Waynes World - December 2006

THIS MONTH, THE FINAL INSTALLMENT OF A
THREE-PART SERIES COVERING...

THE INS & OUTS OF JOINING
A CONSORTIUM
By Wayne Schooling

Regardless of the model of consortium you select (see previous articles), you should realize that you are entering into a contractual relationship, and your interests should be protected. Although you are implementing the regulations through a consortium, you remain responsible to FMCSA for implementing those regulations. This means that if the consortium is implementing some aspect of the program incorrectly, it is the same as YOU implementing it incorrectly – and you could be subject to fines and penalties. You should exercise due diligence in selecting a consortium.

Depending upon your needs, you may purchase a variety of required or optional services from the consortium. Depending on how the consortium is structured, you may be required to purchase all of the services when you join or you may only have to purchase those you require on an as-needed basis. A menu of services available might include any or all of the following items:

Written Policy Development • Program Implementation • DHHS Certified Specimen Analysis • Collection Services • Mobile or On-Site Collection Services • BAT (Breath Analysis Technician) • EBT (Evidentiary Breath Testing) Equipment • SAP (Substance Abuse Professional) Services • MRO (Medical Review Officer) • Supervisor Training • Driver Education • EAP (Employee Assistance Program) • Consultation Services • Random Pool Selection & Administration • Quality Control Programs for Controlled Substance Testing • Federal Report Preparation (Annual & Bi-Annual Summaries) • Recordkeeping.

Regardless of the services you obtain, you must have a written contract with the consortium manager. If you use an accredited consortium, the contract should cover the following areas: the specific services you are purchasing; the price you will pay and the terms on which you will pay; that all services will be delivered in accordance with 49 CFR parts 40 and 382, and other applicable Federal, State and local regulations; contract terms; record review; periodic reporting; timeliness requirements; quality control requirements.

If you think that a consortium is an option your company should consider, you must first decide which of the three consortium models might best serve your needs. Remember, you should always ask for references. Contact other employers participating in the consortium and ask about their experiences. Your first priority is to find out whether their philosophies and approaches will work for you. In a previous installment of this series, I went over the different types of consortiums. Let’s explore these models of consortiums further.

If you believe the Separate Entity model might be the best, you have two options: create your own or buy into one. There may be an existing consortium, perhaps providing testing services to state government or to another transportation mode, that you might join. But remember, other transportation modes are subject to their own DOT regulations and may have regulatory requirements that differ from those stipulated by the FMCSA. For example, the FAA does not want truck drivers, who are under FMCSA, in a FAA consortium, even though both the FAA and FMCSA are under the DOT. You must ensure that the consortium will comply with the FMCSA regulations in all respects. In addition, if the existing consortium does not provide all required services, you must make separate arrangements for those services.

Joining an accredited consortium might be the best approach for ensuring that the consortium will be fully compliant with FMCSA regulations. No matter what, you must always remember that the use of a consortium does not eliminate your compliance responsibilities under the FMCSA rules. The consortium is your agent and you, as the employer, always remain ultimately and totally responsible for your company’s full compliance.

If you are a small employer with a neighboring large employer, the Managing Partner model may be an alternative for you. They may be able to accommodate your needs fairly effortlessly and inexpensively. However, with the shortage of drivers, this may not be the best model for you if they end up recruiting your drivers away from you.

The External Management/Third Party Administrator model is really a subcategory of the other models. Each of the other models might be internally or externally managed. Indeed, an individual employer might choose to contract out the management of its Controlled Substances Use and Alcohol Misuse Program. Several national and regional management companies provide services of varying quality in the U.S. Some are excellent and may provide you with a better program than you could operate on your own, while others may leave you out of compliance with FMCSA regulations and subject to fines and penalties. The experience of other employers, particularly those employing CDL holders, will be your best guide. As you select a consortium, check references thoroughly and employ a detailed written contract specifying your needs.

Several nationally based third party organizations provide consortium services for employers. The largest in the U.S. is the NorthAmerican Transportation Association. Employers should consult the Drug & Alcohol Testing Industry Association (DATIA) for the accredited consortium that fits their needs.

One final thought to consider regarding DOT fines. Most motor carriers do not take this subject seriously enough. Of the top 50 violations cited, 13 are drug testing related, including the most-cited violation, 382.301(a), which pertains to pre-employment drug & alcohol testing. The average fine for this violation is $3,724 and the highest fine paid for this violation was $23,346. Obviously, the DOT takes this topic very seriously, and you should too. I hope this three-part series has been helpful. If you are confused or have any further questions regarding consortiums, I can be reached at (562) 279-0557.