We are: FTA Drug & Alcohol Program Auditors George Gilpatrick & Joe Lofgren 2

FTA Drug & Alcohol Program National Conference March, 2010

Drug & Alcohol Program Manager Seminar

Welcome We are: FTA Drug & Alcohol Program

Auditors George Gilpatrick & Joe Lofgren

2

Welcome

You Are:• New Drug & Alcohol Program Managers

(DAPMs)• General Managers• New DAPM Assistants• Transitioning into/out of DAPM role• Trainers

3

Course Overview

Subjects of Discussion: Regulation History and Overview Prohibitions & Testing Overview The DAPM Role and Management Theory Your Program’s Policy Records Management Internal Oversight DOT D&A Management Information System

(MIS) Best Practices

4

Schedule

5

Glossary Adulterated Specimen – A urine specimen containing a

substance not expected to be present (at all or at a certain volume) in human urine

Alcohol Concentration - The alcohol in a volume of breath expressed in terms of grams of alcohol per 210L of breath

ATF - Alcohol Testing Form (the alcohol equivalent to the CCF) BAT - Breath Alcohol Technician (Collector) Canceled Test – A result that is neither negative nor positive CCF - Custody & Control Form (Chain of Custody, or COC) C/TPA – A service agent that provides/coordinates elements

of your program DAPM - Drug & Alcohol Program Manager (usually same as

DER) DER - Designated Employer Representative (usually same as

DAPM)6

Glossary, Continued Dilute Specimen - A specimen with creatinine and specific

gravity values that are lower than expected for human urine. (US)DOT - Department of Transportation (in Washington, DC) FTA - Federal Transit Administration (Part of DOT) FU - Follow-up Testing MRO – Medical Review Officer ODAPC – DOT’s Office of Drug and Alcohol Policy &

Compliance RTD - Return to Duty Testing SAP – Substance Abuse Professional SS – Safety-sensitive Verified Test - A drug test result or validity testing result from

an HHS-certified laboratory that has undergone review and final determination by the MRO.

7

Iconography

Review and Check for Errors

Use Forms Here

Check your Policy

Training/Certification

• Important

• Common Mistake

• Time-sensitive Requirement

!

8

The Regulations

49th Code of Federal RegulationsPart 40Part 655Part 382

9

Regulation History & Overview

Congress Found that:(1) alcohol abuse and illegal drug use pose significant

dangers to the Nation;(2) The Nation's citizens depend on the operators to

perform in a safe manner;(3) the greatest efforts must be expended to eliminate

the abuse of alcohol and use of illegal drugs by operators;

(4) the use of alcohol and illegal drugs has been proven to have been a critical factor in transportation accidents;

(5) the testing of uniformed personnel of the Armed Forces has shown that the most effective deterrent is increased testing, including random testing;

(6) adequate safeguards can be implemented to ensure privacy;

(7) rehabilitation is a critical component of any testing program. Public Law 102-143 (H.R.

2942) 10

Regulation History & Overview, Cont.

October ‘91•Omnibus Transportation Employee Testing Act•93% combined vote•Covers more than 12m employees

February ‘94•FTA Adopts 49 CFR Parts 653 & 654•Compliance Required by 1/1/95 (Large Operators), or 1/1/96 (Small Operators)

11

Regulation History & Overview, Cont.

March ‘97 •FTA Drug & Alcohol Program Audits Begin

August ‘01 •49 CFR Part 40 Updated•FTA Combines Parts 653 & 654 into Part 655

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Key Sections – Part 655

§ Definitions – 655.4§ Prohibited Drug Use – 655.21§ Prohibited Alcohol Use – 655.31-35§ Pre-employment Testing – 655.41-42§ Reasonable Suspicion Testing – 655.43§ Post-accident Testing – 655.44§ Random Testing – 655.45§ Return-to-Duty/Follow-up Testing – 655.46-

47§ Retention of Records – 655.71§ MIS Reporting – 655.72

13

Key Sections – Part 40§ Definitions – 40.3§ Employer Responsibilities – Subpart B

§ 40.11-40.29§ The Verification Process – Subpart G

§ 40.121-40.169§ The Return-to-Duty Process – Subpart O

§ 40.281-40.313§ Role/Responsibilities of Service Agents –

Subpart Q§ 40.341-40.355

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Prohibitions & Testing Overview

Drug Use, Alcohol Abuse, and Federal Testing

15

Prohibited Drugs The “NIDA 5”• Marijuana • Cocaine• Amphetamines• Opiates• Phencyclidine

(PCP)

Use of these substances is prohibited at all times Prohibitions may be added (over-the-counter, Rx,

etc.)

Cutoff Concentrations for Initial & Confirmation Tests!

16

The Drug Testing Process

Employee Selected

Refusal!

17

Prohibited Alcohol Use

Covered Employees may not use alcohol: While performing a safety-sensitive function Within four (4) hours of beginning the

performance of a safety-sensitive function Within eight (8) hours after an accident (or

until a post-accident alcohol test has been performed)

While on Call** The employee must be given the opportunity to

acknowledge the use of alcohol at the time of notification.

18

Alcohol Testing

Devices approved by NHTSA• Evidential Breath Testing Machine (EBT)

Prints ResultOnly device that can be used for

confirmation test• Alcohol Screening Device

Does not print resultApproved by NHTSA, but cannot be used

for confirmation testingSaliva Testing Strip most common

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Alcohol Testing Process

!20

The Five Types of FTA Testing

Pre-Employment Before 1st performance of SS Function After 90+ day absence (never a RTD!)

