The DOT published updates to 49 CFR Part 40 (Part 40) to the Federal Register on November 13, 2017. All DOT-regulated drug testing will be directly impacted by these updates when they go into effect on January 1, 2018. The DOT updates were published in direct response to the Department of Health and Human Services (DHHS) revised mandatory guidelines for federal workplace drug testing programs that went into effect on October 1, 2017.
The changes to DOT-mandated drug testing are divided into seven categories:
- DOT list-serve
- DNA testing
- Clarification of specimen types
- Additional fatal flaws and questionable specimens
- Updates to Medical Review Officer (MRO) policy
- Blind specimen removal
- DOT drug testing panel changes
DOT List-Serve
Under the current Part 40, Medical Review Officers (MRO’s), Substance Abuse Professionals (SAPs), Blood Alcohol Technicians (BATs), Screening Test Technicians (STTs), and collectors have to maintain a hard copy of Part 40 on premises in order to keep current on any changes. The personnel previously mentioned will receive all updates immediately and directly to their email inbox through their subscription to the DOT list-serve.
DNA Testing
The updated Part 40 further strengthens the DOT’s stance that DNA testing of urine specimens is not authorized.
Clarification of Specimen Types
The updates to Part 40 clearly state that the DOT authorizes drug testing of only urine specimens that are screened and confirmed at HHS-certified laboratories. Point of collection testing (POCT), hair testing, and oral fluid testing are not permitted.
Additional Fatal Flaws and Questionable Specimens
Part 40 detailed four fatal flaws prior to the updates that go into effect January 1, 2018. Three more flaws have been added to the updated Part 40. They are as follows:
- There is no CCF.
- Two separate collections were performed using one CCF.
- There was no specimen submitted to the laboratory with the CCF, but there was a specimen actually collected.
Any initial sample that is questionable (e.g., out of normal temperature range), following which the MRO will evaluate any “shy bladder” situation if the employee was unable to provide a sufficient specimen for the direct observation recollection.
Updates to MRO Procedures
Some of the most significant changes to the updated Part 40 came to MRO procedures, with not only changes to policy, but also to general testing practices. At their discretion, MROs are allowed under the new Part 40 to authorize testing for THC-V in addition to D, L stereoisomers of amphetamine and methamphetamine. MROs are still required to attend retraining every five years to stay in good standing.
MROs must now verify that a prescription is legally valid under Part 40 by calling the pharmacy or doctor to ensure validation. Due to technological advances such as Photoshop, MROs are no longer allowed to accept a photo of a prescription as proof of legality. As marijuana is still listed as a Schedule I drug on the federal level, the revised Part 40 clarifies that medical marijuana is not a legal prescription.
Changes were made to the process to ensure that employees are informed when an MRO reports medical information to a third party. The new process is as follows:
- The employee has 5 business days after the verified negative result is reported to have the prescribing physician contact the MRO. The MRO and prescribing physician will determine if the medication(s) can be changed to one that does not pose a significant safety risk and/or make the employee medically unqualified.
- After 5 business days, the MRO will report the safety concern.
- The MRO must immediately report the downgraded test result as a verified negative per Part 40. The employer receives the negative result first, and then any medical information follows.
- The MRO can report medical information to third parties before the 5-day period ends if the prescribing physician contacts the MRO before the end of 5 business days and cannot alleviate the significant safety risk.
Blind Specimen Removal
Under the revised Part 40, the blind specimen requirements for DOT-regulated programs are no longer in place. Due to the many years of DOT blind specimen requirements, the accuracy of HHS labs has been consistently established, and it is a continued business necessity for those labs to retain a reliable record of accuracy. HHS-certified laboratories will still be required to submit to proficiency testing; however, Third Party Administrators (TPAs) will no longer be required to submit blind specimens on behalf of their clients.
DOT Drug Testing Panel Changes
The traditional DOT 5-test panel will remain; however, four new drugs are to be incorporated to the panel with the updated Part 40, in addition to a few other minor changes. Hydrocodone, hydromorphone, oxycodone, and oxymorphone have been added to the panel as new semi-synthetics. Under amphetamines, methylenedioxyethylamphetamine (MDEA) has been removed for confirmatory testing, and methylenedioxyamphetamine (MDA) has been added as an initial test analyte. Additionally, the drug panel language has been changed from “opiates” to “opioids” to accommodate the additional semi-synthetic opioids.
Conclusion
Screeners, TPAs, and providers need to plan for these changes and put them into practice on January 1, 2018. Additionally, all employers who perform DOT-regulated drug testing need to update their policies before January 1, 2018, to ensure compliance. Employers in states that require adherence to DOT guidelines also need to update their policies.
The updates to Part 40 go into effect on January 1, 2018.
