Drug Testing: Undercover Tests Reveal Significant Vulnerabilities in DOT's Drug Testing Program
Released: 2007-11-01T00:00:00

Letter

Background

Six operating administrations under DOT have issued regulations requiring antidrug programs in the aviation, highway, railroad, mass transit, pipeline, and maritime industries. Antidrug programs for commercial truck drivers are regulated by the Federal Motor Carrier Safety Administration (FMCSA), which is the operating administration responsible for enforcing FMCSA regulations and establishing who is tested and when they are tested. FMCSA antidrug regulations require that employers of commercial motor carriers, including those who are owner-operators, conduct drug testing according to the DOT “Procedures for Transportation Workplace Drug Testing Programs.” These DOT regulations mandate that motor carriers must conduct pre-employment, reasonable suspicion, random, and post-accident drug testing on their employees. While these scenarios are all different, DOT requires collectors and collection sites to follow uniform collection protocols regardless of the reason for the test. Collection sites are privately run facilities, where the collectors at the sites do not have to be certified by DOT, but must meet DOT regulations by completing the required training and following DOT protocols. Because collection sites are spread throughout the nation, it is easy for an employee in any of the drug testing scenarios, from pre-employment to post-accident drug testing, to get to a collection site within the given time frame. According to DOT regulations, collection sites must promote privacy, incorporate the scientific and technical guidelines of the Department of Health and Human Services (HHS), utilize a scientifically recognized testing method, and require that specimens be labeled and secured in the presence of the tested employee to prevent tampering. To help collection sites comply with these regulations, DOT’s Office of Drug and Alcohol Policy and Compliance issued revised protocols in December 2006. The protocols indicate that the collector has a major role in the success of the DOT drug testing program because he or she is the one individual in the testing process with which all employees have direct, face-to-face contact. The protocols also state that the test may lose validity if the collector does not ensure the integrity of the specimen and collection process.

DOT protocols have specific requirements that collection sites must meet, including procedures to (1) prevent unauthorized access to the urine collection site; (2) prevent the tested employee or anyone else from gaining unauthorized access to the collection materials/supplies; (3) ensure that the tested employee does not have access to items that could be used to adulterate or dilute the specimen such as soap, disinfectants, cleaning supplies, and water; and (4) ensure that the tested employee is under the supervision of a collector or appropriate site personnel at all times when permitted into the site.

To document the collection of the specimen, DOT requires that urine collection sites correctly complete the Federal Drug Testing Custody and Control Form (CCF) for every collection under the DOT drug testing program. This form is also used to document the transfer of the specimen to the HHS-approved, private sector laboratories, where the urine specimen is sent to be tested for marijuana, cocaine, amphetamines, opiates, and phencydidine (PCP) as identified by HHS regulations. It is important to note that the laboratories that test the specimen are separate entities than the urine collection sites. The collection sites must follow DOT protocols and their role is to collect the urine specimen, while the laboratories must be certified by HHS and their role is to perform the drug testing of the specimen. The laboratories are authorized to also conduct validity testing to determine if the specimen is consistent with normal human urine, whether adulterants or foreign substances are present, or if the specimen was diluted or substituted. The HHS organization, Substance Abuse and Mental Health Services Administration (SAMHSA), administers the Federal Workplace Drug Testing Program and revised the guidelines in 2004 to require that specimen validity tests be conducted on all urine specimens of federal employees due to the increase in the number of chemical adulterants that were marketed on the Internet and in certain magazines. DOT did not adopt this update in their regulations------so currently drug testing laboratories are only authorized, not required, to perform validity testing for all DOT required commercial motor carrier drug tests.

As an additional quality control check, DOT requires that a Medical Review Officer (MRO) serve as an independent, impartial authority to verify the lab results. After the results are verified, the MRO, who is a licensed physician, informs the designated company official whether the employee passed or failed the drug test. The MRO may also designate test results as cancelled in the case of an invalid test. An invalid test results when a drug screening lab identifies an unidentified adulterant, substitute, or abnormal physical characteristic in the specimen that prevents the lab from obtaining a valid test result. In the case of a cancelled test, the MRO conducts an interview with the employee to determine if there is a legitimate medical reason for the result. If the MRO determines there is a legitimate medical reason, no further action is required. However, if the MRO determines there is no legitimate medical reason, the employee is required to take another drug test under direct observation—effectively getting another opportunity to take the test, but without the privacy afforded previously. In the case of a positive result, which is defined as a failed drug test, a supervisor or company official is required to immediately remove the employee from the job. Employees who test positive and continue to perform safety-sensitive functions and employers who permit them to do so are both subject to criminal and civil fines.