Random Deters use among community; Must be unpredictable

Post-Accident FTA testing after serious accidents

Reasonable Suspicion Specific, articulable reason for testing

Return-to-Duty/Follow-up Only after a positive/refusal, and after SAP referral

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The Drug & Alcohol Program Manager

-Your role as defined by the Regulations

-Your role within your Organization

-The scope of your Function

22

49 CFR Part 40 & The DER (DAPM)

Part 40 Defines the Designated Employer Rep as:

Part 40 Also Notes that:

“An employee authorized by the employer to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes.”

“The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents [TPAs, MROs, SAPs, Collectors/BATs] cannot act as DERs.” 23

You & Your Organization

Distance to Safety-Sensitive Personnel Can you meet DOT’s requirement to “remove

employees from safety-sensitive duties, or cause employees to be removed from these covered duties…?”

Safety-sensitive Roster (“Pool”) Awareness Do you know before each draw who is currently SS? Are you linked into Payroll, Operations, or Human

Resources? Do you know who your covered contractors are?

Are you Plugged In?

!

24

The Things You’ll Do

Pre-employment Processing

Policy & Training

Random Testing

Post-Accident Testing

Reasonable Suspicion Testing

Return-to-Duty Testing

Follow-up Testing

Vendor Monitoring

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Pre-Employment Processing

§655.41(a)(1): “Before allowing a covered employee or applicant to perform a safety-sensitive function for the first time, the employer must ensure that the employee takes a pre-employment drug test administered under this part with a verified negative result.”

26

The Pre-Employment Test

Contingent upon offer Negative result must be in hand prior to SS

duty Pre-employment Alcohol Testing

You may choose to do this (it’s an IQ test!) If you do, you must do it with Federal forms, and

for all SS applicants/employees. If SS emp is away 90+ days, and out of

random testing pool, perform a pre-employment test!

27

Background Checks 49 CFR Part 40 Section 25 requires Backgrounds

Make your requests under 40.25, not 382! SS employers from last 2 years Within 30 days of hire You must ask the employee:

“have you, in the last two years, failed or refused a DOT pre-employment test?” You must ask this because, had he failed/refused, you would

have no employer of whom to make the above request! You must return requests made of you

28

P.E.T.E.R.

The Pre-employment Testing Exemption Request

Contact Jerry Powers if:You are absorbing another entity or being

absorbed by another entityChanges to your company are

administrative onlyPre-employment negatives are available

for all employees

29

Compliance

Dissemination

Training

Policy & Training 30

Your Policy

Check compliance annually49 CFR Part 40 changed in August of 2008

– have you updated your policy? Do you have a model policy?

Make sure it’s localized!Make sure your Board/GM knows!

Disseminate & ExplicateYour job is to help employees get it!Get a receipt from each employee (it’s

proof!)31

Training

60 min of Training for each Safety-sensitive Employee – Effects of Drug Use

120 min of Training for each Supervisor authorized to make Reasonable Suspicion Determinations:60 min on Drug Use60 min on Alcohol UseTraining Video is available free from The FTAThere is no official certification for this:

self-certify!32

Random TestingDeter, Detect, Deter

§655.45(f): “The employer shall randomly select a sufficient number of covered employees for testing during each calendar year to equal an annual rate not less than the minimum annual percentage rates for random drug and alcohol testing determined by the Administrator.”

33

Random Testing

Determine your draw periodCannot be less than quarterly

Determine your rate (FTA Minimum is 25%/10%)A percentage of the number of safety-

sensitive staff you employ throughout the year, on average

You can test at a higher rateYour policy should indicate your rate

34

The Random Draw (or “Pull”) For 2009, you must test 25%/10% of the

average number of safety-sensitive employees

An example:• Q1: 336 SS emps• Q2: 342 SS emps• Q3: 361 SS emps• Q4: 341 SS emps Average (1380/4)=345 (this is the # of emps for

MIS); Test for Drug: 25% = 86.25 (87+ tests

22/q) Test for Alcohol: 10% = 34.5 (35+ tests 9/q)

35

Random Testing Pools Keep your roster up to date

Use payroll, log, or other consistent mechanism

US DOT covered employees only!Get this info to your C/TPA (as applicable)

on timeEnsure that your C/TPA gets it back to you!

36

Random Testing Pools continued

C/TPA:A Consortium/Third Party Administrator

assists in the maintenance and application of your testing program

A consortium is made up of independent systems who combine their safety-sensitive pools into one larger pool.

A consortium must perform random testing selections at the highest applicable minimum rates

37

Random Testing & the TPA

A Third Party Administrator may perform numerous functions:Random SelectionMRO ServicesCollection Sites/Collection Site OversightRecords Maintenance & Retention

A TPA may not:• Transmit Laboratory Reports from the Lab to the

MRO• Transmit Alcohol Results of 0.02 + from BAT to

Employer38

Random Testing Continued

Selection Lists must be securely maintained (2yrs+)Locked cabinet, minimal distributionSecure fax line, email, etc.

Notification of Random TestingChain of Notification (Supervisors? Dispatchers?)Who ensures spreading of random tests?Constraints on random alcohol testing

You may only perform random alcohol testing just before, during, or just after safety-sensitive duties.

!

39

Random Testing Continued Immediacy Section 655.44(h) states that

Each employer must decide how much time a notified employee has to report for testing.

