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REGULATORY CITATIONS

STANDARD COLLECTION WITH NEGATIVE RESULT: Did the collector complete a standard collection with no incorrect or missed steps?

Does the collector positively identify the employee by photo identification before beginning the collection process?

Section 40.241(c) states: “Require the employee to provide positive identification. You [the BAT] must see a photo ID issued by the employer (other than in the case of an owner-operator or other self-employer individual) or a Federal, state, or local government (e.g., a driver's license). You may not accept faxes or photocopies of identification. Positive identification by an employer representative (not a co-worker or another employee being tested) is also acceptable. If the employee cannot produce positive identification, you must contact a DER to verify the identity of the employee."

Was the employee required to sign a consent form?

Section 40.355(a) states: “Do not require an employee to sign a consent, release, waiver of liability, or indemnification agreement with respect to any part of the drug or alcohol testing process covered by this part (including, but not limited to, collections, laboratory testing, MRO, and SAP services). No one may do so on behalf of a service agent."

If the employee is also going to take a DOT drug test, was the alcohol test administered first?

Section 40.241(b) states: “Ensure that, when the employee enters the alcohol testing site, you begin the alcohol testing process without undue delay. For example, you must not wait because the employee says he or she is not ready or because an authorized employer or employee representative is delayed in arriving.

(1) If the employee is also going to take a DOT drug test, you must, to the greatest extent practicable, ensure that the alcohol test is completed before the urine collection process begins."

Did the BAT explain the testing procedure and show the employee the instructions on the back of the Breath Alcohol Testing Form?

Section 40.241 states: “As the BAT or STT you will take the following steps to begin all alcohol screening tests, regardless of the type of testing device you are using: . . .

(e) Explain the testing procedure to the employee, including showing the employee the instructions on the back of the ATF."

Did the BAT use the current Breath Alcohol Testing Form prescribed in Part 40?

Section 40.225(a) states: “The DOT Alcohol Testing Form (ATF) must be used for every DOT alcohol test beginning February 1, 2002. The ATF must be a three-part carbonless manifold form. The ATF is found in Appendix G to this part. You may view this form on the ODAPC web site (http://www.dot.gov/ost/dapc/)."

After positively identifying the employee, does the BAT complete Step 1 on the Breath Alcohol Testing Form?

Section 40.241 states: "As the BAT or STT you will take the following steps to begin all alcohol screening tests, regardless of the type of testing device you are using: . . .

(f) Complete Step 1 of the ATF."

After completing Step 1 of the ATF, did the BAT then instruct the employee to complete Step 2?

Section 40.241(g) states: “Direct the employee to complete Step 2 on the ATF and sign the certification. If the employee refuses to sign this certification, you [the BAT] must document this refusal on the “Remarks” line of the ATF and immediately notify the DER. This is a refusal to test."

After the employee completes Step 2 of the ATF, does the BAT, in view of the employee, open an individually sealed mouthpiece and attach it to the EBT?

Section 40.243(b) states: “Open the individually wrapped or sealed mouthpiece in view of the employee and insert it into the device in accordance with the manufacturer's instructions."

Did the BAT instruct the employee to blow forcefully into the mouthpiece for at least 6 seconds or until the EBT indicates that an adequate amount of breath has been obtained?

Section 40.243 states: “As the BAT or STT, you must take the following steps: . . ."

(c) Instruct the employee to blow steadily and forcefully into the mouthpiece for at least six seconds or until the device indicates that an adequate amount of breath has been obtained."

Does the BAT show the employee the result displayed on the EBT?

Section 40.243 states: “As the BAT or STT, you must take the following steps: . . ."

(d) Show the employee the displayed test result."

BRANCH POINT- TYPE OF EQUIPMENT USED FOR SCREENING TEST: Auditor: Select the type of EBT the collection site is using:

1) only displays test result; or

2) prints results on paper strip or a self adhesive label; or

3) prints results on ATF

For the initial screening test, if the device does not print a test result, does the BAT complete Step 3 of the Breath Alcohol Testing Form by recording the identification of the machine, sequential test number, and the test outcome?

Section 40.243 states: “As the BAT or STT, you must take the following steps: . . .

(g) If the device is one that does not print the test number, testing device name and serial number, time, and result, or it is a device not being used with a printer, you must record this information in Step 3 of the ATF."

