Implementation Aids

Presented by Diana Byrnes, C-SAPA

8th Annual FTA Drug and Alcohol Program National Conference Phoenix, Arizona

April 2013

What is an implementation aid?

• Tools used to aid your transit agency in meeting the regulatory requirements of a compliant drug and alcohol testing program

• Things such as:– Policies– Forms– Checklists– Training materials– Toolkits– Written practices and protocols

• Implementation aids can be lifesavers for drug and alcohol program managers!

• Anyone who recognizes the need to develop a standardized method, practice or protocol, to maintain compliance to the testing regulations

• Implementation aids are most often developed by:– Designated Employer Representatives (DER)– Supervisors– Transit Trainers– Third Party Administrators– Collectors/BATs

• Implementation aids are not developed by FTA or USDOT (with the exception of some training materials)

Who creates implementation aids?

• Implementation aids are not necessarily a regulatory requirement, however they aid your agency in being in compliance with the regulations

– Example: Reasonable Suspicion testing event documentation must remain on file with an employer for a period of no less than 2 years

• The manner in which you document the event is not specified in the regulations

• However, a standardized “form” implemented by your agency, will aid the referring supervisors in meeting the documentation requirement.

Are they a regulatory requirement?

• Policies and documentation of dissemination to all covered employees• Background Check Consent Forms• Training materials for the training of safety-sensitive employees and supervisors• Safety-sensitive employee database for random testing• Testing Notification Form (aka Notice to Test)• Random testing graphs• Post Accident Testing Decision and Documentation forms• Reasonable Suspicion Testing Determination forms• Collection Site Compliance Monitoring Toolkit/Checklist• Testing Statistical Reports

What are some examples?

10 Implementation

Aids

#1. Policy Templates

• FTA requires specific written policy statements to be provided to each covered employee (49 CFR Part 655.15)– Designated contact person and board adoption (signature)– Identification of covered employees (safety-sensitive job functions)– Prohibited Substances (still only 5 drugs + alcohol misuse prohibition)– Prohibited Behavior– Reasons for tests and explanations of each (pre-employment, random, etc.)– Testing procedures (may refer to 49 CFR Part 40, as amended)– Requirement to Submit to testing as a condition of employment– Period of Coverage (drug test- anytime while on duty, random and R/S

alcohol, just before, during or just after s/s functions)– Actions that constitute a test refusal (all 13 of them!)– Outline consequences (SAP referral, removal from S/S & employer actions)*

#1. Policy Statement Requirements

• Policy statements (Continued from previous slide)– Additional Employer Provisions can be added, as long as they do not

conflict with or frustrate FTA/DOT rule and are clearly delineated from FTA/DOT regulation in the policy (use of bold or italic font and a note to that effect.)

– Effective date and date that the policy was adopted– All covered employees must receive a legible copy of the policy as well as

all future revisions (board approval of any substantive revisions)• Signed acknowledgement forms are a best practice

– Note: posting a policy on your agency website or internal “bulletin” board does not constitute distribution of the policy to all covered employees

#1. Policy Statements Cont.

• Back to the Consequences:– Negative dilute results?

• Set policy to retest, must be consistent, can differ between test type though

– Zero Tolerance/Second Chance?• Referral to SAP required regardless, Second Chance requires additional

policy language for the RTD process• Many employers use a Policy Template that covers all of the statement

requirements and is easily adopted by inserting an agency’s specifics.– Caution: When you receive a policy template from another transit agency,

do not make the assumption that it has been updated/revised in accordance with the regulations. Do your homework!

– Several policy template examples are included on the handout CD as “Substance Abuse Policy Templates”

#1. Policy Statements & Templates

#2. Background Check Consent Forms

• USDOT requires that employers obtain specific written consent of all applicants of safety-sensitive job duties to collect information about prior DOT drug and alcohol test records from all DOT-regulated employers who employed the individual within the two years prior to the date of application or transfer. (49 CFR Part 40.25)

• It is necessary to maintain on file: the written consent and all good faith efforts made to collect the information from previous DOT employers.– Use of a uniform letter that contains both the applicant’s written consent

and the questions posed to the previous employer, is a helpful aid for this requirement

– Note: An employee that refuses to provide consent is not eligible for hire in a safety-sensitive position.

