Motor Carrier Safety: Preliminary Information on Challenges to
Ensuring the Integrity of Drug Testing Programs (01-NOV-07,
GAO-08-220T).
Crashes involving commercial motor carriers, including trucks and
buses, account for 13 percent of all highway deaths each year.
While illegal drug use is not among the most frequently cited
factors associated with large truck crashes; studies show that
the use of illegal drugs, such as marijuana, heroin, or cocaine,
can severely impair driving ability. Since 1988, federal
regulations have required commercial drivers to submit urine
samples to be tested for drugs. The Federal Motor Carrier Safety
Administration (FMCSA) is responsible for ensuring compliance
with these regulations. News reports and other investigations
have raised concerns that drivers may be escaping detection by
avoiding the test or somehow altering the results. This testimony
provides preliminary information on the challenges confronting
FMCSA in (1) overseeing and enforcing compliance with drug
testing regulations and (2) ensuring the integrity of the drug
tests and the processes for keeping drivers with identified drug
problems off the roads. It is based on work currently in process,
which includes examining options to address these challenges.
GAO's work thus far has included interviews with officials from
the Department of Transportation (DOT) and the Substance Abuse
and Mental Health Services Administration (SAMHSA), along with a
wide variety of stakeholders, including motor carriers, unions,
and industry associations. GAO discussed this testimony with DOT
officials and incorporated their comments as appropriate.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-08-220T
ACCNO: A77891
TITLE: Motor Carrier Safety: Preliminary Information on
Challenges to Ensuring the Integrity of Drug Testing Programs
DATE: 11/01/2007
SUBJECT: Alcohol or drug abuse problems
Drug abuse
Drug testing
Federal regulations
Internal controls
Laboratories
Motor carriers
Motor vehicle safety
Noncompliance
Protocols
Reporting requirements
Safety regulation
Transportation safety
Urinalysis
Government agency oversight
Program implementation
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GAO-08-220T
* [1]Summary
* [2]Background
* [3]FMCSA Faces Two Key Challenges in Ensuring Drug Testing Prog
* [4]Compliance by Carriers and Others Is in Question
* [5]Mechanisms for Checking Compliance Have Limitations
* [6]Additional Challenges Threaten Integrity of the Drug Testing
* [7]Subversion of Drug Tests Is Still Possible
* [8]Current Testing Covers a Limited Number of Drugs and Amount
* [9]Information about Past Test Failures Is Limited
* [10]Our Future Work Will Focus on Options to Address Challenges
* [11]Order by Mail or Phone
Testimony
Before the Subcommittee on Highways and Transit, Committee on
Transportation and Infrastructure, House of Representatives
United States Government Accountability Office
GAO
For Release on Delivery
Expected at 10:00 a.m. EDT
Thursday, November 1, 2007
MOTOR CARRIER SAFETY
Preliminary Information on Challenges to Ensuring the Integrity of Drug
Testing Programs
Statement of Katherine Siggerud, Director
Physical Infrastructure Issues
GAO-08-220T
Mr. Chairman and Members of the Subcommittee:
We appreciate the opportunity to participate in this hearing on drug
testing for those employed in safety-sensitive positions in the motor
carrier industry. The Department of Transportation (DOT) estimates that
approximately 4.2 million people, including truck and bus drivers, work in
such positions, and their safety on the road affects the safety of the
traveling public. Commercial motor carriers1 account for less than 5
percent of all highway crashes, but these crashes result in about 13
percent of all highway deaths, or about 5,500 of the approximately 43,000
highway fatalities that occur nationwide annually. A DOT study on the
factors associated with large truck crashes finds that vehicle factors,
such as brake problems, and behavioral factors, such as speeding and
driver fatigue, are some of the most frequently cited factors involved in
large truck crashes.2 While illegal drug use is not among the most
frequently cited factors in the DOT study--appearing as an associated
factor in only 2 percent of the crashes included in the study--it is clear
that the use of illegal drugs, such as marijuana, heroin, or cocaine, can
severely impair the ability of individuals to drive. Since 1988, federal
regulations have required that these commercial drivers be drug tested.
DOT and the Federal Motor Carrier Safety Administration (FMCSA) publish
regulations that govern the drug testing process.3 FMCSA is responsible
for ensuring compliance with these regulations, and does so through safety
audits of carriers that have recently started operations4 and compliance
reviews conducted on carriers already in the market.
1There are approximately 711,000 commercial motor carriers registered in
Federal Motor Carrier Safety Administration's Motor Carrier Management
Information System (MCMIS). This includes an unidentified number of
carriers that are registered but are no longer in business. MCMIS contains
information on the safety fitness of commercial motor carrier and
hazardous materials shippers subject to the Federal Motor Carrier Safety
Regulations and the Hazardous Materials Regulations.
2DOT, Federal Motor Carrier Safety Administration, Analysis Division,
Large Truck Crash Causation Study, Publication No: FMCSA-RRA-07-017 (July
2007).
3Title 49, Code of Federal Regulations (CFR), Part 40 provides rules
governing how drug tests are to be conducted and what protocols are to be
used. The tests cover alcohol as well as drugs, but the focus of our work
has been on the testing that covers five drug categories: marijuana,
cocaine, amphetamines (including methamphetamines), opiates (including
heroin), and phencyclidine (PCP). The Office of Drug and Alcohol Policy
and Compliance, within the Office of the Secretary of Transportation,
publishes these rules. 49 CFR Part 382 contains FMCSA's specific drug
testing regulations.
