§ 40.403

(a) As a service agent, if the Department issues a PIE concerning you, you must notify each of your DOT-regulated employer clients, in writing, about the issuance, scope, duration, and effect of the PIE. You may meet this requirement by sending a copy of the Director`s PIE decision or by a separate notice.You must send this notice to each client within three business days of receiving from the Department the notice provided for in §40.399(b).
(b) As part of the notice you send under paragraph (a) of this section, you must offer to transfer immediately all records pertaining to the employer and its employees to the employer or to any other service agent the employer designates.You must carry out this transfer as soon as the employer requests it.

§40.3; §40.15(d)

• • Service agents are prohibited from acting as DERs under any circumstances.

• • The fact that an organization that is called an “independent safety consultant” acts as a consultant to an employer for purposes of executing a drug and alcohol testing or safety program does not make it any less a service agent. It is still prohibited from acting as a DER.

§40.3

• • The employer (e.g., the owner of a small business) may act personally as the DER.

• • The employer may also appoint an employee or employees to play this role.

• • The DER must exercise his or her authority to remove an employee from safety sensitive functions either directly or by causing the employee to be removed from performing these functions (e.g., by having the employee`s supervisor effect the actual removal).

• • The employer may not delegate the DER role to a service agent. Only the employer or an actual employee of the employer may perform this function.

• • The Department will not authorize a “DER-for-hire” concept (e.g., a person under contract by several companies to serve as their DER), either.

1. If you are a C/TPA, you may, acting as an intermediary, transmit the information in the following sections of this part to the DER for an employer, if the employer chooses to have you do so.These are the only items that you are permitted to transmit to the employer as an intermediary.The use of C/TPA intermediaries is prohibited in all other cases, such as transmission of laboratory drug test results to MROs, the transmission of medical information from MROs to employers, the transmission of SAP reports to employers, the transmission of positive alcohol test results, and the transmission of medical information from MROs to employers.

2. In every case, you must ensure that, in transmitting the information, you meet all requirements (e.g., concerning confidentiality and timing) that would apply if the party originating the information (e.g., an MRO or collector) sent the information directly to the employer.For example, if you transmit MROs` drug testing results to DERs, you must transmit each drug test result to the DER in compliance with the requirements for MROs set forth in §40.167.

Drug testing information

§40.25: Previous two years` test results
§40.35: Notice to collectors of contact information for DER
§40.61(a):Notification to DER that an employee is a “no show” for a drug test
§40.63(e):Notification to DER of a collection under direct observation
§40.65(b)(6) and (7) and (c)(2) and (3): Notification to DER of a refusal to
provide a specimen or an insufficient specimen
§40.73(a)(9):Transmission of CCF copies to DER (However, MRO copy of CCF must be sent by collector directly to the MRO, not through the C/TPA.)
§40.111(a):Transmission of laboratory statistical report to employer
§40.127(f): Report of test results to DER
§40.127(g), 40.129(d), 40.159(a)(4)(ii); 40.161(b): Reports to DER that test is cancelled
§40.129 (d) Report of test results to DER
§40.129(g)(1):Report to DER of confirmed positive test in stand-down situation
§§40.149(b):Report to DER of changed test result
§40.155(a):Report to DER of dilute specimen
§40.167(b) and (c):Reports of test results to DER
§40.187(a) – (e) Reports to DER concerning the reconfirmation of tests
§40.191(d):Notice to DER concerning refusals to test
§40.193(b)(3): Notification to DER of refusal in shy bladder situation
§40.193(b)(4): Notification to DER of insufficient specimen
§40.193(b)(5):Transmission of CCF copies to DER (not to MRO)
§40.199:Report to DER of cancelled test and direction to DER for additional collection
§40.201:Report to DER of cancelled test

Alcohol testing information

§40.215: Notice to BATs and STTs of contact information for DER
§40.241(b)(1): Notification to DER that an employee is a “no show” for an alcohol test
§40.247(a)(2):Transmission of alcohol screening test results only when the test result is less than 0.02
§40.255(a)(4):Transmission of alcohol confirmation test results only when the test result is less than 0.02
§40.263(a)(3)and 263(b)(3): Notification of insufficient saliva and failure to provide sufficient amount of breath

[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41955, Aug. 9, 2001; 73 FR 35975, June 25, 2008]

1. Experience: Minimum requirements are for three years of full-time supervised experience or 6,000 hours of supervised experience as an alcoholism and/or drug abuse counselor. The supervision must be provided by a licensed or certified practitioner. Supervised experience is important if the individual is to be considered a professional in the field of alcohol and drug abuse evaluation and counseling.

2. Education: There exists a requirement of 270 contact hours of education and training in alcoholism and/or drug abuse or related training. These hours can take the form of formal education, in-service training, and professional development courses. Part of any professional counselor’s development is participation in formal and non-formal education opportunities within the field.

3. Continuing Education: The certified counselor must receive at least 40–60 hours of continuing education units (CEU) during each two year period. These CEUs are important to the counselor’s keeping abreast of changes and improvements in the field.

4. Testing: A passing score on a national test is a requirement. The test must accurately measure the application of the knowledge, skills, and abilities possessed by the counselor. The test establishes a national standard that must be met to practice.

5. Testing Validity: The certification examination must be reviewed by an independent authority for validity (examination reliability and relationship to the knowledge, skills, and abilities required by the counseling field). The reliability of the exam is paramount if counselor attributes are to be accurately measured. The examination passing score point must be placed at an appropriate minimal level score as gauged by statistically reliable methodology.

