UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

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UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

COMPLAINANT, 

vs. 

License No. 774917 

And 

Merchant Mariner's Document 

No. 575 84 8671 

Issued to: 

JEFFERYS. PYATT 

Respondent 

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* * Docket No. 99-0023 

* Case No. PA99001342 

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* * DECISION AND ORDER 

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PRELIMINARY STATEMENT 

This proceeding is brought pursuant to the authority contained in 46 USC, 

Chapter 77; 5 USC 551-559; 46 CFR Parts 5 and 16 and 49 CFR Part 40. 

On 9 July 1999 JefferyS. Pyatt was issued a Complaint by a U.S. Coast Guard 

Investigating Officer at Morgan City, LA, alleging violation of 46 USC 7704( c) :·us~ of a 

Dangerous Drug." On 26 August 1999 Mr. Pyatt filed an answer with the Administrative 

Law Judge Docketing Center, Baltimore, MD in which he denied the allegations of the 

Complaint and he indicated that he wished to be heard on the proposed Order of 
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Revocation. 

A hearing was scheduled and held on 5 January 2000 at the Marine Safety Office, 

800 David Drive, Morgan City. 

In support of the Complaint the Investigating Officer introduced in evidence the 

telephonic testimony, as provided for by 46 CFR 5.535(f) of; (1) Errol J. King, Sr., who 

is a urine specimen collector for Ira Jane Hurst and Associates, Lafayette, LA, and who 

collected a specimen from Mr. Pyatt on 18 May 1999; (2) Dr. Bertram J. Lee , who 

served as a Medical Review Officer for Aires Marine Corporation, Lafayette; and (3) 

Michael Bachman, Toxicologist at Lab Corps Occupational Testing Services, Inc., 

Research Triangle Park, N.C. 

Also in support of the Complaint the Investigating Officer introduced in evidence 

the following documents. 

I.O. Exhibit No. 1 -a U.S. Postal Service return receipt No. 

27047614589, signed by the Respondent and dated 2 

August 1999 which shows that Mr. Pyatt was properly 

served with the Complaint. 

I.O. Exhibit No. 2- a copy of the Complaint cover letter. 

I.O. Exhibit No. 3 -a certified copy of copy No. 1, of a 

Federal Drug Testing Custody and Control Form for a 

specimen bearing ID No. 058278183-5, which was the 

number assigned to Mr. Pyatt's specimen. 

I.O. Exhib'it No. 4- certified copies of copies 2, 4, and 6 of 

the Federal Drug Testing Custody and Control Form for the 

same specimen, together with the "Test Result." 

I.O. Exhibit No. 5- a copy of the Federal Register dated 4 

May 1999 showing that Lab Corps is a federally approved 

laboratory for specimen testing. 

I.O. Exhibit No. 6-the litigation report of Lab Corps for 

__________ _::Mr:=·~P:_:_y__=:a-=-::tt_::'s:_::s~p~ec::::.::im:::=e=n·:__ _____________________________ _ 
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I.O. Exhibit No.7- a "Result Verification" which purports 

to be the Medical Review Officer's documentation. 

After the Investigating Officer presented all of his evidence and rested his case 

the question arose as to whether or not the Medical Review Officer complied with the 

specific requirements of the drug testing regulations. The Administrative Law Judge 

adjourned the hearing in order to consider whether or not a prima facia case had been 

established. At a later date. both the Investigating Officer and the Respondent submitted 

briefs in support of their respective positions. (Attachments A and B) 

It is now concluded that the evidence is not sufficient t o support the allegations 

of the Complaint. 

ULTIMATE FINDINGS 

It is not proved that JefferyS. Pyatt while being the holder of the above captioned 

license and document was on 18 May 1999 found to be a User of a Dangerous Drug to 

wit: marijuana. 

CONCLUSIONS 

The Respondent and the subject matter of this hearing are within the jurisdiction 

vested in the U.S. Coast Guard under the provisions of 46 USC Section 7704. 

The Complaint is not justified. 

OPINION 

It is important that the federal government's drug testing program be administered 
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so as to eradicate the use of drugs in the American workplace. However, it goes without 

saying, the program must be administered with justice and fairness to each person tested. 

The collector's function in the drug testing procedure is a vital link. The testing 

laboratory's function is a vital link. The Medical Review Officer's function is a vital 

link. All ofthe persons involved in the procedure must strictly abide by the regulations. 

