Below is a full transcription of our popular webinar on the current state of DOT Drug & Alcohol Testing called, “Drug & Alcohol Testing in 2022: What’s New and What’s Next.”
Hello everyone, and welcome to today’s webinar. Our topic for today is going to be “The future of DOT drug and alcohol testing”. We want to talk about some of the regulatory changes that are coming in for companies that operate DOT drug testing programs, and how they might impact your program. So we do expect a good number of participants today, and I can see we have people joining the session as I speak. We will pause for another 30 seconds or so to allow everyone a good chance to join the session. We do appreciate you taking the time today to join, and we hope to have a good conversation on what some of these upcoming changes are. Again, if you’re just joining and logging in, we’re just pausing for a few moments before we get started to allow all of our participants to join, so just sit tight for another 15 seconds or so, and we will get kicked off. Okay, it looks like most of the participants have joined, so we will get started.
The Future of DOT Drug & Alcohol Testing
Our topic today is going to be the future of DOT drug and alcohol testing. There are some interesting changes coming to the world of DOT drug and alcohol testing, and we want to talk about how they might impact you and what some best practices are to optimize how you run your program. I will get started first by introducing myself. My name is Scott Mogensen. I have worked in the industry with Foley for around 16 years, helping companies comply with DOT compliance needs; and certainly, it’s always a great thrill of mine to get to talk with customers and industry partners related to some changes like the ones we’re going to discuss today.
Hopefully, we will answer as many questions as possible in the content, but if there’s anything I don’t cover, there will certainly be contact information at the end. If you have any questions, absolutely feel free to reach out and I’ll try to make sure we get your questions answered, or we will cover anything that you might have a question about after we run through the agenda.
What We’ll Cover
So what we do want to talk about on the agenda are some of the upcoming changes related to oral fluid testing, which is certainly the most exciting item that many of you might have heard about with some recent proposed rulemaking. Beyond that, we’re going to talk about hair testing and how that will be coming to DOT testing at some point in the future. We do also want to look at the refusal appeals process, as well as transition to electronic forms for other forms outside of the custody and control form. Both of those are on the regulatory agenda. We’ll talk about some of the CCF changes that have happened and what that means to you. Then, we’ll update on the drug testing delays that many companies have been feeling over the last six months related to the pandemic, industry staffing levels, as well as material shortages. So, we’ll cover those items and jump right in.
Oral Fluid Testing: A Few Key Advantages
As I said, the main topic for today is related to oral fluid testing. At the end of February, the office of Drug and Alcohol Policy and Compliance at DOT published proposed rulemaking on what the rules would be for bringing oral fluid testing into DOT federally regulated drug and alcohol testing programs. Basically, what this means is that if the proposed rulemaking moves forward and becomes a final rule, DOT drug testing programs would still have the option of testing using the ‘tried and true’ urine testing methodology that’s existed as the only real option for DOT employers to date. But now, oral fluid testing would be an alternative that employers could use instead to conduct DOT-regulated testing.
This is a change that’s been in the process for a while. The federal testing programs outside of DOT have already adopted oral fluid testing as an alternative. This proposed rulemaking, issued right at the end of February, presents what the rules would be for a company to use oral fluid testing as an alternative. Certainly, it has some attractive benefits for companies that may want to use oral fluid testing, and we’ll talk about what those are, but it’s also raised a number of questions. You may have seen this on your custody and control forms that were changed as a result of the federal programs outside of DOT adopting oral fluid testing, and certainly laying the groundwork for what we’re talking about today.
There’s a lot to the proposed rulemaking, and there’ll be more communication coming from Foley on what exactly the technical details of how you would go about administering an oral fluid testing program are, but we definitely want to cover what some of the key advantages of oral fluid testing are, and we really want to make sure everyone understands what the benefits of oral fluid testing would be. Once rules get finalized about how one might implement it, we’ll supply the detail on what those rules would be. But from a high-level, oral fluid testing is something that is being used today in the non-federal space, and it’s proven to have several key attractive benefits for an employer who might look to use it as an alternative to urine testing.