An employee’s failure to arrive at the collection site in the allotted time constitutes a Refusal to Test

**Refusals Are Positive Tests!**

“Each employer shall require that each covered employee who is notified of selection for random drug or random alcohol testing proceed to the test site immediately.”

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Random Testing Continued

Random Testing must be spread:Throughout the YearThroughout the WeekThroughout All Hours of Safety-Sensitive

Duty Spread may be proportional; it is not an

even spread The goal of spreading tests is to

increase deterrence through unpredictability

!41

Random Testing Continued

Random Testing Result Processing1. You should receive the employer copy of

the CCF/ATF within two (2) days of the test2. You should receive a result from the

MRO/TPA within a few business days Do Not assume that “no news is good

news” Keep track of results due, chase them

down if necessary

42

Post-Accident TestingTraining, Analysis, Timeliness

§655.44: “As soon as practicable following an accident… an employer shall conduct drug and alcohol tests on each covered employee operating the mass transit vehicle at the time of the accident.”

43

Post-Accident Testing

TrainingWho1. You, as the program manager, should be

familiar with all aspects of the Federal Requirements

2. Road Supervisors, as the primary on-scene decision makers

3. Other supervisors/dispatchers/managers

44

Post-Accident Testing Continued

Post-Accident Testing Thresholds1. The event must be “associated with

the operation of a vehicle”2. The event must have resulted in one

or more of the following conditions:

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Post-Accident Testing Continued

FATALITY

• Always Test• All

Operators• Other SS

Emps

INJURY• Treatment

Away from Scene

• Best Available Info

• Other SS Emps

DISABLING DAMAGE

• Any Vehicle• Best

Available Info

• Other SS Emps

• *Removed from service

* Applies to fixed-rail vehicles only! 46

Post-Accident Testing Continued

“Best Available Info”You’re not psychic (probably)“At the Scene” means… “at the scene”

(not: later…)

nikscott.com

47

Post-Accident Testing Continued

SO:If you document: “they’re ok now,” then…

they’re ok nowIf you document: “he had nothing to do with

it,” then… he had nothing to do with it

FTA Will Back You UpOne of the most common audit findings

is:

Post-Accident Over-Testing48

Post-Accident Testing Continued

Who to test after: A fatality,

each surviving covered employee operating the mass transit vehicle at the time of the accident, as well as

any other covered employee whose performance could have contributed to the accident, as determined by the employer using the best information available at the time of the decision

49

Post-Accident Testing Continued

Who to test after: An accident not involving the loss of human

life,each covered employee operating the mass

transit vehicle… unless the employer determines, using the best information available at the time of the decision, that the employee’s performance can be completely discounted

The employer shall also drug and alcohol test any other covered employee whose performance could have contributed to the accident

50

Post-Accident Testing - Discounting

A note on Discounting:Auditors find that inability to discount is

frequently used in-and-of itself as a threshold (i.e., a reason to test)

Supervisors also commonly discount in report narrative, then check “can’t discount” on a PA decision form

A helpful way to think through non-fatal accidents is to invert the process hierarchy:

51

Post-Accident Testing - Discounting

Non-Fatal Event

Discount Employee

Threshold Not Applicable

NO TEST, or

Non-FTA Test

Can’t Discount Employee

Threshold Met: Injury/Dis-D

Yes

FTA Test

No

NO TEST, or

Non-FTA Test

52

Post-Accident Testing Continued

More on Thresholds: Injured parties must receive medical attention away

from the scene of the accident Assistance on-the-scene from EMS does not count

Disabling damage can occur to the transit vehicle or to a privately-owned vehicle

Disabling damage (§655.4) does not include: Damage that can be remedied temporarily at the

scene Tire disablement without other damage Headlamp or tail light damage Damage to turn signals, horn, mirrors or windshield

wipers53

Post-Accident Testing Continued

Key Time-frames in Post-Accident Testing• Alcohol Testing:

Should be conducted within two (2) hours of accident If not, you must document reason for delay

If more than eight (8) hours pass, you must cease attempts to conduct test and update documentation

• Drug Testing:Must be conducted within 32 hours of accident

Medical Treatment/Accident Resolution comes first

!

54

Post-Accident Testing Continued

Putting it together: Use forms Use FTA’s cards

(http://transit- safety.fta.dot.gov/publications)

Results from other State, Local, or Federal authorities (if you were not able to get a test done)

Back to service? Some systems return their employees to

service right away, some wait until a test result comes back…

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Break

15 Minutes2Mar. 2010

M. Redington

New DAPM Seminar

56

Reasonable Suspicion Testing

§655.43(a): “An employer shall conduct a drug and/or alcohol test when the employer has reasonable suspicion to believe that the covered employee has used a prohibited drug and/or engaged in alcohol misuse.”

57

Reasonable Suspicion Testing

Only a trained supervisor may make a reasonable suspicion determination

Only one (1) supervisor is requiredYou can require that two or more are present,

but the initiating supervisor must make “final call”

Training must meet the requirements of §655.43 and §655.14(b)(2)60 minutes on observable signs of drug use60 minutes on observable signs of alcohol

use It’s up to you to decide who is a “supervisor”

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Reasonable Suspicion Testing Cont.

Reasonable Suspicion Testing must be based on “specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the covered employee (§655.43(b)).”

No anonymous tips No “gut feelings” An accident is not a symptom

(it may trigger an interview)59

Reasonable Suspicion Testing Cont.

