Substance Abuse Professional CEU Workshop
Instructor: Dr. Dawn-Elise Snipes, PhD, LPC-MHSP
Podcast Host: Counselor Toolbox and Happiness Isnât Brain Surgery
Objectives
~ Review the function of the SAP and how the SAP and LPC/LCSW may need to function together on an interdisciplinary team or in a co-occurring disorders treatment facility.
~ Review DOT policy on recreational and medical marijuana to ensure all LPCs and LCSWs are familiar with the restrictions on any of their clients who may fall under DOT supervision
~ Review the Final Rule that Changes the Definition of ‘Service Agent'
~ Review the procedures for the Revised Federal Drug Testing Custody and Control Form (CCF)
~ Review the Final Rule: Procedures for Transportation Workplace Drug and Alcohol Testing Programs
Function of the SAP
~ The Substance Abuse Professional (SAP) is a person who
~ Evaluates employees who have violated a DOT drug and alcohol program regulation
~ Makes recommendations concerning education, treatment, follow-up testing, and aftercare (up to 60 months).
~ Conducts follow-up evaluation prior to return to work
~ Represent the major decision point an employer may have in choosing whether or not to place an employee back in a safety-sensitive position
~ SAP are advocate for neither the employer nor the employee, their function is to protect the public interest
~ §40.311 What are the requirements concerning SAP reports?
~ (a) As the SAP conducting the required evaluations, you must send the written reports required by this section in writing directly to the DER and not to a third party or entity for forwarding to the DER (except as provided in §40.355(e)). You may, however, forward the document simultaneously to the DER and to a C/TPA.
~ (b) As an employer, you must ensure that you receive SAP written reports directly from the SAP performing the evaluation and that no third party or entity changed the SAP's report in any way.
~ (c) The SAP's written report, following an initial evaluation that determines what level of assistance is needed to address the employee's drug and/or alcohol problems, must be on the SAP's own letterhead
~ (d) The SAP's written report concerning a follow-up evaluation that determines the employee has demonstrated successful compliance must be on the SAP's own letterhead
~ (f) As a SAP, you must also provide these written reports directly to the employee if the employee has no current employer and to the gaining DOT regulated employer in the event the employee obtains another transportation industry safety-sensitive position.
~ (g) As a SAP, you are to maintain copies of your reports to employers for 5 years, and your employee clinical records in accordance with Federal, state, and local laws
~ You must make these records available, on request, to DOT agency representatives (e.g., inspectors conducting an audit or safety investigation) and representatives of the NTSB in an accident investigation.
~ 49 CFR Part 40 Section 40.329 (c) As a SAP, you must make available to an employee, on request, a copy of all SAP reports (see §40.311). However, you must redact follow-up testing information from the report before providing it to the employee.
âLetâs cancel the remaining follow-up testsâ
~ A SAP can cancel follow-up testing after 12 months. 40.307(f)
~ Follow-up testing is an effective deterrent.
~ If all the follow-up tests are negative, isnât that what we want?
~ If a driver has had no accidents for a year, would you consider canceling insurance on the bus?
~ Some SAPs require a full 5 years of follow-up testing, and sometimes with only a few tests in the final 2 or 3 years.
~ Critical: The follow-up testing plan is confidential, not to be shared with the employee
~ Critical: An employerâs labor agreement canât limit the SAPâs authority, or place any restrictions on the SAPâs follow-up testing plan.
Recreational & Medical Marijuana
~ State initiatives will have no bearing on the Department of Transportationâs regulated drug testing program.
~ The DOTâs Drug and Alcohol Testing Regulation â 49 CFR Part 40 â does not authorize the use of Schedule I drugs, including marijuana, for any reason.
~ Drug tests are still considered positive even if there is information that a physician recommended that the employee use âmedical marijuanaâ when states have passed âmedical marijuanaâ initiatives.
~ Marijuana remains a drug listed in Schedule I of the Controlled Substances Act.
