1.Experienced DAPM Training
12th Annual FTA Drug and Alcohol Program National Conference
April 2017
2.Trainers
Mike Redington
michael.redington@dot.gov
(617)494-2197
Felicity Shanahan
Felicity.Shanahan@dot.gov
(617)494-3915
3.What does ‘DER’ stand for?
How does a DER differ from a DAPM?
What is the definition of ‘disabling damage’?
What is your company policy on ‘negative dilute’?
What is wrong with this statement?….”Our 60 minute training covers effects and consequences of drug and alcohol use”
DO YOU BELONG HERE?
5.Who must have an FTA D&A Program?
Recipients (Grantees) of FTA Transit Funds
5307: Urbanized Area Formula (Operating & Capital)
5309: Transit Capital Investment (Capital)
5311: Non-Urbanized Area Formula (Operating and Capital)
Serving population less than 50,000
5311(c) Tribal Transit Program (TTP)
5339: Bus and Bus Facilities (Capital)
Subrecipients and Contractors of FTA Grantee, when:
Recipient (grantee) uses the subrecipient/contractor to provide some or all of its safety-sensitive activities
Subrecipient/contractor uses vehicles purchased with FTA capital funding
6.Who must have an FTA D&A Program?
Recipient of FTA Capital Assistance (5309/5311/5339)
Segregate FTA funding
Limit application of FTA testing to capital project funded by FTA
Recipient of FTA Operating Assistance (5307/5311)
FTA funding cannot be segregated
All operations are subject to FTA D&A requirements
Includes safety-sensitive contractors
Even in contractors receives no actual FTA money
7.Safety-Sensitive Functions
Operating a revenue service vehicle, including when not in revenue service
Operating a non-revenue service vehicle when required to be operated by a CDL holder
Tow trucks?
Maintaining a revenue service vehicle or equipment used in revenue service
Signal workers?
Track maintenance?
New track construction?
Controlling dispatch or movement of a revenue service vehicle
Flaggers?
Occasional occurrences (e.g. during transit vehicle accident)?
Carrying a firearm for security purposes
Police stationed at transit system?
8.Shared Mobility? (Uber)
Does the Testing Requirement Apply?
Yes, extends to all employees of contractors performing safety-sensitive function
Except if “Taxicab Exemption” Applies
Even if Drivers are Independent Contractors?
Yes
What if funded with 5312 (Innovation) or is a Pilot Program (non-FTA funded)?
No
Taxicab Exemption
When a patron chooses from a number of taxicab companies.
9.Pre-Employment Testing
PE testing vs. other medical exams
PE test refusals
Previous employer records requests
Pre-employment testing administrative relief request
10.Pre-Employment Testing vs. CDL/State/Local Medical Exam
CDL, State, or local requirements may also include a physical exam that contains a drug test
NOT a valid FTA pre-employment test
Applicants and collectors may not know the difference!
Be sure to be clear when requesting
11.Pre-Employment Testing - Refusals
Different than other test types (random, post-accident, etc.)
NOT a refusal if applicant:
Fails to appear for testing
Leaves the collection site prior to commencement of test
A drug test commences when donor accepts or selects the specimen cup
An alcohol test commences when donor accepts or selects the mouthpiece
Reminder: Employer must provide a SAP referral to any applicant who fails or refuses a DOT pre-employment test
12.§40.25 – The Basics
"Must an employer check on the drug and alcohol testing record of employees it is intending to use to perform safety-sensitive duties?“
As a potential employer, you must:
Obtain written consent from applicants to request drug and alcohol testing information from previous 2 years
An employee that refuses to provide consent is not eligible for hire in a SS position
Contact previous employers – written consent must accompany the request
Ask applicant whether he or she has tested positive or refused a DOT pre-employment test in the previous two years
Question must be separate from the previous employer records release form
13.§40.25 – The Details
As the potential employer:
Only applies to employees seeking to begin performing SS duties for you for the first time
If employee leaves for a period of time (not exceeding 2 years) and returns? (ODAPC Q&A 09/01)
If information received previously is still on file, you do not need to seek to obtain testing information again
Must seek information from any other DOT employers who employed the person during absence
If possible, obtain and review information prior to applicant’s placement into SS functions
If not possible – within 30 days after employee begins SS functions (or at least a good faith effort)
14.§40.25 – The Details
As the potential employer:
If violations exist, you need proof of completion of RTD requirements
Employer may determine this to his or her own satisfaction (SAP Guidelines)
E.g. have prospective employee meet with your SAP, or have your SAP confer with the prospective employee’s SAP
If employee has not completed the follow-up testing plan, you must see it through after hire (§40.307(e))
Keep a written record of the information received, or of your good faith effort for at least 3 years
15.§40.25 – The Details
As the previous employer receiving the inquiry:
Ensure applicant’s signature accompanied the request
Also include any information you received about the employee from a former employer
Even if that information dates back more than 2 years ago (ODAPC Q&A 09/01)
Release of information must be in a written form that ensures confidentiality
Include written record of information released
date
person/employer released to
summary of information provided
16.Pre-employment Testing Administrative Relief Request
Waive Pre-employment testing requirement when there is a change in employers.
