audits: the good, the bad, and the ugly … · • good attitude of the company towards compliance...
TRANSCRIPT
AUDITS:
The Good, the Bad, and the Ugly
FMCSA Statement
• •
“Increasing safety to save lives and prevent bus and truck
crashes is at the heart of our mission at FMCSA. In the
past three years, we have more than tripled the number
of unsafe companies and drivers we have taken off the
road through more comprehensive investigations.
We are continuously looking for new ways to make our
investigation methods even more effective so we shut
down unsafe companies before a crash occurs.”
Juan Moya
Mr. Moya’s career began with the Federal Motor Carrier Safety Administration (FMCSA) in 2002 and has led him
to his current role as the Drug and Alcohol Program Manager for the (FMCSA).
His predecessor, Jim Keenan served as the Drug and Alcohol Program Manager for 39 years (1974 – 2013).
Mr. Moya’s contact info:
Juan Moya
Drug and Alcohol Program Manager
Office of Enforcement and Compliance
Room W63-457
1200 New Jersey Ave., SE
Washington DC 20590
Phone: 202-366-2096
Fax: 202-366-7908
FMCSA Drug & Alcohol Program Manager
FMCSA Activities
• •
� The FMCSA is getting very serious about safety and there is a lot of activity regarding its plans to increase safety through compliance
and accountability.
� The scope of the scrutiny includes all aspects of the motor carrier’s
operations, but the Controlled Substances/Alcohol regulations are
an essential element.
� Whether you are a DER or a TPA, you need to step up to partner
with the FMCSA effort to increase safety.
Small Operators Loom Large
on Inspectors’ Radar
• •
The smallest fleets' trucks get inspected
much more frequently than those of
large fleets.
“New Entrants” are assured of a Safety
Audit within 18 months
Automatic Failure
• •
A “New Entrant” will AUTOMATICALLY FAIL their safety audit for violations related to:
• No alcohol and drug testing program
• No random testing program
• Using a driver who refused a required test
• Using a driver the company knows had a
blood alcohol content of 0.04 or greater
• Using a driver who failed to complete
required follow-up procedures after testing positive for drugs
Who Gets Audited ?
• •
Reviews by Carrier Fleet Size in 2013
• Very Small (1-6 units) 7,976
• Small (7-20 units) 5,050
• Medium (21-100 units) 3,382
• Large (>100 units) 1,125
Source: FMCSA 2014 Pocket Guide to Large Truck and Bus Statistics
Inspections and Violations
• •
• Federal and state safety inspectors have conducted approximately 3.5 million
random roadside inspections of commercial
vehicles and of their drivers in the past 3 years.
• In 2012, on 2,494 occasions (0.26%) of
unannounced inspections, a CDL holder was immediately placed out-of-service and
cited for violating federal regulations
governing alcohol consumption.
• In 2011, FMCSA records show that there were 2,476 violations of this regulation; in 2010, the number was 2,655.
Out-of-Service Orders
• •
• Since the beginning of 2013, FMCSA has issued out-of-service orders to a total of 10 trucking companies and 25 bus companies.
• The agency has also declared 7 CDL holders as imminent hazards, blocking them from operating in interstate commerce.
Operation Quick Strike
• •
52 Bus Companies shut
down
340 Buses taken off the
road
240+ targeted for follow-up
investigations
Most common company-
wide failures:
Failure to adequately
maintain buses
Inadequate drug and
alcohol driver testing
programs
Widespread hours-of-
service violations
I-95 Enforcement Blitz
• •
• I-95 is one of the most heavily-traveled highways in the county, and 13% of all CMV fatal accidents occur in South Carolina, North
Carolina, Florida and Georgia.
• An Enforcement Blitz occurred on June 18-19, 2014.
• Officers were also stationed at rest areas along I-95, handing out
safety materials.
• A second blitz will occur on July 29-31 2014.