One of the key benefits that’s been observed is that, because an oral fluid test is actually administered directly in front of the collector, it pretty much has the effect of making all collections an observed collection. With a urine collection today, your employee is going to go into the privacy of a restroom or a bathroom stall and will provide their specimen, likely outside the observation of the collector; that certainly opens the door for the possibility of adulteration or substitution. Now, obviously there are countermeasures against that – controlling water sources and whatnot. But certainly, when the test is conducted through an oral fluid test, which is essentially a collection of the saliva inside an individual’s cheek by simply putting a swab inside the cheek, letting it sit there for a few seconds and then taking it out and handing it back to the collector; there’s really very limited of ability to substitute that specimen or adult rate that specimen because it’s all in plain view.
In practice, what has been happening in the non-federal testing space is side-by-side comparisons of oral fluid testing versus urine testing, which have proven that oral fluid testing is far superior for detecting individuals who are abusing illicit drugs, primarily because it really eliminates the cheating aspect. That is a key advantage if you’re looking to run a safety program because it really rules out the possibility of a person getting away with using illicit drugs in your workforce and potentially impacting the safety of your program and your operation because they’re able to cheat a drug test. So, that is definitely a key advantage that has certainly garnered a lot of attention and is part of bringing this rule to fruition.
Other key benefits are that employees don’t necessarily need to go to a clinic or a collection site to get the test done. So while collection sites may still collect the majority of oral fluid testing, the actual collection process is not necessarily going to be tied to a restroom anymore. In theory, a private space could be a collection facility, like an HR office or a private room of an employer. There is not necessarily a need for a restroom or a collection site. Employers could train staff to collect specimens and save the time of sending an employee to a collection facility. So certainly, that’s a lot timelier because it cuts down on the transportation cost in terms of the hours you have that employee off the job, conducting a test or traveling to a site.
The test itself is actually going to be conducted more, at least likely to be conducted more quicker, because you may not necessarily have to wait for the ability to produce as sometimes you see in urine testing, where an individual may not be able to produce a specimen right away. In the case of oral fluid testing, it’s highly likely that test is going to be able to be done very quickly. Because again, it’s really just putting a cotton pad on the end of a swab inside the employee’s cheek, waiting a few seconds for that pad to collect some saliva inside the cheek of the individual, and then just handing it back to the collector, and then that employee is good to go. They can either go on with their job or complete the testing process and get back to what they were doing. The sample is sent off to the laboratory for testing at that point in time.
So certainly, the timeliness of the testing and the speed of the collection process is a big potential improvement. Also, the ability to collect in a remote site or in an office setting and not necessarily having to be exclusively tied to a collection site is a big advantage. What that really will facilitate this, though, is the potential for faster turnaround times and less expense, especially if employers choose to self-collect as opposed to utilizing collection sites. Those will be options that companies will have, but certainly, it opens the door for potential cost savings on that front.
Oral Fluid Testing: What’s Next?
Well there is currently, as I said, a proposed rulemaking that has been published at the end of February. That comment period is going to close in April. So essentially, you have the ability to go online or review the federal register and submit comments related to what the proposed rulemaking is. Some of the language of what the regulations will be is out there. Public comments are welcome and reviewed by the DOT to help clarify any items or potentially provide any input before the rule becomes final. So, that rulemaking again, closes in a little over a month. We certainly hope to see the final rulemaking soon after that. We don’t necessarily know exactly when that will be, but it could be measured in a matter of months as opposed to looking further ahead than that. Certainly, this is going to be an exciting change coming to the world of drug testing because it opens the door for companies to potentially run alternative tests beyond just urine, and, as we mentioned before, take advantage of some of the potential benefits of oral fluid testing as opposed to urine.
Hair Follicle Drug Testing: Could An Update Be Coming?