6. Measurable Knowledge Base: The certification process must be based upon measurable knowledge possessed by the applicant and verified through collateral data and testing. That level of knowledge must be of sufficient quantity to ensure a high quality of SAP evaluation and referral services.

7. Measurable Skills Base: The certification process must be based upon measurable skills possessed by the applicant and verified through collateral data and testing. That level of skills must be of sufficient quality to ensure a high quality of SAP evaluation and referral services.

8. Quality Assurance Plan: The certification agency must ensure that a means exists to determine that applicant records are verified as being true by the certification staff. This is an important check to ensure that true information is being accepted by the certifying agency.

9. Code of Ethics: Certified counselors must pledge to adhere to an ethical standard for practice. It must be understood that code violations could result in de-certification. These standards are vital in maintaining the integrity of practitioners. High ethical standards are required to ensure quality of client care and confidentiality of client information as well as to guard against inappropriate referral practices.

10. Re-certification Program: Certification is not just a one-time event. It is a continuing privilege with continuing requirements. Among these are continuing education, continuing state certification, and concomitant adherence to the code of ethics. Re-certification serves as a protector of client interests by removing poor performers from the certified practice.

11. Fifty State Coverage: Certification must be available to qualified counselors in all 50 states and, therefore, the test must be available to qualified applicants in all 50 states. Because many companies are multi-state operators, consistency in SAP evaluation quality and opportunities is paramount. The test need not be given in all 50 states but should be accessible to candidates from all states.

12. National Commission for Certifying Agencies (NCCA) Accreditation: Having NCCA accreditation is a means of demonstrating to the Department of Transportation that your certification has been reviewed by a panel of impartial experts that have determined that your examination(s) has met stringent and appropriate testing standards.

§ 40.26

As an employer, when you are required to report MIS data to a DOT agency, you must use the U.S. Department of Transportation Drug and Alcohol Testing MIS Data Collection Form to report that data. You must use the form and instructions referenced at Appendix H to part 40. You must submit the MIS report in accordance with rule requirements (e.g., dates for submission; selection of companies required to submit, and method of reporting) established by the DOT agency regulating your operation.

§ 40.413

(a) If you are a service agent, DOT sends notices to you, including correction notices, notices of proposed exclusion, decision notices, and other notices, in any of the ways mentioned in paragraph (b) or (c) of this section.
(b) DOT may send a notice to you, your identified counsel, your agent for service of process, or any of your partners, officers, directors, owners, or joint ventures to the last known street address, fax number, or e-mail address.DOT deems the notice to have been received by you if sent to any of these persons.
(c) DOT considers notices to be received by you –
(1) When delivered, if DOT mails the notice to the last known street address, or five days after we send it if the letter is undeliverable;
(2) When sent, if DOT sends the notice by fax or five days after we send it if the fax is undeliverable; or
(3) When delivered, if DOT sends the notice by e-mail or five days after DOT sends it if the e-mail is undeliverable.

§ 40.411

(a) Any person may bring concerns about waste, fraud, or abuse on the part of a service agent to the attention of the DOT Office of Inspector General.
(b)In appropriate cases, the Office of Inspector General may pursue criminal or civil remedies against a service agent.
(c) The Office of Inspector General may provide factual information to other DOT officials for use in a PIE proceeding.

§ 40.409

(a) As an employer, you are deemed to have notice of the issuance of a PIE when it appears on the List mentioned in §40.401(a) or the notice of the PIE appears in the Federal Register as provided in §40.401(d). You should check this List to ensure that any service agents you are using or planning to use are not subject to a PIE.
(b) As an employer who is using a service agent concerning whom a PIE is issued, you must stop using the services of the service agent no later than 90 days after the Department has published the decision in the Federal Register or posted it on its web site. You may apply to the ODAPC Director for an extension of 30 days if you demonstrate that you cannot find a substitute service agent within 90 days.
(c) Except during the period provided in paragraph (b) of this section, you must not, as an employer, use the services of a service agent that are covered by a PIE that the Director has issued under this subpart. If you do so, you are in violation of the Department`s regulations and subject to applicable DOT agency sanctions (e.g., civil penalties, withholding of Federal financial assistance).
(d) You also must not obtain drug or alcohol testing services through a contractor or affiliate of the service agent to whom the PIE applies.
Example to Paragraph (d). Service Agent R was subject to a PIE with respect to SAP services. As an employer, not only must you not use R`s own SAP services, but you also must not use SAP services you arrange through R, such as services provided by a subcontractor or affiliate of R or a person or organization that receives financial gain from its relationship with R.
(e) This section`s prohibition on using the services of a service agent concerning which the Director has issued a PIE applies to employers in all industries subject to DOT drug and alcohol testing regulations.
Example to Paragraph (e).The initiating official for a PIE was the FAA drug and alcohol program manager, and the conduct forming the basis of the PIE pertained to the aviation industry. As a motor carrier, transit authority, pipeline, railroad, or maritime employer, you are also prohibited from using the services of the service agent involved in connection with the DOT drug and alcohol testing program.
(f) The issuance of a PIE does not result in the cancellation of drug or alcohol tests conducted using the service agent involved before the issuance of the Director`s decision or up to 90 days following its publication in the Federal Register or posting on the Department`s web site, unless otherwise specified in the Director`s PIE decision or the Director grants an extension as provided in paragraph (b) of this section.
Example to Paragraph (f).The Department issues a PIE concerning Service Agent N on September 1.All tests conducted using N`s services before September 1, and through November 30, are valid for all purposes under DOT drug and alcohol testing regulations, assuming they meet all other regulatory requirements.

