In this presentation, we're going to talk about the Department of Transportation regulation regarding the return to duty process for employees who have had a positive test or refusal to test and want to be qualified to work again in a DOT covered position. So we'll cover the essence of the return to duty process, which is evaluations that are done by a substance abuse professional. We'll then talk about the link for return to duty and follow-up testing that is a part of the return to duty process. And lastly, just as for your reference, all of this information and the procedures and the requirements about the return to duty process are found in the regulation 49 CFR part 40 in subpart O. So let's take a look first at this person, if you will, or this role called the substance abuse professional. The acronym that is used is a SAP. And so here's the definition that the Department of Transportation puts forth in part 40. It's a person who evaluates employees who have violated the DOT drug and alcohol regulations and makes a recommendation concerning what kind of education, treatment, intervention, assistance, whatever you want to call it, rehabilitation is necessary for that individual. Also makes a recommendation at the end of the process for follow-up testing and makes any recommendations if the person needs continued clinical care in an aftercare program following their successful completion and participation in treatment or rehab. The function of the substance abuse professional is like many other of the service agents associated with the Department of Transportation drug testing. And that is that the SAP has a function that is to protect public interest and safety by ensuring that people who have engaged in prohibited drug and alcohol conduct are not returned to their safety-sensitive occupation or positions until they have, in fact, been satisfactorily rehabilitated and can be monitored to ensure that they remain abstinent from prohibited drugs and alcohol. So who is a SAP? And here we have a laundry list, unlike with the medical review officer where a medical review officer has to be either a licensed doctor of osteopathy or a licensed medical doctor. Here, the SAP can be from a variety of what I would call mental health or medical occupations or professions. So can be a physician, just like an MRO can be a physician. Can be a licensed or certified social worker, psychologist, employee assistance professional, a licensed or certified marriage or family therapist, or a licensed or certified drug and alcohol addiction counselor. And that is one that has been certified by the state through the National Association of Alcohol and Drug Abuse Counselors or through the International Consortium for Rehabilitation Counselors. So they have to have an acceptable state credential as a drug and alcohol addiction counselor. Thanks. So the basic knowledge and experience that a substance abuse professional needs to have in addition to the professional qualifications that we went over on the previous slide, they have to have a knowledge of diagnosis and treatment of drug and alcohol-related disorders. They need to understand the SAP functions, particularly as they relate to the employer's interest in safety-sensitive duties. They obviously have to have an understanding and a basic familiarity with 49 CFR Part 40, the drug and alcohol testing procedures, and specifically Subpart O, which is the detail about the return to duty process. They need some familiarity with the DOT agency regulations so that they know that when they are dealing with a commercial driver, there may be specific things with regard to that commercial driver returning to driver duties that are different than, for example, a mariner who falls under U.S. Coast Guard requirements. There is also a substance abuse professional guidelines document that the DOT has published, and that is available on the Department of Transportation's website, the ODAPC website. And obviously, substance abuse professionals, like medical review officers, must subscribe to the ODAPC listserv so that they would get notifications by email when there are any changes to the regulation that would impact how a substance abuse professional conducts their functions and tasks related to the return to duty process. So the substance abuse professional, remember, has to be then a licensed physician or a certified social worker, a licensed psychologist, et cetera. And then they must also complete a specific qualification training course, a SAP course, similar to you all who are taking an MRO course of study about the MRO duties and responsibilities. And that SAP qualification training has to include background and DOT program information, Part 40 and the agency rules, key testing issues in terms of what drugs are tested for, how those are reported to the medical review officer. The training also has to cover prohibitions on the SAP in terms of what they can and cannot do relative to their evaluation and their ultimate determination, what their responsibilities are in terms of reports and making recommendations. And then lastly, of course, specifically what their reports must contain and what records they must keep that document or support those records. At the conclusion of a substance abuse professional course of study, the substance abuse professional, in order to meet DOT qualifications, has to take an examination. It is a written examination. The exam has to have been developed by a nationally recognized professional training organization. And the exam itself and the content, et cetera, has to be submitted to ODAPC, to the Office of Drug and Alcohol Policy and Compliance, to ensure that it does cover the major components of substance abuse knowledge that's mandated by the rule. The SAP certification is neither required nor provided by DOT, meaning that there is a certification per se, a certification program with any given organization. It simply says that they