Below is a full transcription of our popular webinar on DOT Clearinghouse compliance and tips called “Get to Know the Clearinghouse: Your Guide to Queries and Recordkeeping Management.”
Hello, everyone, and welcome to the Foley webinar: “Get to Know the Clearinghouse: Your Guide to Queries and Recordkeeping Management.”
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So again, if you’re just logging in, this is the Foley webinar related to the Clearinghouse queries and recordkeeping management. We’re just allowing all of our participants to get logged in and then we will get started very shortly.
It looks like most of the participants for today’s session have logged in, so we will get started. And again, thank you to all who have joined today. The topic of today’s webinar is “Get to Know the Clearinghouse.”
So, we want to go through a guide to queries and recordkeeping management really with the goal of making sure that you have all your bases covered when it comes to the Clearinghouse and that you are audit ready when your records are inspected.
So, I’d like to introduce myself. My name is Scott Mogensen. I am a Director here at Foley and have been here for around 15 years. It’s always a pleasure to get a chance to talk through this subject with our customers and other industry partners, and I look forward to answering as many questions as I can today. And with that, we will dive right in.
Regulation Overview
So again, the topic is primarily related to the DOT Clearinghouse today, so it is probably a good place to review exactly what the Clearinghouse is and when it went into effect. So back on January 6th, 2020, the FMCSA put in place its Clearinghouse for drug and alcohol testing information. And what that really mandated was that employers of CDL drivers and any driver who’s going to be subject to Federal Motor Carrier Safety Regulations, to first register in the Clearinghouse and begin to take certain actions both in a pre-employment scenario and with regard to their existing employees on an annual basis. This includes a query of the Clearinghouse to determine whether or not there is violation information on the drivers that they’re either currently employing or are looking to hire.
And in addition to that, every employer will have to report and ensure that their service agents report any type of violation information that they become aware of. So, those could be positive drug test results for their own drug testing programs or refusals to submit alcohol violations that occur in the course of operations. So basically, this Clearinghouse is one centralized database where all CDL drivers’ violations are stored, and employers have to be part of the process and make sure that their current employees and potential applicants are free of any violations either that have occurred for their company or others, which would prevent them from driving under the current regulations.
What’s Next
So, there are some upcoming steps beyond what’s been implemented today that are going to go into effect in the future. So, the Clearinghouse regulations are continuing to expand and that would include state driver’s license agencies, which are going to be required to incorporate the Clearinghouse into their process of issuing and renewing CDLs. So essentially, what that means, is that when the licensing agency at each state is processing a CDL renewal or a new issuance, they’re going to check the Clearinghouse to determine whether or not that driver has any violation information that has not been resolved and potentially downgrade that license depending on what they find in the Clearinghouse. And that would essentially therefore require that driver to then go ahead and go through the return-to-duty process in order to become eligible to be reinstated as a CDL driver.
That part of the requirement is still to come. The state licensing agencies are working on that capability to expand it out nationwide so that each licensing agency has the same process. But FMCSA has mandated a timeline for that to take place and that will be coming in the future. So again, expanding the reach of the Clearinghouse and its significance when it comes to being in a position to prevent drivers who have violation information from driving commercial motor vehicles and creating unsafe situations.
Enforcement Action (DOT Enforcement)
Now, in addition to the licensing agencies getting in on the act of reviewing Clearinghouse violation information, auditors in DOT enforcement cases, such as safety audits or compliance reviews, are now incorporating the Clearinghouse into the regulations that they are enforcing. So, things that they will be looking for and checking are things such as the employers having to be registered and being able to prove that they are registered within the Clearinghouse. And that obviously is going to be something that’s essential because employers need to be running these queries and submitting violations. So, unless you have a registration in the Clearinghouse, you as an employer are not able to do that. So, you need to be able to show you’re registered, and auditors are going to be looking for that. Additionally, you need to have proof that you’re performing the pre-employment and annual queries on either the applicants who are potentially joining your company, or the employees that are employed in CDL positions for you.
And, finally, you need to be able to show that if there are violations, which have occurred in the course of your drug testing program, you’re making sure that those get uploaded into the Clearinghouse. So again, those could be positive drug test results or other types of violations like alcohol refusals, or even actual knowledge situations. So, an auditor will be reviewing these situations to ensure that you’ve taken the appropriate steps whether you’re hiring, whether you’re managing your existing employees or responding to any type of violation that’s occurred. The Clearinghouse is going to be something that the auditors are looking for to make sure that you’re doing all the required steps that the new regulations require.
