This past summer, the Federal Motor Carrier Safety Administration (FMCSA) announced it would table a sleep apnea rule designed to establish sleep apnea screening policies and more consistent, specific treatment protocols for both truckers and train operators.
On August 8, 2017, the FMCSA teamed up with the Federal Railroad Administration (FRA) to announce through the Federal Register that, “The agencies believe that current safety programs and FRA’s rulemaking addressing fatigue risk management are the appropriate avenues to address [obstructive sleep apnea].”
Now, Democrats in both the House and the Senate are spearheading an effort to require that the FMCSA and FRA, 1) get back to work on a screening rule, and 2) move forward with the administration and enforcement of the rule. The new legislative effort opposes the decision to table the rulemaking effort.
New Jersey Senator Cory Booker introduced the Senate bill. It is co-sponsored by New Jersey Senator Robert Menendez, and New York Senator Chuck Schumer, the Senate Minority Leader. New Jersey Congressman Bill Pascrell introduced the bill in the House of Representatives. It is co-sponsored by fellow New Jersey Congressman Albio Sires.
Some of impetus behind the bill is not related to the truck industry. Rather, the effort by New Jersey senators and representatives is motivated in part by a September 2016 crash involving a NJ Transit train. After the train crashed at the Hoboken Terminal, investigators determined that the conductor suffered from sleep apnea. NTSB investigators determined the train was traveling 21 mph in a 10 mph zone. One passenger died and more than 100 passengers sustained injuries.
Seeking Clearer Standards
Bill sponsors also seek to reduce confusion in the truck industry over sleep apnea diagnosis and treatment. At present, different screening methods yield inconsistent results, creating confusion for drivers, fleets and medical examiners alike.
When a medical examiner refers a driver for testing, he/she receives a temporary 90-day certification. The driver must complete sleep apnea testing during that 90-day period.
Some truckers feel exploited by what they may feel are unwarranted sleep apnea referrals. Some feel excessive referrals do not further the cause of sleep apnea diagnosis and treatment. Rather, some argue that they simply generate business for testing companies, physicians and device manufacturers at the expense of the drivers.
The bill addresses such concerns by requiring that consistent, specific criteria be set for 1) when a trucker should be required to submit to a sleep apnea test in a lab, and 2) treatment protocols for sleep apnea. By clarifying standards for sleep apnea testing, the proposed legislation would ultimately reduce the number of sleep apnea referrals to as low as one in four, according to one estimate.
Previous Rulemaking Efforts
Before the FMCSA suspended its efforts this summer, the federal agency worked throughout much of 2016 to develop a rule that would more precisely establish when medical examiners should refer truckers for in-lab sleep apnea testing. At the time, the agency sought rule ideas from FMCSA advisory committees.
In response, the Motor Carrier Safety Advisory Committee and the Medical Review Board (MRB) recommended that drivers with a Body Mass Index (BMI) of 40 or higher be automatically tested for sleep apnea.
The advisory committees further recommended sleep apnea testing for drivers with a 33+ BMI that also have certain qualifying characteristics related to age, gender, etc. Overdrive states that a BMI of 40 is typically associated with a six-foot man weighing 290 pounds. A BMI of 33 is commonly associated with a six-foot man weighing 234 pounds. Under the proposed guidelines, a medical examiner would automatically refer a 33+ BMI driver for sleep apnea testing when at least three of the 11 criteria applied.
In March 2017, the federal agency issued an advanced notice of proposed rulemaking. However, in a July 2017 regulatory update, the FMCSA said it still lacked sufficient data to justify the furtherance of the rulemaking process. When the FMCSA halted the rulemaking process, the quest to unify and standardize sleep apnea screening protocols stopped with it.
Earlier Directive Impacts Drivers
Some of the confusion over varying criteria and protocols arose in 2015. In January of that year, an FMCSA bulletin suggested medical examiners make sleep apnea referrals when they believe “the driver’s respiratory condition is in any way likely to interfere with the driver’s ability to safely control and drive a commercial motor vehicle.”
Given the breadth and subjectivity of the standard, a high percentage of drivers received referrals for sleep apnea testing at the time of their two-year exam. In fact, the Overdrive survey revealed that 46 percent of respondents received referrals for sleep apnea testing.
Certain drivers, even those without diagnosable sleep apnea, faced an array of expenses, including the purchase of CPAP machines. Sometimes, drivers faced cumulative out-of-pocket expenses of $1,000 or more.
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