1. You are a licensed physician (Doctor of Medicine or Osteopathy);
2. You are a licensed or certified social worker;
3. You are a licensed or certified psychologist;
4. You are a licensed or certified employee assistance professional; or
5. You are a drug and alcohol counselor certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission (NAADAC) or by the International Certification Reciprocity Consortium/Alcohol and Other Drug Abuse (ICRC).

(c) Qualification training. You must receive qualification training meeting the requirements of this paragraph (c).

1. Qualification training must provide instruction on the following subjects:
   (i) Background, rationale, and coverage of the Department’s drug and alcohol testing program;
   (ii) 49 CFR Part 40 and DOT agency drug and alcohol testing rules;
   (iii) Key DOT drug testing requirements, including collections, laboratory testing, MRO review, and problems in drug testing;
   (iv) Key DOT alcohol testing requirements, including the testing process, the role of BATs and STTs, and problems in alcohol tests;
   (v) SAP qualifications and prohibitions;
   (vi) The role of the SAP in the return-to-duty process, including the initial employee evaluation, referrals for education and/or treatment, the follow-up evaluation, continuing treatment recommendations, and the follow-up testing plan;
   (vii) SAP consultation and communication with employers, MROs, and treatment providers;
   (viii) Reporting and recordkeeping requirements;
   (ix) Issues that SAPs confront in carrying out their duties under the program.
2. Following your completion of qualification training under paragraph (c)(1) of this section, you must satisfactorily complete an examination administered by a nationally-recognized professional or training organization. The examination must comprehensively cover all the elements of qualification training listed in paragraph (c)(1) of this section.
3. The following is the schedule for qualification training you must meet:
   (i) If you became a SAP before August 1, 2001, you must meet the qualification training requirement no later than December 31, 2003.
   (ii) If you become a SAP between August 1, 2001, and December 31, 2003, you must meet the qualification training requirement no later than December 31, 2003.
   (iii) If you become a SAP on or after January 1, 2004, you must meet the qualification training requirement before you begin to perform SAP functions.

(d) Continuing education. During each three-year period from the date on which you satisfactorily complete the examination under paragraph (c)(2) of this section, you must complete continuing education consisting of at least 12 professional development hours (e.g., CEUs) relevant to performing SAP functions.

1. This continuing education must include material concerning new technologies, interpretations, recent guidance, rule changes, and other information about developments in SAP practice, pertaining to the DOT program, since the time you met the qualification training requirements of this section.
2. Your continuing education activities must include documentable assessment tools to assist you in determining whether you have adequately learned the material.

(e) Documentation. You must maintain documentation showing that you currently meet all requirements of this section. You must provide this documentation on request to DOT agency representatives and to employers and C/TPAs who are using or contemplating using your services.

(b) You must obtain the National Commission for Certifying Agencies (NCCA) accreditation before DOT will act on your petition.

(c) You must also meet the minimum requirements of Appendix E to this part before DOT will act on your petition.

(b) For purposes of this subpart, a verified positive DOT drug test result, a DOT alcohol test with a result indicating an alcohol concentration of 0.04 or greater, a refusal to test (including by adulterating or substituting a urine specimen) or any other violation of the prohibition on the use of alcohol or drugs under a DOT agency regulation constitutes a DOT drug and alcohol regulation violation.

(b) However, if you offer that employee an opportunity to return to a DOT safety-sensitive duty following a violation, you must, before the employee again performs that duty, ensure that the employee receives an evaluation by a SAP meeting the requirements of § 40.281 and that the employee successfully complies with the SAP’s evaluation recommendations.

(c) Payment for SAP evaluations and services is left for employers and employees to decide and may be governed by existing management-labor agreements and health care benefits.

(b) As a SAP, you are not an advocate for the employer or employee. Your function is to protect the public interest in safety by professionally evaluating the employee and recommending appropriate education/treatment, follow-up tests, and aftercare.

