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Getting into Compliance-Part 4

Posted: March 26, 2016

... FMCSA Drug & Alcohol Required Testing – Consortium and Random Drug Testing ...

Getting into Compliance-Part 4

After the -phone call and the new information that I had learned I did my homework.  The license copies had been received so I checked the business licenses information and determined the licenses were indeed valid.

I reviewed the website for the Department of Transportation (DOT) and Federal Motor Carrier Safety Administration (FMCSA) to see if these agencies issued letters signifying compliance.  After reviewing the websites for both agencies I emailed the Drug and Alcohol Program Manager for the FMCSA and asked that if they or DOT issued letters to state that a Consortium/Third Party Administrator (C/TPA) were in compliance with the applicable regulations.  The response was quick in coming back and which stated they and DOT did not issue letters signifying compliance.  A red flag was going up in my mind.

I reread the regulations to see if on-site testing devices area be used to test for controlled substance on regulated personnel. I could not find any information to determine if they were allowed and once again emailed the program Manager at FMCSA with this question. He was again, very quick to respond with the response that the use on-site testing devices was not allowed.  By now more than a red flag was going off in my head.  I felt that my program was out of compliance.

I called my manager into my office to discuss this situation.  Once he arrived he and I discussed this situation.  I asked him if he had done any background work on the program.  He told me that he had not and that he trusted the company that he had hired to make sure that my company was compliant. I then inquired if he had any familiarity with the drug and alcohol testing regs.  He told me no, that he trusted the company he had hired to ensure compliance.  I asked him if there was a contract between this provider and my company.  He did tell me that yes there was a written contact.  I told him to get that contact so I could review the contractual terms.

He returned and I told him that I would get back to him.   In the meantime, I contacted that attorney that I had used to help set up my company and requested an immediate appointment.  A meeting was set to take place within one hour.

I gathered all my notes and pertinent documentation along with the contract between my company and the drug testing clinic.

We reviewed the contract and compared that contract to the regulations.  He and I quickly determined that my company was seriously out of compliance.  He advised me to take immediate measures as I had serious liability exposure if there was an accident because I was not in compliance with the regs.

He stressed one point to me that was while the test facility had some liability exposure, I as the owner, of the company had full exposure.  He explained to me that I was responsible for being in compliance and that any service agents that I contracted with had to be in compliance and it was my responsibility to ensure that these service agents were in compliance with any and all applicable regulations.  That particular point was not lost on me.

We discussed a plan of action to get back in a compliance.  He told me that he would do contract severance letter and send it to the clinic ASAP and would also do a verbal notification within the hour.

I went back to my office and immediately put a plan into action.   I brought my manager into what was going to happen explaining to him that the company was not in compliance with the testing program and that I would tell him why later.

Fortunately, all my commercial trucks had radio communication links with my home office. I sent a message out to all of the trucks to stop and to pull off of the road where it was safe to do that.  They were to let me know when and where they were stopped.  Within 10 minutes all of my trucks that were on the road were no longer in operation and the farthest truck was 50 miles away.  That was 15 trucks out of my 20 trucks as 5 trucks were sitting in the yard loading freight.  I informed all my drivers that we had a serious compliance issue to explain why they had been pulled off the road.  I also informed them that not to move their trucks and that relief drivers would be sent to finish their routes.  I felt like I have just started all over again from the beginning. 

I also had to notify several officials of the circumstances.  I notified the state police of what had happened and that action that I had taken so far and what future action I was going to take.

I contacted a driver leasing company, explaining the circumstances of what had happened and that I needed to immediately lease 15 drivers.  I asked if the drivers were eligible to be leased and they assured me that they were and that they would put that in writing.  They also told me that they would help get the replacement drivers to each truck and that they would help out and being the drivers that were not eligible to drive back to my office.  That brought me a big sigh of relief even though it was not going to be cheap.

I then phoned the local FMCSA Office and informed them.  I spoke to the lead investigating officer for this office.  He told me that he was not surprised as they had had their suspicions for some time about this particular medical facility.  He told me he would be at my office the next day to get statements and get evidence related to the non-compliance.  I asked him if there was anything else that I could do with a response of no that I had done everything take could be done.

I called my friend at my friendly rival and informed him of what had occurred. He gave me the name of his C/TPA and that they could set me up with a compliant program.  I contacted them and they told me that they would do that overnight setting me up with a lab, collection site and a Medical Review Officer.  They also asked me some policy questions that I answered.  They also sent me contract via email to be signed. I read the contract and was satisfied with the terms.  I also conferred with the local FMCSA Office that they not had any problems or issues with this C/TPA.

All of my drivers came to the office immediately upon returning to the home office.  I explained why this had happened and informed them that they had to take and pass a drug test before they could drive a truck again for me. I told them if they wanted to continue to work for me that the tests would be collected the next day.  I also informed them that it could take a couple of days for the tests results to be returned to me.  If they wanted to continue working for me I would pay them a stipend for this time off of the job. If they wanted to go to work elsewhere I would write them their final paycheck and they would be free to drive for another company.   Gladly, most of them elected to stay with me.

The FMCSA Investigators showed up the following day.  They asked several questions and told me that I had taken the right action.  They also told me that if they had previously investigated my company they would have put a stop work order on my company and that it would have taken a long time to get an operating permit again.  All in all, I was pleased with what they told me and that I had taken the right and corrective action.  They told me that they had informed the state officials and they have shut down this clinic for providing testing services for DOT regulated companies.  They informed me that all of my documents and other information has been forwarded to the Program Manager at FMCSA for any possible action.

Sometime later the local FMCSA Office informed me that Public Interest Exclusion (PIE) charge had been filed against this clinic and that an outcome of this clinic not operating again was expected.  Several months later this was reaffirmed and they were banned from doing business with DOT regulated companies for the maximum of five years.

One important factor that I learned was if you are out of compliance, be proactive and get into compliance. If you are a startup company, you need to have this very important safety program in place from the time that you start business.  The first step if you don’t have them already is to get negative pre-employment test results on all drivers – even if they have been working for you for 1, 2 or 5 + years.  Contact an experienced professional service agent for great service and compliance