Drug & Alcohol Newsletter Issue 40

Fall 2009
Issue 40

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 fortieth in a series.

Inside...

Regulatory Clarification 2
Rx and OTC Medications 6
For Your Information 3 -4
Technical Assistance 7
Questions & Answers 5
Common Audit Findings 5

Drug and Alcohol Program National Conference to be Held in March

The fifth annual FTA Drug and Alcohol Program National Conference will be held in Los Angles at the Sheraton Universal Hotel on March 16 - March 18, 2010. The three-day conference will address a number of issues including recent regulatory changes, direct observation collection procedures, a question and answer session with the FTA Drug and Alcohol Program Manager, the Federal Motor carrier Safety Administration (FMCSA) Program Manager, the results of a Bus Simulator Medication Study, Troubleshooting for Drug and Alcohol Program Managers (DAPMs), as well as many new panel discussions and speakers. Drug and Alcohol Conference Logo

The first day of the conference, Tuesday, March 16, is a full-day training session for new Drug and Alcohol Program Managers (DAPMs) and those seeking basic refresher training. There will also be two, two-hour Reasonable Suspicion trainings held that day (a third session on that topic will be held on the third day, Wednesday March 18th). Individuals interested in these training sessions must pre-register as space is limited. The main conference sessions will begin with a Welcome and Opening Remarks on Wednesday, March 17. The conference will include informational sessions as well as panel discussions on a variety of current topics and issues. Each session will be repeated once to allow attendees the opportunity to avoid scheduling conflicts and to attend various sessions of interest. There will also be various opportunities to network with your peers.

Session speakers will include representatives from the FTA, DOT Office of Drug and Alcohol Policy and Compliance (ODAPC), FTA auditors, FTA Drug and Alcohol MIS and Newsletter staff, the Transportation Safety Institute (TSI), and FMCSA representatives from the transit and testing industry.

FTA auditors, the FTA Drug and Alcohol Management Information Systems (MIS) team, and various subject matter experts will also be available throughout the conference to review policies, assist with annual MIS reports, address regulatory questions and provide other assistance as needed. The conference is free, but you must register online. Registration information and additional information on the conference will be available on the Office of Safety and Security home page in early November (http://transit-safety.fta.dot.gov).

Direct Observation for Return-to-Duty & Follow-up Testing Clarified

The requirement to conduct all return-to-duty and follow-up tests under direct observation went into effect on August 31, 2009. The following clarifications are provided in response to questions that have arisen as transit systems have implemented this requirement.

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FTA Drug & Alcohol Regulation Updates
Issue 40, page 2

REGULATORY CLARIFICATION

Medical Use of Marijuana Remains a Violation of DOT's Regulation

On October 19, 2009, the U. S. Department of Justice (DOJ) issued a "Memorandum for Selected United States Attorneys" that gave guidance to federal prosecutors on how to proceed in states that have enacted laws authorizing the use of "medical marijuana" when the individuals' actions are in clear and unambiguous compliance with existing state laws. In short, the guidance told federal prosecutors to focus their efforts and resources on the "prosecution of commercial enterprises that unlawfully market and sell marijuana for pro-fit" with special emphasis placed on the prosecution of significant traffickers and the disruption of illegal drug manufacturing and trafficking networks. Prosecution of individuals that use marijuana for medical purposes in clear and unambiguous compliance with state laws would not be an efficient use of federal resources.

The guidance went on to clarify that it does not alter the DOJ's authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federal property. The guidance "does not 'legalize' marijuana or provide a legal defense to a violation of federal law. . . ."nor does "clear and unambiguous compliance with state law . . . create a legal defense to a violation of the Controlled Substances Act."

This DOJ guidance to prosecutors has no impact on the Department of Transportation's (DOT's) drug and alcohol testing regulations that prohibit the use of marijuana by safety-sensitive transportation employees. The regulation clearly states (§40.151(e)) that use of "medical marijuana" under a state law does not constitute a valid medical explanation under federal law and will be considered a positive drug test result.

