DHHS Proposed Rules

FTA Drug and Alcohol Regulation Updates
Issue 27, page 3

DOT Encourages Comments on DHHS’ Alternative Testing NPRM

On May 13, 2004, the DOT Office of the Secretary, issued an informational notice in the Federal Register (Vol. 69, No. 93, page 26641) to notify individuals interested in the DOT drug testing program that the DHHS was proposing important new drug testing procedures. The DHHS proposal was published in the Federal Register (Vol. 69, No, 71, pages 19673-19732) on April 13, 2004.

The proposed revisions to the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Guidelines) include scientific and technical guidelines for alternative drug testing methods including hair, sweat, and oral fluid specimens in addition to urine specimens; scientific and technical guidelines for using on-site tests to test urine and oral fluid at the collection site; requirements for the certification of instrumented initial test facilities; and added standards for collectors, on-site testers and medical review officers.

Even though the Guidelines do not apply to DOT regulated entities directly, DOT covered employers, employees, and service agents involved in the DOT testing program should be aware of the DHHS notice since the DHHS and DOT drug testing procedures have a statutorily recognized relationship established in the Omnibus Transportation Employee Testing Act of 1991 and the Guidelines have historically served as the basis for the DOT testing procedures defined in 49 CFR Part 40. The DHHS final rule that results from the rule making process will consequently, be considered for incorporation in future revisions to Part 40. Thus, the DOT recommends that DOT-covered entities review the DHHS proposals and make comments accordingly.

Inclusion of alternative testing methods (hair, sweat, and oral fluid) are proposed to complement urine drug testing and thwart efforts of those trying to beat the drug test through adulteration, substitution, and dilution. Use of these methods is not a requirement, but provide an alternative that employers can use when appropriate. No one method is considered to be the best, as each specimen type has different attributes and limitations that must be taken into consideration when determining its application for use. Not all of the testing methods have the capability to test for all required drugs at acceptable levels of accuracy. In addition, each method has varying ability to detect some drug classes. Thus, given the current state of the science, special awareness is required to select the most appropriate type of specimen to be collected from a specific donor in a specific situation.

Hair testing increases the time period over which drug use can be detected, is easily collected, transported, and stored, and is more difficult to adulterate than urine. The proposed revisions will allow testing hair (1.5 inches long) representing a 90-day sample for pre-employment, random, return-to-duty, or follow-up testing. This method would not be applicable for post-accident.

Oral fluid testing (saliva) is readily available, less invasive and more easily observed than urine specimen collection. Drugs can also be detected in oral fluids within one hour of use. However, current procedures cannot distinguish between actual uses of marijuana and second hand smoke. Thus, a urine specimen test must also be conducted anytime an oral fluid specimen test is positive for marijuana. Oral fluid testing is best suited for pre-employment, reasonable suspicion and post-accident testing.

Sweat testing is conducted by collecting perspiration on sweat wipes or a sweat patch. Sweat collection is a non-invasive procedure, but can result in a rash or skin irritation. Drug use can be detected for as long as the patch remains on the skin. Sweat testing is best used for return-to-duty and follow-up testing, but is not suited for pre-employment, random, reasonable suspicion or post-accident testing.

Comments on the proposed revisions must be made directly to the DHHS by July 12, 2004. Submissions may be made by e-mail to wvogl@samhsa.gov, fax to (301) 443-3031, or mail to 5600 Fishers Lane, Rockwall II, Suite 815, Rockville, Maryland 20857. All submissions must include the agency name and Docket Number 04-7984.

The information presented on this page should be used to update Chapter 7 of the revised
Implementation Guidelines.