Transportation Department Expands Drug Testing Panel to Include Certain ‘Semi-Synthetic’ Opioids

by Kathryn J. Russo

Jackson Lewis is an IMA member.

Employers regulated by the U.S. Department of Transportation (DOT) should revise their drug and alcohol testing policies to conform to new DOT regulations that added four “semi-synthetic” opioid drugs to the DOT drug testing panel. The new regulations go into effect on January 1, 2018.

DOT announced in a rule published in the Federal Register on November 13, 2017, that it will expand its drug testing panel to include the following four “semi-synthetic” opioid drugs:

• Hydrocodone;
• Hydromorphone;
• Oxycodone; and
• Oxymorphone.

DOT-regulated employers include those regulated by the Federal Motor Carrier Safety Administration (FMCSA), Federal Aviation Administration (FAA), Federal Railroad Administration (FRA), Federal Transit Administration (FTA), Pipeline and Hazardous Materials Safety Administration (PHMSA), and the United States Coast Guard (USCG).

The changes were made to harmonize DOT’s drug testing regulations with recent revisions to U.S. Department of Health and Human Services (HHS) Mandatory Guidelines for Federal Workplace Drug Testing Programs that took effect on October 1, 2017. The new DOT rule also includes other revisions to DOT drug and alcohol testing regulations.

Prescription Painkiller Epidemic

The addition of the four semi-synthetic opioid drugs is intended to address the nationwide epidemic of prescription painkiller abuse.

Hydrocodone, hydromorphone, oxycodone, and oxymorphone are Schedule II controlled substances. They are more commonly known as Vicodin, OxyContin, Lortab, Norco, Percocet, and Dilaudid, among other names. DOT still refers to its drug testing panel as a “5-panel,” but “opiates” is being changed to “opioids” and will include the four synthetic substances in addition to heroin, morphine, and codeine.

HHS had explained that the four prescription pain medications were added to the standard testing panel because data indicates that, although they are prescribed, they are the prescription pain medications that are most frequently used without medical authorization.

DOT regulations still permit an employee to produce a legitimate medical explanation for the presence of drugs in his or her system, but the Medical Review Officer (MRO) is not permitted to question whether the prescribing physician should have prescribed the substance.

In addition, DOT will add methylenedioxyamphetamine (MDA) as an initial test analyte, and remove methylenedioxyethylamphetamine (MDEA) as a confirmatory test analyte.

Drug Panel and Cut-Off Concentrations

As of January 1, 2018, all DOT-regulated employers must utilize the following drug test panel and cut-off concentrations:

Other Revisions

DOT’s new rules also make certain technical amendments, clarify certain definitions, and remove the requirement for employers and Consortium/Third Party Administrators to submit blind specimens. Among other things, the definition of “drugs” has been revised to include “opioids” instead of “opiates,” and the definitions of “evidential breath testing device” and “alcohol screening device” have been revised.

The regulation addressing direct observation collections is revised to require service agents who learn that a direct observation collection should have been collected, but was not, to inform the employer to direct the employee to have an immediate recollection under direct observation. (Previously, this requirement applied only to collectors.)

The regulation addressing MRO verification of valid prescription medication use also is being revised as follows:

You [the MRO] must also advise the employee that, before informing any third party about any medication the employee is using pursuant to a legally valid prescription consistent with the Controlled Substances Act, you will allow 5 business days from the date you report the verified negative result for the employee to have the prescribing physician contact you to determine if the medication can be changed to one that does not make the employee medically unqualified or does not pose a significant safety risk. If, in your reasonable medical judgment, a medical qualification issue or a significant safety risk remains after you communicate with the employee’s prescribing physician or after 5 business days, whichever is shorter, you must follow §40.327. If, as the MRO, you receive information that eliminates the medical qualification issue or significant safety risk, you must transmit this information to any third party to whom you previously provided information under §40.327.

DOT will require Medical Review Officers, Substance Abuse Professionals, Breath Alcohol Technicians, and Screening Test Technicians to subscribe to the Office of Drug & Alcohol Policy & Compliance’s list-serve to receive ODAPC email updates.

DOT’s new regulations also confirm that no specimens, other than urine, may be tested for drugs. Only urine specimens screened and confirmed at HHS-certified laboratories are permitted; point-of-collection testing, or instant tests, are not authorized.

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