(b) Recommend a course of education and/or treatment with which the employee must demonstrate successful compliance prior to returning to DOT safety-sensitive duty.

1. You must make such a recommendation for every individual who has violated a DOT drug and alcohol regulation.
2. You must make a recommendation for education and/or treatment that will, to the greatest extent possible, protect public safety in the event that the employee returns to the performance of safety-sensitive functions.

(c) Appropriate education may include, but is not limited to, self-help groups (e.g., Alcoholics Anonymous) and community lectures, where attendance can be independently verified, and bona fide drug and alcohol education courses.

(d) Appropriate treatment may include, but is not limited to, in-patient hospitalization, partial in-patient treatment, out-patient counseling programs, and aftercare.

(e) You must provide a written report directly to the DER highlighting your specific recommendations for assistance (see § 40.311(c)).

(f) For purposes of your role in the evaluation process, you must assume that a verified positive test result has conclusively established that the employee committed a DOT drug and alcohol regulation violation. You must not take into consideration in any way, as a factor in determining what your recommendation will be, any of the following:

1. A claim by the employee that the test was unjustified or inaccurate;
2. Statements by the employee that attempt to mitigate the seriousness of a violation of a DOT drug or alcohol regulation (e.g., related to assertions of use of hemp oil, ‘‘medical marijuana’’ use, ‘‘contact positives,’’ poppy seed ingestion, job stress); or
3. Personal opinions you may have about the justification or rationale for drug and alcohol testing.

(g) In the course of gathering information for purposes of your evaluation in the case of a drug-related violation, you may consult with the MRO. As the MRO, you are required to cooperate with the SAP and provide available information the SAP requests. It is not necessary to obtain the consent of the employee to provide this information.

(b) As an employer, you must not seek a second SAP’s evaluation if the employee has already been evaluated by a qualified SAP. If the employee, contrary to paragraph (a) of this section, has obtained a second SAP evaluation, as an employer you may not rely on it for any purpose under this part.

(b) The SAP who made the initial evaluation may modify his or her initial evaluation and recommendations based on new or additional information (e.g., from an education or treatment program).

(b) To prevent the appearance of a conflict of interest, you must not refer an employee requiring assistance to your private practice or to a person or organization from which you receive payment or to a person or organization in which you have a financial interest. You are precluded from making referrals to entities with which you are financially associated.

(c) There are four exceptions to the prohibitions contained in paragraph (b) of this section. You may refer an employee to any of the following providers of assistance, regardless of your relationship with them:

1. A public agency (e.g., treatment facility) operated by a state, county, or municipality;
2. The employer or a person or organization under contract to the employer to provide alcohol or drug treatment and/or education services (e.g., the employer’s contracted treatment provider);
3. The sole source of therapeutically appropriate treatment under the employee’s health insurance program (e.g., the single substance abuse in-patient treatment program made available by the employee’s insurance coverage plan); or
4. The sole source of therapeutically appropriate treatment reasonably available to the employee (e.g., the only treatment facility or education program reasonably located within the general commuting area).

(b) As the SAP making the follow-up evaluation determination, you must:

1. Confer with or obtain appropriate documentation from the appropriate education and/or treatment program professionals where the employee was referred; and
2. Conduct a face-to-face clinical interview with the employee to determine if the employee demonstrates successful compliance with your initial evaluation recommendations.

(c)   1.  If the employee has demonstrated successful compliance, you must provide a written report directly to the DER highlighting your clinical determination that the employee has done so with your initial evaluation recommendation (see § 40.311(d)).
       2.  You may determine that an employee has successfully demonstrated compliance even though the employee has not yet completed the full regimen of education and/or treatment you recommended or needs additional asssitance. For example, if the employee has successfully completed the 30-day in-patient program you prescribed, you may make a ‘‘successful compliance’’ determination even though you conclude that the employee has not yet completed the out-patient counseling you recommended or should continue in an aftercare program.

