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January 22, 2021 E-Blast

Do your SAP reports comply with DOT's regulation?


Over the last few months, I have seen a number of SAP reports that lead me to write this e-mail about SAP reports.
 
In this newsletter I will try to address the issues that I consider to be important aspects of SAP reports.  These are my observations and suggestions, supported with references to Part 40 and the "SAP Guidelines".
 
DOT addresses SAP reports in 40.311.  There are 3 SAP reports:
  1. Initial Report,
  2. Follow-up Evaluation Report of Compliance, and
  3. Report of Non-compliance. 
In the "SAP Guidelines", see Section II, The Evaluation Process, and The Follow-up Evaluation Process.
 
In Part 40 and the "SAP Guidelines", DOT prescribes what must be in each report.  A SAP report is therefore defined in the regulation.  If a SAP report is altered by either adding or deleting information, the report no longer complies with the regulation.
 
This e-mail will address the Initial SAP Report.  Next week I will send another e-mail, in which I will talk about the Follow-up Evaluation Report.

The INITIAL REPORT

 
The SAP's Initial Report must have:
  1. Employee’s name and Social Security #  (Not the driver’s CDL#)
  2. Employer’s name and address (this would include the DER as the contact person)
  3. Reason for the assessment (specific violation of DOT regulations and violation date)
  4. Dates(s) of the assessment
  5. SAP's recommendation for education and/or treatment
  6. SAP's telephone number (SAP's name is on the SAP's letterhead)
  7. Signed and dated by the SAP
Only the driver’s SS# should be on an Initial Report.  (The last 4 digits is acceptable).  
 
The Clearinghouse uses the CDL#, but SAP reports must use only the SS#.  Don’t get these confused, and don’t use both.  Part 40 hasn’t changed.  40.311 requires a SS#, not a CDL#.
 
Some third parties have asked SAPs to include “assessment instruments” on an Initial Report.  My advice:  This is wrong.  A third party has no authority to change the content of a SAP report.  If DOT had wanted assessment instruments to be included, DOT would have included assessment instruments in 40.311.  But they didn’t.  (An employer probably doesn’t even know what a SASSI or a DAST is).  A SAP report should not include “extra information”.  If a third party wants to know which instruments you used, I suggest you consider a separate memo or e-mail that can be placed in their file about this violation.  But assessment instruments aren’t part of a SAP report.  At the end of the day, it is your name and your signature on that report.
 
For #3 above, giving the reason for the assessment, be sure to identify the specific mode.  FMCSA, FTA, FRA, etc.  For example:  Positive drug test, FMCSA.  Or Positive alcohol test, FRA.  Or Refusal to be tested, FAA.  If you wish, you could include the specific reference from the modal regulation, but it needs to be accurate, which means you’ll have to look it up. 
 
Some modes have employees who are under more than one modal rule.  For example, a railroad may have FMCSA employees and FRA employees.  Be sure you know which mode the railroad employee was tested under.
 
Here’s why:  A FMCSA refusal to be tested is a standard refusal.  However, an FRA employee who refuses an FRA test must be removed from service for 9 months. 
 
Since most clients are FMCSA drivers, here are the FMCSA violations:
  • Positive drug test: 382.215 
  • Positive alcohol test: 382.201
  • Using controlled substance without authorization: 382.213
  • Using alcohol before a post-accident alcohol test: 382.209
  • Using alcohol on duty: 382.205 
  • Using alcohol within 4 hours of safety-sensitive functions: 382.207 
  • "Actual knowledge": 382.107
  • Refusal (drug or alcohol): 382.211
Each of the 8 items on this list is a violation, requiring a SAP process.  (This is a good time to remind you that DOT violations are not limited to positive tests and refusals.)
 
You will see that possession isn’t on this list.  That’s because possession is not a violation of 382.  No employer can require a SAP process when an employee has been caught possessing drugs or paraphernalia.  Possession doesn’t assume that an employee has used a controlled substance.  Possession is not a basis for requiring a reasonable suspicion test.  Every employer must make his own rules regarding possession, and the employer’s consequences for possession of drugs should be stated in an employer’s written policy.
 
#3, the date of the violation, is the date of the collection.  This was clarified by ODAPC in the early days of this regulation.  Unfortunately, it’s not written in a formal document.  Use only the collection date.  A SAP should get that date from the employer, or from the CCF, or from the MRO. Don’t include the date that the MRO verified the test result. 
 
Should I include a diagnosis?  No.  Don’t include a diagnosis or any diagnostic information in any SAP report.  DOT asks only for your treatment recommendation.  It should simply be a brief statement.  “Two weeks, inpatient, St. Mary’s.”  or “Ten sessions of intensive outpatient with Dr. Johnson.”  Be specific about where, who, and how long.  If there are two providers that would be equally good, let the employee pick one, and then put that choice in your Initial Report.  Don’t write a report that has “either/or”. 
 
Your Initial Report shouldn’t go into detail about what the employee told you in the assessment process, or what you learned about his drug use.  Your recommendation shouldn’t be open-ended.  Don’t let Dr. Johnson decide how many sessions the employee needs.  That is YOUR decision and YOUR responsibility as a SAP.  You are the gatekeeper, and you must control the treatment plan.  (This is why DOT requires a SAP to have “knowledge about and clinical experience in the diagnosis and treatment of alcohol and controlled substances-related disorders”.  (40.281(b)(1)).

When should I send my Initial Report to an employer?


If the employee tells you that he plans to return to his employer, send the Initial Report to that employer immediately, to signal that the SAP process has started, and that you are the SAP.  It informs the employer that they cannot accept an Initial Report from another SAP.  (40.295)  Send it as soon as you have told the employee what your recommendation is, and you have facilitated the employee’s entry to that treatment program.  (It means you have contacted the treatment provider, submitted your treatment with diagnostic determinations, and cleared the way for the employee to get started.)
 
If the employee has been terminated, 40.311(f) tells you to give copies of the SAP reports to the employee to take to a future employer.  However, since your follow-up testing plan must not be shared with the employee (40.329(c)), the future employer will have to request the follow-up testing plan from you directly.  The request must include the employee’s signature.  When you receive the request, I suggest you send the Initial Report and the Follow-up Evaluation Report along with the follow-up testing plan.  (I am aware of several instances where an employee actually made changes to the SAP reports before giving them to a new employer.  By sending a complete set of copies, you allow the employer to compare, and perhaps discover that the employee had made changes.)

If the employee has been terminated, and doesn’t have a job, what do I use as the “Employer” on my SAP reports?


The Employer’s name and address on your SAP reports is always the employer that ordered the test.  That is the name of the employer the employee was working for at the time.  An auditor can then trace back to the origin of the violation.
 
I’d say that’s enough for one day.  Watch for another e-mail next Friday, in which I’ll talk about the Follow-up Evaluation Report.

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SAPlist UREMINDER: SAPlist U For Your Continuing Ed Requirement

SAPlist U provides 12 hours of continuing education related to DOT's testing rules.  It is endorsed by EACC, NASW, and NBCC.  It’s online, convenient, and you can complete it at your own pace.

Go to SAPlist U Continuing Ed

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Until next time,

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Lee Mauk  |  SAPlist.com and SAPlist U
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