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Joseph, Lawyer
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What if I have a major disagreement with a substance abuse

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What if I have a major disagreement with a substance abuse professional assigned to me by my employer through my union? According to DOT Title 49 - Part 40 regulations I was not allowed to get a second opinion once assigned the SAP. Now I want to file a malpractice complaint because her assessment was that I was a prescription opiate pain medication abuse or addict and I say I never was. We are both looking at the same evidence and coming up with diametrically opposite conclusions. Her position is that I was an addict and liar and my position is that I used the pain meds as needed as directed under supervision of the doctors who prescribed them for easily diagnosed medical conditions. Once surgery corrected the problem--osteoarthritis of the knee, then impacted kidney stone, then degenerated thumb-joints of both hands with osteoarthritis, which was workers comp---there was no more pain and no more need for pain meds. So how could the SAP justify a recommendation of 6 months residential inpatient detox in my case when I had already quit the drug for several months? I never admitted I had a problem with the drugs. I filled out the questionaires the SAP provided indicating no problem and requested a copy of my file so I could see her notes and work in my case, as is my legal right to have a copy of her file on me. She has refused to give me a copy of my file. I would think if the SAP is confident and proud of her work in evaluating my drug use or abuse she would let the file be open to scrutiny. Thus I need an attorney with some experience in DOT Title 49 - Part 40 and problems with substance abuse professionals to advise me in this case. Since I have had no disciplinary write-ups, no traffic citations, no history of drug abuse, in 45 years as a commercial driver, I have a major problem when an SAP claims I am a substance abuser and liar with no proof beyond her opinion, which I disagree with. Thus the conflict and need for the legal process to settle it.

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Customer: replied 3 years ago.

Please try to answer my question. I will continue waiting. Thank you.

Thank you. We will continue to look for a professional to assist you. Please let me know if I can be of any further assistance while you wait.
See my answer to your other question please.
Here's the cut and pasted answer from your other question:

(Note: You've been charged for your deposit, so you will not incur any additional charges when you rate my answer positively).

I'm afraid you are stuck with the SAP's recommendation, unless you can get the SAP to change her recommendation (which you'll have to do by going to treatment, not by refuting that she has no idea what she is talking about), as the DOT rules are quite inflexible on that point. (Since even if you got another evaluation, your employer cannot even rely on it).

See below:

§ 40.295 May employees or employers seek a second SAP evaluation if they disagree with the first SAP's

(a) As an employee with a DOT drug and alcohol regulation violation, when you have been evaluated by a SAP,
you must not seek a second SAP's evaluation in order to obtain another recommendation.
(b) As an employer, you must not seek a second SAP's evaluation if the employee has already been evaluated by a
qualified SAP. If the employee, contrary to paragraph (a) of this section, has obtained a second SAP evaluation, as an
employer you may not rely on it for any purpose under this part.

§ 40.297 Does anyone have the authority to change a SAP's initial evaluation?
(a) Except as provided in paragraph (b) of this section, no one (e.g., an employer, employee, a managed-care
provider, any service agent) may change in any way the SAP's evaluation or recommendations for assistance. For example,
a third party is not permitted to make more or less stringent a SAP's recommendation by changing the SAP's evaluation or
seeking another SAP's evaluation.
(b) The SAP who made the initial evaluation may modify his or her initial evaluation and recommendations based
on new or additional information (e.g., from an education or treatment program).

It seems like the only possibility for getting the SAP to change her opinion would be to go to the treatment program as recommended and then seek new information from them (that you are not an addict, etc.) Unfortunately, one of the main symptoms of addiction is denial, so I'm afraid your situation is Kafkaesque, in that you will likely have to admit to having a 'problem' and expressing a desire to get help in order to get success, rather than trying to fight the SAP, which is basically impossible under the law.

(6 months is a long time to get 'treatment' for a drug you are not even currently taking (or were/are addicted to), but there's really no other way here to get back working as a commercial driver).

I'm afraid it would also be quite difficult for you to seek a malpractice cause of action against the SAP, as you lack 'standing' to do so. The SAP is not really 'your' doctor, but is evaluating you for the government. (They are government employees). You are not paying the SAP, so there is really no doctor-patient relationship that would give rise to a medical malpractice cause of action. Also, if everyone who received an evaluation from an SAP disagreed with the diagnosis and treatment recommended, the courts would be clogged, as the majority of those are not going to be amenable to prescribed treatment for huge lengths at a time.