Medical Review Officers (MROs) must not verify a drug test as negative based on a claim of "medical marijuana" use even if the use was recommended by a physician in a state that authorizes such use. Marijuana is listed as a Schedule I drug of the Controlled Substances Act and is considered unsafe for any use by a safety-sensitive transportation professional.

It should be noted that this refers to leaf-based marijuana. Chemical positive tests that involve prescription use of the pill form known as Marinol (dronabinol) may be downgraded by MROs. If downgraded, the MRO should express a safety risk concern to the employer as per Part 40.327(a)(2).

FTA Post-Accident Threshold Still Misunderstood

Over fifteen years have passed since the FTA first published its drug and alcohol testing regulations, and a number of transit systems still have difficulty achieving compliance with the post-accident testing requirements (§655.44). The most common misunderstanding is the belief that transit systems should conduct tests anytime an employee is determined to be "at fault."This belief is incorrect and has resulted in many unnecessary tests that are in violation of the regulation. Before a DOT test can be performed, the FTA minimum thresholds for a post-accident test must be met. If one or more thresholds are not met, a DOT test must not be performed. An FTA post-accident test can only be performed if one of the following situations exist:

Whether or not an employee is considered to be "at fault" is irrelevant. The standard that must be met in the last three threshold descriptions is whether or not "the employee can be completely discounted as a contributing factor."This standard cannot be applied unless the other standards in the threshold description are also met.

If the accident has not met an FTA post-accident testing threshold but the employee is deemed "at fault," the employee may be tested under company authority consistent with its substance abuse policy. Additionally, the employer should observe the employee for signs and symptoms indicating drug use and/or alcohol misuse. If signs and symptoms exist, a reasonable suspicion test should be conducted.

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Regulatory Clarification

FTA Drug & Alcohol Regulation Updates
Issue 40, page 3

FOR YOUR INFORMATION

How to Update your List of Contractors for MIS Reporting

In late December, all FTA grantees selected by FTA to submit 2009 annual drug and alcohol testing results will receive a notification letter and packet in the mail with reporting instructions. While grantees can choose to submit their reports on paper forms, Internet reporting is highly encouraged.

The packet will include instructions on how to access the 2009 FTA Drug and Alcohol MIS website for reporting of the FTA grantee and their contractor/subrecipient annual test results. The list of contractors/subrecipients for each FTA grantee is based on previous years' MIS submittals. Grantees should review their lists and contact the FTA Drug and Alcohol Program Office with updates. The Office will issue new user names and passwords as needed. Also, please call the office should you have any questions about the reporting process. You can reach the FTA Drug and Alcohol Program Office by calling (617) 494-6336 or by e-mailing FTA.DAMIS@dot.gov.

Random Survey of Accidents Underway

The Federal Transit Administration (FTA) is evaluating the correlation between transit employees' use of Prescription (Rx) and Over-the-Counter (OTC) medications and system safety. A random selection was made of the transit industry accidents that were reported to the National Transit Database (NTD) in 2008. A sample of 379 accidents representing 108 transit systems were selected for further analysis. Bus and car collision, drivers exchanging information

Representatives from RLS & Associates, Inc. are contacting the transit systems via telephone to discuss the selected accidents. If you are contacted, you will be asked to consult your system's internal records (i.e., medical records, drug and alcohol records, CDL physical) to identify the Rx/OTC medications that the involved employee had previously reported. The identity of the employee should not be provided and all information that could be attributed back to a specific individual or their medical condition should be withheld. The purpose of the data collection effort is to identify medications that might be present during accident situations and to identify medications with the most frequent incidence that may pose the greatest risk. The data will not be used to establish a causal or contributing factor relationship with the accident, but will be used only to determine the frequency of Rx/OTC presence in accident situations.

During the interview, the transit system's post accident testing procedures, experiences, and documentation practices regarding Rx/OTC medication as it pertains to the accidents reported in the 2008 NTD will also be discussed. The purpose of the evaluation is not to test the effectiveness or appropriateness of the system's Rx/OTC policies and procedures; rather, the purpose is to ascertain the degree to which public transit systems inquire about the use of Rx/OTC medication and establish (or not) a potential correlation between the accident and the use of medication.

