DATIA's Government Relations team regularly tracks activities within various legislative bodies. As the leading voice in the drug and alcohol testing industry, DATIA's leadership and staff are dedicated to being the source for expertise in the built government and a key resource for policy-makers in the development and change of legislation and regulations affecting our industry, community and profession. 


 

May 5, 2022

DATIA Submits Public Comments on Oral Fluid Testing to the Department of Transportation 

On April 29, 2022, DATIA formally submitted comments to the Department of Transportation's Notice for Proposed Rulemaking regarding Procedures for Transportation Workplace Drug and Alcohol Testing Program: Addition of Oral Fluid Specimen Testing for Drugs, as published in Volume 87 Number 39 of the Federal Register on February 28, 2022.

Through engaging with DATIA Members and Leadership, our government relations team in Washington, D.C. was able to craft a response and personally deliver the comments to Ms. Patrice Kelly, Director of the Office of Drug and Alcohol Policy and Compliance (ODAPC) at the Department of Transportation. Without taking a political stance, our comment centered on industry thought leadership, affirming our values as an independent, third-party expert in the drug and alcohol testing space. Stakeholder input is critical to the regulatory and policy making process.

We were honored to showcase DATIA’s vast experience working with oral fluid testing practices and we believe our collected feedback will be valuable as the Department finalizes upcoming regulation.

Comments Submitted

April 29, 2022

Secretary Pete Buttigieg
Department of Transportation
1200 New Jersey Avenue SE
Washington, DC 20590
RE: Docket DOT-OST-2021-0093

Dear Secretary Buttigieg,

The Drug and Alcohol Testing Industry Association is pleased to offer comments to the Department of Transportation (DOT) Procedures for Transportation Workplace Drug and Alcohol Testing Program: Addition of Oral Fluid Specimen Testing for Drugs, as published in Volume 87 Number 39 of the Federal Register on February 28, 2022. DATIA’s members appreciate the opportunity for stakeholders to provide feedback on the proposed rulemaking and believe stakeholder input is critical to regulatory and policymaking process. DATIA’s varied members have vast experience working with oral fluid testing practices and we believe their collected feedback will be valuable as the Department finalizes upcoming regulation.

About DATIA

The Drug and Alcohol Testing Industry Association (DATIA) was founded in 1995 and has grown to represent over 1,500 member companies. These member companies represent the entire spectrum of drug and alcohol service providers, including collection sites, laboratories, consortiums/third party administrators, medical review officers, and testing equipment manufacturers. DATIA’s mission is to provide education, resources, and advocacy to those involved in and interested in drug and alcohol testing.
Through federal outreach, DATIA advocates for the importance of drug and alcohol testing systems as a preventative measure against substance abuse. We believe drug and alcohol testing for the workplace represents the opportunity to bridge public safety and public health efforts. Strong drug and alcohol testing standards can dissuade individuals from partaking in illegal substances and create safer living and working environments in the United States.

Oral Fluid Testing Standards

Regarding the DOT’s request for comments on whether oral fluid or urine testing practices should be mandated or prohibited for certain testing, DATIA believes clear scenarios for how urine or oral fluid methods are designated as eligible for testing by an employer should be laid out in the final rulemaking published by the DOT. By allowing employers to decide on a case-by-case basis who to test with urine or oral, the regulation is opening the possibility of discriminatory use and inconsistency in testing given different windows of detection for the two matrices. One proposal DATIA members believe may resolve this possibility is for DOT to require that employers identify within their policy consistent use of a testing method, either all urine or all oral fluid, OR designate in policy the approved testing method by reason for test. If a pre-employment urine test result is invalid or if a shy bladder situation arises, oral fluid testing can then be invoked as an alternative based on the employer policy and/or MRO recommendation. Likewise, if a pre-employment oral fluid test is invalid or a ‘dry mouth’ situation arises, urine testing can then be invoked as an alternative based on the employer policy and/or MRO recommendation.

Additionally, for testing scenarios like random, post-accident, or reasonable suspicion where the employer’s designated specimen type cannot be collected and no recollection option exists, an alternative method in these circumstances could be mandated by DOT to ensure a collection occurs.

DATIA cautions against allowing DOT-regulated employers to have significant variability in their application of use for both testing methods. Inconsistencies in the application of policy between test methodologies could also lead to regional inequities. For example, employers in remote areas who do not have access to reasonably located and priced collection sites may choose oral fluid to for ease of access to testing or to eliminate collection fees, but then use urine testing in more urban areas. The variance in detection windows may then cause regional or location-based discriminatory practices. DATIA recommends that DOT define acceptable application of policy related to testing methods to ensure that employers have consistency and uniformity in their use.

Substance Abuse Professional Remote Evaluations

DATIA members strongly support SAPs having the option to conduct remote virtual evaluations. Often to individuals who do not live in proximity to an SAP or are limited to how easily they can access treatment by virtue of an in-person requirement. Virtual evaluations and assessments enable more access to SAP resources treatment and can provide individuals with a more expedited return to work post recovery.