CSA SMS BASICs
• •
• CSA = Compliance, Safety, Accountability Program
• CSA’s goal is to identify and then change unsafe behavior with the Safety Measurement System (SMS) serving as the foundation. SMS replaces SafeStat.
• SMS uses Behavior Analysis and Safety Improvement
Categories (BASICs) to quantify performance.
• A carrier could get a CSA warning letter.
CSA BASICs
• •
• Unsafe Driving — (FMCSR Parts 392 and 397)
• Hours-of-Service (HOS) Compliance — (FMCSR
Parts 392 and 395)
• Driver Fitness — (FMCSR Parts 383 and 391)
• Controlled Substances/Alcohol — (FMCSR Parts
382 and 392)
• Vehicle Maintenance — (FMCSR Parts 392, 393 and
396)
• Hazardous Materials (HM) Compliance — (FMCSR Part 397 and Hazardous Materials Regulations Parts 171, 172, 173, 177, 178, 179, and 180)
• Crash Indicator - Histories or patterns of high crash
involvement, including frequency and severity
Drug & Alcohol Clearing House
• •
• FMCSA is proposing to establish a national database for drug &alcohol records for FMCSA regulated carriers.
• Administered by the FMCSA, the clearinghouse will contain drug and alcohol test result information for those who hold a commercial
drivers license (CDL).
• The proposed rule will require FMCSA employers, medical review
officers, substance abuse professionals, and consortia/third party
administrators to report any positive tests or refusals to test. It also requires reporting of return to duty test results and information on
follow up testing.
Drug & Alcohol Clearinghouse
• •
• Proposed rule will also require employers to report actual knowledge of traffic citations for driving a commercial vehicle
while under the influence of alcohol or drugs.
• Regulations state that a CDL driver is under the influence at a .04 blood alcohol level vs. typical state regulation of .08 for
non-CDL licensed drivers.
• The proposed rule requires laboratories to report annual
summary information.
• Comment period is closed.
Audits for FMCSA Employers
• •
• Unlike FAA or FTA, a FMCSA-regulated employer rarely has an audit which ONLY includes its drug and alcohol testing program.
• The FMCSA CSA Compliance Review will normally include all of the CSA “BASICs.”
� Driver qualifications
� Hours of Service (Log Books)� Equipment/Maintenance
� Hazardous Materials Records
� Accident Records� Insurance & Economic Documentation
AND
� Controlled Substances and Alcohol Testing Records
Audits for FMCSA Employers
• •
• FMCSA inspectors are increasingly conducting the audits.
• The FMCSA can be assisted by state and local
authorities.
• A company could be surprised by an impromptu visit from the state DPS or even the local highway patrol checking on the company’s compliance with the
drug and alcohol testing regulations.
• Audits vary state to state.
What are the Problems?
• •
• The owner of the small FMCSA company is often also a driver and may not be able to keep up with the necessary paperwork and may have limited access to helpful information via
computers.
• Often a large company or municipality has only a few vehicles and drivers that qualify for FMCSA regulations which can fall through the
cracks.
• A TPA/Consortium must have solid agreements with their clients so that areas of responsibility are clearly defined.
Partnerships
• •
• A TPA may have a unit of its business that supports FMCSA requirements other than drug testing program.
• A TPA can also establish partnerships with
knowledgeable parties so that there is a team to assist in all aspects of DOT/FMCSA compliance.
• •
The Good…
The Bad…
The Ugly.
The Good
• •
• Good attitude of the company towards compliance
• Organized files
• Easy access to the requested documents
• Drug and alcohol records kept separate from human resource records
• Knowledge of the requirements
• Compliance with the regulations
• Answers to the auditor's questions, but not TMI -- "Too Much
Information"
The Bad
• •
What are the "HOT SPOTS"?
• No program at all
• Putting a driver on the road before receiving a negative pre-employment drug test
• Random testing does not meet the required percentages
• Using a driver who has tested positive or refused to test without going through Subpart O
The Bad
• •
The Worst . . . .
