August 8, 2017 FMCSA and FRA officially withdraw the March 10, 2016 Advanced Notice of Proposed Rulemaking (ANPRM) on obstructive sleep apnea (OSA). Click link below:
OSA still remains an ongoing concern in transportation for Federal regulatory agencies such as FMCSA and FRA who co-sponsored the withdrawn rule. In order to continue to assist medical examiners in the proper screening, treatment and followup of at risk drivers, FMCSA is proposing updating it’s January 2015 “Bulletin to Medical Examiners and Training Organizations Regarding Obstructive Sleep Apnea”.
The 2015 bulletin reviewed the physical qualification standards and advisory criteria related to respiratory dysfunction, and specifically how it can be used to help in the evaluation of drivers at risk for OSA. On August 2016 the Medical Review Board (MRB) convened after more than 700 comments regarding the ANPRM was received by the FMCSA. The MRB was tasked with reviewing all of the comments and providing identifying factors that can be used by the FMCSA in it’s rulemaking. The MRB was also asked to review it’s previous 2012 report to FMCSA on OSA, and to update it. This formed the basis of MRB’s 2016 recommendations that provided medical examiners with objective criteria to use in the evaluation of at risk drivers for OSA. The timeline from ANPRM to the MRB recommendations to the Motor Carrier Safety Advisory Committee (MCSAC) can be found in this previous post.
As previously stated, moderate to severe OSA remains an important concern in transportation. This is emphasized by the following statements from the FMCSA:
The Agency reminds medical examiners that there are no FMCSA rules or other regulatory guidance beyond what is referenced in this paragraph above with guidelines for screening, diagnosis, and treatment of OSA in CMV drivers.
Medical certification determinations for such drivers are made by the examiners based on the examiner’s medical judgment rather than a Federal regulation or requirement.
Hopefully, that FMCSA statement will help put to rest the idea by some that nothing needs to be done about OSA because there is no formal rule, and despite Public Law 113-45 , which passed both houses of Congress and was signed into law by President Obama in 2013. (The law requires FMCSA to go through a formal rule making process before issuing any requirements for OSA and is still seen by some as “legal prohibition” so to speak, against the screening and testing for OSA by medical examiners).
From a medical examiner’s perspective, the regulatory guidance already in place pertaining to respiratory disorders which includes OSA should be followed in making certification determinations. With regards to OSA (and arguably any medical condition that can affect the safe operation of a commercial vehicle), the role of the medical examiner can best be summarized by the last part of the FMCSA statement above, which states that medical certification determinations made by medical examiners should be based on the medical examiner’s judgement rather than a Federal regulation or requirement.
Below are additional resources provided by the FMCSA and FRA that can be helpful in the evaluation of highway and railroad workers at risk for OSA.
- North American Fatigue Management program
- FRA Notice of Advisory 2004-04; Notice of Advisory 2016-03 (81 FR 87649, Dec. 5, 2016)
- Rail Safety Improvement Act of 2008 (RSIA)