If the EBT prints the breath alcohol test result on a paper strip, does the BAT affix the paper strip to the ATF using tamper-evident tape, or some other method providing clear evidence of removal?

Section 40.243(f) states: “If the device is one that prints the test number, testing device name and serial number, time and result, but on a separate printout rather than directly onto the ATF, affix the printout of the information to the designated space on the ATF with tamper-evident tape or use a self-adhesive label that is tamper-evident."

If the screening test result is less than 0.02, does the BAT complete Step 3 of the ATF by dating and signing the certification?

Section 40.247(a) states: “If the [screening] test result is an alcohol concentration of less than 0.02, as the BAT or STT, you must do the following:

(1) Sign and date Step 3 of the ATF."

After completing Step 3 of the ATF, does the BAT then distribute Copy 1 to the employer, Copy 2 to the employee, and retain Copy 3?

Section 40.247(a) states: "If the test result is an alcohol concentration of less than 0.02, as the BAT or STT, you must do the following:

(1) Sign and date Step 3 of the ATF; and

(2) Transmit the result to the DER in a confidential manner, as provided in Sec. 40.255."

Were all necessary equipment, personnel, and materials for breath testing provided at the location where testing is conducted?

Section 40.221(d) states: “If you are operating an alcohol testing site, you must ensure that it has all needed personnel, materials, equipment, and facilities to provide for the collection and analysis of breath and/or saliva samples, and a suitable clean surface for writing."

Did the breath alcohol testing location afford visual and aural privacy to prevent unauthorized persons from seeing or hearing test results?

Section 40.221(c) states: “If you are operating an alcohol testing site, you must ensure that it provides visual and aural privacy to the employee being tested, sufficient to prevent unauthorized persons from seeing or hearing test results."

Did the BAT supervise only one employee's use of the EBT at a time?

Section 40.223(e) states: “As a BAT or STT, to avoid distraction that could compromise security, you are limited to conducting an alcohol test for only one employee at a time.

(1) When an EBT screening test on an employee indicates an alcohol concentration of 0.02 or higher, and the same EBT will be used for the confirmation test, you are not allowed to use the EBT for a test on another employee before completing the confirmation test on the first employee."

Did the BAT remain with the employee for the entire duration of the alcohol testing procedure?

Section 40.223(e)(3) states: “You are not allowed to leave the alcohol testing site while the testing process for a given employee is in progress, except to notify a supervisor or contact a DER for assistance in the case an employee or other person who obstructs, interferes with, or unnecessarily delays the testing process."

NOW WE’RE GOING TO DISCUSS CONFIRMATION TESTS.

CONFIRMATION TESTS FOR ALCOHOL: Did the BAT discuss the steps in an alcohol confirmation test accurately and completely?

What is the breath alcohol concentration level for a screening test that requires a confirmation test?

Section 40.247(b) states: “If the test result is an alcohol concentration of 0.02 or higher, as the BAT or STT, you must direct the employee to take a confirmation test."

Before a confirmation breath alcohol test is conducted, is there a required waiting period, and if so, how long is it?

Section 40.251(a)(1) states: “You [the BAT] must ensure that the waiting period lasts at least 15 minutes, starting with the completion of the screening test. After the waiting period has elapsed, you should begin the confirmation test as soon as possible, but not more than 30 minutes after the completion of the screening test."

After a screening test result of 0.02 or greater, does the BAT provide the employee with any instructions before conducting the confirmation test?

Section 40.251(a)(2) states: “Concerning the waiting period, you [the BAT] must tell the employee:

(i) Not to eat, drink, put anything (e.g., cigarette, chewing gum) into his or her mouth, or belch;

(ii) The reason for the waiting period (i.e., to prevent an accumulation of mouth alcohol from leading to an artificially high reading);

(iii) That following your instructions concerning the waiting period is to the employee's benefit; and

(iv) That the confirmation test will be conducted at the end of the waiting period, even if the instructions have not been followed."

If the employee doesn’t follow your instruction about things they should not do during the waiting period, is this noted? If so, where is it noted?

Section 40.251(a)(3) states: “ If you [the BAT] become aware that the employee has not followed the instructions, you must note this on the “Remarks” line of the ATF.

Before a confirmation test is conducted, must the BAT conduct an air blank test?