(d)   1.   As the SAP, if you believe, as a result of the follow-up evaluation, that the employee has not demonstrated successful compliance with your recommendations, you must provide written notice directly to the DER (see § 40.311(e)).
       2.   As an employer who receives the SAP’s written notice that the employee has not successfully complied with the SAP’s recommendations, you must not return the employee to the performance of safety-sensitive duties.
       3.   As the SAP, you may conduct additional follow-up evaluation(s) if the employer determines that doing so is consistent with the employee’s progress as you have reported it and with the employer’s policy and/or labor-management agreements.
       4.   As the employer, following a SAP report that the employee has not demonstrated successful compliance, you may take personnel action consistent with your policy and/or labor-management agreements.

(b) As an employer receiving a recommendation for these services from a SAP, you may, as part of a return-to-duty agreement with the employee, require the employee to participate in the recommended services. You may monitor and document the employee’s participation in the recommended services. You may also make use of SAP and employee assistance program (EAP) services in assisting and monitoring employees’ compliance with SAP recommendations. Nothing in this section permits an employer to fail to carry out its obligations with respect to follow-up testing (see § 40.309 ).

(c) As an employee, you are obligated to comply with the SAP’s recommendations for these services. If you fail or refuse to do so, you may be subject to disciplinary action by your employer.

(b) As an employer, you must not return an employee to safety-sensitive duties until the employee meets the conditions of paragraph (a) of this section. However, you are not required to return an employee to safety-sensitive duties because the employee has met these conditions. That is a personnel decision that you have the discretion to make, subject to collective bargaining agreements or other legal requirements.

(c) As a SAP or MRO, you must not make a ‘‘fitness for duty’’ determination as part of this re-evaluation unless required to do so under an applicable DOT agency regulation. It is the employer, rather than you, who must decide whether to put the employee back to work in a safety-sensitive position.

(b) You must present a copy of this plan directly to the DER (see § 40.311(d)(9)).

(c) You are the sole determiner of the number and frequency of follow-up tests and whether these tests will be for drugs, alcohol, or both, unless otherwise directed by the appropriate DOT agency regulation. For example, if the employee had a positive drug test, but your evaluation or the treatment program professionals determined that the employee had an alcohol problem as well, you should require that the employee have follow-up tests for both drugs and alcohol.

(d) However, you must, at a minimum, direct that the employee be subject to six unannounced follow-up tests in the first 12 months of safety-sensitive duty following the employee’s return to safety-sensitive functions.

1. You may require a greater number of follow-up tests during the first 12-month period of safety-sensitive duty (e.g., you may require one test a month during the 12-month period; you may require two tests per month during the first 6-month period and one test per month during the final 6-month period).
2. You may also require follow-up tests during the 48 months of safety-sensitive duty following this first 12-month period.
3. You are not to establish the actual dates for the follow-up tests you prescribe. The decision on specific dates to test is the employer’s.
4. As the employer, you must not impose additional testing requirements (e.g., under company authority) on the employee that go beyond the SAP’s follow-up testing plan.

(e) The requirements of the SAP’s follow-up testing plan ‘‘follow the employee’’ to subsequent employers or through breaks in service. Example 1 to Paragraph (e): The employee returns to duty with Employer A. Two months afterward, after completing the first two of six follow-up tests required by the SAP’s plan, the employee quits his job with Employer A and begins to work in a similar position for Employer B. The employee remains obligated to complete the four additional tests during the next 10 months of safety-sensitive duty, and Employer B is responsible for ensuring that the employee does so. Employer B learns of this obligation through the inquiry it makes under § 40.25.
Example 2 to Paragraph (e): The employee returns to duty with Employer A. Three months later, after the employee completes the first two of six follow-up tests required by the SAP’s plan, Employer A lays the employee off for economic or seasonal employment reasons. Four months later, Employer A recalls the employee. Employer A must ensure that the employee completes the remaining four follow-up tests during the next nine months.

