OOIDA: Bill to limit apnea guidance is 'common sense'

By Charlie Morasch, Land Line contributing writer | 9/13/2013

The Owner-Operator Independent Drivers Association voiced its support Thursday for newly introduced congressional legislation to limit FMCSA’s ability to ramp up sleep apnea testing without a formal regulatory process.

U.S. Representatives Larry Bucshon, R-IN, and Dan Lipinski, D-IL, introduced HR3095, a bipartisan bill that would require FMCSA’s sleep apnea policies to undergo a full cost-benefit and regulatory impact analysis.

The bill states “the Secretary of Transportation may implement or enforce a requirement providing for the screening, testing, or treatment (including consideration of all possible treatment alternatives) of individuals operating commercial vehicles for sleep disorders only if the requirement is adopted pursuant to a rulemaking proceeding.”

In a letter to congressional colleagues, Bucshon and Lipinski noted plans by FMCSA to issue guidance on testing CDL-holders for sleep apnea, and pointed to an estimated $1 billion cost for testing commercial driver’s license holders.

“Even for the private school bus industry, the estimated annual impact is over $100 million,” the letter says. “If FMCSA were to act through a formal rulemaking process rather than guidance, the rule would be categorized as economically significant under OMB directives. With such tremendous potential costs to the truck and bus industry, ensuring that any potential policy is developed through a formal rulemaking process is imperative in order to evaluate both the costs and benefits of proposed regulations. Such an analysis is not required and will not be conducted for the issuance of guidance.”

OOIDA agreed.

“The best policy is for the agency to use the rulemaking process already in place rather than side-stepping it,” OOIDA Executive Vice President Todd Spencer said. “With the potential cost to trucking running north of $1 billion without the proven safety improvement, guidance is not a practice we can support.”

OOIDA has expressed concerns over the power of the medical device community to make truck drivers and other CDL-holders a target. Land Line has reported on financial ties a former chairman of the FMCSA medical review board had to companies that stood to benefit from sleep apnea requirements for CDL-holders.

“Small-business truckers applaud Reps. Bucshon and Lipinski for their efforts on this important issue to truckers and to small businesses,” Spencer said. “HR3095 is commonsense legislation that has the support of the entire industry. That fact alone should send a strong signal that anything FMCSA does regarding sleep apnea should absolutely consider the costs such a policy will pass on to truckers, especially more experienced and safer drivers.”

In addition to OOIDA, the bill is also supported by American Trucking Association, American Bus Association, United Motorcoach Association and National School Transportation Association.

The sleep apnea industry has been beating the drum on its desire to regulate truck drivers for years.

At an annual trucking and sleep apnea conference held near Baltimore, medical equipment companies have marketed some devices to be used by trucking companies to monitor the use of CPAP equipment by truck driving employees.

For years, the FMCSA Medical Review Board, which has power to make recommendations and suggestions, has issued guidance related to obstructive sleep apnea that didn’t carry the authority of a federal regulation but could be interpreted by doctors and trucking companies as policy. In some instances, companies have required sleep tests at company terminals and even sold medical devices like CPAPs directly to drivers all while pointing to the Medical Review Board’s recommendations.

OOIDA has stated it believes any truck driver with signs or symptoms of sleep apnea should seek the advice of their primary care physician. The Association has opposed mandates to require testing solely based on Body Mass Index or BMI, and requirements that truckers use only expensive medical devices to treat the condition when other less expensive alternatives may be as effective.

In the news release, OOIDA pointed to sleep apnea research published by FMCSA that shows “no statistical evidence to suggest that the presence of sleep apnea significantly increases the likelihood or the risk of motor vehicle crashes.”

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