Notation 7381A: The National Transportation Safety Board has reviewed the Federal Motor Carrier Safety Administration (FMCSA) Notice of Proposed Rulemaking (NPRM), Medical Certification Requirements as Part of the [Commercial Driver’s License] CDL, which was published at 71 Federal Register 66723 on November 16, 2006. The NPRM proposes to amend the Federal Motor Carrier Safety Regulations to merge information from the medical certificate into the CDL process.
The Safety Board’s has long had an interest in the link between commercial driver fitness and transportation safety. Following its investigation of a 1999 motorcoach accident involving a medically unfit driver that resulted in 22 fatalities, the Safety Board issued 8 recommendations to the FMCSA outlining a comprehensive medical oversight program for interstate commercial drivers. These recommendations, listed below, have been on the Board’s Most Wanted List for 3 years.
Develop a comprehensive medical oversight program for interstate commercial drivers that contains the following program elements:
• Individuals performing medical examinations for drivers are qualified to do so and are educated about occupational issues for drivers. (H-01-17)
• A tracking mechanism is established that ensures that every prior application by an individual for medical certification is recorded and reviewed. (H-01-18)
• Medical certification regulations are updated periodically to permit trained examiners to clearly determine whether drivers with common medical conditions should be issued a medical certificate. (H-01-19)
• Individuals performing examinations have specific guidance and a readily identifiable source of information for questions on such examinations. (H 01-20)
• The review process prevents, or identifies and corrects, the inappropriate issuance of medical certification. (H-01-21)
• Mechanisms for reporting medical conditions to the medical certification and reviewing authority and for evaluating these conditions between medical certification exams are in place; individuals, health care providers, and employers are aware of these mechanisms. (H-01-22)
• Enforcement authorities can identify invalid medical certification during safety inspections and routine stops. (H-01-23)
• Enforcement authorities can prevent an uncertified driver from driving until an appropriate medical examination takes place. (H-01-24)
Safety Recommendations H-01-17, -18, -20, -21, -22, -23, and -24 are currently classified “Open?Unacceptable Response.” Safety Recommendation H-01-19 is currently classified “Open?Acceptable Response.”
This NPRM, to a certain extent, addresses two of the recommendations noted above: Safety Recommendations H-01-23 and -24. The NPRM would allow enforcement authorities to identify, during safety inspections and routine stops, those drivers who fail to submit either an original or a copy of their latest medical certificate to the State Driver Licensing Agency (SDLA), and, as currently written, would permit authorities to place out of service such drivers and those for whom 60 days had elapsed from the expiration date of their latest submitted certificate. However, the NPRM does not establish a comprehensive medical oversight program as recommended by the Safety Board. Specifically, neither this NPRM, nor any other publicly announced FMCSA initiatives, create a process to review or track medical certification examinations or decisions, as recommended in H-01-18 and -21 or to create a mechanism for reporting medical conditions identified between examinations, as recommended in H-01-22. The Safety Board is convinced that for any commercial driver medical oversight program to be effective, a systematic approach is necessary that addresses all of the issues conveyed in the eight recommendations. Accordingly, these deficiencies in the NPRM may limit its effectiveness. The following paragraphs discuss specific deficiencies in the NPRM.
No Mechanism to Ensure Medical Certificate Validity. The Safety Board is concerned that, because the certificate form is not a controlled document, has no standard appearance, and may be freely reproduced, a means is needed for the SDLA to verify that forms submitted by drivers are issued in accordance with existing regulations. In at least one instance, an insulin-dependent bus driver who was involved in a single-vehicle, run-off-the-road accident possessed an expired medical certificate that had been altered to indicate that it was current (May 2001, Bay St. Louis, Mississippi, Safety Board accident number HWY01IH024). Additionally, because drivers are not prevented from visiting multiple examiners (“doctor shopping”) in their attempts to obtain medical certificates, the Safety Board believes that a means is necessary for the SDLA to establish that a driver has not previously been denied a medical certificate. The Safety Board also notes that the proposed rule does not include the commercial driver medical examiner’s phone number, currently included on the medical certificate, as one of the required CDLIS data fields, which may hinder authorities from calling medical examiners to confirm that they have actually issued medical certificates.
