President signs bill to require full process on apnea regulation

By Charlie Morasch, Land Line contributing writer | 10/16/2013

If the Federal Motor Carrier Safety Administration wants to require expensive sleep testing for truck drivers, the agency will have to go through its formal regulatory process.

President Barack Obama signed HR3095 into law on Tuesday, Oct. 15 – just 32 days after the legislation was first introduced in the U.S. House of Representatives. HR3095 would require the Federal Motor Carrier Safety Administration 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.

The bill was approved in the House by a vote of 405-0 in late September.

The U.S. Senate agreed by unanimous consent in the early evening hours Friday, Oct. 4 to approve HR3095.

The measure was first proposed in September by Reps. Larry Bucshon, R-Ind., and Dan Lipinski, D-Ill. By mid-September, companion legislation was introduced in the Senate co-sponsored by Senators Roy Blunt, R-Mo., and Mark Warner, D-Va.

Both pieces of legislation were seen as a response to rumblings that FMCSA was preparing guidance that would urge physicians to require truckers with a Body Mass Index of 35 or greater to undergo overnight sleep exams. Guidance, though it would carry the weight of FMCSA’s name, wouldn’t have required a public comment period or other measures common to the regulatory approval process.

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

The legislation was supported by the Owner-Operator Independent Drivers Association. When the legislation was being discussed in committee, OOIDA asked members to call their congressional representatives and urge their support for the measure.

OOIDA Director of Government Affairs Ryan Bowley in the Association’s DC office says the members sounded off to their lawmakers on the issue in a big way.

“Truckers really got involved with this issue,” said Bowley. “We heard from a number of congressional offices that said truckers – especially OOIDA members – were very much engaged on this issue. Their voices were very important on getting this legislation through the House and the Senate not only without a single dissenting vote, but without a single dissenting speech on the legislation.”

After the measure passed both the House and Senate, OOIDA thanked its membership for contacting their lawmakers.

OOIDA Executive Vice President Todd Spencer said the Association’s members had good reason to become involved with the legislation.

“Clearly, this was an issue that resonates with truckers because many of them are currently paying the price for their belief that there is a lack of clarity on this issue,” Executive Vice President Todd Spencer said. “We don’t see where anyone is winning, other than the sleep disorder businesses.”

As representatives of truck driving professionals, OOIDA generally supports efforts to improve a truck driver’s bottom line, or health, Spencer said.

“But this is an area where FMCSA either intentionally or inadvertently opened a can of worms that they were content to just let go everywhere,” Spencer said. “We didn’t share that perspective. We’re thrilled that lawmakers recognized the severity of the situation and the need for FMCSA to actually do their job. If they want to enact a regulation, they need to really demonstrate a need for whatever it is you’re proposing, not just, ‘I think it’s a good idea.’ But show us the money – show us the safety benefit.”

Bucshon, a physician, argued on the House floor that FMCSA 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 in mid-September. “The problem with issuing guidance instead of traditional rulemaking is that guidance is non-binding and open to interpretation.”

The legislation also was supported by American Trucking Associations, the American Bus Association, the United Motorcoach Association, the National School Transportation, and the International Brotherhood of Teamsters.

Some sleep labs and medical equipment manufacturers have set their sights on truck drivers and other CDL-holders 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.

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 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 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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