…This question comes up often. A donor tests positive and claims that’s not my specimen you tested. Please test the specimen for my DNA, that will tell you it is not my drug test.
The use of a DNA (Deoxyribonucleic Acid) test to determine if the donor who supplied the specimen that tested positive was the specimen supplied by the donor or was it an error by the collection facility. This has been a contentious issue for years.
In the edition of 49 CFR Part 40 issued December 19, 2000, DNA testing was identified as a method to contest a test result in 49 CFR Part 40.13(c). In the same reference, it was also disallowed as a method to contest a positive drug test.
Why is this a contentious issue should be explored. It is well known fact that a regulated specimen is to be collected unobserved. The other part of this is that the specimen is to remain in view of the donor during the entire specimen processing time by the collector. Many donors are not aware of this particular requirement.
This is where incidents occur and that donor has some grounds to contest the specimen collection. If the specimen is out of view of the donor at any given time prior to the specimen being sealed, that is a violation.
As a side note, if the specimen is ever out of the sight of the donor prior to it being sealed, that is a clear-cut violation of the regulations. The donor needs to acknowledge and document that lapse of regulatory compliance on the art of the collector. The donor should document that lapse by making a note on the CCF. The donor can also request to see the collector’s supervisor.
The donor believes that the tested specimen is not their specimen because it was out of their sight for an unspecified time and was substituted, the donor can request that a DNA test of their specimen to be done. However, that request will be denied in accordance with the regulations as stated in 49 CFR part 40.13(c). This applies only to regulated drug test specimens. For non-regulated specimens, the issue of getting a DNA test conducted will depend upon state and or local. In addition, it is possible that company policy may also apply.
In the case that was presented to the US Court of Appeals for the District of Columbia Circuit, Case Number of 14-1277. The decision date was signed June 24, 2016.
The request was to have a DNA test conducted on a regulated specimen was denied. The Petitioner was a pilot for Spirit Airlines who had a specimen test positive for morphine at more than 8 times the legal limit and a metabolite of cocaine at more than 63 times the legal limit.
The petitioner argued against the revocation of license that was done at a hearing before an Administrative Law Judge. The petitioner took Concentra to court in Florida arguing negligence in the handing of his specimens. There was a series of decisions in the lower Florida courts with the Florida Supreme Court refusing to review the decision to have Quest Diagnostics produce the specimen.
There was a series of letters that were sent to the Acting Director of the Office of Drug and Alcohol Policy and Compliance (ODAPC) and to the Department of Transportation (DOT) Office of General Counsel. This correspondence was to request that a DNA test be allowed on the specimen in question. All these efforts were to no avail as the DOT Office of General Counsel sent to the petitioner a letter stating “no further explanation is warranted” because the “regulations set forth 49 CFR part 40 are clear.”
The petitioner then went to the District court for review with the decision that the petitioner’s petition for review was denied.
Not with the intent to start a discussion but should DNA testing be allowed upon a regulated specimen?
By Robert Schoening
About Bob Schoening
Robert Schoening is well renowned for his knowledge and influence in the drug-testing arena. As the Drug and Alcohol Program Manager for the US Coast Guard (December 2001-March 2013) he developed and managed a successful drug testing program for the marine industry nationwide and internationally. During this time he developed and implemented a new compliance audit checklist as well as the writing and publishing a new Marine Employers Guidebook for Drug Testing. He is also the author of the federal regulation commonly known as the two-hour alcohol testing for maritime incidents.
Robert’s drug testing career began in the Navy Medical Department, where he received the Navy Achievement Medal for his work on development of the Navy drug-testing program which was the first major workplace drug-testing program in the country. He retired in 1985 after serving 24 years.
Upon his retirement, Robert established his own drug testing consulting company assisting other companies to establish drug-free workplaces and drug testing programs, concentrating primarily on the marine industry. His knowledge of regulations and policy helped build his company to be one of the premier providers of drug testing services for the marine industry. During this time he was instrumental in establishing many of the current federal policies that are in place.
Robert has served on the Board of Directors of the Substance Abuse Program Administrators Association (SAPAA) as well as chairing the Governmental and Legislative Affairs committee. He was one of the first individuals to be recognized as an expert in the Drug and Alcohol testing industry and to receive designation as a Certified Substance Abuse Program Administrator (1996).
Robert is active participant in community service. He recently served on the Policy Board for the Alcohol Safety Action Program in Fairfax, VA (January 1989-December 2012). Since moving to Whidbey Island in Washington, he has been named to serve on the Substance Abuse Committee and recently been named to serve on the Ferry Advisory Committee both of these committees are located in Island County, WA.
Robert is currently a consultant for Workplace Drug Testing and Drug Abuse Prevention Programs.