– An example of this form is included on the handout CD as “Release of Information Consent Form”

#2. Background Check Consent Forms

#3. Training Materials

1. FTA requires that each employer shall display and distribute informational material and a community service hot-line telephone number for employee assistance, if available (49 CFR Part 655.14a)

2. FTA requires that a minimum of sixty (60) minutes of training be provided to all covered employees on effects and consequences of prohibited drug use on personal health, safety and the work environment. (49 CFR Part 655.14b)

3. FTA requires that “supervisors” or other company designated officials receive a minimum of sixty (60) minutes of training on the probable signs and symptoms of prohibited drug use AND a minimum of sixty (60) minutes of training on the probable signs and symptoms of alcohol misuse prior to making reasonable suspicion testing referrals. (49 CFR Part 655.14b)

#3. Education and Training Requirements

(3 parts)

• Resources for display and distribution of informational material:• Foundation for a Drug-Free World

– http://www.drugfreeworld.org• Substance Abuse and Mental Health Services Administration

– http://www.samhsa.gov• National Institute on Drug Abuse

– http://www.drugabuse.gov/• Street Drugs University

– http://streetdrugs.org• Your Employee Assistance professionals, Substance Abuse

Professionals or your TPA/Medical Review Officer

#3. Training Materials

• Resources for safety-sensitive employee training material:– Booklets

• Such as ODAPC’s What Employees Need to Know About DOT Drug and Alcohol Testing http://www.dot.gov/odapc/

– Computer Based Training • Such as Clean, Sober and Safe, funded by Florida Department of

Transportation: www.transitoperations.com/wbt/css_onlinetraning.htm

– Video Clips• Such as those from the Foundation for a Drug-Free World:

http://www.drugfreeworld.org– Your Substance Abuse Policy (as a supplement)

• Describe consequences for violations, actions that constitute a refusal to test, and circumstances that will lead to testing

#3. Training Materials Cont.

• Resources for Supervisor Reasonable Suspicion training material:– FTA’s Reasonable Suspicion Referral for Drug and Alcohol Testing - Video

and Trainer/Trainee Guide (free)• http://transit-safety.fta.dot.gov/publications

– Transportation Safety Institute- (Instructor led classroom training)• TSI is the “teaching arm of the USDOT”• www.tsi.dot.gov• Course is identified as: FT00546 Reasonable Suspicion Determination

for Supervisors Seminar (30.00 per participant)– Florida DOT’s REACT Supervisor Training Series

• Includes an Instructor’s Guide and Participant Manual– On the handout CD!

#3. Training Materials Cont.

• Here are some tips on creating a quality training program:• Include alcohol awareness training in ADDITION to the sixty minutes of

drug awareness training• Find material that is geared toward transit employees (rather than

other DOT modes)– Remember: FTA and USDOT do not “certify” ANY product or

service (be leery of companies that profess this)• Take advantage of the resources made available through FTA and TSI

for Supervisor Reasonable Suspicion Training• Consider “splurging” once annually, for in-house training by a

professional (refresher training is a best practice!)– Documentation of training must remain on file for a period of no less than

2 years (Best practice: keep training docs for as long as the employee is employed with your agency, especially supervisor training documentation)

#3. Training Materials Cont.

#4. Employee Database

• In order to be certain that your random pool includes every safety-sensitive employee prior to each draw, it is important to maintain a database

• Do not rely on your Human Resources department to provide you with the information, their interpretation of “safety-sensitive” may not be accurate

• Use job FUNCTIONS, not job titles to determine if the employee is “covered” by the regulations.

• If the employee could be called upon at any time to perform a safety-sensitive function (below), they should be in your testing pool.1. Operating a revenue service vehicle (in or out of service)2. Operating a non-revenue service vehicle that requires a CDL3. Performing maintenance on a revenue service vehicle4. Controlling movement of a revenue service (as determined by employer)5. Carrying a firearm as part of transit security detail

#4. Employee Database

• Here are some Best Practices:– Create an Excel spreadsheet that includes all safety-sensitive

employees, use full name and a unique identifier and department– Make sure to remove employees that will be on extended leave lasting

throughout the entire testing period *pre-employment test if out more than 90 days

– Make sure to include any newly hired safety-sensitive employees and to remove any employees that are no longer employed or have transferred out of a safety-sensitive duty

– Make sure to update the spreadsheet prior to supplying the data for random selection generation

• Random selections can be made “in-house” or through a third party, but it is your agency’s job to ensure that all safety-sensitive employees are in the testing pool each time a selection list is generated

– A spreadsheet template is included on the handout CD!

#4. Employee Database Cont.

