Some organizations that train certified medical examiners are skirting the law by telling examiners to test truckers for sleep apnea, a pair of U.S. representatives stated in a letter to the Federal Motor Carrier Safety Administration on Thursday, Oct. 2.
U.S. Reps. Larry Bucshon, R-Ind., and Dan Lipinski, D-Ill., refer to HR3095, a bill passed by Congress and signed by the president in October 2013 that prohibits the FMCSA from “implementing or enforcing a requirement providing for the screening, testing or treatment of individuals operating commercial motor vehicles for sleep disorders only if the requirement is adopted pursuant to the rulemaking proceeding.”
The language in the law is clear: There is to be no mandate or guidance for apnea testing without going through the formal rulemaking and public comment process.
“It has come to my attention, however, that organizations that provide training for certified medical examiners are circumventing HR3095,” the lawmakers stated in the letter addressed to acting FMCSA Administrator Scott Darling.
“Specifically, the instructions they are providing clearly indicate that examiners should follow the obstructive sleep apnea guidance originally published by FMCSA on April 20, 2012 (and subsequently rescinded on April 27, 2012).”
The FMCSA’s National Registry of Certified Medical Examiners went live on May 21 of this year, requiring truckers to obtain their driver physicals and medical cards from a certified examiner.
Since May 21, many drivers have told OOIDA’s regulatory team that their medical examiners are ordering sleep tests based on a driver’s weight, body-mass index, neck size, overbite, snoring and other criteria.
Bucshon and Lipinski point out in their letter how some medical training organizations are associated with sleep labs.
The lawmakers state that a company called REM Sleep Labs out of Southern California provides “DOT Guidelines for sleep apnea” and it instructs examiners to order sleep tests based on a dozen criteria such as neck size or “family history of sleep apnea.”
The lawmakers say the FMCSA has a responsibility to fully vet the organizations that train the examiners and make sure everyone follows the directive of Congress.
Bucshon and Lipinski are urging the FMCSA to take three steps to correct problems:
Communicate to all approved training organizations that examiners are not to be instructed to follow any specific steps with respect to sleep apnea testing and treatment;
Instruct approved training organizations to remove all references to MRB, MCSAC and FMCSA recommendations on sleep apnea from their training materials; and
Provide specific instructions to examiners who have already been trained to correct the previous training they received. (source: Bucshon and Lipinski letter).
“It is imperative that FMCSA address these issues as soon as possible,” the lawmakers stated. “These faulty training courses are keeping qualified drivers off the road. We would request a written response as to how FMCSA plans to address these issues and their progress in this endeavor.”
In early June of this year, the FMCSA confirmed to Land Line that the administration intends to pursue a formal rulemaking on sleep apnea regulations for truck and bus drivers.
The confirmation – in the form of a clarification – followed a U.S. Senate subcommittee hearing at which former FMCSA Administrator Anne Ferro initially indicated that the administration would not seek a rulemaking. A spokeswoman later said that Ferro had misspoken, and that the administration would seek an apnea proposal in the future.
During the hearing, Sen. Roy Blunt, R-Mo., questioned Ferro about whether the FMCSA was following the rules set forth in HR3095. Ferro stated emphatically that the FMCSA was following those rules.
Ferro told the subcommittee, however, that medical examiners have a duty to evaluate chronic conditions that can affect a driver’s ability to operate a heavy commercial vehicle – including obstructive sleep apnea.
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