More Changes in the Works for DOT SAPs

By Tamara Cagney

There have been many changes in U.S. Department of Transportation (DOT) drug and alcohol testing regulations during 2018 and 2019, with still more to come in 2020. With that in mind, let’s take a look at regulations that have already changed, new requirements that are in the works, and possible changes to testing procedures in the near future.

Changes That Have Already Occurred
It is very important when you are delivering services as a DOT Substance Abuse Professional (SAP) to keep up to date with DOT changes and proposed changes. To help SAPs remain current, they are now required to subscribe to the Office of Drug & Alcohol Policy and Compliance (ODAPC) list-serve at https://www.transportation.gov/odapc/ListServe_Notices. 
Consider signing up for the FTA newsletter in addition to the ODAPC list serve to keep up to date on DOT SAP developments. The FTA newsletter can be found at https://www.transit.dot.gov/regulations-and-guidance/safety/drug-alcohol-regulation-updates-newsletters

Unauthorized use of DOT-branded items (such as logos or emblems) on an SAP’s website, publications, etc., could be a basis for the DOT to initiate a Public Interest Exclusion proceeding.

In response to the opioid epidemic in 2018 the DOT added four commonly abused opioids: hydrocodone, hydromorphone, oxymorphone, and oxycodone. Some common names for these semi-synthetic opioids include OxyContin®, Percodan®, Percocet®, Vicodin®, Lortab®, Norco®, Dilaudid®, and Exalgo®.

The term “opiates”, which was previously used in the DOT regulations refers to naturally occurring opiates such as opium, morphine and codeine, made directly from poppy plants. An “opioid” is a substance that is synthetic or partly synthetic. This means the active ingredients are created chemically.  DOT accompanied the addition of these new drugs with the direction to use the more inclusive term “opioids” rather than “opiates”. 

Other changes included:
* The DOT added a new section reiterating that, in the DOT testing program, only urine specimens can be collected and need to be analyzed at Health and Human Services (HHS) certified laboratories.
* Medical Review Officers (MROs) now have the authority to order additional testing to obtain more information on positive tests for amphetamines and for THC without consulting the DOT.
* The DOT added language further emphasizing the existing DOT prohibition on the use of DNA testing on DOT drug-testing specimens.
* The final rule moved the list of Substance Abuse Professional certification organizations to ODAPC’s website.
* Outdated compliance dates were removed and links were updated.
Readers can view the final rule on ODAPC’s website www.transportation.gov/odapc/frpubs.

Testing Rates
2019 also brought an increase in random testing rates for the Federal Transit Administration (FTA). Employers were previously able to administer random tests equal to 25% of their safety-sensitive workers. When 1% of random test samples are positive for any of the DOT agencies the random testing rate is automatically increased.

As a result, FTA rates increased from testing 25% of employees back up to 50% when the positive rate across the transit industry rose above 1%. It is anticipated that Federal Motor Carrier Safety Administration (FMCSA) rates may also return to 50% in 2020 due to the addition of opioids to testing panels.  

Cannabidiols (CBDs)
In December 2018, President Donald J. Trump signed into law the Agriculture Improvement Act of 2018, commonly known as the “2018 Farm Bill”. This includes legislation allowing hemp cultivation and the transfer of hemp-derived products across state lines. 

The legislation defines hemp as a cannabis plant that contains no more than 0.3 percent of tetrahydrocannabinol (THC), the chemical compound in cannabis associated with psychoactive effects. With the passage of this legislation, hemp-derived products, including cannabidiol (CBD), have become widely available.

DOT policy has not been affected by the passage of the Agriculture Improvement Act of 2018, and all products derived from hemp or marijuana are still prohibited. While currently deemed legal in some states, all hemp and CBD products are strictly prohibited for use by DOT regulated drivers.

Commercially-available hemp products, including CBD, have not been inspected by the FDA and therefore have not been proven to diagnose, treat, prevent, or cure any illness. Some of these products do not list all ingredients, making it impossible to know definitively how much CBD, THC, or other synthetic cannabinoids they may contain. 

