Motor Carrier Safety
Improvements to Drug Testing Programs Could Better Identify Illegal Drug Users and Keep Them off the Road
Gao ID: GAO-08-600 May 15, 2008
Federal law requires commercial drivers to submit urine specimens for drug testing. The Federal Motor Carrier Safety Administration (FMCSA) is responsible for ensuring that motor carriers comply with these regulations. Recent reports have raised concerns that some drivers may not be tested, some may be tested but avoid detection, and some may test positive but continue to drive. GAO was asked to look at these challenges. This report reviews (1) the factors that contribute to challenges related to drug testing and (2) the various options that exist to address these challenges. GAO obtained information from a wide variety of stakeholders in the drug testing industry, and analyzed data from FMCSA and others to determine the potential effectiveness of various options.
Many factors contribute to the challenges of detecting drivers who are using illegal drugs and keeping them off the road until they complete the required return-to-duty (treatment) process. Factors contributing to drivers not being in a drug testing program include FMCSA's limited oversight resources for all carriers and limited enforcement options for safety audits of new carriers. Although FMCSA and its state partners review thousands of carriers each year, these reviews touch about 2 percent of the industry. As a result, carriers have limited incentives to follow the regulations. Factors contributing to failures to detect drug use include the ease of subverting the urine test, either because collection sites are not following protocols or because drivers are using products that are widely available to adulterate or substitute urine specimens. For example, GAO investigators, posing as commercial truck drivers needing drug tests, found that employees at 10 of 24 collection sites tested did not ask the investigator to empty his pants pockets, as they are required to do, to ensure he was not carrying adulterants or substitutes. Factors contributing to drivers testing positive yet continuing to drive include drivers not divulging past drug test history, carriers' failure to conduct thorough background checks on a driver's past drug testing history, and self-employed owner-operators' failure to remove themselves from service. GAO's analysis identified the following options as having the greatest potential for addressing these challenges: (1) For increasing the number of drivers tested: strengthen the enforcement of safety audits for new carriers. Stiffer requirements for having a testing program will likely result in more new entrants having effective drug testing programs. DOT has begun this improvement. (2) For reducing opportunities to subvert the test: additional authority to levy fines when collection sites do not follow federal protocols. This could decrease the opportunity to subvert the test. Also, congressional action to ban subversion products at the federal level could make these products more difficult to obtain. (3) For reducing the number of drivers who test positive and continue to drive: a national database of drug testing information. This would allow for more thorough checking of applicants' past test results. FMCSA has begun to lay the groundwork for a database, but FMCSA may need additional authority to ensure accurate reporting of information. Also, using the database to encourage states to suspend a driver's commercial driver's license after a positive drug test or refusal to test would be a more direct way to compel drivers to complete the return-to-duty process. Any of these options would require either additional resources or a transfer of resources that fund other safety-related initiatives, and some of the options require federal or state legislation and rule making. A national database would have to consider driver protections and a process by which information can be corrected or removed.
Recommendations
Our recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
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GAO-08-600, Motor Carrier Safety: Improvements to Drug Testing Programs Could Better Identify Illegal Drug Users and Keep Them off the Road
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Could Better Identify Illegal Drug Users and Keep Them off the Road'
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
May 2008:
Motor Carrier Safety:
Improvements to Drug Testing Programs Could Better Identify Illegal
Drug Users and Keep Them off the Road:
GAO-08-600:
GAO Highlights:
Highlights of GAO-08-600, a report to congressional requesters.
Why GAO Did This Study:
Federal law requires commercial drivers to submit urine specimens for
drug testing. The Federal Motor Carrier Safety Administration (FMCSA)
is responsible for ensuring that motor carriers comply with these
regulations. Recent reports have raised concerns that some drivers may
not be tested, some may be tested but avoid detection, and some may
test positive but continue to drive. GAO was asked to look at these
challenges. This report reviews (1) the factors that contribute to
challenges related to drug testing and (2) the various options that
exist to address these challenges. GAO obtained information from a wide
variety of stakeholders in the drug testing industry, and analyzed data
from FMCSA and others to determine the potential effectiveness of
various options.
What GAO Found:
Many factors contribute to the challenges of detecting drivers who are
using illegal drugs and keeping them off the road until they complete
the required return-to-duty (treatment) process. Factors contributing
to drivers not being in a drug testing program include FMCSA's limited
oversight resources for all carriers and limited enforcement options
for safety audits of new carriers. Although FMCSA and its state
partners review thousands of carriers each year, these reviews touch
about 2 percent of the industry. As a result, carriers have limited
incentives to follow the regulations. Factors contributing to failures
to detect drug use include the ease of subverting the urine test,
either because collection sites are not following protocols or because
drivers are using products that are widely available to adulterate or
substitute urine specimens. For example, GAO investigators, posing as
commercial truck drivers needing drug tests, found that employees at 10
of 24 collection sites tested did not ask the investigator to empty his
pants pockets, as they are required to do, to ensure he was not
carrying adulterants or substitutes. Factors contributing to drivers
testing positive yet continuing to drive include drivers not divulging
past drug test history, carriers‘ failure to conduct thorough
background checks on a driver‘s past drug testing history, and self-
employed owner-operators‘ failure to remove themselves from service.
GAO‘s analysis identified the following options as having the greatest
potential for addressing these challenges:
* For increasing the number of drivers tested: strengthen the
enforcement of safety audits for new carriers. Stiffer requirements for
having a testing program will likely result in more new entrants having
effective drug testing programs. DOT has begun this improvement.
* For reducing opportunities to subvert the test: additional authority
to levy fines when collection sites do not follow federal protocols.
This could decrease the opportunity to subvert the test. Also,
congressional action to ban subversion products at the federal level
could make these products more difficult to obtain.
* For reducing the number of drivers who test positive and continue to
drive: a national database of drug testing information. This would
allow for more thorough checking of applicants‘ past test results.
FMCSA has begun to lay the groundwork for a database, but FMCSA may
need additional authority to ensure accurate reporting of information.
Also, using the database to encourage states to suspend a driver‘s
commercial driver‘s license after a positive drug test or refusal to
test would be a more direct way to compel drivers to complete the
return-to-duty process.
Any of these options would require either additional resources or a
transfer of resources that fund other safety-related initiatives, and
some of the options require federal or state legislation and rule
making. A national database would have to consider driver protections
and a process by which information can be corrected or removed.
What GAO Recommends:
GAO recommends that the Secretary of Transportation expedite efforts
related to improving safety audits and implementing a national database
of drug testing information. GAO suggests Congress consider (1)
adopting legislation to ban subversion products, (2) providing FMCSA
with additional authority over entities involved in the drug testing
process, and (3) encouraging or requiring states to suspend commercial
driver‘s licenses of drivers who fail or refuse to take a drug test.
DOT and HHS generally agreed with the findings and recommendations in
this report.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-600]. For more
information, contact Katherine A. Siggerud at (202) 512-2834 or
siggerudk@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Several Factors Contribute to the Challenges in FMCSA's Current Drug
Testing Program:
Options for Addressing Challenges Involve Effectiveness and Feasibility
Trade-offs:
Conclusions:
Matters for Congressional Consideration:
Recommendations for Executive Action:
Agency Comments:
Appendix I: Scope and Methodology:
Appendix II: Oversight of Drug Testing Programs by Selected DOT
Administrations:
Appendix III: States That Require Reporting of DOT Drug Test
Information:
Appendix IV: Issues to Consider in Creating a National Database and
Commercial Driver's License Suspension Requirement:
Appendix V: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Approaches to Improve Effectiveness of DOT's Drug Testing
Program:
Table 2: Approaches to Reduce the Number of Drivers Who Are Not in Drug
Testing Programs:
Table 3: Approaches to Increase the Detection of Drivers Using Drugs:
Table 4: Approaches to Reduce the Number of Drivers Who Test Positive
or Refuse to Test Yet Continue to Drive without Going through the
Return-to-Duty Process:
Table 5: List of Federal Agencies, State Agencies, and Industry
Associations Interviewed:
Table 6: DOT Administration Oversight of Drug Testing Programs:
Table 7: States That Have Created Databases or Note the Motor Vehicle
Record:
Table 8: States That Take Action Against Drivers Who Test Positive or
Refuse to Test:
Figures:
Figure 1: Overview of the DOT Drug Testing Process:
Figure 2: Top Five Drug and Alcohol Testing Violations and Associated
Fines in Compliance Reviews, 2007:
Abbreviations:
AAMVA: American Association of Motor Vehicle Administrators:
CCF: Federal Drug Testing Custody and Control Form:
CDL: commercial driver's license:
CDLIS: Commercial Driver's License Information System:
DOT: Department of Transportation:
FAA: Federal Aviation Administration:
FMCSA: Federal Motor Carrier Safety Administration:
FRA: Federal Railroad Administration:
FTA: Federal Transit Administration:
HHS: Department of Health and Human Services:
MVR: motor vehicle record:
ODAPC: Office of Drug and Alcohol Policy and Compliance:
PCP: phencyclidine:
SafeStat: Motor Carrier Safety Status Measurement System:
SAMHSA: Substance Abuse and Mental Health Services Administration:
[End of section]
United States Government Accountability Office: Washington, DC 20548:
May 15, 2008:
The Honorable James L. Oberstar:
Chairman:
Committee on Transportation:
and Infrastructure House of Representatives:
The Honorable Peter A. DeFazio:
Chairman:
Subcommittee on Highways and Transit:
Committee on Transportation and Infrastructure: House of
Representatives:
Every year, approximately 5,500 fatalities and 160,000 injuries result
from crashes involving large trucks and buses. While vehicle problems
and driver behaviors such as speeding or fatigue are the most
frequently cited factors involved in these crashes,[Footnote 1] studies
indicate that operating a motor vehicle while under the influence of
drugs or alcohol, or both, can increase crash risk anywhere from two-to
six-fold.[Footnote 2] Since 1988, federal regulations have required
commercial drivers to be tested for drugs and alcohol in order to
reduce the number of crashes that occur as a result of illegal drug use
and alcohol misuse.[Footnote 3] This is a sizable undertaking since
more than 700,000 commercial motor carrier companies are registered
with the federal government and thousands of new, often small, carriers
enter the industry each year. The Department of Transportation (DOT)
and one of its administrations, the Federal Motor Carrier Safety
Administration (FMCSA), publish regulations that govern the drug and
alcohol testing process for truck and motor coach drivers.[Footnote 4]
FMCSA is responsible for ensuring that motor carriers comply with these
regulations and does so through safety audits of carriers that have
recently started operations and compliance reviews of carriers already
in the industry. FMCSA officials and some stakeholders we met with
agreed that FMCSA's drug testing requirements have been successful in
deterring and reducing illegal drug use among those employed in
transportation safety-sensitive positions.
Drug testing results indicate that some drivers are using illegal
drugs. FMCSA data show that each year from 1994 through 2005, between
1.3 percent and 2.8 percent of drivers tested positive for the presence
of illegal drugs under random testing. However, these statistics do not
indicate the full extent of drug use among truck drivers, and the
current drug testing program does not guarantee that drivers who do
test positive or refuse to be tested are disqualified from driving
until they complete the required return-to-duty process.[Footnote 5] In
particular, the following issues have been identified that suggest
there is reason for concern regarding the potential extent of drug use
among truck drivers:
* An unknown number of commercial drivers who use illegal drugs are not
part of a drug testing program. Statistics from compliance reviews
indicate that over 9 percent of these reviews conducted between 2001
and 2007 found that carriers have no drug testing program at all,
meaning that many drivers are not subject to a drug testing program.
While most of those who are not tested would likely test negative for
drugs, it is likely that some drivers who would test positive for drugs
are not being tested.
* An unknown number of drug users manage to avoid detection even when
they go through the testing process. For example, some drivers are
successfully adulterating or substituting their urine specimens with
products that are widely available and marketed as allowing drivers to
"beat" the test.
* Among the drivers who test positive, an unknown number continue to
drive--primarily by "job-hopping"--without completing a required return-
to-duty process guided by a substance abuse professional. There is
little data on the number of drivers who complete the return-to-duty
process. A Director of the Substance Abuse Program Administrators
Association conservatively estimates that less than half of commercial
driver's license (CDL) holders who test positive or refuse to test
successfully complete the return-to-duty process before returning to
their jobs.[Footnote 6] Those who do not go through the return-to-duty
process and continue to drive are called job-hoppers--job-hoppers test
positive for one carrier; are fired, quit, or are not hired; do not go
through the return-to-duty process; abstain from drug use for a short
period; test negative on a pre-employment test for another carrier; go
to work for another carrier; and could continue to use drugs.
Furthermore, self-employed owner-operators are also unlikely to remove
themselves from safety-sensitive duty in the event of a positive test,
though it is not known how many truly self-employed owner-operators
exist.[Footnote 7]
In light of these issues, this report examines (1) the factors that
contribute to the main challenges of ensuring all drivers are in a drug
testing program, limiting drivers' ability to avoid detection by a drug
test, and keeping drivers off the road once they have tested positive;
and (2) the options that exist for addressing these challenges, the
potential effect of these options, and the challenges that would be
faced in implementing them.
To address these issues, we reviewed DOT and FMCSA regulations,
policies, and reports, and interviewed officials from FMCSA and DOT's
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, as well as
data on enforcement activities. 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, consortiums/third-
party administrators, and others involved in the drug testing industry.
We also interviewed representatives from a company that manages several
HHS-certified laboratories that analyze DOT drug test specimens. We
observed FMCSA oversight activities, including four compliance reviews
and two new-entrant safety audits in several states. We selected states
in which to observe compliance reviews and new-entrant safety audits on
the basis of the availability of ongoing FMCSA oversight activities. We
interviewed representatives from the motor carriers being audited. In
total, we interviewed 10 motor carriers, including both large and small
carriers, and one owner-operator. We interviewed officials from motor
vehicle licensing departments in states that had passed laws to require
reporting of positive drug test results. We interviewed the state
attorney general's office of a state that passed a law banning
adulterants and substances to subvert a drug test. We also interviewed
officials involved in the drug testing programs at other DOT modal
administrations, including the Federal Aviation Administration, the
Federal Transit Administration, and the Federal Railroad
Administration, to gather information on whether these problems are
common across the administrations, how problems are addressed by the
other administrations, and how issues and circumstances in the other
modal administrations can or cannot be compared with FMCSA's
experience.
In the course of our interviews and analyses, we identified many
options that have been suggested as possible ways to address problems
or weak points in FMCSA's current drug testing program. We assessed the
various options for their likely effectiveness in addressing the
particular problem they were designed to address and their feasibility
from the standpoint of cost, support, and amount of effort involved in
implementation. Our assessments were based on (1) analyzing and
synthesizing the views of the various government officials and industry
stakeholders we interviewed with regard to their estimations of the
potential effectiveness and feasibility of pursuing various options;
(2) reviewing studies that have been conducted regarding the
feasibility of certain options; (3) analyzing cost and other data; and
(4) analyzing the experience of other modal administrations or entities
in implementing various options, where applicable. Inherently there are
certain limitations and variances in the quality of data and
information available about certain options. Therefore, we used a
certain amount of professional judgment in comparing options relative
to one another. We determined that the data used in this report are
sufficiently reliable for our purposes. We conducted this performance
audit from June 2007 to May 2008 in accordance with generally accepted
government auditing standards. Those standards require that we plan and
perform the audit to obtain sufficient, appropriate evidence to provide
a reasonable basis for our findings and conclusions based on our audit
objectives. We believe that the evidence obtained provides a reasonable
basis for our findings and conclusions based on our audit objectives.
Results in Brief:
Many factors contribute to the three main challenges FMCSA faces in
ensuring all drivers are in a drug testing program, limiting drivers'
ability to avoid detection by a drug test, and keeping drivers off the
road once they have tested positive or refused-to-test.
* First, factors that lead to drivers not being in a drug testing
program include limitations in FMCSA's oversight resources for existing
carriers and limitations in FMCSA's enforcement options when conducting
safety audits of new carriers. FMCSA's limited oversight resources
lessen the incentive for existing carriers to follow the regulations.
FMCSA and its state partners conducted an average of approximately
13,000 compliance reviews on carriers each year from 2001 through 2007,
and these reviews were targeted based on risk.[Footnote 8] However,
over 700,000 carriers are registered with DOT, and over 70 percent of
those do not have a safety record and therefore would not be targeted
for a compliance review. Furthermore, FMCSA has conducted safety audits
on tens of thousands of new carriers each year, often finding that
carriers do not have a drug testing program. However, a new carrier can
still pass a safety audit without a drug testing program, and FMCSA
follow-up to ensure that problems were corrected does not always occur.
