially those in the transit industry. One primary concern is that the use of prescription and over-the-counter (OTC) medications that are suspected of adversely affecting driving performance increases with age.

The National Highway Traffic Safety Administration (NHTSA) reports that in a recent and comprehensive national survey of U.S. non-institutionalized adults, more than 90% of people 65 or older use at least one medication per week; more than 40% use five or more different medications per week, and 12% use ten or more different medications per week. The ten most commonly prescribed medication types for this population group were:
  • Cardiovascular (53.2%)
  • Antibiotics/anti-infectives (44.5%)
  • Diuretics (29.5%)
  • Opioids (21.9%)
  • Antihyperlipidemic (21.7%)
  • Nonopioid analgesics (19.8%)
  • Gastrointestinal tract (19.0%)
  • Respiratory tract (15.6%)
  • Dermatologic (14.8%)
  • Antidepressants (13.2%)
The NHTSA study also reported that experts estimate approximately 40% of the drugs taken by the elderly are OTC medications. The research indicated that 69% of individuals over 65 regularly use OTCs compared to ten percent of the general population. On average, research shows that an ambulatory older patient takes 3.4 OTC medications daily including analgesics and antacids.

Many laboratory and experimental driving tests have documented drug-induced impairments on driving for individual drugs. The problem, however, is compounded by the fact that older individuals use multiple prescription and OTC medications. The overall risk of combined drug use is greater than summing the risks of the drugs taken individually. In addition, the absorption, distribution, metabolism, and elimination of drugs and the actions the drugs have on the body are different in the elderly population.

The potential combinations of medical conditions, medications and interactions have made it difficult to determine what combinations sufficiently impair driving abilities to an extent that compromises public safety. The NHTSA report cited one recent study that concluded higher percentages of crash-involved drivers were prescribed two more prescriptions than non crash-involved drivers.

However, NHTSA and the researchers are quick to point out that because of the complex nature of multiple drug use by the elderly, additional research is needed and various strategies for addressing the issue must be investigated. Until such time that better definitive guidance is available for elderly drivers, employers should focus their attention on education regarding the dangers of prescription and OTC medications and employee performance monitoring.

Source: Lococo, Kathy H. and Loren Staplin, Polypharmacy and Older Drivers: Identifying Strategies to Study Drug Usage and Driving Functioning Among Older Drivers, NHTSA, December 2006.

The National Highway Traffic Safety Administration (NHTSA) published a brochure entitled “Driving When You Are Taking Medication.” Even though its primary focus is the elderly population, the brochure provides a message suitable for all audiences. The brochure can be downloaded from http://www.nhtsa.dot.gov/portal/site/

Chantix: A Safety Risk The U.S. Department of Transportation, Office of Drug and Alcohol Policy and Compliance (ODAPC) reminds all transportation industries of the potential threat to public safety caused by the use of the anti-smoking drug Chantix. A recent independent study spoke of possible links to seizures, dizziness, heart irregularity, loss of consciousness, vision problems, diabetes, and more than 100 accidents. As a result, we strongly urge all transportation industry employers to include in their employee training materials appropriate information to address this issue.
Rx and OTC Medications Page 6 Spring 2008
Regulation Updates
Issue 36, page 7
Revised Best Practices Manual Available In March 2002, the Federal Transit Administration (FTA) published the Best Practices Manual: FTA Drug and Alcohol Testing Program. Appendix A of this manual was revised in December, 2007 with updated example drug and alcohol policies and procedures.

Each policy included has been reviewed and determined to be current and fully-compliant with amended 49 CFR Parts 40 and 655 as of the date of publication. Each policy is labeled according to the size and type of employer to which it pertains. The final three policies are generic in nature and can be adjusted or tailored according to the specific needs of any employer.

