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From: Robert Swotinsky MD
Password: orange
Date: 02 Sep 2009
Time: 18:17:19 -0700
Remote Name: 98.229.131.90
The original question is, When an observed collection was required but was omitted by mistake, what should the MRO do?
The question cites 49 CFR 40.209(b)(6). I'll copy the relevant part of 40.209 here:
§40.209 What procedural problems do not result in the cancellation of a test and do not require corrective action?
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(b) No person concerned with the testing process may declare a test cancelled based on an error that does not have a significant adverse effect on the right of the employee to have a fair and accurate test. Matters that do not result in the cancellation of a test include, but are not limited to, the following:
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(6) The failure to directly observe or monitor a collection that the rule requires or permits to be directly observed or monitored, or the unauthorized use of direct observation or monitoring for a collection.
§40.209 is one of a series of paragraphs about "correcting" problem drug tests by getting missing signatures, memoranda for record, etc., and sending collectors for error correction training. While collecting another specimen under direct observation is one way of "correcting" a problem, if one looks at paragraphs §40.199 - §40.208 which precede §40.209, it seems clear that the type of "correction" that DOT is referring to in §40.209 is a correction that salvages the test that was already performed, as opposed to cancelling that test and starting again w/a new specimen collection. The MRO does not cancel the specimen that was mistakenly collected without direct observation. Instead, the MRO reports the result to the der along w/a comment that the der should promptly send the donor back for another test collected under direct observation. And, under what authority should the MRO add the comment that the der should promptly retest under direct observation? Well... There is a paragraph in the collection section of Part 40 that says that if the collector learns that a directly observed collection should have been collected but was not, the collector must inform the employer to promptly retest the donor under direct observation [49 CFR 40.67(n)]. In practice, the collector is rarely going to be the one who recognizes a failure to collect under direct observation. Instead, it's the TPA or MRO (or maybe the employer) who recognizes the failure to collect under direct observation, so it falls to these players to make things right by getting the donor retested under direct observation.