Consequences of Noncompliance
And what are the consequences should they find an issue where you haven’t been complying with the regulations? Well, they’ve actually recently been stiffened. So, in early 2021, about a year after the Clearinghouse went into effect, FMCSA actually doubled the violation civil penalty that could be issued when a Clearinghouse item is detected. Essentially, the non-compliance with a Clearinghouse requirement could now result in fines of up to $5,800 per violation. So that is obviously a stiff penalty that should get most carrier’s attention because the fact that the violation can be – or the fine can be – per violation is obviously just the tip of the iceberg. And you don’t want to be in a situation where multiple violations are uncovered and potentially a very costly situation is the result.
So, obviously that’s one thing that we want to make sure coming out of this webinar that you are prepared to avoid, and that you understand the consequences of non-compliance. And what are the things that you have to do to ensure that you never find yourself in a situation where an auditor has uncovered non-compliance. So how do you keep your records to be able to document everything that they’re looking for and what are the best practices in order to manage your Clearinghouse program as effectively as possible?
About Clearinghouse Queries: Types of Queries
So, now that we’ve talked about the overview of the DOT Clearinghouse, let’s dive into the Clearinghouse queries that you as an employer will have to run on your drivers. So, the first thing that we have to cover here and make sure is clear is that there are two distinct types of Clearinghouse queries. The first is known as a full Clearinghouse or sometimes referred to as a pre-employment query. And the second is going to be a limited query, or it’s often referred to as your annual Clearinghouse query.
So, we’ll talk about each one of them and get into a little more detail later on, on the differences and how you actually have to manage both of them. But at a high level, the distinction between the two is that the full query or the pre-employment query, discloses all of the details related to that driver’s drug and alcohol violations. So, it’s going to have the specifics of what type of violations might have been in this driver’s record in the past, as well as what steps they might have taken in terms of going through a return-to- duty process and a follow-up program to get back on the road if they did have a violation on their record in the past.
So, with all of that specific detail, it does actually have a different type of consent requirement attached to it. And in this case, with a full query, what actually has to happen is for each query run by an employer, the driver has to log into the Clearinghouse and provide their electronic consent within the Clearinghouse application to allow that record to be released to the employer. So, that means there’s a couple of steps that have to happen. One, is the driver themselves has to go in and register an account within the Clearinghouse to be able to log in and provide that consent. And then secondly, when the employer does make that request to execute a query, the driver needs to go in, and specifically for that employer, prove that they do consent to releasing their record to that employer. And both of those steps have to happen in order for the result to be returned to the employer.
So, that is the full query and what it returns to the employer. And that’s a little bit different than the limited Clearinghouse query, which is a more summary-level result, which will tell the employer whether or not the driver that they are running the query on is not prohibited, meaning there is no violation information, which would prohibit them from driving safely. Or it may return a result saying that records were found in the Clearinghouse.
And it doesn’t have the specific detail of what those records show, but it will just tell the employer that there is information in the Clearinghouse on this driver’s record that may be adverse. And therefore, what the employer will end up having to do is then run a full query immediately thereafter to be able to get that information. But the limited query, the one that you’ll run annually, is really just going to return quick high-level information without the detail.
And because it’s a little bit different, the consent process is different there. So, you still need consent from your driver before you run a limited query, but in the case of running a limited check, you don’t necessarily need to have the driver go into the Clearinghouse and approve that query and provide consent within the application. Rather, you can actually have a consent form, which has been signed outside of the Clearinghouse, and you manage that and retain that in your records to show that the employee has given you consent as the employer to run their limited query. And usually, if done properly, that consent will cover you as the employer for the duration of that driver’s employment with you. So, you can have that consent form. It can be wide enough to basically cover all the years that that driver will be driving for you. And as long as you keep that on file, you can continue to run limited queries every year on that driver.
Querying Requirements
So, when do you actually execute these queries? Well, the first case is when you’re hiring a new driver. So, if you have a new driver that’s going to start in a CDL capacity for you, you need to go ahead and run a full query on that driver prior to them beginning a safety-sensitive operation, and get a result back which shows that they are not prohibited from operating because they have no violation information in the Clearinghouse. And then beyond that, what you’d have to do is at least once a year, you will have to run a limited query on every driver in a safety-sensitive capacity that you employ. So at least within the year, and that’s basically from the last time you ran a query on that driver, you have to ensure that you’ve run a limited query to ensure that there is no new information that you’re not aware of, and that that driver is still in a position where they are not prohibited from operating in a CDL role.
