By Patrice Kelly, Senior Policy Executive Adviser, NDASA, (on detail from the US Department of Transportation)
The United States Department of Transportation (DOT) regulation, 49 CFR Part 40 (Part 40), and most collector training courses are written to address what normally should happen during a collection. Commonly occurring complications and/or problem collections are included in DOT’s Part 40, Office of Drug and Alcohol Policy and Compliance (ODAPC) guidance, and collector trainings. However, in more than 30 years of advising collectors and collection site supervisors, I always have been amazed that “new” factual scenarios keep coming up – just when I think I already have seen it all!
If something unusual happens at the collection site and you cannot find a way to address it in Part 40, ODAPC guidance, or your collector training materials, you are likely to feel a panic setting in and a need for guidance. Take a deep breath and think about the details of what is happening. The answer may be close!
Donor Issues
If the problem is with the donor’s behavior, gently remind the donor that you are simply doing your job, and they are doing an important part of their transportation safety job. Remind them that you and they are carrying out the employer’s instructions. If that does not work, call the Designated Employer Representative (DER), or contact the Consortium/ Third Party Administrator (C/TPA) to have them contact the DER for you. It is possible the DER can reason with the donor. It is not required, but it is fair warning for you to let the donor know their conduct is reaching the level of a refusal under 49 CFR section 40.191(a)(8) – to “fail to cooperate with any part of the testing process” and that includes when a donor chooses to “behave in a confrontational way that disrupts the collection process.” Think about including a “Refusals Poster” from ODAPC on the wall of your clinic, so you can point out the consequences of a refusal.
Unusual Circumstances
Sometimes the problem is not because of the donor. A fire alarm goes off at the collection site, and everyone must evacuate. A serious medical event affects someone at the collection site, and people need to be moved. All of your remaining oral fluid devices are expired. There are many things that can affect the collection process outside the norms of what should happen. You – and your actions – may make the difference between whether such problems at the collection site result in a test being canceled by the Medical Review Officer (MRO) or a valid result being obtained.
So, what should you do when dealing with a unique situation? You should solve the problem with knowledge, experience and the “spirit” of Part 40!
Judgment, Knowledge and Experience
If you cannot find the answer anywhere, you have plenty to fall back on to come up with a solution. Be very familiar with Part 40 and ODAPC’s guidance materials so you can craft a solution based on your knowledge and your experience. If you regularly attend NDASA Town Hall meetings to build your knowledge about how to handle unique situations, you may remember someone who had a similar situation in the past – and what the best-recommended solution was.
Use your best judgment, coupled with the “spirit” of Part 40. What would Part 40 see as the fair outcome of the situation? Is your solution consistent with how you have handled previous, unique situations? Are you being consistent with the security and integrity of the Part 40 process? Never forget that all tests must be fair and accurate. Don’t lose sight of the fact that the donor has rights and is entitled to dignity and respect.
Remember that DOT drug and alcohol testing has been upheld as a constitutionally valid search and seizure without a warrant under the Fourth Amendment of the U.S. Constitution. Therefore, do not craft a solution outside the spirit and scope of Part 40. If you do, you may be sued for acting outside your authority under Part 40. Part 40 protects you!
Phone a Friend
There are also the “phone a friend” options: (1) If possible, consult with your supervisor, who may have seen a similar situation or can assess objectively the solution you want to apply. (2) Check with the DER, if possible. (3) Contact a trusted colleague, mentor, or NDASA member you value to seek a solution.
As you know, the collector’s job is to collect a compliant specimen. Make every attempt to do so, and document why you could not collect one and/or what went wrong during the collection process.
One final thought: Document. Document. Document. As I always say in my public presentations, when something unusual happens, it is best to mention it briefly in the Remarks section of the Federal Drug Testing Custody and Control Form (CCF). After noting it on the CCF, be sure to write a detailed memorandum of what happened. You can send it to the MRO with CCF Copy 4 or send it to the MRO later. If there is no mention of an irregularity during the collection process in the Remarks section of the CCF, the MRO cannot consider your memorandum. Without writing that memorandum as soon as possible, you will forget the details of what happened.
A smart and knowledgeable professional collector is the best line of defense against cheating and can be the strongest link between DOT collections and safety. Thank you for all you do!