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HIPAAFAQ - Privacy:
Drug and Alcohol Testing
Frequently Asked Questions from the Department
of Transportation (DOT)
- Are employers and their service agents in the
DOT drug and alcohol testing program required under HIPAA to obtain
employee written authorization in order to disclose testing information?
Under Department of Health and Human
Services (HHS) HIPAA rules, are employers and their service agents
in the Department of Transportation (DOT) drug and alcohol testing
program required to obtain employee written authorization in order
to disclose drug and alcohol testing information?
No. HHS HIPAA rules do not require employers and service agents
in the DOT drug and alcohol testing program to obtain written employee
authorization to disclose drug and alcohol testing information required
by 49 CFR Part 40 and other DOT agency drug and alcohol testing
rules.
DOT-required drug and alcohol testing information differs significantly
from health information covered by HIPAA rules (45 CFR Part 164).
The DOT program is concerned only with employees’ compliance
with DOT safety regulations, and not with preventive, diagnostic,
therapeutic, rehabilitative, maintenance, or palliative care or
the past, present, or future physical or mental health or condition
of an individual.
Even if DOT drug and alcohol testing information is viewed as protected
health information under Part 164, however, it is not necessary,
under §164.512(a), to obtain employee written authorization
where Federal law requires the use or disclosure of otherwise protected
health information.
Use or disclosure of the DOT drug and alcohol testing information
without a consent or authorization from the employee is required
by the Omnibus Transportation Employees Testing Act of 1991, 49
CFR Part 40, and DOT agency drug and alcohol testing regulations,
unless otherwise stipulated by 49 CFR Part 40.
Consequently, 45 CFR §164.512 enables any employer or service
agent in the DOT program to disclose the information without the
employee’s authorization. For example:
- Employers need no employee authorizations to conduct DOT tests.
- Collectors need no employee authorizations to perform DOT urine
collections, to distribute Federal Drug Testing Custody and Control
Forms, or to send specimens to laboratories.
- Screening Test Technicians and Breath Alcohol Technicians need
no employee authorizations to perform DOT saliva or breath alcohol
tests (as appropriate), or to report test results to employers.
- Laboratories need no employee authorizations to perform DOT
drug and validity testing, or to report test results to Medical
Review Officers (MRO).
- MROs need no employee authorizations to verify drug test results,
to discuss alternative medical explanations with prescribing physicians
and issuing pharmacists, to report results to employers, to confer
with Substance Abuse Professionals (SAP) and evaluating physicians,
or to report other medical information (see §40.327).
- SAPs need no employee authorizations to conduct SAP evaluations,
to confer with employers, to confer with MROs, to confer with
appropriate education and treatment providers, or to provide SAP
reports to employers.
- Consortia/Third Party Administrators need no employee authorizations
to bill employers for service agent functions that they perform
for employers or contract on behalf of employers.
- Evaluating physicians need no employee authorizations to report
evaluation information and results to MROs or to employers, as
appropriate.
HHS agrees that there is no conflict between the HIPAA rules and
DOT requirements, and indicated so in the preamble to Part 164 [65
Federal Register 82593-94; December 28, 2000].
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