Transportation Committee moves bill on apnea rule forward

By Charlie Morasch, Land Line contributing writer | 9/19/2013

It isn’t that the U.S. House Transportation Committee doesn’t trust the Federal Motor Carrier Safety Administration, but …

They are, however, going to ensure that the agency follows through on a recent announcement to send a sleep apnea proposal for CDL-holders through the FMCSA’s formal regulatory process.

Within one week, a proposed congressional bill to require a full regulatory process by the FMCSA over sleep apnea was introduced and advanced to a committee for markup. The bill’s quick movements appear to have moved FMCSA to announce it would send its apnea proposal through the regulatory process as opposed to issuing “guidance” to be interpreted by doctors, motor carriers and truck drivers.

At a bill markup meeting Thursday, Sept. 19, several members of the U.S. House Transportation Committee acknowledged FMCSA’s announcement on the rulemaking while urging support for HR3095.

Introduced last week by Reps. Larry Bucshon, R-Ind., and Dan Lipinski, D-Ill., HR3095 would require FMCSA to go through its regulatory process and analyze the potential cost of sleep apnea requirements rather than simply issuing guidance to physicians, drivers and motor carriers.

Hours before the meeting, Politico’s Morning Transportation reported a statement from FMCSA regarding HR3095. “FMCSA will issue a notice to address obstructive sleep apnea through the formal rulemaking process after collecting and analyzing the necessary data and research,” the statement reads.

Congressional representatives at Thursday’s Transportation Committee markup meeting weren’t moved.

“While I appreciate the department’s responsiveness – to ensure there simply is no confusion over this, I think we need to move forward on this,” said Lipinski.

“As the former ranking and former chair of this subcommittee, I have to say that we have had problems with past directors from FMCSA,” said Rep. Peter DeFazio, D-Ore. “They don’t always get things exactly right. I think in this case, the authors of the bill on this committee played a very productive role.

“I think guidance had the potential to create tremendous confusion, unnecessary costs and be wrapped up in litigation for years to come. So it appears we’ve already had the desired effect, but I still think the legislation is necessary since that’s the only thing that triggered them to take this reasonable course of a formal rulemaking.”

Eleanor Holmes Norton, a democratic delegate representing Washington, D.C., also noted the speed of FMCSA’s response.

“I think the action of the committee has already produced the result we intended,” Norton said.

Even with FMCSA’s reported assurances, Bucshon said he believed “this bill is necessary to codify Congress’ opinion on this issue.”

Bucshon, a medical doctor, noted the potential for guidance issued by FMCSA to hurt truck drivers financially.

“The problem with issuing guidance instead of a traditional rulemaking is that the guidance is nonbinding and open for interpretation,” Bucshon said. “When someone with a commercial driver’s license goes to the doctor to get a physical, the doctor can follow the guidance and recommend a sleep apnea test.”

Many doctors would likely protect themselves legally by requiring a sleep test – and with it thousands of dollars for sleep study tests, Bucshon said.

“I know this from experience as a physician that many physicians already practice defensive medicine, and any guidance related at all to this issue would not only drive up the cost of medicine but potentially hurt an industry that already has high unemployment,” Bucshon said.

The committee approved the bill to be considered by the full House of Representatives.

The Owner-Operator Independent Drivers Association issued a statement shortly after the vote expressing gratitude to the committee and support for the bill’s co-sponsors.

“We thank the committee leadership for their attention to this issue and for moving forward with this commonsense bill,” OOIDA Executive Vice President Todd Spencer said. “Both the legislation and a formal rulemaking would bring certainty and clarity where currently there is none. The authors of HR3095 are true supporters of small-business truckers and a sound policy-making process.”

Truck drivers and other CDL-holders have expressed concern about being targeted by the multibillion dollar sleep and medical equipment industries. Because federally mandated physicals are tied to their license, regulations or advice from FMCSA to doctors wield particular power over a driver’s ability to work.

OOIDA has previously 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.

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