House approves bill to require FMCSA regulatory process on apnea

By Charlie Morasch, Land Line contributing writer | 9/26/2013

The U.S. House of Representatives soundly approved a measure to require the Federal Motor Carrier Safety Administration to go through its formal regulatory process when considering sleep apnea requirements for CDL-holders.

In a 405-0 vote, the House approved HR3095, which 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.

Introduced two weeks ago by Reps. Larry Bucshon, R-Ind., and Dan Lipinski, D-Ill., the legislation was seen as a response to rumors in D.C. that FMCSA was working on issuing guidance to medical doctors treating truck and bus drivers. The guidance reportedly would have meant drivers with a BMI of 35 or greater would be referred for a sleep lab test, which often costs $2,000 to $3,000.

Guidance can be issued without public comment periods or other information-gathering methods common with federal regulations. Shortly before HR3095’s introduction two weeks ago, FMCSA said it would proceed with its formal rulemaking process rather than issue guidance on sleep apnea.

Companion legislation, S1537, has been introduced in the U.S. Senate by Sens. Mark Warner, D-Va., and Roy Blunt, R-Mo.

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.

HR3095 was supported by a broad coalition in the transportation industry, including OOIDA, the American Trucking Associations, the American Bus Association, the United Motor Coach Association, the Private School Bus operators, and the International Brotherhood of Teamsters.

“Small-business truckers thank the House for its support of this important legislation,” OOIDA Executive Vice President Todd Spencer said. “We estimate that the potential cost to trucking from an overly broad policy will reach at least $1 billion, with much of the cost likely to be borne by safe and experienced small-business truckers. Without this legislation, FMCSA would be free to act on setting sleep apnea policy without considering these costs.”

OOIDA asked the Association’s members to call the capitol switchboard and get in touch with their representative to thank them for their support on HR3095. OOIDA also asked members to contact their senators to ask for their support for S1537. To find your senator, click here.

Some sleep labs and medical equipment manufacturers have set their sights on truck drivers in recent years. The industries have sponsored annual conferences on sleep apnea and trucking held in Baltimore, and several members of the advisory FMCSA Medical Review Board have disclosed their ties to sleep labs and CPAP manufacturers.

Regardless of Thursday’s vote on HR3095, the movement to test more drivers may have allies in congress.

During debate in the House Wednesday, Rep. Eleanor Holmes Norton, a delegate for Washington, D.C., said she didn’t oppose the legislation.

“I can only hope that the agency, which has a long docket, in fact gets to this rulemaking,” Norton said. “It’s best to have the formal effect of rules.”

Bucshon, himself a physician, argued Wednesday that the agency shouldn’t leave guidance open to a doctor’s interpretation.

“If the FMCSA decides they want to weigh in on sleep apnea, they need to do so in the rulemaking process,” Bucshon said. “The problem with issuing guidance instead of traditional rulemaking is that guidance is nonbinding and open to interpretation.”

OOIDA has previously stated that 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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