#5. Testing Notification Form

• Also referred to as “Notice to Test” forms• This form is signed by the employee at the time of notification to report for

testing• This form serve multiple purposes:

– Satisfies the requirement to notify the employee of the testing authority– Provides the information necessary (and required) for the collector (49 CFR

Part 40.14)• Name, SSN, testing authority, reason for test, observed or not,

– Provides a means of determining if there was a delay in the employee’s testing by comparing the time of notification; the time that the employee “signed in” at the collection site and the time that the collection was performed

– See photo next slide. A sample testing notification form is included on the handout CD!

#5. Testing Notification Forms

#6. Random Testing Graphs

• FTA Regulations require that random tests:– Are to be conducted at all times of day that safety-sensitive functions are

performed– Are to be spread reasonably throughout the calendar year so as not to

create a predictable pattern of testing• In order to determine if you are meeting compliance with above regulations, a

method of graphing your random tests is a valuable aid• Using a graph to chart your testing at the end of each testing period can

provide you with data that will help you create a schedule for remaining testing periods

#6. Random Testing Graphs

This chart is showing which days of the week random drug testing was performed during the testing period. As you will note, no testing occurred on a Friday or Sunday, during this testing period.

Sunday

Monday

Tuesday

Wednesday

Thursday

Friday

Saturday

0 1 2 3 4 5 6

Series1

Number of Tests performed on that day of the week

Days

of t

he W

eek

7:00 8:00 9:00 10:00 11:00 12:00 13:00 14:00 15:00 16:00 17:00 18:00 19:00

0

1

2

3

4

5

6

Series1

Times of the day when testing was performed

Num

ber o

f Ran

dom

Tes

ts

This chart demonstrates the times of the day that random drug testing was performed (as taken from the collection time on the CCFs). Hours of operation for this agency are 7:00 AM to 7:00 PM– note that testing is primarily performed mid-day.

• Best practices in random testing continued:– Ensure that the random selection lists are seen only by necessary parties– Provide no advance notice to selected employees and very minimal notice

to the supervisors of the selected employee (only the amount of notice required to carry-out the logistics of testing)

– Implement a testing notification form to document the time the employee was notified, then check the CCF for time the collection was performed (this can be part of the data that you graph)

– Closely monitoring your random testing program in this manner will decrease your findings if audited

– Avoid “group testing”– Obtain collector/technician resources for late night and early morning

hours (lack of resources is not an acceptable “excuse”)– A sample of random testing graphs are included on the handout CD!

#6. Random Testing Graphs

#7. Post Accident Decision and Documentation Forms

• FTA regulations require post accident drug and alcohol tests following events that meet the definition of an “accident” under FTA rule. – The definition of an accident can be found in 49 CFR Part 655.4– The regulations concerning testing following an event that meets the

definition of an accident can be found in 49 CFR Part 655.44• Documentation of the decision to test OR NOT TO TEST following an event that

meets the FTA threshold is required (49 CFR Part 655.44)• Documentation of any delays in testing must be also be documented• Best practices:

– Ensure that company officials that are authorized to determine when post accident drug and alcohol tests are well trained in the definition of “accident” and “disabling damage” as defined by FTA rule

– Ensure that company officials understand the testing “windows” (up to 8 hours for alcohol testing, up to 32 hours for urine drug testing)

#7. Post-Accident Decision and Documentation Forms

This agency has developed an excel based matrix that helps with the decision process. The template is on your CD!

• Best practices continued:– Ensure that urine collectors and BAT resources are available for events that

occur after normal business hours (a lack of resources is not an acceptable “excuse”)

– Make every attempt to conduct post accident drug and alcohol tests even when law enforcement may be performing independent testing

– Ensure that employees understand that failure to remain readily available for testing may result in a “Refusal to Test” (same as a positive result)

– Ensure that employees understand that they are prohibited from consuming alcohol for a period of at least eight hours following an accident or until testing has been performed (*Robert E. Ray)

– FTA Post-Accident Threshold cards are still available at no charge from the FTA Safety and Security website (under “Publications”)!

– Sample included on the handout CD!

#7. Post-Accident Decision and Documentation Forms

Cont.

#8. Reasonable Suspicion Event Documentation

• To refer an employee for testing, supervisors must only use specific, contemporaneous, “articulable” observations that are based on the behavior, speech or body odor of a safety-sensitive employee

• Documentation of the reasonable suspicion event is required under FTA rule• Using a standard form provides the supervisor with a place to document the

signs and symptoms they’ve observed, leading to a reasonable suspicion interview

• The form is also a helpful tool during the interview process; it allows the interviewer to maintain a formal “business-like” environment

• Once a referral is made, the testing must take place promptly.• The form should provide space for documentation of delays in alcohol testing

and should note that all attempts to test for alcohol must cease after 8 hours of the initial referral– Sample Reasonable Suspicion Documentation forms are included on the

handout CD!

