OOIDA files legal challenge on medical integration rule for circumventing rulemaking process

By Mark Schremmer, staff writer

The Owner-Operator Independent Drivers Association is challenging the Federal Motor Carrier Safety Administration’s rule on Medical Examiner’s Certification Integration, saying the agency added regulations that bypassed the rulemaking process.

OOIDA filed a petition for review in the U.S. Court of Appeals for the 8th Circuit in St. Louis. The Association’s arguments on the matter are due Dec. 19.

FMCSA issued a final rule in April 2015 that required certified medical examiners, who perform physicals on drivers of commercial motor vehicles, to use a new medical form. The agency announced it was creating procedures by which medical examiners would submit the results of exams to the states so that a driver’s medical certification would be combined with the commercial driver’s license.

The intent of the change is to allow roadside enforcement access to both the driver’s license and medical certification during routine inspections and traffic stops via a federal database.

OOIDA contends, however, that the final rule added an Appendix A that wasn’t contained in the proposed rule. Included in the appendix is a section on respiratory dysfunction, which lists sleep apnea as one of the conditions. The appendix says "if the medical examiner detects a respiratory dysfunction that in any way is likely to interfere with the driver’s ability to safely control and drive a commercial motor vehicle, the driver must be referred to a specialist for further evaluation and therapy."

"The final rule added something not contained in the proposed rule," OOIDA attorney Paul D. Cullen Jr. said.

The end result is a regulation that includes instruction that examiners should consider whether the driver has obstructive sleep apnea, Cullen said.

In October 2013, President Barack Obama signed into law a bill requiring the FMCSA to use a formal rulemaking process before requiring sleep apnea testing for commercial truck drivers.

Cullen said the agency uses the appendix to tell medical examiners how they should review different areas of a driver’s heath.

"While FMCSA has used what it likes to call ‘guidelines’ on such issues for several years, never before had the guidelines been made a part of the Code of Federal Regulations," he said. "And now the agency has amended the rules without following the required rulemaking procedures: proposing it first, taking public comment, doing a cost benefit analysis, and justifying the rules in consideration of public comment and other public information in its possession."

In the final rule, the agency retooled the driver health history portion of the medical history form to include several new questions. The updated form has 32 health conditions listed, and 13 are new to the form.

The new form also modified the duration of the medical history from five years to lifetime. The conditions include things like chronic cough; shortness of breath or other breathing problems; problems staying awake; loud snoring; sleep apnea; and broken bones. Patients are also asked if they have ever had a sleep test, or spent a night in the hospital.

In previous comments regarding the final rule, OOIDA said drivers are the ones forced to pay for the arbitrary standards.

"These practices pull safe drivers off the road for protracted periods of time and force them to spend thousands of dollars on unwarranted tests and expensive exams," OOIDA wrote. "In worst-case situations, safe driving careers are ended and small businesses are forced to close. OOIDA members have experienced these consequences firsthand on too many occasions."

Cullen said the ambiguity has been a consistent problem regarding medical standards and that a proper rulemaking would have required the FMCSA to account for and justify the cost and burden of the required exams.

"For years, OOIDA members have reported being held to different medical standards and being put through different tests and procedures depending on which examiners they go to. The rules were just too vague and ambiguous for doctors to know exactly what was required."