Also, you are not entitled to see the SAP notes and information, probably also for the same reason, as the process is not open for challenges as per DOT rules, and you are really forced to follow the recommendations or give up on getting back on the road as a commercial driver.

Finally, it is unfortunately immaterial that you were prescribed this medication, took it as needed, and have had not so much as a traffic ticket in 45 years. Since driving a commercial vehicle is considered a privilege not a right, it is not subject to the same due process considerations that a criminal case would be.

I realize the above information is not what you wanted to hear and I sincerely XXXXX XXXXX had better news to give you, but I hope you appreciate an honest and direct answer to your question. It would be unprofessional of me and unfair to you to provide you with anything less.

Thanks and best of luck!

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8/24/2013 at 9:40 PM (7 hours and 26 minutes and 27 seconds later)
The one thing you could do is see if you can pinpoint any violations that occurred in the SAP's failure to follow these guidelines:

However, it is important to note that once an SAP is brought in after a failed drug test, it's almost certainly going to wind up in them stating that the person has a drug problem and recommending treatment of some kind, since you did already violate a DOT regulation (even by taking a drug you were prescribed on the appropriate as needed basis).

The one thing that you are entitled to is the reports sent to your employer. So the SAP must provide these upon your request (although not her notes).

Joseph, Lawyer
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Customer: replied 3 years ago.

I tried to keep my question as short as I could given all that's happening, however, there is more to add to bring this case up to date. I appreciate your pasting the DOT section restricting me to this one SAP. I have studied all the relevant regulations and think I have a good grasp. My hope after the initial meeting and assessment with the SAP was my appeal to the MRO (Medical Review Officer) who interviewed me and the doctor who prescribed the meds (morphine tablets) after the MRO got the positive test result. According to DOT regulations, if there is a valid prescription then the MRO will reverse the positive result to negative. I contacted Bill Morgan, the DOT officer manning the information line for the DOT Title 49 website. He said "negative mean negative" as in acquittal, even though I never did anything illegal since the drug test was a pre-employment test after being on workers comp medical leave. I was off-duty off the clock when I took the test which I had scheduled myself at Quest Labs after being released by the surgeon for modified light duty before my next surgery on my other hand while undergoing physical therapy outpatient. I had relied on the SAMHSA averages of 2-3 days for morphine to be metabolized. I waited 3 days to take the test, but alas, my metabolism was slower than average. If I had had the slightest idea that I would fall into this truly Kafkaesque situation, as you described it appropriately, I would have waited another day or two to take the test until I was sure the morphine was out of my system. I would have just told my employer I was still on the meds and not quite healed from the recent surgery of 1-26-11. I would have paid $25 for the Firstcheck drug test kit for opiates, which I had used once before coming off surgery to make sure the drug had cleared before taking the DOT pre-employment test.

Because I was still undergoing physical therapy for the surgery on my hand the SAP postponed the date to report to 6 months residential inpatient detox rehab until the physical therapy was done, since I would not be able to go to physical therapy while in rehab. So here's the exponentially more Kafkaesque aspect--I called about a dozen rehab centers to see what was involved in getting inpatient if it got down to the only way to get my job back, all else having failed.

The first thing they ask a prospective client is what substance or drug is involved and when did I last use? I said morphine and it had now been two months since I last used. They then asked why I would need inpatient detox if I had been off the drug for two months? I said I had a very stubborn SAP who I had pissed off by pointing out the major problems with her investigation and lack of knowledge regarding DOT Title 49- Part 40 regulations. I had also asked her during her meeting with me on 3-16-11 what she knew about tramidol and she said she did not know the drug. I said it was a very commonly prescribed pain med used an alternative to opiates that did not show up on drug tests yet was a narcotic with high abuse potential. I said I was surprised an SAP would not be up on this commonly prescribed and often abused quasi-narcotic that imparted just as good "buzz" as vicodin, according to blogs. I suggested that even if she had not heard of the drug she should not have admitted such to me as a new client as it would cause me to doubt her credibility as an SAP, which it certainly did. I then asked what she knew about a drug I had been prescribed called Nuvigel, to further test her drug knowledge. She said she had not heard of this one either. I suggested this was one of the hottest new drugs on the market that was about as close to all the positive effects of methamphetamine without the negative effects ever invented by drug companies and did not show up on any drug tests. I suggested she brush up on her knowledge of popular prescription drugs with high recreational value and thus abuse potential or lose respect and credibility as an SAP with clients. She did not appreciate this advice and threw the book at me later with 6 months inpatient residential. Of the 12 rehab centers I called none had ever seen an SAP recommendation of 6 months inpatient, as no insurance company was likely to cover that much--up to $200,000 for that long. The rehab centers suggested 60-90 days was the maximum they recommended for detox and extended education-observation and that was pushing it with most insurance coverage.