Common observations include:Bloodshot, glassy, or dilated eyesSlurred or unusually mumbled/stuttered

speechUnusual or erratic gaitUnusually combative or garrulous

The Portland Mercury 60

Reasonable Suspicion Testing Cont.

Reasonable suspicion alcohol testing may only be performed if the observation is made: “during, just preceding, or just after the

period of the workday that the covered employee is required to be in compliance with this part (§655.43(c)).”

61

Reasonable Suspicion Testing Cont.

Key Time-frame in Reasonable Suspicion Testing

• Alcohol Testing:Should be conducted within two (2) hours of

accidentIf not, you must document reason for delayIf more than eight (8) hours pass, you must

cease attempts to conduct test and update documentation

62

Reasonable Suspicion Testing Cont.

Documentation relating to reasonable suspicion determinations must be maintained for two (2) years (§655.71(c)).

Use forms! Remember to maintain documentation

relating to reasonable suspicion training as well

63

Reasonable Suspicion Testing Cont.

Back to service? Some systems return their employees to service right away, some wait until a test result comes back…

64

Return-to-Duty Testing

§655.46: “Where a covered employee refuses to submit to a test, has a verified positive drug test result, and/or has a confirmed alcohol test result of 0.04 or greater, the employer, before returning the employee to duty to perform a safety-sensitive function, shall follow the procedures outlined in 49 CFR Part 40 [Subpart O].”

65

Return-to-Duty Testing

Part 40, Subpart O outlines the duties of the Substance Abuse Professional (SAP) and the return-to-duty and follow-up testing processes.

Dr. Katz, ©1995-1999 Comedy Central

66

Return-to-Duty Testing The return-to-duty cycle is comprised

of three main parts:

Referral, Initial SAP Evaluation & Recommendatio

n

Follow-up Evaluation &

Recommendation

Return-to-Duty Test w/

Negative Result

67

Return-to-Duty Testing continued

Referral – after a DOT violation, you refer the employee to a qualified SAP

The SAP must meet the requirements of §40.281: (a) Credentials (Social Worker, Counselor, Psych,

etc.) (b) Knowledge of Part 40, and experience in the

diagnosis and treatment of related disorders (c) Qualification training (a test) pursuant to this

Part (d) Continuing education (12 CEUs per 3 years)SAPs are NOT “certified” by DOT!

68

Return-to-Duty Testing continued

Initial Evaluation and Recommendation:

SAP interviews the employee and recommends a course of education and/or treatment

SAP must always recommend some kind of education and/or treatment

Neither you nor the employee may seek a “2nd opinion”

You must receive and maintain a copy of this report

!

69

Return-to-Duty Testing continued

Follow-up Evaluation and Recommendation: SAP interviews employee after

education/treatment has begunYou must receive and maintain a copy of this

reportSAP decides to release for return-to-duty testOnly the employer may decide “fitness for

duty”The employee can not return to safety-sensitive

duty until you are in receipt of RTD negative(s)

70

Follow-up Testing

§655.47: “An employer shall conduct follow-up testing of each employee who returns to duty, as specified in 49 CFR Part 40, subpart O.”

§40.309(a): “As the employer, you must carry out the SAP's follow-up testing requirements. You may not allow the employee to continue to perform safety-sensitive functions unless follow-up testing is conducted as directed by the SAP.”

71

Follow-up Testing continued

Substance Abuse Professional determines the number and frequency of follow-up tests

SAP must require at least 6 tests in the first yearSAP may not prescribe “at least 6 tests” -

the number must be fixedTests will be drug, alcohol, or bothTesting may only continue for 60 months (5

years)72

NEW REGULATION

ALL Return-to-Duty and Follow-Up MUST be conducted as directly observed

73

Follow-up Testing continued

SAP may front-load or taper the frequencyFor example: 1 test per month for the first 6 months, then

1 test every other month for an additional 12 months

1 test every other month for the first 12 months, then 1 test per month for 12 months

SAP may review and modify the follow-up testing plan, as necessary

74

Follow-up Testing continued

SAP is the sole determiner of the number and frequency of follow-up tests, DAPM must actually schedule the testsLike random testing: unannounced and

unpredictableYou may not substitute other tests for these

testsYou may not go above and beyond the SAP’s

plan SAP’s follow-up testing plan “follows” the

employee to any other DOT-reg’d employer

75

More on Your Policy

§655.12: “An anti-drug use and alcohol misuse program shall include the following: (a) A statement describing the employer’s policy on prohibited drug use and alcohol misuse in the workplace, including the consequences associated with prohibited drug use and alcohol misuse…”

76

More on Your Policy

Your policy must: Be adopted by the local governing board or

entity Identify you, the DAPM, by name or position Include specific prohibitions, and the

consequences of violating those prohibitions Offset clearly any elements that are

included under local authority Must list each refusal condition defined by

Part 4077

Policy – Refusal Conditions

Failure To:Appear at all, or in a timely manner*Remain until the testing process is complete**Provide a sample**Provide a full sample w/o medical reasonUndergo a medical evaluationCooperate w/ any part of the processPermit monitoring/observationTake a second test, as orderedSign step 2 of the Alcohol Testing Form

The submission of a verified adulterated/substituted test*Not a refusal for pre-employment testing

**Not a refusal for pre-employment testing, provided testing has not yet begun

78

Policy – Refusal Conditions Cont.