~ It remains unacceptable for any safetyâsensitive employee subject to drug testing under the DOTâs drug testing regulations to use marijuana.
Definition of a Service Agent
~ Service agents play an integral role in many DOT- regulated employersâ drug and alcohol testing programs as advisors providing services to maintain compliance with DOT regulations.
~ Service agents who are focused on compliance typically increase efficiencies and contribute to the safety of the public.
~ Service agent is now defined more broadly as
~ Any person or entity, other than an employee of the employer, who provides services to employers and/or employees in connection with DOT drug and alcohol testing requirements.
~ This includes, but is not limited to, collectors, BATs and STTs, laboratories, MROs, substance abuse professionals, and C/TPAs.
~ To act as service agents, persons and organizations must meet DOT qualifications, if applicable.
~ Service agents are not employers for purposes of this part.
Recent Developments
~ November 13, 2017, the Department of Transportation (DOT) published a final rule in the Federal Register (82 FR 52229). The rule:
~ Added four semi-synthetic opioids
~ Added methylenedioxyamphetamine (MDA) as an initial test analyte
~ Removed the testing for methylenedioxyethylamphetaime (MDEA).
~ What does this mean for employees?
~ You will also be tested for four semi-synthetic opioids (i.e., hydrocodone, oxycodone, hydromorphone, oxymorphone). Some common names include OxyContinÂŽ, PercodanÂŽ, PercocetÂŽ, VicodinÂŽ, LortabÂŽ, NorcoÂŽ, DilaudidÂŽ
Using the New Drug Testing Custody Form
~ On August 8, 2017, the Office of Management and Budget approved a revised Federal Drug Testing Custody and Control Form (CCF) and authorized the continued use of the âoldâ CCF until June 30, 2018.
~ DOT regulated employers and their service agents are to continue using the âoldâ CCF until further notice from DOTâs Office of Drug and Alcohol Policy and Compliance.
~ How will I know the difference between the revised and âoldâ CCF?
~ The revised CCF includes the following changes:
~ In Step 1D:
~ Removal of the checkbox, the letters âDOTâ and hash line in front of the text âSpecify DOT Agencyâ
~ In Step 5A:
~ Addition new analytes (oxycodone, oxymorphone, hydrocodone, hydromorphone)
~ Removal of the analyte methylenedioxyethylamphetamine (MDEA)
Using the New Drug Testing Custody Form
~ Can DOT regulated employers and their service agents use the OMB approved revised CCF for testing under 49 CFR Part 40?
~ Not at this time because DOT has not issued a final rule authorizing testing for synthetic opioids.
Recent Questions and Answers
~ §§ 40.135; 40.327
~ 01/18 QUESTION: During the verification interview, the MRO may learn about a legally prescribed medication that would likely make the employee medically unqualified or would likely pose a significant safety risk
~ Section 40.135(e) requires the MRO to tell the employee to have his/her prescribing physician contact the MRO to discuss the MROâs concern about the medication. If the prescribing physician does not speak with the MRO within 5 business days of the MRO informing the employee to have his/her prescribing physician contact the MRO, the MRO will report the information about the legally prescribed medication to the appropriate third party.
~ Can the MRO report that information to a third party before 5 business days have elapsed?
~ ANSWER: Yes, there could be instances where the MRO would not have to wait the 5 business days to report the information, for example:
~ The prescribing physician speaks with the MRO before 5 business days have elapsed and the significant safety risk remains unresolved
~ The employee expressly declines to have his/her prescribing physician speak with the MRO
~ The MRO learns of a medical condition or diagnosis that is likely to result in the employeeâs being medically unqualified under a DOT agency regulation (e.g, FAA, FMCSA, USCG), the MRO must report that information under the procedures in § 40.327.
Recent Questions and Answers
~ 7/2017 QUESTION: Is the United States Coast Guard (USCG) a DOT Agency with respect to the DOTâs drug and alcohol testing regulation, 49 CFR Part 40?