* Second, factors that create opportunities for subversion of the urine
test and lead to drug users avoiding detection include lack of
compliance with DOT protocols by collectors, little oversight of
collectors and service agents by FMCSA, and the availability of
subversion products.[Footnote 9] For example, a recent GAO
investigation found that collectors at 10 of 24 sites tested failed to
ask the GAO investigators, who were posing as truck drivers, to empty
their pants pockets to ensure no items were present that could be used
to adulterate the specimen, as required by DOT protocols.[Footnote 10]
However, FMCSA does not conduct regular oversight over collectors and
other service agents and does not have authority to impose civil
penalties against service agents to enforce compliance. Furthermore,
subversion products are widely available and marketed on the Internet
and are not illegal under federal law. Also, GAO investigators
purchased adulterants and synthetic urine through the Internet and used
them in 8 of the 24 drug test specimens.[Footnote 11] The laboratories
that analyzed the 8 specimens did not detect the adulterants or
substitutes the investigators used.
* Third, factors that contribute to drivers continuing to drive after
testing positive or refusing to test include drivers not reporting
their drug testing history, incomplete background checks by carriers,
and loopholes for self-employed drivers. For example, drivers are not
likely to list on their job application any previous employment where
they tested positive or refused to test, although they are required to
include this information. Further, a failure to conduct required
background checks--which includes checking for past positive drug
tests--is one of the top violations found in compliance reviews.
Finally, self-employed drivers are not likely to remove themselves from
service after testing positive.
Our analysis and discussions with carriers, industry associations, DOT,
and others identified a number of options that could potentially
address some of the factors that contribute to the challenges in
FMCSA's drug testing program. The options involve trade-offs between
effectiveness and feasibility, and no one option comprehensively
addresses all three main challenges we found. Implementing any options
would require either additional resources or a transfer of resources
that fund other initiatives related to road safety, and some options
require a federal rule-making process and legislation. Among the
various options available, the following appear to offer the greatest
benefit for the additional resources that would be needed:
* For increasing the number of drivers that are in a drug testing
program: strengthening the enforcement of safety audits for new
carriers. Under this option, which DOT has already begun to implement,
a new entrant would risk failing the safety audit if a drug testing
program is not in place. We also considered other options, such as
increasing oversight of carriers or conducting additional audits, but
these options would generally require a higher level of expenditures to
produce effective results, and such expenditures should be viewed
relative to expenditures that can be made in other areas that may also
have an impact on safety.
* For ensuring better reliability of the test itself: additional
authority over service agents and congressional action to ban
subversion products at the federal level. FMCSA currently does not have
authority to levy fines for service agents' noncompliance with DOT
requirements. Such authority would likely send a message to the
industry that there are consequences for failing to comply and could
bring many service agents into compliance. A ban on subversion products
at the federal level could have a deterrent effect on some sellers and
on buyers because the banned product would be more difficult to obtain.
Further, a federal law would allow for prosecution in any state, if an
individual were found to be manufacturing, selling, or possessing such
products.
* For reducing the number of drivers who test positive and continue to
drive: a national database of drug testing information and authority to
suspend a commercial driver's license (CDL) for a positive drug test
result or refusal-to-test. A national database is attractive because it
provides information on a driver's past drug test history and helps
ensure that a carrier will not unknowingly hire a job-hopper.
Furthermore, FMCSA has begun to lay the groundwork for such a database.
FMCSA may need additional authority over service agents to ensure
reporting of information to the database. FMCSA would also need to
consider driver protections and a process by which information can be
corrected or removed from the database. State suspension of a driver's
CDL for a positive test or a refusal to take the test could be an
effective deterrent because it directly affects a driver's commercial
license and ability to operate a commercial motor vehicle and addresses
issues surrounding poor compliance by carriers as well as inherent
problems with self-employed drivers. Because CDLs are issued by states,
Congress would need to take action to encourage or compel states to
create or modify existing state laws to suspend a driver's CDL.
To improve the reliability of the drug test to detect illegal drug use,
to ensure that FMCSA has the appropriate authority over service agents
in the drug testing process, and to increase compliance with drug
testing requirements, Congress should consider (1) adopting legislation
to ban drug testing subversion products, (2) granting FMCSA oversight
and enforcement authority over service agents involved in the drug
testing process, and (3) taking action to encourage or compel states to
require the suspension of the CDLs of drivers who have tested positive
or who have refused to take a DOT drug test. To help FMCSA ensure
drivers who should be drug tested are in a drug testing program, and
drivers who have tested positive are kept off the road until they have
complied with return-to-duty requirements, we recommend the Secretary
of Transportation expedite the rule-making process (1) to strengthen
the requirements of safety audits for new entrants and (2) to create a
national database of positive and refusal-to-test drug and alcohol test
results.
We are making recommendations in this report that the Secretary of
Transportation take actions to assist FMCSA in ensuring drivers who
should be drug tested are in a drug testing program, and drivers who
have tested positive are kept off the road until they have complied
with return-to-duty requirements. In commenting on a draft of this
report, DOT and HHS generally agreed with the findings and
recommendations and provided technical clarifications, which we
incorporated as appropriate.
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 with 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 placarded quantities of hazardous materials.
[Footnote 12] While the largest motor carriers operate upward of 50,000
vehicles, most carriers are small, with approximately 80 percent
operating between one and six 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. According to DOT, in
2006, there were approximately 7.32 million DOT-regulated tests
conducted. DOT's drug testing both identifies and deters illegal drug
use, with the objective of improving road safety by preventing crashes
in which the driver's use of illegal drugs may be a contributing
factor. According to the Substance Abuse Program Administrators
Association, illegal drug use impacts driver safety in more ways than
simply "impairment." Risk-taking behavior, cognitive degradation, and
inattention are all correlated with illegal drug use, even when the
individual is not "impaired" from a toxicological perspective. As
implemented by DOT, testing covers five drug categories: marijuana,
cocaine, amphetamines (including methamphetamine), opiates (including
codeine, morphine, and heroin[Footnote 13]), and phencyclidine (PCP).
Motor carriers are required to obtain a negative test result prior to
employing drivers and allowing them to engage in safety-sensitive
duties. Carriers also must conduct random testing,[Footnote 14]
postaccident testing, and reasonable suspicion testing. If employees
test positive, refuse to test, or otherwise violate the regulations,
they are required to complete a return-to-duty process before re-
engaging in safety-sensitive duties. The return-to-duty process is
guided by a substance abuse professional and must include education or
treatment, return-to-duty testing, follow-up testing, and possible
aftercare.
Motor carriers must implement a drug testing program and may use
service agents to perform some or the majority of the tasks needed to
comply with DOT drug testing requirements. At a minimum, a motor
carrier must designate one of its employees to act as an employer
representative. A designated employer representative is 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.[Footnote 15] Service agents cannot act as designated employer
representatives. Service agents must meet qualification requirements
and are responsible for implementing the required protocols. Figure 1
provides information about DOT's drug testing process and the role of
service agents.
Figure 1: Overview of the DOT Drug Testing Process:
[See PDF for image]
This figure is an illustration of an overview of the DOT drug testing
process. The following information is depicted:
Notification:
Drivers are notified to submit to a drug test for one of the following
reasons:
* Pre-employment;
* Reasonable suspicion;
* Random;
* Postaccident;
* Return-to-duty and follow-up.
Notification given by: Motor carrier or consortium/third party
administrator.
Urine collection:
Drivers report immediately to the collection site, where they:
* Verify ID and empty pockets;
* Select sealed kit & provide at least 45 ml of urine;
* Watch collector check temperature and pour into two bottles--primary
and split specimen;
* Watch collector seal bottles and sign paperwork;
* Collector sends specimens to laboratory.
Performed by: Collector, who must meet DOT requirements.
Lab testing:
Analyzes primary specimen for:
* Marijuana;
* Cocaine;
* Amphetamines;
* Opiates (focused on heroin);
* Phencyclidine (PCP);
May test for presence of adulterants.
Performed by: Laboratory certified by HHS.
Medical review:
Lab results are reviewed to determine if there are legitimate medical
reasons for positive, adulterated, or substituted result. This includes
interviews, review of medical records, or request for an examination by
an approved physician.
Performed by: Medical review officer, who is nationally certified.
Employees' rights:
Upon notice by the medical review officer of a positive, adulterated, or
substituted test result, the driver has 72 hours from the review to
request the split specimen be tested by another certified laboratory.
Performed by: Medical review officer and driver.
Verified results:
Medical review officer reports verified results to the designated
employer representative as one of the following:
* Negative;
* Positive;
* Refusal;
* Canceled.
Performed by: Medical review officer.
Action taken:
If test is positive:
* Driver is immediately removed from safety-sensitive functions;
* Driver is permitted to resume duties only after evaluation, treatment
or education, and negative drug test.
Performed by: Designated employer representative, substance abuse
professional, and driver.
Source: GAO.
[End of figure]
Service agents include the following:
* 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,[Footnote 16] and sends it to
the laboratory for analysis. A collection site can be any toilet in a
clinic, hospital, or office building; a toilet on site at a carrier's
place of business; or a portable toilet.
* A laboratory analyzes the specimen. DOT is required to adhere to
testing protocols developed by HHS and to use laboratories certified by
HHS; as of April 2008, there were 42 such laboratories.
* 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, adulterated, substituted,
or invalid test results the officer must verify the laboratory results
by speaking with drivers and informing them of their right to have the
split specimen tested.
* 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,
return-to-duty testing, follow-up testing, and aftercare. Drivers are
required to complete the recommended steps before they re-engage in
safety-sensitive functions.
* 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.[Footnote 17]
The enormity and fluidity of the motor carrier industry and its service
agents, and FMCSA's limited resources, do not allow for firm control
over motor carriers or service agents in following drug testing
requirements. As of September 2007, there were approximately 724,000
commercial motor carriers registered in FMCSA's Motor Carrier
Management Information System.[Footnote 18] FMCSA partners with states
to provide oversight for safety requirements, including drug testing.
In addition to FMCSA, other DOT administrations such as the Federal
Aviation Administration (FAA), Federal Railroad Administration (FRA),
Federal Transit Administration (FTA), and Pipeline and Hazardous
Materials Safety Administration oversee safety requirements, including
drug testing, in the aviation, railroad, transit, and pipeline
industries respectively.[Footnote 19] According to the Substance Abuse
Program Administrators Association, of these administrations, FMCSA has
the largest number of entities to oversee and the fewest personnel, per
company, to do so. See appendix II for more detailed information on DOT
administration oversight of drug testing programs.
FMCSA has responsibility for ensuring compliance by trucking and motor
coach companies with all types of safety requirements, such as vehicle
inspections and hours of service, as well as drug and alcohol testing
requirements. FMCSA and its state partners ensure compliance through
several oversight activities, including safety audits of new entrants
and compliance reviews of existing companies--both of which cover
compliance with all types of safety requirements, including drug
testing.[Footnote 20] Safety audits are required for all new entrants
to the trucking industry and are opportunities for FMCSA and states to
provide educational and technical assistance to new carriers, explain
carriers' responsibilities under the federal requirements, and check
for operational deficiencies. Nearly 37,000 safety audits were
conducted in 2007. FMCSA uses a risk-based approach in addressing
safety priorities with compliance and enforcement resources. For
example, FMCSA targets carriers for compliance reviews based primarily
on a poor carrier safety record in SafeStat, which assigns each carrier
a priority to receive a compliance review.[Footnote 21] FMCSA also
targets carriers for compliance reviews based on a fatal accident, a
complaint against the carrier or driver, or a follow-up investigation
after violations. In 2007, FMCSA and state investigators conducted
16,000 compliance reviews. In addition to the audits and compliance
reviews, FMCSA also makes educational materials about drug testing
available on its Web site.
Data from FMCSA's oversight activities show that noncompliance and poor
compliance with the drug testing requirements is widespread. The most
frequently cited drug testing 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 two
most frequently cited drug testing violations in compliance reviews in
2007 were that carriers have failed to adequately implement random drug
testing or pre-employment testing (see fig. 2). Over half of the 3,075
random testing violations and 2,761 pre-employment testing violations
resulted in fines, with an average fine of $1,908 for random testing
and $1,605 for pre-employment testing.[Footnote 22] Of the 190 cases in
which a carrier failed to remove a driver with a positive drug test
from service, almost 80 percent resulted in a fine, averaging $3,141.
Figure 2: Top Five Drug and Alcohol Testing Violations and Associated
Fines in Compliance Reviews, 2007:
[See PDF for image]
This figure is a horizontal bar graph depicting the following data:
Violation: Failure to perform random testing;
Violations discovered: 3075;
Violations that resulted in fines: 1604 (average fine: $1,908).
Violation: Failure to perform pre-employment testing;
Violations discovered: 2761;
Violations that resulted in fines: 1504 (average fine: $1,605).
Violation: No drug testing program;
Violations discovered: 731;
Violations that resulted in fines: 693 (average fine: $1,821).
Violation: Failure to remove a driver with a positive drug test;
Violations discovered: 190;
Violations that resulted in fines: 150 (average fine: $3,141).
Violation: Failure to perform postaccident testing;
Violations discovered: 172;
Violations that resulted in fines: 128 (average fine: $1,802).
Source: GAO analysis of FMCSA data.
[End of figure]
While FMCSA conducts oversight of motor carriers to ensure compliance
with drug testing requirements, FMCSA only conducts oversight of
service agents employed by the carrier in cases of specific allegations
or complaints. Few carriers conduct regular oversight of the service
agents they employ, and smaller carriers are less likely to conduct
such oversight, given their more limited resources. Other DOT
administrations, including FAA, FRA, and FTA, oversee service agents in
various ways by conducting regular compliance reviews, drug testing-
specific audits, service agent-specific audits, and follow-up after
complaints. These administrations can also use public interest
exclusions to enforce service agent compliance.[Footnote 23] A recent
GAO report found that there is a lack of compliance with protocols
among service agents that collect specimens for testing. Posing as
commercial truck drivers needing DOT drug tests, GAO investigators
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.[Footnote 24]
Several Factors Contribute to the Challenges in FMCSA's Current Drug
Testing Program:
A number of factors create challenges for FMCSA to ensure that all
drivers are in a drug testing program, drivers' ability to avoid
detection by a drug test is limited, and drivers who test positive are
removed from safety-sensitive duties until they have completed return-
to-duty requirements. First, the factors that contribute to drivers not
being subject to testing include limitations in FMCSA's oversight
resources. Limited resources mean many carriers have little likelihood
of ever being reviewed, which may reduce the incentive for carriers to
follow the regulations. Some carriers also report confusion about how
to implement effective drug testing programs. Second, factors that
contribute to drivers' ability to avoid detection include the ease with
which the urine specimen can be subverted because of noncompliant
collection sites and the wide availability of products for adulterating
or replacing the urine sample. In addition, drivers could be using
drugs for which DOT does not test. Third, factors that lead to
potentially thousands of drivers who test positive to continue to drive
without completing the required return-to-duty process include the
nonreporting of past positive drug tests by drivers to prospective
employers and self-employed owner-operators who fail to remove
themselves from service.
Limited Incentive for Carrier Compliance and Poor Understanding of
Regulations by Some Carriers Can Result in Drivers Not Being Subject to
Drug Testing:
Due to the large number of motor carriers regulated, FMCSA reviews only
a small percentage of the total number of carriers. Although those
reviewed typically have been identified as having significant safety
problems, the limited number of reviews lessens the incentive for
existing carriers to comply with drug testing requirements. FMCSA and
its state partners conducted an average of over 13,000 compliance
reviews annually on carriers from 2001 through 2007, but the majority
of carriers were not visited and have little likelihood of ever being
visited.[Footnote 25] Existing owner-operators and small carriers are
less likely than larger companies to be selected for a compliance
review, since they are less likely to have a safety record. Several
associations told us that small carriers may have less incentive to
comply with drug testing regulations since visits by FMCSA or state
investigators are rare.
New-entrant safety audits provide essential educational information to
new carriers. An FMCSA official told us the majority of new entrants
are typically visited 8 to 9 months after beginning operations.
However, before the safety audit occurs, new entrants may operate
without adequately implementing safety management regulations,
including drug testing--FMCSA data indicate 30 percent of new entrants
lack a drug testing program. The purpose of the audit is to educate and
encourage compliance; under the current rules, absence of a drug
testing program does not result in a failure of the audit. An FMCSA
official estimated that less than 1 percent of new entrants fail safety
audits. After an audit, the carrier is given a list of recommendations
for corrective actions, but follow-up to ensure these actions were
taken does not always occur. However, if certain violations are
discovered during a safety audit, such as if a carrier is found to have
used a driver who had a positive drug test, the safety audit would end
and the carrier would be immediately referred for a compliance review.