Section 40.253 states: “As the BAT conducting an alcohol confirmation test, you must follow these steps in order to complete the confirmation test process:

(a) In the presence of the employee, you must conduct an air blank on the EBT you are using before beginning the confirmation test and show the reading to the employee.

(1) If the reading is 0.00, the test may proceed. If the reading is greater than 0.00, you must conduct another air blank."

If the confirmation test is not conducted within 30 minutes of the screening test, what actions must the BAT take?

Section 40.251(e) states: “Even if more than 30 minutes have passed since the screening test result was obtained, you must begin the confirmation test procedures in Section 40.253, not another screening test."

Section 40.251(f) states: “You must note on the “Remarks” line of the ATF the time that elapsed between the two events, and if the confirmation test could not begin within 30 minutes of the screening test, the reason why."

Section 40.251(g) states: “Beginning the confirmation test procedures after the 30 minutes have elapsed does not invalidate the screening or confirmation tests, but it may constitute a regulatory violation subject to DOT agency sanction."

If the BAT who performed the screening test also conducts the confirmation test, is the same Breath Alcohol Testing Form used, or is a new form started?

Section 40.251(b) states: “If you did not conduct the screening test for the employee, you must require positive identification of the employee, explain the confirmation procedures, and use a new ATF..."

For a confirmation test, is a new mouthpiece used to provide the breath sample?

Section 40.253(b) states: “As the BAT conducting an alcohol confirmation test, you must follow these steps in order to complete the confirmation test process: . . .

(b) You must open a new individually wrapped or sealed mouthpiece in view of the employee and insert it into the device in accordance with the manufacturer's instructions."

Before the confirmation test is administered, do you and the employee read the sequential test number displayed by the EBT?

Section 40.253(c) states: “You [the BAT] must ensure that you and the employee read the unique test number displayed on the EBT."

After the confirmation test is completed, does the BAT show the employee the test result displayed on the EBT?

Section 40.253 states: “As the BAT conducting an alcohol confirmation test, you must follow these steps in order to complete the confirmation test process:. . .

(e) You [the BAT] must show the employee the result displayed on the EBT."

After the EBT prints a confirmation test result of less than 0.02, is there anything left for the employee to sign?

Section 40.255(a) states: “After the EBT has printed the result of an alcohol confirmation test, you must, as the BAT, take the following additional steps:

(1) Sign and date Step 3 of the ATF.

(2) If the alcohol confirmation test result is lower than 0.02, nothing further is required of the employee. As the BAT, you must sign and date Step 3 of the ATF."

After the EBT prints a confirmation test result of 0.02 or greater, is there anything for the employee to sign?

Section 40.255(a) states: “After the EBT has printed the result of an alcohol confirmation test, you must, as the BAT, take the following additional steps: . . .

(3) If the alcohol confirmation test result is 0.02 or higher, direct the employee to sign and date Step 4 of the ATF. If the employee does not do so, you must note this on the “Remarks” line of the ATF. However, this is not considered a refusal to test."

NOW WE ARE GOING TO DISCUSS PROBLEMS IN TESTING

If the employee cannot provide a sufficient amount of breath to permit a valid test, what actions must the BAT take?

Section 40.265(a) states: "If an employee does not provide a sufficient amount of breath to permit a valid breath test, you must take the steps listed in this section."

Section 40.265(b) states: “As the BAT or STT, you must instruct the employee to attempt again to provide a sufficient amount of breath and about the proper way to do so.

(1) If the employee refuses to make the attempt, you must discontinue the test, note the fact on the “Remarks” line of the ATF, and immediately notify the DER. This is a refusal to test.

(2) If the employee again attempts and fails to provide a sufficient amount of breath, you may provide another opportunity to the employee to do so if you believe that there is a strong likelihood that it could result in providing a sufficient amount of breath.

(3) When the employee's attempts under paragraph (b)(2) of this section have failed to produce a sufficient amount of breath, you must note the fact on the “Remarks” line of the ATF and immediately notify the DER.

(4) If you are using an EBT that has the capability of operating manually, you may attempt to conduct the test in manual mode.

(5) If you are qualified to use a saliva ASD and you are in the screening test stage, you may change to a saliva ASD only to complete the screening test."

