§382.605 Referral,
Evaluation, and Treatment
Question 1: Must an SAP evaluation be conducted in person
or may it be conducted telephonically?
Guidance: Both the initial and follow-up SAP evaluations are clinical processes
that must be conducted face-to-face. Body language and appearance offer
important physical cues vital to the evaluation process. Tremors, needle marks,
dilated pupils, exaggerated movements, yellow eyes, glazed or bloodshot eyes,
lack of eye contact, a physical slowdown or hyperactivity, appearance, posture,
carriage, and ability to communicate in person are vital components that cannot
be determined telephonically. In-person sessions carry with them the added
advantage of the SAP's being able to provide
immediate attention to individuals who may be a danger to themselves or others.
Question 2: Are employers required
to provide intervention and treatment for drivers who have a substance abuse
problem or only refer drivers to be evaluated by an SAP?
Guidance: An employer who wants to continue to use
or hire a driver who has violated the prohibitions in subpart B in the past
must ensure that a driver has complied with any SAP's recommended treatment prior to the driver returning to
safety-sensitive functions. However, employers must only refer to an SAP
drivers who have tested positive for controlled
substances, tested 0.04 or greater alcohol concentration, or have violated
other prohibitions in subpart B.
Question 3: Under the DOT rules, must an SAP be certified by the DOT in order
to perform SAP functions?
Guidance: The DOT does not certify, license, or
approve individual SAPs. The SAP must be able to demonstrate to the employer
qualifications necessary to meet the DOT rule requirements. The DOT rules
define the SAP to be a licensed physician (medical doctor or doctor of
osteopathy), a licensed or certified psychologist, a licensed or certified
social worker, or a licensed or certified employee assistance
professional. All must have knowledge of and clinical experience in the
diagnosis and treatment of substance abuse-related disorders (the degrees and
certificates alone do not confer this knowledge). In addition, alcohol and drug
abuse counselors certified by the National Association of Alcoholism and Drug
Abuse Counselors Certification Commission, a national organization that imposes
qualification standards for treatment of alcohol-related disorders, are
included in the SAP definition.
Question 4: Are employers required
to refer a discharged employee to an SAP?
Guidance: The rules require an employer to advise
the employee, who engages in conduct prohibited under the DOT rules, of the available resources
for evaluation and treatment including the names, addresses, and telephone
numbers of SAPs and counseling and treatment programs. In the scenario
where the employer discharges the employee, that employer would be considered
to be in compliance with the rules if it provided the list to the employee and
ensured that SAPs on the list were qualified. This
employer has no further obligation (e.g., to facilitate referral to the SAP;
ensure that the employee receives an SAP evaluation; pay for the evaluation; or
seek to obtain, or maintain the SAP evaluation synopsis).
Question 5: How will the SAP evaluation process differ if the
employee is discharged by the employer rather than retained following a rule
violation?
Guidance: After engaging in prohibited conduct and
prior to performing safety-sensitive duties in any DOT regulated industry, the employee
must receive a SAP evaluation. And,
when assistance with a problem is clinically indicated, the employee must
receive that assistance and demonstrate successful compliance with the
recommendation as evaluated through an SAP follow-up evaluation.
The SAP
process has the potential to be more complicated when the employee is not
retained by the employer. In such circumstances, the SAP will likely not have a
connection with the employer for whom the employee worked nor have immediate
access to the exact nature of the rule violation. In addition, the SAP may have
to hold the synopsis of evaluation and recommendation for assistance report
until asked by the employee to forward that information to a new employer who
wishes to return the individual to safety-sensitive duties. In some cases, the
SAP may provide the evaluation, referral to a treatment professional, and the
follow-up evaluation before the employee has received an offer of employment.
This circumstance may require the SAP to hold all reports until asked by the
individual to forward them to the new employer. If the new employer has a
designated SAP, that SAP may conduct the follow-up evaluation despite the fact
that the employee's SAP has already done so. In other words, a new employer may
determine to its own satisfaction (e.g., by having the prospective employee
receive a follow-up SAP evaluation utilizing the employer's designated SAP)
that the prospective employee has demonstrated successful compliance with
recommended treatment.
