COMPLIANCE CORNER BY WILLIAM JUDGE AND NICK HARTMAN, DRUG SCREENING COMPLIANCE INSTITUTE


But I didn’t know the rules! Too bad, hand over your money!


In the Weeds of State Law Compliance


“Litle details have special talents in creating big problems!”


—Mehmet Murat ildan


and procedural realities, and the differences between state statutes and regulations. I have been studying state and federal drug testing rules for over thirty years. I can honestly tell you that I still haven’t scratched the surface of all there is to know. Having reviewed thousands of court


A


decisions, it was clear that if the silly mistakes that were made could have been avoided, the case and the subsequent loss would likely not have happened. Mistakes happen because those responsible don’t know the rules that apply to the screening being conducted. Employers, medical review officers (MROs), and third-party administrators (TPAs) stumble over the minutia of screening rules—those rules found hidden in the weeds of the drug- screening requirements. Te rules are your blueprint for success!


Te key to avoiding costly mistakes is to follow the rules, which means you must know the rules. Let’s look at some examples in both federal and state workplace drug and alcohol screening rules.


Federal Rules “In the Weeds”


Te Department of Transportation (DOT) “common testing provisions” are detailed in Part 40 regulations.1


Significant


amendments went into effect on January 1, 2018. Among the changes are rules you may not have seen, such as the following:


48 datia focus


t past DATIA events, I’ve had the privilege of discussing the differences between policy issues


1. The DOT rules do not apply to over-the-counter (OTC) medica- tions. 49 CFR Part 40.141(b) now uses the language: “. . . prescrip- tion medication (i.e., a legally valid prescription consistent with the Controlled Substances Act . . .”2


DOT


rules do not cover OTC medications since they are not consistent with the Controlled Substances Act. (It does not require a prescription to get them.) Employers may include OTC medications in their programs, but only under their authority.


2. DOT testing only applies to Sched- ule I or II substances found in the federal Controlled Substances Act.3 By law,4


DOT “does not have the


authority to add substances . . . to the testing panel without the scientific and technical expertise of the HHS.”5


When the Health and


Human Services (HHS) Mandatory Guidelines were issued on April 11, 1988, HHS only required testing for cocaine and marijuana;6


testing for


amphetamines, opiates, and phency- clidine (PCP) was also authorized.7 Additional substances have been added over the years “because of their high incidence and prevalence in the general population.”8


January 1, 2018, four synthetic and semi-synthetic opioids were added to the testing panel. They include hydrocodone, hydromorphone, oxy- codone, and oxymorphone.9


3. MROs cannot second-guess a prescribing physician’s decision. Te DOT has restricted MROs from


second-guessing whether the prescrib- ing physician should have prescribed a substance that resulted in a positive test. Language has been added to 49 C.F.R. part 40.137 to prohibit MROs from denying a legitimate medical explanation because the MRO thinks the prescribing physician should not have prescribed the medication to the donor or because the MRO thinks the prescribed dosage was too high.10


4. Age of a prescription. The DOT refused to establish a “bright line” for how long after a prescription is filled, before a positive test, that its use would be a legitimate explana- tion for the positive result. The DOT refused to say that a prescription that is six months, a year, or two years old would not be a legitimate explanation for the result. The DOT noted that the DEA “has not set a maximum time limit for a prescription to be considered legally used by the person to whom it was prescribed.”11


Effective


5. Five-day pause. One of the more significant changes to the rules and one of the least known is the “5-day pause rule.” Tis rule results from the addition of the four semi-synthetic substances to the test panel. Many if not all of these substances are oſten prescribed. So that the donor is not “caught by surprise,” if the MRO reports a negative test result but along with a ”safety” concern, the rules (40 C.F.R. part 40.135(e)) re- quire the MRO to give the donor up to five business days to have the prescrib- ing physician contact the MRO to see if some alternative medication could


spring 2019


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56