Switch contractors
One Contract Elapses – Another Begins
Employer purchases existing FTA-covered Employer
Is there a lapse in service?
Are employees ever out of a DOT random testing pool?
Does the new employer have access to employee’s pre-employment test results?
17.Random Testing
The safety-sensitive DAPM
Multiple modes
Using alternates
Random spread
18.The Safety-Sensitive DAPM
Are you actually safety-sensitive?
When can you be tested?
Drugs: any time on duty
Alcohol: just before, during, or just after safety-sensitive functions
DAPM in the random testing pool requires additional arrangements
19.Multiple Modes
What Pool?
Separate pool for each DOT mode → Test at required testing rate
All DOT employees in one pool → Test at the highest percentage rate established
How many tests (testing rate)?
All the same!
20.Random Selection – Using Alternates
Alternates may only be used if the originally selected employee cannot be tested during entire selection period
Must have a legitimate reason for excusing the original employee
“Operational difficulties” not legitimate
Must document why original employee could not be tested
Alternates must be selected when original selection list is generated
May not be selected as a separate draw
Must be identified as an alternate
The Alternative: test at a higher rate throughout the year to make up for missed tests due to excusals
21.Random Testing – Reasonably Spread
§655.45(g): employers must ensure the dates for random tests are spread reasonably throughout the calendar year and are conducted at all times of the week and day when safety-sensitive functions are performed
Batch Testing
Often signals that very few (if any) random tests will occur later in the selection period → reduces deterrent effect of the random testing program
Common causes:
On-site or mobile collector
Restrictive collection site
Lack of training from employer
Random refers to selections from Random Pool
22.Records Review – Graphic Analysis
Reasonably spread = GOOD
Batch Testing = BAD
23.What’s wrong with this picture?
24.Off-Hours Testing
Important to conduct alcohol tests during late night/early evening
Night-time is the most common time for consuming high levels of alcohol
Early morning shifts – high concentration levels from sustained intoxication from previous night
How to get them done?
Schedule in advance – early arrangements with collection site (may pay premium)
Special arrangement with collector
The collector (not the collection site) is qualified to perform DOT tests
Hospital
Police
25.End-of-Shift Interpretation
An employer can establish a process for employees who provide advance, verifiable notice of scheduled medical or childcare commitments
Allowance for DAPM:
Schedule alcohol tests no later than 30 minutes before employee’s shift ends
Schedule drug tests no later than 3 hours before employee’s shift
It’s important to revisit agreement with employees often to ensure commitments are still valid
26.Post-Accident Testing
Best information available
27.Best Information Available
Decision to test/not to test made by employer (company official, supervisor) at the scene
Use best information available at the time
any and all information obtained during the on-site portion of the accident information
do not ‘reverse’ decision based on facts that may emerge later
Onboard cameras?
May be used only if easily viewable at the scene, without delay of the test
Ensure decision-makers sufficiently document any decision not to perform an FTA test (after thresholds are met)
28.Reasonable Suspicion Testing
Authorized to make a referral
29.Reasonable Suspicion Testing
A safety-sensitive employee must submit to a drug and/or alcohol test when the employer has a reasonable suspicion that the employee has used a prohibited drug or misused alcohol
30.Authorized to Make a Referral
Who should be authorized to make a referral?
Company officials who will be in contact with safety-sensitive employees
Dispatchers
Street supervisors
Maintenance supervisors
Employees (not authorized) should know who to contact if suspicious
31.Positive Random, PA or FU Test?
Random, post-accident or follow-up positive (esp. alcohol) – Why wasn’t this detected by a supervisor?
32.Return-to-Duty and Follow-up Testing
Part-time safety sensitive
33.Part-Time Safety-Sensitive
Infrequent SS duties (e.g. primarily admin, on light-duty, etc.)
