Some major parts of the puzzle still unclear

By Lee Brown

The Commercial Driver’s License Drug & Alcohol Clearinghouse rule was formally proposed in February of this year following at least 16 years of industry discussions and negotiations. The new federal regulation will establish a database of CDL holders who have failed or refused to take drug or alcohol tests or were convicted of driving under the influence, plus other related information.

I had actually sat on a California legislated and funded effort (AB 2597) CHP managed task force in 1998, which recommended this Clearinghouse concept. We referred to it as a drug program and employment history status and positives information clearinghouse with controlled access by the drivers.

Now almost 20-years later, the implementation of the program (likely mid to late-2016) is evolving and many important industry questions need to be answered. The comment period was actually extended from April 21 to May 21 (30-days), in response to a 60-day extension request by Owner-Operator Independent Drivers Association (OOIDA). In a press release I read, the OOIDA says it is still reviewing the request, but the association broadly states its current stance is that “only positive test results should be documented,” implying nothing else.

I’ve also read that a group of six, mainly from DC area based transportation associations, have joined together to ask for changes in the regulation and for the agency to issue a Supplemental Notice of Proposed Rulemaking (SNPRM). The list includes the American Trucking Associations, the National Private Truck Council, National Tank Truck Carriers, Truckload Carriers Association, the American Bus Association and the United Motorcoach Association. They have established a loose coalition (of large trucking and bus interests) along with the Commercial Vehicle Safety Alliance (CVSA), a national commercial enforcement group representing all 50-states.

The CVSA said the proposal would be improved by requiring more frequent clearinghouse queries than once a year and by having the clearinghouse send drug testing notice of violations to state licensing bureaus. We support an exemption for owner-operators having to query the database and a mandate to send notices of violations to state licensing bureaus.

The group also claims Federal Motor Carrier Safety Administration (FMCSA) didn’t make its proposed drug and alcohol clearinghouse rule as comprehensive as it should have, and it’s requesting that the agency issue at least one amendment to the rule adding a requirement that carriers – report all observations of misuse or admissions of misuse by employees to the clearinghouse. The group opposes the change of identifier from Social Security number to CDL number. We happen to support the CDL only requirement and stepped-up criteria and enforcement of CDL issuing requirements.

In a comment posted on the proposed rule May 13, the group of seven also asked FMCSA to issue a “Supplemental Notice of Proposed Rulemaking (SNPRM) for the rule.” CCTA/AADT will be submitting our final comments on the 20th of May. Ironically, the draft comments we already have were also asking for the SNPRM.

Third party administrators (TPAs) and Motor Carriers that manage their own programs will be required to submit positive related information to the database and will be required to query the database when hiring a new driver. Employers will also be required to query the database annually for current drivers.

There were also numerous comments from the group questioning why carriers did not have to report observational abuses and admissions of alcohol and substance abuse. Both “longstanding loopholes” in current regulations.

We would like the agency to expand the rule’s coverage from heavy-duty trucks (26,000-plus pounds) down to medium duty commercial vehicles rated at 10,000 pounds. We believe that covered drivers who fail a test will move to driving vehicles under the testing weight threshold. The American Association of Medical Review Officers said the clearinghouse requirements should apply to all safety-sensitive employees, not just drivers. We are seeing this requirement in the towing industry and we do support the expansion of testing to all those who deal with the public.

READ OUR FMCSA PUBLIC COMMENTS

• CCTA Comments to Proposed Amendments to the Statewide Truck and Bus Rule. (04/21/14)
• CCTA Follow-Up on Proposed Amendments. (04/24/14)

AADT – A View of the Clearinghouse From the TPA’s Perspective

As proposed today, the regulation states that, “Specifically, C/TPAs are required by regulation to perform employer functions (e.g., for self-employed drivers) and would be required to report positive alcohol tests, drug or alcohol test refusals, negative return-to-duty tests, and successful completion of all follow-up tests. Employers may contract with C/TPAs to perform reporting functions, but employers, in addition to their C/TPAs, remain responsible for meeting the reporting requirements.” This is consistent with existing regulations but through the clearinghouse positive reporting, it will create an enormous amount of new or at least perceived liability or risk that may or may not be insurable under today’s existing Professional Liability coverage.

These are some additional challenges we will be discussing and including in our comments to DOT:

1. Eliminating Collection Site Errors – many of these errors could be eliminated with an electronic Custody & Control Form (CCF). Without requiring this to be standard issue within the clearinghouse scheme, it will be extremely costly on many levels.
2. We believe that no collection site should be able to refuse a collection. All too often, the lack of a paper CCF or other minor procedural issues leads to “turn-aways” or refusals to collect, additionally frustrating the entire drug testing program and process.
3. There appears to be a glaring absence of reporting responsibilities associated with collection sites. That must be changed, as they are ground zero for ‘driver walk-outs,’ refusals, adulterant activity and administration of BAT testing.
4. The DOT must create a reporting process with standardized forms and data, a reasonable reporting time period and a reporting hierarchy structured in a manner that does not overwhelm the intent and economics of the proposed regulations with redundant and overlapping reporting requirements.
5. A clear, efficient and minimally evasive “refusal to submit to a test” determination process for positives by C/TPAs and employers to the clearinghouse.
6. An effective deterrent for driver’s with drug or alcohol problems from job hopping, and owner-operators from C/TPA hopping until they find one that tests “infrequently.”
7. A standardized driver release form, that once approved by the driver for a particular test shall be sent to all parties electronically within the employer contracted drug testing supply chain.
8. Driver/Employee’s need to be compelled to disclose to employers (and C/TPAs for owner-operators) that they have been cited and convicted for driving a commercial vehicle under the influence of drugs and/or alcohol.
9. The Clearinghouse must create and staff a mandatory arbitration or dispute resolution process for any positive or refusal designation which is challenged. Without such an option, employers and C/TPAs face the expense and time involved in litigation, as well as the specter of unreasonable jury awards.

We completely support the intent and spirit of the proposed clearinghouse regulations but we are very concerned about the implied redundant “employer responsibility” to report. Virtually everyone in the supply-chain or process (with the exception of the collection site) is required to report positive tests and behaviors or actions that are considered a positive test.

Clearly we do not want to see any positive driver not immediately reported into the clearinghouse, but we are concerned that ALL entities within the contracted supply-chain should be required to report the same positive information.

We also believe that the regulation should contemplate a hierarchy of responsibilities starting with the MRO (for all drug testing), the BAT and C/TPA or employer (for alcohol) and ending with the employer and C/TPA for owner-operators for refusals. The regulations require the C/TPA to act as the employer for owner-operators.