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  • ACOEM Comments on Proposed Rule for Drug-Alcohol Testing in Mining Industry

    December 4, 2008

    Office of Standards, Regulations, and Variances
    Mine Safety and Health Administration
    1100 Wilson Boulevard, Room 2350
    Arlington, VA 22209-3939

    Re:  RIN 1219—AB41

    To Whom It May Concern:

    The American College of Occupational and Environmental Medicine (ACOEM) welcomes this opportunity to comment on the proposed rule for drug and alcohol testing in the mining industry.

    ACOEM represents more than 5,000 physicians and other health care professionals specializing in the field of occupational and environmental medicine (OEM). Founded in 1916, ACOEM is the nation’s largest medical society dedicated to promoting the health of workers through preventive medicine, clinical care, disability management, research, and education.

    OEM physicians design, implement, and evaluate substance abuse testing programs, performing medical review officer (MRO) functions as appropriate. ACOEM regularly offers training programs for MROs.

    We applaud the Mine Safety and Health Administration (MSHA) for proposing a rule that will enhance mine safety. We support the decision to incorporate the U.S. Department of Transportation’s 49 CFR part 40 alcohol and drug-testing procedures into the proposal. There is value in standardization of drug testing programs across the federal agencies.

    Abuse of Prescription DrugsIn addition to prohibiting the use, and requiring testing for illicit drugs or the ‘‘SAMHSA–5;’’ MSHA is proposing that the unauthorized use of the following controlled substances also be prohibited: barbiturates, benzodiazepines (e.g., Valium, Librium, Xanax), methadone, propoxyphene (e.g., Darvon), and synthetic and semi-synthetic opioids (i.e., hydrocodone, hydromorphone, oxymorphone, oxycodone).

    As the agency notes in the preamble, at present there are no federal workplace drug-testing standards for the five targeted prescription drugs, all of which can be legally prescribed. While we commend MSHA for exploring ways to address abuse of prescription drugs, we caution that since such testing is not required by other federal drug testing programs, this change will significantly affect the MRO’s responsibility. The practice of an MRO has remarkably remained VERY scientific from its inception. Bringing subjective interpretation into the determination of a positive v. negative test result based upon medical history, appropriate diagnosis, EBM, etc. as this rule may do with the addition of the “non-SAMHSA-5,” will potentially put the MRO in a position of having to judge “fitness for duty.” Notifying the employer of a potential fitness for duty issue as currently is done under the DOT regulations is sufficient, but it is the employer, rather than the MRO who must decide whether to put the employee back to work in a safety-sensitive position.

    We have particular concerns with the provisions for substantiating the legitimate use of a prescription. The proposal specifies that the possession of a valid prescription alone is not sufficient proof of legitimate use. The provision allows the miner to provide evidence that the prohibited substance(s) has been legitimately prescribed and allows the MRO to conduct a medical interview of the miner following a confirmed positive test; review the miner’s medical history; and consider not only the possession of a valid prescription, but any other relevant biomedical factors. This may be problematic for the MRO as there are no standard criteria for making such a determination, and will likely result in wide variability in how this is addressed by the MRO. It will also likely drive up employer costs. First, the rates of positives reviewed by the MRO will increase; second the MRO’s job will be more complicated if he or she must frequently review medical records and contact physicians. It would be preferable in this situation for the MRO to be required to do exactly what they are doing now with other federal and non-federal programs – that being to notify the DER (designated employer representative) of a potential safety sensitive issue.

    In addition, either by reference or inclusion it should be stated that the MRO must handle cases consistent with guidance by DOT for internet prescription or familial use (i.e. using medication prescribed for a spouse or other person). Also the regulation must note that a valid prescription (66.2) must be consistent with federal law.

    Additional Comments 

    • MRO and SAP Qualification: It should be stated in the regulation that the MRO must be trained and certified. The credentials necessary for the SAP should also be stated.
    • MRO Medical Judgment: ACOEM suggests that MSHA incorporate the intent of the DOT provision in 49 CFR 40.327. Under this provision, the MRO must, with certain exceptions, report drug test results and medical information learned as part of the verification process to third parties without the employee's consent if in the medical judgment of the MRO the information indicates that continued performance by the employee of his or her safety-sensitive function is likely to pose a significant safety risk.
    • Program Implementation: The proposed rule allows operators one year from the effective date to implement a program in order to learn the regulations, yet allows two years for those operators who already have a drug-free mine program. ACOEM feels that both timelines are too long, and does not understand why those with programs already in place need longer to adhere to the MSHA requirements. We recommend that all mine operators, regardless of whether a current program is in place, should be required to have a program in place within 6-12 months following the release of the final rule. By utilizing competent service providers (i.e., consortia/third-party administrators) well versed in drug and alcohol testing programs, this would not be a problem.
    • Use of Consortia/Third Party Administrators: While the preamble appears to specify that Consortia/Third Party Administrators (C/TPAs) could be used, the regulatory text does not indicate that MSHA allows this practice, a practice seen throughout all other federally mandated programs. Specifically, §66.300 (d) disallows a service agent from receiving drug or alcohol test results. While we agree that only the designated employer representative for the mine operator should receive alcohol test results, we believe that the regulation should allow for an intermediary (C/TPA) to receive drug test results. This is standard practice for companies managing drug and alcohol testing programs for employers. In addition, when the DOT revised their regulations in 2001, they took into account much information and statistics on the increased efficiency and cost-savings by employers in using a C/TPA. As such, specific language was included in the DOT regulations to allow the use of C/TPAs and more importantly, to allow them to act as intermediaries in the receipt of drug test results.
    • Pre-employment Alcohol Testing: Given the small number of pre-employment alcohol screening positives, ACOEM does not agree with the requirement for pre-employment alcohol testing. Rather, it should be an option for the employer. One must only abstain from drinking the night before a test to test negative, and such tests are considered more of an “IQ test” than anything else. This will create a great financial burden for the mines with little safety benefit. We urge the MSHA to remove this requirement and instead make it optional.
    • Post-accident Testing: The proposal refers to blood-alcohol test results, yet nowhere in the regulation are there references to how and when blood specimens are to be collected. If blood specimens are warranted in certain post-accident incidences then the regulation needs to outline how these specimens are collected, the timeframe to collect the specimens, and who is qualified to collect the specimens. Also, it should be stated that the employee must not drink alcohol after an accident prior to required testing. ACOEM suggests that MSHA look to the Federal Railroad Administration on this procedure, as they are the only DOT mode to allow post-accident blood tests.

    Thank you for your consideration of these comments.

    Robert Orford, MD