Most Collection Sites Failed to Comply with All DOT Protocols

In our tests of the selected 24 urine collection sites in four major geographic areas throughout the United States, we determined that 22 of the 24 sites showed varying degrees of failure in complying with the protocols that we tested. While all urine collection sites followed DOT protocols by asking our undercover investigators to provide identification, we successfully used bogus driver’s licenses to gain access to all 24 sites— demonstrating that a drug user could send someone else to take a drug test in their place. This fact in and of itself shows that in 100 percent of our tests we successfully used a form of substitution. However, we did not count these instances as a failure of protocol because the collectors are not required to validate the identity of the employee—they are only required to ensure that an employee presents identification.

Twenty-two of the 24 tested collection sites failed to comply with many of the remaining DOT protocols we tested. In table 2, we provide a summary of the results of our testing of the 16 protocols by geographic area in the order that we tested them. The table identifies the number of protocols with which each site failed to comply.

For a summary of the protocols we tested and their rationale, see figure 1.

Some of the criteria above relate to preventing the employee from having access to items at the collection site, such as water or cleaning products, which could be used to adulterate or dilute the specimen. These types of products might be detected by drug testing laboratories, however, we did not test this. We provide detail on our findings of the tested urine collection sites by area in the order of our testing below.

Washington, D.C., Metropolitan Area

In our testing of the Washington, D.C., metropolitan area we determined that, in five of the six sites tested, there were varying degrees of failure in complying with the 16 protocols. Most of the sites failed only two protocols, while site 3 did not fail any of the protocols and site 5 performed poorly by failing 12 protocols—75 percent of the protocols tested. In the case of site 5, we determined that although this collection site failed to comply with most of the protocols, the drug screening lab identified errors and cancelled the test due to the inappropriate collection process. We provide additional detail below on our experiences at three of the Washington, D.C., metropolitan area collection sites.

Washington D.C., Area, Site 3: This collection site did not fail any of the protocols that we tested. However, our investigator used substitute synthetic urine he brought with him to contaminate the urine specimen during the test and the laboratory did not detect the presence of the synthetic urine.

Washington D.C., Area, Site 4: At this collection site, the investigator had access to water which could be used to dilute a specimen. In addition, the investigator brought in and used an adulterant at this site and the laboratory did not detect the presence of the adulterant.

Washington D.C., Area, Site 5: This site failed to comply with 12 of the 16 protocols that we tested. Although it was not one of the protocols we tested at other facilities, one of our investigators exhibited a “shy bladder” at this site and could not provide a full urine specimen of 45 mL. The collector permitted our investigator to provide half of the specimen, leave the facility, and return approximately 1 hour later—a violation of DOT protocols, which state that the employee should not be allowed to leave the collection site and should be monitored during the waiting time. When completing the collection process, the collector used half of the specimen from the original collection and half from what the investigator provided later. The drug screening lab identified this error and cancelled the test due to the inappropriate collection process.

See appendix I for a site-specific breakdown, by protocol, of the results of our testing in the Washington, D.C., metro area.

Los Angeles Area

In our testing of the Los Angeles area we determined that, of the six sites tested, there were varying degrees of failure in complying with the 16 protocols—including one site that failed 8 of the 16 protocols. Other selected sites in the Los Angeles area failed up to 5 and 6 protocols while the remaining sites failed 3 protocols or less. We provide additional detail below on our experiences at four of the Los Angeles area collection sites.

Los Angeles, Site 1: The investigator was not instructed to wash his hands before providing the specimen. This could have allowed a tested employee to hide a drug-masking product in his hand when taking the test. In addition, there was no bluing agent in the toilet. That means a tested employee could have used the clear water in the toilet to dilute his or her specimen. The collector did not perform the split specimen correctly by only filling one specimen bottle. The results were still valid despite the incorrect split specimen because the lab result was passing for the first specimen bottle, so according to DOT protocols a second bottle is not needed to validate a passing result.

