FTA Drug and Alcohol Program National Conference April 5 – 7, 2011 Presented by:

1. Managing Your Transit Contractors FTA Drug and Alcohol Program National Conference April 5 – 7, 2011 Presented by: Russ Parish – Arkansas Transit Association Vicky Warner – Indiana RTAP/RLS & Associates Inc.

2. COURSE OBJECTIVES • To provide Participants with the technical knowledge necessary to perform a comprehensive assessment of their drug and alcohol testing program • To aid each participant in performing oversight of their vendors • To aid each participant in developing a plan of corrective action • To create a forum for the exchange of ideas and best practices • To provide valuable resources to aid in program administration and oversight

3. FTA Audits • Assess compliance with drug and alcohol testing regulations (49 CFR Part 655 and 49 CFR Part 40) • Performed by team of experts • 4-6 auditors • 2 to 4 days on-site • Comprehensive • Mock Collection • Includes audit of safety sensitive contractors • Includes audit of vendors • Systems may be audited more than once

4. Audit Process • Notification in writing and request for information • Rural systems and their respective state DOTs are contacted simultaneously • Submittal of info within two weeks • Site visits within six weeks • Scheduled to avoid conflicts with other FTA oversight functions • Laptop real-time interview process • Exit interview- letter and final report with deficiencies • Report- Final and non-negotiable • 90 days for response and documentation of correction of deficiencies

5. Preparation for Audit • Ensure all relevant personnel are available during the visit • Program Manager • Other agency staff as appropriate • Vendors • Safety-sensitive contractors and their vendors • Upon notification of audit, immediately undertake efforts to collect, copy and submit relevant documentation to FTA • Recipient/subrecipient information • Contractor information

6. Preparation for Audit (continued) • View audit in a positive manner • Arrange to have ready access to all relevant records and documents • Must be available on-site • Data from vendors • Data from safety-sensitive contractor • Impart the seriousness of the audit to those individuals that will be involved • Give complete cooperation • Be prepared to provide complete documentation • Provide clear, descriptive answers

7. Problems Commonly Reported • Applicable regulations (FTA vs. FMCSA) • Policy Flaws • After hours collection not being performed • Post-accident testing procedures ill-defined • Random selection/notification process compromises integrity of program • Confidentiality of information compromised • Recordkeeping incomplete • Program not current- Revised Rules • Vendor non-compliance • Safety sensitive contractor non-compliance • Safety sensitive employee incorrectly identified

8. Utilize The FTA’s Format • Download and use the FTA audit questions from the Office of Safety and Security website located on their technical assistance page – http://transit-safety.fta.dot.gov • Request the following material for a desk review prior to any scheduled site visit • Copy of the current drug and alcohol policy • Hire dates and pre-employment testing logs • Random draw lists and random testing logs • Copies of vendor credentials (MRO, SAP, laboratory, BAT & Collectors) • Records of Post accident test for previous year (longer if a very small provider) • Information regarding cancelled or non-negative test results • Information on the EBT that is being utilized by the provider • Copies of semi-annual statistical reports

9. Utilize The FTA’s Format – (continued) • Audit testing records: an employer may disclose drug and alcohol testing information including test results to the State oversight agency or grantee required to certify compliance • Require timely responses and supporting documentation for any issues identified during the review • Require and monitor reports

10. SYSTEM OVERSIGHT

11. CERTIFICATION OF COMPLIANCE • The recipient of FTA funds must certify compliance with the requirements set forth in 49 CFR Part 655 on an annual basis • Must be signed by the recipient’s governing board or authorizing official • Criminal penalties for false statements or misrepresentations • Section 5311 systems certify compliance to their respective State DOTs

12. EMPLOYER REQUIREMENTS • Responsible for actions of officials, representatives, and service agents • All agreements between employers and service agents are deemed as a matter of law to require compliance • Service agents must provide documentation of credentials • Good faith effort is not a defense for non-compliance • Employer is responsible for obtaining test results and other information that is needed for compliance purposes

13. COMMON PROBLEMS: POST ACCIDENT TESTING PROCEDURES • Policies and procedures must be in place to ensure post-accident tests are performed as soon as possible following an accident - Testing often omitted or significantly delayed - Ill-defined policies - No documented procedure - Inadequately trained supervisor - Lack of supervisor empowerment

