OOIDA petition for reconsideration of final medical examiner integration rule

By Jami Jones, managing editor

A recent final rule that rolled out a new medical history form and requires medical examiners to transmit the results of DOT physicals within 24 hours of the exam has drawn fire from the Owner-Operator Independent Drivers Association.

OOIDA filed a petition for reconsideration with the Federal Motor Carrier Safety Administration in late May.

The petition requests that the agency reconsider the final rule and calls for the agency to withdraw the final rule and to proceed with a notice and comment period.

On April 23, FMCSA published a final rule that adopted new standards for issuing medical certificates and amended the reporting requirements of the results of DOT physicals.

In the final rule, the agency expanded the medical history criteria and incorporated those criteria into the regulations. A new medical form included in the final rule now has 32 health conditions listed under the medical history portion of the rule. Of those conditions, 13 are new to the form.

New conditions to the form include high cholesterol; chronic cough, shortness of breath or other breathing problems; unexplained weight loss; bone, muscle, joint or nerve problems; blood clots or bleeding problems; chronic infection or other chronic diseases; problems staying awake; loud snoring; sleep apnea; have you ever had a sleep test; have you ever spent a night in the hospital; have you ever been treated for a mental health problem; and have you ever had a broken bone.

OOIDA’s petition states that the final rule does not contain any definition of the listed conditions, nor any guidelines for determining the degree to which any sign of the listed condition reaches a level serious enough to warrant reporting.

“More significantly, FMCSA has not provided any connection between the numerous conditions required to be reported and any risk to highway safety,” the petition states.

The agency also modified the duration of the history to be reported from five years to lifetime. The form now states: “Do you have or have you ever had ...”

“Those plain words can only mean ‘even in your whole life.’ Aside from the obvious problem of a 50-year-old remembering conditions from his teenage years or earlier, what possible relevance would teen acne (a chronic skin disease) or a broken arm at age 5 have on a driver’s ability to operate his vehicle,” the petition states.

“The complete failure of FMCSA to develop any record in support of the changes adopted renders the rule ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’” the petition states.

OOIDA also takes aim at FMCSA’s attempt to regulate sleep apnea through the final rule.

Congress previously passed legislation that was signed into law preventing FMCSA from implementing any sleep apnea requirements without going through the rulemaking process.

OOIDA’s petition contends that although FMCSA has added sleep apnea to the health history reporting requirements, the agency failed to develop any record regarding standards for sleep apnea or the need to include sleep apnea as reportable, as a disqualifying condition.

“The final rule is invalid regarding its attempt to regulate sleep disorders for the agency’s failure to act in accordance with the statutory mandate that it address sleep disorders only through formal notice and comment rulemaking. FMCSA has not done so. For this reason alone, FMCSA’s final rule is invalid,” OOIDA’s petition states.

The petition also tackles the new reporting requirement on medical examiners to transmit the results of DOT physicals to the agency within 24 hours of the exam. The requirement, according to the OOIDA petition deprives drivers of the right to challenge a denial of certification.

As written, the final rule mandates that drivers, even with a valid medical card, who fail their DOT physical are immediately deemed not physically fit to drive and their driving privileges are revoked.

So in a scenario where a driver goes in for a physical a couple of months before his or her current card expires, the driver would not have that additional two months to try to rectify the denial of medical certification. LL