Industry safety expert opines that rule withdrawal keeps things murky

Over the past few weeks, you’ve probably read about the Trump Administration withdrawing a variety of proposed regulations. This included the withdrawal of one that would have provided clearer direction on how operators in the trucking and rail industry, should be identified and treated for moderate to severe Obstructive Sleep Apnea (OSA).

How does the withdrawal affect the operators and the companies they work for? The answer: It doesn’t. Nothing changes–the original FMCSA guidance that this rule was to help clarify is still in place. No matter your position on the proposed rule, there will be no real change to the current way patients are identified, tested and treated for OSA. And really, the withdrawal might just add to the confusion

A Certified Medical Examiner (CME), can and will still determine if a person in a safety-sensitive role like truck or rail operator is at risk for OSA. Once identified, they will be referred to a sleep specialist to be tested for the condition. The problem with the original guidance is just that, it’s guidance and there are no standardized approaches, each CME can address the condition as they see fit.

Over the years in different roles within industry safety departments, I would speak to drivers as they returned from physicals with different CMEs and there seemed to be no continuity in any individual assessment.

Referrals for these tests rose dramatically after the May 2014 CME Requirements were published and became part of the training for doctors performing fitness for duty exams. They have continued at a brisk pace to this day and will continue going forward. The science supporting the value of OSA treatment is overwhelming. Again, whether you agree there is enough evidence or not doesn’t matter, those referrals will continue.

The real question is not whether there will be changes in frequency and volume of these referrals for OSA testing post rule withdrawal. It’s actually; Does having a regulation help or hurt the current undiagnosed and untreated operators? I, along with other industry leaders expect the quantity of referrals to remain the same, but believe the focus should be on the quality of these referrals. Standardization for health and safety should be well, standard.

If you take a look at what the FMCSA and FRA’s Medical Review Board proposed back in October of 2016, (a great Transport Topics article on this subject can be found here: there are clearly defined measures and factors that every doctor should use in determining whether to send a patient for sleep apnea testing. Best practices around using more affordable Home Sleep Testing, confirming compliance and other cost-saving measures were all part of the discussions which informed these final recommendations.

Without having this kind of specific guidance, the referrals and treatment requirements will be seen as subjective and the industry will continue to question the validity and motives behind them. Basically, we’ll continue living in the wild west—no uniformity, no checks and balances—to who is or isn’t referred for OSA testing. Like any great old western, when you have no law, chaos ensues and people do their best to make it up as they go along.

The fleets and rail operators who care about their employees, want to save healthcare costs and diminish risk will continue to be “proactive” and help get their employees tested and on therapy.

FMCSA, FRA and the Medical Review Board went to great lengths to gather data, medical opinion, industry insight, driver feedback, etc. The poposed rule would provide a greater sense of clarity and reduce the possibility of abuse or fraud.

Ironically for years, some in the industry asked for additional clarity in the form of a “formal rule”. Yet when it was close to fruition, the very same folks fought it tooth and nail and some even resorted to spreading misinformation. I believe that regulation can often stifle business, but this regulation would have protected individuals and made sure that the market as a whole would be treated fairly.

So, while we continue to debate a rule, the truck drivers and rail operators continue to be negatively impacted by an unregulated industry that is costly, confusing and time consuming. The wild west of unchecked professionals, high insurance charges and inconsistent approaches to care will continue. To beat every inch out of the wild west metaphor, the proposed rule would have kept the outlaws from swinging those saloon doors open, and saying dance.

I, for one, believe our nation’s transportation professionals and those of us on the roads and rail every day deserve better.