Now, an additional testing methodology that’s also in the process of coming to fruition is hair testing. Many of you participating in the webinar today may have heard that hair testing is something that is likely going to be coming to DOT drug testing programs in the future. There have been definite initiatives to push this forward in terms of bringing hair testing into the set of options that a DOT employer can complete in terms of a DOT drug test; however, this has been delayed somewhat. We were hoping to see a final ruling a couple of years ago. The timeline has been pushed back on that, while the Department of Health and Human Services is working through the particulars of how a federal hair testing program will be administered. But while that is progressing a little slower than many would’ve hoped, it is progressing. We do expect to see over the next few years the option for hair testing to be included. And similarly to what’s happened with oral fluid testing, that’ll give new options to employers in terms of how they operate a drug testing program.
Hair Follicle Drug Testing: Advantages/Drawbacks
Certainly, one of the big benefits that many are generally aware of when it comes to hair testing and how its usage has borne out with non-federal testing programs, is that hair testing has a large advantage in terms of its ability to look back and really be more of a lifestyle test in terms of identifying how a person has used or abused illicit drugs over as much as a six-month period prior to the test; much longer than any other testing methodology. The ability to detect that drug used in the hair follicle for that long really makes it hard for an individual to escape their behavior, especially when you’re looking back over that window of time.
The samples, like with an oral fluid test, are taken under direct observation, so there’s really no ability to adulterate or substitute a specimen because it’s literally hair that’s being clipped off your body by the collector. So similarly to the points we made oral fluid; the positivity rate is significantly higher on hair testing than urine testing because it has that ability to look over a longer window of time and because it is directly collected without the employer or the donor having the ability to adulterate or substitute.
Now, there is a disadvantage of hair testing in some circumstances where an individual’s hair simply doesn’t grow long enough within a matter of hours to show very recent usage. If you take hair and collect it off the human body, it’s likely to show the evidence of a positive drug test result, meaning illicit use, starting about 30 days ago. This is because your hair only starts to grow out of your body at a slow rate in most cases. So, it’s not going to show very recent use, but it will show use further back. What employers have to take into consideration is the fact that, if you’re looking to conduct a test really targeting recent use, so situations like an accident or reasonable suspicion testing; situations like that are likely better to be dealt with through urine or oral fluid testing, which show recent use, rather than hair testing. Hair testing might be more ideal for a pre-employment test, for example, where you may want to know with the person that you’re bringing on board, whether they’ve used drugs at any point over the last 2, 3, 4, 5, 6 months even. That’ll make it much harder for a new driver who’s potentially going to join your company to abstain for drug use for a short window of time and get the job with a negative test that really wasn’t looking far enough back.
That benefit is actually already being utilized by several carriers that have petitioned the DOT and been granted exemptions to start doing hair testing as part of their programs. There are some large carriers doing this already in the DOT drug testing space. Also, outside of that, there are many employers that are already choosing to do non-federal hair tests on top of their DOT regulated tests. Now, that is an additional step that carriers have taken because they really see the benefit in hiring the right person to join their company who is not going to be failing a DOT drug test and potentially adding to a retention problem where you have to have that driver turn over and then you’re looking to hire again a short time afterwards. So, companies see the benefit in really reducing their turnover numbers by doing further screening at the hiring process stage. This way, they make sure they make the right hire and hopefully lower their turnover and keep staffed up, especially in the midst of a driver shortage like the nation is undergoing right now.
Drug Testing Refusal Appeals
So, those are two of the exciting testing methodologies that are coming along down the road. As I said before, employers will have the option of choosing urine, oral fluid tests, or when hair testing becomes an option as well, incorporating hair testing. They could go with an approach that combines the best of all worlds, or they could centralize on one methodology, but we’ll certainly have more updates as those rules progress. Another item that is on the regulatory agenda is the refusal appeal process. DOT is looking at a process by which employees might be able to protest or put in an appeal related to a refusal that has been deemed by the employer. The goal here is to ensure that drivers have an opportunity and a pathway to go down should there be an employer who has deemed refusal, so that the process is fair to drivers and that there’s a streamlined process for how the DOT can address those situations. This is especially relevant in light of the FMCSA Clearinghouse – as a refusal will get lodged in the Clearinghouse, and that could be something that impacts the driver’s ability to move to another company should they need to. That certainly is something that would be a welcome rulemaking change. It’s very early in the process, but we did want to update everyone that this is something that the DOT is working towards.