FMCSA published a Notice of Proposed Rulemaking to strengthen the
safety audit pass/fail criteria to give more significance to basic
safety management requirements, including drug testing, in December
2006. A Final Rule is expected before the end of 2008.
Several stakeholders we met with told us that for some carriers,
particularly small carriers, a poor understanding of their
responsibilities to implement drug testing regulations can also lead to
carriers failing to implement a drug testing program, or considerable
noncompliance with drug testing regulations. For example, one of the
carriers we met with is in the event industry and uses trucks to haul
equipment. Since trucking is not the company's core business, the
company was not aware of the requirement to drug test its drivers. In
another example, a representative from one carrier we visited explained
that the company was not sure how to test drivers who work only
periodically.
Compliance with drug testing regulations is particularly problematic
for self-employed owner-operators. Like other drivers employed by motor
carrier companies, self-employed owner-operators must follow drug
testing regulations and participate in a drug testing program. A pre-
employment drug test must be performed, and FMCSA requires that the
owner-operator must enroll in a consortium for random drug testing
purposes. However, it is not clear how an individual who is both the
employer and the employee would comply with drug testing reporting
requirements. If a self-employed owner-operator tests positive, there
is no one to remove the individual from safety-sensitive duties.
Furthermore, self-employed owner-operators probably have the smallest
chance of being selected for a compliance review because FMCSA will
most likely not have sufficient data available to create SafeStat
ratings, unless they are in a crash with a fatality.
Several Factors Lead to Subversion of the Test and Result in Drug Users
Avoiding Detection:
Lack of Compliance by Collection Sites and Other Service Agents:
Collection sites that are out of compliance with DOT protocols for
specimen collection make it easier for drivers to subvert a test. For
example, GAO investigators, posing as commercial truck drivers needing
DOT drug tests, found that employees at 10 of 24 sites the
investigators tested failed to ask an investigator to empty his pants
pockets 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,
and the investigator had hidden an adulterant in his back pocket. At
other collection sites, investigators found substances available at the
collection site that could have been used to dilute or otherwise tamper
with their specimen. At some sites, the investigators found they were
given ample opportunity to have a different individual come in and
provide a sample for them.
While compliance with the regulations and collection protocols
certainly helps to reduce the opportunity for a driver to adulterate,
dilute, or substitute a specimen, as evidenced by our investigators'
findings, full compliance with all protocols does not ensure that no
cheating will occur. In fact, our investigators were able to substitute
a specimen at one site that followed all protocols. In addition, the
investigators concluded that at any collection site they visited, they
would have been able to tamper with their specimen despite DOT
protocols.
Carriers can mitigate the opportunity to cheat on a drug test by having
on-site collections and limiting the opportunity drivers have to
retrieve adulterants or substitutes or to dilute their sample. One
large carrier we interviewed conducts on-site collections with its own
personnel and has a policy and protocol aimed at minimizing any
opportunity a driver would have to retrieve an adulterant or
substitute. At this company, drivers are notified in person of a random
drug test and are immediately taken to have a specimen collected,
without the ability to go to a locker, a car, or anywhere else before
providing the specimen. In order to subvert the specimen in this
environment, drivers would need to carry an adulterant at all times
when in the facility. In addition to the DOT-mandated tests, this
carrier conducts more frequent drug testing. Specifically, the company
conducts unannounced tests of all drivers at least once each year.
Also, new drivers, in addition to taking a pre-employment test, are
tested again, at an unannounced time, within the first 90 days of
employment. On-site collections may not be practical for smaller
companies due to their more limited resources and the impracticality of
having drivers come into the facility without being alerted to the
possibility that they are being called in for a drug test.
In addition, other service agents, including consortiums/third-party
administrators, medical review officers, and substance abuse
professionals, may be out of compliance. For example, in one of its own
reviews, FMCSA found that a third-party administrator was not selecting
drivers at the required 50 percent rate for random tests. In other
examples, FMCSA found one unqualified individual who was acting as a
medical review officer and another unqualified individual acting as a
substance abuse professional who was issuing return-to-duty reports for
drivers that had not completed their prescribed treatment, in violation
of return-to-duty requirements.
Little Oversight of Service Agents by FMCSA:
Except in the case of specific allegations or complaints, FMCSA
investigators do not visit or audit collection sites or other service
agents to observe procedures and enforce compliance with drug testing
requirements.[Footnote 26] FMCSA and its state partners have a limited
number of staff who are currently conducting thousands of compliance
reviews and safety audits. DOT officials have stated that there are
over 20,000 collection sites across the country that can be used to
collect urine for DOT drug testing, making oversight of these sites a
daunting task.[Footnote 27] Oversight by carriers--who are ultimately
responsible for compliance of their service agents--or by other
entities that employ the services of collection sites, such as third-
party administrators, is also limited. One large carrier with whom we
spoke tests and verifies that the collection sites it uses are in
compliance, but none of the small carriers we interviewed that had a
drug testing program in place conducted any oversight. Smaller carriers
are less likely to conduct such oversight, given their more limited
resources. Representatives from a consortium/third-party administrator
with whom we spoke told us that it observes some of the collection
sites it uses, but it is not clear that this is a common practice. In
addition, representatives told us that some major collection companies
internally audit their own sites to ensure compliance with all
requirements, but again, it is not clear whether this is a widespread
practice or whether any undercover testing of protocols is occurring.
FMCSA does not have the authority to levy civil penalties on service
agents 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 agreed that a lack of accountability that
results from limited oversight and enforcement leads to poor compliance
or noncompliance. FMCSA, ODAPC, and other DOT administrations can
initiate and have initiated a process known as a public interest
exclusion to disqualify noncompliant service agents. While no public
interest exclusion has been formally issued, the process has resulted
in service agents either correcting noncompliance or going out of
business. Officials we interviewed who have been involved in initiating
a public interest exclusion stated that the process could provide a
greater deterrent if it could be fully completed and a public
notification of exclusion were issued in the Federal Register.
Widely Available Products and Other Methods Can Be Used to Subvert the
Test:
Several hundred products designed to dilute, cleanse, or substitute
urine specimens can be easily obtained. The ease with which these
products are marketed and distributed through the Internet presents
formidable obstacles to the integrity of the drug testing process. As
we have previously reported, several states have laws that prohibit the
manufacture, sale, or use of products intended to subvert drug tests.
[Footnote 28] To our knowledge, few individuals have been cited or
convicted for violating these laws. The interstate nature of the
manufacture and sale of products intended to subvert a drug test
lessens the impact of state-based laws. In most instances, DOT drug
testing protocols do not require directly observed collection or a
thorough search for hidden subversion products.[Footnote 29] Drivers
intent on adulterating or substituting a urine specimen can conceal
small vials in socks or other undergarments. For example, our
investigators were easily able to bring in adulterants and synthetic
urine they purchased through the Internet at eight collection sites
where they attempted to do so.
Another method for substitution is to have someone other than the
applicant or driver provide the urine specimen. Specimen collectors are
required to supervise drivers at all times and ensure that undetected
access to the collection area is not possible. Further, collectors are
required to identify the driver by looking at a photo ID issued by the
employer (other than in the case of a self-employed owner-operator) or
a federal, state, or local government.[Footnote 30] However, GAO
investigators found that at some collections sites, collectors either
failed to supervise drivers or failed to ensure that access to the area
was secure. GAO investigators also were able to successfully use fake
driver's licenses to gain access to all 24 collection sites.[Footnote
31] These findings demonstrate that drug users may have opportunities
to have someone else take a drug test in their place.
DOT does not require specimens to undergo validity testing, which may
detect the presence of some adulterants or substitutes, although DOT
officials stated that laboratory data show that between 98 percent and
99 percent of DOT specimens undergo such testing.[Footnote 32] However,
because validity testing procedures are available to the public, makers
of adulterants can use the information to formulate their products.
According to statistics from one of the largest HHS-certified
laboratories, less than 0.1 percent of DOT tests are identified as
adulterated and substituted. SAMHSA officials with whom we met noted
that the potential exists for adulterated specimens to go undetected.
Similarly, when urine specimens are substituted, the test results could
be negative; therefore, no data exist on the extent to which successful
substitution occurs. As a result, the rate at which adulteration or
substitution is occurring is unknown and impossible to determine. Of
the eight specimens our investigators adulterated or substituted, the
laboratory did not detect any of the adulterants or substitutes used.
Drugs for Which DOT Does Not Test:
Drivers who use illegal substances, such as ecstasy, or misuse legal
substances, such as a prescription medication containing oxycodone or
other synthetic opiates, may also be impaired, but they will not be
flagged by DOT drug tests.[Footnote 33] According to a study by the
Office of National Drug Control Policy, prescription drugs account for
the second most commonly abused category of drugs, after marijuana, but
ahead of cocaine, heroin, and methamphetamine.[Footnote 34] The
Substance Abuse Program Administrators Association has stated that many
controlled-substance medications, including painkillers, tranquilizers,
sedatives, and stimulants can potentially impair an individual's
ability to drive commercial vehicles, although the extent of impairment
compared with illegal drugs depends on many factors, including the
medication dose, the timing of the dose, the individual's tolerance to
the medication's effects, and interactions with other factors, such as
fatigue.
Nonreporting of Past Positives, Incomplete Background Checks, and
Loopholes for Self-employed Drivers Can Lead to Drivers Testing
Positive and Continuing to Drive:
Drivers can easily omit from a job application any previous employer
for which they tested positive or refused to test or can easily not
disclose an incomplete return-to-duty process.[Footnote 35] FMCSA
officials, industry associations, and carriers with whom we spoke told
us that employers usually terminate drivers who test positive (or do
not hire those who test positive on a pre-employment test), rather than
send them through the return-to-duty process, due in part to the
expense of treatment and rehabilitation. Drivers who do not complete a
return-to-duty process may either leave the industry or seek employment
elsewhere in the industry. Such drivers can remain drug free for a
period of time to pass a pre-employment test and be hired by another
carrier. The number of drivers who engage in such job-hopping is
unknown but could be substantial. Of the approximately 85,000 drivers
that FMCSA data suggest test positive each year on random drug tests,
the Substance Abuse Program Administrators Association estimates that
less than half successfully complete the return-to-duty process.
Noncompliance by carriers can also lead to the possibility of hiring a
job-hopper. One of the top violations found in compliance reviews is a
failure to conduct required background checks, which includes checking
for past positive drug tests. If carriers do request previous drug test
information, previous employers may not respond to them or may not
respond in a timely fashion, which was an issue mentioned at all of the
compliance reviews we observed. In some cases, previous employers may
have gone out of business. Moreover, in one of the compliance reviews
we observed, the carrier indicated that some carriers from which he
requested information charged him for researching their
records.[Footnote 36] In our observations of compliance reviews, FMCSA
investigators do not target these nonresponding carriers in order to
take action against them for noncompliance.[Footnote 37]
Self-employed owner-operators who test positive will likely continue to
drive without going through a return-to-duty process. Owner-operators
are required to follow the drug testing regulations and be in a drug
testing program like all other drivers employed by motor carrier
companies; however, there are inherent conflicts for a self-employed
owner-operator in complying with the requirements. Even if an owner-
operator who participates in a consortium tests positive, there is no
process for removing the individual from safety-sensitive duties, and
no one beyond the owner-operator will be notified of the positive
result.
FMCSA is taking actions to try to target drivers who test positive and
then test negative again within a short period of time, indicating a
likelihood that they have not completed a return-to-duty process but
are seeking new employment. This process involves using data from
service agents who work with multiple companies and have noticed the
same driver testing positive with one employer and then testing
negative within a 2-week period for a different employer. According to
a carrier association, in a recent investigation, FMCSA looked at 69
positive tests that were received within a 15-day period by a service
agent and found that 21 of the drivers tested negative in the same
period for a different employer. According to FMCSA officials, this
process has been streamlined and simplified and will be included in
future training for field staff.
Options for Addressing Challenges Involve Effectiveness and Feasibility
Trade-offs:
In discussions with DOT, industry experts, motor carriers, industry
associations, and other stakeholders, and in reviews of previous
studies, we identified many options for addressing challenges of the
current drug testing program. Table 1 lists options that were suggested
to us most often, have been studied in some detail, or were identified
through our analysis. No option fully addresses the three main problems
of drivers not being tested, drivers testing negative but using drugs,
and drivers testing positive but continuing to drive. Each option would
require either additional resources or diverting resources currently
used for other road safety issues. In assessing the potential
effectiveness and financial and operational feasibility of these
options, several stood out. The following sections present the best
options on a problem-by-problem basis.
Table 1: Approaches to Improve Effectiveness of DOT's Drug Testing
Program:
Options to reduce the number of drivers not subject to drug testing:
* Improve compliance by existing carriers:
- Increase carrier compliance reviews;
- Conduct drug testing-only audits of carriers;
- Improve dissemination of information.
* Improve compliance by new entrants:
- Strengthen safety audit enforcement;
- Toughen entry requirements.
Options to detect more drivers who are using drugs:
* Improve compliance by service agents:
- Conduct service-agent-only audits;
- Visit service agents during carrier compliance reviews.
* Increase enforcement authority over service agents;
- Give FMCSA authority to impose civil penalties against service
agents;
- Increase use of the public interest exclusion process.
* Limit ability to subvert urine tests:
- Adopt a federal adulterant product ban;
- Stop publishing methods for specimen validity testing;
- Test alternative specimens;
- Verify identification of drivers at collection sites.
* Test for drugs not currently included in DOT tests:
- Test for additional illegal drugs or some prescription drugs.
Options to reduce the number of drivers who test positive or refuse to
test and continue to drive:
* Reduce job-hoppers:
- Create a national database of drivers who have tested positive or
refused to test.
* Reduce job-hoppers and self-employed owner-operators who fail to
remove themselves from service after testing positive:
- Create a procedure for CDL suspension.
Source: GAO.
[End of table]
Improving Carrier Awareness and Compliance with DOT Requirements May
Reduce the Number of Drivers Not in Drug Testing Programs:
Increasing the number of drivers who are in drug testing programs
requires improved compliance by carriers that are already in business
and by new entrants. There are different options for existing carriers
and new entrants since some oversight avenues by FMCSA are available
for new entrants but not for existing carriers. Table 2 summarizes our
assessment of the effectiveness and feasibility of the options relevant
to each group. In each case, we identified one option--delineated with
a check mark--that we believe represents the best combination of
effectiveness and feasibility.
Table 2: Approaches to Reduce the Number of Drivers Who Are Not in Drug
Testing Programs:
Options: Improve compliance by existing carriers: Increase the number
of carrier compliance reviews;
Effectiveness: Has greatest potential impact on increasing drug testing
compliance and overall safety;
Feasibility: Substantial cost required for meaningful benefit.
Options: Improve compliance by existing carriers: Conduct drug testing-
only audits of carriers; In addition to compliance reviews, begin
reviews that focus only on carriers' drug testing compliance;
Effectiveness: Depends on effective targeting of carriers;
Feasibility: Less cost than full compliance reviews.
Options: Improve compliance by existing carriers: Improve dissemination
of information; Educate carriers through promotional materials, Web
site, carrier conferences;
Effectiveness: Facilitates voluntary compliance. But does not address
systemic problems and can easily be disregarded by carriers;
Feasibility: Relatively simple and low cost.
Options: Improve compliance by existing carriers: Strengthen
enforcement of new-entrant safety audits; Bolster consequences for
failing to implement basic safety requirements;
Effectiveness: Ensures new carriers will rectify noncompliance;
Feasibility: DOT has begun a rule-making process; minimal additional
costs.
[This is the option GAO believes represents the best combination of
effectiveness and feasibility]
Options: Improve compliance by existing carriers: Toughen entry
requirements; Require carriers to pass a new-entrant safety audit prior
to obtaining a DOT number;
Effectiveness: Ensures new carriers are aware and understand
requirements from the start;
Feasibility: Rule-making process required; resources needed to
initiate.
Source: GAO.
[End of table]
Options for Improving Compliance by Existing Carriers:
Of the three options for improving compliance by existing carriers,
increasing the number of carrier compliance reviews provides the best
combination of effectiveness and feasibility. Conducting more reviews
would improve overall compliance with safety requirements. The increase
in reviews by FMCSA would provide an incentive for carriers to
implement sound drug testing programs in order to avoid fines for
noncompliance. FMCSA is planning some changes to the way it targets
carriers for compliance reviews, which will include additional
information on illegal drug use and alcohol misuse[Footnote 38]. The
effectiveness of this option, however, is dependent on how many more
compliance reviews would be conducted. Compliance reviews are conducted
for only a small percentage of carriers each year. Providing a more
meaningful incentive for carrier compliance would likely require a
substantial increase in this percentage, which reduces the feasibility
of this option. FMCSA and its state partners currently conduct an
average of over 13,000 compliance reviews each year. Increasing the
number of reviews to cover a more substantial portion of the
approximately 724,000 carriers in the industry would require hiring,
training, and paying additional investigators or diverting them from
other existing safety-related tasks.
