Motor Carrier Safety: Preliminary Information on Challenges to Ensuring the Integrity of Drug Testing Programs
Released: 2007-11-01T00:00:00

Letter

Background

Federal drug testing regulations require commercial motor carriers to have a drug testing program that covers transportation safety-sensitive employees who operate commercial motor vehicles that have a gross vehicle rating of 26,001 pounds or more; are designed to transport 16 or more passengers, including the driver; or are of any size and are used in the transportation of hazardous materials. While the largest motor carriers operate upwards of 50,000 vehicles, most carriers are small, with approximately 80 percent operating between 1 and 6 vehicles. Carriers continually enter and exit the industry, and turnover among small carriers is high, thereby making them harder to track. Since 1998, the industry has increased in size by an average of about 29,000 interstate carriers per year.

The Omnibus Transportation Employee Testing Act of 1991 required DOT to implement drug testing using urine specimens. Carriers are required to obtain a negative test result prior to employing a driver and allowing him or her to engage in safety-sensitive duties. Carriers also must conduct random testing, postaccident testing, and reasonable suspicion testing. As implemented by DOT, testing covers five drug categories: marijuana, cocaine, amphetamines (including methamphetamines), opiates (including heroin), and phencyclidine (PCP). If an employee tests positive, he or she is required to complete a return-to-duty process before reengaging in safety-sensitive duties. The return-to-duty process is guided by a substance abuse professional and may include education, treatment, follow-up testing, and aftercare.

Motor carriers must implement a drug testing program and may use service agents to perform some or all of the tasks needed to comply with DOT drug testing requirements (see fig. 1). A motor carrier must designate an employer representative, who is an employee authorized by the carrier to take immediate action to remove a driver from safety-sensitive duties after being notified of a positive or refusal-to-test result. Service agents must meet qualification requirements and are responsible for implementing the required protocols.

Service agents include the following: A collector instructs drivers during the urine collection process, makes an initial inspection of the specimen provided, divides the specimen into primary and split specimens, and sends it to the laboratory for analysis. A collection site can be a portable toilet; any toilet in a clinic, hospital, or office building; or a toilet on-site at a carrier’s place of business.

A laboratory analyzes the specimen. Laboratories must be certified by HHS; as of January 2007, there were 46 such laboratories.

A medical review officer, who is a licensed physician, is responsible for receiving and reviewing laboratory results for a carrier’s drug testing program and evaluating medical explanations for certain drug test results. In cases of confirmed positive or refusal-to-test results, the officer must verify the laboratory results by speaking with the driver and informing the driver of his or her right to have the split specimen tested.

A substance abuse professional evaluates drivers who have tested positive or refused to take a test and makes recommendations about the return-to-duty process, which could include education, treatment, follow- up testing, and aftercare. Drivers are required to complete the recommended steps before they reengage in safety-sensitive functions.

A consortium/third-party administrator is a company that can provide or coordinate either a variety of or all of the above services for carriers and owner-operators.

FMCSA has responsibility for ensuring compliance by trucking and motor coach companies with drug testing requirements. FMCSA does so through safety audits of new entrants and compliance reviews of existing companies—both of which cover compliance with all types of safety regulations, including drug and alcohol testing. Safety audits are required for all new entrants to the trucking industry and are opportunities for FMCSA to provide educational and technical assistance to new carriers, explain carriers’ responsibilities under the federal regulations, and check for operational deficiencies. In excess of 40,000 safety audits were conducted in 2006. Compliance reviews occur for four reasons: (1) poor carrier safety record in SafeStat, (2) a fatal accident, (3) a complaint against the carrier or driver, or (4) a follow-up investigation after violations. In 2006, FMCSA and state investigators conducted more than 15,000 compliance reviews. In addition to the audits and compliance reviews, FMCSA also makes educational materials about drug testing available on its Web site.

FMCSA Faces Two Key Challenges in Ensuring Drug Testing Programs Are in Place

FMCSA’s efforts to ensure that commercial motor carriers have drug testing programs in place face two key challenges: limited compliance by carriers and others involved in the process, and limitations in the mechanisms FMCSA uses to ensure that drug testing programs are in place.