§ 40.407

(a) Yes, as a service agent concerning whom the Department has issued a PIE, you may request that the Director terminate a PIE or reduce its duration and/or scope.This process is limited to the issues of duration and scope.It is not an appeal or reconsideration of the decision to issue the PIE.
(b) Your request must be in writing and supported with documentation.
(c) You must wait at least nine months from the date on which the Director issued the PIE to make this request.
(d) The initiating official who was the proponent of the PIE may provide information and arguments concerning your request to the Director.
(e) If the Director verifies that the sources of your noncompliance have been eliminated and that all drug or alcohol testing-related services you would provide to DOT-regulated employers will be consistent with the requirements of this part, the Director may issue a notice terminating or reducing the PIE.

§ 40.405

The Director`s decision is a final administrative action of the Department. Like all final administrative actions of Federal agencies, the Director`s decision is subject to judicial review under the Administrative Procedure Act(5 U.S.C. 551 et. seq).

§40.25

• • No. Certified mail is not required.

• • The employer can make this inquiry through a variety of means, including mail (certified or not), fax, telephone, or email.

• • However, the employer must provide the former employer the signed release or a faxed or scanned copy of the employee`s signed release.

• • The former employer must respond via a written response (e.g., fax, letter, email) that ensures confidentiality.

• • The employer should document an attempt or attempts to contact and contacts with previous employers, no matter how they were made, so that it can show a good faith effort to obtain the required information.

§ 40.401

(a) The Department maintains a document called the “List of Excluded Drug and Alcohol Service Agents.” This document may be found on the Department’s web site (http://www.transportation.gov/odapc) . You may also request a copy of the document from ODAPC.

(b) When the Director issues a PIE, he or she adds to the List the name and address of the service agent, and any other persons or organizations, to whom the PIE applies and information about the scope and duration of the PIE.

(c) When a service agent ceases to be subject to a PIE, the Director removes this information from the List.

(d) The Department also publishes a Federal Register notice to inform the public on any occasion on which a service agent is added to or taken off the List.

§ 40.399

If you are a service agent involved in a PIE proceeding, the Director provides you written notice as soon as he or she makes a PIE decision.The notice includes the following elements:
(a) If the decision is not to issue a PIE, a statement of the reasons for the decision, including findings of fact with respect to any material factual issues that were in dispute.
(b) If the decision is to issue a PIE —
(1) A reference to the NOPE;
(2) A statement of the reasons for the decision, including findings of fact with respect to any material factual issues that were in dispute;
(3) A statement of the scope of the PIE; and
(4) A statement of the duration of the PIE.

§ 40.397

The Director makes his or her decision within 60 days of the date when the record of a PIE proceeding is complete (including any meeting with the Director and any additional fact-finding that is necessary).The Director may extend this period for good cause for additional periods of up to 30 days.

At any time before the Director`s decision, you and the initiating official can, with the Director`s concurrence, settle a PIE proceeding.

§ 40.393

(a) In the NOPE (see §40.375(b)(5)), the initiating official proposes the duration of the PIE.The duration of the PIE is one of the elements of the proceeding that the service agent may contest (see §40.381(b)) and about which the Director makes a decision (see §40.387(b)(4)).
(b) In deciding upon the duration of the PIE, the Director considers the seriousness of the conduct on which the PIE is based and the continued need to protect employers and employees from the service agent`s noncompliance. The Director considers factors such as those listed in §40.389 in making this decision.
(c) The duration of a PIE will be between one and five years, unless the Director reduces its duration under §40.407.

§ 40.391

                (a) The scope of a PIE is the Department’s determination about the divisions, organizational elements, types of services, affiliates, and/or individuals (including direct employees of a service agent and its contractors) to which a PIE applies.

(b) If, as a service agent, the Department issues a PIE concerning you, the PIE applies to all your divisions, organizational elements, and types of services that are involved with or affected by the noncompliance that forms the factual basis for issuing the PIE.

(c) In the NOPE (see §40.375(b)(4)), the initiating official sets forth his or her recommendation for the scope of the PIE. The proposed scope of the PIE is one of the elements of the proceeding that the service agent may contest (see §40.381(b)) and about which the Director makes a decision (see §40.387(b)(3)).

(d) In recommending and deciding the scope of the PIE, the initiating official and Director, respectively, must take into account the provisions of paragraphs (e) through (j) of this section.

(e) The pervasiveness of the noncompliance within a service agent’s organization (see §40.389(d)) is an important consideration in determining the scope of a PIE. The appropriate scope of a PIE grows broader as the pervasiveness of the noncompliance increases.

(f) The application of a PIE is not limited to the specific location or employer at which the conduct that forms the factual basis for issuing the PIE was discovered.

(g) A PIE applies to your affiliates, if the affiliate is involved with or affected by the conduct that forms the factual basis for issuing the PIE.

(h) A PIE applies to individuals who are officers, employees, directors, shareholders, partners, or other individuals associated with your organization in the following circumstances:

(1) Conduct forming any part of the factual basis of the PIE occurred in connection with the individual’s performance of duties by or on behalf of your organization; or

(2) The individual knew of, had reason to know of, approved, or acquiesced in such conduct. The individual’s acceptance of benefits derived from such conduct is evidence of such knowledge, acquiescence, or approval.

(i) If a contractor to your organization is solely responsible for the conduct that forms the factual basis for a PIE, the PIE does not apply to the service agent itself unless the service agent knew or should have known about the conduct and did not take action to correct it.

(j) PIEs do not apply to drug and alcohol testing that DOT does not regulate.