At the outset it must be noted that three different "Medical Review Officers" 

were involved in this case. Dr. Bertram J. Lee was the only "Medical Review Officer" 

to testifY. He testified that he "stamped" the Custody and Control Forms as positive. Dr. 

Lee never spoke to Mr. Pyatt. He admitted that his only knowledge of Mr. Pyatt was that 

a "Dr. A-s-u-n-c-i-o-n," (phonetic) who was in training at the time to become a Medical 

Review Officer, conducted a telephone interview, which was not on a speaker telephone, 

with Mr. Pyatt. "Dr. A-s-u-n-c-i-o-n's" name does not appear on any of the documents. 

"Dr. A-s-u-e-i-o-n" did not testifY. He is no longer employed as a Medical Review 

Officer. 

On a Medical Review Officer "Result Verification" (I.O. Exhibit No.7), on which 

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most of the entries are illegible except for the words "positive T HC," the initials of yet 

another Medical Doctor, "Dr. Murray Lappe," appear. Dr. Lappe did not testifY. 

There is no evidence of a reliable, substantial, or probative nature that Mr. Pyatt 

was ever contacted by a Medical Review Officer and given an opportunity to discuss the 

results of the test. 

The Medical Review Officer's duties and responsibilities are set out in the Coast 

Guard and Department of Transportation regulations at 46 CFR 16.370 and 49 CFR 

40.33. 
46 Code ofFederal Regulations, Section 16.370 entitled "Medical Review 

Officer" reads as follows: 

"(a) The employer shall designate or appoint a Medical 

Review Officer (MRO) meeting the qualifications of 49 CFR 

40.33. Iftne employer does not have a qualified individual 

on staff to serve as MRO, the employer may contract for the 

provisions ofMRO services as part of its drug testing 

program. 

(b) The MRO shall review and interpret each confirmed 

positive test result in accordance with 49 CFR 40.33. 

(c) If the MRO verifies a laboratory confirmed positive 

report, the MRO shall report the positive test result to the 

employer or the employer's designated agent" 

49 CFR Section 40.33 "Reporting and Review of Results" reads as follows: 

"(a) Medical Review Officer shall review confirmed positive 

results. 

(1) An essential part of the drug testing program is the 

final review of confirmed positive results from the 

laboratory. A positive test result does not 

automatically identify an employee/applicant as 

having used drugs in violation of a DOT agency 

regulation. An individual with a detailed knowledge 

of possible alternate medical explanations is essential 

to the review of results. This review shall be 

performed by the Medical Review Officer (MRO) 

prior to the transmission of the results to employer 

administrative officials. The MRO review shall 

include review of the chain of custody to ensure that it 

is complete and sufficient on its face. (Emphasis 

supplied) 

(2) The duties of the MRO with respect to negative 

results are purely administrative. 

(b) Medical Review Officer - qualifications and 

responsibilities. 

(1) The MRO shall be a licensed physician with 

knowledge of substance abuse disorders and may be an 

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employee of a transportation employer or a private 

physician retained for this purpose. 

(2) The MRO shall not be an employee of the 

laboratory conducting the drug test unless the 

laboratory establishes a clear separation of functions to 

prevent any appearance of a conflict of interest, 

including assuring that the MRO has no responsibility 

for, and is not supervised by or the supervisor of, any 

persons who have responsibility for the drug testing or 

quality control operations of the laboratory. · 

(3) The role of the MRO is to review and interpret 

confirmed positive test results obtained through the 

employer's testing program. In carrying out this 

responsibility, the MRO shall examine alternate 

medical explanations for any positive test result. 

(Emphasis supplied) This action may include 

conducting a medical interview and review of the 

individual's medical history, or review of any other 

relevant biomedical factors. The MRO shall review all 

medical records made available by the tested individual 

when a confirmed positive test could have resulted from 

legally prescribed medication. The MRO shall not, 

however, consider the results on urine samples that are 

not obtained or processed in accordance with this part. 

(c) Positive test result. 

