On April 20, 2012, the Federal Motor Carrier Safety Administration (FMCSA) issued guidance on obstructive sleep apnea (OSA). A week later, FMCSA rescinded that guidance.
The guidance came as a surprise to the industry. As of that point, it wasn’t apparent that OSA was a safety concern for school transportation.
The National School Transportation Association (NSTA) met with then FMCSA Administrator Anne Ferro and her senior staff. NSTA asked for school bus industry data relevant to OSA. FMCSA admitted they did not have data specific to our industry, but remained convinced OSA was a public health concern.
NSTA believed the issue would be more appropriately handled through the formal rulemaking process — rather than through guidance. Under the formal rulemaking process, all parties have the ability to offer comments and questions, which must then be addressed by the agency. In addition, the rulemaking process requires a cost-benefit analysis, which ensures that the proposal is economically viable to the industry it affects. In essence, the safety benefit of the proposal must outweigh the cost of the proposal.
When it became clear that FMCSA was committed to pursuing guidance despite the concerns we raised, NSTA went to Capitol Hill to seek congressional support. Congressman Tom Petri (R-Wis.) was the first to champion a bipartisan congressional letter to FMCSA in September 2013 urging the use of the rulemaking process for any consideration of OSA screening, testing and treatment due to the significant economic impact of the issue on the school transportation industry. Twenty-one other members of Congress joined Petri on the letter.
Despite the letter, FMCSA continued to pursue guidance. NSTA then reached out to other trade associations with similar concerns and formed a sleep apnea coalition. Through the efforts of NSTA and the coalition, in October 2013, Congress passed legislation prohibiting FMCSA from implementing screening, testing or treatment requirements for OSA unless they are adopted through the formal rulemaking process.
But the battle wasn’t over. A year later, in October 2014, following reports that organizations providing training for certified medical examiners (CMEs) were circumventing the recently passed congressional legislation, congressmen Larry Bucshon and Dan Lipinski wrote to then acting FMCSA Administrator Scott Darling asking FMCSA to address this issue as soon as possible.
In response, in January 2015, FMCSA issued guidance reminding healthcare professionals of the current physical qualification standard and advisory criteria concerning the respiratory system and specifically how the requirements apply to drivers that may have OSA.
According to the guidance, “the current regulations and advisory criteria do not include guidelines concerning OSA screening, diagnosis and treatment. Medical examiners should rely upon their medical training and expertise in determining whether a driver exhibits symptoms and/or multiple risk factors for OSA, and they should explain to the driver the basis for their decision if the examiner decides to issue a medical certificate for a period of less than two years to allow for further evaluation, or to deny a driver the medical certificate.”
Recently, FMCSA and the Federal Railroad Administration announced their plan to jointly issue an advance notice of proposed rulemaking (ANPRM) on this issue this winter. The ANPRM aims to gather information about the prevalence of moderate-to-severe OSA in the rail and commercial motor vehicle industries as well as the potential economic impact and safety benefits associated with undergoing evaluation and treatment. NSTA is watching closely for this ANPRM and will submit comments once it is issued.
NSTA will continue to be fully engaged to ensure that the industry’s voice is heard on this very important issue. We fully support ensuring that school bus transportation remains the safest form of transportation, but we cannot support significant new mandates on the industry without data showing that improved safety could be realized.