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The critical role of an MRO in drug testing - Federal and Iowa

Russ Samson Iowa Employment & Labor Law Dickinson Law Des Moines Iowa

Posted on 05/11/2016 at 12:00 AM by Russell Samson

The unpublished May 3, 2016, decision of the United States Circuit Court of Appeals for the Fourth Circuit in Lisotto v. New Prime, Inc., Docket No. 15-1273 (4th Cir. 2016) contains some important reminders for employers regarding the proper roles of a Medical Review Officer (MRO) in substance abuse testing.  While Lisotto arose under federal DOT testing, the role of an MRO under Iowa’s Private Sector Drug-Free Workplaces law, Iowa Code Section 730.5 is essentially the same.  Iowa’s law defines an MRO as one who is “responsible for receiving laboratory results generated by an employer’s drug or alcohol testing program, and who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual’s confirmed positive test result together with the individual’s medical history and any other relevant biomedical information.”  In contrast, the U.S. Department of Transportation devotes Subsection G of 49 CFR Part 40 to the establishment of expectations for Medical Review Officers.  Given that there is no agency in Iowa with the authority to establish standards for MROs operating under Iowa’s laws, my experience is that most MROs reviewing Iowa drug test lab results will revert to the standards of federal law – primarily because the great preponderance of persons operating as MROs under Iowa’s laws are in fact MRO’s under the DOT testing standards as well.

Lisotto’s lawsuit had been dismissed by a federal district court based solely on the allegations of the pleadings.  Thus, everything that was alleged in Lisotto’s complaint was presumed to be true.  What follows as being reported as a “fact” may or may not be objectively accurate.  The statements do accurately reflect what Lisotto alleged — apparently without, at the initial juncture, dispute from the defendant Prime, Inc.

In August 2010, Lisotto applied for a truck driver position with Prime, Inc.  At the time of the application Lisotto was employed as a correctional officer in South Carolina at a salary of about $30,000.00 per year.  However, Lisotto had about seven years’ experience as a long-distance truck driver.  Roughly a week after receiving Lisotto’s application, Prime sent Lisotto an email informing him that he was approved to attend Prime’s orientation program in Springfield, Missouri.  Lisotto was told that in accordance with Federal Motor Carrier Safety Administration (“FMCSA”) standards, he would be required to pass a physical examination and a drug screen.  Prime gave Lisotto a one-way bus ticket to Springfield – explaining that upon completion of a successful orientation, he would receive an “assigned truck” and would be expected to drive it back to South Carolina, where he would work out of Columbia, South Carolina.

Lisotto had been told that he had a sleep disorder “believed to be or diagnosed as narcolepsy.”  (Remember, this is just the pleadings.)  Anticipating the FMCSA physical and drug screen required for over-the-road truck drivers, Lisotto obtained a letter from his physician.  The letter explained that Lisotto took a type of prescription amphetamine (specifically Dexedrine) to manage the sleep disorder.  The physician opined in the letter, “that the prescribed medication would not adversely affect [Lisotto’s] ability to safely operate a commercial motor vehicle, as [he] had for many years been driving commercial trucks safely . . . while taking [Dexedrine] and had experienced no problems with narcolepsy.”  Armed with the information from his treating physician and the one-way bus ticket from Prime, Lisotto quit his job and went to Springfield, Missouri.

As required, Lisotto reported for his physical examination and drug test.  Lisotto gave Dr. Abraham the letter from Lisotto’s personal physician, and showed Dr. Abraham the prescription for Dexedrine.  Dr. Abraham noted that under Prime’s standards, the only medication that Prime would accept for narcolepsy is “Provigil.”  (By implication, Dr. Abraham did not determine that the diagnosis of narcolepsy precluded Lisotto from being qualified to drive for Prime.)  Dr. Abraham instructed Lisotto that he needed to be off Dexedrine for at least one month and needed to be on Provigil for at least 6 weeks and “document[] [his] stability” before beginning employment with Prime.

About an hour after he had left Dr. Abraham and was sitting in the orientation program, one of Prime’s nurses took Lisotto out of the classroom.  The nurse told Lisotto, “he could not work for Prime because he had tested positive for amphetamines.”  Remember, these are, at this juncture, all just the allegations in the initial pleading of the lawsuit.  The nurse (allegedly) tempered her statement by telling him to return home and take Provigil for six weeks to see how it would affect him.