Compliance by Carriers and Others Is in Question

Our reviews of FMCSA data, visits to individual carriers, and discussions with industry associations indicate that carriers, particularly small carriers and owner-operators, are often not in compliance with the drug testing regulations, resulting in the possibility that many drivers are not being tested, which increases the potential for drivers who use illegal substances to continue operating in safety-sensitive positions. According to FMCSA data, more than 70 percent of compliance reviews conducted since 2001 and more than 40 percent of safety audits conducted since 2003 found violations of drug testing regulations. The most frequently cited violation found in new entrant safety audits, which was found in 30 percent of safety audits conducted since 2003, was that carriers had no drug testing program at all. The most frequently cited drug testing violations in compliance reviews are that drivers operating in safety-sensitive positions have not successfully passed a preemployment drug test, or that drivers are not being tested at all (see fig. 2). About 1 percent of compliance reviews per year find carriers that have allowed drivers with a positive drug test to continue to operate in safety-sensitive positions.

We saw similar problems in our field visits: in the two compliance reviews and two new entrant safety audits we observed, two of the carriers, both of which were small carriers, were not aware of the drug testing requirements and did not have a drug testing program at all. For example, a representative at one of the carriers we interviewed did not understand the comprehensiveness of the drug testing regulations. The carrier had hired owner-operators, who are enrolled in a random drug testing program through a consortium/third-party administrator, but did not fully understand its responsibility to obtain testing results and other information from the consortium in which those owner-operators are enrolled. Furthermore, for those carriers who use drivers on and off throughout the year, there was confusion regarding how to include them in random drug testing.

Compliance with drug testing regulations is particularly problematic for owner-operators who are not hired by other companies. An owner- operator must follow the drug testing regulations and be in a drug testing program just like all other drivers employed by motor carrier companies.

For example, an owner-operator is required to get a preemployment drug test and to enroll in a consortium for random testing purposes. However, it is unclear how an individual who is both the employer and the employee would comply with drug testing regulations. For example, should the owner-operator who participates in a consortium test positive, there is no one who will remove the individual from safety-sensitive duties, and no one beyond the owner-operator will be notified of the positive result.

Posing as commercial truck drivers needing DOT drug tests, our investigators determined that there is also a lack of compliance with protocols among entities that collect specimens for testing, resulting in the ability for drivers to subvert a drug test. Twenty-two of the 24 collections sites our investigators tested were not in compliance with some of the protocols that guide the process of collecting a urine specimen. For example, employees at 10 sites failed to ask the investigator to empty his pants pockets and display items to ensure no items were present that could be used to adulterate the specimen. One employee who did ask the investigator to empty his pockets did not verify that all of his pockets were empty, allowing the investigator to bring an adulterant into the collection area by hiding it in his back pocket.

Mechanisms for Checking Compliance Have Limitations

While almost all compliance reviews and safety audits test compliance with drug and alcohol testing regulations, these activities have several limitations and gaps in how effectively they can identify and correct poor compliance.

Most carriers are not reviewed. Safety audits began in 2003, and since these audits are targeted at new entrants, they do not affect companies in business earlier than 2003. FMCSA compliance reviews only reach approximately 2 percent of carriers each year. Owner-operators and small carriers are less likely than larger companies to be selected for a compliance review. Several associations told us that small carriers may be less likely to comply with the drug testing regulations because they may have less understanding of their responsibilities, and because they have less incentive to comply, given the rarity in which they will be visited by FMCSA or state investigators.

Oversight of service agents is lacking. Except in the case of specific allegations or complaints, FMCSA investigators do not visit or audit collection sites or any other service agents employed by the carrier to observe procedures and enforce compliance with drug testing requirements. FMCSA has a limited number of people to oversee the potentially tens of thousands of sites that can be used to collect urine for DOT drug testing. Collection sites can be located anywhere—for example, a portable toilet or any toilet in a clinic, hospital, or office building—and can operate during differing hours. Few carriers conduct regular oversight of the service agents they employ. One large carrier with whom we spoke tests and verifies that the collection sites it uses are in compliance. Smaller carriers are less likely to conduct such oversight, given their more limited resources. Representatives from a third-party administrator with whom we spoke told us that it observes some of the collection sites it uses, sometimes at a client’s request. If significant problems are found, representatives told us they alert the carriers to discontinue use of that collection site. In addition, representatives told us that some major collection companies internally audit their own sites to ensure the sites comply with all requirements.