Use, which is defined as oral ingestion, intravenous use, smoking/vaporization or any other method through which hemp-derived products may enter the body, could expose the user to THC. It is possible to test positive for THC on a urinalysis by using a CBD or hemp product. It can be impossible to determine where a CBD or hemp product was manufactured and what level of THC it may contain.

Even trace amounts of THC can accumulate in the body and be detected in a urinalysis screening. This means that more safety-sensitive workers who think they are using products that do not contain any THC are testing positive and are jeopardizing their jobs if not their professions.

Requirements in the Works: The Clearinghouse
The FMCSA is establishing the Commercial Driver’s License (CDL) Drug and Alcohol Clearinghouse. This new database will contain information pertaining to violations of DOT-controlled substances and alcohol testing program for holders of CDLs.

FMCSA says the rule is intended to make sure drivers who have tested positive or refused a test have completed the DOT’s SAP return-to-duty process before driving commercially again, and to make sure employers are meeting their drug and alcohol testing responsibilities.

Employers will be required to query the Clearinghouse for current and prospective employees’ drug and alcohol violations before permitting those employees to operate a commercial motor vehicle. Employers will be required to annually question the Clearinghouse for each driver they employ. State Driver Licensing Agencies will also be required to consult the Clearinghouse whenever a CDL is issued, renewed, transferred, or upgraded.

SAPs will be required to register for the Clearinghouse and enter data regarding assessment and compliance. They will be able to start registering sometime in fall 2019. Employers or employees will now be required to enter the SAP’s name in the Clearinghouse at the beginning of the process to allow SAPs to enter the required data. This will mean SAPs will need to change the first steps of their assessment process to make certain their name is entered. 

Records of drug and alcohol program violations will remain in the Clearinghouse for five years, or until the driver has completed the return-to-duty process, whichever is later. For more information on the Clearinghouse, visit https://clearinghouse.fmcsa.dot.gov/.

Possible Future Changes
For the past several years DOT testing regulations have been “harmonized” to match the Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA) language and regulations. This means it is important to keep an eye on developments in SAMHSA. 

Currently SAMHSA is completing a final oral fluid drug testing rule that we could see published to the Federal Register in early 2020. SAMSHA is also working on a hair testing rule. DOT will need to publish their own rule-making documents if it follows suit.

SAMSHA is also considering adding fentanyl to the drug testing panel. The US Navy has already added fentanyl and norfentanyl to their testing panel.

New Jersey has introduced a state bill to test drivers for methadone. Although methadone is a DOT disqualifying medication, it is not currently tested for in the DOT testing panel. HR. 2285 would require the Department of Health and Human Services to add methadone to the Mandatory Guidelines for Federal Workplace Drug Testing programs. It would also require DOT to include methadone in its drug testing.

In other developing issues Tennessee’s Workers Compensation Act now requires MROs to reject any prescription that was issued more than six months before the drug test. The Army also has a 6-month cutoff for prescriptions to be considered a legitimate reason for a positive test. DOT has not yet issued similar guidance.

New research from Johns Hopkins found that those that vaped cannabis reached higher and faster blood THC concentrations. Under current DOT cutoff levels of 50ng/ml screening and 15 ng/ml confirmation those that vaped had more positive urine tests with higher concentrations for longer periods of time.

Summary
Remember that part of your role as a DOT SAP is to keep abreast of changes and proposed rulemaking.  Feel free to comment whenever DOT is seeking input. Feedback from SAPs is highly valued by DOT.

Dr. Tamara Cagney is the immediate past president of EAPA. She has provided Employee Assistance Program (EAP) services for over 40 years in both the public and private sectors, in unionized and non-unionized settings. She is currently a distinguished member of the staff at Sandia National Laboratories where she provides internal EAP services. She also provides clinical consultation to the Northern California Teamsters’ Assistance Program. 

Tamara is the chief EAPA trainer for EAPA’s two-day trainings for DOT substance abuse professionals (SAPs) focused on assessment, level of care, and follow-up testing determinations and return-to-work issues for DOT-regulated employees. For more information, contact Tamara at tcagney@sandia.gov.