Pre-Employment Query Requirement
So, diving a little more deeply into that topic of the pre-employment query: before you hire that driver, you need to make sure you execute that query. You need to make sure that that first pre-employment you run on the driver is a full query. So again, that really means that it’s important that the driver get registered within the Clearinghouse so that they can actually go ahead and approve your consent request. And then when you get the result back, you need to make sure that it is going to be not prohibited and show that that driver has no adverse information in there that would block them from being in a driving position. So really, the consent is a key piece here, and we really want to make sure everyone appreciates that because obviously this is a key piece of the requirement to ensure that the individual’s right to privacy is protected. And the Clearinghouse manages that in a full query capacity where that driver actually has to go in, and case by case, approve that consent request.
Annual Query Requirements
Now on the annuals side, like I said, that’s going to be at least once a year that you have to run that query on the driver. We’re going to talk a little bit later where it might make sense for you to run queries on a more regular basis than that, just to ensure that your drivers have no information that’s been submitted at the Clearinghouse that you are not aware of. But the regulations will say that at least annually, for every CDL driver, you have to run a query and it can be a limited query. Which means basically, you’re just doing this check against the database to make sure that there’s nothing in there that is going to prohibit them from operating.
Now, if the result comes back and says there are records found and that there is information in there; you then have to go and put in a full query request and run a full query to ensure that you get the detail of whatever those records are. And you can determine whether or not that driver needs to be removed from their driving role, if perhaps there is prohibited information in there that you are not aware of. So basically, that time period for responding to a limited query that comes back with a “records found” status and running that full query is very tight. You need to ensure that that’s done within 24 hours, or you need to pull the person off the road.
Clearinghouse Query Best Practice
So, now let’s get into a little bit about best practices. So up to now we’ve talked about what the regulation requires and what the DOT’s mandate enforces carriers to do. But we also want to make some observations around how you as an employer can use the Clearinghouse to improve the safety program that you’re running and potentially stay out of some additional sticky situations.
Gaps in the Regulation
So, one of the things that we do want to call attention to is the fact that the CVSA has recently added Clearinghouse checks to its roadside inspection list. So what that means is that essentially during a roadside inspection, the Clearinghouse record for the driver who’s being inspected could be checked. And that will be a problem if the driver is determined to be not compliant because of something that they find in the Clearinghouse.
And, obviously, drivers are moving around and moving from company to company all the time. So, what we’ve seen is the case where there can be drivers driving for your company that have also gone and applied for jobs at other firms and potentially they have violation information that they had added to their record that you may not be aware of because it came about as a result of a positive drug or alcohol test that occurred while they were either applying or driving for another company. And if your driver is now driving for you and they get pulled over on the roadside, and that record checked; you could be in a situation where you have a driver put out of service because you weren’t aware that that driver had a violation on the record.
So one of the things that we definitely want to call attention to is the fact that if you’re just doing the minimum and running queries once a year, there is this gap of time between when you’ve run your last query and when you’re going to run your next query, where there could be information put into that Clearinghouse on the driver’s record that isn’t necessarily something that’s in your site. So, we want to make sure that you are aware that. There are a large number of violations; as of August, 2021, there were over 87,000 violations which had been submitted into the Clearinghouse that could be affecting some of your drivers.
The Case of Ongoing Monitoring
So, what do you do about that? Well, one thing that has been found to be successful is that, you as the employer aren’t necessarily tied to just doing the minimum. There is the possibility to run queries of a limited nature, more often than once a year, and therefore reduce that period of time that your drivers have been on the road since you’ve last run your last Clearinghouse query.
So, essentially, there are some benefits there obviously to ensuring that no information gets submitted that you’re not aware of, and also potentially reducing the possibility that you have drivers operating impaired like we’ve seen from some post-accident positivity rates jumping up over the last handful of years. Use the Clearinghouse as a tool to be able to sure that your driver population is safe and productive.
Protecting Your Business
So, obviously as we’ve been saying, these would be limited queries that you can run as many times as you want provided that you have a consent form on file, which grants you the right to run these limited queries for the duration of that employee’s employment with you. So, our recommendation would be that, instead of having to do a query once a year as a minimum because that’s what the FMCSA says, really you should probably try to look at running these queries on a quarterly basis.
So, every 90 days or so, just initiate a query for every driver that you have to ensure that there’s no new information in there that has been submitted by another employer that driver has either applied for or driven for, so that you’re not blindsided by any information that you weren’t aware of. It really reduces that window of time down so that you’re not caught unaware. And really, the cost is very minimal. The actual Clearinghouse queries have a small fee the FMCSA charges, but they’re very inexpensive compared to the value that they provide to your business in ensuring that your drivers are not put out of service.
