By R. Bruce Wright, CPCU
Earlier this year I made a return visit to a distribution system in our program that I had visited a few times in the past. This time, during our meeting the GM brought up an issue that he had been confronted with not long before. The circumstances he faced are not unique and I suspect that the same potential problem faces many others who read RE-marks so why not let everyone in on it?
When Synebar Consultants visit you, we often ask about your CDL drivers and the procedures you use to ensure that all needed records are kept in full, complete and up-to-date drivers’ files, separate and apart from their regular personnel files. We frequently ask further about your drug and alcohol policies and ask about the programs and procedures you use to meet the CDL testing requirements. In the case here, when the conversation turned to this review, my contact brought up an interesting twist on the more common items that he had recently become aware of. He proceeded to tell me about a conversation he had with the Medical Review Officer they use, a conversation that brought up an issue with the use of prescription drugs. As you probably know, the CDL regulations provide direction to all MROs on how to handle a situation where a positive result occurs and the tested driver states that he is taking a prescription medication. For those of you who haven’t memorized the CDL regulations, here’s a brief excerpt of the relevant portion:
40.135. What does the MRO tell the employee at the beginning of the verification Interview?
(a) As MRO, you must tell the employee that the laboratory has determined that the employee’s test result was positive, adulterated, or invalid, as applicable. You must also tell the employee of the drugs for which his or her specimen tested positive or the basis for the finding of adulteration or substitution.
(b) You must explain the verification interview process to the employee and inform the employee that your decision will be based on information the employee provides in the interview.
(c) You must explain that, if further medical evaluation is needed for the verification process, the employee must comply with your request for this evaluation and that failure to do so is equivalent of expressly declining to discuss the test result.
(d) As the MRO, you must warn an employee who has a confirmed positive, adulterated, substituted or invalid test that you are required to provide third parties drug test result information and medical information affecting the performance of safety-sensitive duties that the employee gives you in the verification process without the employee’s consent. (See 40.327).
(1) You must give this warning to the employee before obtaining any medical information as part of the verification process.
(2) For purposes of this paragraph (d), medical information includes information on medications or other substances affecting the performance of safety-sensitive duties that the employee reports using or medical conditions the employee reports having.
(3) For purposes of this paragraph (d), the persons to whom this information may be provided include the employer, a SAP evaluating the employee as part return to duty process (see 40.293(g)), DOT, another Federal safety agency (e.g. the NTSB, or any state safety agency as required by state law.
(e) You must also advise the employee that, after informing any third party about any medication the employee is using pursuant to a legally valid prescription under the Controlled Substances Act, you will allow 5 days 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, as an MRO you receive such information from the prescribing physician, you must transmit this information to any third to whom you previously provided information about the safety risks of the employee’s other medication. [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41952, Aug. 9, 2001]
Okay, I know that section is tough to read, but if you made it through you should have come away with the idea that a positive test resulting from a legally valid prescription is followed by a five day window of opportunity for the prescribing physician to change the prescription to one that does not make the driver unqualified to drive. The key phrase I want to highlight here is “medication the employee is using pursuant to a legally valid prescription.” Patients commonly receive prescriptions that they are directed to take for a set length of time, at set frequencies. Sometimes they are told to take medications, for example, “every four hours, or less often, as needed.” This type of option is particularly common for pain medications and prescription cough medications of the type that may produce a positive test result. Many times, for “tough guy” patients with high tolerances for discomfort, for those who resist taking medication, or for the lucky ones who recover faster than expected, it is not unusual for them to have leftover medication remaining after they have recovered. And, since medications are not free, many people tend to keep the extra doses on the shelf in their medicine cabinet where the bottles tend to remain indefinitely.
Is it unusual to have a number of legitimately prescribed medications with some amount left over, stashed in the closet or cabinet? Does this perhaps ring a bell with you? Maybe this describes your own medicine cabinet. (And yes, I admit I’ve done it myself.)
What happens then, if at some point in the future, these folks who have saved "extra" medications have a recurrence of some chronic complaint, let’s say back pain as an example? Is it any surprise that they might look in the medicine cabinet, find their prescription from the last time they threw out their back, and decide this is the time to use the “extra” doses? Does anyone find this unlikely? If you can say you have never, ever done this, you are an exceptional person! In my experience, it seems that most people see nothing wrong with this behavior, and the prevailing attitude is, "What’s the big deal?"
The point of this discussion is to make clear that by taking a medication at a later date, beyond the term for which it was prescribed, a patient no longer is using it pursuant to a legally valid prescription. Even though it was obtained legally, with a prescription, once the condition for which it was originally prescribed is resolved, or the time under which it was to be used has elapsed, the medication cannot be legally used. So, continuing the example above, if a driver has a back problem, gets a valid prescription for a pain killer, and later uses any leftover medication to address another episode of back pain, and this medication shows up in a CDL drug test, there is going to be a problem! The prescribing physician will be unlikely to confirm a legally valid prescription. And as a result, a violation of the CDL regulations has occurred.
You certainly don’t want any of your drivers make this type of mistake, a mistake that could have significant costs to you and to the individual driver. To that end, you should clearly cover this issue during one of your regular safety meetings to make certain that everyone knows what the rules are, and how to avoid falling into this trap. On an individual level, we all should reevaluate our tendency to retain unused prescriptions. I think I will begin by cleaning out my medicine cabinet tonight!