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Important Update on Federal and Department of Transportation Drug Testing Programs

The “Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act” or the “Support for Patients and Communities Act”  was signed into law on October 24, 2018

Federal Bill H. R. 6. the “Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act” or the “Support for Patients and Communities Act”   was signed into law on Wednesday October the 24th  2018 by President Trump.

Of greatest import is Title VIII Miscellaneous Section I Fighting Opioid Abuse in Transportation.

Highlights:

  • A rule must be published in the Code of Federal Register not later than two years requiring alcohol and controlled substance testing of employees of railroad carriers who perform mechanical activities;
  • A public Department of Transportation database of Department of Transportation Drug and Alcohol Testing will be required and a GAO Report will be required thereafter within established timeframes.
  • Consideration whether to include fentanyl and other substances as part of the Mandatory Guidelines for Workplace Drug Testing Programs drug testing panel is required within 180 days of enactment of the Act.
  • Status report on Hair Testing required within 60 days of enactment of the Act is required.
  • Not later than December 31, 2018, the Secretary of Health and Human Services shall publish in the Federal Register a final notice of the Mandatory Guidelines for Federal

Workplace Drug Testing Programs using Oral Fluid, based on the notice of proposed mandatory guidelines published in the Federal Register on May 15, 2015 (94 FR 28054).

  • Electronic recordkeeping including paperless system approval timing and the use of electronic signatures addressed.
  • Status report on the Commercial Driver’s License Drug and Alcohol Clearinghouse mandated within 60 days of the enactment of the Act.

As follows and at https://www.govtrack.us/congress/bills/115/hr6 bill information

https://www.govinfo.gov/content/pkg/BILLS-115hr6enr/pdf/BILLS-115hr6enr.pdf of bill

 

Subtitle I—Fighting Opioid Abuse in

Transportation

SEC. 8101. SHORT TITLE.

This subtitle may be cited as the ‘‘Fighting Opioid Abuse in

Transportation Act’’.

SEC. 8102. ALCOHOL AND CONTROLLED SUBSTANCE TESTING OF

MECHANICAL EMPLOYEES.

(a) IN GENERAL.—Not later than 2 years after the date of enactment of this Act, the Secretary of Transportation shall publish a rule in the Federal Register revising the regulations promulgated under section 20140 of title 49, United States Code, to cover all employees of railroad carriers who perform mechanical activities.

(b) DEFINITION OF MECHANICAL ACTIVITIES.—For the purposes of the rule under subsection (a), the Secretary shall define the term ‘‘mechanical activities’’ by regulation.

SEC. 8103. DEPARTMENT OF TRANSPORTATION PUBLIC DRUG AND

ALCOHOL TESTING DATABASE.

(a) IN GENERAL.—Subject to subsection (c), the Secretary of Transportation shall—

(1) not later than March 31, 2019, establish and make publicly available on its website a database of the drug and alcohol testing data reported by employers for each mode of transportation; and

(2) update the database annually.

(b) CONTENTS.—The database under subsection (a) shall include, for each mode of transportation—

(1) the total number of drug and alcohol tests by type of substance tested;

(2) the drug and alcohol test results by type of substance tested;

(3) the reason for the drug or alcohol test, such as preemployment, random, post-accident, reasonable suspicion or cause, return-to-duty, or follow-up, by type of substance tested; and

(4) the number of individuals who refused testing.

(c) COMMERCIALLY SENSITIVE DATA.—The Department of Transportation shall not release any commercially sensitive data or personally identifiable data furnished by an employer under this section unless the data is aggregated or otherwise in a form that does not identify the employer providing the data.

(d) SAVINGS CLAUSE.—Nothing in this section may be construed as limiting or otherwise affecting the requirements of the Secretary of Transportation to adhere to requirements applicable to confidential business information and sensitive security information, consistent with applicable law.

SEC. 8104. GAO REPORT ON DEPARTMENT OF TRANSPORTATION’S COLLECTION AND USE OF DRUG AND ALCOHOL TESTING DATA.