(k) The following examples illustrate how the Department intends the provisions of this section to work:        

Example 1 to §40.391.   Service Agent P provides a variety of drug testing services. P’s SAP services are involved in a serious violation of this Part 40. However, P’s other services fully comply with this part, and P’s overall management did not plan or concur in the noncompliance, which in fact was contrary to P’s articulated standards. Because the noncompliance was isolated in one area of the organization’s activities, and did not pervade the entire organization, the scope of the PIE could be limited to SAP services.                      

Example 2 to §40.391.   Service Agent Q provides a similar variety of services. The conduct forming the factual basis for a PIE concerns collections for a transit authority. As in Example 1, the noncompliance is not pervasive throughout Q’s organization. The PIE would apply to collections at all locations served by Q, not just the particular transit authority or not just in the state in which the transit authority is located.

 Example 3 to §40.391.   Service Agent R provides a similar array of services. One or more of the following problems exists: R’s activities in several areas—collections, MROs, SAPs, protecting the confidentiality of information—are involved in serious noncompliance; DOT determines that R’s management knew or should have known about serious noncompliance in one or more areas, but management did not take timely corrective action; or, in response to an inquiry from DOT personnel, R’s management refuses to provide information about its operations. In each of these three cases, the scope of the PIE would include all aspects of R’s services.

Example 4 to §40.391.   Service Agent W provides only one kind of service (e.g., laboratory or MRO services). The Department issues a PIE concerning these services. Because W only provides this one kind of service, the PIE necessarily applies to all its operations.

Example 5 to §40.391.   Service Agent X, by exercising reasonably prudent oversight of its collection contractor, should have known that the contractor was making numerous “fatal flaws” in tests. Alternatively, X received a correction notice pointing out these problems in its contractor’s collections. In neither case did X take action to correct the problem. X, as well as the contractor, would be subject to a PIE with respect to collections.

Example 6 to §40.391.   Service Agent Y could not reasonably have known that one of its MROs was regularly failing to interview employees before verifying tests positive. When it received a correction notice, Y immediately dismissed the erring MRO. In this case, the MRO would be subject to a PIE but Y would not.

Example 7 to §40.391.   The Department issues a PIE with respect to Service Agent Z. Z provides services for DOT-regulated transportation employers, a Federal agency under the HHS-regulated Federal employee testing program, and various private businesses and public agencies that DOT does not regulate. The PIE applies only to the DOT-regulated transportation employers with respect to their DOT-mandated testing, not to the Federal agency or the other public agencies and private businesses. The PIE does not prevent the non-DOT regulated entities from continuing to use Z’s services.

§ 40.389

This section lists examples of the kind of mitigating and aggravating factors that the Director may consider in determining whether to issue a PIE concerning you, as well as the scope and duration of a PIE.This list is not exhaustive or exclusive.The Director may consider other factors if appropriate in the circumstances of a particular case. The list of examples follows:
(a) The actual or potential harm that results or may result from your noncompliance;
(b) The frequency of incidents and/or duration of the noncompliance;
(c) Whether there is a pattern or prior history of noncompliance;
(d) Whether the noncompliance was pervasive within your organization, including such factors as the following:
(1) Whether and to what extent your organization planned, initiated, or carried out the noncompliance;
(2) The positions held by individuals involved in the noncompliance, and whether your principals tolerated their noncompliance; and
(3) Whether you had effective standards of conduct and control systems (both with respect to your own organization and any contractors or affiliates) at the time the noncompliance occurred;
(e) Whether you have demonstrated an appropriate compliance disposition, including such factors as the following:
(1) Whether you have accepted responsibility for the noncompliance and recognize the seriousness of the conduct that led to the cause for issuance of the PIE;
(2) Whether you have cooperated fully with the Department during the investigation.The Director may consider when the cooperation began and whether you disclosed all pertinent information known to you;
(3) Whether you have fully investigated the circumstances of the noncompliance forming the basis for the PIE and, if so, have made the result of the investigation available to the Director;
(4) Whether you have taken appropriate disciplinary action against the individuals responsible for the activity that constitutes the grounds for issuance of the PIE; and
(5) Whether your organization has taken appropriate corrective actions or remedial measures, including implementing actions to prevent recurrence;
(f) With respect to noncompliance with a DOT agency regulation, the degree to which the noncompliance affects matters common to the DOT drug and alcohol testing program;
(g) Other factors appropriate to the circumstances of the case.

§ 40.387

(a) Following the service agent`s response (see §40.379(b)) or, if no response is received, after 30 days have passed from the date on which the service agent received the NOPE, the Director may take one of the following steps:
(1) In response to a request from the service agent (see §40.379(b)(1)) or on his or her own motion, the Director may dismiss a PIE proceeding if he or she determines that it does not concern serious noncompliance with this part or DOT agency regulations, consistent with the Department`s policy as stated in §40.365.
(i) If the Director dismisses a proposed PIE under this paragraph (a), the action is closed with respect to the noncompliance alleged in the NOPE.
(ii) The Department may initiate a new PIE proceeding against you on the basis of different or subsequent conduct that is in noncompliance with this part or other DOT drug and alcohol testing rules.
(2) If the Director determines that the initiating official`s submission does not have complete information needed for a decision, the Director may remand the matter to the initiating official. The initiating official may resubmit the matter to the Director when the needed information is complete. If the basis for the proposed PIE has changed, the initiating official must send an amended NOPE to the service agent.
(b) The Director makes determinations concerning the following matters in any PIE proceeding that he or she decides on the merits:
(1) Any material facts that are in dispute;
(2) Whether the facts support issuing a PIE;
(3) The scope of any PIE that is issued; and
(4) The duration of any PIE that is issued.