Los Angeles, Site 3: The collector did not tell our investigator that the toilet should not be flushed, allowing the employee to potentially use the clear un-blued water in the flushed toilet to dilute the specimen. In addition, the collector did not instruct the investigator to return with the specimen as soon as possible after voiding—the temperature of the specimen needs to be taken within 4 minutes in an attempt to determine whether the specimen was substituted, diluted, or adulterated. Our investigator used synthetic urine in this drug test and the laboratory was not able to detect the presence of the synthetic urine.

Los Angeles, Site 4: The collector at this site asked our investigator to empty his pockets. However, he did not have to empty all of his pockets—this enabled our investigator to bring an adulterant into the collection area by hiding it in his back pocket. The laboratory did not detect the presence of the adulterant.

Los Angeles, Site 6: The collector failed to instruct our investigator to empty his pockets before providing a specimen at this site. In addition, our investigator had access to running water in the sink—this could potentially be used to dilute the specimen. The collector did not perform the split specimen correctly and only filled one specimen bottle. The results were still valid despite the incorrect split specimen because the lab result was passing for the first specimen bottle, so according to DOT protocols a second bottle is not needed to validate a passing result.

See appendix I for site-specific breakdown, by protocol, of the results of our testing in the Los Angeles area.

New York/Northern New Jersey Area

In our testing of the New York/Northern New Jersey area we determined that, of the six sites tested, collection sites failed to comply with a large number of the 16 protocols—sites 1 and 5 failed to comply with six protocols, sites 3 and 6 failed to comply with five protocols, and sites 2 and 4 failed to comply with four and three protocols, respectively. We provide additional detail below on our experiences at five of the New York/Northern New Jersey area collection sites, including photographs of the collection areas taken with mobile phone cameras.

New York/Northern New Jersey, Site 1: In addition to failing to comply with five other protocols, this collection site had an adulterant (bleach) located on top of the toilet (see fig. 2).

New York/Northern New Jersey, Site 2: The collector failed to instruct our investigator to empty his pockets before providing a specimen at this site, making it easy for our investigator to bring an adulterant into the collection room. Moreover, the collector did not watch our investigator to see whether he washed his hands before providing the specimen. The bathroom had liquid soap and liquid cleaning products available in the collection area. Our investigator used an adulterant he brought with him to contaminate the urine specimen during the test. The laboratory did not detect the presence of the adulterant.

New York/Northern New Jersey, Site 4: The collector failed to instruct our investigator to empty his pockets before providing a specimen at this site, making it easy for our investigator to bring synthetic urine into the collection room. In addition, the bathroom had water and disinfectant spray available in the collection area. The laboratory did not detect the presence of the synthetic urine.

New York/Northern New Jersey, Site 5: The collector did not supervise our investigator in the collection site. While the collector remained in one room, he told our investigator to use a bathroom located down an adjoining hallway. According to DOT protocols, a tested employee should be supervised at all times during the collection process.

New York/Northern New Jersey, Site 6: Our investigator was unsupervised at the collection site, allowing him to identify cleaning products outside the collection room that could be used as adulterants, pick up a large can of disinfectant, and bring it with him into the collection room. Our investigator took pictures of this violation using a mobile phone camera. Figure 3 shows the disinfectant spray and other adulterants outside the collection room.

In figure 4, the investigator has brought the disinfectant with him into the collection room and placed it next to his urine specimen on the toilet.

See appendix I for a site-specific breakdown, by protocol, of the results of our testing in the New York/Northern New Jersey area.

Dallas/Fort Worth Area

In our testing of the Dallas/Fort Worth area we determined that, in five of the six sites tested, there were varying degrees of failure in complying with the 16 protocols. Many of the sites failed 2 protocols, while site 2 failed 5, site 4 failed 4, and site 5 did not fail any of the protocols. We provide additional detail below on our experiences at five of the Dallas/Fort Worth area collection sites, including photographs of the collection areas taken with mobile phone cameras.