I suggested one should not piss off an SAP during an evaluation, especially when a DOT case where no second opinion was allowed.

So back to having to go to rehab as a condition of getting my job back as a commercial driver. I was counting on getting out of having to go to rehab at all and never having to deal with this SAP again as soon as the MRO came back with a reversal of the positive to negative once they got my prescription, as per DOT regulations. The MRO I contacted by phone said they were backed up big time and it could take anywhere from 6 weeks at the soonest to 6 months at the max to get to my appeal. At this time we were close the 6 week mark and I still had a couple months of outpatient physical therapy to go, and thus the also the deadline to report to inpatient rehab.

But then the Catch 22.5. The rehab centers said they could not take me if I had been off all drugs for over two months since there would be no need for rehab detox. Insurance companies would need to pre-authorize inpatient rehab since it was about $1,000 to $2,000 per day. If I had no need for detox they would not likely pre-authorize.

They suggested out-patient monitoring and education would make more sense and the insurance company might go for that without so much question. What if I lied about being off the drugs to get into rehab so I could satisfy the SAP and get my job back? That could be interpreted as insurance fraud, they suggested, if money was paid out for a medical condition that did not exist. What if I hurried up and got addicted to morphine for awhile so I could then get detoxed, even though I never really cared much for morphine as a buzz, but just used it for pain mitigation?

At that point the rehab centers would often conclude the conversation with something like,"we do not think we can help you, good luck."

After 6 weeks I called the MRO in New York and asked how my case before them was moving along? I was surprised when the MRO I got on the phone remembered me from the last few times I called to see how they were doing. I asked how she could remember me from all the hundreds of drug abusers in denial she had to talk to in her job and that it made me feel special. She said I had an unusual voice as well as an unusual case but don't call her so much, possibly anymore, unless 6 months go by, then check back.

It turned out that the MRO got to my case in 6 weeks and indeed reversed the positive to negative. The problem was that the MRO, per DOT regulations, sends the notification electronically to the employer, not the employee, and our HR department, for reasons they have not explained but I will demand one day when the opportunity presents failed to notify me of the most important issue in my life at the time. I went back on full workers comp supplemental when my thumb joint degenerative osteoarthritis did not respond to steroid injections. Instead, surgery was scheduled several months in the future with the best hand surgeon in Fresno, which of course further postponed my reporting to mandatory residential inpatient detox rehab.

Finally, the grievance I filed after I was unlawfully terminated by my employer for testing positive for a legal prescription drug off duty on the pre-employment DOT drug test in violation of Title 49 Part 40 stating an employer must not take adverse action on an employee who gives the employer voluntary prior notification of controlled substance use---finally my grievance was heard by a Board of Adjustment convened with two reps from my union and two reps from my employer on 8-16-11. It was there that the Director of HR announced that the issue was "moot" because they had received a reversal of the positive to negative from the MRO dated 5-9-11. So I was hired back.

Since I was waiting for surgery I thanked them for hiring me back because I now got my medical and life insurance benefits back. I did file a grievance for backpay from 5-9-11 to 6-24-11 since according to DOT regulations the MRO reversal meant I was supposed to be put back to work on 5-9-11, pending, of course, I passed a pre-employment DOT drug test. As you know, a commercial driver who has been off work 30 days or more must take a pre-employment drug test, per DOT regulations.

At least I was finally free of the SAP from hell because, according to Bill Morgan of the DOT in DC "negative means negative." That case was done, acquittal, as if it never happened since DOT regulations require all positive records of that test on 2-17-11 must be removed from all files, employer and SAP.