Conducting audits specific to drug testing regulations is a second
option, and while it may be less costly than substantially increasing
compliance reviews, its potential effectiveness is not as great and
depends on effectively targeting carriers. Targeting of carriers that
have already been found to be out of compliance with drug testing
regulations could be done based on findings of existing compliance
reviews, but targeting additional carriers may be difficult because of
a lack of data on drug testing programs outside of compliance reviews.
Conducting audits specific to drug testing requirements would take less
time than traditional oversight methods but would require additional
resources, although not to the same degree as substantially increasing
carrier compliance reviews. However, this option would dedicate
resources to drug testing only at the expense of using those resources
in other ways that could improve overall safety, such as in a full
compliance review. The audit protocol to be used could be similar to
the other DOT administrations that conduct drug testing audits, with
minor changes to reflect FMCSA-specific requirements.
A third option for improving compliance with drug testing requirements
among existing carriers is through better education. This would be the
easiest option to implement, would be effective for carriers and
facilities that want to comply with regulations, but would likely yield
fewest results for those deliberately trying to circumvent the
regulations. Some carriers with whom we spoke, including one whose
primary business was not transportation, told us that they either were
not aware of the requirement to drug test their drivers or were
confused about their responsibilities under the requirements. These
carriers implied that if they could have more easily understood the
guidelines, they would have complied. FMCSA already sends some
information to carriers and provides information on its Web site, and
officials told us they have plans to send additional materials on the
drug testing program to carriers and to make the drug testing portion
of the Web site more user friendly. In dealing with specific
situational questions, FMCSA also responds to hundreds of drug and
alcohol telephone inquires and e-mails every week that deal with
company specific situations. In addition, ODAPC provides information on
drug testing requirements through speaking engagements and its Web
site, which has a Web page dedicated to employer issues. Employers and
others who go to ODAPC's Web site have the ability to "Ask ODAPC"
specific questions they have regarding program implementation.
Employers also can phone and fax their inquiries. ODAPC officials
indicate that they answer the vast majority of email and phone
inquiries directly.
Options for Improving Compliance by New Entrants:
The most promising option for improving compliance by new entrants--
strengthening follow-up requirements on safety audits already required
for entry into the industry--is currently under way. In December 2006,
FMCSA published a Notice of Proposed Rulemaking to strengthen the
safety audit pass/fail criteria to give more significance to basic
safety management requirements, including drug testing. The proposed
changes would require a new carrier to implement a drug testing program
or risk failing the safety audit. Under the proposed changes, a motor
coach or hazardous materials carrier who fails an audit will have 45
days to correct the deficiencies. All other carriers will have 60 days.
If the new entrant fails to respond to the notice or fails to correct
the deficiencies within the 45-or 60-day grace period, FMCSA will issue
an out-of-service order and revoke the new entrant's registration.
Strengthening the audit in this way helps ensure new carriers will
rectify noncompliance, as opposed to the current approach in which the
carrier receives a list of requirements to implement but may not be
subject to any follow-up. DOT expects a final rule to be published
before the end of 2008. Strengthening safety audits requires some
additional resources to follow up if a carrier fails the audit.
A second option to improve compliance by new entrants is to require
them to pass the safety audit before they begin operations. According
to an FMCSA official, safety audits generally do not occur until 8 to 9
months after a new entrant has begun operations; this option would make
passing the safety audit a precondition to operating. Conducting the
audit before carriers begin operations would help FMCSA ensure that all
new motor carriers in operation understand their responsibility to
comply with all safety requirements, including drug testing, but
includes feasibility challenges. FMCSA officials told us that visiting
a carrier before it begins operating would not provide an opportunity
to determine how well that carrier is implementing safety requirements.
For example, the applicant may not yet have hired drivers, and there
would be no logs to review. Officials told us that FMCSA waits at least
90 days after a carrier has entered the industry to get an accurate
impression of its operations. The increased requirements to obtain a
DOT number and begin operations would initially require more FMCSA
resources, so that it could complete its existing backlog of safety
audits for carriers currently in their first 9 or 18 months of
operations. The change to entry requirements would also be time
consuming since a rule-making process would be required. Stricter
requirements for entering the industry might reduce the ability of
small companies to begin operations and compete with larger,
established carriers because they would need to spend resources
upfront, before their business is up and running.
Improving Detection of Drivers Using Drugs Focuses on Minimizing
Opportunities to Subvert the Test:
Improving efforts to detect drivers using drugs potentially involves
four types of actions: (1) improving compliance by having service
agents who administer the tests for many carriers use proper testing
procedures; (2) increasing FMCSA's enforcement authority against
noncompliant service agents; (3) limiting drivers' ability to subvert
the current test; and (4) expanding the array of tested drugs. Table 3
summarizes our assessment of the effectiveness and feasibility of each
of these options. We identified several options--delineated with check
marks--that in our view represent the best combination of effectiveness
and feasibility.
Table 3: Approaches to Increase the Detection of Drivers Using Drugs:
Options: Improve compliance by service agents: Conduct service agent-
only audits;
Effectiveness: Extends oversight to include service agents, a group
that is not currently audited by FMCSA;
Feasibility: Costs associated with new investigations.
Options: Improve compliance by service agents: Visit service agents
during carrier compliance reviews;
Effectiveness: Extends oversight to include service agents, but review
may not be as in-depth;
Feasibility: Costs associated with a new step during a review.
Options: Increase enforcement authority over service agents: Seek civil
penalty authority; Seek authority to levy civil penalties against
noncompliant service agents;
Effectiveness: Provides monetary deterrent to service agent
noncompliance;
Feasibility: Legislation required.
[This is an option GAO believes represents the best combination of
effectiveness and feasibility.]
Options: Increase enforcement authority over service agents: Use public
interest exclusion process; No public interest exclusion has ever been
issued;
Effectiveness: Deterrent effect is potentially strong if issued;
Feasibility: DOT is considering making changes to improve the process.
Options: Limit the ability to subvert urine test: Adopt a federal
adulterant product ban;
Effectiveness: Deterrent effect may limit the manufacture, marketing,
sale, and possession of products--federal statute allows for
prosecution in any state;
Feasibility: Unclear how to enforce; legislation required.
[This is an option GAO believes represents the best combination of
effectiveness and feasibility.]
Options: Limit the ability to subvert urine test: Stop publishing
methods for specimen validity testing;
Effectiveness: Could limit the effectiveness of adulterants;
Feasibility: Lack of formal publication will not keep it out of the
public domain.
Options: Limit the ability to subvert urine test: Test alternative
specimens; Additional drug testing of hair or oral fluids in certain
circumstances;
Effectiveness: Some advantages relative to urine testing;
Feasibility: Protocol development required by SAMHSA; rule-making
process required.
Options: Limit the ability to subvert urine test: Verify driver
identification at collection sites;
Effectiveness: Reduces opportunity to substitute specimen by having
someone else provide it;
Feasibility: Unclear how it can effectively be accomplished.
Options: Test for drugs not currently included in DOT tests: Test for
additional illegal drugs, such as ecstasy or some prescription drugs
(e.g., synthetic opiates);
Effectiveness: Identifies use of drugs that may affect driving ability;
Feasibility: Differentiating between use and abuse of prescriptions may
be difficult.
Source: GAO.
[End of table]
Options for Improving Compliance by Service Agents:
All types of service agents are included in both options that aim to
improve compliance because currently service agents are visited by
FMCSA only as a result of specific allegations. However, improving
compliance by collection sites in particular is central to reducing
opportunities to undermine a drug test. Recently, in recognition of the
importance of improving adherence to DOT protocols at collections
sites, ODAPC developed a checklist of critical DOT protocols that was
sent to collection sites for posting in their facilities. GAO
investigators found that collection sites that had checklists of DOT
protocols were in better compliance that those that did not. While this
is a positive step that will help collection sites better follow
protocols, the following options focus on providing a greater oversight
presence at collection sites to ensure better compliance. As discussed
previously, however, adhering to protocols will only minimize, not
eliminate, the opportunity for subversion.[Footnote 39]
The option to conduct service agent-only audits and clandestine
inspections appears to hold the most promise since these audits and
surprise inspections, according to stakeholders and our own analysis,
would provide an incentive for service agents to follow proper
protocols and comply with DOT requirements. Currently, FMCSA is testing
a service agent-only audit. Service agent-only audits would create an
oversight presence that previously has not existed and would identify
noncompliance and provide corrective action. Furthermore, these types
of audits would likely send a message to the service agent industry
that noncompliance can be discovered and will have consequences. The
costs associated with this option, however, affect its feasibility. The
service agent industry is large and diverse, and covering it would
require a large number of audits, with attendant costs for hiring,
training, and paying new staff or transferring resources from other
current safety-related duties. However, FMCSA officials indicated that
their goal in testing a new service agent-only audit is to improve the
effectiveness of their service agent compliance activities, regardless
of how many reviews they conduct. ODAPC provides inspector and auditor
training on issues related to drug testing requirements for service
agents. For example, ODAPC is working with DOT's Research and
Innovative Technology Administration to develop a video on collection-
site security and integrity for use by inspectors, auditors, and
collection personnel.
While the service agent industry is large and diverse, a number of
stakeholders suggested that even a small number of audits or
clandestine inspections would send an initial message that
noncompliance by service agents is serious enough to warrant FMCSA's
attention.[Footnote 40] This option may result in increased costs for
collection sites in particular, which might need to conduct additional
training for collectors, and for carriers, which might have to absorb
these costs in the form of higher fees for conducting tests. DOT is in
the early stages of implementing efforts to address this issue. ODAPC
officials told us they are developing a database that centralizes the
results of all of the other DOT administrations' oversight of service
agents, starting with collection sites and ultimately including medical
review officers and others. Officials told us that all DOT
administrations can use the database to determine whether collection
sites have been visited and access the findings of the visits. The
database could serve as a method to target service agents with a
history of poor compliance. FMCSA officials stated that some of its
investigators in the field have been trained on how to conduct audits
of collection sites and that they hope to expand oversight activities
with regard to service agents.
A second option for ensuring compliance by service agents is visiting
service agents or conducting clandestine inspections as part of
carriers' compliance reviews, but this option would be less effective
for two reasons. First, such visits would not be as thorough as a
service agent-only audit. Second, including service agents as part of
compliance reviews may not be practical because some carriers use
service agents in different cities or states. FMCSA targets carrier
compliance reviews on the basis of highway safety risk, but there
currently are no corresponding data indicating that the service agents
used by such carriers also carry greater risk. However, when the
database of service agents is operational, an ODAPC official said that
an FMCSA inspector could query the database to find out whether a
carrier was using a service agent that had been visited by a DOT
administration and what the findings were from such visits. This option
would be less expensive than the first because the investigator would
be adding a step to an existing process rather than conducting a wholly
different audit.
Options for Increasing FMCSA's Enforcement Authority:
Expanding FMCSA's enforcement authority to include service agents may
result in greater compliance by service agents. Currently, FMCSA can
only fine the carrier that uses the service agent--not the service
agent itself. Stakeholders told us that the ability for FMCSA to fine
service agents would provide an effective incentive to follow
protocols. The effectiveness of this option depends on FMCSA's ability
to expand its oversight activities, yet stakeholders said merely having
the authority to fine service agents would likely send a message to the
service agent industry that there are consequences for failing to
comply with protocols. For example, FRA officials indicated they had
successfully warned service agents that their continued noncompliance
could lead to civil penalty action. These warnings produced the desired
resolution of noncompliance matters. Representatives from one of the
drug testing industry associations that represent service agents told
us that if FMCSA were to actually fine a service agent, many service
agents would come into compliance. Giving FMCSA the authority to fine
service agents would require legislation. Officials from ODAPC told us
they have created a committee to review existing authorities of all DOT
administrations to determine the current authority of each
administration. Consistency in authority to impose civil penalties
against service agents across the department may be important given
that service agents may be used and audited by more than one DOT
administration.
A second but less promising option for increasing FMCSA's enforcement
authority is to encourage greater use of the public interest exclusion
process. Our discussions with stakeholders indicated that in instances
where the process has been initiated, it has been an effective tool in
addressing noncompliance. However, officials in FMCSA and elsewhere
within DOT indicated the process is ineffective because a public
interest exclusion has never been issued. ODAPC officials told us they
are exploring changes to the process, such as getting an interim
administrative injunction against service agents pending the execution
of a public interest exclusion process, for instances when egregious
noncompliance is found--which FMCSA officials believe would increase
the number initiated. To make more use of the public interest exclusion
process, FMCSA would also need to find better ways to identify
noncompliance by service agents--either by visiting service agents
during compliance reviews or by conducting service agent-only audits.
Because the public interest exclusion process was designed to provide
due process to service agents, changing the process may be difficult.
Additional costs would depend on the extent to which improving the
process results in additional investigations.
Options for Limiting the Ability to Subvert the Current Test:
Options for limiting the ability to subvert drug tests include banning
or limiting the effectiveness of products that drivers can use to alter
a urine specimen, testing alternative specimens, and changing protocols
at collection sites to verify drivers' identification.
The first option, a federal law prohibiting the sale, manufacture, or
use of subversion products, would be an improvement over the patchwork
of laws several states have in place, but implementation would be
difficult given the ease with which these products can be distributed.
[Footnote 41] SAMHSA has stated that it is critical to make the
production and knowing use of adulterant and substitution products
illegal under federal law. This option is also generally supported by
representatives of the trucking and service agent industries. The
adoption of a federal prohibition may have a deterrent effect on some
sellers and buyers of the banned products. Sellers of these products
may reduce marketing, and some may decide to exit the industry rather
than face potential prosecution. Further, a federal law would allow for
prosecution in any state, if an individual were found to be
manufacturing, selling, or possessing such products.
However, the deterrent effect of such a law on drivers who buy these
products may be limited since the individuals who would purchase them
also presumably bought and used the illegal drugs they are trying to
mask. Some other limitations on the effectiveness and feasibility of
this option include the following:
* Gathering sufficient evidence to successfully prosecute makers,
sellers, and users of these products may be difficult, and the costs in
time and resources of enforcing the prohibition and investigating and
prosecuting violations may be significant. Web sites, for example, may
try to circumvent the law by posting disclaimers that their products
are not intended to subvert federal drug tests.
* Determining which law enforcement agencies would be responsible for
investigating and prosecuting cases may be difficult.
* Implementing a law to prohibit the purchase of adulterants and
substitutes does not address other subversion methods, such as diluting
urine by drinking large amounts of water or having someone else take a
test in place of the applicant or driver.
Limiting the ability to subvert drug tests might be facilitated if the
methods used to identify adulterants are not published.[Footnote 42]
This option has two primary limitations. First, while it might help
detect adulterated specimens, it would not help detect substituted
specimens. Drivers intent on not being detected by drug tests may use a
substituted specimen instead of adulterating their own specimen.
Second, SAMHSA officials said restricting the publication of protocols
would at best be a short-term advantage because if validity testing
protocols become the subject of a litigation, they will become public.
Another option for minimizing subversion tactics is to test hair or
oral fluids. One benefit would be that collections of these specimens
would be directly observed, thus reducing (but not eliminating) the
opportunity to adulterate or substitute specimens. Further, while
products are available for subversion of such tests, it is not clear
whether these products are effective in masking drug use.[Footnote 43]
Some transportation companies already conduct hair tests in addition to
urine tests, and the result has been a higher detection rate of illegal
drug use. For example, one large carrier conducted both hair and urine
tests on over 15,000 employees in safety-sensitive positions from May
2006 to January 2008. The positive rate for the hair tests was
approximately 9 percent, compared with approximately 1.6 percent for
the urine tests. The higher positive rate for the hair tests may be a
result of the fact that hair specimens generally retain evidence of
drug use for a longer period of time than urine specimens.[Footnote 44]
These alternative testing methods hold promise for certain testing
purposes but are not suitable for others. Evidence of drug use becomes
apparent in oral fluids almost immediately but can only be detected for
a short time, making oral fluids suitable for postaccident tests and
unsuitable for pre-employment tests.[Footnote 45] On the other hand,
evidence of drug use does not become apparent in hair for several days
after drug use but has a long detection window, making hair more
suitable for pre-employment tests and unsuitable for postaccident
tests. In 2004, SAMHSA published proposed revisions to mandatory
guidelines for federal workplace drug testing programs that included
proposals to establish scientific and technical guidelines for the
testing of hair, sweat, and oral fluid specimens. According to SAMHSA
officials and some stakeholders in the drug testing industry, the
scientific issues related to hair testing--including differing
detection based on hair length, color, and contamination of hair from
the environment rather than from direct use of drugs--will require
further exploration before protocols can be established. For example,
SAMHSA officials told us that at least two scientific studies show that
a drug will bond into hair when the hair is exposed to environmental
drug use.[Footnote 46]
Other unresolved issues related to adopting hair testing include
establishing collection protocols for hair specimens,[Footnote 47]
establishing appropriate criteria for a positive test result, and
determining how drivers might challenge results via a specimen tested
at a second laboratory.[Footnote 48] SAMHSA officials, who currently
are studying hair testing, said that because of these and other issues,
they cannot predict when a final rule on hair testing will be issued.
