1. (a) Drug and alcohol testing. An individual who is required to undergo an alcohol or drug test, will be requested to sign a consent form and to report to a collection site, or in the case of an alcohol breath test to report to a test site to be designated by the department. All alcohol and drug tests will be conducted at department expense with the exception of the split specimen test as discussed in subsection (c) of this section.

2. (b) Drug test administration. Collection site personnel will administer drug tests according to Department of Health and Human Services (DHHS) guidelines. DHHS guidelines are summarized as follows.

   1. (1) Specimen collection procedures.

      1. (A) A chain of custody for each specimen to be chemically tested will be established and maintained from the time of specimen collection through the testing of the specimen.

         1. (i) If a specimen is not immediately prepared for shipment, it will be safeguarded during temporary storage.
         2. (ii) Every effort will be made to minimize the number of persons handling specimens.

      2. (B) Specimen collection and shipping will be conducted as follows.

         1. (i) Procedures for collecting urine specimens will allow individual privacy unless there is reason to believe that a particular individual may alter or substitute the specimen to be provided.
         2. (ii) To deter the dilution of specimens at the collection site, toilet bluing agents will be placed in toilet tanks wherever possible, so the reservoir of water in the toilet bowl always remains blue. There will be no other source of water (e.g., no shower or sink) in the enclosure where urination occurs.
         3. (iii) When an individual arrives at the collection site, the collection site person will request the individual to present photo identification. If the individual's identity cannot be established, the collection site person will not proceed with the collection. If the employee requests, the collection site person will show his or her identification to the employee.
         4. (iv) The collection site person will ask the individual to remove any unnecessary outer garments such as a coat or jacket that might conceal items or substances that could be used to tamper with or adulterate the individual's urine specimen. The collection site person will ensure that all personal belongings such as a purse or briefcase remain with the outer garments. The individual may retain his or her wallet. If the employee requests a receipt for any personal belongings, the collection site person will provide it.
         5. (v) The individual will be instructed to wash and dry his or her hands prior to urination.
         6. (vi) After washing hands, the individual will remain in the presence of the collection site person and will not have access to any water fountain, faucet, soap dispenser, cleaning agent or any other materials which could be used to adulterate the specimen.
         7. (vii) The individual may provide his or her specimen in the privacy of a stall or otherwise partitioned area that allows for individual privacy.
         8. (viii) The collection site person shall instruct the employee to provide at least 45 ml under the split sample method of collection in which 30 ml will be used as the primary specimen and 15 ml will be used as the split specimen.
         9. (ix) If the individual is unable to provide an adequate quantity of urine, the collection site person will instruct the individual to drink up to 40 ounces of fluids, distributed reasonably through a period of up to three hours, or until the individual has provided a new urine specimen, whichever occurs first. The original insufficient specimen will be discarded. If the employee is still unable to provide an adequate specimen, the insufficient specimen will be discarded, testing discontinued, and the department so notified. The medical review officer will refer the individual for a medical evaluation to develop pertinent information concerning whether the individual's inability to provide a specimen is genuine or constitutes a refusal to test.
         10. (x) Both the individual being tested and the collection site person shall keep the specimen in view at all times after the specimen is given, prior to the specimen being sealed and labeled. The specimen shall be sealed with a tamperproof seal over the bottle cap and down the sides of the bottle, and labeled in the presence of the employee.
         11. (xi) The collection site person shall place an identification label securely on the bottle which contains the date, the individual's specimen number, and any other identifying information provided or required by the department. If separate from the label, the tamperproof seal shall also be applied. The individual being tested shall be present during these procedures.
         12. (xii) The individual shall initial the identification label on the specimen bottle to certify that it is the specimen collected from that individual.
         13. (xiii) The individual shall be asked to read and sign a statement on the drug testing custody and control form certifying that the specimen identified as having been collected from that individual is in fact the specimen he or she provided.
         14. (xiv) The collection site person will note any unusual employee behavior or appearance in the permanent record book.
         15. (xv) Whenever there is reason to believe that a particular individual may alter or substitute the specimen to be provided, a second specimen will be obtained as soon as possible under the direct observation of a same gender collection site person.
         16. (xvi) A designated collection site may be any suitable location where a specimen can be collected under conditions set forth in this subchapter, including a properly equipped mobile facility. A designated collection site will have an enclosure where private urination can occur, a toilet for completion of urination (unless a single-use collector is used with sufficient capacity to contain the void), and a suitable clean surface for writing. The site must also have a source of water for washing hands, which, if practicable, should be external to the enclosure where urination occurs.
         17. (xvii) If a collection site facility is dedicated solely to urine collection, the department will secure it at all times. If a facility cannot be dedicated solely to drug testing, the department will secure the portion of the facility used for testing during drug testing.
         18. (xviii) Specimens will be shipped by an expeditious means to the laboratory.