Expansion of Electronic Form
Beyond that, another item on the regulatory agenda is the potential expanded use of electronic forms for some of the other DOT drug testing related functions. Many of you are probably aware that the custody control forms, the CCFs that are used in the DOT drug testing process, are able to be done on both the traditional five part carbon copy form and through an electronic ordering process. But currently, the CCF is the only form in the world of drug testing that is allowed to be done electronically. So, other types of processes or forms that you may be filling out in drug testing programs are still required to be done the old fashioned way on paper. That could include things like alcohol testing forms, and the two year part 40 background safety performance history investigation for prior drug testing conduct, which is still required to be done using wet signatures and an actual paper process.
That certainly is something that could benefit from being electronic, and we definitely hope to see that ability coming in the near future. This is something that is a priority for future rulemaking. It’s going to be working its way through the rulemaking process and we will definitely keep you updated on how that progresses. However, currently, it is one of the items that is on the regulatory agenda to be moved forward. We’re encouraged by that, and certainly at Foley, we want to provide our customers every opportunity to do whatever they need to do through electronic means because it’s faster, it’s more contemporary, and it provides optimization and efficiency for operating your drug testing program. So, we definitely look forward to that coming down the road.
Update: The New Custody & Control Form
Another thing, speaking of CCFs, that certainly many of you have felt, are some of the changes that have gone into effect over the recent history of the last couple of years. So, just an update on this: the new drug and alcohol testing form, the CCF, went into effect last year; August 30th of 2021 was when the new form had to be adopted. That was a change really related to the oral fluid testing methodology that we saw at the beginning of this presentation, as well as some other modifications related to things like the FMCSA Clearinghouse and providing the right information there for submission to the Clearinghouse. Because of some of the general industry-related and pandemic-related staffing and supply shortages, there was relief granted by the DOT where the old form could be used up to August of 2023.
There is relief that has been granted there, so without needing a memorandum for the record, the old form can be used if you need to, but we would really recommend that, if at all possible, you do adopt the new form. Certainly, Foley has provided all of our customers with new forms and we continue to re-update any existing customers that we have with the newest version of the form. We want to get that out there for a couple of reasons, but really it is something that will benefit you down the road and it’s available now.
What Change?
So again, the things that have changed on that form are primarily that the oral fluid testing option is now available. What that means is, you’ll see the box on the form that can be checked. Just to be super clear – currently for DOT drug and alcohol testing, that is still only proposed and is still coming so it can’t be done today even though it does appear on the form, but it is currently an option for federal drug tests outside of DOT. Additionally to that, the new form has driver identification fields, as I said before, that primarily is related to submitting information to the DOT Clearinghouse and providing employers and MROs with the right information necessary to identify the driver by CBL number in order to get that information submitted.
Getting switched over to the new form is something we recommend. You don’t necessarily want to wait through the entire window of time where DOT is going to permit usage of the old form – you can switch over right away; and we recommend that you do that so you can take advantage of things like the oral fluid option coming in the near future.
Old Vs. New Form
To look really in depth here and provide a little visual to this; what you’ll see is the highlighted sections are the ways you can identify whether you’re operating on the new form or whether you have the old form. So specifically in step one, there will be a request for the donors’ social security number and a potential option for the CDL number and State of Issue. That CDL number and State of Issue is going to be there because of FMCSA regulated testing – that’s going to be what’s required to be put on the chain of custody form because this will allow the MRO to submit that directly into the Clearinghouse and provide any type of violation information on a driver or applicant. So, if your form has that in the highlighted section, that’s a good way of identifying it as the new form. Perhaps even more obviously, in step two, you’ll see an oral fluid check box in addition to urine. As previously mentioned, this is related to the change coming with oral fluid being an option for federal drug testing, and once the final rule comes out, for DOT drug testing as well.
