DOT ECCF Article Series Part 2

20 Sep 2014

DOT Electronic Chain of Custody Article Series by Robert Schoening, Former Drug and Alcohol Program Manager for the US Coast Guard ...

Part 2 - How Did We Get Here Today with the Federal Electronic CCF?
Click Here for Part 1 of this article

... An electronic CCF has been available in the non-regulated drug testing industry for several years while the Federal Government lagged behind or were “behind the curve.”   Why and how this happened is a question that has been asked.  Part of the answer to that question has been given in the preceding article in this article. 

The documentation using the Federal Chain-of-Custody for the handling of specimens initiates at the point of collection.  That in turn leads to documentation for specimen shipping.  The laboratory will document receipt of the specimen, the actual test analysis which includes all worksheets documenting the handing of the specimen, specimen test results review by the Certifying Scientist, transmission of the test results to the designated medical review officer, transmission of the results to the individual designated within the company to receive the test results and then finally transmission of the results to the individual.  Even the transmission of non-negative test results should be thoroughly documented by the transmitting party, oftentimes it is a C/TPA.  The C/TPA, who is sending the verified test result to the result to the employer and the DER should document that transmission.  All of the above steps have to be documented and with secure transmission procedures in place.  All verified test results are required to be held in confidence and cannot be released to unauthorized parties.  The above process has been termed prescriptive but the forensic nature of workplace drug testing calls for these prescriptive processes. 

Workplace drug testing performed per Federal Mandate, i.e., Department of Transportation, (DOT) involves staying within the limits of search and seizure as given in the 1989 US Supreme Court Decisions (Skinner vs Railway Labor Executives’ Association, 489 U.S. 602 [1989]) and National Treasury Employees v. Von Raab, 489 U.S. 656 [1989]).  The Supreme Court decisions do provide where the legitimate governmental interest is significant, it is reasonable to intrude into a person's Fourth Amendment right to be free from searches may be reasonable.  The preceding statement is very applicable for safety-sensitive positions where public safety is involved.  As a side note, this application of the Fourth Amendment goes to all levels of government, including federal state and local. The Fourth Amendment does not apply to private sector drug testing, nor to testing done within the criminal justice system along with testing for clinical purposes. 

In the late 1990’s, there was an effort to evolve into the electronic world by DOT.  A series of meetings were held in the Washington, DC area (open to the public), to discuss establishing forensic documentation standards for workplace drug testing.  One of the major issues was the development of an electronic standard for signatures.  Electronic standards had been previously established by the Department of Health and Human Services (HHS) for The Health Insurance Portability and Accountability Act of 1996 (HIPAA).  That Act was for the secure electronic transmission of medical records but did not include any standards for signature(s). 

The Department of Justice (DOJ) was present at the above referenced meetings and gave valuable input into the proceedings.  There was one comment made by DOJ that was, in my opinion, a show stopper.  DOT stated whatever standard was developed while it could be approved in one Federal Court, it could easily be overturned in another Federal Appellate Court.  That meant that work on this potentially would have to go back to ground zero and start all over to develop a new standard that would be able to meet the standard as set by the Court overturning the original work. It was on that note that the meeting was adjourned and did not move forward, at least within the Federal government workplace level. 

This topic will be continued at a later date but the next edition will be “The importance of a verified documentable random drug test program.” 

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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.