Also, since DOT is obligated by statute to use SAMHSA guidelines on
drug testing protocols, considerable work remains before hair testing
can supplement urine testing.
Finally, another option that can limit the ability of drivers to
substitute their specimen by having someone else provide it would be to
change DOT protocols at collection sites to require verification of the
drivers' identification. However, it is not clear how verification
could be effectively accomplished. For example, carriers could be
required to fax a copy of an individual's CDL to the collection site
prior to a pre-employment or random test, but there is no guarantee
that the fax would be clear enough to reliably authenticate
identification.[Footnote 49]
Testing for Drugs Not Currently Included in DOT Testing:
Testing for additional drugs, such as abused prescription drugs and
other illegal drugs, may be worthwhile. Representatives of the drug
testing industry, for example, generally supported testing for more and
different drugs, including prescription drugs. SAMHSA officials agreed
that testing for more and different drugs might have a deterrent effect
on their use, but expanding the test presents feasibility challenges,
such as the cost of additional laboratory analysis and increased
medical review, to determine whether the use of prescription drugs was
proper. ODAPC officials said they follow the lead of SAMHSA and federal
workforce testing policies, which allows tests only for drugs for which
HHS has established protocols.
Reporting Positive Drug Test Information May Reduce the Number of
Drivers Who Test Positive or Refuse to Test Yet Continue to Drive:
Two key options have been suggested to reduce the number of drivers who
test positive or refuse to test and continue to drive without going
through a return-to-duty process. The options--developing a national
database of drug and alcohol testing results that carriers could query,
and encouraging or compelling states to suspend the commercial driver's
license (CDL) of a driver who tests positive--differ in their potential
effectiveness and feasibility, as shown in table 4. However, a CDL
suspension could build on a national database. That is, if an accurate
national database were created first, state licensing agencies could
use the information in the database to trigger action to suspend a
driver's CDL.
Table 4: Approaches to Reduce the Number of Drivers Who Test Positive
or Refuse to Test Yet Continue to Drive without Going through the
Return-to-Duty Process:
Options: National database; FMCSA maintains database of drug test
positives and refusals-to-test that carriers must query prior to
hiring;
Effectiveness: Depends on carrier compliance with regulations; does not
address self-employed owner-operator problem;
Feasibility: FMCSA has a rule-making process under way.
[This is an option GAO believes represents the best combination of
effectiveness and feasibility.]
Options: CDL suspension; State licensing agencies suspend the CDLs of
drivers who test positive or refuse to test;
Effectiveness: Independent of carrier compliance with regulations;
addresses both job-hopper and owner-operator problem;
Feasibility: Requires federal and state legislation; FMCSA could use a
national database to implement.
[This is an option GAO believes represents the best combination of
effectiveness and feasibility.]
Source: GAO.
[End of table]
National Database:
A national database that carriers must query in screening a prospective
employee would provide information about whether the applicant had
previously tested positive for drugs or refused to take a DOT drug
test, and whether the applicant had completed the required return-to-
duty process. Applicants can easily omit previous employers for whom
they tested positive or refused to test, and easily not disclose an
incomplete return-to-duty process. FMCSA reported to Congress on the
feasibility of such a database in 2004 and, as part of its
Comprehensive Safety Analysis 2010 initiative, is working toward
initiating a rule-making process for the creation and implementation of
a database comprising positive test results and refusals-to-test for
both drugs and alcohol.[Footnote 50] According to FMCSA officials,
current plans call for medical review officers to report positive drug
test results and refusals-to-test, but FMCSA would also solicit
comments on obtaining the information directly from carriers and for
carriers to report positive alcohol test results and refusals-to-test.
[Footnote 51] While the rule-making process is being initiated, FMCSA
officials told us that additional authority over service agents would
be necessary to require the reporting of drug testing information.
Carriers would be required to query the database prior to using
drivers, which could supplement or possibly replace the current
requirement to check with previous employers regarding past positive
tests. FMCSA also plans to allow roadside inspectors to query the
national database to determine whether a carrier is illegally using a
driver who has failed a drug test. Four states already have some form
of database of drivers' past positive drug tests, though implementation
varies by state (see app. III).[Footnote 52]
A national database would enhance FMCSA's ability to identify drivers
who engage in job-hopping, and ensure compliance with return-to duty
requirements. Since there is currently no effective way to identify job-
hoppers, a national database would make positive test information more
readily available to carriers and to FMCSA for use in its initiative
targeted at carriers that employ job-hoppers and job-hoppers
themselves. A national database would also likely encourage drivers to
go through the return-to-duty process in order to continue working in
the trucking industry. However, a database would not be effective at
stopping all job-hopping because not all carriers will report to or
query the database, particularly if they are not complying with drug
testing regulations or do not have a drug testing program in place. In
addition, a database would not necessarily address the problem of self-
employed owner-operators who test positive and fail to remove
themselves from service, and fail to complete the return-to-duty
process.
Stakeholders generally support a national database, which FMCSA is
considering, but several challenges would need to be addressed. Many
stakeholders, including carriers, industry associations, and one union
with whom we spoke are supportive of a database, particularly if
privacy concerns and drivers' rights are adequately addressed. Some of
these stakeholders said a national database could affect drivers'
rights if results are reported by unauthorized entities, if
unauthorized persons gain access to the information, if drivers are
unable to clear inaccurate reports from their records, or if drivers
are unable to have return-to-duty completion information posted to
their records.
Other challenges to implementing this option include the following:
* The time and technological resources required to receive, process,
and respond to potentially thousands of queries each day could be
significant, even though the database would only maintain records on
the drivers who test positive or refuse to test. A 2004 FMCSA report
estimates the number of national database users at up to 750,000 or
more. This report also estimates the one-time cost of developing and
implementing a national database at approximately $1.2 million and
ongoing annual costs, including project and FMCSA staffing, at
$994,000. FMCSA and ODAPC officials noted that the costs in this report
were likely underestimated. FMCSA officials are estimating the initial
cost of the database to be nearly $9 million. FMCSA plans to refine its
cost estimate as part of its rule-making process. Funding for this
project would come at the expense of FMCSA's other safety-related
activities, absent additional funding from Congress.
* Processes for authenticating and registering the enormous number of
entities that submit to and query the database, and protecting database
information, could be challenging. A DOT Inspector General report on
the National Driver Register notes privacy concerns that would also
need to be addressed in the creation of a national database of drug
test results, including sufficient encryption of personal information
during transmission between entities, background checks on personnel
responsible for maintaining the database, and security of hard copy
records storage and computer access.[Footnote 53] Procedures would need
to be developed to ensure that only those authorized gain access to the
database. Procedures for verifying the qualifications and credentials
of those who report positives and refusals would need to be in place to
maintain the integrity of the system and avoid inaccurate database
information.
* Federal legislation would not be required to give FMCSA authority to
develop the database, but a 2004 report by FMCSA suggested a federal
mandate--rather than simply changing FMCSA regulations--would help
avoid conflicts with state laws and support DOT's rule-making process.
Further, DOT and FMCSA will require additional authority over service
agents to ensure service agents report information.
There are several things to consider in developing a database,
including (1) reporting issues such as determining who reports, what
they report, how they report, and how reporters are verified as
legitimate; (2) access issues such as determining who can access the
information, what information they can obtain, how they can access the
information, and how those who access the information are verified as
legitimate; (3) the length of time information is maintained; and (4)
how inaccurate information is corrected--all of which affect the
potential effectiveness and feasibility of a database. See appendix IV
for a detailed description of these issues.
CDL Suspension:
Another option would be to encourage or compel states to make a
positive test or refusal-to-test result grounds for a suspension of a
driver's CDL until the driver has completed the required return-to-duty
process.[Footnote 54] This option would require congressional action to
encourage or require states to suspend a CDL, and may require states to
also adopt legislation (North Carolina and Washington already suspend
CDLs following positive and refusal-to-test results).[Footnote 55] In
order to transfer drug test information to state licensing agencies,
medical review officers and possibly carriers could report drug test
information to FMCSA, or they could be required to report directly to
the state of licensing. If a national database is in place, FMCSA could
potentially disseminate this information to the state licensing agency
of the CDL holder through the Commercial Driver's License Information
System (CDLIS).[Footnote 56] Carriers would then check drivers' motor
vehicle records, as they are required to do, during the hiring process
and annually thereafter. In doing so, they would identify drivers with
disqualified CDLs due to a positive or refusal-to-test result.
We consider this option to be even more effective in keeping drivers
who test positive or refuse to test off the road, because its success
does not depend on full compliance by carriers in reporting drug test
results or following drug testing regulations. Most results would
likely be submitted by medical review officers, and the CDL suspension
would affect drivers even if their current or potential employer is not
in compliance with the regulations. In addition, a CDL suspension would
affect both job-hoppers and self-employed owner-operators that are
participating in a drug testing program. Many stakeholders with whom we
spoke said this option would better address job-hopper and owner-
operator issues than a national database. Carriers would know whether
drivers are eligible to drive based on drug test history when making
inquiries into driving records, already required by regulations. Also,
owner-operators whose CDL is suspended following a positive or refusal-
to-test could lose their insurance.[Footnote 57] The CDL suspension
would provide incentive for drivers to go through the return-to-duty
process in order to have their CDL reinstated.
Using a national database to send information on positive drug tests to
state licensing agencies would have some advantages over having medical
review officers or carriers report directly to each state licensing
agency. For example, using a national database would ensure that the
legitimacy of those who report information on positive drug tests is
verified, such as ensuring that medical review officers reporting
information are actually licensed physicians. If the option were to be
implemented through direct reporting to each state, ensuring consistent
verification efforts would be difficult. Furthermore, a single database
would make reporting information easier for medical review officers or
carriers compared with having to report to each state licensing agency.
Implementing the CDL-suspension option presents a number of challenges.
This option would require congressional action to either require or
encourage states to suspend CDLs based on DOT drug test results, as
well as adoption and implementation by each state, which could take
several years. Stakeholders cited the following challenges and issues:
* Obtaining the funding necessary for state licensing agencies and
FMCSA to implement the requirement could be a concern. For example,
North Carolina's initial costs for its current system included $50,000
in one-time costs plus personnel costs for a half-time employee.
Complying with a broader federal requirement would clearly require more
resources from every state, potentially at the expense of other
initiatives that can also impact safety. States could utilize their
existing systems for recording information on motor vehicle records,
although states would need to have personnel in place to handle the
drug test submissions. FMCSA may also face additional costs with this
option.[Footnote 58]
* As with the national database, implementing processes for
authenticating and registering entities that submit drug test
information to FMCSA for the CDL suspension in order to avoid
inaccurate information, or malicious intent, could be challenging. A
CDL suspension could affect drivers' rights if results are reported by
unauthorized entities, if drivers are unable to clear inaccurate
suspensions from their records, or if drivers are unable to have return-
to-duty completion information posted to their records.
* States would have to create or change their licensing procedures
through legislation in order to suspend CDLs based on the results of
DOT-regulated drug tests. Enacting legislation could be difficult and
time-consuming and would occur at different times in different states,
resulting in some states beginning to suspend CDLs later than others.
Issues that affect the potential effectiveness and feasibility of the
CDL suspension are similar to those for a national database in terms of
reporting, the length of time information is maintained, and how
inaccurate information is corrected, but also include determining how
drivers' CDLs would be reinstated. See appendix IV for a detailed
description of these issues.
Conclusions:
While drug testing in the motor carrier industry has been successful at
identifying many drug users for nearly 20 years, the problems described
in this report suggest that the potential exists for many drug users to
avoid detection and continue to operate a commercial motor vehicle.
Given the enormity and fluidity of the motor carrier industry and the
extent of FMCSA's oversight resources, establishing a drug testing
program that approaches 100 percent reliability in testing all drivers
and identifying drivers who have been using illegal drugs--and keeping
them off the road until they have complied with return-to-duty
requirements--are unrealistic expectations. However, this report has
described a wide range of options that can be considered to make
incremental improvements in the ability of FMCSA's drug testing program
to keep drivers using drugs off the road. In our view, a comprehensive
approach that encompasses several of the identified options is needed
to effectively address the problems we identified, to re-establish the
importance of the program throughout the industry, and to reassert the
federal government's interest in ensuring compliance with drug testing
programs.
ODAPC and FMCSA have both recently initiated a number of actions that
are intended to address challenges to the drug testing program in the
motor carrier industry. These actions, such as sharing information on
compliance of service agents across modal administrations, taking steps
to strengthen the new-entrant safety audit and the public interest
exclusion process, and beginning a rule-making process to establish a
national database, among others, all hold promise to improve the
effectiveness of drug testing programs. However, several of these
actions are only just beginning, and FMCSA may not have the authority
it needs to pursue some of the options we identified as potentially
having the most impact and the greatest feasibility. For example, while
FMCSA has a rule-making process under way to improve the enforcement of
safety audits for new entrants and has plans to initiate a rule-making
process to implement a national database, these actions have yet to
come to fruition, and FMCSA may have to seek additional authority to
ensure service agents report to a database. FMCSA's rule-making process
will also need to consider driver protections and a process by which
information can be corrected or removed. Furthermore, the national
database could serve as the information foundation for enforcing
suspension of a CDL--a direct way to address issues surrounding poor
compliance by carriers, as well as inherent problems with self-employed
drivers who test positive but continue to drive--but requiring CDL
suspension is beyond FMCSA's authority. Moreover, while ODAPC and FMCSA
are working on ways to improve identification of service agent
noncompliance, FMCSA does not have authority to levy fines against
service agents for noncompliance with DOT requirements.
While actions that improve compliance with DOT protocols by carriers
and service agents would have some impact on ensuring that more drivers
are in drug testing programs and reducing the opportunities individuals
have to defraud a drug test, cheating on a drug test will still be
possible. All options to reduce opportunities to cheat face feasibility
issues. For example, while the testing of hair or oral fluid specimens,
which can be collected by direct observation, may reduce the ability to
subvert drug tests, additional scientific study and a rule-making
process by SAMHSA are required; even then, products designed to mask
the presence of drugs in specimens already exist and are likely to
proliferate. A federal ban on subversion products also faces challenges
in that it would be difficult to enforce and may not have a significant
deterrent effect. However, a federal ban on subversion products would
have advantages. Not only would a ban have wide support within the
industry, but it also would reassert the federal government's interest
in ensuring compliance with its drug testing programs and allow for
prosecution in any state.
Any of these options for improving FMCSA's drug testing program would
require either additional resources or a transfer of resources funding
other initiatives that also work to improve road safety. Taking steps
to improve the program needs to be considered in the context of other
programs that also work to achieve safety advancement, such as ensuring
drivers are complying with hours of service regulations and that
vehicles are maintained and inspected.
Matters for Congressional Consideration:
Taking action to address the challenges FMCSA faces to ensure that its
drug testing program detects drivers who are using illegal drugs, and
to keep drivers who have tested positive off the road until they have
completed the return-to-duty process, provides an opportunity to
improve safety on the roads. In order to assist DOT and FMCSA in
addressing these challenges, and thereby improving road safety,
Congress should consider:
* adopting legislation to ban subversion products, and:
* providing FMCSA with the ability to exert oversight and enforcement
authority over service agents involved in the DOT drug testing process-
-which would enable DOT to address issues related to requiring service
agents to report drug testing information to FMCSA's national database
and levying civil penalties on service agents that are not in
compliance with DOT drug testing regulations.
In addition, Congress should consider taking action to encourage or
compel states to use the national database to take action to suspend
the CDL of drivers who have tested positive or refused to take a DOT
drug test.
Recommendations for Executive Action:
In order to address the challenges facing FMCSA to ensure drivers are
in a drug testing program, and to keep drivers off the road once they
have tested positive, we recommend that the Secretary of Transportation
expedite the rule-making process to:
* improve the enforcement of safety audits for new entrants, and:
* create a national database of positive and refusal-to-test drug and
alcohol test results.
Agency Comments:
In commenting on a draft of this report, DOT and HHS officials
generally agreed with the findings and recommendations and provided
technical clarifications, which we incorporated as appropriate.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies to appropriate
congressional committees and to the Secretary and other appropriate DOT
and HHS officials. We will also make copies available to others upon
request. In addition, the report will be available at no charge on the
GAO Web site at [hyperlink, http://www.gao.gov.
If you or your staffs have any questions about this report, please
contact me at (202) 512-2834 or siggerudk@gao.gov. Contact points for
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff who made major contributions to
this report are listed in appendix V.