On August 25, 2008, the following refusals were added (§40.191(a)(9-10)):The possession or wearing of a prosthetic or other

device that could be used to interfere with the collection process

Failure to follow an observer’s instructions to raise/lower clothing and underpants, and to turn around to permit the observer to ascertain the presence/absence of interfering paraphernalia

Admission to the collector/MRO of adulteration or substitution

79

Local Policy Decisions

Decisions you must make locally: “2nd Chance” Policy Negative-Dilute Policy

A second negative-dilute is always negative

You must treat all employees the sameYou may have different policies for

different test types

80

Local Policy Decisions

Pre-employment Alcohol Testing If you do this, you must do it for all SS

applicants/employees. Random Testing Rate

For 2009:o25% or more must be tested for drug useo10% or more must be tested for alcohol

misuse

81

Local Policy Decisions

Which groups of employees are safety-sensitiveDispatchers?Volunteers?Security?Supervisors?Management?

82

RECORDS MANAGEMENT

Pre-EmploymentRandomPost-AccidentReasonable SuspicionRTD/Follow-upTraining RecordsVendor Certs

§655.71(a): “General requirement. An employer shall maintain records of its anti-drug and alcohol misuse program as provided in this section. The records shall be maintained in a secure location with controlled access.”

83

Pre-Employment

Previous Employer (Background) Checks Pre-employment Negative Date of Safety-sensitive Service 90-day Safety-sensitive Window

84

Background Checks

Make the request per §40.25 A request form can be found at:

www.dot.gov/ost/dapc/documents.html You may verbally ask if they’ve failed/refused

a regulated pre-employment test (§40.25j)… but it’s better to document it

Employee may not continue to perform safety-sensitive functions for more than 30 days without documentation of efforts to obtain this info

85

Background Checks continued

As the employer from whom this information is requested, you must, “after reviewing the employee's specific, written consent, immediately release the requested information to the employer making the inquiry.” (§40.25(h))Information you obtained from a previous

employer shall be included with the information you forward to the requesting employer

Records related to this request must be maintained for three years (§40.333(a)(2))

86

Negative Result

You may not use the employee in safety-sensitive service until you are in receipt of a verified negativeNon-safety-sensitive training, orientation,

etc. is fineA canceled test must be made upYou must maintain this negative result for

at least one yearMost choose to maintain this through emp’s

period of service

87

Service Periods

If:more than 90 days pass after your receipt of a

verified negative pre-employment result, and the applicant/employee is not yet in the

random testing pool, then Another pre-employment negative must be

received prior to service (never a return-to-duty!)

For records-analysis purposes, it is recommended to keep track of the date an employee/applicant enters into safety-sensitive service (as opposed to a payroll “hire” date!

88

Questions

Open Q&A for: Pre-employment Testing

89

Random Testing

Rosters, Pools, & Selection Lists Your Testing Rate Immediacy The Deterrent Spread Test Results Self-auditing

90

The Selection Process

Employees in selection roster (or “pool”) must match the categories covered in your policy

Consistent system for updating your rosterUse a consistent source for updatesEither make your updates instantly (e.g., upon

hire/term) or make updates prior to each and every draw

If a TPA performs your draws, make sure you update their list before the draw

Selections must be scientifically valid

91

The Selection Process continued

Remember! If employee is out of service for 90+ days, and is

out of your random testing pool during that period:

You must be in receipt of a verified negative pre-employment test prior to their return to service Again, not a Return-to-Duty test!

Yes, you can leave an employee in the pool, even if they’re not working… If that employee is selected for testing, and they do

not return to service during the current selection period (month, quarter, etc.), simply record the reason the test was not performed, and move on

92

Your Testing Rate The 2009 FTA testing rates are as follows:

Drug Testing: 25% | Alcohol Testing: 10%Updated rates for all industries can be found at

http://www.dot.gov/ost/dapc/rates.htmlJoint FTA/FMCSA Pools must test at higher rate

You may test above 25% and 10% These are the minimum testing rates A note on your policy: You must change and

disseminate only if you specifically note the Fed rate as 50%

!

93

Your Testing Rate continued

§655.45(b):

§655.45(c)(1):

“… Each year, the Administrator will publish in the Federal Register the minimum annual percentage rates for random drug and alcohol testing of covered employees. ”

“When the minimum annual percentage rate for random drug testing is 50 percent, the Administrator may lower this rate to 25 percent of all covered employees if the Administrator determines that the data received under the reporting requirements of section 655.72 of subpart H for the two preceding consecutive calendar years indicate that the reported positive rate is less than 1.0 percent.”

94

Your Testing Rate continued

The testing rate reflects a percentage of the number of employees in your pool, not a percentage of the individuals in your pool. So:

Some employees may get tested more than once,

Some employees may not get tested at all

95

Immediacy & The Notification Process

§655.45(h) states:

Furthermore:

“Each employer shall require that each covered employee who is notified of selection for random drug or random alcohol testing proceed to the test site immediately.”

“If the employee is performing a safety-sensitive function at the time of the notification, the employer shall instead ensure that the employee ceases to perform the safety-sensitive function and proceeds to the testing site immediately.”

96

Immediacy & The Notification Process

You/supervisors must be cognizant of your local policy for immediacy If you escort employees, this is of course less

of an issue A notification form does all the work for

you!It tells the employee why they’re being tested

(It verifies the date and time of notificationIt verifies the date and time of the employee’s

arrival to the testing site97

The Deterrent Spread of Testing

§655.45(g) states:

So, what do random spreads look like?