(a) IN GENERAL.—Not later than 2 years after the date the Department of Transportation public drug and alcohol testing database is established under section 8103, the Comptroller General of the United States shall—

(1) review the Department of Transportation Drug and Alcohol Testing Management Information System; and

(2) submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report on the review, including recommendations under subsection

(c).

(b) CONTENTS.—The report under subsection (a) shall include

(1) a description of the process the Department of Transportation uses to collect and record drug and alcohol testing data submitted by employers for each mode of transportation;

(2) an assessment of whether and, if so, how the Department of Transportation uses the data described in paragraph

(1) in carrying out its responsibilities; and

(3) an assessment of the Department of Transportation public drug and alcohol testing database under section 8103.

(c) RECOMMENDATIONS.—The report under subsection (a) may include recommendations regarding—

(1) how the Department of Transportation can best use the data described in subsection (b)(1);

(2) any improvements that could be made to the process described in subsection (b)(1);

(3) whether and, if so, how the Department of Transportation public drug and alcohol testing database under section 8103 could be made more effective; and

(4) such other recommendations as the Comptroller General considers appropriate.

SEC. 8105. TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAM; ADDITION OF FENTANYL AND OTHER SUBSTANCES.

(a) MANDATORY GUIDELINES FOR FEDERAL WORKPLACE DRUG TESTING PROGRAMS.—

(1) IN GENERAL.—Not later than 180 days after the date of enactment of this Act, the Secretary of Health and Human Services shall—

(A) determine whether a revision of the Mandatory Guidelines for Federal Workplace Drug Testing Programs to expand the opiate category on the list of authorized substance testing to include fentanyl is justified, based on the reliability and cost-effectiveness of available testing; and

(B) consider whether to include with the determination under subparagraph (A) a separate determination on whether a revision of the Mandatory Guidelines for Federal Workplace Drug Testing Programs to expand the list of substances authorized for testing to include any other drugs or other substances listed in schedule I and II of section 202 of the Controlled Substances Act (21 U.S.C. 812) is justified based on the criteria described in subparagraph

(A).

(2) REVISION OF GUIDELINES.—If an expansion of the substance list is determined to be justified under paragraph (1), the Secretary of Health and Human Services shall—

(A) notify the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives of the determination; and

(B) publish in the Federal Register, not later than 18 months after the date of the determination under that paragraph, a final notice of the revision of the Mandatory Guidelines for Federal Workplace Drug Testing Programs to expand the list of substances authorized to be tested to include the substance or substances determined to be justified for inclusion

(3) REPORT.—If an expansion of the substance list is determined not to be justified under paragraph (1), the Secretary of Health and Human Services shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report explaining, in detail, the reasons the expansion of the list of authorized substances is not justified.

(b) DEPARTMENT OF TRANSPORTATION DRUGTESTING PANEL.— If an expansion is determined to be justified under subsection

(a)(1), the Secretary of Transportation shall publish in the Federal Register, not later than 18 months after the date the final notice is published under subsection (a)(2), a final rule revising part 40 of title 49, Code of Federal Regulations, to include such substances in the Department of Transportation’s drug-testing panel, consistent with the Mandatory Guidelines for Federal Workplace Drug Testing Programs as revised by the Secretary of Health and Human Services under subsection (a).

(c) SAVINGS PROVISION.—Nothing in this section may be construed as—

(1) delaying the publication of the notices described in sections 8106 and 8107 of this Act until the Secretary of Health and Human Services makes a determination or publishes a notice under this section; or

(2) limiting or otherwise affecting any authority of the Secretary of Health and Human Services or the Secretary of Transportation to expand the list of authorized substance testing to include an additional substance.

SEC. 8106. STATUS REPORTS ON HAIR TESTING GUIDELINES.

