Part II

If you are a medical examiner who performs commercial driver physicals, have you reviewed your contract with the Federal Motor Carrier Safety Administration (FMCSA) lately?  Most likely you have invested time and money outside your specialty to train and pass an examination, and to be listed in the National Registry of Certified Medical Examiners (NRCME).  Whether you are new to performing DOT physicals or a seasoned examiner, the requirement for certification  and listing in the NRCME is the same (FactSheetMedical Examiners).    If performing driver physicals is a significant part of your practice, what have you done to protect your investment? What measures have you implemented to remain in compliance with the FMCSA?

In the last post we highlighted some of the consequences of non-compliance ranging from error correction to de-certification or removal.  The two examiners that were de-certified (on 7/10/2015 and on 10/13/2015)  had the following warning posted next to their information at the NRCME website:

“IMPORTANT:  Please do not contact to schedule an examination.  This Medical Examiner is not currently certified on the National Registry of Certified Medical Examiners”.

At the NYS Department of Motor Vehicle website a similar warning was issued, with further details informing all drivers who were evaluated by the examiners that they would be contacted by FMCSA and that they would need to undergo a new examination with another examiner listed in the NRCME.  (Affected drivers would of course have to pay for a new examination out of their own pocket).

Recent news aside, keep in mind the FMCSA has always had authority to remove any examiner who improperly certifies drivers, and invalidate the medical examiner certificates issued by such examiner.  In fact about two years ago, just a month prior to compliance with the NRCME, the FMCSA published a safety bulletin stating that it will be invalidating Medical Examiner’s Certificates issued by a Georgia doctor who failed to conduct proper examinations.   

FMCSA expectations and requirements of medical examiners- To monitor examiner performance and ensure compliance with FMCSA medical standards and guidelines. The Complete Guide to Medical Examiner Certification (The Guide) reviews all the requirements necessary to become an examiner from test taking to maintenance of certification.

Most examiners are of course aware that once they become certified they must complete periodic training every 5 years as specified by FMCSA and that they must pass the Medical Examiner certification test every 10 years.  They know that they must complete and submit Form MCSA-5850, CMV Driver Medical Examination Results and that they must retain each original (paper or electronic) completed Medical Examination Report and a copy or electronic version of each medical examiner’s certificate on file for at least 3 years from the date of the of examination.

The problem is that a lot can happen between now and 3 years or 10 years, and some examiners may have already found themselves buried under a massive amount of paper work.  Are you one of those examiners falling behind even just with your uploads?  Is your filing system antiquated or just plain disorganized that you have to send a search party out to retrieve driver files stored away in boxes or in cluttered file cabinets?  Remember, any representative, special agent, or investigator of the FMCSA can call or “knock on your door” at any time, as well as any authorized state or local enforcement agency representative.  You must comply within 48 hours after the request is made for investigations and within 10 days of requests for regular audits.

The medical examiner must also:

• Submit to periodic random FMCSA examiner reviews and or review of Medical Examination Reports associated with the name and numerical identifiers of applicants/drivers for errors, omissions, or other indications of improper certification.
• Submit to annual medical examiner audits.   
  

  “The purpose of the audit is to check a percentage of medical examiners listed on the National Registry Website to obtain verification of eligibility (e.g., proof of current State medical licensure, registration, or certification to perform physical examinations and proof of completion of required training)”.  

  The time to respond to this type of audit is also 48 hours for investigations or 10 days for regular audits.  

Other reasons for FMCSA removal of examiner includes:

• Errors or omissions indicating improper certification in either the completed Medical Examination Reports or medical examiner’s certificates.
• Medical examiner issued a medical examiner’s certificate to an operator of a CMV who failed to meet the applicable standards at the time of the examination.
• Medical examiner failed to comply with FMCSA driver examination requirements.
• Failure of the medical examiner to complete training in physical and medical examination standards, and again, examiner must report any information regarding termination, suspension, or withdrawal of state license, registration, or certificate.

The consequences of non-compliance

In short the medical examiner will be removed from the NRCME.

The full procedure for removal, compliance and corrective action, and how examiner can oppose a notice of proposed removal and request administrative review is summarized below and further explained in the Guide.

A medical examiner who has received a notice of proposed removal must submit any written response to FMCSA via web account no later than 30 days after the date of issuance of the notice of proposed removal.

If examiner fails to submit a written response within 30 days of issuance of a notice of proposed removal, he or she will be removed immediately from the National Registry.

Prior to the 30 day deadline, the FMCSA will review written responses from examiner and either withdraw or affirm their notice.  If FMCSA determines that they were partly “erroneous” in issuing their notice of proposed removal, they will modify the notice and notify examiner in writing of their determination.  The examiner has 60 days to comply and correct any deficiencies identified in the notice of proposed removal.  

Compliance: The medical examiner must comply and complete the corrective actions specified in the notice of proposed removal no later than 60 days after either the date of issuance of the notice of proposed removal or the date FMCSA affirms or modifies the notice of proposed removal, whichever is later. The medical examiner must provide documentation of compliance and completion of the corrective actions to FMCSA.  FMCSA may conduct any investigations and request any documentation necessary to verify that the medical examiner has complied and completed the required corrective action(s). FMCSA will notify the medical examiner, in writing, whether he or she has met the requirements to continue to be listed on the National Registry

Failure to Comply: If the medical examiner fails to complete the proposed corrective action(s) within the 60-day period, the removal becomes effective and the medical examiner is immediately removed from the National Registry.   FMCSA will notify the medical examiner, in writing, that he or she has been removed from the National Registry.

Resolution: At any time before a notice of proposed removal from the National Registry becomes final, the medical examiner who received the notice and FMCSA may resolve the matter by mutual agreement.

Administrative Review:  This is a process by which an examiner who has been removed from the Registry can write to the FMCSA’s  Associate Administrator for Policy and explain the error(s) committed in removing him or her from the National Registry.  The examiner is responsible for providing factual, legal, and procedural issues in dispute and any supporting information or documents, and must do so within 30 days.   The Associate Administrator may request additional information from the examiner before issuing a decision.  Not providing information or not attending scheduled meetings with the Administrator will cause the examiner’s request for review to be dismissed.   The decision of the Associate Administrator represents final Agency action.

If the Associate Administrator decides the removal was not valid, FMCSA will reinstate the medical examiner and reissue a certification credential to expire on the expiration date of the certificate that was invalidated. The reinstated medical examiner must continue to meet all requirements defined in this Guide.

Reinstatement on the National Registry: A medical examiner who has been removed from the National Registry may apply to FMCSA for reinstatement no sooner than 30 days after the date of removal. The former medical examiner must provide documentation showing compliance with all requirements and completion of any additional corrective actions required in the notice of proposed removal…

A certified medical examiner who chooses to no longer perform commercial driver medical examinations may voluntarily remove his or herself from the Registry, providing that no notice of proposed removal has already been issued by FMCSA.   If this examiner later desires to be reinstated by FMCSA, the examiner will again have to provide documentation showing proof of compliance with all requirements.

Effect of Final Decision by FMCSA: Once removed from the National Registry, the medical examiner’s listing is removed and the FMCSA medical examiner certification credential is no longer valid. The medical examiner’s information remains publicly available for 3 years, with an indication that he/she is no longer listed on the National Registry as of the date of removal.

Lastly, any examiner who poses an imminent threat to public health and safety can be removed on an emergency basis by the FMCSA.

In the next and last part of this series we will look at ways a medical examiner can reduce clutter, and become more efficient and compliant with the help of technology and software.