Owner-Operator Independent Owner-Operator Independent Drivers Association, Inc. Drivers Association, Inc.

These comments are submitted by the Owner-Operator Independent Drivers Association, Inc. ("OOIDA" or "Association") in response to the notice of proposed rulemaking ("NPRM") request for comments published by the Federal Highway Administration ("FHWA" or "Agency"), Docket No. FHWA 98-3542, RIN 2125-AC63. [63 Fed. Reg. 150] (August 5, 1998).

This notice is a proposal to amend the regulation governing the physical examination to determine the physical condition of drivers. The FHWA takes this action in response to numerous requests from medical examiners to update and simplify the medical examination form that is currently used.

The Owner-Operator Independent Drivers Association., Inc., is a not-for-profit corporation incorporated in 1973 under the laws of the State of Missouri, with its principal place of business in Grain Valley, Missouri. The more than 40,000 members of OOIDA are small business men and women in all 50 states and Canada who collectively own and operate more than 60,000 individual heavy-duty trucks and small truck fleets. Owner-operators represent nearly half of the total number of Class 7 and 8 trucks operated in the United States. The mailing address of the Association is:

Owner Operator Independent Drivers Association, Inc.
311 R.D. Mize Rd.
Grain Valley, Missouri 64029

OOIDA is the international trade association representing the interests of independent owner-operators and professional drivers on all issues that affect small business truckers.

The Association actively advocates the views of small business truckers through its interaction with state and federal government agencies, legislatures, the courts, other trade associations, and private businesses to advance an equitable environment for commercial drivers. OOIDA is active in all aspects of highway safety and transportation policy, and represents the positions of small business truckers in numerous committees and various forums on the local, state, national, and international levels. Any change in the form used by medical examiners to determine the physical condition of drivers has the potential for directly affecting owner-operators and professional drivers, including OOIDA members.

OOIDA supports the Agency's goal to update and simplify the medical examination form, but this proposal raises serious concerns for the way in which the Medical Examination Report ("Report") requires private medical information and the performance of medical tests that are unnecessary and irrelevant to the Agency’s own standards for determining a person’s fitness to drive a commercial motor vehicle ("CMV"). OOIDA strongly recommends that the requirements of the Report be limited to only those necessary to the inquiry of a driver’s fitness under the standards. Medical information that does not bear directly on a driver’s medical certification should not be required on reports and papers that third parties, such as the driver’s employer/motor carrier, may have access to or request.

The FHWA may require the reporting of information that serves its broad authority to regulate commercial drivers. However, OOIDA must challenge any regulation that requires medical record keeping of information that extends beyond a valid regulatory scheme.

A. Medical Examination Report, Section 2, "Health History"

The "Health History," Section 2 of the proposed "Medical Examination Report," is a medical survey to be completed by the driver before his physical exam. This survey concerns OOIDA for two reasons. First, the average driver does not have the medical training to fully understand the medical questions asked. This puts the driver at risk if he unintentionally submits inaccurate answers. Second, this survey asks for a great deal of medical history that may or may not be relevant to a person’s fitness to drive a CMV. Under the Report’s format, even if a medical professional determines a Health History issue to be irrelevant to the driver’s fitness, the driver’s response to the question will continue to be part of the Report. OOIDA is concerned that this unnecessary information will be used by other parties for purposes not contemplated by the FHWA or its regulations.

The FHWA has the special authority, in the interest of public safety, to require commercial drivers to provide a valid medical certification to companies for whom they drive. The Medical Examination Report contains far more information about a driver than whether or not he or she is medically certified. As described below, many of the Report’s inquiries do not directly relate to a driver's current medical certification. This is of concern to OOIDA because motor carriers often request that employees or potential employees provide their full Medical Examination Report in their employment application or as a condition of continued employment. It is hard to imagine how a driver’s personal medical information on the Report may affect the driver’s employment status when a valid medical certification itself is presumptive proof that a driver is physically able to drive a CMV.

OOIDA is concerned that details of a driver’s medical history could be used by motor carriers to discriminate against drivers based on issues other than whether the driver is physically qualified to drive a CMV. This could be a violation of the Americans with Disabilities Act, and OOIDA is currently examining what possible legal uses employers may have for a driver’s medical history. In the meantime, the Medical Certification Report should reveal only the medical information that pertains to a driver’s fitness. It is beyond the Agency’s authority to require the Medical Certification Report to contain unnecessary medical information and therefore permit its use by third parties for any purpose other than verifying medical certification.

In order to both fulfill what appears to be the purpose of the survey, and to protect the medical information of commercial drivers, the medical professional should conduct an interview with the driver on Health History issues, and only the information relevant to a person’s fitness to drive a commercial vehicle under the standards should be recorded on the Report.

1. Driver Comprehension Of Medical Terms In The Health History Survey

This survey in part 2 of the Medical Examination Report unrealistically requires drivers to understand the meaning of a number of specific medical terms and conditions. The Association believes that leaving the interpretation of these terms to drivers will compound the incidence of errors and inaccuracies on medical reports. While some of the inquiries are straightforward and evident, others are not. A driver can, for example, be reasonably expected to state whether he or she has been diagnosed with a particular condition. However, many other inquiries are much more vague to the average layman. It is unrealistic to require the driver to make subjective medical determinations based upon medical terms he may not fully comprehend.

OOIDA believes that many medically qualified drivers could be subjected to undue scrutiny and unnecessary, expensive medical tests for simply misinterpreting how to respond to certain inquiries. If the driver mistakenly enters a "yes" response to any of the inquiries, a red flag is raised. The driver may or may not be able to adequately articulate in writing that a "yes" response does not indicate the possible presence of an underlying medically disqualifying condition. Even if the medical provider, "encouraged" by the Report Form, discusses the response with the driver and determines after the fact that a "no" response should have been entered, the error has already occurred.