Testing results clearly indicate that some drivers are using illegal
drugs. FMCSA data show that each year from 1994 through 2005, between 1.3
and 2.8 percent of drivers tested positive for the presence of illegal
drugs under random testing. However, concerns exist that some drivers may
be escaping detection. Recent drug tests conducted during roadside
inspections of trucks in Oregon suggest that the percentage of truck
drivers using illegal drugs while operating vehicles may be somewhat
higher than FMCSA reports.5 Furthermore, recent reports have also
suggested that some locations where drug testing specimens are collected
are not in compliance with DOT protocols, which can potentially make it
easier to tamper with or substitute a urine specimen. In 2005, we reported
that products used to tamper with drug use screening tests are widely
available, and that the sheer number of these products, and the ease with
which they are marketed and distributed through the Internet, present
formidable obstacles to the integrity of the drug testing process.6
My testimony today addresses what we have learned about these and other
challenges to establishing an effective drug testing program. It is based
primarily on the work we currently are doing for this Subcommittee and for
the Chairman of the full Committee. Our current work, which we expect to
complete in May 2008, addresses the challenges that may be encountered in
implementing federal drug testing regulations; the roles and
responsibilities that federal agencies, state agencies, and others have in
overseeing industry compliance with drug testing regulations, and the
limitations they encounter in regulations or oversight; and the options,
if any, that have been proposed for improving compliance with and
addressing the limitations of drug testing regulations, and the advantages
and disadvantages of these options. Because this work is not yet finished,
my observations today are preliminary in nature. My testimony addresses
the types of challenges confronting FMCSA in (1) overseeing and enforcing
compliance with drug testing regulations and (2) ensuring the integrity of
the drug tests and the processes for keeping drivers with identified
problems off the roads. As part of my observations about these challenges,
I will discuss options we have identified as possible improvements that we
will be looking at in more detail as we continue our work.
4Trucking companies are required to receive a new entrant safety audit
within the first 18 months of business. Motor coach companies are required
to receive a new entrant safety audit within the first 9 months of
business.
5Oregon's roadside inspections had important differences to DOT-regulated
tests that limit the comparability of the results. For example, these
inspections (1) may include some drivers who are not subject to DOT drug
testing regulations; (2) tested for more substances than does DOT--for
example, the state inspection tested for some prescription medications
that are not included in DOT tests; and (3) may not have used procedures
comparable to DOT's collection, laboratory analysis, and medical review
procedures to ensure accurate results.
6GAO, Drug Tests: Products to Defraud Drug Use Screening Tests Are Widely
Available, [12]GAO-05-653T (Washington, D.C.: May 17, 2005).
To address these issues, we reviewed DOT and FMCSA regulations, policies,
and reports and interviewed officials from DOT (FMCSA and the Office of
Drug and Alcohol Policy and Compliance (ODAPC)) and the Department of
Health and Human Services' (HHS) Substance Abuse and Mental Health
Services Administration (SAMHSA). This review focuses on the controlled
substance portion of the drug and alcohol testing regulations, and does
not address alcohol testing. We analyzed FMCSA data on the results of
compliance reviews and safety audits, and data on enforcement activities.
We interviewed representatives from six motor carriers, including large
carriers, small carriers, and an owner-operator. We interviewed motor
carrier industry associations representing many segments of the motor
coach and trucking industry, such as the American Trucking Association,
the Owner-Operator Independent Drivers Association, the American Bus
Association, and the National Association of Small Trucking Companies. We
also interviewed officials from unions representing truck and bus drivers
and from a variety of associations representing urine specimen collectors,
medical review officers, substance abuse professionals, drug testing
consortiums, and others involved in the drug testing industry. We also
interviewed representatives from one of the largest laboratories involved
in the DOT drug testing industry. In addition, we observed FMCSA oversight
activities, including two compliance reviews and two new entrant safety
audits in California and Virginia. We selected states in which to observe
compliance reviews and new entrant safety audits on the basis of the
availability of on-going FMCSA oversight activities. As we continue our
work, we plan to observe additional compliance reviews and safety audits.
Also, our Forensic Audits and Special Investigations (FSI) team tested
compliance with protocols of collection sites in three metropolitan areas
selected for the large number of truck drivers residing in those areas, as
well as Washington, D.C. Our undercover investigators posed as commercial
truck drivers who needed a DOT drug test and, in some cases, tested
whether they could successfully adulterate or substitute the specimens.
They conducted their investigation from May to September 2007 in
accordance with standards prescribed by the President's Council on
Integrity and Efficiency. We determined that the data used in this
statement are sufficiently reliable for our purposes. We began our review
in June 2007 and are performing it in accordance with generally accepted
government auditing standards.
