Attorneys for the Owner-Operator Independent Drivers Association argued last month in court that the U.S. DOT illegally altered sleep apnea screening guidelines for truck drivers by slipping an appendix into larger rule after the public comment period had ended.
OOIDA’s lawyers also claim the sleep apnea provision within the rule violates a Congressional statute established in 2013, when Congress passed a law forbidding the Federal Motor Carrier Safety Administration from instituting formal sleep apnea testing and treatment guidelines without using the rulemaking process, which requires a public notice and a public comment period. CCJ reported on the lawsuit when it was filed last year.
The DOT, whose lawyers also gave oral arguments in Omaha, Neb., to the 8th Circuit Court of Appeals on Nov. 15, refuted OOIDA’s claims. The appendix did not change the protocol medical examiners use to determine whether to refer drivers for sleep apnea screening, said DOT attorney Sushma Soni. The rule only moved the questions regarding respiratory and sleep disorders on the form that medical examiners use during DOT physicals, Soni argued.
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OOIDA’s lawsuit centers on a 2015 FMCSA rule that altered the form used by medical examiners in DOT physicals and required examiners to upload the results of the examination to FMCSDA within 24 hours. Soni told the panel of judges that the rule did not alter existing guidance related to screening drivers for sleep apnea, as OOIDA claims. DOT also claims OOIDA did have the opportunity to file public comments on the rule during the rulemaking process.
Paul Cullen Jr., representing OOIDA in the case, told the court that FMCSA added the sleep apnea provision to the final rule, but that no such provision was included in the proposed rule, meaning OOIDA, nor others, had the opportunity to file comments on the sleep apnea appendix, Cullen said in court.
The rule’s appendix on sleep apnea states “if the medical examiner detects a respiratory dysfunction that in any way is likely to interfere with the drivers’ ability to safely control and drive a commercial motor vehicle, the driver must be referred to a specialist for further evaluation and therapy.” Soni said the appendix did not “substantively change” the agency’s guidance to medical examiners regarding which drivers should be referred for an in-lab sleep study.
“The regulatory standard [is] the same,” Soni said in court.
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She also argued that if the rule were vacated, as OOIDA has requested, it would not change the sleep apnea screening protocol used by medical examiners. “Whey they say now they’re potentially subject to more tests — the answer to that is no. The regulatory standards was always that a person is physically qualified to operate a commercial motor vehicle if they have no established medical history or clinical diagnosis of a respiratory dysfunction. Medical examiners collect the same type of information, they ask the same types of questions to get at the regulatory standard. The guidance didn’t change. It’s exactly the same.”
Cullen, however, argued otherwise, saying the agency added questions that, in effect, change the federal guidelines. He contends those changes are a clear violation of Congress’ 2013 sleep apnea law. “This is an important function of the rulemaking process — that truck drivers know what kind of tests will be expected of them and what they will cost,” he said. “Without a rulemaking, the result is that truck drivers face unpredictable, expensive and unreliable medical examinations regarding sleep apnea.”
Absent the formal rulemaking process, “this sort of evolved into a solid regulation that’s mandatory,” Cullen said, with FMCSA “making all these changes and decisions without public notice and comment period — and accountability.”
The court has not said when it will issue a ruling in the case.
FMCSA earlier this year withdrew a rulemaking intended to institute hard and fast sleep apnea screening criteria, which would have provided greater clarity to medical examiners and drivers about the screening process, which is as of now mostly left up to the discretion of medical examiners.