Update on Turnaround Time Delays: Short-Term Delays
That is some of the important information related to upcoming changes. One other topic we do want to update on is turnaround time delays. As I mentioned before, longer turnaround times in the drug testing industry have been an unfortunate reality of the last several months. A lot of that boils down to staffing and supply chain shortages and issues, related to either the collection sites’ availability and being open, shipping delays, or laboratories feeling the pinch of the global pandemic related to supply shortages of both paper and plastic. This has really had an impact on employers in terms of affecting the time it takes to get a DOT drug test processed.
How You Can Help
There are certainly things that you can do to be able to improve performance of your drug testing programs. One is to coordinate with the collection sites and ensure they’re able to complete testing. This should be less of an issue in 2022 than it was in 2020 and 2021, but, related to the pandemic, there were a lot of modifications to collection site availability hours for any type of practices related to safety associated with COVID. So, calling in advance is always a best practice. If you’re sending an employee down to get a test done – calling in advance really just makes sure that they’re open and if they’re ready to perform the test; and if at all possible, we certainly recommend using the electronic process. If you’re a Foley customer, log into our portal, place the order for that test in advance. In that way, it’s going to be registered in the collection site system. They’re going to be able to deal with that test electronically, and that’s just going to speed up the entire process and ensure the fastest possible turnaround time.
What Is an Electronic CCF?
So if you’re not familiar with this process, the eCCF or Electronic CCF is really the electronic version of a custody and control form. It’s essentially the ability to do a drug test completely electronically where you schedule the test in advance. Again, if you’re a Foley customer, use our Foley platform to log in and identify who the person is that you’re getting tested, or if you’re sending several people, you can place several orders and get that test registered in terms of exactly what type of test you want done, and pick the collection site from all the electronic enabled sites that we have. Schedule what the time you want that test done in – both when the start of that window is, and when the test should expire and be done by – and that order will go directly into the collection site’s system. They’ll then be able to just take the donor once they arrive and get that test done without needing to fill out the five-part carbon copy CCF.
The elimination of the transfer of paper, both for the collection site, and for the downstream parties – like the laboratory testing, the specimen and the MRO reviewing the results of the lab test – really optimizes the performance of the drug testing program, ensuring the minimum possible turnaround time so that your time to hire that employee or the time to get the result back on your existing employee has the best possible turnaround time it can. The transfer of information is electronic, so it’s a lot more reliable and accurate, and everything is fully legible because it’s electronic.
The Benefits of an eCCF
There is increased accuracy as a result of reducing those legibility issues; you’re not going to lose or have any forms go missing. Again, if you’re a Foley customer, it’s going to go straight into our platform and be electronically stored, so you have that security and that insurance that it’s going to be there when you need it for recordkeeping purposes in the event of a DOT audit, and the fastest possible turnaround time to the point that, based on some of the data we see, your turnaround time could be about 25% faster just by choosing to use an electronic form as opposed to a paper five part carbon copy form.
Why You’ll Still Need Paper (For Now)
Having said that, we’ll just point out that not all clinics currently accept the electronic custody and control form option. Some of the clinics out there are electronically enabled. I should say, quite a few of them, thousands are, but not every clinic is fully adopted yet on the electronic CCF. So, having a supply of the paper carbon copy forms is still a good practice so that you have a backup in case you need to get a test done and if, for whatever reason, you’re unable to go to a clinic that has adopted the CCF form.
Working With a DOT Drug Testing Partner
Keeps You Up To Date
The last thing we’ll touch on is the value of really selecting a good TPA to help administer some of these items with you and on your behalf. As we’ve been discussing, there’s a lot of change coming in the industry, between CCF changes and the FMCSA’s Clearinghouse and new upcoming testing methodologies. One of the things we would highly recommend in terms of how you can optimize the performance of your drug testing program is to ensure you have trusted partners who you trust that you can get information from when you need it in advance of those changes. So, I think you’re all doing a good job of staying informed by joining our webinar today. Most of our topics have been a ‘looking forward’ to changes that are coming down the road. And that is one of the values of working with a trusted partner – they keep you abreast of changes that are either on the horizon, or even some of them that are over the horizon that will come your way soon.