“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.”

98

Year-Spread - Good

99

Year-Spread – Not so Good

Aug-99

Nov-99

Feb-00

May-00

Aug-00

Nov-00

0 5 10 15 20

Da

te o

f C

oll

ecti

on

Cumulative Random Tests Examined

Chart 1: Random Tests Not Reasonably Spread Throughout The Calendar Year

100

Year-Spread – Bad!

0 5 10 15 20 25Jan-00

Apr-00

Jul-00

Sep-00

Dec-00

Chart 1: Random Testing Not Reasonably Spread Across All Calendar Days: No Testing Early in Year,

Catch-up Testing at End of Year

Cumulative Random Tests Examined

Co

llec

tio

n D

ate

101

The Deterrent Spread

Spread testing throughout days & hours of ServiceFTA stressed this in a ‘98 interpretation:

What do week/hour spreads look like?

“A grantee's drug and alcohol program manager must schedule random testing for any time a safety-sensitive function is being performed. In addition, random testing must occur throughout the period when safety-sensitive functions are being performed. Employees performing safety-sensitive functions after normal business hours or on the weekends remain subject to random testing. The fact that random testing during "off hours" may be an administrative inconvenience is not an acceptable reason not to test.” (Casper ‘98)

102

Week-Spread - Good

103

Week-Spread – Not So Good

1

2

3

4

5

6

7

0 5 10 15 20 25 30 35

We

ekd

ay o

f T

est:

1 =

Mo

n 7 =

Su

n

Cumulative Random Tests Examined

Chart 2: Random Testing Is Not Reasonably Spread Across All Service Days (No Testing on Weekends)

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Week-Spread – Bad!

1

2

3

4

5

0 1 2 3 4 5 6 7 8

We

ekd

ay o

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est:

1 =

Mo

nd

ay 5 =

Fri

da

y

Cumulative Random Tests Examined

Chart 2: Random Testing Is Not Reasonably Spread Across All Service Days

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Hour-Spread - Good

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Hour-Spread – Not Good

0 2 4 6 8 10 12 14 16 18 206 AM

8 AM

10 AM

12 PM

2 PM

4 PM

6 PM

8 PM

Chart 3: Random Testing Not Reasonably Spread Across All Service Hours

Cumulative Random Tests Examined

Tim

e o

f th

e T

est

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The Deterrent Spread

Remember:The spread is proportional to serviceAlcohol Testing may only be performed

Just before safety-sensitive dutyDuring safety-sensitive dutyJust after safety-sensitive dutyDrug testing may be performed at any time

If only one employee works on Sundays, and that employee is not selected for testing, then it’s fine to not test on Sunday during that period

Track your spreads!

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Random Testing Results Make sure results are coming in a timely

fashionDon’t assume “no news is good news”Develop a results-tracking system

Maintain negative results for at least 1 yearAll positive results must be maintained for 5

years Random testing selection lists must be

maintained (securely) for at least 2 years

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Random Testing – Self Audit

Three questions to ask yourself:1. Who was sent for testing?

• When selected?• What safety-sensitive function?• Selected (and tested) for drugs, alc, or both?

2. When did they go for testing?• During the period in which they were

selected?• At an optimally deterrent time?• Immediately upon notification?

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Random Testing – Self Audit cont.

3. Is the test complete?• Did you receive your copy of the CCF/ATF?• Did you receive a result in a timely fashion?• Did you take action, if necessary?• Did you record and file the complete testing

event? During an audit, we would look for:

o A selection listo A notification formo A CCF/ATFo A result

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Questions

Open Q&A for: Random Testing

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Lunch

113

Post-Accident Testing

Accident Reports Decision-Making Documentation CCFs/ATFs Results

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Accident Reports

The Reporting ChainStreet supervisors?Drivers only?You?

Date & Time of Accident Disposition of Individuals

FatalitiesInjuries requiring medical treatment away

from the scene

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Accident Reports continued

Disposition of VehiclesAny vehicle receives disabling damage

(i.e., gets towed) Event narrative While you might not maintain accident

reports yourself, make sure you have access

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Decision-making Documentation

Use a form, you’ll be very glad! Guide the decision-maker:

Threshold(s) metOther employeesDiscountingTiming

Time of Accident, Time of Alcohol Test, Time of Drug Test

Delay-related notes This documentation must be maintained

for 2 years117

Post-Accident Tests/Results

Check the CCF & ATF when they come inAlcohol test should be first!

Test Results:Did they come in a timely fashion?Action taken, as necessary? If you were unable to complete a test, were

you able to obtain a result from another local, State, or Federal authority? (§655.44(f))

Did you record and file a complete testing event?