must complete an examination. It's kind of a semantic difference between certification and an examination completion. In addition to completing, obviously, the training course and passing an examination, the substance abuse professional has to participate in at least 12 continuing education units every three years after successfully completing the SAP examination. Those continuing education units have to focus on areas such as new technologies in drug and alcohol testing, any new interpretations of the rule, et cetera, that ODAPC or the DOT has promulgated, any recent guidance rule changes, and any developments, if you will, in substance abuse professional practice and standards of service. The continuing education units that the substance abuse professional uses in order to meet this qualification have to include some kind of documentable assessment of knowledge, whether that's a self-assessment tool that is a part of the continuing education unit, both before and after completing the specific course of study. The SAPs have to maintain their training and exam documentation and provide it upon request to a DOT agency in case of an audit, for example, to employers or service agents who use or contemplate using their services. Let me back up just a minute to that last point that in 2020, as I mentioned in an earlier presentation with you, the Federal Motor Carrier Safety Administration put in a national clearinghouse for the reporting of drug and alcohol violations by commercial drivers. A large part of that was also that this database would be the repository of the return to duty process. That means that now, beginning in 2020, substance abuse professionals who are going to be doing evaluations and final determinations of eligibility for a driver to return to work, as well as return to duty and eligibility for return to duty tests and follow-up testing, that substance abuse professional, like the medical review officer, has to register in the clearinghouse. Part of registering in the clearinghouse is that they will have to provide or attest to that they meet the qualification training requirements and have the necessary CEUs to remain qualified as a substance abuse professional for conducting the return to duty process for DOT-covered employees. What are the SAPS responsibilities? One of the things that is very different about the SAPS process, if you will, versus the medical review officer's process in reviewing and interpreting and reporting drug test results is, as I mentioned, the MRO interview, it does involve an interview, but it can be wholly by telephone. It doesn't require any face-to-face clinical assessment or evaluation of the donor, of the employee or applicant. That is not true for the substance abuse professional's role. There, the evaluation, the assessment that the substance abuse professional must do with the employee or applicant who has had a positive test or refusal to test or other violation of the DOT drug and alcohol rules does have to conduct a face-to-face in-person session or interview. They do the clinical assessment and evaluations, an initial evaluation. They then make a referral to the appropriate program for assistance or intervention to deal with the individual's substance abuse problem or substance abuse disorder. That may be an education and awareness program. It may be outpatient counseling. It may be partial hospitalization. It may be a detox program. It may be a variety of things on the continuum of intervention services for substance abuse problems. Once the person has been referred and has begun participating in a program of, quote, rehabilitation, then the substance abuse professional's next task, if you will, is to conduct a face-to-face evaluation called a follow-up evaluation. This is the evaluation that is done once the person has participated in the recommended rehabilitation. At that follow-up evaluation, the substance abuse professional has essentially two things that they have to do. One is they make recommendations for that employee if they need further treatment of any kind, aftercare, continuing treatment, continuing education or awareness. They then also must make a specific recommendation with regard to a follow-up testing plan. I'll talk more about the specifics of that in just a moment. The substance abuse professional, by the way, reports the results of their evaluations, both the initial and the follow-up evaluation, directly to the employer. It does not report it to the medical review officer. It does not report it to the third-party administrator, but rather directly to the employer. Let's take a look at SAP's initial evaluation. At the end of this interview, remember this face-to-face interview, the substance abuse professional has to make a recommendation of what kind of assistance or rehabilitation is appropriate for this individual. As I said before, that can be education awareness. It may be inpatient. It may be detox. It can be a combination of rehabilitation or assistance services. The SAP is prohibited by the regulation from considering any claims that the test result or the violation is incorrect. They cannot have the employee say to them, well, I never should have been selected for that random test, or that post-accident test didn't meet the criteria under DOT, or the MRO called my test positive even though I was using legal hemp oil or CBD or medical marijuana, or that I was positive for opiates, but the medical review officer did not accept my explanation for eating a lot of poppy seeds, or job stress is what really contributed to me refusing to take this test. It had nothing to do with me having a substance abuse problem. So they cannot, in other words, overturn or consider any of those things in terms of an attempt to invalidate the fact that this individual does have a violation of a DOT agency regulation. The SAP may consult with the medical review officer, and this is where you kind of come in. The SAP