Appeals process

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docwats

Appeals process

Post by docwats » Mon Jan 13, 2014 7:28 pm

I have been unable to find much detail about a driver's appeal process if he is found unqualified by a CME. Any participants have information on the conflict resolution procedure?



Robert Swotinsky MD
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Re: Appeals process

Post by Robert Swotinsky MD » Mon Jan 13, 2014 8:50 pm

Subpart E - Physical qualifications and examinations

§ 391.47Resolution of conflicts of medical evaluation.

(a) Applications. Applications for determination of a driver's medical qualifications under standards in this part will only be accepted if they conform to the requirements of this section.

(b) Content. Applications will be accepted for consideration only if the following conditions are met.

(1) The application must contain the name and address of the driver, motor carrier, and all physicians involved in the proceeding.

(2) The applicant must submit proof that there is a disagreement between the physician for the driver and the physician for the motor carrier concerning the driver's qualifications.

(3) The applicant must submit a copy of an opinion and report including results of all tests of an impartial medical specialist in the field in which the medical conflict arose. The specialist should be one agreed to by the motor carrier and the driver.

(i) In cases where the driver refuses to agree on a specialist and the applicant is the motor carrier, the applicant must submit a statement of his/her agreement to submit the matter to an impartial medical specialist in the field, proof that he/she has requested the driver to submit to the medical specialist, and the response, if any, of the driver to his/her request.

(ii) In cases where the motor carrier refuses to agree on a medical specialist, the driver must submit an opinion and test results of an impartial medical specialist, proof that he/she has requested the motor carrier to agree to submit the matter to the medical specialist and the response, if any, of the motor carrier to his/her request.

(4) The applicant must include a statement explaining in detail why the decision of the medical specialist identified in paragraph (b)(3) of this section, is unacceptable.

(5) The applicant must submit proof that the medical specialist mentioned in paragraph (b)(3) of this section was provided, prior to his/her determination, the medical history of the driver and an agreed-upon statement of the work the driver performs.

(6) The applicant must submit the medical history and statement of work provided to the medical specialist under paragraph (b)(5) of this section.

(7) The applicant must submit all medical records and statements of the physicians who have given opinions on the driver's qualifications.

(8) The applicant must submit a description and a copy of all written and documentary evidence upon which the party making application relies in the form set out in 49 CFR 386.37.

(9) The application must be accompanied by a statement of the driver that he/she intends to drive in interstate commerce not subject to the commercial zone exemption or a statement of the carrier that he/she has used or intends to use the driver for such work.

(10) The applicant must submit three copies of the application and all records.

(c) Information. The Director, Office of Carrier, Driver, and Vehicle Safety Standards (MC-PS) may request further information from the applicant if he/she determines that a decision cannot be made on the evidence submitted. If the applicant fails to submit the information requested, the Director may refuse to issue a determination.

(d)(1) Action. Upon receiving a satisfactory application the Director, Office of Carrier, Driver, and Vehicle Safety Standards (MC-PS) shall notify the parties (the driver, motor carrier, or any other interested party) that the application has been accepted and that a determination will be made. A copy of all evidence received shall be attached to the notice.

(2) Reply. Any party may submit a reply to the notification within 15 days after service. Such reply must be accompanied by all evidence the party wants the Director, Office of Carrier, Driver, and Vehicle Safety Standards (MC-PS) to consider in making his/her determination. Evidence submitted should include all medical records and test results upon which the party relies.

(3) Parties. A party for the purposes of this section includes the motor carrier and the driver, or anyone else submitting an application.

(e) Petitions to review, burden of proof. The driver or motor carrier may petition to review the Director's determination. Such petition must be submitted in accordance with §386.13(a) of this chapter. The burden of proof in such a proceeding is on the petitioner.

(f) Status of driver. Once an application is submitted to the Director, Office of Carrier, Driver, and Vehicle Safety Standards (MC-PS), the driver shall be deemed disqualified until such time as the Director, Office of Carrier, Driver, and Vehicle Safety Standards (MC-PS) makes a determination, or until the Director, Office of Carrier, Driver, and Vehicle Safety Standards (MC-PS) orders otherwise.

docwats

Re: Appeals process

Post by docwats » Wed Jan 15, 2014 11:33 am

I remembered reading this as I brushed up for my exam, could not find it again, so thank you.

It seems quite a challenging task.

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