Signed by:
Katherine A. Siggerud:
Director, Physical Infrastructure Issues:
[End of section]
Appendix I: Scope and Methodology:
To determine the factors that contribute to the challenges of ensuring
all drivers are in a drug testing program, limiting drivers' ability to
subvert a drug test, and keeping drivers off the road once they are
found to test positive, we reviewed Department of Transportation (DOT)
and Federal Motor Carrier Safety Administration (FMCSA) regulations,
policies, and reports and conducted interviews with individuals from
FMCSA and DOT's 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) to
understand the drug testing process and how carrier compliance with
drug testing regulations is evaluated and to identify the factors that
contribute to the challenges faced by FMCSA. We also interviewed
officials from FMCSA and its state partners that conduct compliance
reviews and new-entrant safety audits to understand what information
related to the drug testing requirements is covered during these
activities and how violations with drug testing requirements are
uncovered.
We analyzed data on the results of compliance reviews and safety audits
conducted by FMCSA and its state partners, as well as data on
enforcement activities, to determine industry compliance with drug
testing requirements and to capture the most frequently violated
regulations related to drug testing and associated enforcement actions.
We conducted semistructured interviews with representatives from 10
motor carriers, including large and small carriers and an owner-
operator. We structured the interviews to elicit the types of
challenges that carriers face in complying with the drug testing
requirements and in ensuring that service agents they use are also in
compliance. In addition, two of the carriers we met with conducted on-
site collections of urine specimens. 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,
consortiums/third-party administrators, 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. During
these meetings, we discussed the factors that contribute to the
difficulties of implementing an effective drug testing program. We
interviewed service agents that conduct various combinations of
background checks, collections, laboratory, and counseling activities,
as well as an insurance entity specializing in motor carrier coverage,
to understand the intricacies, similarities, and differences of the
causal factors limiting the effectiveness of detecting drivers who
drive while impaired.
In addition, we observed FMCSA oversight activities, including four
compliance reviews and two new-entrant safety audits in California,
North Carolina, Oregon, and Virginia. We selected states in which to
observe compliance reviews and new-entrant safety audits on the basis
of the availability of ongoing oversight activities, and well as our
visits to states that adopted laws requiring the reporting of positive
DOT-regulated drug tests and refusals-to-test. These oversight
activities were conducted by either FMCSA investigators; FMCSA's state
partners, such as state or local law enforcement; or Consolidated
Safety Services, to which FMCSA contracts new-entrant safety audits.
Also, we conducted semistructured interviews with officials from the
state licensing agencies of the states that have adopted laws requiring
the reporting of positive DOT-regulated drug tests and refusals-to-
tests including Arkansas, New Mexico, North Carolina, Oregon, Texas,
and Washington, to understand the issues considered in creating the
reporting requirement and to determine how the reporting requirement
was implemented to gather information on costs and effectiveness. We
discussed how information is currently shared between states and how a
national reporting requirement could work. We also interviewed
officials from a state Attorney General's Office of a state that
adopted a law banning adulterants and substances to subvert a drug test
to determine the issues associated with such a law, including costs,
and the law's effectiveness.
We used the results from our Forensic Audits and Special Investigations
(FSI) team, which 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.
To identify the options that have been suggested as possible ways to
address problems in FMCSA's current drug testing program, we reviewed
several reports, articles, and other published information on options
to address challenges faced in drug testing. For example, we reviewed
FMCSA's 2004 Report to Congress on the feasibility of creating a
national database of drug test information. We also interviewed
officials from DOT and FMCSA, industry experts, representatives from
motor carriers, industry associations, and other stakeholders to
identify options and understand the issues associated with each option.
For example, in interviews with FMCSA and other stakeholders, we
discussed various ways to improve compliance with drug testing
requirements by both carriers and service agents and gauged the level
of support such options garnered.
We also interviewed officials involved in the drug testing programs at
other DOT modal administrations, including the Federal Aviation
Administration, the Federal Transit Administration, and the Federal
Railroad Administration to gather information on whether these problems
are common across the administrations, how problems are addressed by
the other administrations, and how issues and circumstances in the
other modal administrations can or cannot be compared with FMCSA's
experience. For example, we gathered information on whether and how
other administrations oversee service agents. Then, we compared and
contrasted this information with FMCSA's current oversight approach in
order to understand other ways of addressing challenges and to develop
other options.
We also interviewed representatives from American Association of Motor
Vehicle Administrators, which monitors the Commercial Driver's License
Information System (CDLIS), in order to find out the capabilities and
challenges of the system and whether it could be used to send
information about the results of DOT drug tests. In addition, we
interviewed representatives from companies who specialize in gathering
background information for carriers and other various interested
parties to determine how easy it was to obtain privacy information,
such as positive drug tests, on individuals and how they kept the
information private after they obtained it.
In the course of our interviews and analyses, we identified many
options that have been suggested as possible ways to address problems
or weak points in the current drug testing program. We assessed the
various options for their likely effectiveness in addressing the
particular problem they were designed to address and their feasibility
from the standpoint of cost, support, and amount of effort involved in
implementing them. Our assessments were based on (1) analyzing and
synthesizing the views of the various government officials and industry
stakeholders we interviewed with regard to their estimations of the
potential effectiveness and feasibility of pursuing various options;
(2) reviewing studies that have been conducted regarding the
feasibility of certain options; (3) analyzing cost and other data,
where available; and (4) analyzing the experience of other modal
administrations or other entities in implementing various options,
where applicable. Inherently, there are certain limitations and
variances in the quality of data and information available about
certain options. Therefore, we used a certain amount of professional
judgment in comparing options relative to one another. The agencies and
other stakeholders we included in our interviews are listed in table 5;
however, we did not include the names of the carriers or service agents
with whom we met. We determined that the data used in this report are
sufficiently reliable for our purposes.
We conducted this performance audit from June 2007 to May 2008 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
Table 5: List of Federal Agencies, State Agencies, and Industry
Associations Interviewed:
DOT:
* Federal Motor Carrier Safety Administration;
* Federal Aviation Administration;
* Federal Railroad Administration;
* Federal Transit Administration;
* Office of Drug and Alcohol Policy and Compliance.
HHS:
* Substance Abuse and Mental Health Services Administration.
State agencies:
* Arkansas Department of Licensing;
* California Highway Patrol;
* California State FMCSA;
* North Carolina Attorney General;
* North Carolina State FMCSA;
* North Carolina Department of Motor Vehicles;
* North Carolina State Highway Patrol;
* New Mexico Motor Vehicle Division;
* Oregon Driver and Motor Vehicle Services;
* Oregon State Police;
* FMCSA--Oregon Division;
* Texas Highway Patrol, Commercial Motor Vehicle Enforcement;
* Washington Department of Licensing;
* Washington State Patrol Division;
* Washington State FMCSA.
Industry associations:
* American Association of Motor Vehicle Administrators;
* American Bus Association;
* American Federation of Labor and Congress of Industrial Organizations;
* American Trucking Association;
* National Association of Small Trucking Companies;
* North Carolina Trucking Association;
* Owner-Operator Independent Drivers Association;
* United Motorcoach Association.
Drug testing industry associations:
* American Association of Medical Review Officers;
* American College of Occupational and Environmental Medicine;
* American Substance Abuse Professionals;
* Drug and Alcohol Testing Industry Association;
* Medical Review Officer Certification Council;
* Substance Abuse Program Administrators Association.
Source: GAO.
[End of table]
[End of section]
Appendix II: Oversight of Drug Testing Programs by Selected DOT
Administrations:
In addition to FMCSA, other DOT administrations, including the Federal
Aviation Administration (FAA), Federal Railroad Administration (FRA),
and Federal Transit Administration (FTA), oversee safety regulations,
including drug testing, in the aviation, railroad, and transit
industries, respectively.[Footnote 59] Table 6 provides a comparison of
each administration's oversight of compliance with drug testing
regulations by both its carriers and service agents. Each of these
administrations, except FMCSA, conducts oversight of the majority of
its industry either through reviews that cover all safety requirements
or reviews that specifically cover the drug and alcohol testing
requirements. By contrast, FMCSA has the largest and most fluid
industry to oversee and is not able to visit the majority of its
industry. In addition, each of these administrations, except FMCSA,
conducts consistent oversight of service agents, including collection
sites, medical review officers, third-party administrators, and
substance abuse professionals.[Footnote 60] While the oversight of
service agents is intended to cover service agents used by the
employers and operators each administration regulates, these service
agents may also be used by FMCSA-regulated carriers. For example, FAA,
FRA, and FTA conduct oversight of collection sites by checking
qualification documentation for collectors and conducting mock
collections to determine whether collections are done according to
protocols. In addition, if significant noncompliance is discovered at a
collection site through these methods, FTA covertly audits collection
sites. ODAPC officials told us that they fully support clandestine
inspections and audits by all DOT agencies and are developing a
training course for clandestine inspections.
Table 6: DOT Administration Oversight of Drug Testing Programs:
DOT administration: FAA;
Size of industry: 6,784 carriers; 444,344 safety-sensitive employees;
Number of inspectors: 50;
Portion of industry covered: Large carriers are visited once every 12-
18 months, and smaller carriers every couple of years. Some smaller
carriers may have never been visited. Conducted 1,263 drug testing-
specific inspections in fiscal year 2007;
Oversight of industry drug testing programs: Drug testing-specific
inspections;
Oversight of service agents: Service agents used by carriers are
audited as part of the carriers' drug testing-specific inspections; FAA
also conducts service agent-specific inspections after complaints or
during investigations of positive tests;
Enforcement authority: Enforcement authority over carriers, but not
service agents; can initiate public interest exclusions against service
agents.
DOT administration: FMCSA;
Size of industry: 724,000 carriers; 5 million CDL holders;
Number of inspectors: 1,357 total auditors, including 50 federal
auditors, 277 federal investigators, 51 federal border investigators,
440 state safety auditors, 513 state investigators, and 26 contractors.
The majority of the 953 state personnel do not conduct oversight on a
fulltime basis;
Portion of industry covered: Small portion of the industry is covered
by compliance reviews; new carriers since 2003 have received a safety
audit. Conducted about 15,000 compliance reviews and 37,000 safety
audits in 2007;
Oversight of industry drug testing programs: Safety audits of new
entrants and compliance reviews include drug testing program review;
Oversight of service agents: Audits service agents after complaints.
FMCSA is currently testing a service agent-specific review;
Enforcement authority: Enforcement authority over carriers but not
service agents; can initiate public interest exclusions against service
agents.
DOT administration: FRA;
Size of industry: 650 railroad companies; 150,000 safety-sensitive
employees;
Number of inspectors: 150 (2 full time, 148 who spend only a portion of
their time in this function);
Portion of industry covered: Audits all large and medium carriers every
3 years. Audits small carriers once every 4 years.[A]; Conducts about
150 audits per year;
Oversight of industry drug testing programs: Drug testing program
reviews;
Oversight of service agents: Service agents used by the carrier are
audited as part of the carriers' audit;
Enforcement authority: Enforcement authority over carriers and service
agents; can initiate public interest exclusions against service agents
and has warned carriers that continued noncompliance can result in
civil penalties.
DOT administration: FTA;
Size of industry: 2,100 grantees and subrecipients; 270,000 safety-
sensitive employees;
Number of inspectors: 30.[B];
Portion of industry covered: Audits all grantees through triennial
reviews. Conducted about 24 drug testing-specific audit events in 2007,
covering 99 grantees;
Oversight of industry drug testing programs: Triennial reviews that
include drug testing program review, as well as drug testing-specific
audits;
Oversight of service agents: Service agents used by grantees are
audited as part of drug testing-specific audits; service agent-specific
audits occasionally conducted;
Enforcement authority: Ability to suspend funds to grantees, but not
service agents; can initiate public interest exclusions against service
agents.
Source: GAO analysis of DOT administration information.
[A] Some small carriers may only be subject to certain parts of FRA's
drug testing regulations.
[B] FTA uses a combination of contractors and some federal
representatives from FTA and DOT's Research and Innovative Technology
Administration's Volpe Center to conduct oversight of the drug and
alcohol testing regulations. Participation by these entities varies
widely.
[End of table]
[End of section]
Appendix III: States That Require Reporting of DOT Drug Test
Information:
Several states already have a reporting requirement in place for
positive drug tests, and a few states also take action to suspend a
commercial driver's license (CDL) in the event of a positive or refusal-
to-test result on a drug test. States have chosen different ways to
address reporting issues, access issues, and length of time information
is maintained. Table 7 shows information for the states that have
created databases or make notations on the motor vehicle record. Table
8 shows information for states that have implemented a CDL suspension.
Table 7: States That Have Created Databases or Note the Motor Vehicle
Record:
State: Arkansas;
Database: Collects drug and alcohol test positives and refusals-to-test
in database;
Who reports: Medical review officers and carriers;
Access to information: Employers can search database, and are required
to have written consent from the driver;
Removal from database: Remains in database for 3 years;
Cost: $75,000 for database. There is a $75 annual registration fee for
access to request searches electronically, and an additional $2.50 per
electronic record search. Records requested by paper are $1 per record
search and do not require registration;
Status: Between January 2008 and March 2008, 83 positive drug tests,
and 5 refusals-to-test for drugs have been reported. In that same time
frame, there have been 1,890 requests for information, 25 of which
revealed that the driver had a positive result. In Arkansas, there are
135,990 CDL holders;
Experiences: Reporting became effective in January 2008.
State: New Mexico;
Database: Once a code is created, will record drug test positives on
motor vehicle record;
Who reports: Medical review officers; future plans will require carrier
reporting positives and refusals;
Access to information: Once implemented, employers have access to this
information through motor vehicle records;
Removal from database: No process for removing from motor vehicle
record;
Cost: Undetermined, but minimal costs may be incurred;
Status: No positive tests reported. In New Mexico, there are 60,000-
70,000 CDL holders;
Experiences: Reporting became effective in June 2007. New Mexico does
not currently have method for informing medical review officers of
requirement to report.
State: Oregon;
Database: Records drug test positives on motor vehicle record; future
plans include adding drug test refusals;
Who reports: Medical review officers; future plans include changing
reporter to carrier;
Access to information: Employers can request drug test information
through motor vehicle record request;
Removal from database: Remains on driver's record for 5 years;
Cost: One-quarter of a full-time employee's time; no database
development costs since they are using an existing database;
Status: 1,472 positive tests posted to motor vehicle record between
2002-2007, 52 positive tests in first 3 months of 2008. 100-300
carriers request drug test results each year. In Oregon, there are
141,000 CDL holders;
Experiences: Reporting became effective in 1999. Nonreporting by
medical review officers is common because they may not be aware of
requirement, or if out of state, do not believe it applies to them.
Employers may not query the database because program has not been well
publicized and querying is not required.
State: Texas;
Database: Collects drug and alcohol test positives and refusals-to-test
in database;
Who reports: Carrier required to report; medical review officers and
third-party administrators may also report;
Access to information: Employers can search database;
Removal from database: Remain in database indefinitely;
Cost: 4-5 employees;
Status: Over 11,000 CDL holders in database. In 2006, there were 21,337
requests for information; in 2007, there were 27,863; and in January -
April 2008, there were 12,921;
Experiences: Reporting became effective in 2001. Low reporting from
carriers.
Source: GAO analysis of state information.
Note: In states that require the reporting of positive alcohol tests
and refusals-to-test for alcohol, the carrier is required to report
this information.
[End of table]
Table 8: States That Take Action Against Drivers Who Test Positive or
Refuse to Test:
State: California;
CDL suspension: No effect on CDL; revokes special driver certificate
for school bus drivers, para-transit drivers, etc., for positive drug
tests or refusals-to-test;
Who reports: Carrier;
Access to information: Employers have access to CDL information through
motor vehicle records--but personal drug test information not connected
to CDL;
CDL reinstatement: Certificate revoked for 3 years or until driver
completes return-to-duty process;
Cost: $443 for handling 32 cases;
Effectiveness: No effect on CDL, only certificate. In 2007, 32 special
driver certificates revoked;
Experiences: Reporting became effective in 2005. Since 1995, third-
party administrators have been required to submit summary reports to
Highway Patrol on positive results, but action is not taken based on
these reports.
State: North Carolina;
CDL suspension: Disqualifies CDL for drug or alcohol test positive or
refusal-to-test;
Who reports: Carrier; there are plans to have both carriers and medical
review officers report[A];
Access to information: Employers have access to CDL information through
motor vehicle records;
CDL reinstatement: To end CDL disqualification DMV must receive letter
of completion from a substance abuse professional. Disqualification
history stays in record for 2 years from date of substance abuse
professional letter. Plans to increase to 3 years;
Cost: Estimation of $50,000 in one-time costs, about half of a full-
time employee's time. Future upgrades include $153,000 in one-time
costs;
Effectiveness: As of April 2008 there were 735 positive tests reported;
512 current active CDL disqualifications. In North Carolina, there were
325,158 CDL holders, as of October 2007;
Experiences: Reporting became effective in 2005. Since all carriers may
not be reporting, there are plans to include medical review officer
reporting in the future. Plan to increase education about requirement
to report. Carrier and substance abuse professional submissions are not
verified, though personal information and drug test results contained
in the report helps to ensure accuracy and legitimacy.
