[Federal Register Volume 60, Number 142 (Tuesday, July 25, 1995)]
[Notices]
[Pages 38204-38205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18042]
Federal Register / Vol. 60, No. 142 / Tuesday, July 25, 1995 /
Notices
[[Page 38204]]
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
Workplace Drug and Alcohol Testing Programs
AGENCY: Office of the Secretary, DOT.
ACTION: Notice: Guidance on the Role of Consortia and Third-Party
Administrators in DOT Drug and Alcohol Testing Programs.
-----------------------------------------------------------------------
SUMMARY: The Department of Transportation encourages the provision of
drug and alcohol testing services through consortia and third-party
administrators. The guidance in this notice responds to a number of
questions that have arisen about the proper role of these organizations
in assisting employers to meet the requirements of the Department's
drug and alcohol testing regulations.
FOR FURTHER INFORMATION CONTACT: Albert Alvarez, Director, Office of
Drug Enforcement and Program Compliance 400 7th Street SW., Room 9404A.
202-366-3784; or Robert C. Ashby, Deputy Assistant General Counsel for
Regulation and Enforcement, 400 7th Street SW., Room 10424. 202-366-
9306.
SUPPLEMENTARY INFORMATION: The Department of Transportation's drug and
alcohol testing programs require employers to take a variety of actions
to ensure a transportation workplace free of drug and alcohol misuse.
Consortia and third-party administrators (C/TPAs) can play an important
role in assisting employers to meet these requirements, and the
Department's policy is to encourage their availability to employers. At
the same time, the Department is committed to ensuring that the
confidentiality of the testing process for employees is not
compromised.
The following guidance spells out the Department's views and
interpretations of the proper role of C/TPAs in DOT drug and alcohol
testing programs. It responds to a number of questions that
participants have raised about the place of these organizations. This
is Department-wide guidance, applying to participants in the programs
of all DOT operating administrations involved: the Federal Aviation
Administration (FAA), Federal Railroad Administration (FRA), Federal
Highway Administration (FHWA), Federal Transit Administration (FTA),
United States Coast Guard (USCG), and Research and Special Programs
Administration (RSPA).
General Role and Functions of C/TPAs
Employers are permitted to use C/TPAs to carry out certain
aspects of their drug and alcohol testing programs.
If an employer uses a C/TPA to implement its program, the
employer must ensure that the C/TPA performs its services in accordance
with the applicable rules.
C/TPAs may operate random testing programs for employers
and may facilitate the conduct of other functions (e.g., contracting
with labs or collectors, conducting collections).
C/TPAs may combine employees from more than one entity or
one industry in a random pool. It should be noted that employees not
covered by DOT rules may not be part of the same random pool with DOT
employees, that adjustment to random testing rates in various
industries may complicate the ability of C/TPAs to operate multi-
industry pools, and that any C/TPA including aviation employees must be
approved by the FAA.
C/TPAs may assist medical review officers and substance
abuse professionals (MROs/SAPs) in ensuring that follow-up testing is
conducted in accordance with the schedule established by the MRO/SAP.
Like an employer, a C/TPA may not randomly select employees from a
``follow-up pool'' for follow-up testing. (Follow-up testing, while
unannounced, is not random: it follows individualized directions
established by the MRO/SAP for the particular employee.)
The C/TPA acts as an agent of the employer, and ``stands
in the shoes'' of the employer, subject to certain limits. Within these
limits, the duties the rule assigns to employers are to be carried out
by the C/TPAs acting as their agents. Because the C/TPA acts as an
agent of the employer, it is not required that the employee provide
written consent to permit the employer to provide confidential
information to the C/TPA (e.g., individual test results). In their role
as agents of the employer, C/TPAs must follow the same confidentiality
rules as the employer itself.
Limits on use of C/TPAs as agents include the following:
* A C/TPA cannot make reasonable suspicion, post-accident, or -
refusal determinations. This is a non-delegable duty of the -employer
itself.
* The employer itself is responsible for making sure that an
employee who has tested positive for alcohol or drugs, or otherwise
violated the rules, is removed from performance of safety-sensitive
positions.
* As noted above, an employer cannot delegate responsibility for
compliance to C/TPA. The employer remains obligated to DOT for
compliance, and the C/TPA's failure to implement any aspect of the
program as required in Part 40 and applicable operating administration
regulations makes the employer subject to enforcement action by the
Department.
* A C/TPA cannot act as ``program manager'' in FAA and RSPA
programs, which call for the employer itself to have an individual
designated to manage the drug and alcohol testing program for the
employer.
* The fact that a C/TPA stands in the employer's shoes does not
obviate the C/TPA's obligation to transmit quarterly laboratory
statistical summaries to each actual employer.
* The limitations on self-referrals by SAPs for treatment apply in
situations in which SAPs are part of a C/TPA.
* It is not appropriate for laboratories to receive drug and
alcohol forms for an individual packaged or attached (e.g., stapled)
together, since this is inconsistent with the privacy and
confidentiality of personally-identified test records. Consequently, C/
TPAs (including those that are operated by or affiliated with
laboratories) must ensure that laboratories receive only the drug chain
of custody form. One useful way in which C/TPAs can implement this
guidance is to establish separate addresses for the receipt of drug and
alcohol forms, respectively. C/TPAs could also establish procedures to
separate alcohol and drug forms that arrive together.