Summary
FMCSA's efforts to ensure that commercial motor carriers have drug testing
programs in place face two key challenges.
o Lack of compliance appears to be widespread. Our review of FMCSA
data, visits to individual carriers, and discussions with industry
associations, indicate that carriers, particularly small carriers
and owner-operators,7 are often not in compliance with the drug
testing requirements. According to FMCSA data, more than 70
percent of compliance reviews conducted since 2001 and more than
40 percent of safety audits conducted since 2003 found violations
of drug testing regulations, including finding that the carrier
had no drug testing program at all.8 The most frequently cited
drug testing violations in compliance reviews are that drivers
operating in safety-sensitive positions have not successfully
passed a preemployment drug test, or that drivers are not being
tested at all. About 1 percent of compliance reviews per year find
carriers that have allowed drivers with a positive drug test to
continue to operate in safety-sensitive positions. We also found
indications that a lack of compliance with protocols may also be
present among entities that collect specimens for testing. Posing
as commercial truck drivers needing DOT drug tests, our
investigators, in a statement also issued today, determined that
22 of the 24 collection sites they tested were not in compliance
with some of the protocols that guide the process of collecting a
urine specimen.9
7Owner-operators own their own vehicles and hold a valid commercial
driver's license. An owner-operator may act as both an employer and a
driver at certain times, or as a driver for another employer at other
times.
8FMCSA data used in this statement include information from compliance
reviews and new entrant safety audits conducted through September 21,
2007.
9GAO, Drug Testing: Undercover Test Reveal Significant Vulnerabilities in
DOT's Drug Testing Program, [13]GAO-08-225T (Washington, D.C.: Nov. 1,
2007).
o FMCSA's oversight is limited. While new entrant safety
audits--which began in 2003--are designed to reach all new
entrants, compliance reviews only reach approximately 2 percent of
carriers each year.10 These activities are limited in the extent
to which they can identify and rectify problems in carriers' drug
testing programs. In particular, these oversight activities do not
address compliance by agents used by carriers to implement drug
testing programs--such as collection sites--in part, because of
limited resources and the lack of enforcement authority over these
service agents.11 However, FMCSA will investigate service agents
as a result of specific allegations and complaints. These
limitations in FMCSA oversight may lessen incentives for carriers
and service agents to comply with drug testing requirements.
Even in situations in which FMCSA is able to ensure that a carrier
has a sound framework in place for drug testing, there are
additional challenges in ensuring the integrity of drug testing
programs.
o Subversion of the drug test is still possible. The regulations
do not require directly observed collection, nor do they require a
thorough search for hidden subversion products. Drivers intent on
adulterating or substituting a urine specimen can conceal small
vials in socks or other undergarments, which may not be
identified. The extent to which subversion is occurring is
unknown--and is impossible to determine. SAMHSA officials with
whom we met noted that when adulterants work well and destroy the
evidence of their presence, they are undetectable. Similarly, when
urine samples are successfully substituted with synthetic urine,
or another person's drug-free urine, there is no record of them.
Our investigators were able to successfully substitute synthetic
urine at a collection site that followed all DOT protocols, and
the laboratory was not able to detect any of the adulterants or
substitutes used in their investigation.
o There are limitations to the test itself. Drivers who use
illegal substances other than the five that DOT tests for, or
misuse certain prescription medications, may not be identified
during the drug testing process. Also, the urine test does not
provide indications of drug use history because it can only detect
the presence of drugs taken within the previous several days.
10There were approximately 12,500 compliance reviews conducted on carriers
each year from 2001 through 2006.
11Service agent refers to any person or entity, other than an employee of
the employer, who provides services to employers and employees in
connection with drug and alcohol testing requirements. This category
includes, but is not limited to, collectors, laboratories, medical review
officers, substance abuse professionals, and consortiums. To act as
service agents, persons and organizations must meet the qualifications set
forth in applicable sections of federal regulations.
o Lack of disclosure of past positive drug tests may be a problem.
DOT regulations require that an employer, in addition to testing
an applicant and receiving a negative result, also inquire about a
driver's drug test history by contacting the driver's recent
employers listed on the employment application. Representatives
from several motor carriers with whom we met told us it is easy
for drivers to simply omit any previous employer for whom they
tested positive or any past preemployment test that was positive.
Such drivers can remain drug-free for a period of time leading up
to their next preemployment test, get a negative result, and get
hired--without their new employer knowing about any past positive
drug tests.
We have identified various options to address these challenges,
some of which have been proposed by carriers, industry
associations, DOT, and others. These options include such steps as
providing and publicizing information and successful practices
regarding drug testing requirements directly to carriers, service
agents, and drivers; encouraging carriers to do more to ensure
that the service agents they use comply with DOT protocols;
improving and expanding FMCSA oversight and enforcement; adopting
federal legislation prohibiting the sale, manufacture, or use of
adulterants or substitutes; testing for more and different drugs;
testing alternative specimens, such as hair; and developing a
national reporting requirement for past positive drug test
results. There are advantages and disadvantages to implementing
any of these various options. Our ongoing work will examine the
advantages and disadvantages of these options in more detail.
Background
Federal drug testing regulations require commercial motor carriers
to have a drug testing program that covers transportation
safety-sensitive employees who operate commercial motor vehicles
that have a gross vehicle rating of 26,001 pounds or more; are
designed to transport 16 or more passengers, including the driver;
or are of any size and are used in the transportation of hazardous
materials. While the largest motor carriers operate upwards of
50,000 vehicles, most carriers are small, with approximately 80
percent operating between 1 and 6 vehicles. Carriers continually
enter and exit the industry, and turnover among small carriers is
high, thereby making them harder to track. Since 1998, the
industry has increased in size by an average of about 29,000
interstate carriers per year.