can contact you and say, I know I'm evaluating this person who is positive for marijuana. They say they didn't use marijuana. They only use CBD oil or hemp. Can you tell me what the quantitative level was, and was it only THC or THCA? You are permitted, and you in fact should tell them the quantitative level. I find that most SAPs have no idea what the quantitative level means or what impact it has. In fact, it should have no impact on their assessment, and so what generally an astute MRO is going to do is going to say, yes, the test was positive for THC at 30 nanograms. And then the SAP is likely to come back and say, well, I thought the cutoff was 50. Well, no, the cutoff is 50 for the immunoassay screening test, but it's 15. So does that mean they used a lot of marijuana? Does that mean that they used it right while they were at work? And your response to that is like it would be to anyone, to the employer or anybody else, is that all that tells you is that they had marijuana in their urine specimen above the cutoff level. It says nothing about impairment. It says nothing about intoxication. It's not dose related. And I kind of try to somewhat gently convey to the SAP that the quantitation, the amount of drug found in a urine specimen should not really impact their determination of what type of rehabilitation or assessment decision that they are going to make. What else about this initial evaluation? Well, here's a list of some of the appropriate treatment, some of the appropriate rehabilitation. No surprises here. And this is entirely up to the substance abuse professional based on the interview that they've had with the individual in terms of what they are recommending. It is then the responsibility of the individual, the employee or the applicant to follow through with getting the kind of rehabilitation that the SAP has recommended. So generally speaking, the SAP will identify resources that are available for the type of assistance that he or she's recommending in the geographic area where the employee is located. By the way, the employer is not responsible for paying for this assistance or rehabilitation, nor is the substance abuse professional involved in the billing or the providing of rehabilitation services. What else do we know about this initial evaluation? Well, at the end of the evaluation and where the SAP is recommending that the person, for example, participate in outpatient treatment, a group session once a week for a minimum of six weeks, and the individual says, that's entirely too much. I can't spare six weeks off of work. I need to get back to work next week. I need a different plan for intervention or for rehab. And so I'm going to get another SAP evaluation. That is not permitted under the rule. The substance abuse professional will file their report with the employer, with the clearinghouse in the case of a driver, stating what they have recommended in order for the person to be eligible to return to duty. Now, the SAP may end up modifying his or her recommendations. Let's say that as a substance abuse professional, I recommend that this person have group therapy once a week for six weeks. And I identify a place where that can take place. And then either the intake worker at that facility or the therapist or the counselor contacts me and says, listen, this person has a much more severe problem than we can deal with on an outpatient group setting. This person really does need detox and at least a short period of inpatient treatment before they could benefit from outpatient services. In which case, then, based on that feedback by the treatment provider or by the intake worker for the treatment provider, the SAP can modify his or her recommendations to more appropriately deal with the severity or the issues of the person's substance abuse problem. So the SAP referral we talked about, recommendation for assistance, serves as a source for the employee's entry into the appropriate education or treatment program. There are a few prohibitions about that referral. So for example, as a substance abuse professional, I cannot do an evaluation on a person. And then say, I think you should come and see me as a licensed psychologist two days a week for individual therapy. So I can't refer to my own private practice as a substance abuse professional. I can't refer, if I worked for an agency, let's say Substance Abuse Treatment, Inc., I cannot refer anybody to that agency where I have a financial relationship. I cannot refer to a person or organization that has, in which I have some type of an interest, even though I am not on the payroll, perhaps I have shares of that facility or that service, et cetera. There are some exceptions to this in terms of SAP referring to their own practice or to a treatment entity in which they have some kind of financial obligations or financial relationship. And those exceptions are that if I work for a public agency, such as the Hillsborough County Mental Health Association, and I'm doing the substance abuse professional evaluation, and I believe that what is most appropriate is for this person to attend some drug abuse awareness sessions that the mental health clinic offers, I can make that referral to the public agency that I work for as a SAP. I can, another exception is that if, let's say that I'm working for a company in their employee assistance program, and I do the SAP evaluation of one of the employees, and I, again, believe that the most appropriate thing is for them to get short-term assistance through the company's EAP. That's also okay because that is services provided as an employee benefit by the employer or by contract that the employer offers to its employees. Another one is that if the health insurance only provides for treatment to agencies that, of which the substance abuse professional is a part, then that's allowed. And lastly, if the substance abuse professional's agency or entity or their private practice is the sole