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Question

Comment(s) / Regulatory Citation(s)

1

FIRST, I WOULD LIKE TO ASK A FEW GENERAL QUESTIONS ABOUT THE TRANSMISSION OF DRUG AND ALCOHOL INFORMATION,

2

Do you, or does your company, act as an intermediate in transmitting drug test results from the MRO to the employer? That is, does the MRO communicate drug test results directly to the employer, or does the MRO transmit results to you, and you transmit them to the employer?

As a C/TPA or other service agent. you may act as an intermediary in the transmission of drug and alcohol testing if the employer chooses to have you do so. (Section 40. 345(a))

3

Does your company have a written agreement with the employer requesting that you act as an intermediary to transmit drug and alcohol testing information from the MRO to the employer?

As a C/TPA or other service agent, you may act as an intermediary in the transmission of drug and alcohol testing information, if the employer chooses to have you do so. Each employer makes the decision about whether to receive some or all of this information from you, acting as an intermediary, rather than directly from the service agent who originates the information (e. g. an MRO or BAT). (Section 40. 345(a))

4

If you act as an intermediary, are you allowed any additional time to transmit information to the employer from the MRO?

In every case, you must ensure that, in transmitting information to employers, you meet all requirements (e. g. concerning confidentiality and timing) that would apply if the service agent originating the information (e. g. an MRO or collector) sent the information directly to the employer. For example, if you transmit drug testing results from MROs to DERs, you must transmit each drug test result to the DER in compliance with the MRO requirements set forth in Section 40. 167. (Section 40. 345(c))

5

As a C/TPA, acting as an intermediary, do you know what drug and alcohol testing information Part 40 does not allow you to transmit?

The use of C/TPA intermediaries is prohibited in all other cases, such as transmission of laboratory drug test results to MROs, the transmission of medical information from MROs to employers, the transmission of SAP reports to employers, and the transmission of positive alcohol test results, (Appendix F to Part 40)

6

Do you know whether or not the Part 40 regulations allow C/TPAs to transmit laboratory reports, positive as well as negative, from the laboratory to the MRO?

The use of C/TPA intermediaries is prohibited in all other cases, such as transmission of laboratory drug test results to MROs, the transmission of medical information from MROs to employers, the transmission of SAP reports to employers, and the transmission of positive alcohol test results, (Appendix F to Part 40)

7

Do you know whether or not the Part 40 regulations allow C/TPAs to transmit verified MRO reports, positive as well as negative, from the MRO to the employer?

The use of C/TPA intermediaries is prohibited in all other cases, such as transmission of laboratory drug test results to MROs, the transmission of medical information from MROs to employers, the transmission of SAP reports to employers, and the transmission of positive alcohol test results, (Appendix F to Part 40)

8

Do you know whether or not the Part 40 regulations allow C/TPAs to transmit SAP reports from the SAP to the employer?

The use of C/TPA intermediaries is prohibited in all other cases, such as transmission of laboratory drug test results to MROs, the transmission of medical information from MROs to employers, the transmission of SAP reports to employers, and the transmission of positive alcohol test results, (Appendix F to Part 40)

9

What confidentiality requirements concerning transmission of drug and alcohol information are applicable to C/TPAs?

You must report the results in a confidential manner. (Section 40. 167(a)) Direct telephone contact with the DER is the preferred method of immediate reporting. Follow up your phone call with appropriate documentation (see Section 40. 163). (Section 40. 167(b)(1)) You are responsible for identifying yourself to the DER, and the DER must have a means to confirm your identification. (Section 40. 167(b)(2)) The MRO's report that you transmit to the employer must contain all of the information required by Section 40. 163. (Section 40. 167(b)(3))

10

How do you insure that you meet these confidentiality requirements?

You must report the results in a confidential manner. (Section 40. 167(a)) Direct telephone contact with the DER is the preferred method of immediate reporting. Follow up your phone call with appropriate documentation (see Section 40. 163). (Section 40. 167(b)(1)) You are responsible for identifying yourself to the DER, and the DER must have a means to confirm your identification. (Section 40. 167(b)(2)) The MRO's report that you transmit to the employer must contain all of the information required by Section 40. 163. (Section 40. 167(b)(3))

11

Do you maintain any records concerning the drug and alcohol testing program and/or the results of employees' tests? If so, for how long?