Two days following the events in Springfield, Missouri, Lisotto received a telephone call from one “Dr. Mauldin,” who identified himself as Prime’s MRO.  In describing the call from MRO Maudlin, the Fourth Circuit’s written opinion specifically cites to 49 CFR § 40.129(a)(4) and 49 CFR § 40.131(a) Those regulations each talk about the federal requirement that if the laboratory reports a positive lab result to the MRO, the MRO speak personally with the employee.  The federal court complaint alleged that Dr. Mauldin told Lisotto that he (Dr. Mauldin) needed to hear from Lisotto’s doctor about the medical condition and the prescribed medication.  The federal court complaint apparently alleged that Lisotto “right away” contacted his personal physician, who promptly and repeatedly attempted to contact Dr. Mauldin, but the personal physician was never able to reach anyone in Dr. Mauldin’s office.

One can appreciate that the Fourth Circuit was looking, as was the district court, solely at the pleadings.  So everyone had to take at face value the report that Dr. Mauldin said if he didn’t hear from the personal physician within five days, he (Dr. Mauldin) would report a positive test to the DOT.  (I make this observation because I know that confirming reports of test results do NOT go to the DOT.  See, 49 CFR § 40.165 – To whom does the MRO transmit reports of drug test results?

Continuing, it is alleged that Dr. Mauldin in fact reported Lisotto as having a “positive” drug test.  It is also alleged that upon Lisotto’s return from the Springfield orientation, Lisotto’s personal physician changed his medication to Provigil, and that Lisotto took the new medication as directed and experienced no detrimental side effects.   It is asserted that on November 1, Lisotto called Prime (not Dr. Abraham, however) to report that he had complied with the directives of Dr. Abraham and of the nurse, such that he was ready to re-start the orientation/hiring process.  Allegedly Lisotto was transferred to Prime’s personnel office, where an employee told him that, “You cannot work for Prime because you tested positive for amphetamines” and hung up.

Some two months later, Lisotto – who remained unemployed — reportedly wrote to the MRO. Lisotto acknowledged that the laboratory test was accurate, but contended that he had medical diagnoses and a prescription for the amphetamines.  In January 2011, some two months after the letter from Lisotto, Dr. Mauldin reportedly responded: “Even though you had a prescription for amphetamines, in my opinion you have a disqualifying medical condition since narcolepsy is a safety concern.”

Prime, Inc. sought to have Lisotto’s federal court complaint, predicated upon an alleged violation of the Americans with Disabilities Act, dismissed.  Prime based its action on a contention that there was a bona fide dispute as to whether Lisotto was qualified for the position he sought, and that underlying that dispute was “a disagreement between the physician for the driver and the physician for the motor carrier concerning the driver’s qualifications” within the meaning of 49 C.F.R. § 391.47(b)(2), which provides an administrative means for resolving the disagreement and which Prime contended Lisotto should have utilized before bringing suit.  Under the specific terms of that regulation, it is required that as part of the invocation of the administrative process, the “applicant must submit proof that there is a disagreement between the physician for the driver and the physician for the motor carrier concerning the driver’s qualifications.”

Contrary to the district court below, the Fourth Circuit noted that the pleading did not indicate that there was a dispute between Dr. Abraham – Prime’s physician, who conducted the medical examination of Lisotto – and Lisotto’s personal physician.  Neither of those two physicians had expressed a concern that the diagnosis of narcolepsy (if there was one) barred Lisotto from being qualified as a driver.  Dr. Abraham, as Prime’s physician, was willing to permit Lisotto to try Prime’s “approved” drug for at least 6 weeks and then document that Provigil in fact worked to control the situation.

Dr. Mauldin, while a “physician,” was acting in his capacity as an MRO.  He was not retained to opine on Lisotto’s medical qualifications as a driver beyond the results of the urine test.  If it were not for the quoted letter from January 2011 from MRO Maudlin to Lisotto, I can envision a number of situations where there might be a “positive” drug test reported even if the individual had a valid prescription:  As an example, because the tests are quantitative, it is possible to say with some degree of medical certainty that an amount detected by the laboratory is inconsistent with the amount that would be found if the individual were taking the medication as prescribed.  A prescription is not a license to take what one feels is appropriate.  Per the Substance Abuse and Mental Health Services Administration’s (“SAMHSA”) MRO Manual,

Amphetamine and methamphetamine exist in two isomeric structural forms known as enantiomers.  Enantiomers are non-superimposable mirror images. . . .  Generally, the amphetamine/methamphetamine result reported by the laboratory does not indicate the specific enantiomer because the laboratory procedure is set up to only identify and quantitate the presence of amphetamine and/or methamphetamine.  In order to determine which enantiomer is present, an additional analysis must be performed. The enantiomer identification may be useful in determining if a donor has been using an OTC product such as the Vicks® VapoInhaler® that contains l-methamphetamine (also called l-desoxyephedrine or levmetamfetamine), a prescription medication, or abusing an illegal drug. However, the presence of the l- isomer of either amphetamine or methamphetamine does not by itself rule out illegal use.