If the alcohol confirmation test result is 0.02 or greater, and the employee refuses to sign Step 4 of the ATF, what actions must the BAT take?

Section 40.255(a)(3) states: “If the alcohol confirmation test result is 0.02 or higher, direct the employee to sign and date Step 4 of the ATF. If the employee does not do so, you must note this on the “Remarks” line of the ATF. However, this is not considered a refusal to test."

If the employee refuses to take an alcohol test, what actions must the BAT take?

Section 40.261(c) states: “As a BAT or an STT, or as the physician evaluating a “shy lung” situation, when an employee refuses to test as provided in paragraph (a) of this section, you must terminate the portion of the testing process in which you are involved, document the refusal on the ATF (or in a separate document which you cause to be attached to the form), immediately notify the DER by any means (e.g., telephone or secure fax machine) that ensures the refusal notification is immediately received. You must make this notification directly to the DER (not using a C/TPA as an intermediary)."

FLAWS IN BREATH TESTING: Did the BAT correctly identify the flaws in breath testing defined in Part 40?

If the next external calibration check on the EBT produces a result that is outside the tolerance listed in the QAP, does this impact any prior positive alcohol test results?

Section 40.267(c) states: “In the case of a confirmation test: . . .

(5) The next external calibration check of the EBT produces a result that differs by more than the tolerance stated in the QAP from the known value of the test standard. In this case, every result of 0.02 or above obtained on the EBT since the last valid external calibration check is cancelled (see Section 40.233(a)(1) and (d))."

Is there any impact on a breath alcohol test result if the BAT does not observe the 15 minute minimum waiting period prior to conducting the confirmation test?

Section 40.267 states: “As an employer, a BAT, or an STT, you must cancel an alcohol test if any of the following problems occur. These are “fatal flaws." You must inform the DER that the test was cancelled and must be treated as if the test never occurred. These problems are: . . .

(c) In the case of a confirmation test:

(1) The BAT conducts the confirmation test before the end of the minimum 15-minute waiting period (see Section 40.251(a)(1))."

Is there any impact on a breath alcohol test result if the BAT does not perform an air blank on the EBT before the conducting the confirmation test?

Section 40.267 states: “As an employer, a BAT, or an STT, you must cancel an alcohol test if any of the following problems occur. These are “fatal flaws." You must inform the DER that the test was cancelled and must be treated as if the test never occurred. These problems are: . . .

(c) In the case of a confirmation test: . . .

(2) The BAT does not conduct an air blank before the confirmation test (see Section 40.253(a)."

Is there any impact on a breath alcohol test if the EBT fails to print the confirmation test result?

Section 40.267 states: “As an employer, a BAT, or an STT, you must cancel an alcohol test if any of the following problems occur. These are “fatal flaws." You must inform the DER that the test was cancelled and must be treated as if the test never occurred. These problems are: . . .

(c) In the case of a confirmation test: . . .

(4) The EBT does not print the result (see Section 40.253(f))."

Is there any impact on a breath alcohol test if the sequential test number or alcohol concentration displayed on the EBT is different from the printed results?

Section 40.267 states: “As an employer, a BAT, or an STT, you must cancel an alcohol test if any of the following problems occur. These are “fatal flaws." You must inform the DER that the test was cancelled and must be treated as if the test never occurred. These problems are: . . .

(b) In the case of a screening or confirmation test conducted on an EBT, the sequential test number or alcohol concentration displayed on the EBT is not the same as the sequential test number or alcohol concentration on the printed result (see Sections 40.253(c), (e) and (f))."

Is there any impact if a test result printed by the EBT does not match the displayed result?

Section 40.267 states: “As an employer, a BAT, or an STT, you must cancel an alcohol test if any of the following problems occur. These are “fatal flaws." You must inform the DER that the test was cancelled and must be treated as if the test never occurred. These problems are: . . .

(b) In the case of a screening or confirmation test conducted on an EBT, the sequential test number or alcohol concentration displayed on the EBT is not the same as the sequential test number or alcohol concentration on the printed result (see Sections 40.253(c), (e) and (f))."

Is there any impact on a breath alcohol test result if the BAT fails to note on the “Remarks” section of the ATF that an employee failed or refused to sign the form, and this error is not corrected?

