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 twenty-fifth in a series.

The Department of Health and Human Services (HHS) promulgated a rule under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) that established national standards for safeguards to protect the integrity, confidentiality, and availability of electronic health information. The rule covers the risk of improper access to stored information and the risk of interception during electronic transmission of information.

The HHS HIPAA rule requires the consent or authorization from an individual any time information is released regarding a person’s “preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care or the past, present, or future physical or mental health or condition of an individual.” Information obtained as part of a Department of Transportation (DOT) drug and alcohol testing program is not considered “health information” covered by HIPAA rules and therefore, does not require employers and service agents in the DOT drug and alcohol testing program to obtain written employee authorization to disclose drug and alcohol testing information required by DOT and FTA rules (49 CFR Parts 40 and 655, respectively). The DOT/FTA testing program only considers the employee’s compliance with safety regulations and does not address any employee health considerations.

In addition, Part 164.512 of the HHS rule further explains that employee authorization is not necessary where Federal law requires the use or disclosure of otherwise protected health information. Parts 40 and 655 clearly stipulate the specific circumstances that require employee authorization or consent. Required disclosure or use of other information cited by the rules does not necessitate employee authorization or consent.

Consequently, employers do not need employee authorizations to conduct DOT tests. Employers need to notify applicants of the need for a pre-employment test and employees need to be provided with a policy statement that indicates participation in the testing program is a condition of employment, but no employee authorization is required.

Collectors do not need authorizations to perform DOT urine collections, to distribute Custody and Control Forms, or to send specimens to laboratories. Screen Test Technicians (STT) and Breath Alcohol Technicians (BAT) do not need authorizations to perform DOT alcohol tests or to report test results to employers. Laboratories do not need employee authorization to perform DOT drug and validity tests, or to report results to designated Medical Review Officers (MROs).

Likewise, MROs do not need employee authorization to verify drug test results, to discuss alternative medical explanations with prescribing physicians and issuing pharmacists, to report results to employers, to confer with Substance Abuse Professionals (SAPs) and evaluating physicians, or to report other medical information. Evaluating physicians are also allowed to report evaluation information and results to MROs or to employers, as appropriate without employee consent.

SAPs do not need employee authorization to conduct SAP evaluations, to confer with employers, to confer with MROs, to confer with appropriate education and treatment providers, or to provide SAP reports to employers. Consortia/Third Party Administrators are also allowed to bill employers for service agent functions they perform or contract out without employee consent.