FMCSA conducts enforcement, but enforcement actions on service agents are limited. Although not all violations result in enforcement actions, FMCSA can use civil penalties, compliance orders, and out-of- service orders to enforce carriers’ compliance with drug testing requirements. During safety audits of new entrants, FMCSA typically does not assess fines against the carrier for noncompliance, since the purpose of these audits is to educate and inform to encourage compliance. The result of a safety audit is a list of recommendations for corrective action and a requirement to provide documentation that corrective action was taken. FMCSA does not believe it has the authority to levy civil penalties on service agents. If a service agent is found to be out of compliance, FMCSA officials told us that at most, they can only fine the carrier that uses the service agent—not the service agent itself. Several carrier and drug testing industry associations we interviewed also commented that lack of enforcement of the drug testing requirements against service agents, particularly collection sites, is a problem. FMCSA and ODAPC can initiate a process to disqualify service agents from participating in activities related to DOT drug testing programs, known as a Public Interest Exclusion (PIE), in cases of serious noncompliance. While a number of PIEs have been initiated, no PIE has been completed or formally issued. Typically, the service agent has either corrected the noncompliance or gone out of business before the PIE could be completed.

There is limited proactive outreach to carriers, service agents, and drivers. While new entrant safety audits are an important tool for educating and informing new carriers, these audits typically do not occur until after a carrier has been operating for 9 to 18 months. New carriers receive little information about drug testing requirements when they register. When a new carrier applies for a DOT number, the application includes a question in which the carrier must confirm whether it understands its responsibilities related to drug and alcohol testing. However, FMCSA does not provide any educational information on drug testing when it approves the application. The carrier must seek out information on the regulations and other responsibilities. The FMCSA and ODAPC Web sites provide substantial educational information on drug testing responsibilities to carriers, service agents, and drivers. An official from FMCSA told us that its Web site may not effectively reach carriers and drivers, and that there is a need to be more proactive in disseminating information on the drug testing program.

Options that we have identified to address these limitations include providing more information to carriers, service agents, and drivers when they enter the industry, and publicizing the materials available on the FMCSA Web site; encouraging carriers to do more to test and verify that the service agents they use are in compliance with the requirements; and increasing or expanding FMCSA’s oversight activities and enforcement authority.

FMCSA’s fiscal year 2008 operating plan calls for improving the Web site and better publicizing available information, and its Comprehensive Safety Analysis 2010 (CSA 2010) initiative includes plans to improve current oversight. Our ongoing work will examine the advantages and disadvantages of the various options in more detail.

Additional Challenges Threaten Integrity of the Drug Testing Process

Even in situations in which FMCSA is able to ensure that a carrier has a sound framework in place for drug testing, there are additional challenges that can affect the integrity of results for individual tests. These challenges range from opportunities to subvert the test results to learning about past instances in which applicants may have failed drug tests.

Subversion of Drug Tests Is Still Possible

Adulterating or diluting the urine sample or substituting synthetic urine or drug-free urine is possible, even if carriers and service agents are in perfect compliance with requirements. For example, our investigators were able to successfully substitute synthetic urine at a collection site that appeared to follow all DOT protocols. In most instances, DOT drug testing protocols do not require directly observed collection, nor do they require a thorough search for hidden subversion products. Drivers intent on adulterating or substituting a urine specimen can conceal small vials in socks or other undergarments, such as those shown in figure 3. Products designed to dilute, cleanse, or substitute urine specimens are easily obtained and brazenly marketed on Web sites. Other products—more than 400 in number—are used to adulterate urine samples. The sheer number of these products, and the ease with which they are marketed and distributed through the Internet, present formidable obstacles to the integrity of the drug testing process.

Another method of substitution is having another person give the urine specimen instead of the driver. Collection sites are required to identify the driver by looking at a photo ID issued by the employer (other than in the case of an owner-operator or other self-employed individual) or a federal, state, or local government (e.g., a driver’s license). The protocols do not require carriers to provide photographs or other identification of drivers to collectors to validate the identification. For example, our investigators successfully used bogus driver’s licenses to gain access to all 24 collection sites—demonstrating that drug users could send someone to take a drug test in their place using fake identification.

The extent to which subversion is occurring is unknown—and is impossible to determine. SAMHSA officials with whom we met noted that when adulterants work well and destroy the evidence of their presence, they are undetectable by laboratories. DOT issued a Notice of Proposed Rulemaking in 2005 to require specimen validity testing to test for the presence of adulterants, and a final rule is expected in fall 2007. Similarly, when urine samples are successfully substituted, the result is a negative test result; therefore, no data exist on the extent to which such substitution occurs. For example, our investigators adulterated or substituted eight specimens in their investigation, and the laboratory was not able to detect any of the adulterants or substitutes used.

