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Monday, September 27, 2010

Federal Drug Testing Custody and Control Form; Technical Amendment

















Alabama@Work
By: Tommy Eden, Attorney



Published in today’s Federal Register (9-27-10) is a Department of Transportation Interim Final Rule (IFR) mandated for Procedures for Transportation Workplace Drug and Alcohol Testing Programs. The Technical Amendment provides instructions to employers, collectors, laboratories, and Medical Review Officers (MROs) for use of the new Department of Health and Human Services (HHS) Federal Drug Testing Custody and Control Form (CCF), and it offers a technical amendment to laboratories regarding mandatory reporting of confirmed positive drug / drug metabolite quantitations to MROs. The effective date of the IFR is October 1, 2010. You will find the full text of the IFR at http://edocket.access.gpo.gov/2010/pdf/2010-24038.pdf.

Regarding Use of the CCF:

1. DOT- regulated employers and their service agents are authorized to begin using the new CCF on October 1, 2010.

• A copy of the new CCF can be found thru the HHS web site at: http://www.reginfo.gov/public/do/DownloadDocument?documentID=189034&version=1

2. Use of old CCFs is permitted through September 30, 2011, because of the large number of existing supplies. If the old CCF is used on or before September 30, 2011, collectors and laboratories will:

a. Collector: Write in the specific DOT Agency under which the specimen is collected in the Remarks Section in Step 2 on Copy 1 of the old CCF.

b. Laboratory: Before transmitting a confirmed positive drug test for MDMA, MDA, or MDEA, as appropriate, to the MRO, check “positive” box and write in the specific MDMA, MDA, or MDEA analyte in the “Remarks” section in Step 5-A of Copy 1.

3. The IFR provides instructions for:
a. Filling out Step 1-D on Copy 1 of the new CCF, which now includes the Federal testing authorities – HHS; DOT; and Nuclear Regulatory Commission (NRC), with further specificity for the DOT Agencies – FMCSA; FAA; FRA; FTA; PHMSA; and the USCG;

b. Filling out Step 5-A on Copy 1 of the new CCF, which now lists MDMA, MDA, and MDEA, as well as “Δ9-THCA” after “Marijuana Metabolite” and “BZE” after “Cocaine Metabolite” to specify the drug analytes;

c. Filling out Step 6 on Copy 2 of the new CCF, which now has a line for the MRO to note the drug(s) for which a positive result is verified, and a new line item “other” for documenting other “refusal to test” situations – for example, when there is no legitimate medical explanation for the employee providing an insufficient amount of urine;

d. Filling out Step 7 on Copy 2 of the new CCF, which now has a box the MRO is to check if a split specimen is reported as cancelled; and

e. Revised instructions for completing the CCF are on the reverse side of Copy 5

Other Items
:

• In harmonizing with HHS, Part 40 will require mandatory reporting of confirmed positive drug / drug metabolite quantitations by laboratories to MROs.

• A new section §40.14 was added to spell-out, in one place, the information employers and their C/TPAs must routinely provide to collectors.

NOTE: Comments to the IFR are due by October 27, 2010. The Department seeks your comments about the actual implementation of the new CCF, and not on the form itself.

Common Sense Counsel
: All DOT-regulated employers should update their drug and alcohol testing procedures to incorporate these changes by the October 1st implementation date. Those employers who fail to do so risk DOT fines of up to $10,000.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com