Access to a Digital Solution
Another real benefit is, as we’ve saying, going as electronic and digital as possible is really in your benefit. That is possible now for ordering of drug tests, and as we’ve said in future, more of the drug testing forms and processes related to both your safety performance history and investigations for drug and alcohol history, as well as other forms like alcohol testing forms going electronic. You want to have access to a digital platform that’s going to help you achieve those goals. That could mean a platform that gives you the business intelligence of knowing and alerting you to when things like testing is due or required or calling to attention necessary steps that you have to take. Certainly, you want to use a platform which is going to allow you the ability to order testing electronically, and provide you access to the widest possible array of electronic-enabled collection sites in your driver’s area. Those are key benefits to going digital.
Digital Files = Increase Security
In addition there is the fact that, ultimately, when you operate a DOT drug testing program, you’re doing it, not just for the benefits of safety and reducing the risk to your organization, but because it’s a federal requirement, and you’re going to have to answer to a DOT audit or a customer’s request to prove that you’re in compliance. Your recordkeeping is really your proof that you are operating a safe and compliant program. So when you take the necessary steps like conducting testing, you want to ensure that you have the ability to prove that you did everything right. Using electronic records, and using electronic documentation and a digital platform ensures that you have both the security and the redundancy, and the backup in case of any type of disaster recovery or need to access your forms, as you can get to them 24/7 in a secure online repository.
Ensure You’re Audit Ready
Especially given the fact that, in the FMCSA regulated sphere, there are both a number of requests for electronic submissions and offsite audits, MIS data being randomly requested from carriers, and other needs to prove compliance, you want to be audit ready; you want to make sure you have a system which allows you to make that information as available as possible. It is definitely a best practice to make sure you have your ducks in a row when it comes to being prepared to provide your information, and using a digital platform is really the way to go to do that.
In Closing
So in closing, to touch on some of the delays that have been happening in the industry process, that hopefully you should see winding to an end. 2022 is looking better than some of the prior years and all of the pandemic-related industry-wide issues related to supply chain and staffing, and materials availability for plastics for vials for testing and paper for CCFs. We will keep you updated on those. We certainly see in the data that the situation is getting a lot better, but we will keep you abreast of how that impacts your program.
One of the things you can certainly do immediately is make as much use as possible of electronic testing; that will not necessarily be able to completely eliminate some of the delays, but it will be the best option to reduce and minimize any potential delays, and it’s an action we can take right now today. And if you are a Foley customer, one of the things we want to reiterate is that we’re certainly happy to talk about some of the changes that are coming down the road as we have at the beginning of this session and what some of the regulatory changes are that are coming; just know that we’re committed to continuing to provide updates on those rulemakings as they get further along. So as the proposed rulemaking period closes for oral fluid testing, as an example, we will provide more detailed insight as to how exactly the process for oral fluid differs from urine testing, how the rules are finalizing in terms of how that’s being done, and what the next steps are if you want to take advantage of that.
Have Questions? (860) 815-0764
You can certainly reach out to us today and we’ll be happy talk any of this information through. Additionally, we will be providing more content, both online on our news wires and blogs, as well as with webinar series like these. Here, you have some contact and information you can reach out to if you have any questions. I would like to take this opportunity to thank everyone for joining today. Hopefully, we have provoked some thoughts in terms of identifying some of the changes coming to the world of DOT drug and alcohol testing and answered some questions you might have had if you had heard of some of those upcoming changes. And it’s certainly a pleasure to get to talk to all of you today and thank you again for taking the time to join us. So with that, I will wrap up and wish everybody a great rest of the day. Thank you again.
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