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January 29, 2021 E-Blast

The Follow-up Evaluation Report of Compliance

The Follow-up Evaluation Report is based on what you learn when you conduct your follow-up evaluation.  It should appropriately be called a Follow-up Evaluation Report
40.305(c) says that a SAP “must not make a ‘fitness for duty’ determination as part of this re-evaluation”.  For that reason, I feel it is important to not call this a “Return to Duty Evaluation”.  Don’t say anything in this report to suggest in any way that the employee is “safe” to return to duty, or that he should now take a return-to-duty test.  An employer could claim that this was an indication by you that the employee was safe to return to work.  To quote Part 40, “It is the employer, rather than you, who must decide whether to put the employee back to work in a safety-sensitive position.”  Your only responsibility with a follow-up evaluation is to determine that the employee did (or did not) successfully comply with your recommendation.  Period.  “The employee succesfully complied with my recommendation.”
The SAP's Follow-up Evaluation Report is defined in 40.311.  It must include:
 1) Employee's name and SSN;  (not CDL#)
 2) Employer's name and address;
 3) Reason for the initial assessment (specific violation of DOT regulations and violation date);
 4) Date(s) of the initial assessment and synopsis of the treatment plan;
 5) Name of practice(s) or service(s) providing the recommended education and/or treatment;

Yes, #1-5 are repeated from the SAP's Initial Report.  That’s because an auditor may want to be sure that no one changed your treatment recommendation, and that the employee has completed exactly what you had originally recommended.

The following required information will be new, based on what you learned from the treatment provider, and from your follow-up evaluation with the employee:

 6) Inclusive dates of employee's program participation;
 7) Clinical characterization of employee's program participation; “clinical characterization” requires that you use a clinical instrument.  The "SAP Guidelines" and 40.301(b)(2) state that the follow-up evaluation must be a face-to-face clinical interview.
 8) SAP's clinical determination as to whether the employee has demonstrated successful compliance; (again, clinical determination).
 9) Follow-up testing plan;
 10) Employee's continuing care needs with specific treatment, aftercare, and/or support group services recommendations; (optional, and when you determine it is necessary and/or appropriate) and
 11) SAP's telephone number.
For the duration of the COVID virtual assessments, your Follow-up Evaluation Report must include a statement, indicating which platform that you used.  (Currently extended to June 30, 2021).

Note:  I draw your attention to the following statement in DOT's clarification about virtual assessments:

“You may only utilize the technology if your State-issued license authorizes you to do so and within the parameters of that authority.”  You’ll need to look into that part of the regulation with your State’s licensing authority.
No one can change your recommendation.  (40.297)  For example, if you had required 10 sessions, and the employee completed only 8, you should report non-compliance.  The Follow-up Evaluation Report must list the dates of the employee’s participation in treatment.  If you had required 10 sessions, but you listed only 8 dates of participation, an auditor can ask “Who changed your recommendation, and why did you accept fewer sessions?”  In the end, what you ordered on the Initial Report must match what you indicated was completed in your Follow-up Evaluation Report.  This is what auditors and investigators look for.
When you determine “successful compliance” for an FMCSA driver, you must enter that date on the Clearinghouse before the end of the next business day.  The driver is now ready for a return-to-duty test.  Only an employer can order that return-to-duty test.  A service agent (including a SAP) can’t order a return-to-duty test, or any other DOT tests.
If the employee is returning to his employer, you should send this report to the employer immediately.  The employer can’t order a return-to-duty test until he has received a report of compliance from the SAP.  “This test cannot occur until after the SAP has determined that the employee has successfully complied…”  40.305(a).  And when you send it to the employer, be sure to include your follow-up testing plan.  As stated in the "SAP Guidelines", you do not need a release to send this to the original employer. 
When an employer receives this report of compliance, the employer can order a return-to-duty test.  If the return-to-duty test result is negative, the employee can return to safety-sensitive functions.  If this was a driver under FMCSA, the employer must then take the added step of entering the date of that return-to-duty negative test on Clearinghouse.  The moment the employer enters that date, the “Ineligible to Drive” on the driver’s dashboard will change to “Eligible to Drive”.
If the employee was terminated, and will be looking for a new job, you may provide the employee with copies of the reports to show a new employer that he has completed a SAP process successfully.  But 40.329 requires that you redact the follow-up testing plan from whatever you give to the employee.  (Which is why I suggest that the follow-up testing plan should be on a separate document, rather than rolled into a “letter”, where it will have to be blocked out.  When it’s a very short sentence in the body of a letter, it’s easy for the employee to figure out that he has only one year of follow-up testing…employees have told me that.)