   2. (2) Laboratory analysis procedure.

      1. (A) Each specimen will be analyzed in accordance with DHHS guidelines which requires testing for the following substances:

         1. (i) marijuana;
         2. (ii) cocaine;
         3. (iii) opiates;
         4. (iv) phencyclidine (PCP); and
         5. (v) amphetamines.
      2. (B) DHHS guidelines presently specify the following confirmatory test cutoff levels.

3. (c) Test of split specimen. A final applicant or employee may appeal the results of a positive drug test by following the procedures listed below.

   1. (1) Final applicants or employees must request, in writing, that the split specimen be provided to another DHHS certified laboratory for testing.
   2. (2) The applicant or employee must make the request, in writing, to the medical review officer within 72 hours after notification of a confirmed positive test result. The same medical review officer will be used to interpret the results of the split specimen test. All the costs related to the split specimen test are at the expense of the final applicant or employee.
   3. (3) In the event that the result of the split specimen test is negative, indicating that the positive result of the first test was erroneous, the department will reimburse the final applicant or employee for the cost of the split specimen test.
   4. (4) If an employee has not contacted the medical review officer within 72 hours as provided under this subsection, the employee may present to the medical review officer information documenting that serious illness, injury, inability to contact the medical review officer, lack of actual notice of the verified positive test, or other circumstances unavoidably prevented the employee from timely contacting the medical review officer. If the medical review officer concludes that there is a legitimate explanation for the employee's failure to contact the medical review officer in 72 hours, the medical review officer shall direct that the analysis of the split specimen be performed.
   5. (5) The medical review officer will report and review split specimen test results as provided in subsection (b)(3)(C) of this section.

4. (d) Alcohol test administration. Alcohol tests may be conducted on either blood or breath specimens. A blood or breath alcohol test level of 0.04 or greater is considered to be a positive test result for alcohol. Alcohol blood tests will be administered according to Coast Guard guidelines.

   1. (1) Breath testing procedure. The breath alcohol technician (BAT) will administer breath alcohol tests according to Federal Highway Administration (FHWA) guidelines as follows.

      1. (A) The BAT will complete a breath alcohol testing form for the initial breath test and for the confirmatory breath test.

      2. (B) The BAT will conduct a breath alcohol test as follows.

