Special Care Needed For Drivers With Sleep Apnea

The Federal Motor Carrier Safety Administration (FMCSA) has published a bulletin to medical examiners on its National Registry of Certified Medical Examiners regarding the current commercial driver physical qualifications standard and advisory criteria concerning the respiratory system. Specifically, the bulletin addresses how the requirements apply to drivers that may have obstructive sleep apnea (OSA).

The bulletin states that obstructive sleep apnea is a respiratory disorder characterized by a reduction or cessation of breathing during sleep coupled with symptoms such as excessive daytime sleepiness. Given this, OSA may culminate in unpredictable and sudden incapacitation (e.g., falling asleep at the wheel), thus contributing to the potential for crashes, injuries and fatalities.

The bulletin also references the agency’s advisory criteria from October 5, 2000, which clarifies when a driver meets the medical standards in 391.41(b)(5) on respiratory function…

“Since a driver must be alert at all times, any change in his or her mental state is in direct conflict with highway safety. Even the slightest impairment in respiratory function under emergency conditions (when greater oxygen supply is necessary for performance) may be detrimental to safe driving. There are many conditions that interfere with oxygen exchange and may result in incapacitation, including emphysema, chronic asthma, carcinoma, tuberculosis, chronic bronchitis and sleep apnea. If the medical examiner detects a respiratory dysfunction that in any way is likely to interfere with the driver’s ability to safely control and drive a commercial motor vehicle, the driver must be referred to a specialist for further evaluation and therapy. Anticoagulation therapy for deep vein thrombosis and/or pulmonary thromboembolism is not unqualifying once optimum dose is achieved, provided lower extremity venous examinations remain normal and the treating physician gives a favorable recommendation.”

There are no guidelines for OSA screening, diagnosis or treatment; medical examiners are allowed to use their judgment and expertise in evaluating drivers under the 391.41(b)(5) requirements. The FMCSA advises:

  • Screening: With regard to identifying drivers with undiagnosed OSA, FMCSA’s regulations and advisory criteria do not include screening guidelines. Medical examiners should consider common OSA symptoms such as loud snoring, witnessed apneas, or sleepiness during the major wake periods, as well as risk factors, and consider multiple risk factors such as body mass index (BMI), neck size, involvement in a single-vehicle crash, etc.
  • Diagnosis: Methods of diagnosis include in-laboratory polysomnography, at-home polysomnography, or other limited channel ambulatory testing devices which ensure chain of custody.
  • Treatment: OSA is a treatable condition, and drivers with moderate-to-severe OSA (defined by an apnea-hypopnea index (AHI) of greater than or equal to 15) can manage the condition effectively to reduce the risk of drowsy driving. Treatment options range from weight loss to dental appliances to Continuous Positive Airway Pressure (CPAP) therapy, and combinations of these treatments. The agency’s regulations and advisory criteria do not include recommendations for treatments for OSA, and FMCSA believes the issue of treatment is best left to the treating healthcare professional and the driver.

This leaves virtually complete discretion with the medical examiner. 49 CFR 391.41(b)(5) simply provides that to be qualified to drive a CMV, a driver must have “no established medical history or clinical diagnosis of a respiratory dysfunction likely to interfere with his/her ability to control and drive a commercial motor vehicle safely.” The curriculum for medical examiner training and certification focuses on those areas of 49 CFR Part 391 applicable to driver physical qualifications. The curriculum asks the examiners to inquire about a CMV driver’s history of any sleeping or respiratory disorders, including OSA. But the standards used to interpret and implement those provisions are largely left to the medical examiner.

Companies should discuss with their medical examiners what parameters the examiners are using to evaluate sleep disorders and driver disqualification. If a company believes the medical examiner is using too strict a standard, you may request/negotiate a revised standard; or you may seek another opinion from a different examiner for that driver and any future drivers who need requalification. A too stringent standard may serve to disqualify otherwise qualified drivers. Of course, if the driver is involved in a crash resulting in litigation, the plaintiff’s attorney could argue that your company’s unwillingness to accept the advice of the first examiner was evidence of negligence.

Ultimately, this issue will be resolved through rulemaking, but that is probably several years away. FMCSA has said that sometime this year it will publish a rulemaking notice requesting information to help determine the costs and benefits of regulatory requirements for obstructive sleep apnea. But this would not be a proposed rule (more likely an advance notice of proposed rulemaking). It will take several years to develop a proposed rule and then a final rule, and even then the final rule is likely to end up challenged in court.

Gases and Welding Distributors Association
Richard P. Schweitzer, Esq. Meet the Author
GAWDA’s Government Affairs and Human Resources Legal Consultant Rick Schweitzer is president of Richard P. Schweitzer, PLLC in Washington, D.C. He is also GAWDA’s general counsel. Members can reach him at 202-223-3040 and rpschweitzer@rpslegal.com.