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REGULATORY CITATIONS

SUBSTANCE ABUSE PROFESSIONAL QUESTIONNAIRE

DOES THE SUBSTANCE ABUSE PROFESSIONAL MEET THE FOLLOWING QUALIFICATIONS?

Do you have one of the following credentials:

1) A licensed physician (Medical Doctor or Doctor of Osteopathy); or,

2) a licensed or certified psychologist, social worker, or employee assistance professional; or,

3) an addiction counselor certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission or by the International Certification Reciprocity Consortium/Alcohol & Other Drug Abuse?

Section 40.281 states: “To be permitted to act as a SAP in the DOT drug testing program, you must meet each of the requirements of this section: (a) Credentials. You must have one of the following credentials:

(1) You are a licensed physician (Doctor of Medicine or Osteopathy);

(2) You are a licensed or certified social worker;

(3) You are a licensed or certified psychologist;

(4) You are a licensed or certified employee assistance professional; or

(5) You are a drug and alcohol counselor certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission (NAADAC) or by the International Certification Reciprocity Consortium/Alcohol and Other Drug Abuse (ICRC).”

Do you have knowledge of, and clinical experience in, diagnosing and treating alcohol and controlled substances-related disorders?

Section 40.281(b)(1) states: “You must be knowledgeable about and have clinical experience in the diagnosis and treatment of alcohol and controlled substances-related disorders.”

Did you become a SAP before August 1, 2001. If so, have you passed, or will you pass, the national certification test by December 31, 2003?

Section 40.281(c)(3)(i) states: “If you became a SAP before August 1, 2001, you must meet the qualification training requirement no later than December 31, 2003.”

Section 40.281(c)(3)(ii) states: “If you become a SAP between August 1, 2001, and December 31, 2003, you must meet the qualification training requirement no later than December 31, 2003.”

After successfully completing qualification training, how many professional development hours must you complete, and over what period of time?

Section 40.281(d) states: “During each three-year period from the date on which you satisfactorily complete the examination under paragraph (c)(2) of this section, you must complete continuing education consisting of at least 12 professional development hours (e.g., CEUs) relevant to performing SAP functions.”

SERVICES OF THE SAP

What is the overarching function of a SAP as described in the Part 40 regulations?

Section 40.291(b) states: “As a SAP, you are not an advocate for the employer or employee. Your function is to protect the public interest in safety by professionally evaluating the employee and recommending appropriate education/treatment, follow-up tests, and aftercare.”

Can you explain when a SAP evaluation is required by Part 40?

Section 40.285(a) states: “As an employee, when you have violated DOT drug and alcohol regulations, you cannot again perform any DOT safety-sensitive duties for any employer until and unless you complete the SAP evaluation, referral, and education/treatment process set forth in this subpart and in applicable DOT agency regulations. The first step in this process is a SAP evaluation.”

What services must you provide during the SAP evaluation for each employee referred to you?

Section 40.293 states: “As a SAP, for every employee who comes to you following a DOT drug and alcohol regulation violation, you must accomplish the following:

(a) Provide a comprehensive face-to-face assessment and clinical evaluation.

(b) Recommend a course of education and/or treatment with which the employee must demonstrate successful compliance prior to returning to DOT safety-sensitive duty.”

In providing services as a SAP, can you refer an employee to your private practice or to a person or organization with which you are affiliated or in which you have a financial interest?

Section 40.299(b) states: “To prevent the appearance of a conflict of interest, you must not refer an employee requiring assistance to your private practice or to a person or organization from which you receive payment or to a person or organization in which you have a financial interest. You are precluded from making referrals to entities with which you are financially associated.”

Can you conduct a SAP evaluation by telephone or email?

Section 40.291(a) states: “As a SAP, you are charged with:

(1) Making a face-to-face clinical assessment and evaluation to determine what assistance is needed by the employee to resolve problems associated with alcohol and/or drug use.”

As a SAP, are you required to always recommend an education and/or treatment program during the initial evaluation for each employee?

Section 40.293 states: “As a SAP, for every employee who comes to you following a DOT drug and alcohol regulation violation, you must accomplish the following:

(b) Recommend a course of education and/or treatment with which the employee must demonstrate successful compliance prior to returning to DOT safety-sensitive duty.”

Upon receiving an initial SAP evaluation, can an employee or employer seek a second SAP evaluation?

Section 40.295(a) states: “As an employee with a DOT drug and alcohol regulation violation, when you have been evaluated by a SAP, you must not seek a second SAP's evaluation in order to obtain another recommendation.”

Section 40.295(b) states: “As an employer, you must not seek a second SAP's evaluation if the employee has already been evaluated by a qualified SAP. If the employee, contrary to paragraph (a) of this section, has obtained a second SAP evaluation, as an employer you may not rely on it for any purpose under this part.”

As a SAP, can you consult with the MRO to gather information about an employee for your evaluation?

Section 40.293(g) states: “In the course of gathering information for purposes of your evaluation in the case of a drug-related violation, you may consult with the MRO. As the MRO, you are required to cooperate with the SAP and provide available information the SAP requests. It is not necessary to obtain the consent of the employee to provide this information.”

As a SAP, is the MRO authorized to provide you with quantitative values for drug and validity test results for an employee?

Section 40.293(g) states: “In the course of gathering information for purposes of your [SAP] evaluation in the case of a drug-related violation, you may consult with the MRO. As the MRO, you are required to cooperate with the SAP and provide available information the SAP requests. It is not necessary to obtain the consent of the employee to provide this information.”

Section 40.163(g) states: ”You [the MRO] must not provide quantitative values to the DER or C/TPA for drug or validity test results. However, you must provide the test information in your possession to a SAP who consults with you.”