1. As the SAP, you may modify the determinations you have made concerning follow-up tests. For example, even if you recommended follow-up testing beyond the first 12-months, you can terminate the testing requirement at any time after the first year of testing. You must not, however, modify the requirement that the employee take at least six follow-up tests within the first 12 months after returning to the performance of safety-sensitive functions.

(b) You should schedule follow-up tests on dates of your own choosing, but you must ensure that the tests are unannounced with no discernable pattern as to their timing, and that the employee is given no advance notice.

(c) You cannot substitute any other tests (e.g., those carried out under the random testing program) conducted on the employee for this follow-up testing requirement.

(d) You cannot count a follow-up test that has been cancelled as a completed test. A cancelled follow-up test must be recollected.

(b) As an employer, you must ensure that you receive SAP written reports directly from the SAP performing the evaluation and that no third party or entity changed the SAP’s report in any way.

(c) The SAP’s written report, following an initial evaluation that determines what level of assistance is needed to address the employee’s drug and/or alcohol problems, must be on the SAP’s own letterhead (and not the letterhead of another service agent) signed and dated by the SAP, and must contain the following delineated items:

1. Employee’s name and SSN;
2. Employer’s name and address;
3. Reason for the assessment (specific violation of DOT regulations and violation date);
4. Date(s) of the assessment;
5. SAP’s education and/or treatment recommendation; and
6. SAP’s telephone number.

(d) The SAP’s written report concerning a follow-up evaluation that determines the employee has demonstrated successful compliance must be on the SAP’s own letterhead (and not the letterhead of another service agent), signed by the SAP and dated, and must contain the following items:

1. Employee’s name and SSN;
2. Employer’s name and address;
3. Reason for the initial assessment (specific violation of DOT regulations and violation date);
4. Date(s) of the initial assessment and synopsis of the treatment plan;
5. Name of practice(s) or service(s) providing the recommended education and/or treatment;
6. Inclusive dates of employee’s program participation;
7. Clinical characterization of employee’s program participation;
8. SAP’s clinical determination as to whether the employee has demonstrated successful compliance;
9. Follow-up testing plan;
10. Employee’s continuing care needs with specific treatment, aftercare, and/or support group services recommendations; and
11. SAP’s telephone number.

(e) The SAP’s written report concerning a follow-up evaluation that determines the employee has not demonstrated successful compliance must be on the SAP’s own letterhead (and not the letterhead of another service agent), signed by the SAP and dated, and must contain the following items:

1. Employee’s name and SSN;
2. Employer’s name and address;
3. Reason for the initial assessment (specific DOT violation and date);
4. Date(s) of initial assessment and synopsis of treatment plan;
5. Name of practice(s) or service(s) providing the recommended education and/or treatment;
6. Inclusive dates of employee’s program participation;
7. Clinical characterization of employee’s program participation;
8. Date(s) of the first follow-up evaluation;
9. Date(s) of any further follow-up evaluation the SAP has scheduled;
10. SAP’s clinical reasons for determining that the employee has not demonstrated successful compliance; and
11. SAP’s telephone number.

(f) As a SAP, you must also provide these written reports directly to the employee if the employee has no current employer and to the gaining DOT regulated employer in the event the employee obtains another transportation industry safety-sensitive position.

(g) As a SAP, you are to maintain copies of your reports to employers for 5 years, and your employee clinical records in accordance with Federal, state, and local laws regarding record maintenance, confidentiality, and release of information. You must make these records available, on request, to DOT agency representatives (e.g., inspectors conducting an audit or safety investigation) and representatives of the NTSB in an accident investigation.

§ 40.3—Definition.

§ 40.347—Service agent assistance with SAP-required follow-up testing.

§ 40.355—Transmission of SAP reports.

§ 40.329(c)—Making SAP reports available to employees on request.