Except where otherwise specified [in Part 40], as a service agent you may receive and maintain all records concerning DOT drug and alcohol testing programs, including positive, negative, and refusal to test individual test results. You do not need the employee's consent to receive and maintain these records. (Section 40. 349(a)) You may maintain all information needed for operating a drug/alcohol program (e. g. CCFs, ATFs, names of employees in random pools, random selection lists, copies of notices to employers of selected employees) on behalf of an employer. (Section 40. 349(b))

12

When an employer is asked by a DOT agency representative to produce drug and alcohol related information in relation to an inspection or regulatory requirement, how many days do you have to produce and make any information in your control available to your client and to the DOT representative?

You must ensure that you can make available to the employer within two business days any information the employer is asked to produce by a DOT agency representative. (Section 40. 349(e))

13

NOW, I WOULD LIKE TO ASK SOME QUESTIONS ABOUT THE PROCESS OF RANDOM SELECTION AND NOTIFICATION.

14

What is the scientifically valid method this consortium uses to make its random selections?

The selection of employees for random drug and alcohol testing shall be made by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with employees' Social Security numbers, payroll identification numbers, or other comparable identifying numbers. Under the selection process used, each covered employee shall have an equal chance of being tested each time selections are made. (Section 655. 45(e))

15

How does your firm maintain up-to-date lists of covered employees subject to random testing?

As a service agent, you may perform for employers the tasks needed to comply with DOT agency drug and alcohol testing regulations, subject to the requirements and limitations of [Part 40]. (Section 40. 343) The selection of employees for random drug and alcohol testing shall be made by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with employees' Social Security numbers, payroll identification numbers, or other comparable identifying numbers. Under the selection process used, each covered employee shall have an equal chance of being tested each time selections are made. (Section 655. 45(e)) It is not possible for a C/TPA to make valid random selections unless there is some method for assuring that the random list is updated on a regular basis,

16

Are the random numbers and/or random lists recorded and saved, and if so, for how long?

Records related to the collection process, including documents relating to the random selection process, must be retained for at least 2 years. (Sections 655. 71(b)(2); (c)(1)(ii))

17

Has a statistician or auditor ever checked the random numbers?

The selection of employees for random drug and alcohol testing shall be made by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with employees' Social Security numbers, payroll identification numbers, or other comparable identifying numbers. Under the selection process used, each covered employee shall have an equal chance of being tested each time selections are made. (Section 655. 45(e))

18

How frequently are random selections drawn?

Each employer shall ensure that random drug and alcohol tests conducted under [Part 655] are unannounced and unpredictable, and that the dates for administering random tests are spread reasonably throughout the calendar year. Random testing must be conducted at all times of day when safety-sensitive functions are performed. (Section 655. 45(g))

19

If you select days and times for testing, do you put any limitations on the dates and times that may be assigned for testing the employees?

Each employer shall ensure that random drug and alcohol tests conducted under this part are unannounced and unpredictable, and that the dates for administering random tests are spread reasonably throughout the calendar year. Random testing must be conducted at all times of day when safety-sensitive functions are performed. (Section 655. 45(g))

20

Does your program select alternates or substitutes for employees who cannot be random tested?

Under the [random] selection process used, each covered employee shall have an equal chance of being tested each time selections are made. (Section 655. 45(e)) It is not possible to ensure that all employees have an equal chance of being tested unless the consortium provides a scientifically acceptable list of alternative selections,

21

If an employee selected for random testing is successfully tested, does your consortium receive information about the test result?

22

Do you receive information on the drug test results for this transit system; do you get that information from the laboratory directly, or from the MRO?

As a C/TPA or other service agent, you may act as an intermediary in the transmission of drug and alcohol testing information in the circumstances specified in this section only if the employer chooses to have you do so. Each employer makes the decision about whether to receive some or all of this information from you, acting as an intermediary, rather than directly from the service agent who originates the information (e. g. an MRO or BAT). (Section 40. 345(a)) If a service agent originating drug or alcohol testing information, such as an MRO or BAT, sends the information directly to the DER, he or she may also provide the information simultaneously to you, as a C/TPA or other service agent who maintains this information for the employer. (Section 40. 349(c))

23

How do you assure that members of your consortium achieve the 50 percent and 10 percent random testing requirements over the course of a year?

Except as provided in [Sections 655. 45(b)-(d)], the minimum annual percentage rate for random drug testing shall be 50 percent of covered employees; the random alcohol testing rate shall be 10 percent. As provided in [Section 655. 45(b)], this rate is subject to annual review by the Administrator. (Section 655. 45(a)) As a service agent, you may perform for employers the tasks needed to comply with DOT agency drug and alcohol testing regulations, subject to the requirements and limitations of [Part 40]. (Section 40. 343)

24

NOW, I WOULD LIKE TO DISCUSS OTHER SERVICES OF THE CONSORTIUM.