~ ANSWER:
~ Although included in the definition of a DOT Agency the USCG is a DOT Agency with respect to Part 40 only when the USCG regulation [e.g., 46 CFR Part 16 or 46 CFR Part 4] incorporates Part 40 to carry out it s chemical testing
~ With respect to drug testing, the USCG regulation at 46 CFR §16.113(a) states âDrug testing programs required by this part must be conducted in accordance with 49 CFR part 40, Procedures for Transportation Workplace Testing Programs.
~ With respect to alcohol testing and submitting alcohol testing USCG regulation at 46 CFR §16.500(a)(2) states âThe provisions in 49 CFR part 40 for alcohol testing do not apply to the Coast Guard or to marine employers, and alcohol testing data is not required or permitted to be submitted by this section.
~ Because the USCG regulation, 46 CFR Part 16, incorporates Part 40 for drug testing, the USCG is a DOT agency for the drug testing component of Part 40. But because Part 40 does not apply to alcohol testing under 46 CFR Part 16, the USCG is not a DOT Agency with respect to the alcohol testing component of 49 CFR Part 40
The Issues of Releases of Information
~ A service agent (including SAP) cannot require an employee to sign a consent, release, waiver of liability or indemnification agreement with respect to any part of the drug and alcohol testing process. 40.355(a)
~ As an employer, you must not require an employee to sign a consent, release, waiver of liability or indemnification agreement with respect to any part of the drug and alcohol testing process. 40.27
~ In order for SAPs to do their jobs, they must have access to all information, without restrictions.
~ A release gives the employee control over exchange of information.
~ What would be the SAPâs recourse if an employee revokes a release?
HIPAA Statement
~ Question
~ Are employers and their service agents in the Department of Transportation (DOT) drug and alcohol testing program required to obtain employee written authorizations in order to disclose drug and alcohol testing information?
~ Answer
~ In the DOT drug and alcohol testing program, employers and service agents are not required to obtain written employee authorization to disclose drug and alcohol testing information where disclosing the information is required by 49 CFR Part 40 and other DOT Agency & U.S. Coast Guard (USCG) drug and alcohol testing regulations.
~ Even if drug and alcohol testing information is viewed as protected under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) rules, it is not necessary to obtain employee written authorization where DOT requires the use or disclosure of otherwise protected health information under 49 CFR Part 40 or the other DOT Agency & USCG drug and alcohol testing regulations.
~ Unless otherwise stipulated by 49 CFR Part 40 or DOT Agency & USCG regulations, use or disclosure of the DOT drug and alcohol testing information without a consent or authorization from the employee is required by the Omnibus Transportation Employees Testing Act of 1991, 49 CFR Part 40, and DOT Agency & USCG drug and alcohol testing regulations.
HIPAA Statement
~ Consequently, an employer or service agent in the DOT program may disclose the information without the written authorization from the employee under many circumstances. For example:
~ Employers need no written authorizations from employees to conduct DOT tests.
~ Collectors need no written authorizations from employees to perform DOT urine collections, to distribute Federal Drug Testing Custody and Control Forms, or to send specimens to laboratories.
~ Screening Test Technicians and Breath Alcohol Technicians need no written authorizations from employees to perform DOT saliva or breath alcohol tests (as appropriate), or to report alcohol test results to employers.
~ Laboratories need no written authorizations from employees to perform DOT drug and validity testing, or to report test results to Medical Review Officers (MROs).
~ MROs need no written authorizations from employees to verify drug test results, to discuss alternative medical explanations with prescribing physicians and issuing pharmacists, to report results to employers, to confer with Substance Abuse Professionals (SAPs) and evaluating physicians, or to report other medical information (see §40.327).
HIPAA Statement
~ Consequently, an employer or service agent in the DOT program may disclose the information without the written authorization from the employee under many circumstances. For example:
~ SAPs need no written authorizations from employees to conduct SAP evaluations, to confer with employers, to confer with MROs, to confer with appropriate education and treatment providers, or to provide SAP reports to employers.