§ 40.385

(a) As the proponent of issuing a PIE, the initiating official bears the burden of proof.
(b) This burden is to demonstrate, by a preponderance of the evidence, that the service agent was in serious noncompliance with the requirements of this part for drug and/or alcohol testing-related services or with the requirements of another DOT agency drug and alcohol testing regulation.

§ 40.383

(a) DOT conducts PIE proceedings in a fair and informal manner. The Director may use flexible procedures to allow you to present matters in opposition. The Director is not required to follow formal rules of evidence or procedure in creating the record of the proceeding.
(b) The Director will consider any information or argument he or she determines to be relevant to the decision on the matter.
(c) You may submit any documentary evidence you want the Director to consider. In addition, if you have arranged an informal meeting with the Director, you may present witnesses and confront any person the initiating official presents as a witness against you.
(d) In cases where there are material factual issues in dispute, the Director or his or her designee may conduct additional fact-finding.
(e) If you have arranged a meeting with the Director, the Director will make a transcribed record of the meeting available to you on your request. You must pay the cost of transcribing and copying the meeting record.

§40.291; §40.293

• • The employer should not administer an RTD test under these circumstances.

• • The employer should refer the employee back to the SAP with direction to prescribe education and/or treatment and conduct a re-evaluation of the employee to determine whether the employee has successfully complied with the SAP`s instructions.

• • If the employer has compounded the problem by having conducted the RTD test and returned the employee to safety-sensitive duties (i.e., only realizes that a mistake has been made some time after the fact), the employer should work with the SAP to “go back and do it right.”

• • This means that the employee should be removed from performance of safety-sensitive functions, referred back to the SAP for an education and/or treatment prescription, and re-evaluated by the SAP for successful compliance. Following the receipt of a successful compliance report from the SAP, the employer would conduct another RTD test before returning the employee to performance of safety-sensitive functions.

• In the DOT drug and alcohol testing program, employers and service agents are not required to obtain written employee authorization to disclose drug and alcohol testing information where disclosing the information is required by 49 CFR Part 40 and other DOT Agency & U.S. Coast Guard (USCG) drug and alcohol testing regulations. 49 CFR Part 40 and DOT Agency & USCG regulations provide for confidentiality of individual test-related information in a variety of other circumstances.

• Even if drug and alcohol testing information is viewed as protected under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) rules, it is not necessary to obtain employee written authorization where DOT requires the use or disclosure of otherwise protected health information under 49 CFR Part 40 or the other DOT Agency & USCG drug and alcohol testing regulations.

• Unless otherwise stipulated by 49 CFR Part 40 or DOT Agency & USCG regulations, use or disclosure of the DOT drug and alcohol testing information without a consent or authorization from the employee is required by the Omnibus Transportation Employees Testing Act of 1991, 49 CFR Part 40, and DOT Agency & USCG drug and alcohol testing regulations.

• Consequently, an employer or service agent in the DOT program may disclose the information without the written authorization from the employee under many circumstances. For example:

— Employers need no written authorizations from employees to conduct DOT tests.

— Collectors need no written authorizations from employees to perform DOT urine collections, to distribute Federal Drug Testing Custody and Control Forms, or to send specimens to laboratories.

— Screening Test Technicians and Breath Alcohol Technicians need no written authorizations from employees to perform DOT saliva or breath alcohol tests (as appropriate), or to report alcohol test results to employers.

— Laboratories need no written authorizations from employees to perform DOT drug and validity testing, or to report test results to Medical Review Officers (MROs).

— MROs need no written authorizations from employees to verify drug test results, to discuss alternative medical explanations with prescribing physicians and issuing pharmacists, to report results to employers, to confer with Substance Abuse Professionals (SAPs) and evaluating physicians, or to report other medical information (see §40.327).

— SAPs need no written authorizations from employees to conduct SAP evaluations, to confer with employers, to confer with MROs, to confer with appropriate education and treatment providers, or to provide SAP reports to employers.

— Consortia/Third Party Administrators need no written authorizations from employees to bill employers for service agent functions that they perform for employers or contract on behalf of employers.

— Evaluating physicians need no written authorizations from employees to report evaluation information and results to MROs or to employers, as appropriate.

— Employers and service agents need no written authorizations from employees to release information to requesting Federal, state, or local safety agencies with regulatory authority over them or employees.

§40.25

• Yes. Employers who are required by and who comply with the FMCSA`s three-year requirement for obtaining and providing employee drug and alcohol testing information are considered to have satisfied the two-year requirement contained in 40.25.
• Likewise, employers who are required by and who comply with the FAA`s five-year requirement for obtaining and providing employee drug and alcohol testing information are considered to have satisfied the two-year requirement contained in 40.25.
• These employers do not need to seek separately the 40.25 information if the employer adheres to the FMCSA and FAA regulations, as appropriate, for obtaining an employee`s prior drug and alcohol testing information.

No. Part 40 specifically requires that previous employers immediately provide the gaining employer with the appropriate drug and alcohol testing information.

No one (i.e., previous employer, service agent [to include C/TPA], employer information / data broker) may withhold this information from the requesting employer pending payment for it.

§40.307

• • No. The regulation (at 40.307(d)(4)) and SAP guidelines state that employers must not impose additional testing requirements that go beyond the SAP`s follow-up testing plan. This includes additional testing requirements under company authority.

• • In addition to follow-up testing and random testing, an employer has other means available to ascertain an employee`s alcohol- and drug-free performance and functions.

    — The employer can choose to monitor the employee`s compliance with the SAP`s recommendations for continuing treatment and/or education as part of a return-to-duty agreement with the employee.

    — The employer can conduct reasonable suspicion testing if the employee exhibits signs and symptoms of drug or alcohol use.

    — The employer can meet regularly with the employee to discuss the employee`s continuing sobriety and drug-free status.