25

Does the Drug Testing Custody and Control Form, and the Breath Alcohol Testing Form, have a code number or name of the employer on it, or does it have the name of the consortium, but not the name of the employer?

The CCF must include the names, addresses, telephone numbers and fax numbers of the employer and the MRO, which may be preprinted, typed, or handwritten. The MRO information must include the specific physician's name and address, as opposed to only a generic clinic, health care organization, or company name. This information is required, and it is prohibited for an employer, collector, service agent or any other party to omit it. In addition, a C/TPA's name, address, fax number, and telephone number may be included, but is not required. (Section 40. 45(b)(2)) You may use an ATF that has the employer's name, address, and telephone number preprinted. In addition, a C/TPA's name, address, and telephone number may be included, to assist with negative results. (Section 40. 225(b)(3))

26

Does the laboratory, consortium, or both, provide each employer with a semi-annual statistical report of test results attributable to that employer?

As a laboratory, you must transmit an aggregate statistical summary, by employer, of the data listed in Appendix B to [Part 40] to the employer on a semi-annual basis. (Section 40. 111(a)) Appendix F to Part 40 notes that the C/TPA may transmit the laboratory statistical report to the employer if the employer chooses to have the C/TPA do so, As a service agent, you may perform for employers the tasks needed to comply with DOT agency drug and alcohol testing regulations, subject to the requirements and limitations of [Part 40]. (Section 40. 343)

27

Do you assist your members in any way to prepare their annual MIS reports?

Each recipient shall annually prepare and maintain a summary of the results of its anti-drug and alcohol misuse testing programs performed under this part during the previous calendar year. (Section 655. 72(a)) As a service agent, you may perform for employers the tasks needed to comply with DOT agency drug and alcohol testing regulations, subject to the requirements and limitations of [Part 40]. (Section 40. 343)

28

Do you monitor the quality of collection services provided by the designated urine collection sites and breath alcohol collection sites?

As a service agent, you may perform for employers the tasks needed to comply with DOT agency drug and alcohol testing regulations, subject to the requirements and limitations of [Part 40]. (Section 40. 343) If, as an STT, BAT, employer or other service agent administering the testing process, you become aware of a “correctable flaw” (see Section 40. 269) that has not already been corrected, you must take all practicable action to correct the problem so that the test is not cancelled. (Section 40. 271(b))

29

Does your consortium have contracts with more than one DHHS-certified drug testing laboratory, so that an employee may readily have a split-specimen tested.

When the employee makes a timely request for a test of the split specimen [the MRO must], immediately provide written notice to the laboratory that tested the primary specimen, directing the laboratory to forward the split specimen to a second HHS-certified laboratory. [The MRO] must also document the date and time of the employee's request. (Section 40. 171(c)) If the MRO is under contract to the C/TPA, the C/TPA is responsible for assuring that split-specimens are properly transported to a second DHHS-certified laboratory for analysis.

30

Do your members receive SAP services through this consortium?

The rules require an employer to provide the employee (including an applicant to new employee) who violates a DOT drug and alcohol regulation a listing of qualified SAPs readily available to the employee, . (The SAP Guidelines, 2001, pg. 15) Clearly, a list of SAPs who are “readily available” to the employee must be prepared in advance, C/TPAs must communicate to their clients the need to research and locate available SAPs before the transit system experiences a positive or refused test, including a pre-employment test,

31

How long does your consortium keep records associated with positive tests?

You must keep records of verified positive drug test results for five years. (Section 40. 333(a)(1)(ii))

32

Does this consortium also provide employee and/or supervisor training for your clients?

Covered employees must receive at least 60 minutes of training on the effects and consequences of prohibited drug use on personal health, safety, and the work environment, and on the signs and symptoms that may indicate prohibited drug use. (Section 655. 14(b)(1)) Supervisors and/or other company officers authorized by the employer to make reasonable suspicion determinations shall receive at least 60 minutes of training on the physical, behavioral, and performance indicators of probable drug use and at least 60 minutes of training on the physical, behavioral, speech, and performance indicators of probable alcohol misuse. (Section 655. 14(b)(2))

33

Was the Consortium/Third Party Administrator prepared for the audit team, and did the C/TPA cooperate with the audit team and facilitate the audit process, including producing the required records?

34

THAT WAS THE LAST QUESTION – THANK YOU FOR YOUR TIME AND INPUT