Does the transit operator refer employees to you as part of a second-chance policy, or are employees terminated from employment when they are referred to you?

What employee reports must you submit to an employer who has a second chance policy?

Section 40.311(a) states: “As the SAP conducting the required evaluations, you must send the written reports required by this section in writing directly to the DER and not to a third party or entity for forwarding to the DER (except as provided in Section 40.355(e)). . . “

Section 40.311(c) describes the required elements to be included in the SAP's written report following an initial evaluation.

Section 40.311(d) describes the required elements to be included in the SAP's written report concerning a follow-up evaluation that determines the employee has demonstrated successful compliance with the treatment program.

Upon request of the employee, may you provide the employee with a copy of their SAP evaluation reports?

Section 40.329(c) states: ”As a SAP, you must make available to an employee, on request, a copy of all SAP reports (see Section 40.311). However, you must redact follow-up testing information from the report before providing it to the employee.”

Do you provide the written initial and follow-up evaluation reports on your own letterhead?

Section 40.311(c) states: “The SAP's written report, following an initial evaluation that determines what level of assistance is needed to address the employee's drug and/or alcohol problems, must be on the SAP's own letterhead (and not the letterhead of another service agent)."

The SAP guidelines, page 19, state: “'SAP’s own letterhead'” (at 40.311) means the letterhead the SAP uses in her or his daily counseling practice. If the SAP is in private practice, the SAP should use the letterhead of her or his practice. If the SAP works directly for an EAP organization, the SAP should use the EAP’s letterhead."

Can you identify any rehabilitation programs in the area which are available in the employee's geographic area and to which you would refer employees for treatment?

Section 40.209(a) states: “As a SAP, you are charged with:

(2) Referring the employee to an appropriate education and/or treatment program.”

The Substance Abuse Professional Guidelines (published August 1, 2001 and available at http://www.dot.gov/ost/dapc/) states on page 8: “The SAP should have a working knowledge of quality programs and qualified counselors. When a variety of appropriate treatment programs are available within the employee's geographical area, the SAP may permit the employee to select the facility or practice from a SAP-approved provider list.”

Whose responsibility is it to make a ’’fitness for duty’’ determination to return the employee to safety sensitive duties?

Section 40.305(c) states: “As a SAP or MRO, you must not make a “fitness for duty” determination as part of this re-evaluation unless required to do so under an applicable DOT agency regulation. It is the employer, rather than you, who must decide whether to put the employee back to work in a safety-sensitive position.”

DOES THE SUBSTANCE ABUSE PROFESSIONAL DETERMINE THE FREQUENCY AND DURATION OF FOLLOW-UP TESTING FOR A COVERED EMPLOYEE, AS FOLLOWS:

What is the minimum number of follow-up tests that an employee is subject to, and over what period of time?

Section 307(d) states: “However, you [the SAP] must, at a minimum, direct that the employee be subject to six unannounced follow-up tests in the first 12 months of safety-sensitive duty following the employee's return to safety-sensitive functions.”

Can the SAP direct that an employee be subject to a greater number of follow-up tests during the initial months of the first twelve month testing period than in subsequent months, or do the tests have to be spread evenly throughout the year?

Section 40.307(d) states: “However, you must, at a minimum, direct that the employee be subject to six unannounced follow-up tests in the first 12 months of safety-sensitive duty following the employee's return to safety-sensitive functions.

(1) You may require a greater number of follow-up tests during the first 12-month period of safety-sensitive duty (e.g., you may require one test a month during the 12-month period; you may require two tests per month during the first 6-month period and one test per month during the final 6-month period).”

What is the maximum number of months that a SAP can prescribe for a follow-up testing program?

Section 40.307(d)(2) states: “You may also require follow-up tests during the 48 months of safety-sensitive duty following this first 12-month period.”

Can the SAP direct an employee to submit to follow-up testing for drugs when the employee only tested positive for alcohol, or vice- versa?

Section 40.307(c) states: “You [the SAP] are the sole determiner of the number and frequency of follow-up tests and whether these tests will be for drugs, alcohol, or both, unless otherwise directed by the appropriate DOT agency regulation. For example, if the employee had a positive drug test, but your evaluation or the treatment program professionals determined that the employee had an alcohol problem as well, you should require that the employee have follow-up tests for both drugs and alcohol.”

Can the employer use another type of drug test (i.e., random test, post-accident test) as a substitute for a follow-up test?

Section 40.309(c) states: “You [the employer] cannot substitute any other tests (e.g., those carried out under the random testing program) conducted on the employee for this follow-up testing requirement.

If an employee's follow-up test is cancelled, do the regulations require that the test must be made up?

Section 40.33(g) states: “As an employer who receives a cancelled test result when a negative result is required (e.g., pre-employment, return-to-duty, or follow-up test), you must direct the employee to provide another specimen immediately.”

The Substance Abuse Professional Guidelines (published August 1, 2001 and available at http://www.dot.gov/ost/dapc/) states on page 20: “It is important to note that a follow-up test that is cancelled is not a completed test: A cancelled follow-up test must be recollected.”

Was the Substance Abuse Professional prepared for the audit team, and did the SAP cooperate with the audit team and facilitate the audit process, including producing the required records?

Section 40.311(g) states: “As a SAP, you are to maintain copies of your reports to employers for 5 years, and your employee clinical records in accordance with Federal, state, and local laws regarding record maintenance, confidentiality, and release of information. You must make these records available, on request, to DOT agency representatives (e.g., inspectors conducting an audit or safety investigation) and representatives of the NTSB in an accident investigation.”

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