• • The Department is not opposed to an employer discussing his or her desires for having more than the minimum rule requirement (i.e., 6 tests in the first year) for follow-up testing with SAPs they intend to utilize.

§40.193; 40.265

• • The five-day limit for obtaining an examination by a licensed physician refers to business days.

• • Therefore, holidays and weekend days should not be included in the 5-day time frame.

§40.33; §40.121; §40.213; §40.281

• • No. Employers and trainers who provide training for these service agents must not withhold training documentation from them when they have successfully completed the training requirements.

• • If a collector, BAT, STT, MRO, or SAP is not in possession of training documentation, he or she is in violation of Part 40.

• • Therefore, Part 40 does not permit the withholding of such documentation from these service agents.

§40.25

• • No. If the information received previously is still on file with the employer, the employer need not seek to obtain the testing data again.

• • However, the employer must seek information from all other employers for whom the employee performed safety-sensitive duties since the employee last worked for the employer.

§40.25

• • If the applicant admits that he or she had a positive or a refusal to test result on a pre-employment test, the employer is not permitted to use the applicant to perform safety-sensitive duties until and unless the applicant documents successful completion of the return-to-duty process.

• • This Part 40 requirement applies whether or not the pre-employment positive or refusal occurred before, on, or after August 1, 2001.

• • Should no proof exist that the return-to-duty process was successfully complied with by the applicant, a current return-to-duty process must occur before the individual can again perform safety-sensitive functions.

§40.333

• • The obligations of employers and service agents to make records available expeditiously to DOT representatives apply regardless of how the records are maintained.

• • All records must be easily and quickly accessible, legible, and formatted and stored in a well-organized and orderly way.

• • If electronic records do not meet these criteria, then the employer or service agent must convert them to printed documentation in a rapid and readily audible way.

§40.311

• • By “SAP`s own letterhead” we mean the letterhead the SAP uses in his or her daily counseling practice.

• • If the SAP is in private practice, the SAP should use the letterhead of his or her practice.

• • If the SAP works as an employee assistance professional for an organization, the SAP should use the employee assistance program`s letterhead.

• • If the SAP works for a community mental health service, the SAP should use the community mental health service`s letterhead.

• • The Department wants to avoid a SAP network provider requiring the SAP to use the provider`s letterhead rather than that of the SAP.

• • The Department wants to avoid another service agent contracting the SAP`s services to require the contracted SAP to use the service agent`s letterhead.

• • The Department wants to avoid any appearance that anyone changed the SAP`s recommendations or that the SAP`s report failed to go directly from the SAP to the employer.

• • The Department does not want the SAP to use a “fill-in-the-blanks” / “check-the-appropriate-boxes” type of pre-printed form, including any that are issued to the SAP by a SAP network provider, to which the network or SAP would affix the SAP`s letterhead information.

• • The SAP must generate and complete all information on the SAP report.

§ 40.381

(a) As a service agent who wants to contest a proposed PIE, you must present at least the following information to the Director:
(1) Specific facts that contradict the statements contained in the NOPE (see §40.375(b)(2) and (3)).A general denial is insufficient to raise a genuine dispute over facts material to the issuance of a PIE;
(2) Identification of any existing, proposed or prior PIE;and
(3) Identification of your affiliates, if any.
(b) You may provide any information and arguments you wish concerning the proposed issuance, scope and duration of the PIE (see §40.375 (b) (4) and (5).
(c) You may provide any additional relevant information or arguments concerning any of the issues in the matter.

§40.203

• • If the error was the use of a non-DOT form (to include use of the old Federal CCF), the collector or the collector`s supervisor may sign the corrective statement explaining the circumstances of why a non-DOT form was used.

• • If the missing information is the printed name and signature of the collector, neither the collector nor the supervisor may supply the missing information. This is a fatal, uncorrectable flaw.

• • If the CCF contains the printed name of the collector, but the signature is missing, the collector or the collector`s supervisor may attest that that collector performed the collection, but did not sign his or her name.

• • If the employee`s signature is omitted and there is no notation in the “Remarks” line, only the collector can provide the corrective statement. The collector`s supervisor cannot sign the corrective statement.

§40.197

• • • The Department`s rules do not require an employer to hire anyone. That decision is an employer`s.

• • While §40.197(b) authorizes an employer to obtain one additional test following a negative dilute result (in pre-employment or other testing situations), a negative dilute test result is a valid negative test for DOT`s purposes.

• • Because a negative dilute test result is a negative test for DOT program purposes, the employer is authorized to have the applicant begin performing safety-sensitive functions.

• • If the employer declines to hire the applicant in this situation, the employer`s decision is based solely on its own policy. The employer cannot claim that its action is required or authorized by DOT rules.

§40.149; §40.209

• • There could be instances in which an arbitrator makes a decision that purports to cancel a DOT test for reasons that the DOT regulation does not recognize as valid.

• • For example, the arbitrator might make a decision based on disagreement with an MRO`s judgment about a legitimate medical explanation (see §40.149) or on the basis of a procedural error that is not sufficient to cancel a test (see §40.209).

• • Such a test result remains valid under DOT regulations, notwithstanding the arbitrator`s decision. Consequently, as a matter of Federal safety regulation, the employer must not return the employee to the performance of safety-sensitive functions until the employee has completed the return to duty process.

• • The employer may still be bound to implement the personnel policy outcome of the arbitrator`s decision in such a case. This can result in hardship for the employer (e.g., being required to pay an individual at the same time as the Department`s rules prevent the individual from performing the duties of his job).

The following form is the MIS Data Collection form required for use to report calendar year MIS data.