Running a Compliant Program
So, what do you have to do to do that? Well, you’re going to want to run a compliant program and ensure that again, you have that consent form signed for all of your current employees. Different companies can manage this in different ways, and we’ll talk about the value of having a good partner in this process a little bit later here. But that consent form is really going to be key, whether it’s something that you have a hard copy of, or even better, would be an electronic process where you have these drivers that you’re employing go through and provide you that consent. And you’ll want to have your HR or legal team or any type of legal resource that you use, review it for compliance concerns to ensure that it’s good and the language is right.
But the key things you’re going to want are, that you want to have the right to run an unlimited number of queries for the period of time that driver is employed for you. That way, you’re not boxed into only having consent for a certain period of time and then having to renew it.
Clearinghouse Recordkeeping
So, let’s talk about Clearinghouse recordkeeping and how you can actually ensure that your records are in a position where you are prepared to sail through any type of audit or review that’s done of your Clearinghouse program.
Clearinghouse Requirements
So, the first thing to understand is that there are many record types that you’ll have to be able to store, and you’ll need those records to prove that you took the required steps when it comes to executing a compliant DOT Clearinghouse program. But among those, some of the ones are things like signed consent forms. These consent forms are obviously very important because they provide the legal justification for why you can actually go ahead and pull protected information from the Clearinghouse on a driver’s record.
Having those consent forms is important. You’ll need to be able to demonstrate that you’ve captured them in the event of an audit. And you’ll also need to keep records on the actual queries that you’re executing. So, you’ll need to show an auditor that you are running pre-employment queries on every new hire that you’re bringing into a CDL role, and that you have a result prior to putting that person on the road. Similarly, your annual query requirements need to be met, so you need to be able to show that. For every driver that you employ, at least once every 365 days, you are running an annual query to be able to document that you’ve met that requirement. So, the results of these queries, the consent forms and any other type of submissions to the Clearinghouse that you’ve made, all need to be saved in a secure location.
And we’ll talk a little bit more about the best way to do that later, but while you could use a paper file like you see in the image here; really, the best way that you can go about doing this is to ensure that you’re going digital and that you’re storing these documents electronically, and we’ll talk about why that is in a few slides from now.
Query Recordkeeping
But again, when it comes to the actual queries, the two types, again, that you need to make sure you save records of are all your full queries and all your limited queries. The fulls again, are the detailed records that have all of that violation information (if there is any) and those need to be saved off. And certainly, in the event of an audit, it’s pretty easy for an auditor to look at all the drivers you’ve hired and just check to see, okay, did you run that full query? And then on a limited query basis; if you’ve had a driver you’ve been employing for a long time, there should be limited queries year after year that you’re running on that driver and stored in that driver file.
Consent Recordkeeping
Now when it comes to the consent, one important thing that we always want to touch on here is the significance of why that document is important. And what that really centers around is the fact that the FMCSA Clearinghouse is actually subject to both provisions of the Privacy Act and the Fair Credit Reporting Act. So, these are laws that essentially protect personal information. And when it comes to the driver’s information and what employers can do with that information, there’s pretty strict requirements that basically prohibit the release of that information without a consent form being in place. And when you actually go ahead and get that driver’s consent in the case of a limited query, you want to make sure that you have that consent form on file for the duration of that driver’s employment. Because while when you run a full query in the Clearinghouse, it will not actually release the record until the driver goes in and provides consent within the Clearinghouse. But when it comes to the limited query, the Clearinghouse is really trusting that you as the employer have gone through the process of getting that consent and you are keeping track of that outside of their platform.
So, you can go ahead and execute a limited query, but if it’s found that you’re doing that without having done your step of getting that consent form and keeping it in your files, then you could find yourself in some hot water because that was really a requirement on you as the employer to make sure you had that consent prior to going ahead and pulling their record.
Important Consent Reminder
So, again, you want to have that document reviewed by a trusted resource, be it your HR team, your legal team or some type of trusted industry source to make sure you have the proper language in that consent form so that you are protected and that you’ve got everything in place there.
Automating Your Query & Recordkeeping Management: TPA = Automated Compliance
So, in terms of automating your process and really ensuring that you’re doing all of these required steps to generate the right records and store the right records, there’s a couple steps that you really should consider that will help this process run smoothly. One of the major things that obviously we really recommend, but many carriers are taking advantage of, is the fact that the Clearinghouse allows you to designate a third-party administrator of your program, so a TPA can really help out in a number of areas. One of those areas is, obviously, a good trusted partner will have a lot of information related to what the DOT compliance requirements are. But additionally, what the FCRA or Privacy Act requirements are for how you use that information. They can really steer you in the right direction in terms of setting up your program.
