Owner Operators - The Grapevine
The Importance of Your Consortium Contract
Regardless of the model of consortium you select, 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. Once again, we cannot stress enough, you should always go with an accredited consortium because it tells you that they have proven themselves to be responsible.
Depending upon your needs, you may purchase a variety of required or optional services from the consortium. Also, depending upon how the consortium is structured, you may be required to purchase all services or may only purchase those you require on an as-needed basis. A menu of services might include any or all of the following:
- Written Policy development
- Program implementation
- DHHS certified laboratory specimen analysis
- Collection services
- Mobile or on-site collection services
- BAT (Breath analysis technician)
- EBT equipment (Evidentiary breath testing)
- SAP (Substance Abuse Professional) services
- MRO (Medical Review Officer)
- Supervisor training
- Driver education
- EAP (Employee Assistance Program) services
- Consultation services
- Random Pool - Pool management selection & administration
- Quality Control (blind sample) programs for controlled substance testing
- Recordkeeping - certain records (38) have to be kept for 5 yrs, 2 yrs, and 1 yr.
- Federal report preparation (bi-annual summaries & annual summaries)
Regardless of the services you obtain from the consortium, you must have a written contract with the consortium manager (Â§382.401(c)(6)(I). 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 laws and regulations.
- Contract terms.
- Record review.
- Periodic reporting.
- Timeliness requirements.
- Quality control requirements.
How to Explore Consortiums Further
If you think that a consortium is an option your company should consider, some actions you might take include the following:
- Ask for references, contact other employers participating in the consortium, ask about their experiences, and find out whether their approaches might work for you.
- Consider which of the consortium models might best serve your needs.
Separate Entity Model
If you believe the separate entity model might be the best, you have two options: to create your own or to buy. There may be an existing consortium, perhaps providing testing services to state government or to another transportation mode that you might join.
Remember, though, other transportation modes are subject to their own DOT regulations and may have regulatory requirements that differ from those promulgated by 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 both under the DOT.
Another example is that over time random testing rates will be adjusted separately for each of the transportation modes based upon the test results of the modes' respective industries. Therefore, even though an employer or consortium in another industry may comply with FMCSA regulations today, it may not in the future.
You must ensure that the consortium will comply with the FMCSA regulation in all respects. In addition, if the existing consortium does not provide all required services, you must make separate arrangements for those services. Your system might provide them internally or purchase them elsewhere.
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; you as the employer always remain totally responsible for full compliance. Therefore, it is to your advantage to join an Accredited Consortium.
Managing Partner Model
If you are a small employer with a neighboring large employer, this may be an alternative. They may be able to accommodate your needs fairly effortlessly and inexpensively. However, with the shortage of drivers, this may not be for you if they recruit your drivers from you.
External Management Model/ Third-Party Administrator
This 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 United States. Some are excellent and may provide you with a better program than you could operate on your own. 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, remember to check references thoroughly and to employ a detailed, written contract specifying your requirements.
Several nationally-based third party organizations provide consortium services for employers. The largest in the United States is the NorthAmerican Transportation Association Inc.
Employers should consult the Drug & Alcohol Testing Industry Association (DATIA) for the accredited consortium that fits their needs (i.e. some consortiums specialize in only certain modes such as NorthAmerican Transportation Association, who specializes in FMCSA).
US DOT Fines
Too few motor carriers take this subject seriously enough. The following are the current rankings, regulation section, average fine and top fine for drug testing violations.
Rank Regulation Average Fine Top Fine 1 382.301(a) $3,724 $23,346 3 382.115 $2,177 $5,800 4 382.305 $2,543 $10,000 6 382.305(b)(2) $3,723 $15,000 11 382.305(b)(1) $3,790 $11,700 13 382.215 $2,820 $7,640 21 382.303 $3,205 $7,400 24 382.213(a) $894 $2,500 31 382.503 $1,966 $9,800 32 382.305(I) $2,017 $2,560 41 382.213(b) $4,150 $11,200 46 382.211 $3,905 $8,000 50 382.105 $3,160 $4,320