provider reasonably accessible for the services needed in the geographic area where the person is located. All right, now, so that's the initial evaluation. So the referral is made. The SAP coordinates that referral. The person goes off to do the outpatient sessions or the education and awareness sessions, et cetera. And then once they have completed the number of sessions or the period of time that the SAP has made that referral for in terms of the rehabilitation, then the substance abuse professional, at the end of that six weeks period or at the end of six sessions or whatever it is, coordinates with, confers with the treatment or the rehab provider. Did the person show up for all the sessions? Did they participate? Does the provider believe there's a need for more services before they would be eligible to return to work, et cetera? And so based on that input, the SAP then makes a determination of successful compliance with the return to work rehabilitation requirement or that they were not successful. They only attended half of the sessions or they went to all six sessions but never, ever said a word. They didn't participate to demonstrate any successful compliance with the rehabilitation goals and objectives. So the follow-up evaluation by the SAP then forms one basis for the employer decision to return the employee to duty. They have to conduct this follow-up interview as a face-to-face clinical interview, and they do have to make a clinical determination regarding successful compliance. In other words, that they were successful in the rehabilitation process as outlined in the SAP's initial evaluation referral. So as I mentioned, this follow-up evaluation essentially has one of two outcomes. It's just like with a drug test result. You're going to, as an MRO, call it a negative or you're going to call it a positive, for example, or maybe alternately you'll call it a refusal to test or cancel test. Well, here the SAP only has essentially two options for their follow-up evaluation. One is that the employee has demonstrated successful compliance, and the second one is that the employee has not demonstrated successful compliance. If the latter is true, that employee is not eligible to return to safety-sensitive duty, the SAP can conduct an additional follow-up evaluation if the employer authorizes that once the individual continues to attempt to be successful with compliance with the recommended rehabilitation or assistance. The employer, based on the regulation and in most cases employment law in the state, can at this point say, no, you were not successful with and not compliant with the recommendation for treatment and rehabilitation, and therefore we are going to take personnel action to terminate your services or that you cannot return to duty at this company. So if the employee then at the juncture, if you will, of this follow-up evaluation, if the employee needs ongoing services, clinical services, after returning to work, the SAP needs to put that in their follow-up evaluation report. Now this may be kind of important, not necessarily as a negative for the employee, but as a benefit to the employee. So for example, if the SAP is recommending that they should definitely be able to participate in a 12-step group or something like that on a regular basis every week, maybe two or three times a week, that can serve as a notice for the employer that they have to attempt to accommodate the individual being able to get that aftercare through scheduling, etc. And so it does, it can, in fact, benefit the employee. The employer then, of course, may use any recommendation for aftercare as a part of a return-to-work agreement in terms of saying that, you know, we are going to agree to support you in aftercare services by giving you, you know, time off to attend a session once a week or time off to do this. And at the same time that your last chance or your return-to-work agreement is contingent upon you continuing in the aftercare services that the substance abuse professional has indicated in their follow-up evaluation. Okay, so follow-up evaluation, determination of, yes, the person was successful. Let's use that as the example here. And then the next thing that the SAP has to have as a part of their follow-up evaluation report is, what is the follow-up testing plan? And it is the SAP that decides this, not the person who did the treatment at the outpatient facility or at the residential facility, but the substance abuse professional. So the SAP then is going to determine the number of follow-up tests once the person comes back to work and the frequency of those tests. The DOT regulation places a minimum for the SAP. So it says that the SAP must recommend a minimum of six follow-up tests after the person returns to duty. And the minimum duration, if you will, of the follow-up testing is the first 12 months after return to duty. Now, the SAP can obviously recommend many more than six follow-up tests, and they can recommend that the follow-up testing would be for at least 60 months, which is five years after the person completes rehabilitation and returns to their job. The SAP can terminate the requirement for follow-up testing after the first year of testing. So it's not uncommon to see a SAP report, a follow-up testing plan, say the person should have 12 tests during the first 12 months of return to duty and six tests in the next year after return to duty and four tests in the third year after return to duty. However, the person has all negatives on their first year of follow-up testing, and the SAP can, if the employer and or the employee ask the substance abuse professional, can you terminate the additional follow-up testing plan order? And the SAP can do that after the first year of testing. The requirements, by the way, for follow-up testing follow the employee. It's not an employer-based plan. So if I return to work, for example, for a company and I have follow-up testing for