Cover story: Medically Certified
Shortly thereafter, in November of 2009 he was awakened from a rest-area nap by an Indiana state trooper who got things off to a bad start in the stop by telling Webb he was snoring so loudly he was “shaking the truck.” The officer then began to go through the motions of a driver inspection, during which he did something out of the ordinary. The trooper pulled out a PDA and showed Webb a series of questions, asking him if he was willing to “participate in a survey, and I declined it,” Webb says. “By then the warning signs were going off.” He’d heard of the Minnesota fatigue checklist, a version of which Indiana was using at the time. The Minnesota list was deemed to have violated truckers’ privacy rights when a court in February this year returned a verdict against the state.
Webb was nonetheless issued an “ill/fatigued driver” citation, triggering an audit process of his medical certification. He received a large packet from the Indiana Department of Revenue’s Motor Carrier Services division requesting information from him that amounted to a comprehensive medical history. “They might as well have shoved a microscope up my butt,” he says. The questions therein included one probing past history of sleep apnea diagnosis, similar to that on the driver-filled portion of the medical long form that accompanies every medical recertification.
The state requested a download from his CPAP machine to assess the level of its use, requiring a 70 percent usage rate.
If it sounds strange for the state of Indiana to be requiring very specific treatment guidelines for sleep apnea, that’s because it is, in a couple ways.
One is the auditing process itself, which FMCSA Indiana Division Administrator Kenneth Strickland says is applied to every operator with a medical card in Indiana to one degree or another. “Carriers have complained for several years. I think there are two or three states that do what Indiana does with medical certification. If an Illinois carrier can get away without doing as much as is required in Indiana, then there’s some resistance by Indiana carriers.”
Second is the sleep apnea requirement itself. “You won’t find that in the federal regulations — Indiana’s are more stringent than any other state in the U.S.” says Strickland. Indiana requires sleep apnea patients holding state-issued CDLs to “use the unit four hours or more five-to-seven nights a week,” says Diania Alsager, manager of the Indiana Sleep Institute’s sleep lab in New Albany, Ind., which works regularly with truckers.
“We can audit any condition,” says Mary Fleehearty, supervisor for the CDL program of the Indiana Department of Revenue’s Motor Carrier Services division. “If a doctor gives us information that wasn’t on the health certification or we have knowledge of a ticket, if it has to do with a medical condition… we reserve that right to audit.”
Essentially, that’s what was happening to Webb after his ill/fatigued driver citation, in spite of the fact that it was thrown out subsequently by the prosecutor. But Indiana Motor Carrier Services still got wind of the ticket, begging the question: Can a state trooper deem a driver unhealthy during a roadside inspection? FMCSA Office of Medical Programs Director Maggi Gunnels, in a webinar conducted by Truckers News last year, pointed to the ill/fatigued operator regulation 392.3 in the federal code, which reads in part, “No driver shall operate a commercial motor vehicle … while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause.”
FMCSA officials note that federal regulations are intended as minimum standards, and that states can exceed them. But regarding tougher physical standards in states, says FMCSA Associate Administrator of Policy Larry Minor says, “we haven’t really heard anything about that — if there are a lot of drivers not able to operate in those states, we would.”
All the same, he says, “lack of treatment for obstructive sleep apnea may be a reason for a medical examiner to not issue a medical card,” noting the common primary role in determining medical fitness to drive of the medical examiner, a health-care professional, not the state itself.
“I do not recall an instance in the last 10 years where I have been contacted by the state or feds for any reason concerning a driver,” says Dr. Rush, whose practice is located in Texas. “If I get feedback it is usually from the driver’s employer.”
Rick Gobbell, a former FMCSA official in Tennessee now working as a transport safety consultant, heard of Webb’s case with Indiana. “I found that Indiana had cited several drivers [as ill/fatigued], and they do it under the cloak of safety. ‘We have responsibility for the safety of the public. If we feel like a driver has sleep apnea we think he ought to be treated.’ I don’t know why FMCSA is letting these states do that. They don’t seem to know what’s going on. I don’t know why the secretary doesn’t look at it and see where that’s a hindrance to interstate commerce.”