(a) IN GENERAL.—Not later than 60 days after the date of enactment of this Act, and annually thereafter until the date that the Secretary of Health and Human Services publishes in the Federal Register a final notice of scientific and technical guidelines for hair testing in accordance with section 5402(b) of the Fixing America’s Surface Transportation Act (Public Law 114-94; 129 Stat. 1312), the Secretary of Health and Human Services shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report on— 

(1) the status of the hair testing guidelines; 

(2) an explanation for why the hair testing guidelines have not been issued; and

(3) an estimated date of completion of the hair testing guidelines.

(b) REQUIREMENT.—To the extent practicable and consistent with the objective of the hair testing described in subsection (a) to detect illegal or unauthorized use of substances by the individual being tested, the final notice of scientific and technical guidelines under that subsection, as determined by the Secretary of Health and Human Services, shall eliminate the risk of positive test results, of the individual being tested, caused solely by the drug use of others and not caused by the drug use of the individual being tested.

SEC. 8107. MANDATORY GUIDELINES FOR FEDERAL WORKPLACE DRUG TESTING PROGRAMS USING ORAL FLUID.

(a) DEADLINE.—Not later than December 31, 2018, the Secretary of Health and Human Services shall publish in the Federal Register a final notice of the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid, based on the notice of proposed mandatory guidelines published in the Federal Register on May 15, 2015 (94 FR 28054).

(b) REQUIREMENT.—To the extent practicable and consistent with the objective of the testing described in subsection (a) to detect illegal or unauthorized use of substances by the individual being tested, the final notice of scientific and technical guidelines under that subsection, as determined by the Secretary of Health and Human Services, shall eliminate the risk of positive test results, of the individual being tested, caused solely by the drug use of others and not caused by the drug use of the individual being tested.

(c) RULE OF CONSTRUCTION.—Nothing in this section may be construed as requiring the Secretary of Health and Human Services to reissue a notice of proposed mandatory guidelines to carry out subsection (a).

SEC. 8108. ELECTRONIC RECORDKEEPING.

(a) DEADLINE.—Not later than 1 year after the date of enactment of this Act, the Secretary of Health and Human Services shall—

(1) ensure that each certified laboratory that requests approval for the use of completely paperless electronic Federal Drug Testing Custody and Control Forms from the National Laboratory Certification Program’s Electronic Custody and Control Form systems receives approval for those completely paperless electronic forms instead of forms that include any combination of electronic traditional handwritten signatures executed on paper forms; and

(2) establish a deadline for a certified laboratory to request approval under paragraph (1).

(b) SAVINGS CLAUSE.—Nothing in this section may be construed as limiting or otherwise affecting any authority of the Secretary of Health and Human Services to grant approval to a certified laboratory for use of completely paperless electronic Federal Drug Testing Custody and Control Forms, including to grant approval outside of the process under subsection (a).

(c) ELECTRONIC SIGNATURES.—Not later than 18 months after the date of the deadline under subsection (a)(2), the Secretary of Transportation shall issue a final rule revising part 40 of title 49, Code of Federal Regulations, to authorize, to the extent practicable, the use of electronic signatures or digital signatures executed to electronic forms instead of traditional handwritten signatures executed on paper forms.

SEC. 8109. STATUS REPORTS ON COMMERCIAL DRIVER’S LICENSE DRUG AND ALCOHOL CLEARINGHOUSE.

(a) IN GENERAL.—Not later than 60 days after the date of enactment of this Act, and annually thereafter until the compliance date, the Administrator of the Federal Motor Carrier Safety Administration shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a status report on implementation of the final rule for the Commercial Driver’s License Drug and Alcohol Clearinghouse (81 FR 87686), including—

(1) an updated schedule, including benchmarks, for implementing the final rule as soon as practicable, but not later than the compliance date; and

(2) a description of each action the Federal Motor Carrier Safety Administration is taking to implement the final rule before the compliance date.

(b) DEFINITION OF COMPLIANCE DATE.—In this section, the term ‘‘compliance date’’ means the earlier of—

(1) January 6, 2020; or

(2) the date that the national clearinghouse required under section 31306a of title 49, United States Code, is operational.

 

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