If your system is selected, your participation in the interview process is strongly encouraged. If you have any questions or concerns about the process or the application of the information, you are asked to contact Jerry Powers, FTA Drug and Alcohol Program Manager, at (617) 494-2395 or FTA Contractor Robbie Sarles at (937) 299-5007.

For Your Information
Page 3
Fall 2009

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FTA Drug & Alcohol Regulation Updates
Issue 40, page 4

FOR YOUR INFORMATION

Majority of Transit Systems Have Rx/OTC Policy

The Federal Transit Administration (FTA) is evaluating the policies and procedures related to investigating transit employees’ use of Prescription (Rx) and Over-the-Counter (OTC) medications as it relates to policies and procedures and post-accident investigations. A Web-based questionnaire was designed to capture preliminary information from a large sample of transit systems. The questionnaire went live and was emailed to the nation’s 300 largest transit systems and announced in the FTA Drug and Alcohol Quarterly Newsletter for all transit systems to participate. The questionnaire requested information on the systems’ Rx/OTC policy, Rx/OTC education and training, employee use reporting methodology, medical practitioner involvement, and CDL physicals.

Requirements

Percentage

Required For All Prescription Medications

21%

Only Prescriptions with a Warning Label and/or
Potential Affect on Employee's Performance

59%

Only OTC Medicaitons with a Warning Label and/or
Potential Affect on Employee's Performance

42%

Request Doctor's or Pharmcist's Note Only if
Managment Believes More Info. Is Neccesary

46%

Do Not Require Doctor's Note

33%

More than 185 transit systems completed the Web-based questionnaire pertaining to policies and procedures for Rx/OTC medications. Approximately 63% of participating systems reported that they included Rx/OTC medication use as part of their organization’s substance abuse policy. Another 10% reported that they have a stand-alone Rx/OTC medication use policy or employees are covered under another entity’s policy. Twenty-seven (27) percent do not have Rx/OTC medication policies.

According to the survey results, more than one-quarter of participating systems stated that they do not require employees to report use of Rx/OTC medications, but the remaining systems indicated some type of reporting requirements. The majority (72% for Rx and 68% for OTC) of participating transit systems that indicated having a policy for Rx/OTC medication only required employees to report use of medications with a warning label for adverse affects prior to reporting for duty. However, approximately 20% of participating systems with reporting requirements indicated that they require employees to report all use of Rx medications, regardless of warning label; 8% required reporting of all OTC medications. The procedures for verifying the use of Rx/OTC medications varied.

The method for obtaining a physician’s approval also varied. Approximately 15% of survey respondents developed a formal Fitness for Duty Form for Rx medications and 7% had a form for OTC medication use.

The question then became, how does the employee communicate his or her essential job functions to the prescribing physician? Approximately 20% of survey respondents provided an employee job description to the physician, and nearly 44% said that it was the employee’s responsibility to communicate with the physician. The remaining participants had no process in place.

The fear for many safety-sensitive employees who fail to report use of Rx/OTC medications prior to duty is that they will lose vacation time or be forced to take leave without pay if they call in 'sick' for work because of their medication use. Only 13% of systems indicated having an attendance policy for use of Rx medications and 7% had an attendance policy that covered use of OTC medications. Of those systems with an attendance policy, 60% required an assessment from the prescribing physician before the employee could return to duty.

Safety-sensitive employees who fail to report use of Rx and/or OTC medications face consequences ranging from a verbal warning (12%) to progressive discipline up to and including suspension (40% of participating systems) to being treated as if they had a positive test on a drug screen (less than 17%).

Approximately 73% of survey respondents indicated that Rx/OTC medication use is part of the substance abuse awareness training, safety meetings, or some other training. Between 15% and 20% of those systems spent 15 to 30 minutes of the training session on Rx/OTC medication topics. Typical training topics included a discussion of Rx/OTC medications, an overview of the system’s Rx/OTC policy, procedures for obtaining medical authorization, notification and reporting requirements, required forms, and consequences.