14. RANDOM TESTING ISSUES • Non-routine and sporadic performance of safety-sensitive function - Drug tests, anytime during shift - Alcohol tests just before, during, or after performance of safety-sensitive function • Fluctuating employee base - Number in pool X percent of testing - Number of draws to be conducted per year • Program administrator in pool - alternative contact notified when administrator’s number is selected • Employee must be notified of the testing authority

15. RANDOM TESTING SPREADSHEET 6:00 PM Close 6:00 AM Open

16. ARE YOU SATISFIED WITHYOUR VENDOR? • Number and explanation for cancelled tests • Collection and transfer of split specimens • Volume capacity, location, and service hours • After hours testing • Ease of communicating and reporting

17. TRANSIT EMPLOYERSMUST MONITOR • Collection sites • Medical Review Officers • HHS laboratories (blind samples) • BATs/STTs • Substance Abuse Professionals • Service agent compliance required - Compliance required as a matter of law - Non-compliance may result in a public interest exclusion (PIE)

18. RECORDS REVIEW

19. Lab Reports • HHS Lab report semi-annual test reports to employers • NPRM – IITF Report the same

20. Paper trails • Able to withstand challenge • Document policies and procedures • Document every test decision

21. CONSENT FORMS CANNOTBE REQUIRED • Employer or service agents cannot require an employee to sign a consent, release, Waiver of Liability, or Indemnification Agreement withrespect to drug and alcohol tests

22. PRE-EMPLOYMENT DOCUMENTATION • A chain of custody and control form for every test • A negative test result for every new hire • Written notice to applicant with acknowledgement and signature • Date, time, and result of each test conducted • Test date prior to hire date • Previous employer drug and alcohol test records

23. RANDOM TESTING DOCUMENTATION • Random draw lists • A chain of custody and control form for each test

24. POST-ACCIDENT TEST DOCUMENTATION • Accident Identification Information: documentation of whether circumstances meet definition of accident • Documentation for every covered accident on decision to test or not • Documentation supporting determination of whether the employee could be completely discounted as a contributing factor • Time/date of accident and test • Documentation of reason for test delay

25. CONFIDENTIALITY (CONTINUED) • Employer must define who has access to files and for what purpose • Access by others should be restricted • FTA recipients may have access to contractor’s employee-specific information

26. INFORMATION RELEASE • A separate release must be signed each time information is to be disclosed • Releases must be signed by employee anytime information is to be released to - The employee - Union representatives - Subsequent employers - To any other third party designated by the employee • Employee must not be given access to SAP follow-up testing plan

27. INFORMATION RELEASE (CONTINUED) • No signed release is required when information is provided to: • The National Transportation Safety Board when investigating an accident • A decision maker in a lawsuit grievance or administrative proceeding initiated by or on the behalf of the employee tested and resulting from a positive test result or test refusal • The DOT or any DOT agency with regulatory authority over the employer or any of its employees, or to a State Oversight committee authorized to oversee rail fixed guide way systems • State DOT or grantee that has oversight responsibility and is required to certify compliance to FTA

28. INFORMATION RELEASE (CONTINUED) • No signed release is required when information is provided to: (cont’d) • A criminal or civil action resulting from an employee’s performance of safety-sensitive duties in which a court or competent jurisdiction determines the test information is relevant to the case and orders the employer to produce the information • Release must be made with a binding stipulation that the decision maker will make the information available only to parties to the proceeding • Release of information to law enforcement agencies based solely on the request of the law enforcement agency is not allowed

29. INFORMATION RELEASE (CONTINUED) • State commercial driver’s licensing (CDL) authorities when a state law require such reporting

30. INFORMATION RELEASE (CONTINUED) • Employers and service agents must allow DOT agency access to: • Facilities • All written, printed, computer-based programs, and reports • Laboratories are not allowed to release a specimen without obtaining ODAPC permission

31. RESPONSIBILITY FOR CONFIDENTIALITY • Apply strict confidentiality standards to all aspects of your substance abuse program, particularly with respect to identification of any specific individual • Apply the golden rule