three years, 12 tests in the first month, year, excuse me, six in the next year, and four in the third year. I only stay at that company for 12 months, and then I'm offered a job or I take a job with another transportation company. I'm still working as a commercial driver, but instead of now not for XYZ trucking, but for ABC trucking, the follow-up tests that I have not yet completed under my plan follow with me to ABC. And so ABC trucking, when they hire me, again, all of this information is in the clearinghouse now. So they know that I had a requirement for three years of follow-up testing that was issued in January of 2020. And so they know then that I will have to have the rest of the follow-up tests done now that I'm working with ABC in years two and in years three. A few other points about the substance abuse professional and the return to duty process is that the SAP mentioned reports are provided directly to the employer. The rule does allow for the SAP to send a parallel copy to the TPA. If a company has said, look, our agent for everything having to do with our drug and alcohol testing program, including our return to duty program, is handled by such and such TPA. So then the SAP can, they must send the report to the DER, the designated employer representative of the company, but they can also at the same time send a copy, if you will, to the designated agent. The return to duty is an employer's decision. It's not the SAP's decision. So the SAP is really only saying to the employer, this employee has met the return to duty requirements laid out in part 40, and they are eligible to return to duty as a safety sensitive transportation position. What does the employer then have to do? The employer cannot go ahead and put them back to work until they have a negative return to duty test, and then that they have a follow-up testing plan in place. So those are the two things that are necessary once the substance abuse professional evaluation and reports are provided to the employer. So the SAP is not making a fitness for duty determination. They're really only making a determination of eligibility to return to duty in a DOT safety sensitive position. A little bit about the SAP reports. They do have to be, quote, written reports, meaning that they have to be a document. They can be transmitted, obviously, electronically by email as an attachment or that kind of thing, but they do have to be on letterhead of the substance abuse professional, and they have to provide the information that you have here. I can't just say to whom it may concern. So and so had Donna Smith from Tampa, Florida, had an assessment because she had a marijuana positive test, and she has completed all necessary requirements. End of story. No, it has to be more specific in terms of the things you see on the slide with regard to what was my specific violation, what was the date of that violation, what were the dates that I underwent the interview and assessment by the substance abuse professional, what specifically was the treatment and rehabilitation recommendation, and then a contact number so that the employer can get in touch with the SAP. So the follow-up evaluation for the employee who has demonstrated successful compliance has to contain the information that you see here, very similar to what was in the initial report, but in addition, there are three different other things, three additional things that have to be there. The name of the practice or the service that provided the recommendation, they recommended treatment or rehabilitation, the inclusive dates of the employee's participation, program participation. So Donna Smith participated in outpatient therapy at the Happy Farm Substance Abuse Treatment Center from January 1st through February 23rd, including six group sessions. And then there has to be a statement in there by the SAP that gives a clinical characterization of my program participation. I attended all sessions. I participated fully in the rehabilitation efforts in a group counseling setting. It doesn't have to have a DSM-5 diagnosis. It doesn't have to have anything specific about any poly drug information, the severity of a disorder or anything else. It's really a clinical characterization of the employee's program or rehabilitation participation. And so then, again, continuing on with this follow-up session for the compliant employee, that the employee has demonstrated successful compliance, gives the follow-up testing plan that we mentioned and talked about, and would state any continuing care needs with specific treatment aftercare and or support group service recommendations. So it might be that, in addition to what we just mentioned, that the report would say it is recommended that Donna Smith continue to participate in 12-step support groups. Now, for the non-compliant employee, kind of the same deal. Everything else is added, or everything that we've talked about is in there. The date of the first follow-up evaluation, if they did undergo two or more follow-up evaluations. And again, now, the SAP's clinical reason for determining that the employee has not demonstrated successful compliance. It's just the corollary of the compliant report, where the SAP is saying, how I have demonstrated successful compliance with the recommended rehabilitation. And here, it would be the corollary to that. It would be the corollary to that. The reason that the employee has not demonstrated successful compliance is that they failed to attend 20% or whatever of the recommended outpatient therapy sessions, or the employee did not participate fully or an acceptable level during the therapeutic sessions. OK, so that really is it for the return to duty and the substance abuse professional process for Department of Transportation drug and alcohol rights.

DOT regulations

Substance Abuse Professional

return to duty process

drug and alcohol testing

public safety

rehabilitation compliance

49 CFR part 40