General Issue

• • No. HHS HIPAA rules do not require employers and service agents in the DOT drug and alcohol testing program to obtain written employee authorization to disclose drug and alcohol testing information required by 49 CFR Part 40 and other DOT agency drug and alcohol testing rules.
  • DOT-required drug and alcohol testing information differs significantly from health information covered by HIPAA rules (45 CFR Part 164). The DOT program is concerned only with employees` compliance with DOT safety regulations, and not with preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care or the past, present, or future physical or mental health or condition of an individual.
  • Even if DOT drug and alcohol testing information is viewed as protected health information under Part 164, however, it is not necessary, under §164.512(a), to obtain employee written authorization where Federal Law requires the use or disclosure of otherwise protected health information.
  • Use or disclosure of the DOT drug and alcohol testing information without a consent or authorization from the employee is required by the Omnibus Transportation Employees Testing Act of 1991, 49 CFR Part 40, and DOT agency drug and alcohol testing regulations, unless otherwise stipulated by 49 CFR Part 40.
  • Consequently, 45 CFR §164.512 enables any employer or service agent in the DOT program to disclose the information without the employee`s authorization. For example:
    • • Employers need no employee authorizations to conduct DOT tests.

     

    • • Collectors need no employee authorizations to perform DOT urine collections, to distribute Federal Drug Testing Custody and Control Forms, or to send specimens to laboratories.

     

    • • Screening Test Technicians and Breath Alcohol Technicians need no employee authorizations to perform DOT saliva or breath alcohol tests (as appropriate), or to report test results to employers.

     

    • • Laboratories need no employee authorizations to perform DOT drug and validity testing, or to report test results to Medical Review Officers (MRO).

     

    • • MROs need no employee authorizations to verify drug test results, to discuss alternative medical explanations with prescribing physicians and issuing pharmacists, to report results to employers, to confer with Substance Abuse Professionals (SAP) and evaluating physicians, or to report other medical information (see §40.327).

     

    • • SAPs need no employee authorizations to conduct SAP evaluations, to confer with employers, to confer with MROs, to confer with appropriate education and treatment providers, or to provide SAP reports to employers.

     

    • • Consortia/Third Party Administrators need no employee authorizations to bill employers for service agent functions that they perform for employers or contract on behalf of employers.

     

    • Evaluating Physicians need no employee authorizations to report evaluation information and results to MROs or to employers, as appropriate.

     

  • HHS agrees that there is no conflict between the HIPPA rules and DOT requirements, and indicated so in the preamble to Part 164 [65 Federal Register 82593-94; December 20, 2000].

§40.67; §40.69

• • The immediate supervisor of a particular employee may not act as the collector when that employee is tested, unless no other collector is available and the supervisor is permitted to do so under a DOT operating administration`s drug and alcohol regulation.

• • The immediate supervisor may act as a monitor or observer (if same gender) if there is no alternate method at the collection site to conduct a monitored or observed collection.

• • An employee who is in a safety-sensitive position and subject to the DOT drug testing rules should not be a collector, an observer, or a monitor for co-workers who are in the same testing pool or who work together with that employee on a daily basis.

§40.33

• • These individuals are responsible for maintaining documentation that they currently meet all training requirements (see, for example, §40.33(g)).

• • However, they are not required to keep this documentation on their person.

• • They must be able to produce this documentation within a short, reasonable time of a request by a DOT representative or an employer.

• • Nothing precludes an organization (e.g., a collection site) from also maintaining a file of the training records of its personnel, if it wishes to do so.

§40.33

• • Yes. A collector may continue to perform DOT collections during this period.

• • After 30 days have elapsed following the notification to the collector of the need to obtain error correction training, the collector is no longer qualified to conduct DOT collections until and unless he or she has successfully completed error correction training.

• • As provided in §40.209(b)(3), collection of a specimen by a collector who has not met training requirements does not result in the cancellation of the test, assuming the collection is otherwise proper. However, use of an unqualified collector can result in enforcement action.

§40.33

• • Yes. If a collector makes a mistake that causes a test to be cancelled, the collector must undergo error correction training (even if the collector has yet to undergo qualification training). There are no exceptions to this requirement.

§40.25

• • As an employer, when you receive an inquiry about a former employee, you must provide all the information in your possession concerning the employee`s DOT drug and alcohol tests that occurred in the two years preceding the inquiry.

• • This includes information you received about an employee from a former employer (e.g., in response to the Federal Motor Carrier Safety Administration`s pre-employment inquiry requirement).

• • It is not a violation of Part 40 or DOT agency rules if you provide, in addition, information about the employee`s DOT drug and alcohol tests obtained from former employers that dates back more than two years ago.

• • If you are an employer regulated by the FAA, this does not impact your requirements under the Pilot Record Act.

§ 40.289

(a) As an employer, you are not required to provide a SAP evaluation or any subsequent recommended education or treatment for an employee who has violated a DOT drug and alcohol regulation.
(b) However, if you offer that employee an opportunity to return to a DOT safety-sensitive duty following a violation, you must, before the employee again performs that duty, ensure that the employee receives an evaluation by a SAP meeting the requirements of §40.281and that the employee successfully complies with the SAP`s evaluation recommendations.
(c) Payment for SAP evaluations and services is left for employers and employees to decide and may be governed by existing management-labor agreements and health care benefits.