The revised Appendix A to the Best Practices Manual contains twelve updated policies for use by transit employers. The following example policies are included:
  • Large Transit Systems
    • Metropolitan Atlanta Regional Transit Authority
    • Houston Metro (Zero Tolerance)
    • San Diego Transit Corporation
  • Medium Transit System
    • Knoxville Area Transit
  • Small Transit Systems
    • Clermont County
    • Athens-Clarke County
  • Paratransit Contractor
    • Lift, Incorporated (Drug-Free Workplace)
  • City Government
    • City of Charlottesville (FTA and FMCSA)
  • State Department of Transportation
    • Ohio Department of Transportation
  • Policy Templates
    • With Second Chance
    • No-Second Chance
    • FTA and FMCSA
  Employers can use these policies to update or revise all or part of their current policy and new employers can use these policies as a starting point. The example policies included in this manual provide employers with sample language that have been tested by time and have been scrutinized by FTA auditors. Employers should use caution, however, anytime they use example or boilerplate policies to ensure that the provisions set forth are representative of their own environment, and consistent with other employer policies, procedures, disciplinary code, labor agreements, and corporate philosophy. The revised Appendices of the Best Practices Manual can be obtained from the FTA Office of Safety and Security Website at: /publications.
FTA home page: http://www.fta.dot.gov
   FTA Office of Safety & Security: http://transit-safety.volpe.dot.gov
   DHHS-Certified Laboratories: http://www.workplace.samhsa.gov/ResourceCenter/lablist.htm
   Center for Substance Abuse Prevention: http://prevention.samhsa.gov
FTA, Office of Safety and Security Clearinghouse: (617) 494-2116
   Best Practices Manual: FTA Drug & Alcohol Testing Program
   Drug and Alcohol Consortia Manual
   Drug and Alcohol Testing Results: 1995 through 2005 Annual Reports
   Implementation Guidelines for Drug and Alcohol Regulations in Mass Transit, Revised 2003
   Reasonable Suspicion Referral for Drug and Alcohol Testing (Leader’s Guide & Video)
   FTA Drug and Alcohol Program Assessment
   Prescription and Over-The-Counter Medications Toolkit
   Urine Specimen Collection Procedures Guidelines
   Substance Abuse Professional Guidelines
   DOT’s 10 Steps to Collection Site Security and Integrity
USDOT Drug and Alcohol Documents FAX on Demand: (800)225-3784
USDOT, Office of Drug and Alcohol Policy and Compliance: (202) 366-3784 or http://www.dot.gov/ost/dapc
Technical Assistance Page 7 Spring 2008
FTA Drug & Alcohol
Regulation Updates
Issue 36, page 8
U.S. Department of Transportation Federal Transit Administration Office of Safety and Security
Where to find…?
49 CFR Part 655, Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations
     August 9, 2001 Federal Register Vol. 66, Pages 41996—42036

     December 31, 2003 Federal Register Vol. 68, Pages 75455-75466
     Primary Topic: One Page MIS Form

     November 30, 2006 Federal Register Vol. 71, Pages 69195-69198
     Primary Topic: Applicability of FTA and USCG Regulations to Ferryboats

     January 9, 2007 Federal Register Vol. 72, Pages 1057-1058
     Primary Topic: Revised Testing Rates

49 CFR Part 40, Procedures for Transportation Workplace Drug Testing Programs
     Revised: December 19, 2000 Federal Register Vol. 65, Pages 79462-79579
     Primary Topic: Procedures for Transportation Workplace Drug and Alcohol Testing Program Revised Final Rule (49 CFR Part 40)

     July 25, 2003 Federal Register Vol. 68, Pages 43946-43964
     Primary Topic: One-Page MIS Form

     January 22, 2004 Federal Register Vol. 69, Pages 3021-3022
     Primary Topic: Expanded List of SAPs

     Technical Amendments
     August 1, 2001 Federal Register Vol. 66, Pages 41943-41955
     Primary Topic: Clarifications and Corrections to Part 40; Common Preamble to Modal Rules

     Interim Final Rule
     November 9, 2006 Federal Register Vol. 69, Pages 64865-64868
     Primary Topic: Specimen Validity Testing

     Final Rule Change
     August 23, 2006 Federal Register Vol. 71, Pages 49382—49384
     Primary Topic: Expanded List of SAP Qualifications

Visit the ODAPC website at http://www.dot.gov/ost/dapc/ for a list of DHHS-certified testing facilities, conforming products lists for Evidential Breath Testing Devices (EBTs) and other useful information.
Produced by: FTA—Office of Safety and Security
1200 New Jersey Avenue, SE
4th & 5th Floors—
East Building
Washington, D.C. 20590

Edited and Published by: USDOT—John A. Volpe National Transportation Systems Center
Kendall Square
Cambridge, MA 02142

Written by:
RLS & Associates, Inc.
3131 South Dixie Highway
Suite 545
Dayton, OH 45439

Illustrated by:
Dan Muko
Who Should Be Receiving This Update?
In an attempt to keep each transit system well-informed, we need to reach the correct person within each organization. If you are not responsible for your system’s Drug and Alcohol program, please forward this update to the person(s) who is and notify us of the correct listing. If you know of others who would benefit from this publication, please contact us at the address on the right to include them on the mailing list. This publication is free.
RLS & Associates, Inc.
3131 South Dixie Highway
Suite 545
Dayton, OH 45439
Phone: (937) 299-5007
Fax: (937) 299-1055
Email: rls@rlsandassoc.com