[Federal Register Volume 64, Number 106 (Thursday, June 3, 1999)]
[Proposed Rules]
[Pages 29831-29834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14080]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 40
[OST Docket No. OST-99-5742; Notice 99-4]
RIN 2105-AC78
Drug and Alcohol Testing Procedures
AGENCY: Office of the Secretary, DOT.
ACTION: Advance notice of proposed rulemaking (ANPRM).
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SUMMARY: This advance notice solicits public comments on a proposed
procedure that organizations certifying substance abuse professionals
(SAPs) could use to have members included in the Department of
Transportation's substance abuse professional (SAP) definition. The
Department proposes to require such organizations to obtain a National
Commission for Certifying Agencies (NCCA) accreditation as a
prerequisite for having the DOT review their petitions for inclusion of
their members as SAPs in the Department's drug and alcohol testing
program.
DATES: Comments should be submitted on or before August 2, 1999. Late-
filed comments will be considered to the extent practicable.
ADDRESSES: Written comments should be sent to Docket Clerk, Att: Docket
No. OST-99-5742, Department of Transportation, 400 7th Street, SW.,
Room PL401, Washington DC 20590.
[[Page 29832]]
For the convenience of persons wishing to review the docket, it is
requested that comments be sent in triplicate. Persons wishing their
comments to be acknowledged should enclose a stamped, self-addressed
postcard with their comment. The docket clerk will date stamp the
postcard and return it to the sender. Comments may be reviewed at the
above address from 9:00 a.m. through 5:30 p.m. Monday through Friday.
Commenters may also submit their comments electronically.
Instructions for electronic submission may be found at the following
web address: http://dmses.dot.gov/submit/. The public may also review
docketed comments electronically. The following web address provides
instructions and access to the DOT electronic docket: http://
dms.dot.gov/search/.
FOR FURTHER INFORMATION CONTACT: Jim L. Swart, Policy Advisor, Office
of Drug and Alcohol Policy and Compliance, Room 5405, (202) 366-3784;
400 7th Street, SW., Washington DC 20590.
SUPPLEMENTARY INFORMATION:
Background
The Omnibus Transportation Employees Testing Act of 1991 required
that an opportunity for treatment be made available to covered
employees. To implement this requirement in its alcohol and drug
testing rules issued in February 1994, the Department of Transportation
(DOT) established the role of ``substance abuse professional'' (SAP).
The DOT rules require an employer to advise a covered employee who
engages in conduct prohibited under these rules of the resources
available for evaluation and treatment of substance abuse problems.
Employers wishing to return an employee to safety-sensitive duties
following a rule violation must first ensure that the employee has been
evaluated by a SAP.
The SAP plays a pivotal role in the evaluation, referral, and
treatment process of a safety sensitive employee who has violated the
DOT regulations. The SAP is charged with the responsibility for making
a face-to-face initial assessment and evaluation to determine what
assistance, if any, is needed to address the employee's substance abuse
problem. If assistance is needed, the SAP is responsible for referring
the employee to the appropriate education or treatment program.
The SAP is also charged with conducting a face-to-face follow-up
evaluation to determine if the employee has demonstrated successful
compliance with the initial assessment and treatment recommendations.
In addition, the SAP is responsible for providing the employer with a
follow-up drug and/or alcohol testing plan for the employee. Based on
these responsibilities, a SAP plays a major role within the testing
program in managing the therapeutic decisions when the regulations are
violated.
Individuals who are currently qualified to act as a SAP in the DOT
drug and alcohol testing program are defined in 49 CFR 40.3 as follows:
Substance abuse professional. A licensed physician (Medical
Doctor or Doctor of Osteopathy); or a licensed or certified
psychologist, social worker, or employee assistance professional; or
an addiction counselor (certified by the National Association of
Alcoholism and Drug Abuse Counselors Certification Commission or by
the International Certification Reciprocity Consortium/Alcohol &
Other Drug Abuse). All must have knowledge of and clinical
experience in the diagnosis and treatment of alcohol and controlled
substances-related disorders.
This proposed policy focuses on considerations related to the
certification of addiction counselors to act as a SAP. The National
Association of Alcoholism and Drug Abuse Counselors (NAADAC) was named
in the February 1994 regulations as the only organization that could
certify an addiction counselor to act as a SAP. Subsequent to those
rules being published, the International Certification Reciprocity
Consortium (ICRC) formally requested to have their certified counselors
included in the SAP definition. The review of that petition was
performed by the DOT Office of Drug and Alcohol Policy and Compliance
(ODAPC).