The Omnibus Transportation Employee Testing Act of 1991 required
DOT to implement drug testing using urine specimens. Carriers are
required to obtain a negative test result prior to employing a
driver and allowing him or her to engage in safety-sensitive
duties. Carriers also must conduct random testing, postaccident
testing, and reasonable suspicion testing. As implemented by DOT,
testing covers five drug categories: marijuana, cocaine,
amphetamines (including methamphetamines), opiates (including
heroin), and phencyclidine (PCP). If an employee tests positive,
he or she is required to complete a return-to-duty process before
reengaging in safety-sensitive duties. The return-to-duty process
is guided by a substance abuse professional and may include
education, treatment, follow-up testing, and aftercare.
Motor carriers must implement a drug testing program and may use
service agents to perform some or all of the tasks needed to
comply with DOT drug testing requirements (see fig. 1). A motor
carrier must designate an employer representative, who is an
employee authorized by the carrier to take immediate action to
remove a driver from safety-sensitive duties after being notified
of a positive or refusal-to-test result.12 Service agents must
meet qualification requirements and are responsible for
implementing the required protocols.
12Specimens that have been adulterated or substituted are considered
refusals-to-test.
Figure 1: Overview of the DOT Drug Testing Process
Service agents include the following:
o A collector instructs drivers during the urine collection
process, makes an initial inspection of the specimen provided,
divides the specimen into primary and split specimens,13 and sends
it to the laboratory for analysis. A collection site can be a
portable toilet; any toilet in a clinic, hospital, or office
building; or a toilet on-site at a carrier's place of business.
13In DOT drug testing, the split specimen is tested at a second laboratory
in the event that the employee requests that it be tested following a
verified positive, adulterated, or substituted test result based on the
primary specimen. Verified positive, adulterated, or substituted test
results are determined after laboratory analysis and medical review.
o A laboratory analyzes the specimen. Laboratories must be
certified by HHS; as of January 2007, there were 46 such
laboratories.
o A medical review officer, who is a licensed physician, is
responsible for receiving and reviewing laboratory results for a
carrier's drug testing program and evaluating medical explanations
for certain drug test results. In cases of confirmed positive or
refusal-to-test results, the officer must verify the laboratory
results by speaking with the driver and informing the driver of
his or her right to have the split specimen tested.
o A substance abuse professional evaluates drivers who have tested
positive or refused to take a test and makes recommendations about
the return-to-duty process, which could include education,
treatment, follow-up testing, and aftercare. Drivers are required
to complete the recommended steps before they reengage in
safety-sensitive functions.
o A consortium/third-party administrator is a company that can
provide or coordinate either a variety of or all of the above
services for carriers and owner-operators.14
FMCSA has responsibility for ensuring compliance by trucking and
motor coach companies with drug testing requirements. FMCSA does
so through safety audits of new entrants and compliance reviews of
existing companies--both of which cover compliance with all types
of safety regulations, including drug and alcohol testing. Safety
audits are required for all new entrants to the trucking industry
and are opportunities for FMCSA to provide educational and
technical assistance to new carriers, explain carriers'
responsibilities under the federal regulations, and check for
operational deficiencies. In excess of 40,000 safety audits were
conducted in 2006. Compliance reviews occur for four reasons: (1)
poor carrier safety record in SafeStat,15 (2) a fatal accident,
(3) a complaint against the carrier or driver, or (4) a follow-up
investigation after violations. In 2006, FMCSA and state
investigators conducted more than 15,000 compliance reviews. In
addition to the audits and compliance reviews, FMCSA also makes
educational materials about drug testing available on its Web
site.
14The regulations require owner-operators to implement a random controlled
substances testing program. To comply, owner-operators must be enrolled in
a random testing pool that includes other drivers. The random testing pool
is managed by a consortium/third-party administrator.
FMCSA Faces Two Key Challenges in Ensuring Drug Testing Programs Are in Place
FMCSA's efforts to ensure that commercial motor carriers have drug
testing programs in place face two key challenges: limited
compliance by carriers and others involved in the process, and
limitations in the mechanisms FMCSA uses to ensure that drug
testing programs are in place.
Compliance by Carriers and Others Is in Question
Our reviews of FMCSA data, visits to individual carriers, and
discussions with industry associations indicate that carriers,
particularly small carriers and owner-operators, are often not in
compliance with the drug testing regulations, resulting in the
possibility that many drivers are not being tested, which
increases the potential for drivers who use illegal substances to
continue operating in safety-sensitive positions. According to
FMCSA data, more than 70 percent of compliance reviews conducted
since 2001 and more than 40 percent of safety audits conducted
since 2003 found violations of drug testing regulations. The most
frequently cited violation found in new entrant safety audits,
which was found in 30 percent of safety audits conducted since
2003, was that carriers had no drug testing program at all. The
most frequently cited drug testing violations in compliance
reviews are that drivers operating in safety-sensitive positions
have not successfully passed a preemployment drug test, or that
drivers are not being tested at all (see fig. 2). About 1 percent
of compliance reviews per year find carriers that have allowed
drivers with a positive drug test to continue to operate in
safety-sensitive positions.