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Questions

Open Q&A for: Post-Accident Testing

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Reasonable Suspicion

Who makes the call Contemporaneous, Articulable Observations Alcohol Testing, and Time Frames

120

Who Makes the Call

Trained supervisors onlyOne hour of training on the signs and

symptoms of drug use, and one hour of training on the signs and symptoms of alcohol misuse

Only one supervisor is required, though you may seek additional presence

Keep training curricula, sign-in sheets, certsAt least two years

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Observations & The Interview

Test can only take place after an interview in which a trained supervisor documents:“specific, contemporaneous, articulable

observations concerning the appearance, behavior, speech, or body odors of the covered employee.” (§655.43(b))

Anonymous/Phone tips are not reasons to test, but anything can trigger an interview

Observation must be made just before, during, or just after safety-sensitive duty

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Alcohol Testing, and Time Frames

Testing must be performed as soon as the decision to test is made

Reasonable Suspicion Alcohol Testing:2hrs, document8hrs, cease attempts, update

documentationAlcohol testing before drug testing, if

applicable

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Questions

Open Q&A for: Reasonable Suspicion Testing

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Return-to-Duty/Follow-up

Event Narrative & Chronology Return-to-Duty Testing Follow-up Testing

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Event Narrative & Chronology

Records related to a positive or refusal should clearly detail circumstances, actions, and outcomesInitial testing eventImmediate ActionPolicy and ConsequencesSAP Referral

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Narrative & Chronology

Initial testing event• Reason for the test• Notification dates/times• Related documents• CCFs/ATFs• Test Results• MRO Correspondence

Immediate Action• Action Taken (e.g., Removal from Duty)• Internal Correspondence

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Narrative & Chronology

Policy and Consequences• Terminated• Second Chance

A good time to check that you have a policy receipt

SAP Referral• Record of the referral• You must make this referral even if you

have a zero-tolerance policy!

!

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Narrative & Chronology

SAP Reports & Documents Make sure you’re always getting these

three items from the SAP:1. Initial Evaluation w/ Treatment/Education

Recommendation2. Follow-up Evaluation, with SAP’s disposition3. Follow-up Testing Plan (employee can not

see!) You must maintain these reports and

associated documents for five (5) years (§40.333(iv))

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The Return-to-Duty Process

The SAP will tell you in the follow-up disposition report if they feel that the employee is ready to take a return-to-duty test

A Fitness-for-Duty determination must be made locally – SAP can not make this call for you

The SAP will decide weather the RTD test is for drugs, alcohol, or both – not up to you

You must be in receipt of a verified negative test before employee returns to service

!

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Follow-up Testing

Must be conducted per SAP’s plan Must be spread out, unpredictable, and

immediate Employee remains in the random testing pool A random test can not be a substitute for a

follow-up test, nor can any other test be a substitute for a follow-up test.

If you hire an employee who has not completed their SAP’s plan, you must see it through

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Questions

Open Q&A for: Positive Tests Return-to-Duty & Follow-up Testing

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Training

Employee Training

Supervisor Training

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Employee Training

60 min. on the effects and consequences of prohibited drug use (all ss emps)

60 min. on the indicators of drug use & 60 minutes on the indicators of alcohol misuse (supervisors)

Training only needs to take place onceMany employers do frequent refresher training

Documentation must be maintained for 2 years

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Vendor Certifications

§40.15(b) states: “As an employer, you are responsible for ensuring that the service agents you use meet the qualifications set forth in this part (e.g., §40.121 for MROs). You may require service agents to show you documentation that they meet the requirements of this part (e.g., documentation of MRO qualifications required by §40.121(e)).”

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Vendor Certifications

The following materials are commonly maintained in support of this Part:MRO certifications/credentialsSAP certifications/credentialsUrine Collector certificationsBreath Alcohol Technician certificationsNHTSA Device compliance noticesRandom number generation – compliance

documentation

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OV

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SIG

HT

ContractorsThird-party AdministratorsOther VendorsInternal Audits

§40.15(c) states: “You remain responsible for compliance with all applicable requirements of this part and other DOT drug and alcohol testing regulations, even when you use a service agent. If you violate this part or other DOT drug and alcohol testing regulations because a service agent has not provided services as our rules require, a DOT agency can subject you to sanctions.”

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Contractor Oversight

§655.81 states:“A grantee shall ensure that the recipients of funds under 49 U.S.C. 5307, 5309, 5311 or 23 U.S.C. 103(e)(4) comply with this part.”

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Contractor Oversight

Contractors who perform safety-sensitive functions must meet all requirements of Parts 655 & 40

They must have:Compliant policiesClearly identified categories of covered

employeesReadily apparent pre-employment processesAll applicable training & certifications Info for a qualified SAPMIS Compliance

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Contractor Applicability

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Contractor Oversight - Testing

Contractors must perform compliant testing: Random Testing

Adequately SpreadMinimum Testing Rates

You can absorb a contractor’s ss emps into your pool

Post-Accident TestingMust meet FTA testing thresholds, time

requirements Return-to-Duty/Follow-up Testing

Compliant, Spread, Documentation in Place141

Third-party Administrators

TPAs work for you – ask them lots of questions!

Be aware of the functions they may be performing for you:Are they doing your random pulls?Are they maintaining records?Are they securing vendor qualifications?Are they reporting results?

Consistently and in a timely fashion?Do they assist in MIS assembly?

!

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Third-party Administrators cont.

If you’re in a consortium, is your TPA:Submitting blinds, if applicable? (2000+ emps

in pool)Testing at the appropriate minimum rate?

TPA Prohibitions:May not stand in for DER (you!)May not transmit results from lab to MROMay not transmit alcohol pos from BAT to DER

Remember, you are responsible for your TPAs

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Vendor Oversight

Be aware of each vendor’s role, and monitor their compliance as best you canMROs are regulated by Part 40, Subpart G

(§40.121-§40.169)SAPs are regulated by Part 40, Subpart O

(§40.281-§40.313)Collection Sites are regulated by the bulk of

Part 40Check CCFs and ATFs as soon as they come

in!144

Vendor Oversight – Collections

The Traveling Public

US Congress

US DOT

FTA

You

Coll/BAT

145

Internal Audits

You can audit your own system, your contractors, or your vendors – you’re responsible for all of them

The interviews used by FTA auditors to determine compliance are available for download at http://transit-safety.fta.dot.gov/Safety/DATesting/Audit

If you find problems, require remediation

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Questions

Open Q&A for: Contractor & Vendor Oversight

147

Break

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TH

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MA

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Due DateWebsiteUsageHow-toRetention

§655.72(a) states:“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.”

