Challenges and Solutions In 1988-1989 it was believed Employers would manage all aspects of testing in-house Contract directly with a laboratory and Medical Review Officer for services Since that time until 2001 the majority of Employer’s programs were outsourced Revisions to 49 CFR Part 40 were necessary to include the roles of services providers and define the role of the Designated Employer Representative (DER) including use of service providers Operate the random testing programs for employers The C/TPA Can manage both DOT and NonDOT *Random pools. ◦ Pools must be separate (cannot combine or integrate Non-DOT personnel into DOT pool names) ◦ Random testing may be limited by State laws and/or Union; collective bargaining agreement. May assist with other types of testing, i.e. pre-employment, etc. May contract laboratories, collection sites or conduct testing May combine employees from more than one employer or one transportation industry in a random pool May assist employers in ensuring follow-up testing is conducted in accordance with the plan established by the SAP 40.25 Previous two year’s test results ◦ A signed release must be provided by the employee ◦ Information about DOT testing only FMCSA requires safety history as well as drug and alcohol violations ◦ MRO and C/TPA cannot provide information to new employer even though they have information in their database that the employee has a violoation Service Agents may receive and maintain all records concerning DOT drug and alcohol testing programs(negative and positive, refusals), ATF and CCFs, random lists, random selection lists, copies of notices to employers of selected employees) on behalf of the employer. If the employer requests all records the SA’s hold for the employer, the transfer is to immediately take place. If the SA plans to go out of business or the organization is being bought or merged with another company, the SA must notify all employers the SA services and explain the situation. Same confidentiality regulations as employers with respect to the use and release of information to third parties. Slight difference with PHMSA: Whoop There it Is: ◦ A third party agent of PHMSA Operators requires the MRO Copy 2 of the result when performing a contractor monitoring “spot check”. ◦ Allowed or Not Allowed? PHMSA states the Pipeline Operator remains responsible for ensuring that the requirements of Part 199 are complied with for any contractors performing covered tasks for the Operator They can use a third party to gather data with regards to drug testing, education, and training required by part 199: The contractor is required to allow access to property and records by the Operator Therefore the third party auditor is acting on behalf of the Operator for gathering the data. ALLOWED? Must not require an employee to sign a consent, release, waiver of liability, or indemnification agreement with respect to any part of the drug or alcohol testing process covered by part 40. Can’t be the intermediary for: ◦ drug test results from the laboratory to the MRO ◦ alcohol test results of 0.02 or higher from the STT or BAT to DER ◦ Individual SAP reports to the actual employer except for an owner-operator or other self-employed individual Can’t make decisions to test employee for reasonable suspicion, post-accident, return-to-duty or followup unless it is for an owner-operator or other selfemployed individual You can provide advice to the DER Must not make refusal to test determinations. This is the responsibility of the DERs only; ◦ The C/TPA can make the refusal to test if they schedule the random for an owner-operator and they don’t appear for the random test. The MRO is required to make the refusal determination for adulterated or substituted samples. Must not act as the DER. Whoop there it is! Part 40 defines a DER as: ◦ An individual identified by the employer as able to receive communications and test results from service agents and who is authorized to take immediate actions to remove employees from safety-sensitive duties and to make required decisions in the testing and evaluation processes. The individual must be an employee of the company. Service agents cannot serve as DERs. * Exception in some cases for Owner-Operators (FMCSA) and only in some capacities. §40.3; §40.15(d) 09/01 QUESTION: If a C/TPA is hired as an “independent safety consultant” that executes all aspects of the employer’s safety and drug and alcohol testing programs, can the C/TPA act as a DER? ANSWER: 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. C/TPAs cannot remove employees from safety-sensitive functions. Whoop there it is. A SA cannot impose conditions or requirements on employers that DOT regulations do not authorize. ◦ Example in Part 40: a C/TPA serving employers in the pipeline or motor carrier industry, you must not require employers to have provisions in their DOT plans that PHMSA or FMCSA regulations do not require. You cannot delay test results because of payment dispute or other reasons. ◦ Lab must not delay transmitting documentation to a MRO or C/TPA ◦ MRO or SAP who interview an employee can’t delay sending the result to the employer ◦ Collector who performs a DOT test must send drug specimen and CCF to the lab ◦ BAT must send the alcohol to the employer or C/TPA A C/TPA can prepare the MIS report for the DOT company but the certifying official of the DOT company must certify the report is correct, date they verified the report and provide the email address of the certifying official. If the company wants to provide the C/TPA with their DAMIS username and password, the C/TPA can input the information as long as the hard copy has the information provided in the above bullet point TRUE STORIES THAT MAKE YOU GO HUH???