Employer may direct safety-sensitive as it sees fit
Seasonal employees
Pauses during times when employee is inactive
Maximum 60-month duration of follow-up testing may sometimes extend beyond 5 calendar years
34.Notification Forms
Information to collection site
Direct observation
35.Information Provided to Collection Site §40.14
Employer must provide the following to the collector for each drug test:
Name of employee
Employee SSN or ID#
Laboratory name and address (can be pre-printed on CCF)
Employer name, address, phone number, fax number (can be pre-printed)
DER name and phone number
MRO name, address, phone number, and fax number (can be pre-printed)
DOT Agency regulating the employee’s ss duties (checkmark can be pre-printed)
Test Reason
Whether the test is to be observed or not
(Optional) C/TPA name, address, phone number, fax number (can be pre-printed)
Best practice: Use a notification form to provide this information
36.Direct Observation
Whether the test is to be observed or not
Most common information missing from notification forms
Collectors should not “automatically” conduct directly observed testing for RTD/FU – they must be directed to do so by the employer
37.RECLASSIFYING TESTS
How?
38.RECLASSIFICATION
DOT non-negative to non-DOT
Can reclassify only with the concurrence of Iyon Rosario (FTA D&A Program Manager)
Closely scrutinized
39.Refusals to test
Who determines?
40.Refusal to Test
Only MROs, evaluating physicians, and employers can determine whether or not a refusal occurred
A collector must document behavior at the collection site –
but the employer makes the final determination
41.Vendor Oversight
Oversight activities
Testing sites – mock collections and CCF review
Third party administrators
42.Oversight Activities
If your vendors are not compliant – YOU are not compliant
If you use a service agent (a collector, BAT, MRO, SAP, TPA) and the service agent fails to comply with DOT rules, DOT can take action against you
Specifics not prescribed by DOT
DOT allows to request qualifications, exam certifications, etc.
43.The collection site
44.Collection Site Oversight
Best Practices (for Collection Site)
Perform periodic on-site reviews (if applicable)
Review testing records – CCFs and ATFs
Require correction/cancellation as appropriate
http://transit-safety.fta.dot.gov/DrugAndAlcohol/Tools/
Breath collection/ urine collection checklists
CCF/ATF review checklists
Example of completed CCF
Collection site affidavit forms
Collection Site Audit Interview questionnaires
https://www.transportation.gov/odapc/dot-mock-collection-instructional-video
45.Collection Site Integrity – the Risks
Substitution of specimen
Donor’s ability to dispose of or conceal paraphernalia brought into the enclosure
Donor’s ability to access paraphernalia already in the enclosure
Hiding places even for small objects
Dilution of specimen
Donor’s unauthorized access to water sources
Adulteration of specimen
Donor’s unauthorized access to soaps, sanitizers, etc.
46.Secure water sources
Turn off water, tape faucet handles, bluing in toilet and tank, tape toilet tank
Remove sources of adulterants
Soap, disinfectants, sanitizer, etc.
Eliminate undetected access
Windows, side doors, hallways, etc.
Secure/eliminate areas for hiding/concealing
Ledges, cabinets, trash receptacles, under sink areas , dropped ceiling tiles
Collection Site Integrity – the Solutions
47.Collection Site – CCF Review
Step 1:
A: Employer name, address, phone # - required information
TPA information allowed – must transmit to employer
B: MRO – current contact information
D: DOT Agency – FTA, not FMCSA (most common error)
E: Reason for test
48.Collection Site – CCF Review
Step 2:
Directly observed
Always for return-to-duty and follow up tests
Other reasons per §40.67
Observed not checked when required?
Call collection site… if not observed, send donor back immediately
Remarks required if:
Shy bladder
Directly observed by a same gender observer (if different than collector)
Temperature out of range
Employee not cooperating (won’t sign CCF, print name, etc.)
49.Collection Site – CCF Review
Step 3:
Initial bottle seals while on the bottle
50.Collection Site – CCF Review
Step 4:
§40.209(b)(9) – Must include specific courier name
“Courier” not allowed - must be specific (e.g. FedEx, DHL, etc.)
51.Collection Site – CCF Review
Step 5
Employee’s name, telephone number, and date of birth
Date of test
Employee signature
If no signature, is this documented in the Remarks Section of Step 2?
52.Collection Site – CCF Review
General:
DOT CCF?
“Federal Drug Testing Custody and Control Form”
All fields complete
Dates are correct and consistent
Writing is legible
You received the correct copy (Copy 4 – Employer)
If applicable, alcohol test before drug
53.Collection Site – CCF Review
What if errors are found?