Sixty-Day Period to Downgrade the CDL. The Safety Board is also concerned about the proposed 60-day window during which the CDL may not be downgraded for drivers who have received a medical certification status of “not-qualified.” The Board is aware that examiners may time-limit certificates to periods considerably shorter than 2 years, particularly when they find medical conditions that may change over a relatively short time, or when they are awaiting additional medical information from the driver. However, the proposed 60-day window would increase such a limitation by as much as 2 months, potentially thwarting the examiner’s intent to limit the certificate of a driver with a worrisome medical condition. Although the Safety Board supports the addition of driving while in a “not qualified” status during the 60-day window as a disqualifying offense (that is, by adding it to table 2 of §383.51(c)), the Board is concerned that such an addition would not automatically permit the authorities to take an unqualified driver out of service, which could allow an identified potential safety risk to persist for as long as 60 days.
Unclear Employer Responsibilities. The Safety Board is concerned that the proposed rule contains no requirement for the SDLA to notify the employer if a driver’s CDL is downgraded due to an outdated medical certificate, and a motor carrier that is not maintaining medical certificates in driver qualification files will not know if a particular driver’s certificate has expired. As a result, the rule as proposed could hinder the FMCSA from holding carriers responsible for ensuring that all their drivers are qualified beyond the time of initial hire. A majority of a carrier’s employees could have outdated or invalid medical certificates, and the carrier would not be required to have timely knowledge of that situation.
No Provision for State Revocation of CDL. The Safety Board is aware that several states have procedures for reporting and subsequently investigating CDL holders with medical conditions that would potentially prevent them from operating commercial motor vehicles safely, and if necessary, revoking their CDLs. However, the proposed rule does not provide for states to change the medical certification to “not qualified” when they learn that CDL holders have medical conditions incompatible with safe commercial vehicle operation.
No Provision for States or Employers to Retain Long Form. The Safety Board is concerned that the proposed rulemaking does not specifically permit states and/or employers to require copies of the medical certificate or examination form (that is, the long form) to be provided and retained for review. The Safety Board therefore suggests that the rule require (as several states already do) that the entire long form (and not just the certificate) be submitted to and retained by the SDLA for review as necessary. At an absolute minimum, the rule should clarify that states and employers be expressly permitted to require submission of the long form and to retain the information indefinitely.
No Provision for Medical Examiners to Retain Long Form. The Safety Board is concerned that the proposed rulemaking does not clarify that medical examiners are still required to retain the long form. This requirement currently exists only in the “Instructions for Performing and Recording Physical Examinations,” which follows 49 Code of Federal Regulations 391.43, and there are no other requirements for this form to be retained. If the long form is not retained, medical examiners, SDLAs, and accident investigation authorities are among those who would not be able to obtain the records necessary to document drivers’ known medical conditions, should the need arise.
It is also unclear why the proposed rule allows examiners to routinely eliminate medical certificates from their records once they expire, making subsequent verification difficult or impossible. As in the example above from the Bay St. Louis, Mississippi, accident, a simple change of date might not be traceable because the original expired certificate would not be on file.
No Requirement for Indefinite Retention of Certificate. Finally, although the NPRM has specified a 6-month period for retaining a copy or image of the medical examiners’ certificate, it is unclear to the Safety Board why the SDLA would not be required to maintain a copy of each submitted medical certificate indefinitely. Under current regulations, this might be the only historical record of these certificates.
The Safety Board is disappointed at the length of time taken by the FMCSA to generate this NPRM. If modified to address the concerns noted above, the proposed rule may make some nominal steps towards improving safety, but it does not represent considerable progress toward the goal of a comprehensive medical oversight program for interstate commercial drivers that was envisioned in the Board’s recommendations on this topic. Accordingly, the Board encourages the FMCSA to develop a more robust framework for such oversight.
The Safety Board appreciates the opportunity to comment on this NPRM.