         1. (i) A BAT will administer the tests, except that a BAT qualified supervisor of the employee may not conduct the breath alcohol test.
         2. (ii) The BAT will conduct the alcohol testing in a location that affords visual and aural privacy, sufficient to prevent unauthorized persons from seeing or hearing test results.
         3. (iii) The BAT will require the employee to provide positive identification (through use of a photo I.D. card or identification by a department representative). If the employee requests identification, the BAT will provide it to the employee.
         4. (iv) The BAT will explain the testing procedure to the employee.
         5. (v) The BAT and the employee will complete Part I of the Breath Alcohol Testing Form (as prescribed by the U.S. Department of Transportation) prior to the breath test which includes the employee signing the certification. Refusal by the employee to sign this certification will be regarded as a refusal to take the test.
         6. (vi) The BAT will open an individually sealed mouth piece in view of the employee and attach it to the Evidential Breath Testing Device (EBT) for both the initial and confirmatory tests.
         7. (vii) The BAT will use a log book in conjunction with any EBT used for screening tests that does not meet the requirements of the National Highway Traffic Safety Administration's (NHTSA) Conforming Products List (CPL).
         8. (viii) The BAT will instruct the employee to blow forcefully into the mouthpiece for at least 6 seconds or until the EBT indicates that an adequate amount of breath has been obtained.
         9. (ix) If an adequate amount of breath is not obtained, the BAT will again instruct the employee to attempt to provide an adequate amount of breath. If the employee refuses to make the attempt, the BAT will immediately inform the substance control officer.
         10. (x) If the employee attempts and fails to provide an adequate amount of breath, the BAT will so note in the "Remarks" section of the breath alcohol testing form and immediately inform the substance control officer.
         11. (xi) If the result of the initial test is a breath alcohol concentration of less than 0.02, the BAT and employee will complete the form. No further testing is authorized.
         12. (xii) If the result of the initial test is an alcohol concentration of 0.02 or greater, the BAT will conduct a confirmatory test within 20 minutes of the completion of the screening test. The BAT will instruct the employee not to eat, drink, put any object or substance in his or her mouth, and, to the extent possible, not belch. The BAT will explain to the employee the reason for this requirement (to prevent any accumulation of mouth alcohol leading to an artificially high reading) and the fact that it is for the employee's benefit. The BAT will also explain that the test will be conducted at the end of the waiting period, even if the employee has disregarded the instruction. The results of the confirmatory test are final.
         13. (xiii) If a BAT other than the one who conducted the screening test is conducting the confirmatory test, the new BAT will initiate a new Breath Alcohol Testing form.
         14. (xiv) If the employee attempts and fails to provide an adequate amount of breath, the substance control officer will direct the employee to obtain, at their own expense, as soon as practical, an evaluation from a licensed physician to determine whether a medical condition could have precluded the employee from providing an adequate amount of breath. If such a medical condition exists, the employee's failure to provide an adequate amount of breath shall not be deemed a refusal to take a test.
         15. (xv) If the licensed physician is unable to make a determination whether or not an employee has a medical condition that precluded them from providing an adequate amount of breath, the employee's failure to provide an adequate amount of breath will be regarded as a refusal to take a test.
         16. (xvi) A mobile collection facility may be used if it meets the requirements of this clause (ii) of this subparagraph. In unusual circumstances (e.g., when it is essential to conduct a test outdoors at the scene of an accident), a test may be conducted at a location that does not fully meet these requirements but the BAT will provide visual and aural privacy to the greatest extent practicable.
         17. (xvii) No unauthorized persons will be permitted access to the testing location.

      3. (C) A breath alcohol test will be invalid under the following circumstances:

         1. (i) the Breath Alcohol Technician (BAT) does not observe the minimum 15-minute waiting period prior to the confirmatory test;
         2. (ii) the BAT does not perform an air blank of the EBT before a confirmatory test, or an air blank does not result in a reading of 0.00 prior to or after the administration of the test;
         3. (iii) the BAT does not sign the Breath Alcohol Testing form;
         4. (iv) the BAT fails to note on the remarks section of the Breath Alcohol Testing form that the employee has failed or refused to sign the form following the recording or printing on or attachment to the form of the test result; or
         5. (v) an EBT fails to print a confirmatory test result.
   2. (2) Report and review of alcohol test results. The BAT will transmit all results of the initial and confirmatory tests to the substance control officer in a confidential manner.

Source Note:The provisions of this §4.37 adopted to be effective October 27, 1995, 20 TexReg 8461; amended to be effective December 13, 1998, 23 TexReg 12452.