Since a major objective of the certification process in this
program is the protection of the public by ensuring that only competent
professionals are permitted to serve as SAPs, the review was conducted
in considerable depth. It involved numerous interviews with the
principals of ICRC, their technical consultants, and the acquisition of
materials that thoroughly documented their certification process. It
also involved interviews with the principals of NAADAC and their
associated technical professionals. The review process mapped out by
the Department has twelve established evaluation standards that are
provided to all certification agencies seeking inclusion in the SAP
definition. The review includes a detailed assessment of test
development and testing processes and an examination of the data
derived from the application of their certification test over time.
Following this review, the Department added the ICRC certified
counselors to the SAP definition on July 17, 1996. However, the review
and approval process was seen as being overly long and costly.
Subsequent to the inclusion of ICRC counselors into the SAP
definition, other organizations petitioned to have their certified
counselors included. This development, along with the anticipation that
more organizations would petition for inclusion, caused concern that
the broad regulatory oversight function at ODAPC would be disrupted.
The experience involving ICRC as well as the subsequent petitioners has
shown that not only is the process too protracted and costly but that
the ODAPC could not effectively and efficiently examine more than one
petitioning organization at a time. Provisions for the conduct of a
review and approval process in ODAPC were not included in the initial
promulgation of the regulations. Therefore, it was determined that a
more efficient solution to the review process should be sought. We
believe it is desirable that the process should enable the Department
to continue portion of the review process while turning over the
review's more costly, time-consuming, and technical expertise-driven
elements to another entity.
We believe that an effective framework can be found in the
standards used by the National Commission for Certifying Agencies
(NCCA). The NCCA was created in 1989 by the National Organization for
Competency Assurance (NOCA) as a commission to establish national
voluntary standards and recognize compliance with these standards by
agencies certifying individuals in a wide range of professions and
occupations. The NCCA replaced the National Commission for Health
Certifying Agencies (NCHCA), which was established in 1977 to develop
criteria and standards for health certifying agencies.
The federal government played a lead role in bringing the NCHCA
into being as a voluntary national organization that would serve as a
platform for the development of standards of excellence in private
certification. The NCCA accredits certification entities that are
national in scope using standards developed originally by NCHCA in
early 1978 with seed money provided by the U.S. Department of Health
and Human Services under the sponsorship of then-Secretary Joseph
Califano. NCCA standards were subsequently validated through research
conducted by national task forces in 1980, 1981, and 1982. The
standards have been updated through a
[[Page 29833]]
careful review process, and NCCA has been active in accrediting a
variety of certification programs. The NCCA continues the mission and
expands the commission's sphere of influence to include a wider range
of professions and occupations.
The NOCA is a membership organization open to a variety of
organizations that are interested in competency assurance issues.
Membership in NOCA does not require or involve any review of
certification activity. It should also be noted that NOCA membership
does not involve any recognition or a discipline or profession or their
certification arrangements. The NCCA is the accreditation body of NOCA.
A certifying organization can be accredited by NCCA if it demonstrates
compliance with applicable accreditation standards. Only those
organizations that achieve NCCA accreditation recognition are allowed
to display the NOCA logo on their promotional literature.
NCCA standards for accreditations are standards for voluntary
certification organizations. The standards have been developed after
years of research and implementation into the operation of
certification organizations. They are nationally recognized principles
utilized by a variety of certification organizations for certification
programs in diverse professions and occupations. Accreditation by the
Commission indicates that the certification organization has been
evaluated by the Commission and found to meet or exceed all of its
established standards.
NCCA accreditation standards are the only national and voluntary
standards for certification agencies. The organizationally relevant
aspects of the standards are widely respected as the most rigorous and
objective benchmark by which certifying entities can gauge the quality
and defensibility of their activities. The NCCA psychometric standards
are consistent with the requirements set forth by the American
Psychological Association, the American Educational Research
Association, and the National Council on Measurement in Education, as
well as those requirements established by the U.S. Equal Employment
Opportunity Commission.
As a voluntary, non-profit commission, NCCA is made up of elected
and appointed representatives from certifying agencies and other
individuals with expertise pertinent to its activity, including a
public member and two psychometricians. The accreditation process
includes an intensive review of certification entity documents and
examination material (i.e., validation studies, reports, and etc.) used
in the agency's certification activity. Once achieved, accreditation is
maintained through an annual reporting cycle and reapplication every
five years. In addition to its accreditation activity, NCCA has
published documents such as Guidelines for Non-Written Examinations to
inform certifying entities more completely about quality certification.
