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September 1, 2020 12:15 PM, EDT

Proposed Hair Testing Rule Forwarded to Federal Register

Hair TestingA hair sample is collected at a Quest Diagnostics test site. (Quest Diagnostics)

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A proposed rule authorizing the use of hair samples to test truck drivers and other federal workers has been forwarded to the Federal Register for publication soon, the chairman of a federal drug testing advisory board said Sept. 1.

Ron Flegel, chairman of the Substance Abuse and Mental Health Services Administration’s drug testing advisory board, said the agency is seeking public comment and recommendations on the proposal for mandatory guidelines when it is published in the Federal Register. Drug testing using hair samples will offer an alternative to mandatory urine testing for federal employees, Flegel said.

He said the proposed rule addresses previous concerns over any scientific issues using hair testing.

Ron Flegel

Flegel

SAMHSA is a subagency of the Department of Health and Human Services, which ultimately is responsible for developing and approving the hair-testing rule. “It has been a pretty lengthy process, going through the review process, but I think we are at a point now where it is at the Federal Register, hopefully with publication dates being set,” Flegel told SAMHSA DTAB members at the Sept. 1 meeting.

During the public comment portion of the meeting, DTAB member Michael Schaffer, vice president of laboratory operations at Culver City, Calif.-based Psychemedics Corp., criticized the hair-test proposal development process as “fatally flawed.”

“I want to go on the record today to address an issue which should be disturbing to every member of DTAB, and to the public at large,” said Schaffer, who said he was not commenting on behalf of the DTAB, but as a board member and private citizen. “That is, this fatally flawed process which was used to develop the hair-testing guidelines, which are about to be published in the Federal Register. The DTAB has been cut out of the process entirely.”

Schaffer said he has spent the past 21 years as the director and scientist at a major hair drug-testing lab and has served on the DTAB the past four years.

He added, “The hair-testing guidelines are about to be published, and yet I have not even seen a draft of them, much less been asked to provide scientific comment on these guidelines. I believe that is true for the other members of the board as well.

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“Because of the unprecedented lack of transparency surrounding the drafting of these proposed guidelines, I urge Mr. Flegel to change course and not publish the guidelines until they have undergone the necessary scientific review by the members of the drug testing advisory board.”

In response to Schaffer’s comments, Flegel said that proposal, once it begins the OMB review process, requires that its details be closely held by OMB during the review.

“So I’ll leave it there,” Flegel said. “We have been diligently trying to get out all of the guidelines, and I hope that the public will see that soon.”

Indeed, the hair drug-testing rule has been a long time in the making, due to a process mostly conducted in secret and subject to a number of scientific concerns.

RELATED: ATA Meets With OMB to Discuss Hair Sample Testing Rule

It began as a congressional mandate signed into law by President Barack Obama in December 2015, but the rule has been delayed for more than four years. The reasons for the delay have only partly been revealed to the public, in part due to scientific questions surrounding hair color and potential external contamination of hair samples that could adversely affect drug test outcomes.

Despite the complex science issues, the SAMHSA drug testing board, which was charged to fashion the rule for HHS, said it has resolved those issues prior to forwarding the guidance to the White House Office of Management and Review, which sent the rule back to the agency in July.

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