Transportation Agencies Move to Regulate Sleep Apnea

On March 8, 2016, the Federal Motor Carrier Safety Administration (FMCSA) and Federal Railroad Administration (FRA) jointly announced that they are taking the first step towards determining whether to propose requirements regarding sleep apnea by seeking input on the impact of screening, evaluating, and treating commercial motor vehicle (CMV) drivers and rail workers for obstructive sleep apnea (OSA). Initiated through publication of an Advanced Notice of Proposed Rule Making (ANPRM), the agencies set a 90-day comment period during which they will host three public listening sessions (in Washington, Chicago, and Los Angeles) to gather additional input on OSA.

The ANPRM request for comments identified several topics to be the focus of the inquiry, including the prevalence of OSA and the safety performance histories of CMV drivers and rail workers diagnosed with moderate to severe OSA, the costs and benefits of various regulatory requirements and restrictions, medical guidance on available screening procedures and diagnostics and the efficacy of treatments, and guidance on requirements for medical personnel.

The move stems in part from a recommendation from the National Transportation Safety Board that DOT take action to address the potential safety hazard of OSA among transportation workers. The rulemaking proposal cites well-publicized accounts of recent trucking and railway accidents determined to have been caused or likely caused by OSA. The proposal adds that the Federal Aviation Administration has long considered OSA a disqualifying condition for pilots and cited as “instructive” the FAA’s recently revised medical guidance on OSA screening of pilots (issued March 2, 2015).

This ANPRM follows a joint report and recommendation on OSA by the FMCSA’s Medical Review Board (MRB) and Motor Carrier Safety Advisory Committee (MCSAC), which was in turn prompted by concerns that the current, limited FMCSA guidance on OSA, in effect since 2000, is insufficient to provide FMCSA medical examiners tools for identifying CMV drivers who are at risk of OSA and/or potentially unqualified due to moderate to severe OSA.

In response to the MRB/MCSAC Report, and in advance of rulemaking, early last year the FMCSA issued a bulletin to its medical examiners regarding OSA in which it emphasized that the FMCSA considers OSA a respiratory dysfunction that may “interfere with the driver’s ability to safely control and drive a commercial motor vehicle.” The January 2015 bulletin noted the lack of specific OSA screening guidelines, but urged medical examiners to use their own “medical judgment and expertise in determining whether a driver exhibits risk factors for having OSA” and whether the examiner needs additional information before issuing a medical certificate. The bulletin also identified several common OSA symptoms (including loud snoring, witnessed apneas, and waking hour sleepiness) and risk factors for OSA (including BMI, neck size, and prior involvement in a single-vehicle crash) to be considered by examiners.

The FRA, prompted by similar concerns about risk of accidents caused by fatigue and sleep disorders, has also taken action in recent years. In September 2004, the FRA issued a Safety Advisory in which it recommended that the railroad community take several steps to address OSA-related risk, including establishing training programs to educate employees on performance impairment resulting from sleep-related problems, developing standardized screening tools for diagnosis, referral and treatment of sleep apnea and other sleep disorders, and implementing policies barring employees in safety sensitive positions with performance-impairing sleep-related conditions from performing safety sensitive duties. The FRA also established a Medical Standards Working Group tasked with developing standards for identification of conditions that could lead to sudden incapacitation or impairment of safety-critical personnel, sleep apnea included. This latest move builds on these earlier efforts.

Vigilant transportation entities will be watching this development as they create and evolve their own sleep apnea programs. So will litigants, as apnea-related accident litigation continues to take center stage and raise risk of large jury awards.