15FMCSA targets compliance reviews toward those carriers that its Motor
Carrier Safety Status Measurement System (SafeStat) identifies as having a
high potential for being involved in crashes. We have recently reported
that a statistical approach would better identify commercial carriers for
compliance reviews than the current approach. GAO, Motor Carrier Safety: A
Statistical Approach Will Better Identify Commercial Carriers That Pose
High Crash Risks Than Does the Current Federal Approach, [14]GAO-07-585
(Washington, D.C.: June 11, 2007); and Motor Carrier Safety: Federal
Safety Agency Identifies Many High-Risk Carriers but Does Not Assess
Maximum Fines as Often as Required by Law, [15]GAO-07-584 (Washington,
D.C.: Aug. 28, 2007).
Figure 2: Percentage of Selected Violations Identified during FMCSA
Compliance Reviews, 2001-2007
aThis violation may be reported under other applicable sections of DOT and
FMCSA regulations.
We saw similar problems in our field visits: in the two compliance reviews
and two new entrant safety audits we observed, two of the carriers, both
of which were small carriers, were not aware of the drug testing
requirements and did not have a drug testing program at all. For example,
a representative at one of the carriers we interviewed did not understand
the comprehensiveness of the drug testing regulations. The carrier had
hired owner-operators, who are enrolled in a random drug testing program
through a consortium/third-party administrator, but did not fully
understand its responsibility to obtain testing results and other
information from the consortium in which those owner-operators are
enrolled. Furthermore, for those carriers who use drivers on and off
throughout the year, there was confusion regarding how to include them in
random drug testing.
Compliance with drug testing regulations is particularly problematic for
owner-operators who are not hired by other companies. An owner-operator
must follow the drug testing regulations and be in a drug testing program
just like all other drivers employed by motor carrier companies. For
example, an owner-operator is required to get a preemployment drug test
and to enroll in a consortium for random testing purposes. However, it is
unclear how an individual who is both the employer and the employee would
comply with drug testing regulations. For example, should the
owner-operator who participates in a consortium test positive, there is no
one who will remove the individual from safety-sensitive duties, and no
one beyond the owner-operator will be notified of the positive result.16
Posing as commercial truck drivers needing DOT drug tests, our
investigators determined that there is also a lack of compliance with
protocols among entities that collect specimens for testing, resulting in
the ability for drivers to subvert a drug test. Twenty-two of the 24
collections sites our investigators tested were not in compliance with
some of the protocols that guide the process of collecting a urine
specimen. For example, employees at 10 sites failed to ask the
investigator to empty his pants pockets and display items to ensure no
items were present that could be used to adulterate the specimen. One
employee who did ask the investigator to empty his pockets did not verify
that all of his pockets were empty, allowing the investigator to bring an
adulterant into the collection area by hiding it in his back pocket.
Mechanisms for Checking Compliance Have Limitations
While almost all compliance reviews and safety audits test compliance with
drug and alcohol testing regulations, these activities have several
limitations and gaps in how effectively they can identify and correct poor
compliance.17
o Most carriers are not reviewed. Safety audits began in 2003, and
since these audits are targeted at new entrants, they do not
affect companies in business earlier than 2003. FMCSA compliance
reviews only reach approximately 2 percent of carriers each year.
Owner-operators and small carriers are less likely than larger
companies to be selected for a compliance review. Several
associations told us that small carriers may be less likely to
comply with the drug testing regulations because they may have
less understanding of their responsibilities, and because they
have less incentive to comply, given the rarity in which they will
be visited by FMCSA or state investigators.
16According to the regulations, an employer or owner-operator may
authorize a consortium/third-party administrator to act as an intermediary
for transmitting drug test results. Therefore, a consortium/third-party
administrator may also have information on drug test results.
17FMCSA does not normally conduct reviews solely on drug testing. However,
we have reported that 95 percent of FMCSA compliance reviews in fiscal
years 2001 to 2006 included a review of drug and alcohol testing
compliance. [16]GAO-07-584 .
o Oversight of service agents is lacking. Except in the case of
specific allegations or complaints, FMCSA investigators do not
visit or audit collection sites or any other service agents
employed by the carrier to observe procedures and enforce
compliance with drug testing requirements.18 FMCSA has a limited
number of people to oversee the potentially tens of thousands of
sites that can be used to collect urine for DOT drug testing.
Collection sites can be located anywhere--for example, a portable
toilet or any toilet in a clinic, hospital, or office
building--and can operate during differing hours. Few carriers
conduct regular oversight of the service agents they employ. One
large carrier with whom we spoke tests and verifies that the
collection sites it uses are in compliance. Smaller carriers are
less likely to conduct such oversight, given their more limited
resources. Representatives from a third-party administrator with
whom we spoke told us that it observes some of the collection
sites it uses, sometimes at a client's request. If significant
problems are found, representatives told us they alert the
carriers to discontinue use of that collection site. In addition,
representatives told us that some major collection companies
internally audit their own sites to ensure the sites comply with
all requirements.
o FMCSA conducts enforcement, but enforcement actions on service
agents are limited. Although not all violations result in
enforcement actions, FMCSA can use civil penalties, compliance
orders, and out-of-service orders to enforce carriers' compliance
with drug testing requirements. During safety audits of new
entrants, FMCSA typically does not assess fines against the
carrier for noncompliance, since the purpose of these audits is to
educate and inform to encourage compliance.19 The result of a
safety audit is a list of recommendations for corrective action
and a requirement to provide documentation that corrective action
was taken. FMCSA does not believe it has the authority to levy
civil penalties on service agents. If a service agent is found to
be out of compliance, FMCSA officials told us that at most, they
can only fine the carrier that uses the service agent--not the
service agent itself. Several carrier and drug testing industry
associations we interviewed also commented that lack of
enforcement of the drug testing requirements against service
agents, particularly collection sites, is a problem. FMCSA and
ODAPC can initiate a process to disqualify service agents from
participating in activities related to DOT drug testing programs,
known as a Public Interest Exclusion (PIE), in cases of serious
noncompliance. While a number of PIEs have been initiated, no PIE
has been completed or formally issued. Typically, the service
agent has either corrected the noncompliance or gone out of
business before the PIE could be completed.