In addition to the specific standards which all certification
programs must meet in order to be accredited by NCAA, certain
eligibility requirements must be met before a certification program can
apply for review by NCCA. The program must be non-governmental (unless
the certification is for government employees); national in scope;
operated by a not-for-profit agency; and must have administered at
least two national examinations. The Commission document, ``Standards
for Accreditation of National Certification Organizations'' can be
obtained by writing to the following address: National Commission for
Certifying Agencies, 1200 19th Street, NW., Suite 300, Washington DC
20036-2422. This document outlines NCCA certification standards.
All applicants undergo a thorough evaluation of written materials
submitted describing the structure of the agency and the process used
to measure competency. The Commission is interested in many aspects of
the applicant's certification program but it does not evaluate the
examination's content and no on-site visits are scheduled as part of
the review.
The Commission reviews applications for accreditation at any one of
its meetings which are usually held three times during the year. When a
certification agency is accredited by the NCAA, the organization is
placed on an accreditation list and the agency is permitted to include
the NCCA logo on its brochures and printed material.
Organizations seeking SAP accreditation with the Department through
the NCCA mechanism would have to pay certain fees. All organizations
with Commission accreditation must pay an annual accreditation fee of
$3000. The $3000 accreditation fee also includes membership in the
National Organization for Competency Assurance. Prior to seeking
Commission accreditation, all organizations must either pay a $500 non-
refundable application fee or be members of NOCA.
Based on experience and the foregoing information about NCCA, DOT
seeks comments on requiring NCCA certification as a requisite for
addiction counselor certification organizations wishing to have their
certified counselors included in the SAP definition. DOT is proposing
that the NCCA have the role as the accreditation organization because
it has extensive experience in applying the only standards which are
relevant in this circumstance.
Moreover, this proposal is pursued because the NCCA has evolved
from the organization that developed the standards. It will be recalled
that the predecessor organization--NCHCA--was established with help
from the federal government to address circumstances such as this. The
NCCA is presently fulfilling that role and, as a result, is uniquely
qualified to support the Department's process of evaluating certifying
organizations wishing to have their certified counselors included in
the SAP definition.
The Department asks comment on the following regulatory text
language that would implement this proposal.
Certification organizations wishing to have their certified drug
and alcohol addiction counselors included in this part's definition
of substance abuse professional (SAP, (see 49 CFR Sec. 40.3) must
obtain the National Commission for Certifying Agencies (NCCA)
accreditation as a prerequisite for having the DOT review their
petitions for inclusion into the SAP definition.
Because they have completed a stringent DOT review process, we do
not contemplate that the two organizations (i.e., NAADAC and ICRC)
whose certified addiction counselors are presently included in Part 40
would be affected by this requirement. We seek comment on whether this
approach is appropriate or whether the two organizations should have to
go through the NCCA process immediately, or within a few years.
However, those organizations currently being reviewed by ODAPC would be
required under this proposal to obtain NCCA accreditation. Reviews for
those organizations currently in the review process will be placed ``on
hold'' pending their NCCA accreditation.
The Department is currently preparing a comprehensive revision of
49 CFR part 40, its drug and alcohol testing procedures rule. We intend
that the proposed rule to revise all of part 40 will address the
subject matter of this ANPRM. After we review the comments on the
ANPRM, we intend to incorporate the results of our review into the
larger part 40 rulemaking project.
Regulatory Analyses and Notices
This advance notice of proposed rulemaking does not propose a
significant rule for purposes of
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Executive Order 12866 or the Department's regulatory policies and
procedures. In terms of the Regulatory Flexibility Act, our preliminary
conclusion is that the action on which the ANPRM seeks comment would
not have a significant economic impact on a substantial number of small
entities. This is because the entities that the proposal would affect
are nationwide certifying organizations that are not small entities.
The members of these organizations are primarily individuals, rather
than entities. Because the proposal would make ODAPC's consideration of
SAP certification organizations speedier and more efficient, many of
the effects of the proposal would likely be positive. In any event, the
Department requests comments on any small entity impacts the proposal
might have.
There are no Federalism impacts sufficient to warrant a Federalism
assessment. If the Department decides to include this item in the
forthcoming overall part 40 NPRM, it may be viewed as involving an
information collection requirement under the Paperwork Reduction Act
(PRA). If so, consideration of any information collection burdens for
this provision will be included in the PRA documentation for the part
40 NPRM. The authority for this ANPRM is the same as for the part 40
rulemaking in general (i.e., 49 U.S.C. 102, 301, 322, 5331, 20140,
31306, and 45101, et seq.).
List of Subjects in 49 CFR Part 40
Drug testing, alcohol testing, reporting and recordkeeping
requirements, safety, transportation.
Issued this 10th day of May 1999, at Washington, D.C.
Rodney E. Slater,
Secretary of Transportation.
[FR Doc. 99-14080 Filed 6-2-99; 8:45 am]
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