Federal Update
Side effects of FMCSA's bulletin on apnea

By David Tanner, senior editor

A recent bulletin by the FMCSA to certified medical examiners and medical trainers on the issue of sleep apnea, no matter how well-intentioned, could take safe, experienced truckers off the road, OOIDA says.

“This bulletin is supposed to be an attempt to clarify the issue of sleep apnea to medical providers. It may do that in a couple of areas, but in others it’s just plain wrong and not supported by anything in the regs,” OOIDA Executive Vice President Todd Spencer said.

“If the net effect of this or any other regulation or policy is that it takes safe, experienced drivers off the road and replaces them with undertrained and under-experienced drivers, safety is going to be compromised, not improved,” he said.

The Federal Motor Carrier Safety Administration issued the bulletin in January after being asked by congressional lawmakers this past fall if the agency was following – or skirting – a 2014 law that prohibits the agency from issuing regulations or guidance on sleep apnea for truckers without going through a formal rulemaking process.

FMCSA’s guidance on apnea dates back to 2000. The agency says the recent bulletin serves as a “reminder” to medical examiners.

“There are many conditions that interfere with oxygen exchange and may result in incapacitation, including emphysema, chronic asthma, carcinoma, tuberculosis, chronic bronchitis and sleep apnea,” the 2000 existing guidance states. “If the medical examiner detects a respiratory dysfunction, that in any way is likely to interfere with the driver’s ability to safely control and drive a commercial motor vehicle, the driver must be referred to a specialist for further evaluation and therapy.”

The bulletin urges medical examiners to use their best judgment in deciding whether a trucker should be tested for apnea as a matter of highway safety.

OOIDA has many concerns with the bulletin and existing guidance.

“The bottom line is, we are not arguing that obstructive sleep apnea is not a medical condition or that it should never be treated, but it’s ludicrous to think that it causes crashes,” Spencer said.

He says FMCSA continues to inch closer to a possible rulemaking, and has even shown its cards in the past about what a possible rulemaking could look like, but to date there is nothing in the form of a regulation that says truckers must be treated for apnea or that apnea has an effect on highway safety whatsoever.

“The dilemma is, what they’ve done to this point is not supported in the existing regulations. This was never an issue that was ever appropriately evaluated,” Spencer said.

The recent bulletin likely means more of what truckers have been complaining about for nearly a year, that some medical examiners are forcing drivers to take expensive sleep tests under the guise of highway safety and under threat of having their driver medical cards delayed or withheld.

“It depends on the creativity of a medical examiner,” Spencer said. “A driver heading into an exam should be prepared for any kind of determination.”

Commercial driving jobs are diverse, but the existing regs and guidance do not acknowledge that.

“For some people, driving may only be a bit part of their jobs – incidental, in fact. I’m talking about people who drive school buses, people who do utility work, people who drive trucks on construction sites,” Spencer said. “We’re going to have members of this Association who operate fleets, but who might drive a truck themselves once a month or less. That’s reality. That’s real life.”

How we got here

The National Registry of Certified Medical Examiners went live in May 2014. Its implementation came from a final rule that requires all commercial drivers to obtain their physicals and driver medical cards from an FMCSA-certified examiner.

Since the program went live, truckers have complained that they are being ordered to take sleep tests based on their weight, body-mass index, neck size and a host of criteria that have little if anything to do with one’s ability to safely operate a commercial motor vehicle.

The bulletin urges medical examiners to use their best judgment, but insists that obstructive sleep apnea raises health concerns “beyond those of other sleep disorders.”

“In a bulletin put together to address confusion among some of the medical-examiner community, they have certainly added to the confusion and published some clearly misleading information,” Spencer said, pointing out another side effect of the bulletin.

“In a system the FMCSA created, and by design, a nurse practitioner or chiropractor on the national registry of examiners has the ability to trump the medical opinion of a driver’s family physician,” Spencer said.

“Realistically, this initiative could do far more harm than good,” he adds. “No matter how well-intentioned, this misguided policy might take 20 or 25 percent of existing drivers off the road.”

FMCSA has vowed to bring a proposed rule forward on sleep apnea for truck drivers. OOIDA says a rulemaking would force a lot of FMCSA’s claims and reasons for pursuing apnea into the open.

“The bulletin makes it clear just how badly this agency really needs to do a rulemaking and give these issues they believe to be a matter of life and death the attention and scrutiny they so richly deserve,” Spencer said.

More takeaways

The bulletin reiterates that simply having obstructive sleep apnea, also known as OSA, is not a basis for a truck driver to have a medical card delayed or withheld.

OOIDA encourages drivers to arm themselves with information when they prepare for a DOT physical. If a driver disputes the finding of a medical examiner, he or she is entitled to get a second opinion. FMCSA will accept a second opinion as the opinion of record as long as the driver is not found to be “doctor shopping” or trying to skew the results. Doc shopping is illegal. LL