DOT Drug & Alcohol Testing Statement of Enforcement Discretion for SAP’s
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DOT Drug & Alcohol Testing Statement of Enforcement Discretion for Substance Abuse Professionals
December 20, 2022
DOT Statment of Enforcement Discretion SAP 12-20-2022.pdf
This Statement of Enforcement Discretion authorizes Substance Abuse Professionals (SAP) to conduct remote assessments and evaluations for employees with drug and alcohol violations.
The U.S. Department of Transportation’s (DOT) Office of Drug and Alcohol Policy and Compliance (ODAPC) issues this statement of enforcement discretion, effective January 1, 2023. Unless otherwise modified or terminated by ODAPC, the enforcement discretion ends on the effective date of any final rule following DOT’s notice of proposed rulemaking (NPRM) published on February 28, 2022. SAPs and affected employees would follow any assessment and evaluation procedures specified in that final rule.
Substance Abuse Professional (SAP) Assessments and Evaluations
Under DOT regulations at 49 CFR §§ 40. 291, 40.293, and 40.301, SAPs must conduct face-to-face assessments and evaluations of employees who have violated DOT drug and alcohol regulations. ODAPC had historically maintained that the “face-to-face” assessment and evaluation must be done “in person.” ODAPC recognized, however, that conducting face-to-face assessments and evaluations during the COVID-19 public health emergency may not have been possible or advisable for certain individuals. ODAPC therefore issued a Statement of Enforcement Discretion on April 4, 2020, and extended it several times, to allow SAPs to conduct remote “face-to-face” evaluations and assessments.
On February 28, 2022, DOT published an NPRM that, among other things, proposed to allow SAPs to conduct assessments and evaluations either in-person or remotely provided that certain requirements are met. The proposed requirements include criteria that are intended to ensure that the SAP can objectively evaluate an employee’s non-verbal and physical characteristics that might be indicative of problems associated with alcohol abuse and/or drug use. Those criteria are based on and consistent with those in the currently applicable Statement of Enforcement Discretion issued by ODAPC. The current enforcement discretion extends through December 31, 2022. To provide consistent program administration for SAPs and affected employees, ODAPC has determined to continue this enforcement discretion until the effective date of any final rule following the February 2022 NPRM. If ODAPC were to terminate the current enforcement discretion during the pendency of the rulemaking, employees with drug and alcohol violations and SAPs could be subject to abruptly changing requirements applicable to the performance of assessments and evaluations, which could slow the return-to-duty process for employees who have violated the Department’s drug and alcohol rules.
Consistent with the original Statement of Enforcement Discretion and the proposal in the NPRM, the flexibility to conduct remote assessments and evaluations is voluntary, and SAPs may continue to conduct in-person face-to-face assessments and evaluations as appropriate. In addition, while ODAPC does not prescribe the exact manner in which the remote evaluations should be conducted, SAPs who choose to conduct initial assessments and evaluations and follow up evaluations remotely should consider the following parameters:
- The technology you use should permit a real-time two-way audio and visual communication and interaction between you and the employee.
- You should determine if the quality of the technology (e.g., speed of the internet connection, clarity of the display, application being used, etc.) is sufficient for you to gather all the visual (e.g., non-verbal physical cues) and audible information you would normally observe in an in-person face-to-face interaction.
- You may only utilize the technology if your State-issued license authorizes you to do so and within the parameters of that authority.
ODAPC further recommends that, when a SAP conducts assessments and evaluations remotely, the format of the assessment be documented in the final report for reference.
ODAPC will not consider an evaluation or assessment performed remotely as an act of serious non-compliance for purposes of starting a public interest exclusion proceeding against the service agent while this statement of enforcement discretion is in effect.
ODAPC Guidance Document #: ODAPC GEN07
[1] This document is a temporary notice of enforcement discretion. Regulated entities may rely on this notice as a safeguard from departmental enforcement as described herein. To the extent this notice includes guidance on how regulated entities may comply with existing regulations, it does not have the force and effect of law and is not meant to bind the regulated entities in any way.
DOT/SAP Update COVID-19 Drug & Alcohol Testing Statement of Enforcement Discretion for Substance Abuse Professionals and Service Agents
June 15, 2022
On May 6, 2022, the Office of Drug and Alcohol Policy and Compliance posted its updated Substance Abuse Professional (SAP) guidelines. A listing of the updates can be found on the last page of the guidelines. The document can be found at https://www.transportation.gov/odapc/sap.
