Waynes World - July 2007

REQUIREMENTS FOR MOTOR CARRIERS WHEN
A DRIVER FAILS A DRUG TEST, AND...

TRUCKERS VICTIMIZED BY
INSURANCE FRAUD
By Wayne Schooling

ANOTHER CASE OF INSURANCE FRAUD
Insurance Commissioner Steve Poizner announced the conviction and sentencing of insurance broker-agent Carlos Macias, and former insurance broker-agent Yvette Diaz (aka Yvette Benitez) in connection with a fraud scheme that involved stealing insurance premiums and issuing phony insurance certificates. Carlos Macias, 23, a licensed broker-agent from South Gate, California and Yvette Diaz, 44, a former insurance broker-agent residing in Miami, Florida, operated International Commercial Insurance in Long Beach, California.

California Department of Insurance (CDI) investigators discovered that Diaz collected at least $13,507 in insurance premiums from five clients and failed to secure coverage. Instead of sending the payments to the insurance companies, Diaz kept the money and issued bogus proof of insurance documents. Although Diaz was unlicensed, Macias allowed her to illegally transact insurance through his office.

The five victims were owners of small trucking companies who paid premiums to Diaz from March through October 2003. They were led to believe they were receiving truck insurance policies but instead, received bogus insurance documents. “Mr. Macias and Ms. Diaz placed their victims and the general public in great financial jeopardy by letting these individuals drive unknowingly without valid insurance,” said Commissioner Poizner. “All cases of insurance fraud can have a devastating impact,” he added, “and my office will go after each and every one.”

Macias was convicted on two counts of transacting insurance without a license and for aiding and abetting Diaz in the transaction of insurance without a license (misdemeanors). Macias was sentenced to three years summary probation, 30 days of community service, and ordered to pay restitution and court fees.

Diaz pleased guilty to five felony counts of grand theft. She was sentenced to four years and four months in state prison and was given credit for 306 days she served in the Los Angeles County jail. The remainder of the prison sentence was suspended and Diaz was ordered to serve five years formal probation, pay restitution to the victims and pay a fine and court fees.

WHAT TO DO WHEN A DRIVER FAILS A TEST
When a commercial motor vehicle driver develops a substance abuse problem, he or she needs help. Finding someone to provide that help can be a difficult step – a step that the driver may be unwilling to take. That’s why the Department of Transportation (DOT) requires that the employer take that first step by giving the driver a list of qualified Substance Abuse Professionals, or SAPs. An SAP is a trained professional who is able to make evaluations and recommendations concerning education, treatment, follow-up testing, and aftercare for someone suffering an alcohol and/or drug abuse problem.

Ask yourself – Are you providing your drivers, applicants, and recently terminated drivers with a current list when required? If not, then your program may not comply with 49 CFR Part 40, which is a serious violation of 382.105 (the average fine is $3,160 per incident). This is yet another reason why motor carriers should engage the services of an Accredited Program, not just the local clinic down the street.

If you have a driver or applicant who is subject to the DOT’s drug and alcohol testing regulations, and that person fails one of those regulations, you are required to provide a list of SAPs available to the employee and acceptable to you, with names, addresses, and telephone numbers (49 CFR 40.287). You must compile and provide the list free of charge, and you must provide it even if you will or already did terminate the person. According to the DOT, if you do terminate a person, the list should consist of at least two qualified SAPs. You have no further obligation to help the driver schedule an appointment with the SAP, ensure that the person receives an evaluation, pay for the evaluation or maintain the SAP reports.

If you intend to have the person return to duty with your company, then you need only provide the person with the specifics of the SAP who will conduct the evaluation. Payment for the actual SAP evaluations and services is left for the employer and the person to decide and may be governed by existing labor-management agreements and health care benefits. Keep in mind that the list must be provided after any violation of a DOT drug or alcohol testing requirement, including a positive test, but also refusals to test, substitutions or adulterations.

DETERMINING A QUALIFIED SAP
DOT-qualified SAPs (Substance Abuse Professionals) must have certain credentials, possess specific knowledge, receive training, achieve a passing score on an examination, and undergo continuing education. Full SAP qualification requirements can be found in 49 CFR 40.281. The most important thing to remember is that all SAPs are required to provide employers, upon request, with proper documentation showing that they are in compliance with all of the DOT’s current qualification requirements. It’s a good idea to obtain or update this documentation and keep it on file so you have proof of your SAP’s qualifications at all times.

~ NTA remains a name you can trust. We are your official USDOT Internet Training Site and administers of a Nationally Accredited Drug and Alcohol Program. If you have any questions, call (562) 279-0557 or send e-mail to wayne@ntassoc.com. Until next month, “Drive Safe – Drive Smart!”