Dallas/Fort Worth, Site 2: Our investigator was able to bring an adulterant into the collection site and used it to adulterate his urine specimen. While in the collection area, the investigator noticed that running water was available—in violation of DOT protocols. See figure 5.

After providing his urine specimen to the collector, the investigator observed that the collector only filled one specimen bottle rather than the two required under DOT’s split specimen protocols. The collector threw out the remaining specimen. The laboratory did not detect the presence of the adulterant. The results were still valid despite the incorrect split specimen because the lab result was passing on the first specimen bottle, so according to DOT protocols a second bottle is not needed to validate a passing result.

Dallas/Fort Worth, Site 4: The collector failed to instruct our investigator to empty his pockets before providing a specimen at this site, making it easy for our investigator to bring synthetic urine into the collection room. Once he was in the collection room, the collector instructed our investigator to leave the door completely open while providing the specimen. The collector waited outside the collection room and did not directly observe the collection; nevertheless, our investigator was able to pour synthetic urine into the provided specimen cup. The laboratory did not detect the synthetic urine.

Dallas/Fort Worth, Site 5: This collection site performed well in meeting all of the DOT protocols. This site had a 15-item checklist outlining DOT protocols hanging on the wall. Our investigator observed the technician using the checklist while conducting the collection of the urine specimen.

Dallas/Fort Worth, Site 6: This collection site allowed the employee access to water by not securing the toilet lid in the collection room— leaving the employee an opportunity to use the clear un-blued water to potentially dilute the specimen. Also in the collection room was an automatic spray disinfectant on the wall. A tested employee could have used this spray to dilute or adulterate his or her specimen.

See appendix I for a site-specific breakdown, by protocol, of the results of our testing in the New York/Northern New Jersey area.

Commercially Available Products Can Defeat Drug Tests at Selected Sites

We determined that drug-masking products were widely available for purchase over the Internet and used this method to purchase adulterants and synthetic urine for our tests. As discussed above, we submitted specimens containing adulterants at four of the collection sites and at another four sites we used synthetic urine without being caught by site collectors, demonstrating that these products could easily be brought in and used during a test. In every case that investigators used adulterants or substitutes during the drug test, the drug-masking products went undetected during lab testing, lab validation, and MRO review of the labs’ results. We also determined that publicly available regulations provide details on how drug testing labs test and validate urine specimens. Companies that sell drug-masking products can access this information and update their products to prevent them from being detected by the laboratory.

Products to Defeat Drug Tests Are Widely Available

In performing Internet searches, we found drug-masking products that the public can easily obtain and that are marketed as products that can be used to pass urine drug tests. A simple Internet search using a phrase such as “pass drug test” resulted in over 2 million Web site hits. We determined that these types of Web sites contained various adulterants and urine substitutes available for purchase, including accessories that would allow an employee to conceal the product on their body when taking a test. We used these types of Web sites to purchase drug-masking products for our testing of selected urine collection sites. SAMHSA is aware of these products and revised the Mandatory Guidelines for Federal Workplace Drug Testing Programs in 2004 to require that specimen validity tests be conducted on all urine specimens, noting that there was a recent increase in the number of chemical adulterants that are marketed on the Internet and in certain magazines. DOT did not adopt this update in their regulations------so currently drug testing laboratories are only authorized, not required, to perform validity testing for all DOT required commercial motor carrier drug tests. According to SAMHSA, approximately 400 different products are available to defeat urine drug tests.

Adulterants and Synthetic Urine Used at 8 of 24 Collection Sites

We were able to easily bring drug-masking products into a collection room at every one of the eight collection sites we tested with these products. Even in cases where the collector followed DOT protocol and asked our investigator to empty his pockets, our investigators simply hid these products in their pockets and elsewhere in their clothing. At one Dallas/Fort Worth collection site discussed above, the collector instructed our investigator to leave the bathroom door completely open when providing the specimen. The collector waited outside the bathroom; nevertheless, the investigator was able to pour synthetic urine into the specimen cup undetected. Investigators determined that there is information on the Internet about concealing drug-masking products. For example, one Web site noted that “although most testing sites will require you to remove items from your pockets, it is still possible to sneak in another specimen.” Even a knowledgeable government official with SAMHSA stated that, because collection protocols do not allow collectors to directly observe urination unless they are suspicious, the opportunity to substitute or adulterate a urine specimen exists.