More Hot Spots
• •
• Incomplete pool - drivers who are not in the random pool
• Pre-employment test on record, but it was done for another employer
• No previous testing histories collected from former employers
• Random tests are not completed in a timely manner
The Ugly
• •
Company has "out-of-compliance" program and an audit is scheduled:
• Never be involved in falsification
• Focus on dates that audit covers – usually previous 2 years, sometimes only the last 12 months
• Develop written procedures for a “Corrective Action” to
demonstrate the company's intent that better procedures will prevent errors going forward
Audit Recovery
• •
As a TPA/Consortium, what do you do when a company comes to you for help AFTER a bad audit?
• Obtain commitment from management regarding
future compliance and regard for safety.
• Talk to the auditor to gather information.
• Work with the company on “doable” corrective actions
that address the violations and avoid future mistakes.
Audit Recovery
• •
• Address the most pressing issues first.
• If the problem is that some drivers did not have pre-
employment drug tests, the auditor may not require pre-employment testing at this late date, but just wants all drivers in a random pool as soon as possible.
• Conduct training. Supervisory training is required, but don’t omit DER training for the person who is performing DER responsibilities.
Elements of a Compliant Program
• •
Testing done through an HHS-certified laboratory and a certified Medical Review Officer
Documentation:
• Blank CCF that is pre-printed with company name, address, phone and fax, MRO information
• MRO credentials
• Semi-annual laboratory statistics
Elements of a Compliant Program
• •
All drivers are in a random pool including part-time, contract, and volunteer relatives
Documentation:
• Current eligible pool list that matches driver logs
• Random pool documentation for previous two years
• Reports that company or consortium has met random annual percentages
Elements of a Compliant Program
• •
Policy specific to DOT/FMCSA
• The drug and alcohol testing policy should include all elements required by the FMCSA
• Voluntary self-identification program (382.121)
• Employee education requirements (382.601)
• Additional employer policies; e.g.; zero tolerance or the practice of requiring non-DOT testing for
accidents that do not meet FMCSA criteria
• Educational materials can be a part of the policy
• The policy must be given to each regulated employee
Elements of a Compliant Program
• •
Training requirements for FMCSA
• Employee Education
• Best practice is to have “face-to-face” or “classroom
style” employee education on the drug and alcohol program.
• However, FMCSA does not require classroom training. (FTA does)
• Employee education requirements can be met by
distributing the policy which includes all elements listed in 382.601.
• Certificate of receipt is required.
Elements of a Compliant Program
• •
Training requirements for FMCSA
• Supervisory Training
• All persons designated to supervise drivers must
have a 2 hour supervisory training on “signs and symptoms.”
• Recurrent training is not required.
• A supervisor who has been trained while employed
by one company can “transfer” that training to a
new employer.
• Documentation or certificate of completion is
required.
Elements of a Compliant Program
• •
Previous testing histories
• Must have signed release by driver for each employer.
• Must ask for previous employers for the last 3 years.
• Must demonstrate that applicants are asked “Question
J” in 40.25 (j)
“Have you tested positive or refused to test on any pre-
employment drug or alcohol test for an employer to which
you applied for, but did not obtain, safety-sensitive transportation work?”
Keep informed on National Clearinghouse developments
Who’s Responsible?
• •
• Who do the auditors look to for responsibility?
• Who is responsible for responding to any
compliance issues?
• Who pays the fine?
• Importance of a written agreement
Techniques
• •
• Learning spirit
• Good attitude
• Organized files
• Separate files for drug and alcohol
• Keep other DOT files such as log books separate
• Respond with what the auditors ask, don’t offer more
Preventive Practices
• •
� When you take on a FMCSA company into your consortium, be sure to offer a full program with information and guidance on all the program elements.
� It is not enough to just offer testing and random pulls, unless you know the client is aware of all program elements.
Conclusion
• •
The Goal?
Turn the Ugly and the Bad
Into The Good…