Understanding Your Role in the New FMCSA Drug and Alcohol Clearinghouse

Michelle Hopkins

When the Federal Motor Carrier Safety Administration (FMCSA) flipped the switch on its new Drug and Alcohol Clearinghouse on January 6, 2020, questions remained among employers, consortia/third-party administrators (TPAs), medical review officers (MROs), and commercial motor vehicle (CMV) drivers about how the new online database would work. The Clearinghouse gives employers, the FMCSA, state driver licensing agencies (SDLAs), and State law enforcement personnel real-time information about any drug and alcohol program violations of commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders involved in FMCSA-regulated activities (see 49 CFR Part 382, Subpart B). A violation includes both: a positive drug or alcohol test result and refusal to test.

The Clearinghouse grew out of the FMCSA’s and transportation industry’s shared desire to reduce the industry’s non-fatal injury rates and fatalities. (Read “Trucking Employers Look to Drug and Alcohol Clearinghouse for Safety Improvement.”)

This article highlights the FMCSA’s answers to many of the ongoing questions from Clearinghouse participants:

Employers
Consortia/Third-party Administrators (TPAs)
Medical Review Officers
Substance Abuse Professionals
CMV drivers

If one of these categories describes you, once you register with the Clearinghouse, you may wonder when you will need to log in again. Three major reasons to log into the Clearinghouse are to:

Record information about a drug or alcohol violation by an FMCSA regulated commercial driver
Query the Clearinghouse for drug and alcohol program violation information
Confirm CMV driver’s consent to an employer’s request to view his or her Clearinghouse record

Let’s look at some common continuing questions. Answers are provided from the FMCSA’s Frequently Asked Questions page and related resources.

Employers: What is meant by actual knowledge of a violation?

Employers with FMCSA-regulated drivers are required to report:

An alcohol confirmation test with a concentration of 0.04 or higher.
Refusal to submit to an alcohol test, as specified in 49 CFR 40.261.
Refusal to submit to a drug test not requiring a determination by the MRO, as specified in 49 CFR 40.191.
Actual knowledge that a CMV driver has used alcohol on duty, within four hours of coming on duty, or prior to post-accident testing. Also, actual knowledge that a CMV driver has used a controlled substance. All are defined in 49 CFR 382.107.
Negative return-to-duty test results (drug or alcohol).
Completion of follow-up testing.

These requirements are straightforward but employers may pause at the phrase actual knowledge and wonder what that means. It applies not only to employers but also to the employer’s service agents, such as consortium/third-party administrators. They may also report actual knowledge of violations, as long as they comply with the reporting requirements in § 382.705(b)(4).

The FMCSA states that actual knowledge (§ 382.107) is based on the employer’s direct observation of the employee, information provided by the CMV driver’s previous employer(s), a traffic citation for driving a commercial motor vehicle while under the influence of alcohol or controlled substances, or an employee’s admission of alcohol or controlled substances use, except as provided in § 382.121.

Employers: Do I report violations outside FMCSA-regulated functions?

On occasions, a CMV driver may operate a commercial vehicle under Department of Transportation (DOT) regulations other than those of the FMCSA; for example, a CMV driver may agree to drive a municipal bus, an activity regulated by the Federal Transit Administration. The FMCSA clarifies that employers must not report drug tests of other DOT agencies – only those tests conducted when the CMV driver is performing in an FMCSA-relation function. The document used for ordering workplace drug tests, the Federal Drug Testing Custody and Control Form (CCF), specifies the DOT agency requesting the test. A positive test is reported to the Clearinghouse only when the FMCSA is the designated agency on the form.

Employers: What if I miss the timeframe for reporting a violation?

Employers are required to report any drug or alcohol program violations by the close of the third business day following the date on which the employer obtained the information. The employer may still report the violation if the required timeframe has passed; however, the reporting date is captured in the Clearinghouse and delays in reporting may be subject to agency investigation of the employer’s operations and compliance with FMCSA regulations.

Consortia/TPAs: What if information I report turns out to be false?

Independent owner-operators are required to designate a consortium/third-party administrator (C/TPA) to comply with Clearinghouse requirements. This includes conducting queries to determine if a prospective or current CMV driver has any drug or alcohol violations, as well as reporting drug and alcohol program violations to the Clearinghouse. Any employer or service agent that knowingly submits false information to the Clearinghouse may be subject to criminal and/or civil penalties.

The FMCSA removes information from a CMV driver’s Clearinghouse record if it is found to be false, whether it was posted by a consortium, TPA, or an employer.

Medical review officers: What is the timeframe for me to report a drug test?

A medical review officer (MRO) is a licensed physician who is responsible for reviewing laboratory results from an employer’s drug testing program. The MRO evaluates the results and any medical explanations for them. To comply with the Clearinghouse, a MRO has two business days after making a determination or verification of a DOT (regulated) drug test to report:

Verified positive, adulterated, or substituted controlled substance test results; or
Refusal to test

If a MRO makes any change in the test results, that must be reported to the Clearinghouse within one business day.

Medical review officers: What violation information do I report?

MROs must report:

Employer information, including company name and address and, if it applies, USDOT number
CMV driver information, including name, date of birth, commercial driver’s license number and state where it was issued
Test information, including reason for the test, date of test, date of verified result, and the specimen identification number listed on the Federal Drug Testing Custody and Control Form (CCF).

Medical review officers: Can I report a drug violation for a CMV driver not registered with the clearinghouse?

Yes. Whether or not a CMV driver has registered, the Clearinghouse associates the violation with the CMV driver’s CDL information and records the violation. When an employer queries the CMV driver’s information (after obtaining the CMV driver’s consent), the violation will be visible as part of the Clearinghouse record.

Substance abuse professionals: Why should I register with the FMCSA Clearinghouse?

Substance abuse professionals (SAPs) are knowledgeable licensed or certified professionals who not only diagnose and treat disorders related to controlled substances and alcohol, but also weigh in on DOT substance abuse testing and return-to-work processes (see §40.281 and 49CFR Subpart O)

A DOT-qualified SAP evaluates CMV drivers who have violated DOT drug and alcohol regulations and makes recommendations concerning education, treatment, follow-up testing, and aftercare. Once the education and/or treatment is successfully completed, the SAP reassesses the CMV driver’s condition and, if satisfied with the CMV driver’s compliance, completes a SAP report and prescribes a series of follow-up tests covering a period of one to five years. SAPs must be registered with the Clearinghouse before they can be designated by a CMV driver. If you are a SAP, DOT-produced resources may provide additional guidance on your Clearinghouse role.

CMV drivers: Can I access information about me in the Clearinghouse?

Yes. CMV drivers who register with the clearinghouse can electronically access their own information at no charge, including any drug and alcohol violations and return-to-work process and status. If a change is made in your information (additions, deletions or modifications), you will be notified by the Clearinghouse by the method you indicated at registration (mail or email). CMV drivers who have not registered with the Clearinghouse will receive this information via mail to the address associated with the CDL

Conclusion

There is much to learn about the Clearinghouse in its early days as employers, C/TPAs, MROs, and SAPs all seek to understand their role. One thing is certain: the shared goal is to enhance safety on the roadways and support individuals with violations in their efforts to restore health and a full work life.

Concentra offers a full range of drug and alcohol testing programs and employee education. In addition, Concentra is immersed in tracking Clearinghouse requirements and developments. We are ready to support your compliance with the Clearinghouse.

Note

The information provided in this article and more is provided by the Federal Motor Carrier Safety Administration’s Frequently Asked Questions page