Adulterants and Substitutes Were Not Detected by Laboratories

SAMHSA officials stated that validity tests are intended to produce accurate, reliable, and correctly interpreted test results and to decrease or eliminate opportunities to defeat drug tests. We found that none of the adulterants or synthetic urine we used were identified by the laboratories, however, we cannot confirm if the laboratories performed validity testing because under DOT regulations they are only authorized, not required, to do so. SAMHSA is required to provide information to laboratories on how to test the validity of the urine specimen and publicly provide detailed information on lab testing procedures. According to a SAMHSA official with whom we spoke, companies that market masking substances periodically offer new formulations of their products to avoid detection. In fact, one Web site we located appeared to verify this claim by advertising that its product was “continuously updated and adjusted to keep up with changing technologies.” Despite their sophistication and ease of use, there is no regulation prohibiting the sale of these products. Under 21 U.S.C.

Section 863 it may be illegal to sell drug-masking products if the products are determined to be “drug paraphernalia.” However, we have not found any reported federal cases in which an individual has been prosecuted for selling drug-masking products under this statute.

Corrective Action Briefing

We briefed DOT on the results of our investigation on October 1, 2007. DOT officials agreed with our findings and indicated that they were not surprised by the results of our work, stating that they have performed similar tests themselves in prior years with similar results. We agreed with DOT that we would provide a referral letter that specifies the areas and collection site names for those sites that we determined had failures in protocols. DOT added that it has already taken steps to improve the collection facilities’ performance in the drug testing program. For example, officials said they have developed posters with 10 key DOT protocols to be distributed at urine collection sites. These posters are intended to help collectors follow the appropriate protocols while conducting drug tests under the DOT drug screening program. DOT officials also stated that the Real ID Act could close the vulnerability we identified of using fake drivers’ licenses to take the drug tests, but that, because implementation of this act is years away, there should be an interim solution. Finally, regarding drug-masking products, DOT officials stated that they have continually supported legislation to ban the sale and marketing of drug-masking products.

Conclusion

Our work shows that a drug user could easily pass a DOT drug test and continue to work in his or her safety-sensitive commercial transportation job—driving children to school or transporting hazardous materials, for example. To fully address the vulnerabilities we identified, improvements will need to be made in both the design of the entire process and the ability of collection site employees to adhere to current protocols. In ongoing work, expected to be complete in May 2008, GAO is examining options to deal with these and related drug testing issues.

Mr. Chairman and Members of the Subcommittee, this concludes my statement. I would be pleased to answer any questions that you may have at this time.

Contacts and Acknowledgments

For further information about this testimony, please contact Gregory D. Kutz at (202) 512-6722 or kutzg@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this testimony. In addition to the individual named above, the individuals who made major contributions to this testimony were John Ryan Assistant, Director; Verginie Amirkhanian; Shafee Carnegie; Paul Desaulniers; Matthew Harris; Jason Kelly; Jeffrey McDermott; and Andrew McIntosh.

Appendix I: Results of Undercover Testing in Four Metropolitan Areas of the United States

The following four tables present a site-specific breakdown, by protocol, of our undercover test results. We provide these tables in the order of our testing. Our investigators used a data collection instrument to track the compliance of collectors at each site. An “unknown” result means that investigators could not determine whether the collection site failed to comply with the particular protocol because it was not observed.

Washington, D.C., Metropolitan Area

Table 3 provides our findings for the Washington, D.C., metropolitan area, which is the first area where we tested the 16 key collection protocols.

Los Angeles Metropolitan Area

Table 4 provides our findings for the Los Angeles metropolitan area, which is the second area where we tested the 16 key collection protocols.

New York/Northern New Jersey Metropolitan Area

Table 5 provides our findings for the New York/Northern New Jersey metropolitan area, which is the third area where we tested the 16 key collection protocols.

Dallas/Fort Worth Metropolitan Area Undercover Testing

Table 6 provides our findings for the Dallas/Fort Worth metropolitan area, which is the fourth area where we tested the 16 key collection protocols.