Section 40.269 states: “As a BAT or STT, or employer, you must cancel an alcohol test if any of the following problems occur, unless they are corrected. These are “correctable flaws." These problems are: . . .

(b) The BAT or STT fails to note on the “Remarks” line of the ATF that the employee has not signed the ATF after the result is obtained (see Section 40.255(a)(2)."

NOW WE’LL TALK ABOUT THE EQUIPMENT

Did you train on this model of EBT?

Section 40.213(c) states: “Initial Proficiency Demonstration. Following your completion of qualification training under paragraph (b) of this section, you must demonstrate proficiency in alcohol testing under this part by completing three seven consecutive error-free mock tests (BATs) or five consecutive error-free tests (STTs). . . .

(2) These tests must use the alcohol testing devices (e.g., EBT(s) or ASD(s)) that you will use as a BAT or STT."

Do you have a copy of the quality assurance plan (QAP) for this machine?

Section 40.233(c) states: “As the user of the EBT (e.g., employer, service agent), you must do the following:

(1) You must follow the manufacturer's instructions [in the QAP] (see paragraph (b) of this section), including performance of external calibration checks at the intervals the instructions specify."

May I see the records of the external calibration checks for this EBT?

Section 40.233(c) states: “As the user of the EBT (e.g., employer, service agent), you must do the following:

(4) You must maintain records of the inspection, maintenance, and calibration of EBTs as provided in Section 40.333(a)(2)."

If an EBT produces two consecutive air blank readings greater than 0.00 before a confirmation test, what is done?

Section 40.253 states: “As the BAT conducting an alcohol confirmation test, you must follow these steps in order to complete the confirmation test process:

(a) In the presence of the employee, you must conduct an air blank on the EBT you are using before beginning the confirmation test and show the reading to the employee.

(1) If the reading is 0.00, the test may proceed. If the reading is greater than 0.00, you must conduct another air blank.

(2) If the reading on the second air blank is 0.00, the test may proceed. If the reading is greater than 0.00, you must take the EBT out of service."

ARE YOU THE PERSON WHO COMMUNICATES POSITIVE TEST RESULTS TO THE TRANSIT OPERATOR? WE HAVE SOME QUESTIONS FOR THAT PERSON.

PROCEDURES FOR COMMUNICATING POSITIVE TEST RESULTS: Have the proper procedures been established for communicating positive breath alcohol test results to the transit operator?

Who is the DER at the transit system who you notify regarding a positive test result?

Section 40.255(a)(5)(i) states: "Results may be transmitted using Copy 1 of the ATF, in person, by telephone, or by electronic means. In any case, immediately notify the DER of any result of 0.02 or greater by any means (e.g., telephone or secure fax machine) that ensures the result is immediately received by the DER. Do not transmit these results through C/TPAs or other service agents."

How does the BAT ensure that the DER is immediately informed of a positive test result?

Section 40.255(a)(5)(i) states: "Results may be transmitted using Copy 1 of the ATF, in person, by telephone, or by electronic means. In any case, immediately notify the DER of any result of 0.02 or greater by any means (e.g., telephone or secure fax machine) that ensures the result is immediately received by the DER. Do not transmit these results through C/TPAs or other service agents."

If the initial transmission is by telephone, is a mechanism established to verify the BAT's identity before providing the information?

Section 40.255(a)(5)(i) states: "For any test results not in writing (e.g., by telephone or electronic means), a mechanism must be established to identity the BAT sending the results."

NOW WE NEED TO SPEAK WITH SOMEONE ABOUT THE BAT TRAINING AND RECORDS OF TRAINING, AND THE EQUIPMENT REQUIREMENTS.

QUALIFICATIONS OF THE BAT:

Were the proper BAT training and qualification documents maintained at the testing site?

May I see evidence that all Breath Alcohol Technicians hired since August 2001 have been trained to proficiency in the alcohol testing procedures of Part 40?

Section 40.213(d) states: “Schedule for qualification training and initial proficiency demonstration. The following is the schedule for qualification training and the initial proficiency demonstration you must meet:

(1) If you became a BAT or STT before August 1, 2001, you were required to have met the requirements set forth in paragraphs (b) and (c) of this section, and you do not have to meet them again.

(2) If you become a BAT or STT on or after August 1, 2001, you must meet the requirements of paragraphs (b) and (c) of this section before you begin to perform BAT or STT functions."

