Issue 30, Pg 2 - FTA Drug And Alcohol Regulation Updates

FTA Drug and Alcohol Regulation Updates
Issue 30, page 2

VALIDITY TESTING

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

Notice of Interpretation:
April 22, 2002
Federal Register Vol. 67,
Pages 19615-19616
Primary Topic: FTA/USCG regulation applicability to ferry boats.

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

GAO Addresses Drug Test Defraud Issue

     On May 17, 2005 the United States Government Accountability Office published a report (GAO-05-653T) entitled “DRUG TESTS: Products to Defraud Drug Use Screening Tests Are Widely Available.” The report consists of testimony by Robert J. Cramer, Managing Director of the Office of Special Investigations made to the Subcommittee on Oversight and Investigations, Committee on Energy and Commerce of the House of Representatives.
     The testimony described the current situation where products to defraud drug tests are easily obtained and openly marketed on Web sites. Vendors boast that their products will not be detected in the drug test process and that their customers will pass impending drug tests regardless of their purported use of illegal substances. Some products are formulated to defraud tests for marijuana while others are targeted at cocaine. Some vendors provide money-back guarantees.
     Masking products fall into four categories: (1) substances that when added to a specimen or ingested dilute the specimen; (2) cleansing substances that detoxify or cleanse the urine; (3) adulterants that destroy or alter the chemical make-up of drugs; and (4) synthetic or drug-free urine that is used as a substitute for an individual’s own specimen. There are a tremendous number of products available on the market with the investigators identifying approximately 400 different products alone that are available to adulterate urine specimens.

adulterants

     Even though these efforts to defraud the drug testing process represent formidable obstacles to the integrity of drug testing, the DOT process (defined in 49 CFR Part 40) combined with permitted validity testing will thwart most, if not all of these products. The report quoted SAMSHA officials as stating “validity tests are intended to produce accurate, reliable, and correctly interpreted test results and to decrease or eliminate opportunities to defeat drug tests.”

Validity Testing Permitted, Not Required

     Efforts to beat drug tests have been well publicized in the popular press as well-known sports figures have been found to use various products that are readily available off the internet. Validity testing is one of the best defenses that Department of Transportation (DOT) covered employers have at their disposal to maintain the integrity of the drug testing process. Validity testing is the evaluation of the specimen to determine if it is consistent with normal human urine or if certain adulterants or foreign substances were added to the urine, the urine was diluted, or the specimen was substituted.
     The DOT issued an interim final rule (IFR) on November 9, 2004 making 49 CFR Part 40 consistent with the new validity testing requirements established by the Department of Health and Human Services (DHHS). The IFR established laboratory criteria for validity testing, standardized terms, defined MRO responsibilities, and established reporting requirements. The DOT IFR authorizes, but does not require laboratories to perform specimen validity testing.
     Many people erroneously assume that validity testing is a requirement of the regulation and have a false sense of security that efforts to defraud their drug testing process are in place. This is not necessarily true. The IFR requires that laboratories that conduct specimen validity testing of DOT specimens must do so in accordance with the testing requirements specified in the rules, but stops short of making the testing mandatory. Many of the DHHS certified laboratories do not currently perform validity tests as part of their standard operating procedure. Unless you have specified in the agreement with your laboratory that you want validity testing conducted, validity testing may not be performed, leaving your program vulnerable to defraud efforts.
     Before the IFR becomes final, the industry anticipates that the DOT will issue a Notice of Proposed Rulemaking that will propose to make specimen validity testing mandatory within the regulated transportation industries. Until such time as validity testing becomes mandatory, you are on your own to work with your laboratory to determine if validity testing should be a part of your program.