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  • ACOEM Submits Comments on DOT Drug and Alcohol Clearinghouse


    April 15, 2014

    Docket Management Facility (M–30)
    U.S. Department of Transportation
    West Building Ground Floor
    Room W12–140
    1200 New Jersey Avenue SE
    Washington, DC 20590–0001

    RE: Docket # FMCSA– 2010–0031

    Dear Sir or Madam:

    The American College of Occupational and Environmental Medicine (ACOEM) welcomes the opportunity to provide comments to the Notice of Proposed Rulemaking regarding the establishment of the Commercial Driver’s License Drug and Alcohol Clearinghouse (Clearinghouse). As our organizational membership consists of a number of physicians who are medical review officers (MRO), we are keenly aware of the issues that have been brought forth in this NPRM.

    We applaud the FMCSA for bringing forth the concept of a federal clearinghouse for both the reporting and searching of drug and alcohol tests that are positive or refusal to test. As occupational medicine physicians and medical review officers we are keenly aware of the pitfalls of a public safety program that is currently operating, in part, based upon a self-report mechanism by CDL drivers who use drugs or alcohol that for obvious reasons may have a disincentive to report these results accurately.

    Our membership has identified a few issues within the NPRM that we believe either need revision or clarification in order to further strengthen this rule. We offer the following comments identified by Section number:

    1. 382.107 Definition of “Positive Alcohol Test”
    Neither Part 40 nor any of the amalgamated rules use the word “positive” when referring to an alcohol test of 0.02 or higher. Rather, a concentration of 0.02-0.039 is “prohibited conduct” and a concentration of 0.04 or higher, is a “violation.” We would point out that both of these situations refer to a “positive test.” It is important within these definitions to remain consistent with prior rules and also consistent with respect to the verbiage that will be used in the creation and use of the Clearinghouse templates.

    2. 382.123 Driver Identification Concerns
    There is a concern with the new requirements of using the driver’s commercial driver’s license number and the use of the employer’s USDOT number or EIN. What if the individual driver does not yet have a CDL? We feel that there should be language here that indicates a secondary method of identification in this circumstance. Secondly, we would point out that neither the ATF nor the CCF has block headings to remind the alcohol technician or collector to obtain this information at the time of testing or collection. When considering that there may be issues with the lack of a USDOT number being assigned in states where this is not required for certain intrastate operators, this would place an interesting dilemma and burden upon either the collector or the BAT. We know all too well that despite the good intentions of collectors and BATs that the collection step, especially in urine drug testing, the “weak link” where most errors occur and it seems to us that this added requirement might create an additional area of problem. We believe that a simple solution is to revert back to the use of the driver SSN, which is something that the collectors and BATS are familiar.

    3. 382.701 Defining Who May Conduct Pre-employment and Annual Queries of the Clearinghouse
    Perhaps within this section it is implied that the employer may have a C/TPA perform this function upon its behalf, but the proposed language does not explicitly state that this is possible. In order to avoid confusion, we suggest that this ability be specifically stated.

    4. 382.705 Reporting to the Clearinghouse — Duplication and Administrative Burden
    Many MROs have read this section and are wondering why there is a duplicative reporting requirement to the Clearinghouse. While adding an administrative step to the daily work of an MRO might not necessarily create an issue for the larger MRO practice or those who work in larger MRO groups, we would point out that this might have significant consequences for the smaller MRO who might either have difficulty with the one day reporting requirement or need to hire additional staff in order to do so. As the designated “gatekeepers” of the drug testing rule, MROs wonder what value having MROs report to the Clearinghouse would have above and beyond the reporting requirements of the employer. Should not the responsibility here lie solely with the employer? Simplifying this reporting requirement to the concept of “one entry-one data point” is very important, and we see the employer here as being the logically identified responsible party, with the ability of an employer to designate the C/TPA to perform this step. The C/TPA relationship is one that has worked well for a number of years and we see no reason to “muddy the waters” here. We see trouble on the horizon with multiple parties entering information for the same event given that errors will likely occur. Nevertheless, if FMCSA does decide to keep this multiple-party reporting requirement, we would ask for clarification language to allow the MRO Assistant to enter this information on behalf of the MRO to lessen the administrative burden.

    5. 382.711 Registration Procedural Concerns
    While we understand the general registration process and requirements as laid out for MROs in this section, we would point out that questions have been raised by our members who work for more than one MRO organization. It is not clear in this section if the MRO would need to register just once and that this would satisfy the requirements or whether they would need to register multiple times in situations where they may be working for multiple MRO organizations with different addresses, telephone numbers, etc. Without knowing the particulars of the design of the clearinghouse templates and its registration capacities, we want to make sure that FMCSA understands the realities of MRO work in this regard and asks for clarification in this section.

    Thank you for the opportunity to comment upon these proposed rules. We are available to discuss this issue further at your request.

    Sincerely,

    Ronald R. Loeppke, MD, MPH, FACOEM
    President

    Douglas W. Martin, MD, FACOEM
    Chair, ACOEM Medical Review Officers Section