For Your Information
Page 4
Fall 2009

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QUESTIONS & ANSWERS

FTA Drug & Alcohol
Regulation Updates
Issue 40, page 5

Q

We provide the training for all of our safety-sensitive employees by providing them with a handout containing information on each of the drugs and then periodically discussing the drugs at safety meetings. We do not provide any classroom training. Does this meet the regulatory requirement? Do we need to provide a certificate to the employees that were trained?

A

The FTA drug and alcohol testing regulation (§655.14) requires each covered employer to establish an education and training program for all covered employees. The program must include a general education component, training for all safety-sensitive employees, and training for all supervisors and/or other company officers authorized by the employer to make reasonable suspicion determinations.

The regulation (§655.14(b)) requires a minimum of sixty (60) minutes of training for all safety-sensitive employees on the effects and consequences of prohibited drug use on personal health, safety, and the work environment. The training must also address the signs and symptoms that may indicate drug use. Although training is typically provided in a classroom setting with an instructor present to answer questions and facilitate discussions, some systems use videos/DVDs. Others use computer-based interactive technologies that do not require a live instructor. The informal nature of the training method described in the question above would not provide sufficient assurance that the sixty minutes of training was achieved.

Systems must be able to provide documentation of the training content and the time allotted for the training. The documentation can include a detailed class agenda with topics and timeline listed, photocopies of training documents and/or the front and back covers of any video/DVD used. Official "certificates” are not required to be issued if other documentation is available to document each safety-sensitive employee's participation (i.e., class roster with sign-in pages). However, the issuance of a certificate is the most common form of documentation provided.

COMMON AUDIT FINDINGS

Previous Employer Record Requests

Covered employers are required to obtain written consent from all applicants for safety-sensitive positions to request drug and alcohol testing records from their previous DOT-regulated employers (§40.25). Only DOT-regulated employers who have employed the applicant during any period within the preceding two year period must be contacted. A standard form to request the information has been developed ("Release of Information Form – 49 CFR Part 40 Drug and Alcohol Testing") and is available for download from the DOT Office of Drug and Alcohol Policy and Compliance website http://www.dot.gov/ost/dapc.

If possible, employers are to obtain and review this information before the employee performs safety-sensitive functions. If this is not possible, employers must make and document a good faith effort to obtain the information.

FTA auditors have found that many transit systems do not comply with this requirement or do not make a good faith effort to contact the previous DOT-regulated employers to obtain this information. A good faith effort can be demonstrated by making follow-up telephone calls or sending a reminder notice. Documentation of the effort must be maintained for at least three years.

Also note that covered employers are required to provide information regarding a previous employee to a potential subsequent employer if the employee has provided written consent for you to release the information. The information must be released in a confidential manner and the employer must maintain a written record of the information released.

Similarly, covered employers are also required to ask all applicants/transferees whether he/she has tested positive, or refused a test within the past two years on any DOT pre-employment drug or alcohol test administered by a DOT-covered employer. Employers must provide documentation that they have asked this question. A best practice is to include the question on the employee application.

Note that FMCSA requires that employers ask applicants for three years and FAA has a five year requirement. Transit employers should inspect their standard previous employer forms and/or check with any background check service provider to ensure that Part 40.25 is the only requirement referenced. However, it is not a violation of Part 40 if the previous employer provides information from former employers that exceeds two years.

Q & A/Common Audit Findings
Page 5
Fall 2009

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FTA Drug & Alcohol Regulation Updates
Issue 40, page 6

RX & OTC MEDICATIONS

Adderall Use Increasing Among Safety-Sensitive Employees

For the first time since laboratory drug test results were reported to the Department of Transportation (DOT) under the Transportation Workplace Drug and Alcohol Testing Program (49CFR Part 40), amphetamine positives outnumber cocaine positives. Upon further investigation, the DOT Office of Drug and Alcohol Policy and Compliance (ODAPC) has concluded that the number of amphetamine positives is directly related to an increase in the use of prescription amphetamines by safety-sensitive employees covered under the regulation-most notably, the use of Adderall.