(1) Prior to making a fmal decision to verifY a positive 

·test result for an individual the MRO shall give the 

individual an opportunity to discuss the test result 

with him or her. (Emphasis supplied) 

(2) The MRO shall contact the individual directly, 011 

a confidential basis to determine whether the 

employee wishes to discuss the rest result. (Emphasis 

supplied) A staff person under the MRO's 

supervision may make the initial contact, and a 

medically licensed or certified staff person may 

gather information from the employee. Except as 

provided in paragraph (c) (5) of this section, the 

MRO shall talk directly with the employee before 

ver i f)dng;a:testas positiV€,-{gmplla&ls--supplieclj 

· (3) If, after making all reasonable efforts and 

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documenting them (Emphasis supplied), the MRO is 

unable to reach the individual directly, the MRO shall 

contact a designated management official who shall 

direct the individual to contact the MRO as soon as 

possible. If it becomes necessary to reach the 

individual through the designated management 

official, the designated management official shall 

employ procedures that ensure, to the maximum 

extent practicable, the requirement that the employee 

contact the MRO is held in confidence. 

( 4) If, after making all reasonable efforts, the 

designated management official is unable to contact 

the employee, the employer may place the employee 

on temporary medically unqualified status or medical 

leave. 

(5) The MRO may verify a test as positive without 

having communicated directly with the employee 

about the test in three circumstances: 

(i) The employee expressly declines the 

opportunity to discuss the test; 

(ii) The designated employer representative has 

successfully made and documented a contact 

with the employee and instructed the employee 

to contact the MRO (see paragraphs (c) (3) and 

(4) ofthis section). and more than five days 

have passed since the date the employee was 

successfully contacted by the designated 

employer representative: (Emphasis supplied) 

On 19 August 1996 the Department ofTransportation amended the above 

provisions to provide as follows: 

"(ii) Neither the MRO nor the designated employer 

representative, after making all reasonable efforts, has been 

able to contact the employee within 14 days of the date on 

which the MRO receives the confirmed positive test result 

from the laboratory;" (Emphasis supplied) 

A publicatiun entitled "Medical Rexiew Ofticet::Guid~published b¥-the-tJ.S. 

Department ofTransportation in October 1990 at page 13 instructs the Medical Review 

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Officer as follows: 

"After the :MRO reviews the laboratory positive test report 

and related matters and verified that the positive report is 

evidence ofunauthorized drug use, the:MRO will sign the 

verification statement on Part 2 of the custody and control 

form. The :MRO rna notifY t he employer of a verified 

positive by telephone, electronically, or in writing. The Copy 

2 of the custody and control form maybe sent to the 

employer, or another form providing the employee's name, 

identification number, specimen I.D. number, date of test, 

result and substance found in the urine, may be used. 

In making a determination of either verified positive or 

negative, the :MRO should be careful to document for his or 

her own files a summary statement ofthe basis for 

determination. (Emphasis supplied) 

Also in the same publication at page 41, the Guide further directs the Medical 

Review Officer as follows: 

(1) Prior to verifYing a test result as positive, the :MRO must 

give the employee an opportunity to discuss the test result 

directly with the :MRO. 

(2) The :MRO must confidentially contact the employee to 

determine if the employee chooses to discuss the test result. 

A staff person under the :MRO's supervision may make the 

initial contact with the employee. A medically licensed or 

certified staff person (nurse, physician's assistant, emergency 

medical technician) may obtain information related to the 

drug test result from the employee. Except as identified in 

paragraph (5) below, the :MRO must talk directly with the 

employee before verifYing a test as positive. 

(3) If, after making a reasonable effort to contact the 

employee, the :MRO is unable to talk with the employee, the 

:MRO shall contact a designated employer representative who 

must contact the employee. The employer, in consultation 

with the :MRO, should establish guidelines for what 

constitutes "a reasonable effort" (time, number of attempts, 

etc.). The :MRO should document all at tempts made to 

e1 > 11 tactthe:muplcyee." (Emphasis supplied~ 

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The answer to the question as to whether or not any of the three "Medical Review 
Officers" complied with the regulations and the Medical Review Officer's Guide is 

clearly that they did not. This neglect is, indeed, grave- sufficient to warrant dismissal 

ofthe Complaint. 

ORDER 

That the Complaint lodged against license No. 774917 and merchant mariner's 

document No. 575 84 8671 issued to JefferyS. Pyatt is dismissed. 

Dated on March 28, 2000 

New Orleans, Louisiana. 

ARCHIE R. BOGGS 

Administrative Law Judge 

United States Coast Guard 

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