Cover Story
So your DOT doc says you ‘have’ to get tested for sleep apnea?
Does FMCSA really have any regs on the books mandating testing for sleep apnea? Many in the industry would like you to believe that it does.

By Jami Jones, managing editor

Let’s start off with a little quiz.

True or false: FMCSA has mandated sleep apnea testing for all CDL holders.

Unfortunately, a lot of people get the answer wrong. Some of those people include motor carriers and medical professionals conducting CDL medical certification tests.

The answer? False.

The Federal Motor Carrier Safety Administration is silent on sleep apnea testing. Many truckers who have been told that the testing is mandatory are probably either very puzzled or very upset right now.

The Federal Motor Carrier Safety Regulations state:

391.41(b) A person is physically qualified to drive a commercial motor vehicle if that person (5) has no established medical history or clinical diagnosis of a respiratory dysfunction likely to interfere with his/her ability to control and drive a commercial motor vehicle safely.

Not a word in there about testing. In order to get the full scoop on what FMCSA expects from the regulations, you must look at the “guidance” the agency issues on various regulations. The agency has established guidance for chronic sleep disorders, including sleep apnea.

In that guidance, the agency lays out the minimum waiting period for certification or recertification of an individual with a chronic sleep condition after starting treatment. There is a minimum one-month waiting period after starting a continuous positive airway pressure device (called a CPAP). Individuals with surgical treatment are to wait a minimum of three months before certification or recertification. Medical examiners are directed by the agency to certify the driver for only one year.

Here is where the “mandated testing” comes in. After someone is diagnosed, the agency’s guidance directs the medical examiner to certify or recertify someone who has started nonsurgical treatment and has had “multiple sleep latency testing values within the normal range.” The guidance does not directly address sleep latency testing for drivers who sought surgical treatment. The guidance merely directs doctors to monitor the resolution of symptoms.

Nowhere in any of that did you read neck size, body mass index or anything of the sort? The sleep industry has come up with those types of criteria. Not FMCSA.

So what is guidance anyway?
That’s a really good question, especially as it is the only thing that actually mentions sleep testing of drivers (those who are already diagnosed, remember).

Read this direct quote from the FMCSA Medical Examiner Handbook closely:

“Regulations/standards are laws and must be followed. Whereas guidelines, such as advisory criteria and medical conference reports are recommendations. While not law, the guidelines are intended as best practices for medical examiners.

“Guidelines have been issued by the Federal Motor Carrier Safety Administration (FMCSA) to provide you with additional information and are based on medical literature. If you choose not to follow the guidelines, the reason(s) for the variation should be documented.”

The agency starts off saying the guidance does not have the weight of law behind it. As the explanation goes on, medical examiners are basically told that if they don’t follow the guidance they better provide a reason why.

So why am I being told that it’s mandatory?
That’s where we go from concrete to somewhat speculative. Explanations vary when talking to medical examiners and motor carriers who insist on the testing, but one common theme is liability.

What got us to this point is twofold. First FMCSA published, very briefly, proposed guidance that would have expanded on sleep apnea testing in April 2012. The proposed guidance was pulled down days later, but that bell wasn’t completely unrung. The cat was out of the sleep apnea bag: FMCSA was looking to regulate it further.

Follow that up with the fact that the agency is in the process of implementing the National Registry of Certified Medical Examiners. This is a registry – basically a database – of medical examiners who have paid a fee and gone through FMCSA’s testing. Drivers will only be able to get DOT medical certification from individuals listed on the registry after May 21. (See related article Page 38.)

FMCSA has been forthcoming about the medical examiners’ responsibilities under the regulations and what the penalties could be if they circumvent those regs and incorrectly certify a driver as medically qualified when the driver actually is not medically qualified. Those fines are pretty steep: $10,000 in one instance, $250,000 – a quarter of a million dollars – in another. We won’t get into the likelihood of such fines being levied; the mere threat seems to be enough.

Toss in an added threat of litigation if a driver with a disqualifying medical condition is in a wreck, and the medical examiner who certified him could be facing some liability issues there as well.

All of that amounts to motor carriers and medical examiners looking to cover their assets – so to speak – and ordering more tests to prove they did all they could.

Has it gone too far?
Many drivers will certainly say yes.

The testing alone is extremely expensive. What amounts to a sleep apnea witch hunt is a very profitable one for the sleep labs, treatment centers and treatment device manufacturers.

Beyond the obvious cash cow incentive that has drivers hemorrhaging thousands for sleep testing, there is the overarching threat of misdiagnosis.

OOIDA Member Tim Begle was misdiagnosed with a severe case of sleep apnea and ordered a CPAP for treatment. The road to his diagnosis was one of missteps and misdiagnosis, threats and intimidation, according to Begle.

He eventually caved to the diagnosis and started sleeping with a CPAP machine.

“That’s when the hell began. I couldn’t ever sleep,” Begle said. “The most I ever slept at a time was two to three hours. I would wake up with the hose wrapped around my neck, the mask pulled off my face. I just rolled around all night wrestling the thing. My wife said it was like I was at war all night.”

The so-called treatment left him exhausted and in dire need of sleep. He turned to sleeping pills just so he could sleep longer.

He went three or four months. He drank more soda and ate more just to try to stay awake and wound up gaining weight – something uncommon for properly treated apnea patients, according to Begle.

“It started messing with my head. I was tired and grouchy, more than normal,” Begle said. “I decided something wasn’t right.

“I called my (family) doctor and told him something has to change or I’m going to end it all. This is screwing with my mind. I can’t think straight, I can’t concentrate, I’m tired all the time.”

Begle’s family doctor dug in and determined he was, in fact, misdiagnosed. The original testing ordered by the DOT medical examiner revealed a mild case of apnea, one that was within an acceptable range not needing treatment from a CPAP.

His personal doctor gave Begle a two-year medical card and ordered him to stop the CPAP.

Sleeping in a correct position, he sleeps fine now.

What can you do?
Last year at the urging of large numbers of angry truck drivers, Congress passed (in what seemed like record time) a bill that prevents FMCSA from proceeding with any regulation of sleep apnea without going through a rulemaking process. That involves public comment periods, legitimate research, cost-benefit analysis, etc.

Soon thereafter, President Obama signed the measure into law.

Without the agency going through that rulemaking process, the current regulations along with the guidance is all there is on the books to regulate, if you will, sleep apnea.

OOIDA Executive Vice President Todd Spencer pointed out that while the issue was being considered in Congress, FMCSA maintained they planned to do the rulemaking all along.

“However, a time frame has yet to be mentioned and the issue doesn’t appear to be an agency priority,” he said. “So who knows when the appropriate level of scrutiny might take place to determine whether the billions in new costs to drivers are justified.”

In the meantime, drivers shouldn’t set themselves up to be victims. While apnea may not play a real role in any crashes, it is a medical condition that should be discussed and evaluated with a trusted and qualified physician, Spencer said.

He said that drivers should take care of this before their current medical certifications expire and the “proverbial gun is at your head.”

“That way you have options for testing and appropriate treatment that won’t break the bank,” Spencer said. LL