The Department of Transportation (DOT) made a final ruling on new DOT panels which will go into effect on January 1, 2018 (See Federal Register 82 FR 52229). These revisions now complement DOT testing regulations with the Health and Human Services (HHS) Mandatory Guidelines that were revised earlier this year. The HHS guidelines apply to Federal drug-testing programs for urine testing, and were established by the US Department of Health and Human Services.
In response to the current opioid crisis, the DOT drug testing program will now include testing for expanded opiates – including hydrocodone, hydromorphone, oxymorphone, and oxycodone. Common names for these semi-synthetic opioids include OxyContin®, Percodan®, Percocet®, Vicodin®, Lortab®, Norco®, Dilaudid®, and Exalgo®. In addition, testing will no longer be done for methylenedioxy-N-ethylamphetamine (MDEA).
Methylenedioxyamphetamine (MDA) has been added as an initial test analyte. The ruling also clarifies existing drug testing program provisions and definitions, makes technical amendments, and removes the requirement for employers/third party administrators to submit blind specimens.
Possible impacts of these panel changes to motor carriers are as follows:
- Increase in laboratory positive test results;
- More safety concerns raised by the Medical Review Officer (MRO);
- Increased drug testing price.
The increase in laboratory positive test results
It is intuitive that adding more analytes to a testing panel will result in more laboratory positive results, but the question is how many more? In this particular case, use of available data allows us to make a pretty accurate assessment. Quest Diagnostics (Quest) in its annual Drug Testing Index shares with the general public their laboratory positive rates, and what drugs are driving that positive rate. Quest’s Drug Testing Index, Spring 2017 Report reveals the following:
- DOT opiate lab positive rate for urine drug tests (panel for codeine, morphine, and heroin metabolite) = 0.21%
- Non-regulated opiate lab positive rate for urine drug tests (typical panel tests for codeine, morphine, and heroin metabolite as well as testing for hydrocodone and hydromorphone) = 0.47%
- Non-regulated oxycodone lab positive rate for urine drug tests (panel for oxycodone and oxymorphone) = 0.69%
The new panel could and probably will yield a lab positive hit rate of 1.16%, an increase of over 500%. To put that positive rate into context, the current two dominant DOT lab positive results are for marijuana metabolite at 0.78% and amphetamines at 0.63%. The new opiate panel would yield almost as many lab positive results as the two most predominant lab positive analytes today.
More safety concerns raised by the MRO
All laboratory results in the DOT program are reviewed by a MRO. The MRO’s duty for lab positive results is to offer the donor an opportunity to present a legitimate, verifiable medical explanation for the positive result. If such an explanation is presented, the MRO verifies and reports that result as a negative result to the employer. Along with reporting that overturned the negative result, the MRO has an obligation to voice a safety concern pursuant to 49 CFR 40.327, which reads (in part) as follows:
When must the MRO report medical information gathered in the verification process?
(a) As the MRO, you must… report drug test results and medical information you learned as part of the verification process to third parties without the employee’s consent if you determine, in your reasonable medical judgment, that:
(1) The information is likely to result in the employee being determined to be medically unqualified under an applicable DOT agency regulation …”
For motor carriers, the Federal Motor Carrier Safety Administration is clearly articulates that medications such as opiates/opioids are medically disqualifying unless a physician with knowledge of the driver’s prescription usage and safety sensitive duties opines that the driver is safe to perform those duties. (See 49 CFR 391.41 and 49 CFR 382). Other DOT agencies have similar language in their medical fitness regulations.
The MRO, when faced with such prescription usage, should be relaying that safety concern to the employer to ensure that the safety sensitive employee has been appropriately medically cleared.
This clearance comes in two principle forms:
First, the prescription usage was disclosed to, and was vetted by, the medical examiner during the employee’s last agency required exam. Second, the employee disclosed their usage and presented medical clearance (pursuant to 49 CFR 382.213 for motor carriers). If one of those two actions has not occurred, the employer should immediately obtain medical clearance before allowing the driver to perform (or continue to perform) safety sensitive duties. The reasoning for this action is that if an accident should occur, it is unlikely that a treating physician or an examiner will provide medical clearance.
An increased drug testing price
The truth of the matter is that both drug testing laboratories and MROs are high volume, low margin businesses. As is the case with both service providers, when there is a positive result, both generally lose money fulfilling their regulatory obligations. With that in mind, I am quite sure that the laboratories, as well as most MRO services, will likely increase their end user (i.e. motor carrier) rates to help offset this additional work. As an example, with the last federal panel change which DOT adopted in 2010, the DOT lab panel increased approximately 10% across the industry. I am assuming that the rate increase this time may be greater since the relative increase in lab positive results will increase to a greater extent than they did with the 2010 changes. Employers may want to consider the possibility of rate increases as a result.
In conclusion, with all this taken into consideration, I believe the change in the DOT panel will be beneficial to the industry. This change should allow the industry to better identify safety sensitive employees at risk that may not meet the minimum safety standards. As a person who routinely uses multiple modes of our national transportation infrastructure, I would like to know that if a safety sensitive transportation employee is using these types of medications (all of which have warnings against performing duties that require mental acuity), that the employee was appropriately vetted to better ensure my safety.