32. VENDOR OVERSIGHT

33. DO NOT ASSUME THAT VENDORS ARE CONDUCTING TESTS IN COMPLIANCE WITH REGULATIONS – THAT INCLUDES TPA’S AND CONSORTIA!

34. C/TPAS AS INTERMEDIARIES • Employer discretion • Maintain confidentiality • Must meet time requirements • Must provide DOT requested information to employer within two days

35. C/TPAS AS INTERMEDIARIES (CONTINUED) Transmit drug test information from MRO to employer - Test refusals - Cancelled tests - Split specimen - Retest requirements reconfirmation - Insufficient specimen - Drug test results - Shy bladder refusal - Dilute specimens - Transmission of CCF - Changed test result - Transmission of lab - Confirmed positive for stand statistical report down - Transmission of 2 years - Direct observation collections test results to - Employee no-shows subsequent employers - DER contact information - Alcohol screen and confirmatory test results < 0.02

36. C/TPAS MAY NOT ACT AS INTERMEDIARIES • Transmission of laboratory drug test results to MRO • Transmission of medical information from MRO to employers • Transmission of SAP reports to employers • Transmission of positive alcohol test results

37. C/TPAS PROGRAM ADMINISTRATION • May operate random testing programs • May maintain random pool • May assist with other types of testing • May assist in implementation of follow-up testing plans • May receive and maintain all records without employee consent - Test results - Program operation records • Must transfer records immediately upon request without fee • Must notify employee immediately of business status change • Must not act as DER

38. C/TPA Oversight • Utilize the FTA consortium/TPA audit questions • Conduct Semi annual or annual reviews • May require statistician validate the scientific validity of the random draw programs utilized • Require annual MIS for the entire consortium for state wide programs • Follow-up/require written responses to any problems reported by systems using C/TPA

39. COMPLIANCE TIPS • Conduct periodic mock collections to identify procedural flaws • Investigate any reports by employees of flawed procedures • Provide vendors copies of USDOT and FTA handbooks and procedural manuals • Require documentation of vendor credentials

40. COMPLIANCE TIPS (CONTINUED) • Even though not a regulatory requirement, consider requiring vendors to hold memberships in their respective industry’s trade association • Monitor cancelled test rates, and require detailed explanations for each cancelled test • Include specific and detailed minimum performance standards in contracts that provide disincentives for cancelled tests or non-performance

41. COMPLIANCE TIPS (CONTINUED) • If vendors are unwilling or unable to perform their duties consistent with the regulations, cancel their contract and obtain service elsewhere

42. TRADE ASSOCIATIONS • Drug & Alcohol Testing Industry Association(800) 355-1257 www.datia.org • American Association of Medical Review Officers(919) 489-5407 • American Society of Addiction Medicine(301) 656-3920 • American College of Occupational and Environmental Medicine (847) 228-6850 • Substance Abuse Program AdministrationAssociation (800) 672-7229

43. SAP CREDENTIALS (EXAMPLE)

44. MRO CREDENTIAL (EXAMPLE)

45. MRO Credentials(October 1, 2010) • MROs will no longer be required to obtain 12 hours of continuing education every three years. • Instead MROs will be required to be retrained and pass an examination every five years. • The examination must be given by a recognized MRO certification board or subspecialty board for medical practitioners.

46. COLLECTOR CREDENTIALS (EXAMPLE)

47. COLLECTOR CREDENTIALS (EXAMPLE)

48. PUBLIC INTEREST EXCLUSION • What is a PIE? - Public Interest Exclusion - not allowed to work in DOT programs • Purpose of PIE - Protect public interest - Protect employer and employee from serious noncompliance • Basis for PIE being issued - DOT determines failure or refusal to provide service consistent with DOT rules - Failure to cooperate with DOT or inspections, compliance and enforcement reviews, or requests for documentation

49. PUBLIC INTEREST EXCLUSION (CONTINUED) • DOT policy on PIE proceeding - Only in cases of serious, uncorrected non-compliance • Affects safety • Outcomes of test results • Privacy and confidentiality • Affects due process • Affects honesty and integrity of testing program • Failure to provide cooperation and info to DOT representatives - Regulation provides 14 examples

50. PIEs IN EFFECT • Michael R. Bennett and Workplace Compliance, Inc. 7/31/09 – 7/31/14