Employer must correct error – contact collection site
Missing information (collector)
Supply missing information in writing
Supply statement that information is correct and accurate
Same business day
Non DOT form for a DOT test (collector)
Supply affidavit (memorandum)
Non-DOT form contains all required info
Form used inadvertently or as a method to complete test
Steps to prevent further use of non-DOT form
Split specimen, sent to a HHS lab
54.Collection Site – CCF Review
What if errors are found?
Employer may correct some errors – mark correction on CCF
Incorrect/Missing DOT Agency (most common error)
Incorrect/Missing Test Type
DOB and Current Date reversed
Circle/cross out, initial, date
55.Fatal Flaws
Fatal flaws:
Collector fails to print and sign his/her name
Specimen ID numbers on the specimen bottle and CCF do not match
Specimen bottle seal is broken or shows evidence of tampering
Insufficient specimen due to leakage or other causes
MRO determines collector is at fault – cancels drug test
MRO reports cancelled test to employer, noting collector error
Employer is responsible for notifying the collection site of the error and the retraining requirement; and for ensuring that the training takes place
Collector has 30 days to undergo error correction training
Collector may still perform collections
56.Continued Non-Compliance
What do you do if you know your collection site is not completing compliant collections?
Work with collection site to correct errors
Report it to the program manager of your DOT agency (FTA – Iyon Rosario)
Find a new collection site
57.Third Party Administrators
58.Functions of the TPA
D&A program functions may be outsourced to a vendor – consortium/third-party-administrator (C/TPA)
Random selections
Prepare of annual MIS reports
Coordinate urine collections, laboratory testing, and MRO services
Coordinate alcohol testing
Coordinate SAP referrals
C/TPA must ensure that the services it provides comply with DOT regulations - but you, as the employer, are ultimately responsible
59.TPA Best Practices
YOU may dictate:
Random testing specifics
When/how random selection lists arrive
Test day and time
Number of tests and testing rate
Frequency of selection/altering schedule
Location of the records
What information is transmitted through TPA
Test Results, CCF copies (Except MRO copy)…see Appendix F of Part 40
61.Responsibility
The direct recipient of FTA funding, however, remains responsible to FTA both for carrying out the regulations and for ensuring that any person or organization performing a safety-sensitive function on its behalf is in compliance with FTA regulations with effective ongoing oversight. (FTA Circular C 9030.1E)
If your contractors are not compliant – you are not compliant
62.Suggested Activities
Obtain a copy of the contractor’s drug and alcohol policy and determine if its compliant
Or provide a copy of your own compliant policy
Conduct periodic assessments
Ensure their service agents are qualified under Part 40
Require periodic management reports on policy modifications, changes in service agents, training, etc.
Audit testing records on site
Require and monitor quarterly and annual MIS reports
Require immediate corrective actions to remedy problems identified
Invite contractors to participate in your training programs
64.MIS – FTA Reporting Requirements
Prepare and maintain annual summary of testing results
MIS report is “employer based”
Each employer submits a separate MIS with FTA results
No consortium reports
No combined reports
Submit results to FTA
When requested (e.g. annual reporting, audit, triennial, etc.)
March 15 for annual MIS
Ensure accuracy and timeliness
Grantees → contractors, subrecipients, TPAs, etc.
65.MIS – Multi-Modal Employers
When an employer is regulated by multiple DOT agencies, but: individual employees perform duties regulated by a single DOT agency
Ex: Employer operates transit buses (FTA) and school buses (FMCSA), but each employee operates only one type of bus
Submit separate agency specific MIS forms
Do not double report
66.MIS – Multi-Modal Employers
When an employer is regulated by multiple DOT agencies, and: individual employees perform duties regulated by multiple DOT agencies
Ex: Employer operates transit buses (FTA) and school buses (FMCSA), and an employee could operate either vehicle
Report employees under DOT agency for which they are randomly tested
OR
Report employees under DOT agency for which majority of safety sensitive duties are conducted
67.RECORD ACCESS
Who?
68.RECORDS
Grantees have Access to DOT/FTA Testing Records
Covered Contractors, Subrecipients, TPAs, etc.
Must Certify Compliance with FTA D&A Testing Regulations
Temp Agencies typically do not have DPT record access
69.What if You have questions?
FTA contacts
FTA D&A resources
71.http://transit-safety.fta.dot.gov
Forms
Post-accident, Reasonable Suspicion, Notification, Previous Employer
Policy Help
Checklist, Sample Policies, Policy Tool
Video
Reasonable Suspicion
Conference & Training Schedules
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