This is (DA)MIS

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MIS Reporting - Basics

Reporting to the D&A MIS system is required annually, by March 15th

Submit all information accurately and in a timely fashion (§655.72(c))

Online reporting is quick and easy:http://damis.dot.govContact the Volpe Center for assistance:

617.494.6336 // fta.damis@dot.gov

!

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MIS Reporting – DOT’s Usage

FTA Uses MIS Reporting Data to:Recognize trends in use and abuseObjectively determine and analyze the

effectiveness of the testing programDemonstrate industry compliance to DOT &

CongressDetermine future random testing ratesSchedule D&A compliance audits

Note: A low positive rate might be a reason for an audit just as much as a high positive rate – people are… human!

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MIS Reporting – How To

If you’re a pass-through (MPR, State, etc.)Fill out your MIS forms with zerosMake sure your contractors/subs get their info in

If you’re a grantee or contractor/sub-recipientCalculate number of employees

To calculate the total number of covered employees, add the total number of covered employees eligible for testing during each random testing selection period for the year and divide that total by the number of random testing periods. Note: no company will need to factor the average number of employees more often than once per month.

Enter number of results in appropriate column If you have a TPA and/or are in a Consortium

Be sure to include the TPA’s name on your MIS

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MIS Reporting – How To, cont.

If you’re regulated by multiple DOT agencies:1. Submit separate MIS reports, one to each

agency2. Do not double-report

Submit each SS Emp where he performs the most work

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MIS Reporting – How To, cont.

Safety Sensitive Emps

FTA

FTA MIS

FMCSA

FMCSA MIS

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MIS Reporting - Retention

MIS Reports must be maintained for five (5) years

Remember that if you’re in a consortium, you may locally test below the FTA minimums… don’t worry!

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Questions

Open Q&A for: MIS Reporting

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BES

T P

RA

CTIC

ES

Policies Forms Logs Pre-employment Random Post-Accident Reasonable-Suspicion RTD/FU

These practices and procedures might help you to more easily manage your testing program

157

Policies

Use a model policy

Make sure it’s locally appropriate

Keep it up to date (the regs change and grow!)

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Forms

•Previous Employer Requests•Notification & Result Tracking

Pre-employment

•Notification & Result Tracking•Deterrent Spread ComplianceRandom•Decision-making Process•Post-accident Time-frame Compliance Post-accident

•Condition Summary, Decision Process•Time-frame Compliance

Reasonable Suspicion

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Logs

Basic logs can help you keep constant, accurate info about your compliance status

Use a basic spreadsheet to collect pertinent info

Add charts, links, macros… go nuts! Be sure to keep sensitive data secure

!160

Pre-employment Testing

Keep pre-employment negatives beyond FTA’s retention requirement

Keep them as long as you employ the individual

Record date of safety-sensitive duty In addition to date of hire

40.25 Log your good-faith efforts

161

Random Testing

Systematic Pool Maintenance To spread tests, track your progress

It’s easier than it soundsNot as many tests as you think need to be

off-hours Early/Late Alcohol Testing

!

162

Random Testing – Full Circle

POOL

SELECT

NOTIFY

TEST

RESULT

FILE

163

Post-Accident Testing

Awareness of the Regs, Consistent TrainingDispatchersEmployeesSupervisorsManagement

Good, guiding forms Review and learn from mistakes

164

Reasonable Suspicion Testing

Awareness of the Regs, Consistent Training

Complete Event PackageExtensive documentationAll the factsPolicy awarenessAppropriate action

165

RTD/Follow-up Testing

•Know the Facts•Know the Case-specific Requirements

Case Awareness

•SAP•MRO

Communication

•Up-to-date•Tailored to each plan

Follow-up Log/Schedule

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Oversight Internal

Self-auditRobust trainingConsistent communication

ContractorsAuditPeriodic compliance (beyond MIS)Training assistance

VendorsAuditPeriodic compliance certificationContinuous product analysis

167

Questions

Open Q&A for: The Role of the DAPM

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CO

NTA

CTS

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OU

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ES

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Contacts Jerry Powers, FTA D&A Program Manager

(617) 494-2395 Gerald.Powers@dot.gov

Mike Redington, RITA/Volpe Center (617) 494-2197 Michael.Redington@dot.gov

Eve Rutyna, RITA/Volpe Center (617) 494-3447 Eve.Rutyna@dot.gov

FTA Drug and Alcohol Hotline (617) 494-6336 Fta.damis@dot.gov

For questions regarding an audit, contact the audit team leader

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Resources FTA Safety & Security:

http://transit-safety.fta.dot.gov FTA D&A MIS Reporting:

http://transit-safety.fta.dot.gov/Safety/DAMIS.asp

DOT Office of Drug & Alcohol Policy & Compliance: http://www.dot.gov/ost/dapc

FTA Drug & Alcohol Forum: http://transit-safety.fta.dot.gov/Safety/BBS/

default.asp 171

Thank you

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