OOIDA accuses FMCSA of sidestepping rule process with sleep apnea provision, files legal challenge

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Click through this photo to see Overdrive‘s recent in-depth coverage of potential sleep apnea screening regulations in the “Apnea’s Wakeup Call” series.Click through this photo to see Overdrive‘s recent in-depth coverage of potential sleep apnea screening regulations in the “Apnea’s Wakeup Call” series.

The Owner-Operator Independent Drivers Association has filed a challenge with a federal appeals court against a 2015 U.S. DOT rule that altered the driver medical examination process. OOIDA claims the DOT slipped a provision on sleep apnea screening into the final rule that was not included in the proposed rule, thereby bypassing the legal rulemaking process.

OOIDA filed its legal challenge with the 8th Circuit Court of Appeals on Nov. 11, seeking to vacate the rule either in part or in whole.

FMCSA declined to comment on OOIDA’s challenge to the rule.

The rule, made final by the Federal Motor Carrier Safety Administration in April 2015, revised the forms used by medical examiners in FMCSA’s National Registry of Medical Examiners and required examiners to upload exam results — whether truckers are certified to operate or not, essentially — to the agency the same day. The information made available to state licensing agencies immediately, part of the agency’s work in recent years to combine medical certification information with truckers’ CDLs.

OOIDA contends the final rule included an appendix that wasn’t included in the agency’s 2014 proposal of the rule. Within the appendix is a section on respiratory dysfunction, which lists sleep apnea as one of the conditions. The appendix says “if the medical examiner detects a respiratory dysfunction that in any way is likely to interfere with the driver’s ability to safely control and drive a commercial motor vehicle, the driver must be referred to a specialist for further evaluation and therapy.”

The owner-operator advocacy group argues the provision sidestepped the legal regulatory process for requiring screening for sleep apnea.

The new process took effect April 2016, following a four-month delay from the rule’s original December 2015 enactment date.

FMCSA has a separate, preliminary rule in the works to set criteria for examiners to refer truckers to sleep apnea screening, but the agency’s not expected to propose the rule until next year, if not later. Per recommendations by two FMCSA committees, including its Medical Review Board, truckers who meet the criteria would be required to undergo sleep apnea screening — and treatment, if they test positive — before being granted their medical certification.

OOIDA filed its petition for review last week. Its full written arguments against the rule are due Dec. 19. The group petitioned the agency last May to reconsider the rule. FMCSA denied its request in September 2016.

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