Question 6: Do community lectures
and self-help groups qualify as education and/or treatment?
Guidance: Self-help groups and community lectures
qualify as education but do not qualify as treatment. While self-help groups
such as Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) are crucial to
many employees' recovery process, these efforts are not considered to be
treatment programs in and of themselves. However, they can
serve as vital adjuncts in support of treatment program efforts. AA and NA
programs require a level of anonymity which makes reporting client progress and
prognosis for recovery impossible. If the client provides permission, AA and NA
sponsors can provide attendance status reports to the SAP. Therefore, if a client is
referred to one of these groups or to community lectures as a result of the SAP
evaluation, the employee's attendance, when it can be independently validated,
can satisfy a SAP recommendation for education as well as a gauge for determining
successful compliance with a treatment program when both education and
treatment are recommended by the SAP's evaluation.
Question 7: Can an employee who has
violated the rules return to safety-sensitive functions prior to receiving an SAP evaluation?
Guidance: The employee is prohibited from
performing any DOT regulated
safety-sensitive function until being evaluated by the SAP. An employer is prohibited from
permitting the employee to engage in safety-sensitive duties until evaluated.
If the evaluation reveals that assistance is needed, the employee must receive
the assistance, be re- evaluated by the SAP (and determined to have
demonstrated successful compliance with the recommendation), and pass a
return-to-duty alcohol and/or drug test prior to performing safety-sensitive
duties.
Question 8: Can an employer overrule
an SAP treatment recommendation?
Guidance: No. If found to need assistance, the employee cannot
return to safety-sensitive functions until an SAP's follow-up evaluation determines that the employee has
demonstrated successful compliance with the recommended treatment.
An employer who returns a worker to safety-sensitive duties when the employee
has not complied with the SAP's recommendation is in
violation of the DOT rule and is,
therefore, subject to a penalty.
Question 9: Is an employer obligated
to return an employee to safety-sensitive duty following the SAP's finding during the follow-up evaluation that the
employee has demonstrated successful compliance with the treatment
recommendation?
Guidance: Demonstrating successful compliance with
prescribed treatment and testing negative on the return-to-duty alcohol test
and/ or drug test, are not guarantees of employment or of return to work in a
safety-sensitive position; they are preconditions the employee must meet in
order to be considered for hiring or reinstatement to safety- sensitive duties
by an employer.
Question 10: Can an employee
receive the follow-up from an SAP
who did not conduct the initial SAP evaluation?
Guidance: Although it is preferable for the same SAP to conduct both evaluations, this
will not be realistic in some situations. For instance, the initial SAP may no longer
be in the area, still under contract to the employer, or still hired by the
employer to conduct the service. Additionally, the employee may have moved from
the area to a new location. In all cases, the employer responsibility is to
ensure that both the initial SAP and the follow-up SAP are qualified according
to the DOT rules.
Question 11: Who is responsible for
reimbursing the SAP for services rendered?
Who is responsible for paying for follow-up testing recommended by the SAP?
Guidance: The DOT rules do not affix responsibility
for payment for SAP services upon
any single party. The DOT has left discussions regarding payment to employer
policies and to labor-management agreements. Therefore, in some instances, this
issue has become part of labor-management negotiations.
Some employers have hired or contracted staff for the
purpose of providing SAP services.
For some employees, especially those who have been released following a
violation, payment for SAP services will become their responsibility. In any
case, the SAP should be suitable to the employer who chooses to return the
employee to safety-sensitive functions. Employer policies should address this
payment issue.
Regarding follow-up testing recommended by the SAP, when an employer decides to
return the employee to safety-sensitive duty, the employer is essentially
determining that the costs associated with hiring and training a new employee
exceeds the costs associated with conducting follow-up testing of the returning
employee. In any case, whether the employer pays or the employee pays, if the
employee returns to performance of safety-sensitive functions, the employer
must ensure that follow-up testing occurs as required. The employer will be
held accountable if the follow-up testing plan is not followed.
Question 12: Can the SAP direct that an employee be tested
for both alcohol and drugs for the return-to-duty test and during the follow-up
testing program?