Test results of safety-sensitive employees that have a valid prescription for Adderall are verified as negative by Medical Review Officers. Only those individuals that are abusing the medication or obtaining it illegally are verified as positive. The increased use of this medication by transportation professionals is alarming due to its side-effects and addictive nature.

Adderall is a central nervous system stimulant that affects chemicals in the brain and nerves that contribute to hyperactivity and impulse control. It is used primarily to treat narcolepsy and attention deficit hyperactivity disorder (ADHD), but is also used to treat depression and obesity. Adderall is the name for a Dextroamphetamine/Amphetamine composite medication that has been prescribed under different names for various purposes for more than thirty years. It is a Schedule II controlled substance.

The Drug Enforcement Agency (DEA) published a report in 2005 that stated that amphetamine, dextroamphetamine and methamphetamine “have essentially the same chemical properties and their actions are so alike that even experienced users may not feel a difference between them.” The Food and Drug Administration (FDA) requires the following warning on all Adderall products reflecting the conclusion of medical studies that indicate these drugs have a significant risk of serious and life-threatening adverse effects.

FDA WARNING:

AMPHETAMINES HAVE A HIGH POTENTIAL FOR ABUSE. ADMINISTRATION OF AMPHETAMINES FOR PROLONGED PERIODS OF TIME MAY LEAD TO DRUG DEPENDENCE AND MUST BE AVOIDED. PARTICULAR ATTENTION SHOULD BE PAID TO THE POSSIBILITY OF SUBJECTS OBTAINING AMPHETAMINES FOR NONTHERAPEUTIC USE OR DISTRIBUTION TO OTHERS, AND THE DRUGS SHOULD BE PRESCRIBED OR DISPENSED SPARINGLY.

MISUSE OF AMPHETAMINES MAY CAUSE SUDDEN DEATH AND SERIOUS CARDIOVASCULAR ADVERSE EVENTS.

Amphetamines prompt the brain to release adrenalin and other stress hormones, increase heart rate and blood pressure, and redirect blood flow into the muscles. In small doses, amphetamines can reduce tiredness and make the user feel alert and refreshed. However, the after-effects of the burst of energy include nausea, irritability, depression, and extreme exhaustion. Common side-effects include dry mouth, loss of appetite, headache, insomnia, nervousness, agitation, anxiety, irritability, and addiction. Users can also develop amphetamine-induced anxiety disorders, Adderall-induced psychosis, amphetamine-induced sexual dysfunction, and overdose side effects. Abrupt halt to the use of Adderall can cause extreme fatigue and severe, suicidal depression.

Users can also build up a tolerance to amphetamines requiring them to increase their dosage to achieve the same effect. Over time, individuals may develop a psychological dependence with corresponding craving for the drug and withdrawal if the drug is not available.

Rx and OTC Medications
Page 6
Fall 2009

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TECHNICAL ASSISTANCE

FTA Drug & Alcohol
Regulation Updates
Issue 40, page 7

DOT Updates Technical Assistance Materials

The Department of Transportation's (DOT) Office of Drug and Alcohol Policy and Compliance (ODAPC) provides various publications to assist employers and employees covered by 49 CFR Part 40. Given the recent changes to the regulations that went into effect on August 31, 2009 regarding the mandatory direct observation requirements for all return-to-duty and follow-up tests, ODAPC updated several of its publications. The following publications are available for download from the ODAPC website at: http://www.dot.gov/ost/dapc/udsc.html.

Technical Assistance
Page 7
Fall 2009

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FTA Drug & Alcohol
Regulation Updates
Issue 40, page 8

FTA Drug & Alcohol Regulation Updates Issue 40, page 8

U.S. Department of Transportation

Federal Transit Administration

Office of Safety and Security

Where to find...?

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

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