~ Consortia/Third Party Administrators need no written authorizations from employees to bill employers for service agent functions that they perform for employers or contract on behalf of employers.
~ Evaluating physicians need no written authorizations from employees to report evaluation information and results to MROs or to employers, as appropriate.
~ Employers and service agents need no written authorizations from employees to release information to requesting Federal, state, or local safety agencies with regulatory authority over them or employees.
Pre-Employment Alcohol Testing
~ Question
~ Can an employer wishing to conduct pre-employment alcohol testing, do so?
~ Answer
~ A DOT-regulated employer (except under USCG rules) wishing to conduct pre-employment alcohol testing under DOT authority may do so if certain conditions are met.
~ The testing must be accomplished for all applicants (i.e., the employer cannot select for testing some applicants and not others) and the testing must be conducted as a post-offer requirement (i.e., the employer needs to inform the applicant that he or she has the job if he or she passes a DOT alcohol test).
~ In addition, the testing and its consequences must comply with requirements of Part 40.
Follow-up testing plan
~ Only the employer can order follow-up tests. This cannot be delegated to a SAP, or to any other service agent. 40.355(g)
~ The SAP cannot determine dates for follow-up tests. 40.307(d)(3)
~ An employer cannot add non-DOT tests (under independent authority) to the SAPâs testing plan. 40.307(d)(4)
~ Look at follow-up tests as a tool to be used when something âisnât rightâ, but it doesnât meet criteria for a DOT test.
~ Some follow-up tests can be random dates on a calendar.
~ Some tests should be strategic. Example: On Friday–before a 3-day weekend, and then on Tuesday–when the employee returns to work
New drug & alcohol abuse evaluation technologies
~ In-car breathalyzers
~ Presumptive substance tests identify a suspicious substance, material or surface where traces of drugs are thought to be, instead of testing individuals through biological methods such as urine or hair testing.
~ Sweat patches are attached to the skin to collect sweat over a long period of time (up to 14 days)
~ Relatively tamper resistant
~ Only a limited number of drugs can be detected (Cocaine, PCP, opiates, heroin, morphine, amphetamine, methamphetamine, THC)
~ Expensive (Wholesale ~$46)
~ Inconclusive results can be produced by variations in sweat production rates in donors.
~ More vulnerable to contamination than other common forms of testing
New Drugs of Concern
~ Gray Death
~ Contains U-47700,heroin, and fentanyl
~ Sept. 6, 2017 U-47700 was made into Schedule I
~ June 2012 Bill S. 3187 was passed and classifies 26 synthetic chemicalsâused to make âfake weed,â âK2â âSpice,â and âbath saltsâ
~ Dextromethorphan sometimes mixed with pseudoephedrine or meth
~ Kratom: Stimulant at low doses, hypnotic at higher.
~ Not a scheduled substance
~ Is being researched as a treatment for opiate withdrawal
~ Carfentanil
~ 100x More Potent than Fentanyl
~ 1,000x More Potent than Heroin
~ 10,000x More Potent than Morphine
~ 2mg. Estimated lethal dose
Current trends in Workplace Positive Results
~ U.S. Workforce Testing Positive for Drugs Has Steadily Increased Over the Last Three Years to a 10 Year High â 4.0%
~ Post Accident Positivity Increased 6.2 Percent in 2015 from 2014 Rates and Increased 30 Percent Since 2011
~ Post Accident Positivity for Safety-Sensitive Workforce has Risen 22% Between 2011 and 2015
~ Directly observed collections are the best way to beat cheaters
Summary
~ SAPs have a responsibility to advocate for the safety of the public
~ For most communications regarding an employee with a service agent or employer, releases of information are not required.
~ New technologies like sweat patches and in-car breathalyzers are available to assist in monitoring.
~ Federal Drug Testing Custody and Control Form (CCF) has been revised to add synthetic opiates