For the BATs hired since August 1, 2001, how many error-free mock collections did they complete during their training?

Section 40.213(c)(1) states: “Initial Proficiency Demonstration. Following your completion of qualification training under paragraph (b) of this section, you must demonstrate proficiency in alcohol testing under this part by completing seven consecutive error-free mock tests (BATs) or five consecutive error-free tests (STTs)."

If an alcohol test is cancelled because of a fatal or uncorrected flaw made by the BAT, what corrective action is taken with the BAT?

Section 40.213(f) states: “Error Correction Training. If you make a mistake in the alcohol testing process that causes a test to be cancelled (i.e., a fatal or uncorrected flaw), you must undergo error correction training. This training must occur within 30 days of the date you are notified of the error that led to the need for retraining."

How frequently is refresher training required for breath alcohol technicians?

Section 40.213(e) states: “Refresher training. No less frequently than every five years from the date on which you [the BAT] satisfactorily complete the requirements of paragraphs (b) and (c) of this section, you must complete refresher training that meets all the requirements of paragraphs (b) and (c) of this section. If you are a BAT or STT who completed qualification training before January 1, 1998, you are not required to complete refresher training until January 1, 2003."

NOW WE’LL TALK ABOUT OFFICE PROCEDURES

Do you have a copy of the new Part 40 regulations, with Technical Amendments published August 9, 2001, which I can review?

Section 40.213 states: “To be permitted to act as a BAT or STT in the DOT alcohol testing program, you must meet each of the requirements of this section:

(a) Basic information. You must be knowledgeable about the alcohol testing procedures in this part and the current DOT guidance. These documents and information are available from ODAPC (Department of Transportation, 400 7th Street, SW., Room 10403, Washington DC, 20590, 202-366-3784, or on the ODAPC web site, (http://www.dot.gov/ost/dapc)."

If the employee is also going to take a DOT drug test, is there any requirement that the center shall conduct the alcohol test first if possible?

Section 40.241(b) states: “Ensure that, when the employee enters the alcohol testing site, you begin the alcohol testing process without undue delay. For example, you must not wait because the employee says he or she is not ready or because an authorized employer or employee representative is delayed in arriving.

(1) If the employee is also going to take a DOT drug test, you must, to the greatest extent practicable, ensure that the alcohol test is completed before the urine collection process begins."

If an employee scheduled for a breath alcohol test does not arrive for the scheduled appointment, what action must the BAT take?

Section 40.241 states: “As the BAT or STT you will take the following steps to begin all alcohol screening tests, regardless of the type of testing device you are using:

(a) When a specific time for an employee's test has been scheduled, or the collection site is at the employee's worksite, and the employee does not appear at the collection site at the scheduled time, contact the DER to determine the appropriate interval within which the DER has determined the employee is authorized to arrive. If the employee's arrival is delayed beyond that time, you must notify the DER that the employee has not reported for testing. In a situation where a C/TPA has notified an owner/operator or other individual employee to report for testing and the employee does not appear, the C/TPA must notify the employee that he or she has refused to test."

Do DOT regulations permit other types of alcohol tests (e.g., blood, urine alcohol) in addition to breath alcohol tests?

Section 40.277 states: “No, other types of alcohol tests (e.g., blood and urine) are not authorized for testing done under this part. Only saliva or breath for screening tests and breath for confirmation tests using approved devices are permitted."

Was the Breath Alcohol Collection Site prepared for the audit team, and did the vendor cooperate with the audit team and facilitate the audit process, including producing the required records?

Section 40.331(c) states: “If you are a service agent, you must, upon request of DOT agency representatives, provide the following:

(1) Access to your facilities used for this part and DOT agency drug and alcohol program functions.

(2) All written, printed, and computer-based drug and alcohol program records and reports (including copies of name-specific records or reports), files, materials, data, documents/documentation, agreements, contracts, policies, and statements that are required by this part and DOT agency regulations. You must provide this information at your principal place of business in the time required by the DOT agency.

(3) All items in paragraph (b)(2) of this section must be easily accessible, legible, and provided in an organized manner. If electronic records do not meet these standards, they must be converted to printed documentation that meets these standards.

THAT WAS THE FINAL QUESTION. THANK YOU FOR YOUR TIME AND INPUT.