Other Matters of Interest

Regarding the proposed amendment to § 40.67 to address same gender observation and collection of urine specimens, DATIA cautions against specific language changes to § 40.67 and urges the DOT to provide clear definitions for “certified medical professional” and “certified collector”. Many of DATIA’s members hire and train “certified collectors” that may or may not be medical professionals (CNA, MA, LPN, RN, CRNP, PA, MD, etc.) and those roles will likely not be comfortable performing direct observation collections on the opposite sex. Defining an appropriate level of licensed medical personnel may add to the overall cost of these collections, but this added flexibility would in turn reduce the burden on collection sites from a same-sex staffing perspective. DATIA also urges DOT to provide specific and strong standards for training collectors.

DATIA does not support allowing canceled tests to be “uncancelled”. DATIA cautions the DOT against taking this action as employers may have adjudicated based on the final result and donors may have taken another test by the time the first is “uncancelled.” This circumstance could complicate hiring decisions and make parties involved uncertain as to what test to follow and adjudicate. Without additional regulations, such as a maximum timeline to “uncancel,” DATIA cautions the process may be too convoluted to implement in practice. DATIA supports the opportunity for the MRO to consult with ODAPC on cancelled tests over 60 days from date of collection where no recollection option was available and extenuating circumstance may apply.

Subpart D – Collection Sites, Forms, Equipment and Supplies used in DOT Collections

Reference 40.49 –DATIA agrees that a clear, transparent device would be appropriate.

Reference 40.67 – DATIA believes the Employer’s policy should dictate whether an alternative specimen collection is acceptable for a shy bladder or dry mouth scenario for pre-employment. Where the reason for test does not accommodate a recollection, an alternate method of testing should be required by DOT.

Subpart F

Regarding the requested comments on proposed changes to § 40.84 (§ 40.99 in the current regulation) that would require laboratories to keep non-negative specimens for only 90 days, rather than the current one-year requirement, DATIA urges the DOT to consider a more moderate approach to the timeframe. DATIA’s members provided feedback indicating 90 days is too abbreviated and may cause undue burden on TPAs and MROs to run the retesting procedure. Therefore, DATIA recommends the required retention timeframe be reduced to six months.

Subpart G

Current MRO training programs incorporate both oral fluid and hair testing training and relevant content in their certification program.

Reference 40.365 – DATIA agrees with the addition of this language.

Reference 40.327 – The MRO must take appropriate steps to balance public safety concern and the right to privacy of the individual that is subject to testing. We support fully the departments 2017 final rule preamble discussion that medical information or any other communication regarding a safety sensitive concern should be processed and reported separately from the standard result report.

Time and Cost Savings

While difficult to quantify, DATIA members believe the savings associated with use of an oral fluid collection as an alternative to the current ‘shy bladder’ process is quite significant per instance. The costs for these events include up to three hours of collector time, the physician referral, a physical evaluation which may not be covered by insurance, along with lost productivity and lost wages for the individual worker, plus the added administrative burden for the employer. The ability to revert to an alternate method of collection in this circumstance is invaluable.

Use of third-party providers for urine collection are typically matched from an employer site to a collection location within 15 miles. Using Federal business mileage rates for 2022 of 58.5 cents per mile, each third-party collection that moves to an employer site collection could save an estimated $17.55 per test.

Online recruiting tools estimate the hourly rate for a truck driver to be $18-$29 per hour, an aircraft mechanic at $26 per hour, a bus driver to be $18-$22 per hour, and a train operator at $20-$22 per hour. If the average DOT worker’s hourly rate is roughly $22.14 per hour, the wage savings by avoiding their drive time to and from a third-party collection site could be $11.07 per test event.

The loss of productivity associated with that additional time driving to and from a third-party collection provider should also be given consideration, along with average wait time vs active collection time as compared to an employer (or virtually monitored) specimen collection should also be considered when calculating savings.

Costs and Benefits

DATIA members agree that the benefits to reducing shy bladder, reducing instances of ‘cheating’, and removing the need for other collection site setup requirements have significant value.

The added flexibility for where a collection can occur represents significant savings as well by reducing lost productivity, wages, and mileage incurred by sending an individual to a third-party collection location.

Environmental Impact

As employers begin to adopt the use of oral fluid collection in their place of business, there is also a positive impact on the environment. The average passenger vehicle emits approximately 411 grams of CO2 per mile. For every test that moves to the employer site or a virtually collected test in immediate proximity to the individual testing, we reduce unnecessary CO2 emissions. Based on the number of federally mandated tests performed annually, this is a positive environmental impact and should not be overlooked.

Additionally, the plastic consumption and subsequent disposal/recycle methods for an oral fluid device should be compared to that of a urine collection cup plus its two split vials.

Sincerely,

Anthony Washington
DATIA President

Robert O. Patterson, JD
DATIA Executive Director