Consortium/Third-Party Administrators (C/TPAs) manage all, or part, of an employer’s DOT drug and alcohol testing program, sometimes including maintaining required testing records. They perform tasks as agreed to by the employer to assist in implementing the drug and alcohol testing program and to help keep the employer compliant with the DOT/FMCSA Drug and Alcohol Testing rules and regulations.
A consortium will often manage the DOT random testing programs of several employers, including those of owner-operators who are not permitted to manage random testing themselves. Consortium’s that manage owner-operator programs play a very unique service agent role. While §40.355(k) prohibits service agents from serving as “designated employer representatives” (DER), the consortium is authorized to perform a number of employer functions in cases of owner-operators, and single driver employers.
While there are no DOT qualification requirements for a consortium or third-party administrator, the expectation is that they know all of the employer requirements and responsibilities under 49 CFR Part 40 and Part 382, including the related requirements of Part 383 (CDL Licensing), Part 391 (Driver Qualifications), and Part 392 (Driving of Commercial Motor Vehicles). Employers hire C/TPAs to keep them safe and in regulatory compliance.
Employers can be held responsible for service agent, including C/TPA, errors and resulting civil penalty actions for noncompliance. C/TPA and other service agent violations may be directly addressed under the public interest exclusion (PIE) as described in 49 CFR Part 40 Subpart R. Additionally under the Safe Roads Act of 2012, Congress provided authority for civil penalty actions against service agents (49 USC 31306a) [Moving Ahead for Progress in the 21st Century Act (“MAP-21”; P.L. 112-141)].
In addition to knowing the employer requirements, C/TPAs are responsible for knowing the following:
- §40.341 – Must service agents comply with DOT drug and alcohol testing requirements?
- §40.343 – What tasks may a service agent perform for an employer?
- §40.345 – In what circumstances may a C/TPA act as an intermediary in the transmission of drug and alcohol testing information to employers?
- §40.347 – What functions may C/TPAs perform with respect to administering testing?
- §40.349 – What records may a service agent receive and maintain?
- §40.351 – What confidentiality requirements apply to service agents?
- §40.353 – What principles govern the interaction between medical review officers and other service agents?
- §40.355 – What limitations apply to the activities of service agents? Of particular importance are the exceptions afforded C/TPAs regarding owner-operators and other self-employed individuals in:
- §40.355(f) – Concerning the transmission of substance abuse professional reports;
- §40.355(h) – Concerning reasonable suspicion, post-accident, return-to-duty, and follow up testing; and,
- §40.355(j)(1) – Concerning driver refusals for owner-operators and other self-employed individuals who fail to test after being scheduled and notified.
If an employer uses C/TPAs, the rules do not require a written contract, but having a written contract makes good business sense. Due to the number and complexity of drug and alcohol testing program requirements, written contracts or agreements between C/TPAs and employer clients are important to ensure each party understands who is responsible for each program requirement and provides evidence of regulatory compliance. The U.S. Department of Transportation Office of Drug and Alcohol Policy and Compliance publication “What Employers Need to Know About DOT Drug and Alcohol Testing” provides considerations about entering into contracts with service agents. Keep in mind, however, §382.105 requires that each employer ensure that all alcohol or controlled substances testing conducted under this part complies with the procedures set forth in Part 40, and §40.11 provides that employers are responsible for all actions of your officials, representatives, and agents (including service agents) in carrying out the requirements of the DOT agency regulations.