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Where Does the Liability Lie?

The new Safety Sensitive 5 day hold ruling has brought about more than a few concerns amongst Third Party Administrators, Medical Review Officers, and Companies.

The new ruling that took effect January 1, 2018 states that any D.O.T. Drug screen that has an initial positive result that has been deemed negative due to a verified prescription must NOT receive a Safety Sensitive Concern until the donor has an opportunity for their prescribing physician to either take the donor off the medication or change them to a non scheduled drug. The donors physician has 5 days from the time the donor is notified of the process to contact the MRO. At that time, the MRO may use his judgment  on whether or not to issue the Safety Sensitive Concern regardless of medical information supplied by the donor’s physician.

Many might ask the question of “Why would the MRO still choose to issue the concern after the donor’s physician has replaced the scheduled drug with a non scheduled drug or taken the patient off the drug entirely?” As an MRO, I see on a daily basis the patient who had knee surgery a year ago and was prescribed T#3 for pain. The donor hasn’t taken all the prescribed medicine for his knee pain, as it has healed, and he was on his way back to normal duty. Fast forward 1 year later, the donor picks up something and strains his back a little. Of course, he doesn’t want to take time out from work to go to the Doctor so he goes to the medicine cabinet and self treats with that same T#3 that was originally prescribed for his knee pain. Perfectly legal as he has a valid prediction that is recent, however, he is now again on a controlled substance.

There are two ways this situation can be handled to relieve all parties mentioned of liability. The TPA should regard a Safety Sensitive Concern from the MRO as a flag to proceed with more information. The donor could alleviate the liability for his company and the TPA by getting a note from his treating physician stating based on the job description supplied by his employer the medication would not cause a safety risk. The other option is for the company to send the employee to a certified D.O.T examiner along with his job description for a note of clearance for the employees record. Both of these options are good avenues to deflect the responsibility of company, TPA, and MRO. The MRO would not in most situations remove the safety sensitive concern. The concern would stay in place but be secondary to the letter supplied by the employee’s prescribing physician or D.O.T. Examiner.

The next gray area that is sure to be up for further D.O.T. discussion is the delay of 5 days for the MRO to legally issue the concern. This is the new part of the ruling that has so many involved asking, “where does the responsibility fall?” If a donor has had an initial positive result that has been overturned to negative for verifying prescribed medication, as stated above, he has 5 days to get physician clearance. What happens if this person is involved in an accident within this time period? There is no clear ruling on this yet. It seems the TPA, company, and MRO should not hold liability during the 5 day window as they are all following the D.O.T. rule. This is what we are all counting on of course in the interim of waiting for further clarification on the subject. Unfortunately, it will more than likely be brought to the forefront of discussion when a fatality occurs and a lawsuit to the company follows. Some would argue the responsibility lies with the D.O.T. . Only time will tell about this one but for sure there are loose ends that need to be tidied up regarding this new regulation.

If you’d like to know more about this new ruling and how it could affect your business, contact MRO Express today to learn more.

Author Philip A. Lopez, M.D.,MRO
MROEXPRESS Medical Review Officer Services