Opioids & Marijuana: USDOT Program Impact Update

1. OPIOIDS & MARIJUANA: AN UPDATE ON THE IMPACT TO USDOT DRUG & ALCOHOL TESTING PROGRAMS 35th Anniversary Spring Conference Community Transit Better Together Robbie L. Sarles, President, RLS & Associates, Inc. RLS & Associates, Inc.

2. New Challenges • Trends in Use and Positivity Rates • Consequences of Recent Regulatory Change • Expansion of Opioid Panel and Safety Risks • Marijuana Trends and Impact on the Workforce

3. MIS DATA * Partial data (90%)

4. MIS

7. MIS

9. MIS DATA 92%

10. MIS DATA

16. FTA Random testing rates

17. Random Testing Rates • Random DRUG testing rate has increased to 50% • Effective: Jan 1, 2019 • Applicability: All employees covered by FTA drug & alcohol regulations • Random ALCOHOL testing rate remains the same – 10% • May require FTA D&A Policy revision • REMEMBER: • If your random pool “mixes” employees covered by different USDOT – Agencies, you must test entire pool at highest rates

18. 2018 Regulatory Changes • “The What?” • 49 CFR Part 40 is USDOT’s D&A regulation covering testing procedures updated • “The When?” • Nov 2017 – Final Rule published in Federal Register • Jan 1, 2018 – Effective Date for all changes • The Who?” • Applicable to entire DOT industry (FTA, FMCSA, FRA, FAA, PHMSA, USCG, etc.) • ANYONE subject to 49 CFR Part 40 • Employers, MROs, SAPs, Collection Sites, etc.

19. Summary of Changes • ODAPC List-Serve • All service agents REQUIRED to “subscribe” • Sign-up via https://www.transportation.gov/odapc/get-odapc-email-updates • Need to be able to document evidence during audits / reviews • Save a copy of the confirmation email

20. Summary of Changes • Drug Testing Panel Modifications (continued) • “MDA” added to screening test • “MDEA” removed

21. Summary of Changes • MRO Verification Process • Clarification of the term “prescription” • Prescription (Rx) must be consistent with Controlled Substances Act (CSA) • MRO-ordered additional testing • Authorized without prior ODAPC consent • Meth false positives due to Rx/OTC meds • Illicit THC vs. Marinol

22. Opioid Panel • Drug Testing Panel Modifications • “Opiate” changes to “Opioid” • Four new opioids added to testing panel

23. “Safety Risk” Determination Process • MRO Rx Verification Process • MRO release of information – Medically unqualified / Significant safety risk • Step 1 – Verify test result • Step 2 - Initial MRO determination • MRO notifies employee of medically unqualified / significant safety risk • Step 3 - Five-days for prescribing physician to contact MRO • Employee facilitates contact

24. “Safety Risk”Determination Process • MRO Rx Verification Process (continued) • MRO release of information – Medically unqualified / Significant safety risk (continued) • Step 4 – Prescribing physician statement to MRO • Step 5 – Possible employer notification • Based on outcome of Steps 1 - 4

25. Industry Response to Today’s Challenges • NOT Required by USDOT, FTA or Any Other Modal Administration • NOT A Regulatory Requirement • Addresses Issues That Might Already Be Covered Under Employer’s Own Company/Agency Authority ATTENTION: ANY TEXT WHICH IS BLUE IS MEANT TO INDICATE THAT IT IS NOT A USDOT, OR USDOT-AGENCY REQUIREMENT/REGULATION. THESE PROVISIONS WOULD BE BEST-PRACTICES/SUGGESTIONS AND UNDER THE AUTHORITY OF THE EMPLOYER

26. Workplace Impact • Policy Revisions – BEST PRACTICES (NOT REQUIRED BY USDOT) • If your policy currently has a section on Rx/OTC medication use • Update to address MRO determinations of “Medically Unqualified / Significant Safety Risk” • If your policy DOES NOT have a Rx/OTC medication use section • Consider adding a short paragraph

27. Workplace Impact • “Medically Unqualified / Significant Safety Risk” • Final word is the MRO’s DISCRETION • What are the REAL implications? • Access to prescribing physician • Expiration of Rx • No recent contact to prescribing physician • What to do when/if you get the phone call • This is 100% employer’s determination (No USDOT regulation) • Unless USDOT - CDL medical standards apply

28. Workplace Impact • “Medically Unqualified / Significant Safety Risk” • Employers should be pro-active in creating a “Fitness-for-duty/Wellness” policy (NOT A USDOT REGULATION) • Legal/Union/Collective Bargaining Concerns

29. Implications • MRO Approach To Decision Making Process Is Not Defined In the Regulation • MRO discretion based on medical judgement • ODPAC Guidance Forthcoming • MRO philosophy, assessment of liability and risk management practices will influence approach • Case-by-case determination • MRO Contact with Health Care Practitioner Can Be Contentious

30. Implications • Need to Navigate Differing Medical Opinions • MRO • CDL Medical Examiner • Prescribing Health Care Practioner • Other

31. Implications • Possible MRO Determinations • Silent—No safety risk, no employer knowledge, no employer action • Notification of safety issue—Employer action • Follow procedure for CDL standard violation if appropriate • Liability Considerations • Human Resource • Legal Considerations • Collective Bargaining