18There is some oversight of collection sites by other DOT agencies,
including the Federal Aviation Administration, the Federal Railroad
Administration, and the Federal Transit Administration, and by the United
States Coast Guard in the Department of Homeland Security. These other
agencies inspect some collection sites used by the employers and operators
they regulate. These collection sites may also be used by FMCSA-regulated
carriers.
19Certain violations discovered during a safety audit will result in
ending the safety audit and an immediate referral for a compliance review.
For example, one such violation is if a carrier is found to have used a
driver who had a positive drug test.
o There is limited proactive outreach to carriers, service agents,
and drivers. While new entrant safety audits are an important tool
for educating and informing new carriers, these audits typically
do not occur until after a carrier has been operating for 9 to 18
months. New carriers receive little information about drug testing
requirements when they register. When a new carrier applies for a
DOT number, the application includes a question in which the
carrier must confirm whether it understands its responsibilities
related to drug and alcohol testing. However, FMCSA does not
provide any educational information on drug testing when it
approves the application. The carrier must seek out information on
the regulations and other responsibilities. The FMCSA and ODAPC
Web sites provide substantial educational information on drug
testing responsibilities to carriers, service agents, and drivers.
An official from FMCSA told us that its Web site may not
effectively reach carriers and drivers, and that there is a need
to be more proactive in disseminating information on the drug
testing program.
Options that we have identified to address these limitations
include
o providing more information to carriers, service agents, and
drivers when they enter the industry, and publicizing the
materials available on the FMCSA Web site;
o encouraging carriers to do more to test and verify that the
service agents they use are in compliance with the requirements;
and
o increasing or expanding FMCSA's oversight activities and
enforcement authority.
FMCSA's fiscal year 2008 operating plan calls for improving the
Web site and better publicizing available information, and its
Comprehensive Safety Analysis 2010 (CSA 2010) initiative includes
plans to improve current oversight.20 Our ongoing work will
examine the advantages and disadvantages of the various options in
more detail.
Additional Challenges Threaten Integrity of the Drug Testing Process
Even in situations in which FMCSA is able to ensure that a carrier
has a sound framework in place for drug testing, there are
additional challenges that can affect the integrity of results for
individual tests. These challenges range from opportunities to
subvert the test results to learning about past instances in which
applicants may have failed drug tests.
Subversion of Drug Tests Is Still Possible
Adulterating or diluting the urine sample or substituting
synthetic urine or drug-free urine is possible, even if carriers
and service agents are in perfect compliance with requirements.
For example, our investigators were able to successfully
substitute synthetic urine at a collection site that appeared to
follow all DOT protocols. In most instances, DOT drug testing
protocols do not require directly observed collection, nor do they
require a thorough search for hidden subversion products. Drivers
intent on adulterating or substituting a urine specimen can
conceal small vials in socks or other undergarments, such as those
shown in figure 3. Products designed to dilute, cleanse, or
substitute urine specimens are easily obtained and brazenly
marketed on Web sites. Other products--more than 400 in
number--are used to adulterate urine samples. The sheer number of
these products, and the ease with which they are marketed and
distributed through the Internet, present formidable obstacles to
the integrity of the drug testing process.
20Through CSA 2010, FMCSA expects to reduce motor carrier crashes,
fatalities, and injuries by using better ways to identify unsafe carriers
and drivers; assessing a larger portion of the motor carrier industry; and
expanding the range of interventions to be used with carriers that and
drivers who fail to comply with safety requirements.
Figure 3: Devices Used to Hold Adulterants or Substitutes
Note: The two left photographs show a container that was used for
substituted or synthetic urine, with a heating pad attached. The
photograph on the far right shows a belt designed to hold a urine pack
filled with synthetic urine.
Another method of substitution is having another person give the urine
specimen instead of the driver. Collection sites are required to identify
the driver by looking at a photo ID issued by the employer (other than in
the case of an owner-operator or other self-employed individual) or a
federal, state, or local government (e.g., a driver's license). The
protocols do not require carriers to provide photographs or other
identification of drivers to collectors to validate the identification.
For example, our investigators successfully used bogus driver's licenses
to gain access to all 24 collection sites--demonstrating that drug users
could send someone to take a drug test in their place using fake
identification.