§ 40.321

Except as otherwise provided in this subpart, as a service agent or employer participating in the DOT drug or alcohol testing process, you are prohibited from releasing individual test results or medical information about an employee to third parties without the employee`s specific written consent.
(a) A “third party” is any person or organization to whom other subparts of this regulation do not explicitly authorize or require the transmission of information in the course of the drug or alcohol testing process.
(b) “Specific written consent” means a statement signed by the employee that he or she agrees to the release of a particular piece of information to a particular, explicitly identified, person or organization at a particular time. “Blanket releases,” in which an employee agrees to a release of a category of information (e.g., all test results) or to release information to a category of parties (e.g., other employers who are members of a C/TPA, companies to which the employee may apply for employment), are prohibited under this part.

§ 40.313

You can find other information on the role and functions of SAPs in the following sections of this part:
§40.3 – definition.
§40.347 – service agent assistance with SAP-required follow-up testing.
§40.355 – transmission of SAP reports.
§40.329(c) – making SAP reports available to employees on request.
Appendix E to Part 40 – SAP Equivalency Requirements for Certification Organizations.

§ 40.311

(a) 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 §40.355(e)).You may, however, forward the document simultaneously to the DER and to a C/TPA.
(b) As an employer, you must ensure that you receive SAP written reports directly from the SAP performing the evaluation and that no third party or entity changed the SAP`s report in any way.
(c) 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) signed and dated by the SAP, and must contain the following delineated items:
(1) Employee`s name and SSN;
(2) Employer`s name and address;
(3) Reason for the assessment (specific violation of DOT regulations and violation date);
(4) Date(s) of the assessment;
(5) SAP`s education and/or treatment recommendation; and
(6) SAP`s telephone number.
(d) The SAP`s written report concerning a follow-up evaluation that determines the employee has demonstrated successful compliance must be on the SAP`s own letterhead (and not the letterhead of another service agent), signed by the SAP and dated, and must contain the following items:
(1) Employee`s name and SSN;
(2) Employer`s name and address;
(3) Reason for the initial assessment (specific violation of DOT regulations and violation date);
(4) Date(s) of the initial assessment and synopsis of the treatment plan;
(5) Name of practice(s) or service(s) providing the recommended education and/or treatment;
(6) Inclusive dates of employee`s program participation;
(7) Clinical characterization of employee`s program participation;
(8) SAP`s clinical determination as to whether the employee has demonstrated successful compliance;
(9) Follow-up testing plan;
(10) Employee`s continuing care needs with specific treatment, aftercare, and/or support group services recommendations; and
(11) SAP`s telephone number.
(e) The SAP`s written report concerning a follow-up evaluation that determines the employee has not demonstrated successful compliance must be on the SAP`s own letterhead (and not the letterhead of another service agent), signed by the SAP and dated, and must contain the following items:
(1) Employee`s name and SSN;
(2) Employer`s name and address;
(3) Reason for the initial assessment (specific DOT violation and date);
(4) Date(s) of initial assessment and synopsis of treatment plan;
(5) Name of practice(s) or service(s) providing the recommended education and/or treatment;
(6) Inclusive dates of employee`s program participation;
(7) Clinical characterization of employee`s program participation;
(8) Date(s) of the first follow-up evaluation;
(9) Date(s) of any further follow-up evaluation the SAP has scheduled;
(10) SAP`s clinical reasons for determining that the employee has not demonstrated successful compliance; and
(11) SAP`s telephone number.
(f) As a SAP, you must also provide these written reports directly to the employee if the employee has no current employer and to the gaining DOT regulated employer in the event the employee obtains another transportation industry safety-sensitive position.
(g) 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.
(h) As an employer, you must maintain your reports from SAPs

§ 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.
(b) You should schedule follow-up tests on dates of your own choosing, but you must ensure that the tests are unannounced with no discernable pattern as to their timing, and that the employee is given no advance notice.
(c) You 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.
(d) You cannot count a follow-up test that has been cancelled as a completed test. A cancelled follow-up test must be recollected.

§ 40.301

(a) As a SAP, after you have prescribed assistance under §40.293 , you must re-evaluate the employee to determine if the employee has successfully carried out your education and/or treatment recommendations.
(1) This is your way to gauge for the employer the employee`s ability to demonstrate successful compliance with the education and/or treatment plan.
(2) Your evaluation may serve as one of the reasons the employer decides to return the employee to safety-sensitive duty.
(b) As the SAP making the follow-up evaluation determination, you must:
(1) Confer with or obtain appropriate documentation from the appropriate education and/or treatment program professionals where the employee was referred; and
(2) Conduct a face-to-face clinical interview with the employee to determine if the employee demonstrates successful compliance with your initial evaluation recommendations.
(c) (1) If the employee has demonstrated successful compliance, you must provide a written report directly to the DER highlighting your clinical determination that the employee has done so with your initial evaluation recommendation (see §40.311(d)).
(2) You may determine that an employee has successfully demonstrated compliance even though the employee has not yet completed the full regimen of education and/or treatment you recommended or needs additional assistance.For example, if the employee has successfully completed the 30-day in-patient program you prescribed, you may make a “successful compliance” determination even though you conclude that the employee has not yet completed the out-patient counseling you recommended or should continue in an aftercare program.
(d)(1) As the SAP, if you believe, as a result of the follow-up evaluation, that the employee has not demonstrated successful compliance with your recommendations, you must provide written notice directly to the DER (see §40.311(e)). (2) As an employer who receives the SAP`s written notice that the employee has not successfully complied with the SAP`s recommendations, you must not return the employee to the performance of safety-sensitive duties.
(3) As the SAP, you may conduct additional follow-up evaluation(s) if the employer determines that doing so is consistent with the employee`s progress as you have reported it and with the employer`s policy and/or labor-management agreements.
(4) As the employer, following a SAP report that the employee has not demonstrated successful compliance, you may take personnel action consistent with your policy and/or labor-management agreements.