One potential option to addressing this problem is to restrict the sale of products that allow applicants to subvert tests. As we have previously reported, several states have laws that prohibit the manufacture, sale, or use of products intended to subvert drug tests, but these laws are difficult to enforce. To our knowledge, very few individuals have been cited or convicted for violating these laws. As we also reported, however, South Carolina convicted individuals for marketing and selling masking products: one who sold urine substitution kits over the Internet, and another who advertised that his store carried products that are used to pass drug tests by cleansing the system. However, the interstate nature of the manufacture and sale of products intended to subvert a drug test lessens the impact of state-based laws. Legislation that would have prohibited the manufacture, marketing, sale, or shipment of such products was introduced in Congress in 2005 and 2006, but was not enacted.

Current Testing Covers a Limited Number of Drugs and Amount of Time

Even if drivers submit legitimate, unadulterated urine samples, the current testing regimen has certain limitations.

Drivers may misuse substances other than the five being tested.

Drivers who use illegal substances, such as ecstasy, or misuse legal substances, such as prescription medication containing oxycodone and other synthetic opiates, can go unidentified by the drug tests, although the use of these other substances can impair the ability of these drivers to operate in a safety-sensitive position. In addition, the use, and misuse, of prescription drugs may also be a problem.

Test detects drug use only within the past few days. The urine test detects drugs used by the driver within the past several days (range of 1 to 5 days). This is a particular concern for preemployment testing, according to carriers with whom we spoke, since a habitual user can refrain from drug use for several days before the test in order to test negative.

Utilizing other types of tests, such as hair tests, as well as testing for other types of drugs, have been proposed for dealing with these limitations. Hair tests can detect long-term and habitual drug use and representatives from several associations we interviewed told us that hair tests are, therefore, more suitable for preemployment purposes. In fact, some motor carriers supplement the DOT test with these alternative tests, and some carriers also test for additional drugs. One large carrier we interviewed uses hair tests to complement the DOT-regulated urine test and found higher rates of drug use in the hair test (approximately 8 percent compared with 2 to 3 percent for urine tests on the same individuals). However, union representatives with whom we spoke are not in favor of carriers utilizing alternative tests in addition to DOT-regulated tests, because doing so creates multiple standards throughout the industry that their members have to comply with. In addition, hair testing is not effective at detecting current or very recent drug use, and the test is also more expensive than urine testing. Our ongoing work will further analyze the pros and cons of these options.

Information about Past Test Failures Is Limited

DOT regulations require that an employer, in addition to testing an applicant and receiving a negative result, also inquire about a prospective driver’s drug test history by contacting the driver’s recent employers listed on the employment application. Representatives from several motor carriers with whom we met told us that drivers’ applications are often incomplete. In addition, it is easy for drivers to simply omit any previous employer for which they tested positive or any past preemployment test that was positive. Such drivers can remain drug-free for a period of time leading up to their next preemployment test, get a negative result, and get hired—without their new employer knowing about any past positive drug tests and without having gone through the required return-to-duty process.

Various options have been suggested for dealing with this issue, and in particular, many in the industry have proposed developing a national reporting requirement for past positive drug tests. As with the other types of options that we have previously discussed, our ongoing work will analyze the pros and cons of these improvements. According to a DOT official with whom we met, FMCSA is considering implementing a central repository containing national drug and alcohol testing results to which carriers would have access, but its timeline is uncertain.

According to DOT, several states already require some form of information sharing on drivers’ past positive drug tests, though implementation varies by state. For example, Oregon requires the medical review officer to report positive results to the state, while Texas requires carriers to report positive test results. Furthermore, there is variation on what states do with such information that is collected. For example, in North Carolina and Washington, positive drug test results will disqualify drivers until they complete the return-to-duty process, while in other states it is unclear whether the information is being utilized at all.

Our Future Work Will Focus on Options to Address Challenges

Our future work, which we expect to complete in May 2008, will provide more definitive information about many of the matters covered in my statement today. This information will include more detailed information about FMCSA’s enforcement activities related to the drug testing regulations. Our report in May 2008 will also focus on the various options that have been proposed to address the challenges and problems we have discussed today.

Mr. Chairman, this concludes my prepared statement. I would be pleased to respond to any questions that you or other Members of the Subcommittee might have.

For further information on this statement, please contact Katherine Siggerud at (202) 512-2834 or siggerudk@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this statement. Individuals making key contributions to this testimony were Andrew Von Ah, Assistant Director; Andrea Chinchilla; Paul Desaulniers; Michelle Everett; Bert Japikse; Sara Ann Moessbauer; John Ryan; Sandra Sokol; Stan Stenersen; and Rebecca Kuhlmann Taylor.

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