State: Washington;
CDL suspension: Disqualifies CDL for drug or alcohol test positive or
refusal-to-test;
Who reports: Carrier and medical review officer[B];
Access to information: Employers have access to CDL information through
motor vehicle records;
CDL reinstatement: CDL can be reinstated after substance abuse
professional provides information that the driver has begun education
or treatment, but record of suspension remains on motor vehicle record
for 15 years;
Cost: More than 2-3 part-time employees;
Effectiveness: Between 2002-2007, 4,100 CDLs were disqualified. In
Washington, there are approximately 357,000 CDL holders;
Experiences: Reporting became effective in 2002. Medical review officer
and substance abuse professional submissions are not verified, though
medical review officers and substance abuse professionals are required
to affirm compliance with Part 40. There is underreporting by medical
review officers and carriers.
Source: GAO analysis of state information.
[A] North Carolina officials told us that they are considering
requiring both carriers and medical review officers to report positives
and refusals, but they may have to deal with duplicate reports.
[B] In Washington, breath alcohol technicians are required to report
positive alcohol tests, and refusals-to-test for alcohol.
[End of table]
[End of section]
Appendix IV: Issues to Consider in Creating a National Database and
Commercial Driver's License Suspension Requirement:
National Database:
Issues to consider in developing a national database include (1)
reporting issues such as determining who reports, what they report, how
they report, and how reporters are verified as legitimate; (2) access
issues such as determining who can access the information, what
information they can obtain, how they can access the information, and
how those who access the information are verified as legitimate; (3)
the length of time information is maintained; and (4) how inaccurate
information is corrected.
Reporting to a National Database:
Information that would be reported to the database includes, at a
minimum, positive drug and alcohol test results, refusals-to-test for
both drug and alcohol tests, and information regarding whether a driver
has gone through a return-to-duty process, along with identifying
information on the drivers and their employers. No single entity
involved in the drug testing process has access to all of this
information in all cases, and, therefore, a number of entities may need
to be involved in reporting information to the database for it to be
comprehensive.
For positive drug tests and some refusals-to-test, medical review
officers appear to be in the best position to report, for several
reasons. First, they are responsible for medically verifying positive
drug test results and the refusals-to-test that have been confirmed by
a laboratory as adulterated or substituted and, therefore, are closest
to drug test results and would have information on positive drug test
results for all drivers, including self-employed owner-operators. While
designated employer representatives would also have this information
for drivers employed by their carriers, self-employed owner-operators
would not be likely to report their own positive drug test results.
Furthermore, potential underreporting problems exist with carriers
resulting from noncompliance issues. In some states that have required
carriers to report, state officials reported underreporting from
carriers, and as previously discussed in this report, carriers are
often out of compliance in conducting background checks and with drug
testing regulations in general. There is little indication that medical
review officers have the same issues regarding compliance with DOT
regulations as carriers, and, therefore, reporting is likely to be more
complete with medical review officers as opposed to designated employer
representatives. FMCSA currently has little or no civil penalty
authority over medical review officers and does not conduct regular
oversight over them. This will impact its ability to enforce database
reporting by these service agents.
While medical review officers have knowledge about some refusals-to-
test, they do not have knowledge of others, such as when an employee
fails to show up at a collection site for a random test. These types of
refusals would be known only to the designated employer representative,
or in the case of self-employed owner-operators, these refusals would
only be known to the consortia/third-party administrators. Furthermore,
medical review officers do not verify positive alcohol tests, and,
similarly, this information would only be known to designated employer
representatives or third-party administrators. Therefore, for these
refusals-to-test for drug tests, and alcohol positives and
refusals,[Footnote 61] the designated employer representatives would
need to report this information for drivers employed by their carriers,
and third-party administrators would need to report for self-employed
owner-operators. Including both positives and refusals is an important
component to the database since refusals-to-test are treated the same
as positive tests in the drug testing regulations.
Once a driver has tested positive or refused to test, a substance abuse
professional is required to guide the driver through the return-to-duty
process. As such, substance abuse professionals would have information
regarding when a driver has completed the recommended course of
education or treatment the substance abuse professional prescribed,
which indicates that the driver is eligible to drive following a
negative return-to-duty/pre-employment drug test. Similar to medical
review officers in reporting testing information, FMCSA currently has
little or no civil penalty authority over substance abuse professionals
and does not conduct regular oversight over them. This will impact its
ability to enforce database reporting by these service agents.
Carriers often terminate an employee after a positive drug test result.
If another carrier wishes to hire that employee after a negative return-
to-duty test, that employer would be responsible for ensuring that all
follow-up tests required by the substance abuse professional are
completed. The new employer could be required to report a negative
return-to-duty test in order for that notation to be made in the
database, so that the database indicates the driver is eligible to
drive. While medical review officers are required to review all
laboratory drug test results, including positives, negatives, and other
nonnegatives, requiring medical review officers to report information
on the results of the return-to-duty process may not be a viable option
because they may not be aware that a return-to-duty test is being taken
and would not be aware of the number of follow-up tests prescribed.
Current regulations do not require substance abuse professionals to
verify and report successful completion of a negative return-to-duty
test or completion of all required follow-up tests.
Another issue that would need to be carefully considered is whether non-
DOT tests would be appropriate to report to the database. For example,
some carriers conduct hair testing in addition to DOT-mandated urine
tests, which results in a higher number of positive drug tests.
Moreover, drug tests may be required by courts for other purposes, but
carriers may not be privy to that information. Some have argued that
any positive drug test is an indication that a driver should not be
allowed to operate in safety-sensitive duties and that carriers should
have access to this information. However, under current regulations,
this would not appear to be appropriate for several reasons. For
results of hair or other types of tests, there are no SAMHSA guidelines
on testing protocols or on cutoff levels for what constitutes a
positive test, as there are for urine tests, and therefore these tests
are not a valid basis for removing a driver from service under federal
regulations. Drug tests required by courts or for other purposes may
not include procedures comparable to DOT's collection, laboratory
analysis, and medical review procedures and, therefore, would also not
be valid under the regulations for removing a driver from service.
As with any database, consideration would need to be given to how the
information would be reported, what type of documentation would be
required, and how entities reporting information to the database would
be verified as legitimate.
* Reporting of drug test information could occur through a Web portal
directly from reporters but could also be entered manually from fax and
mail submissions. In order to maintain timely records, decisions would
need to be made regarding the time frames within which reporters would
be required to submit information (e.g., within 3 days of confirmed
laboratory results or completion of the prescribed treatment).
* Documentation required to support the information entered into the
database--such as the Federal Drug Testing Custody and Control Form
(CCF),[Footnote 62] which includes identifying information on the
driver, test information, and verified test results,[Footnote 63] or
information from substance abuse professionals on drivers' completion
of prescribed treatment--could be submitted electronically, could be
mailed or faxed to FMCSA, or could be retained by the reporting
entities as is currently required under DOT regulations. FMCSA could
review documentation for all submitted information before it is
released into the database or could conduct regular audits of entities
reporting information to the database to ensure compliance with
documentation requirements.
* Prior to gaining access to the database, entities would need to be
verified as legitimate submitters of drug test results.[Footnote 64] To
do so, basic identification information would need to be required from
all potential reporting entities, which could include practitioner
license numbers for medical review officers and substance abuse
professionals, DOT numbers for carriers, and affirmations that
reporting entities meet the requirements of the drug testing
regulations.
In order for drivers to be fully aware that their drug test results are
in a database and what measures are available to them to challenge
information or be removed, consideration may need to be given to
whether reporters should be required to (1) notify drivers that their
information is being reported to the database and (2) provide drivers
with information on how they can challenge the accuracy of the
information or specific steps they need to take to have their status in
the database changed or their name removed from the database.
Accessing Information from a National Database:
The primary purpose of the database is for carriers to query to find
out whether an applicant had previously tested positive for drugs or
refused to take a DOT drug test and whether the applicant is eligible
to participate in safety-sensitive duties, given the difficulties in
getting this information through current background-check requirements
and driver disclosure. To accomplish this, carriers would need to be
required to query the database prior to hiring a new driver, which
would require a rule-making process to change the regulations. This
would then obviate the requirement for carriers to conduct background
checks related to drug testing through inquiries to previous employers;
however, the database would need to be in place for a minimum of 3
years before the change could be made, in order for the same extent of
information to be made available to carriers.[Footnote 65] Since some
carriers outsource their background checks, some third-party
administrators may potentially also need access to query the database
to fulfill this requirement. Similar to verifying and registering the
reporters of drug test information, carriers and third-party
administrators would also need to register with FMCSA to verify their
legitimacy to access the database and affirm legitimate use of the
database.[Footnote 66] Carriers and third-party administrators would
then query the database before hiring a new employee, using identifying
information, such as a driver's CDL number and state of licensure. The
automated query response to the carrier would include information such
as past positive and refusal test information, information on
completion of prescribed treatment, and information on completion of
return-to-duty and follow-up testing, if that information is maintained
in the database.
To ensure that drivers have given their permission to search the
database for their drug test history, carriers would need to obtain
permission from a driver to query the database for a driver's drug test
history, similar to current background-check requirements. Since it is
not practical for FMCSA to review documentation on release of
information prior to every query, with each query, carriers and third-
party administrators would need to affirm they have obtained permission
from the driver and would need to retain a signed, written release of
information in their files. This release could be subject to audit
during compliance reviews or as part of specific audits of database
usage.
Careful consideration may also need to be given to whether any
additional entities should have access to the database, either now or
in the future. Some have proposed that drivers have access to their own
records, in order to be aware of information that may be used against
them in hiring decisions. However, verification and registration of
potentially millions of individual drivers, and ensuring that their
access is restricted to their own records, may be difficult to achieve.
In order to address concerns about drivers' access to their own
information in the database, when a driver is reported to the database,
the reporter could be required to inform the driver, and when a driver
is denied employment because of information in the database, the
carrier could be required to inform the driver.
Other access issues that may need consideration include whether law
enforcement officials should be able to query the database and how they
may use the information in the database. FMCSA plans to make the
database available to law enforcement officials during roadside
inspections in order to target carriers that may employ drivers that
have tested positive and have not gone through the return-to-duty
process. However, it is not clear what actions an officer can take
during a roadside inspection against a driver who is in the database
and has not gone through a return-to-duty process--for example, whether
an officer can or should take the driver out of service for not
complying with DOT regulations, even if the driver is not currently
impaired.
Length of Time Drivers Remain in the Database:
The length of time a driver's record is in the database merits
consideration. In reality, a positive drug test generally results in
carriers firing the driver. Few carriers will send a driver through a
return-to-duty process. Further, some employers will not hire a driver
with a past positive test, even if the driver has completed the return-
to-duty process, since they may not wish to hire individuals with a
history of positive drug tests, regardless of what treatment they have
undergone. At least one large carrier we interviewed indicated that
this is their policy. Therefore, while a driver's name is in the
database, obtaining employment will be more difficult, regardless of
whether the driver has completed the return-to-duty process.
A number of options exist for how long records may be retained in the
database:
* Records could remain in the database for a period of 3 years,
corresponding to the length of employment history that carriers are
required to check for prospective drivers.
* Records could remain in the database for up to 5 years, corresponding
to the length of time required for record retention of positive drug
tests.
* Records could remain indefinitely for drivers who do not complete the
return-to-duty process, since regulations prohibit those drivers from
returning to safety-sensitive positions until that process is complete.
* Records could also remain indefinitely for drivers that complete
treatment, and return-to-duty and follow-up tests, with a notation in
the database that they have completed the return-to-duty process.
However, this option may impede future hiring for drivers who have
completed the return-to-duty process since some carriers may still be
unwilling to hire them.
How a driver may be removed from the database prior to the expiration
of a retention period also warrants consideration. One option would be
for potential removal from the database once a substance abuse
professional reports that a driver has completed prescribed treatment
and is eligible for a return-to-duty test. However, because the
driver's next employers are responsible for conducting return-to-duty
and follow-up tests in accordance with the substance abuse
professional's recommendations, it may not be appropriate to remove a
driver from the database at this point and rely on the driver to convey
this information to prospective employers. Another option would be to
remove a driver from the database once all follow-up tests prescribed
by the substance abuse professional are completed (specifically, a
minimum of six follow-up tests in a 12-month period, according to DOT
regulations). This information, under current regulations, would need
to be reported by a driver's current employer. However, consideration
could be given to whether substance abuse professionals should conduct
an additional evaluation to determine that their follow-up testing plan
and any other prescribed education or treatment program have been
successfully completed before the driver may be removed from the
database; this would require changes to the regulations, since
currently only a driver's current employer would be aware of completion
of the substance abuse professional's follow-up testing plan and any
other prescribed education or treatment program.
Refuting Inaccurate Information in the Database:
In order to ensure that drivers' rights are protected, consideration
would need to be given to a process for drivers to refute inaccurate
information in the database regarding names and CDL numbers. Amending
the CCF to include CDL number, CDL state, and DOT number, and using the
CDL number as an identifier, as opposed to a driver's name, would
minimize inaccuracies in reporting, but administrative mistakes may
still occur. Since drug testing regulations include a medical officer
review verification process for all positives and some refusals, it
would seem to be redundant to allow a process for refuting whether a
driver tested positive or refused to test.
CDL Suspension:
Issues to consider for a CDL suspension are similar to those for a
national database but also include determining how drivers are able to
have their CDLs reinstated.
Reporting to State Licensing Agencies:
Issues surrounding the reporters of information, the types of
information reported for a CDL suspension, and methods for verifying
reporters as legitimate are the same as for a national database.
However, there are several options for how information could be
reported by medical review officers, carriers, third-party
administrators, and substance abuse professionals to state licensing
agencies:
* Entities could report directly to the state licensing agency in the
state in which they are located. The state licensing agency could then
send out-of-state CDL information to other states through CDLIS, using
a procedure similar to current reporting of out-of-state convictions to
the state in which the driver is licensed.
* Entities could report directly to the states where a driver holds a
CDL. Although this option would reduce the delay in suspending a
driver's CDL that would exist with the first option since information
would go directly to the state of issuance, it may require reporters to
report to many different states.
* Entities could report directly to FMCSA through a national database.
FMCSA would verify the information and then transfer it to the state of
licensure through CDLIS. This option builds on the national database
that FMCSA is planning and allows FMCSA to review and verify
information before state licensing agencies suspend the CDL.
Accessing Information from State Licensing Agencies:
After receiving information on positives and refusals, the state
licensing agency of the CDL holder, using the CDL number and CDL state
to identify the driver, would suspend the driver's CDL until the driver
goes through a return-to-duty process in accordance with drug testing
regulations. Additional querying by carriers or third-party
administrators and the associated registration and verification may not
be necessary since carriers are already required to pull the motor
vehicle record (MVR) of a prospective driver prior to hiring and
periodically thereafter. Use of the information in the MVR by other
entities would be subject to current state laws regarding access to
MVRs.
Length of Time Driver's CDL Is Suspended:
States that currently have CDL suspensions have different policies
about reinstating licenses and removing records after a certain period
of time, as shown in appendix III. In Washington state, a substance
abuse professional must present information that drivers have begun
treatment or education for drivers to have their license reinstated.
Reinstatement of the CDL does not indicate that drivers are necessarily
eligible to return to duty. Washington sends a reinstatement letter to
drivers stating that reinstatement does not release the drivers to
return to duty and that the drivers must check with their employer.
After licenses are reinstated in Washington, the motor vehicle record
retains the license suspension information and the reason for the
suspension for as long as information is retained by the licensing
agency. In North Carolina, as part of getting their license reinstated,
drivers need to present a letter from a substance abuse professional
stating that initial treatment is complete and they are eligible for a
return-to-duty test. After the licensing agency receives the letter in
North Carolina, the motor vehicle record retains the information that
the license was disqualified and the reason for its disqualification
for 2 years.
Consideration may be warranted for whether there should be a single
standard for how a CDL is reinstated and the length of time a driver's
motor vehicle record retains information of a positive drug test. The
issues are similar to those discussed previously regarding record
retention and removal from a national database. However, although CDLs
should not be reinstated prior to completion of the prescribed
education or treatment program when a driver is eligible to take a
return-to-duty or pre-employment test, drivers will need a valid CDL to
seek new employment if they have been fired. CDLs should therefore be
able to be reinstated prior to completion of return-to-duty and follow-
up tests with notations in the motor vehicle record that inform
employers of the need to consult with the driver's substance abuse
professional for further information on follow-up testing. If a driver
does not go through a return-to-duty process, suspension could remain
in effect and on the motor vehicle record for a period of 3 years, 5
years, or indefinitely.
