Federal Update
Privacy concerns plague proposed medical record reg, OOIDA says

By Jami Jones, managing editor

The latest step in revamping the medical certification process proposed by the Federal Motor Carrier Safety Administration leaves little protection for driver privacy, according to comments filed by OOIDA.

The agency published a notice of proposed rulemaking on May 10, outlining proposed changes to the medical examiner forms and transmission of those forms to the agency.

FMCSA proposes to require that medical examiners report the results of physical examinations to FMCSA by close of business on the day the examination is conducted. They must complete a medical examination report, dubbed the “long form” in the industry.

If the reported results show the driver is not medically qualified, FMCSA proposes to invalidate all previously issued certificates and send that information to the driver’s home state driver’s licensing agency. The state agency would then be required to record the driver’s statues as “not certified” in the Commercial Driver’s License Information System.

The information would be accessible to roadside law enforcement during traffic stops and inspections.

The agency also proposes that medical examiners begin using a new medical examination report developed in consultation with health care providers familiar with performing driver exams. The information on the new form would be more comprehensive in terms of driver health questions, in addition to a number of clerical and form design revisions.

The overall proposal increases the opportunity for personal information of drivers to be distributed and used by those without an interest in safety and other purposes, OOIDA stated in comments filed with the agency on July 9.

The notice of proposed rulemaking explains that FMCSA is not burdened with privacy act requirements because the proposed rule does not require the government’s collection of personally identifiable information.

“But that is not exactly true,” OOIDA’s comments state. “This (proposed) rule greatly expands the amount of information that the government collects or otherwise has access to under existing rules.”

The creation of expanded medical examiner report forms with more medical information provides easier access and greater opportunity for expanded distribution and use of the personal information by both the government and private parties, OOIDA stated.

“The fact that a (medical examiner report) is created, however, makes it that much easier for a motor carrier, state government, insurance carrier, or other entity to simply request of copy of the (report) from the driver as a condition for doing business or for purposes other than medical certification. No recognition or consideration of this privacy issue is evident in the record,” the comments state.

OOIDA seized the opportunity in the comment period to expand the need for driver’s privacy protection to state driver’s licensing agencies and to motor carriers.

There are a number of states that require drivers to submit the “long form” in place of the medical certificate to prove they are medically qualified to drive. The Association’s comments urge the agency to prohibit this practice.

In addition, OOIDA pointed out to FMCSA that it is very common for motor carriers to collect the long form for driver files. The current regulations require only that a motor carrier keep a copy of the driver’s medical card on file – not the long form.

“OOIDA asks FMCSA to specifically prohibit motor carriers from obtaining a driver’s (medical examiner report),” the comments state. “Motor carriers have no legitimate interest in the medical certification of a driver other than the specific interest served by the proposed rule: to confirm whether a driver has a current valid medical certification.

“A motor carrier’s possession of such broad personal and private information is ripe for misuse – whether to coerce a driver to operate in a certain manner or to accept lower compensation.” LL