Beyond that, they can do a lot of the heavy lifting to make sure the program runs well. So that can be something as simple as helping with registration, which sounds really simple. But beyond just having to register your company as an employer, you have to ensure that your drivers are registered. And when it comes to ensuring that all your new applicants are registered so they can consent to having their pre-employment queries run or all your existing drivers are registered, so that if anything needs to be looked into further on their limited queries that registration is in place.
Having a partner to really do that legwork and kind of handhold the driver through that registration process can really be beneficial, or in that case, follow up with a driver that needs to provide consent.
One of the big, big benefits of a third-party administrator is that they likely have some form of electronic or digitized process for a Clearinghouse-compliant application, which captures that limited consent form electronically. So, we’ve been talking about the significance of getting the driver’s consent to run queries on an ongoing basis. And while you could do that the very old school way on paper, having a process to really streamline your onboarding process, especially in a competitive job market where carriers are really looking to onboard drivers fast.
Having a fully-electronic process that gets that consent gets everything you need, and then stores it in an electronic process right next to the Clearinghouse query results is at this point, a best practice for carriers. Especially in light of the DOT moving increasingly to offsite audits where the records that you are actually going to be required to present are going to be presented to the DOT in a digitized manner anyway. So, starting the process the right way, getting them all in a digital platform, having access to them 365 days a year, and then sending them off for review when necessary is really something you should probably consider at this point.
And then finally one other thing a TPA can help you with is, some TPAs have automated processes to actually execute the queries on your behalf, so you don’t have to take any steps when you’re hiring a new driver or when your annuals need to be run. Their platform just handles it for you.
How a TPA Can Help
So, like I was saying on the previous slide…some of the key areas there, getting those driver consents, running the Clearinghouse queries, and then one point I didn’t touch on before was reporting driver violations is another key asset that a good partner can do for you. So, when you have a driver who tests positive, either for a drug test or an alcohol test or refuses to submit to a drug test or alcohol test, those violations need to make their way into the Clearinghouse. And you as an employer can submit violations into the Clearinghouse and key them in under your own login, or you can designate a TPA, a third-party administrator, to actually get that information, assemble everything that’s required and ensure that it makes it into the Clearinghouse within the required timeframes so that you stay in compliance. And that is another way that a good trusted partner can help.
The Advantages of Automation
Certainly, as I mentioned before, automation is really helpful, leaves less room for error, and really takes the burden of execution off of your plate and allows you to have more time freed up to do what you do best. And then finally, a good platform will allow you to receive notifications and alerts to kind of keep track of how everything is progressing, what you may need to be aware of in terms of results coming back and notifications of what due dates are approaching or what key events are on the horizon. So, all of this is really something that while you can execute the program yourself, you want to make sure everyone’s aware of is out there and that you can really look into in terms of helping you stay in compliance and have a process that is as painless as possible.
Managing Additional Recordkeeping Requirements
And then finally, tying it into other programs that you run is really key. So, your driver qualification efforts, really around onboarding your drivers and ensuring that you build out those DQ files and your DOT-drug testing program where a lot of these violations and pre-employment requirements initiate in an online compliance program, like for example, the one that we run here at Foley is really an asset to a lot of carriers because it helps keep everything readily available. Whether you’re remote or whether you’re in your office, you can execute everything that you need or pull any of the records that you need to be able to disseminate to either your business partners or any type of regulatory authority which is looking for them. So, certainly I can’t say enough about the efforts to really get carriers to embrace digital tools. It’s going to be a huge asset to you and we highly, highly recommend it.
Have Questions? (860) 815-0764
So, with that, I think we’ve come to the end of our time here. Hopefully we’ve kind of spelled out what goes into the requirements for running a compliant Clearinghouse program. Certainly, we want to make sure all the motor carriers in the country understand what is necessary in terms of running your queries, either annuals or your pre-employment queries. But additionally, what are some of the things you can do in terms of executing more than the minimum and screening your drivers more than just once a year to ensure that there’s no gaps in the information that you have, and you’re not caught out by any type of roadside inspection. And then additionally, just raising awareness to some of the tools that are out there with some partners that you can look into to help make the process run smoothly and take the work off of you so that new compliance requirements that we have coming from DOT aren’t necessarily more of a burden for you – but rather tools to help your business get more productive and safe.
So with that, I will wrap up. Certainly, if there are any questions that have come out of today’s session there’s a phone number here on the screen. You can certainly reach out and send us anything that has either come to mind during this session, or if anything pops into your head afterwards, we are here to help. We love talking to all of our customers and potential prospects. We’re happy to help in any way that we can and would love to get a chance to talk with you anytime you have a question.
So, with that, I’d like to say thank you all for joining today and I hope you all have a great rest of your day. Thank you very much.
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