The extent to which subversion is occurring is unknown--and is impossible
to determine. SAMHSA officials with whom we met noted that when
adulterants work well and destroy the evidence of their presence, they are
undetectable by laboratories. DOT issued a Notice of Proposed Rulemaking
in 2005 to require specimen validity testing to test for the presence of
adulterants, and a final rule is expected in fall 2007.21 Similarly, when
urine samples are successfully substituted, the result is a negative test
result; therefore, no data exist on the extent to which such substitution
occurs. For example, our investigators adulterated or substituted eight
specimens in their investigation, and the laboratory was not able to
detect any of the adulterants or substitutes used.
21 70 Fed. Reg. 62276-01.
One potential option to addressing this problem is to restrict the sale of
products that allow applicants to subvert tests. As we have previously
reported, several states have laws that prohibit the manufacture, sale, or
use of products intended to subvert drug tests, but these laws are
difficult to enforce.22 To our knowledge, very few individuals have been
cited or convicted for violating these laws. As we also reported, however,
South Carolina convicted individuals for marketing and selling masking
products: one who sold urine substitution kits over the Internet, and
another who advertised that his store carried products that are used to
pass drug tests by cleansing the system. However, the interstate nature of
the manufacture and sale of products intended to subvert a drug test
lessens the impact of state-based laws. Legislation that would have
prohibited the manufacture, marketing, sale, or shipment of such products
was introduced in Congress in 2005 and 2006, but was not enacted.
Current Testing Covers a Limited Number of Drugs and Amount of Time
Even if drivers submit legitimate, unadulterated urine samples, the
current testing regimen has certain limitations.
o Drivers may misuse substances other than the five being tested.
Drivers who use illegal substances, such as ecstasy, or misuse
legal substances, such as prescription medication containing
oxycodone23 and other synthetic opiates, can go unidentified by
the drug tests, although the use of these other substances can
impair the ability of these drivers to operate in a
safety-sensitive position. In addition, the use, and misuse, of
prescription drugs may also be a problem.
o Test detects drug use only within the past few days. The urine
test detects drugs used by the driver within the past several days
(range of 1 to 5 days). This is a particular concern for
preemployment testing, according to carriers with whom we spoke,
since a habitual user can refrain from drug use for several days
before the test in order to test negative.
22 [23]GAO-05-653T .
23An example of a prescription medication containing oxycodone is
OxyContin(R), which is a prescription painkiller used for moderate to high
pain relief associated with various injuries, and pain associated with
cancer. OxyContin(R) contains oxycodone, the medication's active
ingredient, in a timed-release tablet.
Utilizing other types of tests, such as hair tests, as well as
testing for other types of drugs, have been proposed for dealing
with these limitations. Hair tests can detect long-term and
habitual drug use and representatives from several associations we
interviewed told us that hair tests are, therefore, more suitable
for preemployment purposes. In fact, some motor carriers
supplement the DOT test with these alternative tests, and some
carriers also test for additional drugs. One large carrier we
interviewed uses hair tests to complement the DOT-regulated urine
test and found higher rates of drug use in the hair test
(approximately 8 percent compared with 2 to 3 percent for urine
tests on the same individuals). However, union representatives
with whom we spoke are not in favor of carriers utilizing
alternative tests in addition to DOT-regulated tests, because
doing so creates multiple standards throughout the industry that
their members have to comply with. In addition, hair testing is
not effective at detecting current or very recent drug use, and
the test is also more expensive than urine testing. Our ongoing
work will further analyze the pros and cons of these options.
Information about Past Test Failures Is Limited
DOT regulations require that an employer, in addition to testing
an applicant and receiving a negative result, also inquire about a
prospective driver's drug test history by contacting the driver's
recent employers listed on the employment application.
Representatives from several motor carriers with whom we met told
us that drivers' applications are often incomplete. In addition,
it is easy for drivers to simply omit any previous employer for
which they tested positive or any past preemployment test that was
positive. Such drivers can remain drug-free for a period of time
leading up to their next preemployment test, get a negative
result, and get hired--without their new employer knowing about
any past positive drug tests and without having gone through the
required return-to-duty process.
Various options have been suggested for dealing with this issue,
and in particular, many in the industry have proposed developing a
national reporting requirement for past positive drug tests. As
with the other types of options that we have previously discussed,
our ongoing work will analyze the pros and cons of these
improvements. According to a DOT official with whom we met, FMCSA
is considering implementing a central repository containing
national drug and alcohol testing results to which carriers would
have access, but its timeline is uncertain.
According to DOT, several states already require some form of
information sharing on drivers' past positive drug tests, though
implementation varies by state. For example, Oregon requires the
medical review officer to report positive results to the state,
while Texas requires carriers to report positive test results.
Furthermore, there is variation on what states do with such
information that is collected. For example, in North Carolina and
Washington, positive drug test results will disqualify drivers
until they complete the return-to-duty process, while in other
states it is unclear whether the information is being utilized at
all.
Our Future Work Will Focus on Options to Address Challenges
Our future work, which we expect to complete in May 2008, will
provide more definitive information about many of the matters
covered in my statement today. This information will include more
detailed information about FMCSA's enforcement activities related
to the drug testing regulations. Our report in May 2008 will also
focus on the various options that have been proposed to address
the challenges and problems we have discussed today.
Mr. Chairman, this concludes my prepared statement. I would be
pleased to respond to any questions that you or other Members of
the Subcommittee might have.
For further information on this statement, please contact
Katherine Siggerud at (202) 512-2834 or [email protected]. Contact
points for our Offices of Congressional Relations and Public
Affairs may be found on the last page of this statement.
