A Detailed Analysis of the DOT Clearinghouse Rule for CDL Driver Drug and Alcohol Results

by Luke Kibby of CleanFleet
(Portland, OR, United States)

The Department of Transportation is establishing a central database to contain all of the relevant drug and alcohol testing information for commercial drivers. Called the Commercial Driver’s License Drug and Alcohol Clearinghouse, employers will be required to register their employees and report test results to the clearinghouse.

It has been four years since Congress called for a national clearinghouse of truck drivers who has drug and alcohol violations. The purpose of the clearinghouse is to prevent CDL holders with positive drug and alcohol test results, refused required drug and alcohol tests, or who have undergone return-to-duty drug and alcohol rehabilitation process from job-hopping (moving to different states where the results do not follow them) – making it harder to hire these drivers and keeping the roads safer.

What will the Change look like?

Once the database is ready, commercial drivers and service agents will need to register with the clearinghouse and report their testing information.

After that, there will be two reasons required to query the database with two types of database checks (full detailed query, and a limited query):

1. A Full Detailed Query for Pre-Employment Screening: Employers will be required to check and make sure any driver they are planning to hire does not have an outstanding positive test result. This type of check will be a full detailed query.
2. A Limited Query for Annual Screening: Employers will also need to update their driver rosters with the database at least once a year to determine whether information exists in the Clearinghouse about those employees. This type of check will be a limited query. If the limited query shows information in the clearinghouse database, a full detailed query is required. If a full query is not done within 24 hours, the employer must not allow the driver to continue to perform any safety-sensitive functions until the full query in conducted and the results confirm that the driver’s record contains no prohibitions.

These regulations will also directly affect service agents (principally, drug and alcohol testing consortiums and third-Party administrators, C/TPAs), such as CleanFleet:

1. Every employer who uses a service agent will be required to register those service agents with the clearinghouse. That means CleanFleet will need specific authorization (written or electronic consent) from every client in order to access their drug and alcohol testing information
2. The clearinghouse will use driver’s license numbers to search for drivers. That means that CleanFleet will need to collect CDL numbers from every driver in the random pool and not social security numbers. This change has already started happening for CleanFleet sites and should be expected to happen for all service providers in the near future.

When will the Database be ready?

The final rule for the clearinghouse has already been implemented but the database will not be active until January 2020. That is to say, the law has been written and finalized, but there will be a three-year waiting period while the database is created to give businesses time to comply with the rules.

The FMCSA has not provided a timeline available for when the Clearinghouse portal will be visible to end users. However, there are some state-specific drug testing databases for CDL drivers that reside in that state’s jurisdiction. Arkansas has created this sort of system and you can read about their frequently-asked-questions here: https://www.ark.org/drugtest/index.php/user/faq

What can we learn from Arkansas Commercial Driver Alcohol and Drug Testing Database?

The Arkansas database was effective January 1, 2008. Act 637 requires all employers of Arkansas commercial drivers to search the Arkansas Commercial Driver Alcohol and Drug Testing Database prior to hiring a commercial driver.

Arkansas employers and Medical Review Officers authorized in the state of Arkansas are responsible for reporting positive drug and/or alcohol test results, the refusal to submit to a drug and/or alcohol test or the submission of an altered specimen to this central database. For information and an overview of the Alcohol and Drug rules go to the Federal Motor Carrier Safety Administration website.

Fees to access and query database: The clearinghouse rule states that the FMCSA may collect a reasonable fee from entities required to query the database. The exception – no driver may be required to pay a fee to access his/her own information in the Clearinghouse. So what kind of fees could this look like?

If we look at the Arkansas database for a comparison, we find an initial setup fee of $95.00 is required for an end user to purchase a subscription to the database and subsequent annual renewals will also cost $95.00. There is also $2.50 per search transaction fee to query the database.

What fines or penalties are there if I violate the database requirements?

Failure to report to the clearinghouse will result in the same legal and civil penalties for any violation of parts 40 and 382. The rule states “an employer, employee, MRO, or service agent who violates any provision shall be subject to the civil and/or criminal penalty provisions of 49 U.S.C. 521(b)(2)(C).” This provision states that the civil penalty for this violation is not to exceed $2,500 for each offense.

What information will be reported to the clearinghouse database?

Medical Review Officers (MROs), to be reported within two business days after a test:
• Verified positive, adulterated, or substituted controlled substances test results
• Refusal-to-test determination by the MRO

Employers or C/TPAs, to be reported within three business days after a test:
• Alcohol confirmation test result with alcohol concentration of 0.04 or greater
• A refusal to test
• A report that the driver completed all follow-up tests prescribed in SAP report

Substance Abuse Professional (SAPs):
• Must report for each driver who has completed the return-to-duty process

How long will information be in the database and are there employer record-keeping requirements?

Database information: Drug and alcohol violations will remain in the clearinghouse for five years or until the driver completes the return-to-duty process, whichever happens later.
Employer Record-Keeping for Annual Queries: Employers must retain for 3 years a record of each query and all information received in the response for each driver.

What if I believe there is incorrect information in the database?

Under the ruling, petitioners may challenge only the accuracy of the information reporting, not the accuracy of test results or refusals. This is a basic petition that includes driver’s name, address, phone number, and CDL number and State issued; a detailed description of the basis for why the information is inaccurate; and evidence supporting the reasons for the challenge.