Confidentiality, Test Results, Recordkeeping
C/TPAs may receive from employers or other parties and
maintain all records concerning DOT alcohol and drug testing programs,
including individual test results, both positive and negative. Record
retention requirements (i.e., requirements that records be maintained
for a certain amount of time) apply to records maintained by C/TPAs in
the same way as the requirements apply to employers.
Where operating administration rules or policies require
employers to keep certain information in their own files (e.g., for
purposes of review during inspections), employers must do so, even
though the same information is maintained by a C/TPA for other
purposes.
Information needed for operating a drug/alcohol program
(e.g., names of employees in random pool, random selection lists,
copies of notices to employers of selected employees) may be maintained
by C/TPAs. Consortia may make random selections from the
[[Page 38205]]
pool and notifications of random tests. If the C/TPA does not maintain
this information, the employer itself must do so.
If the C/TPA is conducting or arranging for drug testing,
the employer's copy of the COC form may pass through the C/TPA to
provide notice to the C/TPA that the employee's specimen has been
collected. The document must be forwarded to the actual employer, if
required by applicable operating administration rules. -
C/TPAs must follow all confidentiality requirements
applicable to employers.
* Like an employer, a C/TPA may not provide individual test results
or other confidential information to another employer without a
specific, written consent from the employee. For example, suppose a
consortium has employers X and Y as members. Employee Jones works for
X, and has a drug or alcohol test result kept for X by the consortium.
Jones wants to change jobs and work for Y. The consortium may not
inform Y of the test result without obtaining specific, written consent
from Jones. Likewise, the consortium cannot provide this information to
Z, who is not a consortium member, without Employee Jones' consent.
* Blanket consent forms authorizing the release of employee testing
information by C/TPAs to a third party are not permitted.
* C/TPAs must establish adequate confidentiality and security
measures to ensure that confidential employee records are not available
to unauthorized persons. This includes protecting the physical security
of records, limiting the number of persons with access to the records
and other appropriate access controls, and computer security measures
to safeguard confidential data in electronic data bases.
Medical Review Officer Issues
Employers may obtain MRO services through C/TPAs. While
the conflict-of-interest provisions of Part 40 concerning relationships
between laboratories and MROs apply, they do not prevent independent C/
TPAs (e.g., a C/TPA not operated by a laboratory) from employing or
contracting with MROs or contracting for laboratory services.
If an MRO is employed or contracted for by a C/TPA, the
MRO must perform duties independently and confidentially. C/TPAs which
have relationships with MROs must structure these relationships to
ensure that this independence and confidentiality are not compromised.
Specific means (including both physical and operational provisions, as
appropriate) to separate MRO functions and other C/TPA functions are
essential. The purpose of this mechanism is to ensure that the MRO is
independently in charge of all MRO functions and that, with respect to
performing MRO-related functions, C/TPA staff are subject to the
direction and control only of the MRO.
Only those C/TPA staff members who are actually under the
day-to-day supervision and control of an MRO with respect to MRO
functions may perform these functions. This does not mean that those
staff may not perform other functions at other times. However, the
designation of C/TPA staff as MRO purposes should be limited and not
used as a subterfuge to circumvent confidentiality requirements in DOT
rules and guidance. MRO staff must also operate under controls
sufficient to ensure that the independence and confidentiality of the
MRO process are not compromised (see previous paragraph).
Confirmed test results must be sent directly from the
laboratory to the MRO or MRO staff designated in accordance with this
guidance. For example, a practice in which results are transmitted from
a laboratory to a C/TPA computer system, and then assigned to an
available MRO, is inconsistent with this guidance.
MROs must personally conduct the final interviews with
employees who have tested positive and must personally make the
decision concerning whether to verify a test as positive or negative.
MRO staff cannot perform these functions.
MROs and BATs must send final individual test results
directly to the actual employer as soon as the results are available,
since it is employers who have the authority to remove employees from
performing safety-sensitive functions. While results may be maintained
afterwards by the C/TPA, and while there is no objection to the MRO or
BAT transmitting results simultaneously both to the employer and to the
C/TPA, it is not appropriate for the MRO or BAT to send the results
only to the C/TPA, which subsequently retransmits them to the employer.
This is true even where the MRO or BAT is employed by or under contract
with the C/TPA. Operating administrations are authorized to make
exceptions to this general rule in situations where it may be
impracticable for the individual test results to be sent to individual
employers before going to the C/TPA (e.g., where a C/TPA is the only
party in a position to inform an owner-operator who has tested positive
that he or she must cease performing safety-sensitive functions).
Enforcement
Consistent with this guidance, employers may contract out
their drug and alcohol testing functions to C/TPAs; employers may not
contract away their responsibility to comply with DOT rules.
DOT regulates employers, not C/TPAs (with the exception of
FAA's approval process for C/TPAs in the aviation industry). It is the
employer, not the C/TPA, who must answer to DOT for noncompliance with
DOT requirements if the employer's C/TPA does not properly carry out
the requirements of DOT rules.
Issued this 11th day of July, 1995 at Washington D.C. -
Federico Pena, -
Secretary of Transportation.
[FR Doc. 95-18042 Filed 7-24-95; 8:45 am]
BILLING CODE 4910-62-U