#8. Reasonable Suspicion Event Documentation Forms

#9. Collection Site Compliance Monitoring Tools

• Collection sites are often the weakest link in the program• Collection site compliance monitoring is NOT a regulatory requirement,

however your collection site’s compliance has a huge baring on your agency’s overall compliance

• Unannounced inspections of your collection site can help you accurately determine the level of compliance to security measures, for example:– Bluing agent in toilet bowls?– Water sources secured in bathroom?– Is the collection area accessible to unauthorized persons?– Are there contaminants in the bathroom (soap, cleaning agents, etc.)?– Are there receptacles or items that could be used to hide adulterants or

substitution aids (trashcans, paper towel holders)?– Are the specimen cups accessible to unauthorized persons?

#9. Collection Site Compliance Monitoring

Tools

• Formal interviews with the collectors and breath alcohol technicians can help you to determine if they have a firm understanding of the specimen collection guidelines, for example:– Do they know how to handle shy bladder? (40.193)– Do they know how to handle a specimen out of temp. range? (40.65&67)– Do they know how to perform a directly observed collection in accordance

with the enhanced regulation? (40.67)• Presenting a written report of the outcome of your inspection to the collector,

is key to ensuring that the collector or BAT will address your areas of concern– Require the collector to respond in writing to your concerns

• An collection site monitoring toolkit is a helpful aid in recording the areas of concern and the follow up provided by the specimen collector

• A Collection Site Monitoring Toolkit sample is included on the handout CD!

#9. Collection Site Compliance Monitoring

Tools Cont.

#10. Testing Statistical Reports

• Tracking the types of testing that you perform, throughout the year, will aid in preparing your agency’s annual Drug and Alcohol Management Information Systems (DAMIS) report at the beginning of the new year

• If you use a Third Party Administrator (TPA), statistical reports are often part of the services they offer

• If not; a simple spreadsheet can be used to track testing data• Reconcile your collected data with your Employer copies of the CCFs, the MRO

verified results and the laboratory’s semi-annual statistics. – Keep in mind that the laboratory statistics are lab results, not MRO

verified results– If test types were incorrectly marked on CCF, lab results will show the

incorrect test type

#10. Testing Statistical Reports

This statistical report is modeled after the DAMIS reporting page.

• It can be helpful to track the following information:– Test type (pre-employment, random, etc.)– The test results (negative, negative dilute, positive, etc.)– If your agency has elected to retest employees that produce a negative

dilute result, be certain that the second result is the result of record (these do not count twice on your DAMIS report)

– For positive results, record the specific drug classes that were positive (example: marijuana, cocaine, etc.)

– Track refusals results: adulterated, substituted, shy bladder with no medical explanation, other refusals to submit to testing

– Cancelled results (results that are neither negative nor positive)– No need to include unique identifiers (SSN) or names; that information is

not collected on the DAMIS report• A few sample statistical reports are included on the handout CD!

#10. Testing Statistical Reports Cont.

Helpful Tips and Final Thoughts

• Prepare a list for supervisors of approved collection sites with the hours of operation and services available at each location (urine collection? BAT services? appointment needed?)

• Create an after hours testing toolkit for Post Accident and Reasonable Suspicion testing that answers supervisor’s FAQs (where are the CCF forms? where do we take the employee? Do we have to call someone?)

• Use this conference and other training seminars as a means of sharing tools and resources– network with other transit systems so no one needs to “reinvent the wheel”!

• Sign up for the Regulatory Updates Newsletter- to stay in the loop!– https://public.govdelivery.com/accounts/USDOTFTA/subscriber/new

Helpful Tips and Final Thoughts

• Attendees of this session (held during the 8th Annual FTA Drug and Alcohol Program National Conference) will receive CDs that contain electronic samples of each of the 10 implementation aids (while supplies last) – Samples can be adopted and/or revised for use, by any FTA covered

employer• This presentation will be posted on the FTA Safety and Security website;

electronic versions of the samples may be accessed at the following webpage, beginning April 8, 2013:– http://byrnesandassociates.com/byrnes_and_associates/Implementat

ion_Aids.html• Thanks for attending!• Please let me know if I can help you further~ See you around the

conference! ;-)

How to get the items we spoke of today~