Letter from O&I to SAMHSA regarding federal drug testing in the workplace

Erik Broderick, D.D.S., M.P.H.
Acting Deputy Administrator
Substance Abuse and Mental Health
Services Administration
1 Choke Cherry Road
Rockville, MD 20857

Dear Dr. Broderick:

The Committee on Energy and Commerce, through its Subcommittee on Oversight and Investigations, has had a continuing interest in improving the mandatory drug-testing guidelines for the Federal Workplace Drug Testing Program (“mandatory guidelines”) by testing hair, sweat, and oral fluid specimens in addition to urine specimens.

The Committee has previously noted that Federal law has long encouraged that the best drug testing policy rely on the best available technology for detection. Congress, in the 1991 Omnibus Transportation Employee Testing Act made findings “that the greatest efforts must be expended to eliminate the abuse of alcohol and the use of illegal drugs.” That act in part mandated the establishment of drug testing procedures incorporating HHS guidelines that require the use of the best available technology for ensuring full reliability and the accuracy of controlled substances tests. The HHS drug testing policy is important because millions of Americans use transportation by aircraft, railroad, truck, and bus and depend upon the added layer of safety provided by drug testing. The HHS drug testing policy is also highly influential on the design of other government and industry drug testing programs that affect public safety.

Federal workplace drug testing policy continues to be based only on testing of urine specimens, as it has since 1988. However, alternative drug tests using hair, oral fluid, and sweat specimens could strengthen security and safety of the Federal workplace. These tests complement drug detection using urine specimens and can offer significant advantages that

tests using urine specimens cannot provide. These advantages are documented or substantiated by scientific studies, real-world experience in the private sector, and the approvals by the Food and Drug Administration of drugs-of-abuse testing systems using such specimens. For example, testing using hair specimens increases the time period over which the drug use can be detected as compared to urine and other specimens. We understand that the testing of urine specimens may not detect illegal substances such as heroin or methamphetamine because these substances quickly exit the body within 24 hours or less, but tests using hair specimens could detect these substances. (We note the continuing national scourge of methamphetamines and that just last month the Office of National Drug Control Policy unveiled a strategy that calls for cutting use of methamphetamines and misuse of prescription drugs by 15 percent over the next three years). Hair specimens are more easily collected, transported, and stored than urine and other specimens, and more difficult to adulterate than urine. Oral fluid testing is reported to work well at accident scenes where drug use is suspected, but urine testing is inconvenient. Collection of oral fluid is also perceived as less invasive than collection of urine specimens. Sweat testing is efficient for workers returning to duty after testing positive because it captures drug use within a specific window of weeks or days.

The addition of these specimens would also help combat subversion of federally mandated drug testing programs through adulteration, substitution, and dilution of urine specimens. We note that the Subcommittee held a hearing on May 17, 2005 on the subversion of drug testing programs. At this hearing, the Government Accountability Office (GAO) presented testimony and tape-recorded conversations showing how easily an individual seeking a security-sensitive or safety-sensitive position in the Federal government can obtain masking products. In particular, the GAO reported that according to SAMHSA approximately 400 different products are available to adulterate urine samples. The GAO emphasized “[t]he sheer number of these products and the ease with which they are marketed and sold through the Internet present formidable obstacles to the integrity of the drug testing process.”

The Committee appreciates your efforts to produce a final rule that would revise and update the mandatory guidelines to include drug-testing alternatives to urine testing. However, according to information listed with the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs, on June 30, 2006, HHS and SAMHSA withdrew the final rule on the mandatory guidelines that OMB had received on April 4, 2006. At a minimum, even if the reasons underlying the withdrawal were relatively minor and could be quickly addressed, we would expect the administrative process would not lead to the use of alternative specimens in the mandatory guidelines until 2007; SAMHSA began its dedicated assessment of drug testing using alternative specimens in April 1997.

Given our interest in the timely improvement of the mandatory guidelines, we are concerned about the withdrawal of the final rule, as a withdrawal is an unusual occurrence in the Federal rulemaking process. We are not aware of a disclosure of any additional, publicly-known economic or scientific data relating to testing of alternative specimens during the 86 days the final rule was pending with OMB that was not previously known before the submission of the final rule. Therefore, the Committee would like more information about what led to the withdrawal of the final rule and what issues (if any) are pending for future improvement of the mandatory guidelines. Pursuant to Rules X and XI of the U.S. House of Representatives, please provide the following:

1. Written responses on:

(a) Identification and explanation of the reasons and/or concerns (if any) underlying the withdrawal of the final rule;

(b) Date(s) for when these reasons or concerns were first known to SAMHSA;

(c) Names and positions of the officials who communicated these reasons or concerns to SAMHSA and names and positions of officials from SAMHSA who received these communication(s);

(d) How these reasons or concerns were communicated to SAMHSA;

(e) An explanation of whether the reasons and/or concerns could have been addressed without withdrawal of the final rule;

(f) An explanation of whether there are any reasons and/or concerns of similar significance relating to the testing of urine specimens;

(g) An explanation of what actions need to be taken to satisfy those concerns relating to testing of alternative specimens and an estimated timeframe for taking these actions; and

(h) An explanation of whether such actions or similar actions were taken with testing of urine specimens during the promulgation of the mandatory guidelines in 1988 or during subsequent revisions or attempted revisions of the mandatory guidelines.

2. All records relating to the final rule on the mandatory guidelines, dated on or from February 1, 2006 to the present.

Please note that, for the purpose of responding to these requests, the terms “records” and “relating” should be interpreted in accordance with the attachment to this letter. We would appreciate at least a partial response by October 6, 2006.

If you have any questions on this matter, please contact Alan Slobodin of the Committee staff at (202) 225-2927.

Sincerely,

Joe Barton
Chairman

Ed Whitfield
Chairman
Subcommittee on Oversight and Investigations

The Honorable Michael Leavitt, Secretary, Department of Health and Human Services