Federal agencies sharpen their focus on sleep apnea and testing as truckers question the motives

By David Tanner, senior editor

The regulatory waters are sufficiently chummed for sleep apnea testing to get plenty of attention in 2015.

The question on many people’s minds is whether DOT-approved medical examiners can, cannot, or someday might be authorized to order truckers to take expensive and time-consuming sleep tests based on discretionary criteria such as age, weight, neck size, jaw size or family history.

Currently, there is no regulation that makes sleep apnea testing mandatory and very little in the way of evidence that there needs to be one.

The National Transportation Safety Board pushed another button in January when the agency issued its “most wanted list” for 2015.

Citing a 2013 crash and train derailment in New York as a catalyst, NTSB issued a recommendation to policymakers to root out untreated sleep apnea in trucking and “identify applicants at high risk for sleep disorders” as part of a comprehensive look at medical fitness.

While not a regulatory agency, NTSB does make recommendations and is taken seriously by those who design and enforce motor carrier safety regulations.

Also simmering on the horizon is the Federal Motor Carrier Safety Administration’s stated intent to issue a rule on obstructive sleep apnea in the coming months.

Any proposed rule will be met by opposition from OOIDA and small-business truckers.

As things stand now, apnea is not a disqualifying medical condition under Federal Motor Carrier Safety Regulations’ Physical Qualifications to Drive, and there’s no reason to make it one.

The FMCSA’s National Registry of Certified Medical Examiners went live in May 2014. It requires all drivers to obtain their DOT physicals from an agency-approved examiner.

Truckers have reported that some certified examiners have told them that sleep apnea screening and treatment is mandated by a regulation and that they must undergo sleep testing before being cleared to drive commercially.

Some have challenged this premise and point the finger at FMCSA for supplying the discretionary medical guidance to the examiners.

In October 2014, U.S. Reps. Larry Bucshon, R-Ind., and Dan Lipinski, R-Ill., questioned whether FMCSA was following the letter of a 2013 law that prohibits the agency from implementing or enforcing apnea screening, testing or treatment unless the administration first goes through a proper rulemaking process.

FMCSA Acting Administrator Scott Darling responded to the lawmakers and said that the agency was following the law but would issue a bulletin to examiners and trainers to clarify the difference between guidance and regulation. What that letter will say and whether it actually calls off the dogs has yet to be determined.

In response to the lawmakers in November 2014, Darling pointed to interpretive guidance initiated in 2000 to say that “… a medical examiner should refer the driver to a specialist for evaluation and treatment if the examiner detects a respiratory dysfunction, such as moderate-to-severe (apnea) that is likely to interfere with the driver’s ability to safely control and drive a commercial motor vehicle.”

Lawmakers and truckers are not done with this issue just yet. It’s possible and even probable that their concerns led FMCSA to take a step back in recent weeks to evaluate its own guidance.

In December, FMCSA removed its online medical guidance handbook from fmcsa.dot.gov, saying the document was being revised.

Truckers are hoping that a future revised version continues to clarify the difference between guidance and actual regulation on sleep apnea and other important issues. LL