But the ghost of Kafka haunts anew when the SAP refuses to let loose of me and fires off one last parting assessment to my employer stating that she received the MRO reversal but still thinks I'm a drug abuser and still recommends 6 months residential inpatient detox rehab, however, this recommendation is "non-DOT and non-SAP."

This is where I really need legal advice from an attorney who can tell me what a "non-DOT non-SAP" recommendation from an SAP is?

Is she making this recommendation as a private person, an unprofessional? What is the precedent on this kind of "non-DOT non-SAP" recommendation? Is it legally binding? My employer dutifully filed it in my file in HR, next to the copy of the old positive drug test result that DOT regulations says must not be there in view of the new negative, which must be kept in my file for 5 years, per DOT regs.

On 9-1-12 I am released for work by the workers comp surgeon after the final surgery on my thumb joints is successful. I have not taken opioid pain meds for almost two years, only tramadol, which is not DOT restricted or tested for--yet. I pass the DOT pre-employment test, although I was somewhat worried that given my slow metabolism 18 months might not be long enough for morphine to be metabolized from my body, which would bump up the SAMHSA average of 2-3 days considerably.

I am ready to man my bus when HR calls and says stand-down a minute--the DER in HR pulled my file and found a recommendation from the SAP requiring me to go 6 months residential inpatient detox.

I requested they notice the "non-DOT non-SAP" qualification attached, or perhaps we should call it an unprofessional disqualification.

Nonetheless HR wants me to be evaluated again by the SAP from hell who just keeps coming back from the dead file. I called my union rep to file another grievance because now I am suffering financial damages as well as mental, emotional, and metaphysical damages. I am not getting workers comp daily supplemental payments or regular pay from driving the bus. This is very serious instead of just regular serious. Real income is in denial.

The union rep says the grievance is filed and he will tell the union boss about the rogue non-DOT non-SAP SAP. Maybe the union boss can get the SAP to modify that 6 months residential inpatient detox rehab recommendation somewhat. I suggest to the union rep that he suggest to the union boss to be mindful of his wording with his recommendation to the non-SAP SAP since it could appear to be improper influence due to the fact the our union pays the SAP salary as part of our Teamsters Alcohol and Drug Rehabilitation Program or TARP.

The meeting with the SAP is scheduled for 9-11-12 and this time I might not want to remind the SAP of all the regulations I think she's violated since I first met her, federal, state, local, and universal. Maybe I can get off with just a few years outpatient rehab and go back to work at the same time, then file a malpractice suit when I've completed all rehab or something. At least another Board of Adjustment hearing had been scheduled to hear my grievances. In the sprit of feigned reconciliation I invited the SAP to attend as a guest defendant, but she declined.

I need to get to sleep so I will finish adding some more background to my legal issue tomorrow.

What kind of rehab will I be unlawfully assigned this time?

How will the Board of Adjustment rule?

How does one recover damages from an SAP gone mad?

As a good faith gesture, I'd appreciate if you accept my previous answer before I continue.

Thank you!
Customer: replied 3 years ago.

Thanks; did you have anything to add to the above? I'll get back to you by tomorrow morning.
Customer: replied 3 years ago.

I just wrote a lot and it disappeared somehow when I clicked reply. Must be a glitch. I'll try again later. I need to get this case up to date.

Unfortunately, those things happen. I tend to hit control-A and control-C on my longer posts just in case something doesn't go through.

I'll be happy to look over the additional material.

But, in answer to your question, the SAP's non-DOT non-SAP recommendation has no legal bearing whatsoever. It is just her opinion that you are a drug addict and that you need six months of rehab, nothing more. (Again, this is a ridiculously long amount of time. Most rehab centers are 30 days, even for heroin or crack addicts, and as far as I know NO insurance company covers 6 months of rehab. It does seem that you really pissed the SAP off by questioning her knowledge. Although you're right that she should have known about tramadol, definitely ).

There really isn't anything illegal about her giving this recommendation to your employer, unfortunately. Although it should not have had any bearing on whether your employer decided to terminate you or not.

I would definitely recommend that you take a conciliatory tone with the SAP when you see her again, although you can definitely inform her that you have been off opiates of any kind for quite some time now, since you no longer were prescribed them when necessary.

Joseph, Lawyer
Satisfied Customers: 5299
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you

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