Refuting Inaccurate Information Leading to a CDL Suspension:
Considerations for a process to refute inaccurate information are
similar to those for a national database. Consideration may be
warranted for whether the establishment of a consistent petition
process across states would be necessary.
[End of section]
Appendix V: GAO Contact and Staff Acknowledgments:
GAO Contact:
Katherine A. Siggerud, (202) 512-2834 or siggerudk@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, Andrew Von Ah (Assistant
Director), Susannah Bloch, Andrea Chinchilla, Paul Desaulniers,
Michelle Everett, Bert Japikse, Sara Ann Moessbauer, Jim Ratzenberger,
Sandra Sokol, Stan Stenersen, and Rebecca Kuhlmann Taylor also made key
contributions to this report.
[End of section]
Footnotes:
[1] DOT, Federal Motor Carrier Safety Administration, Large Truck Crash
Causation Study, Publication No: FMCSA-RRA-07-017 (July 2007).
[2] Transportation Research Board, Drugs and Traffic: A Symposium, June
20-21, 2005 (Transportation Research Circular E-C096) (Washington,
D.C., 2006); and K.L.L. Movig et al., "Psychoactive substance use and
the risk of motor vehicle accidents," Accident Analysis & Prevention,
vol. 36, issue 4 (2004).
[3] Similar requirements are in place for other industries, such as the
aviation, rail, and transit industries, that employ individuals in
transportation safety sensitive positions.
[4] Title 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. FMCSA's specific drug testing
regulations are contained in 49 CFR Part 382.
[5] If employees test positive, refuse to test, or otherwise violate
the regulations, they are required to complete a return-to-duty process
before re-engaging in safety-sensitive duties. The return-to-duty
process is guided by a substance abuse professional and must include
education or treatment, return-to-duty testing, and follow-up testing.
This process may also include aftercare.
[6] Donna Smith, Substance Abuse Program Administrators Association,
"Drug and Alcohol Testing of Commercial Motor Vehicle Drivers" (a
testimony presented to the Committee on Transportation and
Infrastructure's Subcommittee on Highways and Transit, Nov. 1, 2007).
[7] Owner-operators own their own vehicles and hold a valid commercial
driver's license. An owner-operator may be self-employed and act as
both an employer and a driver at certain times, or may act as a driver
for another employer at other times. Little data exist about the number
of self-employed owner-operators. According to DOT, recent statistics
indicate that there are nearly 143,000 owner-operators; however, many
of these may be leased to other larger motor carriers but continue to
maintain their own operating authority, or DOT number.
[8] FMCSA targets carriers for compliance reviews based primarily on a
poor carrier safety record in its Motor Carrier Safety Status
Measurement System (SafeStat). SafeStat is an automated, data-driven
analysis system that uses data on crashes, vehicle and driver
violations, and other information to develop numerical scores for
carriers. SafeStat then assigns each carrier a priority to receive a
compliance review. FMCSA will also target carriers for compliance
reviews based on a fatal accident, a complaint against the carrier or
driver, or a follow-up investigation after violations.
[9] Collectors are one of several types of "service agents" that a
motor carrier can hire to perform tasks needed to comply with DOT drug
testing requirements.
[10] GAO, Drug Testing: Undercover Tests Reveal Significant
Vulnerabilities in DOT's Drug Testing Program, [hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO-08-225T] (Washington, D.C.: Nov.
1, 2007).
[11] [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-225T].
[12] This includes both interstate and intrastate drivers and carriers.
[13] The test analyzes urine for a heroin metabolite--6-acetylmorphine.
[14] FMCSA requires 50 percent random drug testing rates for CDL
drivers in 2008. DOT administrations can lower the random rate for drug
testing to 25 percent when drug testing data show that employees are
testing positive at a rate of less than 1 percent for two years in a
row.
[15] Refusals-to-test include specimens that have been adulterated or
substituted.
[16] In 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.
[17] The 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.
[18] This includes an unidentified number of carriers that are
registered but are no longer in business.
[19] The United States Coast Guard in the Department of Homeland
Security also oversees drug and alcohol testing programs in accordance
with 49 CFR Part 40 in the maritime industry.
[20] Ninety-five percent of FMCSA compliance reviews in fiscal years
2001 to 2006 included a review of drug and alcohol testing compliance.
GAO, Motor Carrier Safety: Federal Safety Agency Identifies Many High-
Risk Carriers but Does Not Assess Maximum Fines as Often as Required by
Law, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-07-584]
(Washington, D.C.: Aug. 28, 2007).
[21] FMCSA 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, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-07-585]
(Washington, D.C.: June 11, 2007); and [hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO-07-584].
[22] Some violations do not result in fines due to inspector
discretion, supervisory review, or a carrier refuting the violation.
[23] A public interest exclusion excludes a service agent with serious
noncompliance with drug and alcohol testing rules from participation in
DOT's drug and alcohol testing program. After receiving a correction
notice from a DOT administration or the Office of Drug and Alcohol
Policy and Compliance (ODAPC), the service agent has 60 days to make
and document changes to correct the noncompliance. If the noncompliance
is not corrected, the DOT administration or ODAPC may issue a Notice of
Proposed Exclusion to initiate the public interest exclusion. After
receiving a Notice of Proposed Exclusion, the service agent has 30 days
in which to contest the public interest exclusion. The ODAPC Director
makes the final determination on whether to issue a public interest
exclusion.
[24] [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-225T].
[25] As we have previously reported, as of June 2004 only 23 percent of
carriers registered with DOT had a SafeStat rating, which FMCSA uses to
target carriers for compliance reviews; the remaining 77 percent of
carriers are unlikely to receive a compliance review unless they are
involved in a roadside inspection or fatal crash, or are identified by
complaint calls to FMCSA. [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-07-585].
[26] There is some oversight of collection sites by other DOT
administrations, including the Federal Aviation Administration, the
Federal Railroad Administration, the Federal Transit Administration,
and the Pipeline and Hazardous Materials Safety Administration, and by
the United States Coast Guard in the Department of Homeland Security.
These other administrations inspect some collection sites used by the
employers and operators they regulate, either as part of a review of
the employer, or as a separate review of service agents. These
collection sites may also be used by FMCSA-regulated carriers. In
addition, FMCSA has a service agent review initiative--focusing mostly
on collection sites--along the Southern border in the U.S. commercial
zone.
[27] Collection sites can be located anywhere--for example, a portable
toilet or any toilet in a clinic, hospital, or office building--and can
operate at various times.
[28] GAO, Drug Tests: Products to Defraud Drug Use Screening Tests Are
Widely Available, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-05-
653T] (Washington, D.C.: May 17, 2005).
[29] According to ODAPC officials, the decision not to require directly
observed tests relates to the need to balance individual privacy with
the need for transportation safety. DOT is required by law to protect
employee collection site privacy to the maximum extent practicable. DOT-
wide protocols only require directly observed tests in certain
circumstances. For example, a collector must immediately conduct a
collection under direct observation if the collector observes materials
brought to the collection site, or the employee's conduct clearly
indicates an attempt to tamper with a specimen. See 49 CFR § 40.67 for
further information on the circumstances in which an employer or
collector must directly observe the collection of the specimen.
[30] The protocols do not require carriers to provide photographs or
other identification of drivers to validate the ID.
[31] DOT officials stated that the use of fake IDs is likely not
prevalent given the time frames required to report to a collection site
from the time of notification. In addition, substitution of this kind
also assumes that there is another person willing and available to
participate in the testing process on behalf of the employee, with a
fake ID, and with information that would identify the person as the
driver.
[32] DOT issued a Notice of Proposed Rulemaking in 2005 to require
specimen validity testing to test for the presence of adulterants,
consistent with requirements for federal workplace testing, and as of
April 2008, the rule is in final review.
[33] An example of a prescription medication containing oxycodone is
OxyContin®, which is a prescription painkiller used for moderate to
high pain relief associated with various injuries, and pain associated
with cancer. OxyContin contains oxycodone, the medication's active
ingredient, in a timed-release tablet.
[34] Office of National Drug Control Policy, Synthetic Drug Control
Strategy: A Focus on Methamphetamine and Prescription Drug Abuse (May
2006), [hyperlink,
http://www.whitehousedrugpolicy.gov/publications/synthetic_drg_control_s
trat/index.html] (accessed Mar. 4, 2008).
[35] Carriers are required to check with a prospective employee's
previous DOT-regulated employers regarding past drug test history,
covering the previous 3 years. If a driver tests positive on a pre-
employment test and is not hired, the driver is still required to
complete a return-to-duty process. If a previous employer does not have
information about the return-to-duty process (e.g., an employer who did
not hire an employee who tested positive on a pre-employment test), a
prospective employer must seek to obtain this information from the
prospective employee.
[36] According to ODAPC officials, no carrier may delay information
relating to drug testing history pending payment for its retrieval.
[37] FMCSA officials told us that, since September 2007, the
administration has mailed a uniform warning letter to motor carriers
failing to provide drug and alcohol background information.
[38] FMCSA's initiative under the Comprehensive Safety Analysis 2010 is
to achieve a greater reduction in large truck and bus crashes,
injuries, and fatalities though measurement, intervention, safety
evaluation, and information technology. Under the new measurement
system, the safety performance data is grouped into Behavioral Analysis
Safety Improvement Categories. These categories are (1) unsafe driving,
(2) fatigued driving, (3) driver fitness, (4) drugs/alcohol, (5)
vehicle maintenance, (6) cargo securement, and (7) crash history. These
data will be scored and weighed based on their relationship to crashes.
For more information, see GAO, Motor Carrier Safety: The Federal Motor
Carrier Safety Administration Has Developed a Reasonable Framework for
Managing and Testing Its Comprehensive Safety Analysis 2010 Initiative,
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-242R] (Washington,
D.C.: Dec. 20, 2007).
[39] There are several other ways FMCSA could increase its oversight of
service agents, such as visiting service agents as part of drug testing-
only audits. This option is similar in its effectiveness and
feasibility, as visiting service agents--as part of a carrier
compliance reviews--only focused on compliance with the drug testing
regulations.
[40] The Substance Abuse Program Administrators Association, for
example, supports increased efforts to ensure that specimen collectors
are diligent in following the current DOT specimen collection
procedures. According to a Substance Abuse Program Administrators
Association representative, the auditing and inspection of collection
facilities is an essential component of enforcement and compliance, an
element that has been lacking in order to evaluate, assess, and enforce
compliance with the DOT drug testing regulations. Further, the
representative stated that auditors and inspectors must physically go
to collection sites used by employers and interview and observe
collection site personnel.
[41] 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.
[42] The Administrative Procedure Act requires publishing a notice and
giving those being regulated by federal agency rules and regulations an
opportunity to comment. The protocols in use were adopted by HHS,
following this procedure.
[43] If testing alternative specimens such as hair or oral fluids is
accepted, this will create a more lucrative market for adulterant
manufacturers to create new and improved products designed to beat the
test.
[44] According to an HHS-certified laboratory and a drug testing
professional, hair testing detects drug use in the previous 7 to 90
days. By contrast, urine testing detects drug use in the previous 5
hours to 5 days (except for marijuana, which can be detected for up to
4 weeks depending on frequency of use), while oral fluid testing
detects drug use in the previous 1 to 36 hours.
[45] It is important to note that according to the Office of National
Drug Control Policy, oral fluids may be less efficient in detecting
marijuana use.
[46] See P. Stout, J. Ropero-Miller, M. Baylor, and J. Mitchell,
"External Contamination of Hair with Cocaine: Evaluation of External
Cocaine Contamination and Development of Performance-Testing
Materials," Journal of Analytical Toxicology, vol. 30 (2006); and G.
Romano, N. Barbera, and I. Lombardo, "Hair Testing for Drugs of Abuse:
Evaluation of External Cocaine Contamination and Risk of False
Positives," Forensic Science International, vol. 123 (2001).
[47] The collection of hair specimens can be complicated. According to
a stakeholder, the correct collection and processing of a hair specimen
may require greater skill and care than the correct collection and
processing of a urine specimen. Collection of hair is complicated when
sufficient quantities of head hair are not available, and the collector
may have to shave or cut hair from other areas of the body. For
example, individuals who are bald, shave their heads or have short
hair, or with hair-loss medical conditions may not be able to provide
an adequate hair specimen. In addition, there may be objections to
cutting head hair for testing purposes because of cosmetic or religious
reasons.
[48] In DOT drug testing, split specimens are used to corroborate test
results when they are disputed. Urine specimens are divided into a
primary and split specimen. The split specimen is tested at a second
laboratory in the event the employee requests 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.
[49] According to ODAPC, such a requirement would put a tremendous
paperwork burden on employers and service agents.
[50] In 2004, FMCSA reported to Congress on the feasibility of how a
national database could work. George M. Ellis, Jr. A Report to Congress
on the Feasibility and Merits of Reporting Verified Positive Federal
Controlled Substance Test Results to the States and Requiring FMCSA-
Regulated Employers to Query the State Databases Before Hiring a
Commercial Drivers License (CDL) Holder, a special report prepared at
the request of the Federal Motor Carrier Safety Administration, March
2004.
[51] FMCSA is also considering requiring consortiums/third-party
administrators that administer drug testing programs for self-employed
owner-operators that do not lease on to other motor carriers to report
refusals-to-test.
[52] Currently ODAPC is working on an Interim Final Rule to clarify the
ability of motor carriers and consortiums/third-party administrators to
share information on positive drug tests with states.
[53] Department of Transportation, Office of the Secretary of
Transportation, Office of Inspector General, Audit of Security and
Controls Over the National Driver Register (2007).
[54] CDLs are issued by state licensing agencies and their issuance
must adhere to minimum federal CDL licensing requirements as stipulated
in the Motor Carrier Safety Improvement Act of 1999.
[55] North Carolina and Washington already require disqualification of
a driver's CDL following a positive or refusal-to-test result on a drug
test, though implementation differs in each state. California revokes
special driver certificates for school bus and paratransit drivers
following a positive or refusal-to-test result on a drug test. See
appendix III for more information.
[56] CDLIS is operated by the American Association of Motor Vehicle
Administrators's subsidiary AAMVAnet , and facilitates the exchange of
commercial driver information among states and the District of
Columbia. CDLIS contains identification information on all commercial
drivers, including an individual's state of record for a commercial
driver's license. Since information would be processed through FMCSA
and then sent to state licensing agencies via CDLIS, there would be a
delay in suspending the driver's CDL after a positive or refusal-to-
test result. Paperwork access issues could also result, delaying
suspension or delaying hearings for individuals who dispute the
suspension, especially if electronic document submission is not used.
[57] Insurance companies generally check motor vehicle records when
insuring a new driver and periodically thereafter. Allowable reasons
for canceling insurance policies vary by state, and not all states
would permit policy termination as a result of a positive drug test.
[58] Since FMCSA is moving forward with plans for a national database,
FMCSA's additional costs for implementing a CDL suspension could
include costs for additional software to give FMCSA the ability to send
information using CDLIS and additional FMCSA personnel. In comparison
to a national database, however, a CDL suspension requirement may
require fewer personnel and technology resources in the long run since
carriers may not need to query the database.
[59] The Pipeline and Hazardous Materials Safety Administration also
oversees compliance of drug and alcohol testing regulations.
[60] There is also some oversight of collection sites by the United
States Coast Guard in the Department of Homeland Security.
[61] The reporting of alcohol positives and refusals is outside the
scope of our work; however, FMCSA plans to have carriers report alcohol
positives and refusals to the database.
[62] The CCF is an HHS form used for federal drug testing that
accompanies the urine specimen to verify the identity of the donor and
document the custody path of the urine specimen and test results from
collector to laboratory to medical review officer.
[63] A change to the CCF to include the driver's state of CDL licensure
and CDL number would effectively identify the driver when a query is
received. Inclusion of the DOT number of the carrier on the CCF would
also allow FMCSA to follow up with carriers who have high incidences of
positive drivers. FMCSA has indicated that it would prefer the CCF to
be updated to include the DOT number. Any change would require action
by HHS to amend its form. If these changes are not possible, an
accompanying cover sheet to the CCF with this information could be
used. This cover sheet could include identifying information for the
driver, including name, CDL number, CDL state, name of employer,
employer's address, and employer's DOT number.
[64] In Washington, state licensing officials told us that while
reporting forms are not verified--and there is a possibility that
someone who is not qualified could be sending the forms--the form asks
for the reporter to affirm compliance with 49 CFR Part 40. In North
Carolina, officials reported that, although they do not verify the
legitimacy of carriers for reporting information, the personal
information and drug test results contained in the report help to
ensure accuracy and legitimacy.
[65] Currently, carriers are required to check with a prospective
employee's previous DOT-regulated employers regarding past drug test
history, covering the previous 3 years. The database would not have
this historical information until it was in place for 3 years.
[66] An example of legitimate use by a carrier would be querying drug
testing histories only on drivers for whom they have a release of
information on file.
[End of section]
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