This is a very long way of saying and explaining why the fact there is a prescription “does not by itself rule out illegal use.”  In part, that explains why there is an MRO – to evaluate the laboratory results and the relevant biomedical information and make a medical determination, and communicate that determination to the employer.

Based on its determination that there was no dispute between the physicians for each of the two parties on Lisotto’s qualifications, the Fourth Circuit directed that the ADA lawsuit should proceed.  There is nothing really earthshaking in that action.  The take-away from the decision is that it is important that an employer which is doing drug testing under any DOT regulation, or that an Iowa employer doing drug testing under Iowa Code Section 730.5, have open lines of communication with the MRO who is reviewing laboratory results and communicating with the employer.

The role of an MRO is that of a check and balance, inserted into drug testing for the protection of the employee, co-workers, the employer, and the general public.  While the fees of an MRO are generally paid by the employer, the MRO is not “the employer’s doctor.”   The MRO’s role, I suggest, should be limited to doing what the MRO is supposed to do — receive the laboratory results, review the paperwork and process, receive relevant biomedical information and make (and communicate) an informed decision to the employer on what the results of the test are.

If an employer has a question about a report received from an MRO, seek clarification.  If an individual raises a question with you, the employer, about a test result, don’t blindly assume the MRO cannot be wrong:  Ask for clarification.  Sometimes doctors, like lawyers, speak in a language not readily understood.

And take some solace in the fact that an MRO is not obligated to forever hold in confidence any medical information the MRO learns as part of the review process.  The DOT’s federal regulations, at least, require disclosure to third parties (including the employer) in some instances:

When must the MRO report medical information gathered in the verification process?

As the MRO, you must, except as provided in paragraph (c) of this section, report drug test results and medical information you learned as part of the verification process to third parties without the employee’s consent if you determine, in your reasonable medical judgment, that:

(1)          The information is likely to result in the employee being determined to be medically unqualified under an applicable DOT agency regulation; or

(2)          The information indicates that continued performance by the employee of his or her safety-sensitive function is likely to pose a significant safety risk.

(b)     The third parties to whom you are authorized to provide information by this section include the employer, a physician or other health care provider responsible for determining the medical qualifications of the employee under an applicable DOT agency safety regulation, a SAP evaluating the employee as part of the return to duty process (see § 40.293(g)), a DOT agency, or the National Transportation Safety Board in the course of an accident investigation.

49 CFR § 40.327.

One returns to the particular posture of the Lisotto case – the Fourth Circuit was reviewing the dismissal of litigation based upon an alleged failure to exhaust FMSCA administrative remedies.  The Fourth Circuit – like the district court it was reviewing — was absolutely bound to accept the plaintiff’s allegations as true at that stage of the proceedings.  Lisotto did not allege that Prime failed to hire him because of MRO Mauldin’s January 2011 letter, or that MRO Maudlin even reported his concerns about narcolepsy to Prime.  In the absence of such allegations, and in the face of allegations about what Prime’s medical examiner determined, it was not difficult for the Fourth Circuit to conclude that, “any opinion [MRO] Dr. Mauldin may have had about Appellant’s qualifications did not serve as a basis for Prime’s refusal to hire him.”

That said, if there was a “positive drug test” result reported by MRO Mauldin, the FMCSA regulations would impose a substantial impediment to Lisotto’s employability in positions requiring a CDL.  49 CFR Part 382, Subpart E – “Consequences for Drivers Engaging in Substance Use-Related Conduct.”

Under both DOT / FMCSA regulations and Iowa’ private sector drug testing law, it is ultimately the employer which is responsible for making employment decisions – and which is very likely to be named as a defendant in litigation if there is alleged to be some hiccup in the process.  If you, as an employer, have some question about information you get from an MRO, don’t hesitate to obtain an answer.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

 

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