On June 15, 2022, the Office of Drug and Alcohol Policy and Compliance updated its Statement of Enforcement Discretion for Substance Abuse Professionals and Service Agents guidance document. The document extends the guidance for SAPs to conduct remote assessments and evaluations until December 31, 2022 and terminates the guidance regarding the service agent’s requalification timelines. You can view the updated guidance at https://www.transportation.gov/odapc/program-guidance.
April 13, 2020
On March 23, 2020, the DOT Office of Drug and Alcohol Policy and Compliance (ODAPC) provided guidance about the impact of the Coronavirus Disease 2019 (COVID-19) public health emergency on DOT/SAP Update COVID-19 drug and alcohol testing requirements for employers, employees, and SAP service agents. ODAPC is providing supplemental information specific to performing remote evaluations by Substance Abuse Professionals (SAP) and the re-qualification timelines for collectors, Medical Review Officers (MRO), Screening Test Technicians (STT) and Breath Alcohol Technicians (BAT), and SAPs. This statement is effective while the Department of Health and Human Services determination that a public health emergency related to COVID-19 exists[1] is in effect or through January 3, 2022, whichever is sooner.
SAP Assessments and Evaluations
Under 49 CFR §§ 40. 291, 40.293, 40.301, the SAP must conduct a face-to-face assessment and evaluation of an employee who has violated DOT drug and alcohol regulations. The Department has always maintained that the “face-to-face” assessment and evaluation must be done ‘in person’ and is essential to the SAP process. ODAPC recognizes that conducting face-to-face assessments and evaluations during the COVID-19 public health emergency may not be possible or advisable for certain individuals. ODAPC would allow SAPs to conduct a remote face-to-face evaluation and assessment while this policy is in effect.
The flexibility to conduct remote assessments and evaluations is voluntary, and SAPs may continue to conduct in-person face-to-face assessments and evaluations as appropriate. We recommend that, when a SAP conducts assessments and evaluations remotely, the format of the assessment be documented in the final report for reference.
We realize that performing evaluations remotely may not provide as much information to the SAP as a face-to-face evaluation would, but DOT believes remote evaluations are preferable to not performing the evaluations at all. While we will not prescribe the exact manner in which the remote evaluations should be conducted, SAPs who choose to conduct initial assessments and evaluations and follow up evaluations remotely should consider the following parameters:
- The technology you use should permit a real-time two-way audio and visual communication and interaction between you and the employee.
- You should determine if the quality of the technology (e.g., speed of the internet connection, clarity of the display, application being used, etc.) is sufficient for you to gather all the visual (e.g., non-verbal physical cues) and audible information you would normally observe in an in-person face-to-face interaction.
- You may only utilize the technology if your State-issued license authorizes you to do so and within the parameters of that authority.
ODAPC will not consider an evaluation or assessment performed remotely as an act of serious non-compliance for purposes of starting a public interest exclusion proceeding against the service agent while this statement of enforcement discretion is in effect.
Re-qualification Timelines for Certain Service Agents
Under 49 CFR §§ 40.33(e), 40.121(d), 40.213(e), and 40.281(d), collectors, MROs, STT/BATs, and SAPs are required to maintain their DOT required qualifications to continue to act as service agents in the DOT drug and alcohol testing program. Specifically, collectors and STT/BATs need to complete refresher training every five years, MROs need to complete requalification training every five years, and SAPs need to complete 12 professional development hours every three years.
The Department realizes that during the COVID-19 public health emergency, these service agents may find it difficult to find the necessary resources (e.g., exam location or personnel to conduct mock collections, etc.) to meet their re-qualification requirements. If a service agent is unable to meet their re-qualification due date while this statement of enforcement discretion is in effect, the Department will not consider it a non-compliance for purposes of starting a public interest exclusion proceeding against the service agent. The Department is providing this flexibility for service agents that cannot meet their re-qualification requirements by their respective due dates due to restrictions imposed by Federal, State and local authorities, and health agencies related to the COVID-19 national emergency (e.g., facility closures, State or locally imposed quarantine requirements, or other impediments). The Department will consider these service agents qualified per Part 40 to continue providing the Part 40 required services while this policy is in effect.
ODAPC Guidance Document #: ODAPC GEN07
https://www.phe.gov/emergency/news/healthactions/p