Individuals making key contributions to this testimony were Andrew
Von Ah, Assistant Director; Andrea Chinchilla; Paul Desaulniers;
Michelle Everett; Bert Japikse; Sara Ann Moessbauer; John Ryan;
Sandra Sokol; Stan Stenersen; and Rebecca Kuhlmann Taylor.
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Highlights of [25]GAO-08-220T , a testimony before the Subcommittee on
Highways and Transit, Committee on Transportation and Infrastructure,
House of Representatives
November 1, 2007
MOTOR CARRIER SAFETY
Preliminary Information on Challenges to Ensuring the Integrity of Drug
Testing Programs
Crashes involving commercial motor carriers, including trucks and buses,
account for 13 percent of all highway deaths each year. While illegal drug
use is not among the most frequently cited factors associated with large
truck crashes; studies show that the use of illegal drugs, such as
marijuana, heroin, or cocaine, can severely impair driving ability. Since
1988, federal regulations have required commercial drivers to submit urine
samples to be tested for drugs. The Federal Motor Carrier Safety
Administration (FMCSA) is responsible for ensuring compliance with these
regulations. News reports and other investigations have raised concerns
that drivers may be escaping detection by avoiding the test or somehow
altering the results.
This testimony provides preliminary information on the challenges
confronting FMCSA in (1) overseeing and enforcing compliance with drug
testing regulations and (2) ensuring the integrity of the drug tests and
the processes for keeping drivers with identified drug problems off the
roads. It is based on work currently in process, which includes examining
options to address these challenges. GAO's work thus far has included
interviews with officials from the Department of Transportation (DOT) and
the Substance Abuse and Mental Health Services Administration (SAMHSA),
along with a wide variety of stakeholders, including motor carriers,
unions, and industry associations. GAO discussed this testimony with DOT
officials and incorporated their comments as appropriate.
FMCSA faces two key challenges in ensuring that commercial motor carriers
have drug testing programs in place. First, there appears to be a
significant lack of compliance among motor carriers, particularly small
carriers and self-employed drivers. Violations of drug testing protocols
are noted in more than 40 percent of FMCSA's safety audits conducted since
2003 of carriers that have recently started operations and more than 70
percent of the compliance reviews conducted on carriers already in the
industry since 2001. These problems also extend to service agents, which
are entities that collect urine samples or administer other aspects of the
program. For example, GAO investigators working under cover tested 24
collection sites and determined that 22 did not fully comply with
applicable protocols. The second challenge is that FMCSA's oversight
activities are limited, both in quantity and scope. Safety audits, which
are targeted at new entrants, began in 2003 and, as a result, do not
affect carriers in business earlier than 2003. Such companies can be
covered in compliance reviews, but these reviews occur at only about 2
percent of carriers a year, according to FMCSA data. In addition, FMCSA
oversight does not specifically address compliance by service agents, such
as collection sites, unless there are particular allegations or
complaints.
Even when FMCSA is able to ensure that carriers and others are in
compliance with drug testing requirements, there are additional challenges
in ensuring the integrity of drug testing programs. The urine test itself
can be subverted in various ways, such as adulterating or diluting the
urine sample or substituting synthetic urine or a drug-free sample.
Products designed to ``beat'' the test are brazenly marketed on the
Internet. The extent to which subversion is occurring is unknown------and
is impossible to determine. SAMHSA officials with whom we met told us when
adulterants work well and destroy the evidence of their presence, they are
undetectable. Furthermore, the required urine test has certain
limitations. For example, it covers only five drug categories (marijuana;
cocaine; amphetamines; opiates, such as heroin; and phencyclidine (PCP)),
and it may provide a clean result if a person has not used any of these
drugs within the past several days. Finally, drivers may not disclose
instances in which they failed previous drug tests. If they are able to
remain drug-free for enough time to pass a preemployment test, their new
employer may not know about their past history of drug use.
GAO identified various options to address these challenges, some of which
were proposed by carriers, industry associations, DOT, and others. These
options include publicizing educational information about the regulations
for carriers, service agents, and drivers; encouraging carriers to do more
to ensure service agent compliance; improving and expanding FMCSA
oversight and enforcement authority; adopting federal legislation to
prohibit products designed to tamper with a drug test; and developing a
national reporting requirement for past positive drug test results. GAO's
ongoing work will examine the advantages and disadvantages of the various
options in more detail; we expect to issue the report in May 2008.
References
Visible links
12. http://www.gao.gov/cgi-bin/getrpt?GAO-05-653T
13. http://www.gao.gov/cgi-bin/getrpt?GAO-08-225T
14. http://www.gao.gov/cgi-bin/getrpt?GAO-07-585
15. http://www.gao.gov/cgi-bin/getrpt?GAO-07-584
16. http://www.gao.gov/cgi-bin/getrpt?GAO-07-584
17. http://www.gao.gov/
18. http://www.gao.gov/
19. http://www.gao.gov/fraudnet/fraudnet.htm
20. mailto:[email protected]
21. mailto:[email protected]
22. mailto:[email protected]
23. http://www.gao.gov/cgi-bin/getrpt?GAO-05-653T
24. http://www.gao.gov/cgi-bin/getrpt?GAO-08-220T
25. http://www.gao.gov/cgi-bin/getrpt?GAO-08-220T
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