Leaving technical medical evaluations to drivers would lead to a greater chance of inaccurate results. Such inaccurate results, according to the NPRM, could invalidate the Medical Examiner’s Certificate and might result in unnecessary and inappropriate revocation of the driver’s commercial license by the issuing State. These are severe consequences for someone who may very well be fit to drive a truck, but who had the misfortune to fail a vocabulary exam on medical terminology.

The Agency states the belief that the proposed addition of a driver certification requirement would discourage drivers from omitting or falsifying medical information, thus ensuring the accuracy and completeness of the medical form and the overall certification process. OOIDA disagrees.

There is no inherent function of this questionnaire that prevents the intentional falsification of a Medical Examination Report. As long as a driver has knowledge that a particular "yes" response might lead to medical disqualification, he/she would have nothing to lose by replying falsely to the inquiries. The questionnaire does not provide all the benefits outlined by the NPRM and raises serious problems of its own.

2. Unnecessary And Irrelevant Information Gathered By The Health History

The Association is concerned that too much irrelevant information is requested by this Health History survey. Given the common practice of motor carriers to require drivers to provide not just a valid medical certificate but also the full Medical Examination Report, OOIDA is concerned that motor carriers would use this medical information for purposes other than confirming a driver’s compliance with the medical certification regulations. In the interest of medical privacy, OOIDA believes the private medical information recorded on the report should only be that information relevant to the person’s fitness to drive a CMV under the medical qualification standards.

The Health History survey asks many questions that may or may not be relevant to drive a CMV. A "yes" or "no" answer on the survey is not determinative of a driver’s fitness. For example, a person who has had surgery in the last five years, has "digestive problems", or experiences "severe snoring" may be perfectly fit to drive a truck. There is no purpose to record any information that does not affect the driver’s medical certification. If during the interview the medical professional finds no relevant underlying condition, the information provided by the driver in the Health History survey serves no purpose on the Report. It provides details of a private medical history that are irrelevant for the purposes of the medical certification.

OOIDA does not object to any medical inquiry into health issues that are relevant to the fitness of a person to drive a CMV. The Association does, however, object strongly to the recording of any information on the Report that has no direct bearing on the medical certification standards. Any inquiry into the issues listed in the Health History section should begin solely as an interview between the medical professional and the driver. If this inquiry raises important questions about a driver’s medical fitness, the professional should investigate that issue further. If, after investigation, the professional discovers a condition that affects whether or not that person can be medically certified under the regulations, only that information should be recorded on the Report.

Preventing the disclosure of facts that are irrelevant to a driver’s medical certification protects the driver’s medical privacy without compromising the function of the report or the public safety it serves.

3. The Medical Professional’s Proper Role In The Health History Survey

A medical professional is the individual most qualified to determine the medical and regulatory relevance of the issues outlined in the survey, not the driver. The medical professional should discuss the issues brought up by the survey with the driver to alleviate the possibility of an inaccurate Report. The resulting dialogue gives rise to the opportunity for the driver to seek clarification of medical terminology, and for the medical professional to assess the responses face to face. The medical professional may then make further inquiries or physical tests based upon the driver's input. The professional is then better able to control the accuracy of the responses as they relate to the regulations and make a professional, medically objective judgment as to whether any of the driver's responses or actions bear on his fitness to drive a CMV.

In this manner, a driver’s Health History will be more accurately reported, drivers will avoid unjustified disqualification based on a misunderstanding of medical terms and conditions, and only information relevant to medical certification will be placed on the report. This procedure will not create any additional burden on the driver or medical professional, and it will be of great benefit to drivers, whose privacy is protected, and to the public, whose safety these regulations serve.

B. Optional Exams

OOIDA objects strongly to the "optional" tests listed in Section 6 of the Medical Examination Report.

The FHWA proposes to provide for optional tests such as an eletrocardiogram (ECG), an echocardiogram, an exercise stress test (EST), and a chest X-ray. The Agency proposes specific recommendations for a baseline ECG at age 40, then every six years until age 55, and then every two years. In addition, the proposal recommends that an EST be given to asymptomatic individuals who are 45 years old or older and who either exhibit two or more cardiac risk factors or have a history of ischemic heart disease.

The Association believes that many medical providers and motor carriers would be compelled by the Agency's "recommendation" to require such tests unnecessarily. Drivers would then be subjected to unwarranted expense and inconvenience. Such tests can be very costly, easily exceeding $100. Recommending that an ECG be performed based solely upon age would compound such an expense needlessly for a vast number of drivers.

If the Agency decides that such tests are necessary to determine the fitness of a person to drive a truck, it should propose that those tests be mandatory, and fully consider the cost of such tests to all drivers. That cost should then be weighed against the benefits, if any, of identifying those individuals not fit to drive a CMV, but who were not otherwise disqualified by the rest of the medical exam. Otherwise, the mere suggestion of these tests, if irrelevant to a driver’s medical qualification, will unnecessarily increase the costs of Medical Certification for many drivers.

On the whole, OOIDA welcomes the FHWA’s efforts to revise outdated and outmoded regulations. The foregoing suggestions would allow the Medical Certification process to report a driver’s medical history more accurately, protect private medical information of drivers, and ensure that the medical examination is less costly and burdensome to drivers. Thank you for your consideration of these comments.

Respectfully submitted, 

___________________________

PAUL D. CULLEN, SR.
General Counsel,
Owner-Operator Independent
Drivers Association, Inc.
THE CULLEN LAW FIRM

JAMES J. JOHNSTON 1101 30^th Street N.W.
President
Owner-Operator Independent Drivers Association, Inc.
Suite 300
Washington, DC 20007
(202) 944-8600

December 9, 1998

Advanced Notice of Rulemaking