The Follow-up Evaluation Report of Non-Compliance

The SAP's Follow-up Evaluation Report is defined in 40.311.  It must include:
(1) Employee's name and SSN;  (not CDL#)
(2) Employer's name and address;
(3) Reason for the initial assessment (specific DOT violation and date);
(4) Date(s) of initial assessment and synopsis of treatment plan;
(5) Name of practice(s) or service(s) providing the recommended education and/or treatment;

Again, #1-5 are repeated from the SAP's Initial Report.

(6) Inclusive dates of employee's program participation;
(7) Clinical characterization of employee's program participation;
(8) Date(s) of the first follow-up evaluation;
(9) Date(s) of any further follow-up evaluation the SAP has scheduled;
(10) SAP's clinical reasons for determining that the employee has not demonstrated successful compliance; and
(11) SAP's telephone number.
#8 may be confusing. 

40.301(d)(3) says:  “As the SAP, you may conduct additional follow-up evaluation(s) if the employer determines that doing so is consistent with the employee's progress as you have reported it and with the employer's policy and/or labor-management agreements.”

This is confusing, and I’m not at all certain that I know what DOT is looking for here, except to say that if you have set up additional dates for an employee to meet with you about getting into compliance, you could list them here.  Remember, reporting non-compliance doesn’t mean you are done with this employee.  The employee is still your client, and they will have to return to you when, any time in the future, they decide they want to get into compliance and return to work.
Depending on when that eventually happens, your license or professional association might expect that the recommendation is no longer valid, and you must conduct a new evaluation, possibly resulting in a revised treatment plan and recommendation.  (This is often about addiction, and as we all know, a lot can change in a few weeks).
When should I send my Follow-up Evaluation Report of Non-Compliance to an employer?
Waste no time!  Send a report of non-compliance immediately:
  • When you learn that the employee has dropped out of your treatment plan, and the employee doesn’t return your phone calls or text messages.
  • At the first indication that the employee is being uncooperative or obnoxious, or harassing you, or challenging your authority
A Non-Compliance Report is an important tool for a SAP.  It is your way of letting an employee know that you are in charge, and that you won’t stand for an employee’s bad behaviors.  When the employee decides to get serious about completing treatment (and getting into compliance), you can change your Report of Non-compliance to a Report of Compliance.  (However, it can’t go the other direction:  A report of Compliance cannot be changed to a report of Non-Compliance.)
If the employee is a CDL driver under FMCSA, the violation is on the Clearinghouse.  Must I still send a Report of Non-Compliance to the employer?
If the employee had expected to return to his employer, you should send the Report of Non-Compliance to that employer immediately.  This will tell the employer that the employee is not cooperating with you, or has dropped out of his treatment plan.  Sometimes this will cause the employer to issue a warning to the employee, or perhaps even move to termination. 
If an employee has been terminated, you can certainly send your documents to the employer, but as most of you know, the employer might call and ask you not to send any more paperwork because the employee’s file has been closed.  Or, the employer will simply toss the documents without telling you.
If the violation was a pre-employment test, there is no employer to send your reports to, and you should simply hold on to them until the employee finds a job.  As explained above, you can give copies (minus the follow-up testing plan) to the employee to take to a new employer.  But when they find a job, the new employer should send you a release of information form, signed by the employee, so that you can send both reports (Initial Report and Follow-up Evaluation Report) along with the follow-up testing plan, to that new employer.
Because there have been instances of an employee literally making changes to their copies of SAP reports, I recommend that you always send copies of both SAP reports and the follow-up testing plan to an employer.  (Never just the follow-up testing plan).
Here is the Release of Information form on ODAPC’s website.  If this involves an FMCSA employer, the “two years” in Section II-A should be changed to “three years”.

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