[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.

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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]
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