32. Best Practice • Proactively Discuss Philosophy and Procedures with MRO • If MRO Philosophy Is Inconsistent with Employer Philosophy or Intent of Regulation, Identify New MRO • If MRO Is Unwilling or Unable to Perform This Function, Identify New MRO • Define MRO Safety Issue Notification Procedures, Documentation and Timeline • Negotiate Cost of MRO Safety Assessment • Do Not Accept Employee Medical File Dump From MRO

33. Implications • Employee Facilitation of Prescribing Physician/MRO Contact • Employees May Have Difficulty Accessing the Prescribing Physician In a Timely Manner • If More Than 5 Days Are Needed To Obtain an Appointment or Otherwise Get In Contact • The Prescribing Physician Is Unaware or Does Not Understand the Importance of the Contact • Employee Has Had No Recent Contact or Ongoing Relationship with the Prescribing Physician • Employee Does Not Know How to Facilitate the Contact Between the Physician and the MRO

34. Best Practice • Assist Employees In Being Proactive • Educate Employees on Safety Risks of Rx • Provide A Summary of Regulatory Changes • ODAPC Notice • Review New/Revised Employer Policy • Define Process and Provide Guidance On How to Notify Prescribing Physician to Contact MRO

35. Best Practice • Encourage Employees to Obtain Updated Rx • Current Rx Is More Than One Year Old • Rx States “Take As Needed” For An Injury That Is No Longer Being Treated By the Prescribing Physician • Employee Does Not Have an Ongoing Relationship with the Prescribing Physician • ER/Urgent Care or Doc-in-a-Box Physicians

36. Best Practice • Encourage Employees to Obtain Updated Rx (cont.) • Revisit Treatment Options With Prescribing Physician for Chronic or Reoccurring Conditions To Minimize Safety Impacts While Not Compromising Medical Care • Encourage Employees Using Opioids to Discuss Dosing Option with Prescribing Physician • Timing • Dosage • Alternative Pain Management Options

37. Best Practice • Address Possible Withdrawal Implications • Illness/Injury Treatment Options • Cold Turkey Withdrawal May Be Harmful to Employee and Create a More Significant Safety Risk • Medical Assistance in Managing Possible Withdrawal

38. Best Practices • Provide Employees with a Physician Rx Medical Authorization Form • Job Description Highlighting Safety-Sensitive Duties • Area for Prescribing Physician to Indicate Possible Safety Risks With Corresponding Restrictions, If Any • Notification that Prescribing Physician May Be Contacted By MRO If A Safety Concern Exists

39. Best Practices • Inform Applicants of Possible Prescribing Physician/MRO Contact Requirement • Provide Explicit Directions As Early on In the Hiring Process As Possible • Emphasize That a Valid Rx Does Not Necessarily Mean Disqualification. • Rx Is Only An Issue When It Rises to the Level of Safety Risk.

40. Implications • Employer’s Response Not Defined • Assessment of Nature and Scope of Safety Risk • Short-term, Long-term, Permanent • Course of Action/Remedy • Monitoring Process and Revaluation • Medical Advisory and Decision Making Process • Employee Consequences And Due Process • Documentation, Record-keeping, and Confidentiality • Liability and Risk Management

41. Employer Challenge • Best Practice Is to Develop An Effective Rx Fitness-for-Duty Program • A program that minimizes the associated impairment risks of taking legally and illegally obtained prescription medications while performing transit–related, safety-sensitive functions

42. Best Practice • Establish a Fitness-for-Duty Program • Policy • Consequences • Medical Review of Employees Deemed to be a Safety Risk • Procedures • Employee Education • Documentation, Reporting, Confidentiality

43. Legalization of Marijuana

44. Marijuana • Product of the cannabis (Sativa or Indica) plant • Contains THC and other compounds • THC is the main psychoactive chemical that produces the “high” • CBD is another compound commonly sought after from the cannabis plant This Photo by Unknown Author is licensed under CC BY-SA

45. Methods of Use How Do People Use Marijuana? • Smoke • Joint, pipe, bong, blunt, etc. • Vaporize • Vaporizers, E-cigs, Vape-pens • Collect THC in vapor, which is then inhaled instead of smoke • Typically THC oil but can be leaf form as well • Edibles • Not just your **grandma’s** pot-brownie any more

46. Common Names This Photo by Unknown Author is licensed under CC BY-SA This Photo by Unknown Author is licensed under CC BY-SA

47. Common Names

48. Common Names • Cannabis, Marijuana, Weed, Pot, and on and on and on and on…… • Business industry leaning toward “Cannabis” • Differ based on demographics, geography, type of product, etc. • Curious observation: • Legalization Increases = “Whacky” Names Decrease This Photo by Unknown Author is licensed under CC BY-SA

49. Illicit THC Potency Over Time 1970 = 1995 = 2000 = 2005 = 2010 = 2015 = Has THC in illicit marijuana gone UP or DOWN since 1970?

50. Illicit THC Potency Over Time 1970 = <1% 1995 = ~ 4% 2000 = ~ 5% 2005 = ~ 8% 2010 = ~ 10% 2015 = ~ 13% Has THC in illicit marijuana gone UP or DOWN since 1970? Illicit THC Potency Over Time • Recreational and Medical THC products are regularly found to be 20% - 30% THC • THC concentrates can be 80%+ THC