EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: DIABETIC TRUCK DRIVERS / MEDICAL SCREENING RULES / SAFETY
Ms. Annette M. Sandberg
Federal Motor Carrier Safety Administration
U.S. Department of Transportation
400 Seventh St., S.W.
Washington, DC 20590-0001
Re: Notice of Revised Final Disposition [Docket No. FMCSA-2001-9800]
Dear Administrator Sandberg:
We are submitting the following comment on behalf of the Equal Employment Opportunity Commission (EEOC or Commission), in response to the Notice of Final Disposition, 70 Fed. Reg. 67,777 (Nov. 8, 2005) (Notice). In the Notice, the Federal Motor Carrier Safety Administration (FMCSA or agency) revised its September 2003 notice concerning the licensing of commercial motor vehicle (CMV) drivers who have insulin-treated diabetes mellitus (ITDM). [a] The agency took this action in response to a Congressional mandate set forth in the Safe, Accountable, Flexible, and Efficient Transportation Act: A Legacy for Users (SAFETEA-LU), Pub. L. No. 109-59, 119 Stat. 1144 (2005) (the Act).
As you are aware, section 4129 of the Act required the Secretary of the Department of Transportation (and through DOT, your agency) to allow qualified ITDM drivers to operate CMVs in interstate commerce. This section required the agency to revise its rule on ITDM drivers by eliminating the three-year experience prerequisite and changing its medical screening rules by making them consistent with the findings of the FMCSA’s expert medical panel in July 2000. In response to the Act, FMCSA revised the rule applicable to ITDM drivers by eliminating the three-year operating experience requirement and a second rule that required the submission of two tests for glycosylated hemoglobin (HgA1C test) 90 days apart. In place of the second requirement, however, the agency’s November 8 Notice added a new standard that “will now require submission with the application of only one HgA1C result within the range of >=7% and <=10% to meet the minimum period of insulin use requirements, as modified by section 4129(c).” 70 Fed. Reg. at 67,780.
The Commission, as the agency responsible for enforcement of Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., has long been interested in the rules and limitations that FMCSA has applied to ITDM CMV drivers. As we have expressed to your agency in the past, we are interested in increasing the employment opportunities in transportation for individuals with disabilities, including individuals who have ITDM. This goal, moreover, is consistent with the goals of the ADA: to reduce, if not eliminate, barriers to employment for persons with disabilities and to foster increased use of individualized assessments of the qualifications of individuals applying for work. As DOT Secretary Mineta has noted,
Early in his first term, President Bush challenged us to . . . build on the ADA, to connect people with disabilities to services, to jobs, and to opportunities. At the core of President Bush’s New Freedom Initiative is the President’s deep commitment to tearing down barriers that stand between the basic rights and dignity of citizenship and the opportunity to pursue the American dream.
Remarks presented at the American Association of People with Disabilities Leadership Gala, Washington, D.C., March 9, 2005.
The Commission is concerned that the agency is creating a new access barrier to CMV positions for qualified ITDM drivers who demonstrate medically-sound blood sugar control. The agency’s HgA1C range contradicts current medical advice regarding blood sugar control and will exclude ITDM drivers whose scores are below 7% even though they are able to demonstrate stable control of their diabetes. The American Diabetes Association, the National Institutes of Health, and the Centers for Disease Control and Prevention all recommend that individuals with diabetes seek to lower their score below 7%. Similarly, the American Association of Clinical Endocrinologists and American College of Endocrinology (AACE/ACE) have established a target of 6.5% on the HgA1C test.[b] An ITDM driver meeting the targets that the medical community has established and otherwise demonstrating excellent blood sugar control thus would be unable, under the FMCSA standard, to obtain a CMV license. This result appears inconsistent with the agency’s new statutory obligation to license ITDM drivers who are able, using the most current medical evidence, to demonstrate stable control of their diabetes.
Moreover, the agency’s standard contradicts the advice of the expert medical panel (Panel). As the Panel noted in its December 20, 2005 letter to you, the 7% – 10% standard “is completely medically unjustified and directly contrary to the advice we provided as the Expert Medical Panel on this issue.” The Panel underscored the importance for ITDM individuals to seek scores below 7%, arguing that the agency’s standard “will screen out those who are doing the very best job in managing their diabetes and force people with diabetes to lessen their chances of avoiding the long-term complications of diabetes in order to find or maintain employment.” The Panel further noted that using current diabetes management tools, most people can reach the goal of under 7% without significant risk of hypoglycemia. [c]
Consistent with the principles embodied in the ADA as well as the President’s New Freedom Initiative, the Commission urges the agency to reconsider this new access barrier to CMV positions. At a minimum, we would urge the agency to give due consideration to the best available objective medical evidence in determining whether and, if so where, to establish the HgA1C range. Although the agency’s own expert Panel urges removal of “the mandatory [HgA1C] range from the criteria in the diabetes exemption program,” we would suggest that if the agency determines a range is needed that it lower the bottom of the range to 6.5% so that those ITDM drivers demonstrating medically-sound blood sugar control are not excluded from CMV positions. We further urge the agency to adopt a flexible approach for those persons whose HgA1C scores fall outside of any imposed range by implementing processes that will consider all relevant medical evidence when determining whether to grant a CMV license to an ITDM driver. Such flexibility, we believe, is consistent with Congress’s intent in adding section 4129 to the Act, ensuring that the process provides “for the individual assessment of applicants who use insulin to treat their diabetes and who are, except for their use of insulin, otherwise qualified under the Federal motor carrier safety regulations.” SAFETEA-LU § 4129(a).
If you have further questions or would like to discuss this matter, please feel free to call either me (202-663-4609) or Carol R. Miaskoff, Assistant Legal Counsel (202-663-4645).
Peggy R. Mastroianni
Associate Legal Counsel
[a] The current exemption process was set forth in a DOT notice of final disposition, 68 Fed. Reg. 52,441 (Sept. 3, 2003).
[b] AACE/ACE notes that “[a] score of less than six percent is typical among patients without diabetes. The higher the value above normal, the greater the risk for diabetes-related complications including blindness, kidney disease and nerve damage.” AACE/ACE A1C Test, (available at http://www.aace.com/meetings/consensus/dcc/dc-a1c.php). The organizations also note that the International Diabetes Federation adopted the 6.5% standard at its September 2005 conference.
[c] The FMCSA notice noted that the American Diabetes Association recommended use of <7% as a normal HgA1C, but rejected it on the grounds that an ITDM driver with a score below 7% presented an unreasonable risk of hypoglycemia. See 70 Fed. Reg. at 67,780. The Panel’s letter strongly argues to the contrary.
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