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April 2020: ODAPC Issues Guidance Allowing Remote Assessments

Late afternoon, April 4, ODAPC posted guidance on its website which allows SAPs to conduct assessments remotely. 
View ODAPC Notice
This is indeed welcome guidance, and something that SAPs have been desperately hoping for.  The current public health emergency has been making it difficult for SAPs to provide services that comply with Part 40 and the "SAP Guidelines".
In reading the ODAPC’s guidance statement, there are a few things that SAPs should be aware of.
1)  The statement is in effect for the duration of the current health emergency or through June 30, whichever is sooner.  If the emergency is lifted before June 30, the statement will end at that time.  If the emergency extends through the summer, the statement will end on June 30. 
2)  ODAPC’s statement says:  “We recommend that, when a SAP conducts assessments and evaluations remotely, the format of the assessment be documented in the final report for reference.”  On your Follow-up Evaluation Report, a SAP should include a statement, something like “Due to the public health emergency in effect at this time, I conducted this client’s initial assessment and the follow-up evaluation by using …. (Skype, Zoom, etc.)”. 
3)  Please understandThere are no changes to Part 40 or the "SAP Guidelines".  Assessments and evaluations must still be face-to-face, in-person.  But what ODAPC is saying is that during the health crisis, ODAPC will not take enforcement action against a SAP who conducts a remote assessment.  Between now and the end of the emergency (or June 30), ODAPC will “look the other way” when a SAP violates the law.
Here are the nuances behind ODAPC’s statement.  You are familiar with the concept of PIE (Public Interest Exclusion).  Under the PIE provision, service agents won’t be fined by ODAPC for acting out of compliance.  But those service agents can be issued a PIE.  A service agent with a PIE is prohibited from providing any service to a DOT employer or employee for a period of 5 years.  The service agent’s name would also be published in the Federal Register, which would not be a badge of honor.  😊
This question appears in Part 40:

40.365 What is the Department’s policy concerning starting a PIE proceeding?
Reasons for issuing a PIE, (b)(8) says “For SAPs, providing SAP services while not meeting SAP qualifications required by this part or performing evaluations without face-to-face interviews”.
With this clarification, ODAPC will not take enforcement action against a SAP who conducts an assessment remotely.
What should I be thinking about now that we have this new guidance?
Here are several issues that a SAP should consider.
  • Payment If you are using remote technology, and you normally require payment upfront, how will you collect that payment?  Will you require to have the money-in-hand before you start the assessment?  (If you don’t, you might never see it.  But the employee can’t start over with another SAP).  Credit cards continue to be a risk.  When the employee is dissatisfied with your recommendation, it’s very easy for that employee to call the credit card company and have the charge removed, and it will be very difficult for you to explain this regulation to Visa or Citibank.  How and when will the payment transaction occur?  Keep in mind that 40.355(n) prohibits you from delaying the process when there is a payment dispute.  The employee might owe you money, but you still must submit your SAP reports; you can’t withhold them.
  • Is the FMCSA driver registered on the Clearinghouse?  Many SAPs have been helping a driver get registered on the Clearinghouse, while the driver is in the SAP’s office.  That won’t be possible during a remote session.  How will you instruct the driver to designate you as the SAP?  If the driver hasn’t registered himself on the Clearinghouse, he can’t designate you as his SAP, which means you won’t be able to enter required information on his record in the Clearinghouse.  An employer cannot register a driver on the Clearinghouse.  A driver must register himself.  Registering on the Clearinghouse and designating you as the SAP really should be completed before your first session.  If you haven’t looked at “Designate a Substance Abuse Professional” on FMCSA’s website, you should do that today.
  • Statement of Understanding Think about how you will provide paperwork to the employee, such as your Statement of Understanding, your terms, expectations, requirements.  Fortunately, you don’t have to worry about a release or a HIPAA form, since you aren’t permitted to use them.
  • Identification.  How do you know that the employee is really who they say they are?  In a normal office setting, an employee is asked to show ID.  Will you ask the employee to scan and e-mail a copy of their driver’s license, or other photo ID before your first meeting?
  • Documentation of the violation SAPs often require copies of an employee’s CCF or ATF.  You may need an MRO’s phone number, or the BAT’s or collector’s phone number.  It may be difficult to obtain that information during this time, especially if an employer is in shutdown.  And then…How can you be certain that the employee is being truthful about the violation?  (Last month a SAP assessed an employee who claimed to have had a positive alcohol test, only to discover later, that the employee had actually tested positive for opioids and cocaine.)
  • Collateral When you seek information from a spouse, partner, friend, you would normally obtain a release from the employee.  How will you do that in a remote setting?
  • Assessment instruments.  Since you must make clinical determinations, you need to utilize assessment instruments.  You may want to find instruments that can be used in an interview format.  If you were to be audited, an auditor would still expect to find instruments in your file.  When conducting the follow-up evaluation, which is also clinical, many SAPs use the JAVAA (Job and Vocational Attitude Assessment) Q (Questionnaire).  For that instrument, it would be easy to switch to the I (Interview) format for a remote evaluation.
ODAPC’s statement also asks SAPs to consider the following:
  1. Whatever format you use, it should allow easy two-way communication between you and the employee.
  2. ODAPC still expects you to “gather all the visual and audible information that you would normally observe in an in-person face-to-face interaction.”  I frankly don’t know how that’s possible, but it’s in the statement.  (I don’t know how you can be certain that the glass the employee is sipping from on your Skype screen holds water, and not vodka).
  3. Be aware of what your State-issued license allows you to do, and whether that licensure permits remote assessments.  ODAPC reminds you that you are still under the aegis of that licensure.

ODAPC's Continuing Education Requirement

ODAPC’s statement also indicates that they will not take enforcement action if your SAP qualification expires during this time, and you haven’t been able to obtain the 12 continuing education hours required by 49 CFR Part 40.281(d).  However, with the variety of online education that is available to SAPs, and the fact that many of you are under a shelter-in-place mandate, these weeks seem like the ideal time to obtain those hours.  Your expiration date won’t change if you obtain your 12 hours ahead of time.  The 3-year timeframes remain.  If you do miss your expiration date, it means that you’ll need 24 hours in the next 3-year timeframe.  ODAPC isn’t excusing the continuing education requirement.

Your Time to Be Creative

This health crisis poses challenges, risks, and opportunities.  This is an unusual time for all of us.  The “new normal” changes almost daily.  At no time in my life have I heard the word “unprecedented” uttered so frequently.  And in the midst of this chaos, SAPs try to find ways to accommodate needs of employees who would like to get back to work.
I have appreciated hearing about how some of you have managed to comply with Part 40 and the "SAP Guidelines", while also observing your State and local mandates about sheltering-in-place. 
Last week a SAP told me his solution:  The SAP and the client met in an empty parking lot.  They parked alongside of each other, driver door next to driver door, almost touching.  They could see each other through their closed windows, while they talked on their cell phones.  Paperwork, SAP fees, other handouts were passed through the car windows.  (Don’t forget your clipboard, have a clean window, don’t park in the hot sun, turn on your speaker phone, have your phone battery fully-charged, and go for it!).  That SAP gets an A for ingenuity!

Sorry This Email is So Long

I apologize for such a long e-mail.  But I felt it was important to explain the nuances of ODAPC’s statement.  While this is a much-needed accommodation, it does force you to think about various new implications for your SAP practice.

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Until next time,

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Lee Mauk  | and SAPlist U
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