Challenges and Solutions
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In 1988-1989 it was believed Employers
would manage all aspects of testing in-house
Contract directly with a laboratory and
Medical Review Officer for services
Since that time until 2001 the majority of
Employer’s programs were outsourced
Revisions to 49 CFR Part 40 were necessary to
include the roles of services providers and
define the role of the Designated Employer
Representative (DER) including use of service
providers
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Operate the random testing programs for
employers
The C/TPA Can manage both DOT and NonDOT *Random pools.
◦ Pools must be separate (cannot combine or
integrate Non-DOT personnel into DOT pool
names)
◦ Random testing may be limited by State laws
and/or Union; collective bargaining agreement.
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May assist with other types of testing, i.e.
pre-employment, etc.
May contract laboratories, collection sites or
conduct testing
May combine employees from more than one
employer or one transportation industry in a
random pool
May assist employers in ensuring follow-up
testing is conducted in accordance with the
plan established by the SAP
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40.25 Previous two year’s test results
◦ A signed release must be provided by the employee
◦ Information about DOT testing only
 FMCSA requires safety history as well as drug and
alcohol violations
◦ MRO and C/TPA cannot provide information to new
employer even though they have information in
their database that the employee has a violoation
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Service Agents may receive and maintain all
records concerning DOT drug and alcohol
testing programs(negative and positive,
refusals), ATF and CCFs, random lists,
random selection lists, copies of notices to
employers of selected employees) on behalf
of the employer.
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If the employer requests all records the SA’s
hold for the employer, the transfer is to
immediately take place.
If the SA plans to go out of business or the
organization is being bought or merged with
another company, the SA must notify all
employers the SA services and explain the
situation.
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Same confidentiality regulations as employers
with respect to the use and release of
information to third parties.
Slight difference with PHMSA: Whoop There it
Is:
◦ A third party agent of PHMSA Operators requires
the MRO Copy 2 of the result when performing a
contractor monitoring “spot check”.
◦ Allowed or Not Allowed?
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PHMSA states the Pipeline Operator remains
responsible for ensuring that the requirements of
Part 199 are complied with for any contractors
performing covered tasks for the Operator
They can use a third party to gather data with
regards to drug testing, education, and training
required by part 199:
The contractor is required to allow access to
property and records by the Operator
Therefore the third party auditor is acting on
behalf of the Operator for gathering the data.
ALLOWED?
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Must not require an employee to sign a consent,
release, waiver of liability, or indemnification
agreement with respect to any part of the drug or
alcohol testing process covered by part 40.
Can’t be the intermediary for:
◦ drug test results from the laboratory to the MRO
◦ alcohol test results of 0.02 or higher from the STT or BAT
to DER
◦ Individual SAP reports to the actual employer except for an
owner-operator or other self-employed individual
Can’t make decisions to test employee for reasonable
suspicion, post-accident, return-to-duty or followup unless it is for an owner-operator or other selfemployed individual
 You can provide advice to the DER
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Must not make refusal to test determinations.
This is the responsibility of the DERs only;
◦ The C/TPA can make the refusal to test if they
schedule the random for an owner-operator and
they don’t appear for the random test.
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The MRO is required to make the refusal
determination for adulterated or substituted
samples.
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Must not act as the DER. Whoop there it is!
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Part 40 defines a DER as:
◦ An individual identified by the employer as able to
receive communications and test results from service
agents and who is authorized to take immediate
actions to remove employees from safety-sensitive
duties and to make required decisions in the testing
and evaluation processes. The individual must be an
employee of the company.
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Service agents cannot serve as DERs. * Exception in some
cases for Owner-Operators (FMCSA) and only in some
capacities.
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§40.3; §40.15(d)
09/01
QUESTION:
If a C/TPA is hired as an “independent safety consultant” that
executes all aspects of the employer’s safety and drug and
alcohol testing programs, can the C/TPA act as a DER?
ANSWER:
Service agents are prohibited from acting as DERs under any
circumstances.
The fact that an organization that is called an “independent
safety consultant” acts as a consultant to an employer for
purposes of executing a drug and alcohol testing or safety
program does not make it any less a service agent. It is still
prohibited from acting as a DER.
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C/TPAs cannot remove employees from
safety-sensitive functions. Whoop there it is.
A SA cannot impose conditions or
requirements on employers that DOT
regulations do not authorize.
◦ Example in Part 40: a C/TPA serving employers in
the pipeline or motor carrier industry, you must not
require employers to have provisions in their DOT
plans that PHMSA or FMCSA regulations do not
require.
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You cannot delay test results because of
payment dispute or other reasons.
◦ Lab must not delay transmitting documentation to a
MRO or C/TPA
◦ MRO or SAP who interview an employee can’t delay
sending the result to the employer
◦ Collector who performs a DOT test must send drug
specimen and CCF to the lab
◦ BAT must send the alcohol to the employer or
C/TPA
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A C/TPA can prepare the MIS report for the
DOT company but the certifying official of the
DOT company must certify the report is
correct, date they verified the report and
provide the email address of the certifying
official.
If the company wants to provide the C/TPA
with their DAMIS username and password, the
C/TPA can input the information as long as
the hard copy has the information provided in
the above bullet point
TRUE STORIES THAT
MAKE YOU GO
HUH???