Guidance: If the SAP determines that an employee
referred for alcohol misuse also uses drugs, or that an employee referred for
drugs use also misuses alcohol, the SAP can require that the individual be
tested for both substances. The SAP's decision to
test for both can be based upon information gathered during the initial
evaluation, the SAP's consultation contacts with the
treatment program, and/or the information presented during the follow-up
evaluation.
Question 13: Can random testing be
substituted for required follow- up testing?
Guidance: Follow-up testing is directly related to
a rule violation and subsequent return to safety-sensitive duty. Random tests are
independent of rule violations. Therefore, the two test types are to be
separated--one cannot be substituted for the other or be conducted in lieu of
the other. Follow-up testing should be unpredictable, unannounced, and
conducted not less than six times throughout the first 12 months after the
employee returns to safety-sensitive functions. Follow-up testing can last up
to 60 months. An employee subject to follow-up testing will continue to be
subject to an employer's random testing program.
Question 14: If a company has
several employees in follow-up testing, can those employees be placed into a
follow-up random testing pool and selected for follow-up testing on a random
basis?
Guidance: Follow-up testing is not to be conducted
in a random way. An employee's follow-up testing program is to be
individualized and designed to ensure that the employee is tested the
appropriate number of times as directed by the SAP. Random testing is neither
individualized nor can it ensure that the employee receives the requisite
number of tests.
Question 15: What actions are to
occur if an employee tests positive while in the follow-up testing program?
Guidance: Employees testing positive while in
follow-up testing are subject to the same specific DOT operating administration rules as
if they tested positive on the initial test. In addition, the employees are
subject to employer policies related to second violations of DOT rules.
Question 16: Can an SAP recommend that six follow-up tests
be conducted in less than six months and then be suspended after all six are
conducted?
Guidance: Follow-up testing must be conducted a
minimum of six times during the first twelve months following the employee's
return to safety-sensitive functions. The intent of this requirement is that
testing be spread throughout the 12 month period and not be grouped into a
shorter interval. When the SAP
believes that the employee needs to be tested more frequently during the first
months after returning to duty, the SAP may recommend more than the minimum six
tests or can direct the employer to conduct more of the six tests during the
first months rather than toward the latter months of the year.
Question 17: Can you clarify the DOT's intent with respect to a SAP's determination that an individual needs education?
Guidance: A SAP's decision that an
individual needs an education program constitutes a clinically based
determination that the individual requires assistance in resolving problems
with alcohol misuse and controlled substances use. Therefore, the SAP is
prohibited from referring the individual to her or his own practice for this
recommended education unless exempted by DOT
rules.
Question 18: In rare circumstances,
it is necessary to refer an individual immediately for inpatient substance
abuse services. May the SAP provide
direct treatment services or refer the individual to services provided by a
treatment facility with which he or she is affiliated, or must the inpatient
provider refer the individual to another provider?
Guidance: SAPs are
prohibited from referring an employee to themselves or to any program with
which they are financially connected. SAP referrals to treatment programs must
not give the impression of a conflict of interest. However, a SAP is not
prohibited from referring an employee for assistance through a public agency;
the employer or person under contract to provide treatment on behalf of the
employer; the sole source of therapeutically appropriate treatment under the
employee's health insurance program; or the sole source of therapeutically
appropriate reasonably accessible to the employee.
Question 19: What arrangement for SAP services would be acceptable in
geographical areas where no qualified SAP is readily available?
Guidance: The driver must be given the names,
addresses, and phone numbers of the nearest SAPs. Because evaluation by a qualified SAP rarely takes more
than one diagnostic session, the requirement for an in-person evaluation is not
unreasonable, even if it must be conducted some distance from the employee's
home.
Question 20: May an employee who
tests positive be retained in a non-driving capacity?
Guidance: Yes. Before an employee returns to
performing safety- sensitive functions, the requirements of §382.605 must be met.
Question 21: Are foreign motor carriers
required to have an employee assistance program?
Guidance: No. The employee assistance program was an element of the original FHWA drug testing program under 49 CFR part 391
, which has been superseded by 49
CFR part 382. All motor carriers under part
382 alcohol and drug testing regulations must refer drivers, who
operate in the