Compliance Corner: When ‘Sawing Logs’ Becomes A Problem: Sleep Apnea

By Kathy Close

The phrase “obstructive sleep apnea,” or OSA, incites a lot of emotion in the trucking industry. For some, it is the fear of losing one’s livelihood or paying the hefty cost of diagnosis and treatment out of pocket. For others, it is the uneasiness of losing a quality driver because he or she cannot obtain medical certification.

Whether you are a driver or employer, OSA is a hot topic that most in the industry are watching carefully and often misunderstanding.

Proving their case

Let’s begin with the backdrop of what has happened to date.

The Federal Motor Carrier Administration (FMCSA) began to see a correlation between the sedentary lifestyle of sitting in a driver’s seat with the onset of OSA. As a potential health risk for commercial drivers and a safety risk to all, FMCSA needed to build a case in order to change its safety regulations and medical guidelines. The agency would need scientific evidence to justify revisions.

To gain a better understanding of the condition, in November 2011 FMCSA tasked two of its advisory panels to jointly study the topic and report back to them. The panels included:

• Medical Review Board (MRB): A five-member board that reviews FMCSA medical qualifications for commercial vehicle drivers and offers science-based recommendations to FMCSA.

• Motor Carrier Safety Advisory Committee (MCSAC): A 19-member board consisting of representatives from national safety organizations, the truck and bus industry, state law enforcement, organized labor, and the commercial insurance sector that provides advice and recommendations to FMCSA in respect to motor carrier safety programs and regulations.

The MCSAC-MRB task force released its findings on OSA to FMCSA in a report dated February 21, 2012, offering the agency several key points to consider as it determines whether drivers with OSA should be medically certified to operate commercial vehicles. The report is available at mrb.fmcsa.dot.gov.

Since receiving the recommendations from the MCSAC-MRB, FMCSA has been busy reviewing the report and drafting proposed guidance designed to help medical examiners evaluate commercial drivers who may be at risk for OSA. Stakeholders were given a little insight into what the agency is considering when FMCSA mistakenly published its medical guidance on OSA in the Federal Register on April 20, 2012. This notice asked for public comment, but was quickly withdrawn by FMCSA until further notice citing a “clerical error” that led to the premature publication. Among the recommendations on which the FMCSA was seeking comments was whether drivers should be certified for just 60 days if they have a body mass index of 35 or more, until they can be tested for sleep apnea.

Based on a statement by the FMCSA following the snafu, public comments will be solicited on its OSA recommendations from interested parties later this year.

Current medical guidance

Since FMCSA has not formally published new medical guidelines, the Medical Advisory Criteria and Instructions to the Examiners in §391.43(f) have not been revised to reflect the MCSAC-MRB suggestions. Sleep apnea remains under respiratory dysfunction in §391.41(b)(5), as it has for years.

The current Criteria for §391.41(b)(5) states, “There are many conditions that interfere with oxygen exchange and may result in incapacitation, including … sleep apnea. If the medical examiner detects a respiratory dysfunction, that in any way is likely to interfere with the driver’s ability to safely control and drive a commercial motor vehicle, the driver must be referred to a specialist for further evaluation and therapy…”

Since OSA is not one of the absolutes like epilepsy, hearing, vision, or insulin-dependent diabetes, medical certification technically could be based on the discretion of a medical examiner. In simplest of terms, this means the medical examiner could — when OSA is possible based on the metrics used in the physical examination — go against the suggested Medical Advisory Criteria for further evaluation and treatment providing he or she documents the reason why the current guidance was not used.

On the flip side, since medical qualification is based on the medical examiner’s judgment, he or she is permitted to use the proposed OSA guidelines in advance of any official agency endorsement or mandate. This is perfectly acceptable and has actually been occurring quite frequently.

Getting your ducks in a row

It is to a driver’s advantage to gain an understanding of OSA — to know if he or she would be a candidate for further evaluation and treatment. Working on those problem areas now may reduce the likelihood of a diagnosis of OSA in the future. Consider honest dialogue with your family physician to gain practical advice on lifestyle changes (e.g., diet, exercise, weight loss, caffeine consumption, etc.).

Some of the more obvious signs and symptoms of OSA are provided below in the form of a checklist:

 Sleep apnea checklist

Do you exhibit any of the following physical attributes of sleep apnea?

• Small upper airway

• Overweight

• Recessed chin, small jaw, or a large overbite

• Large neck size: (17 inches or greater for men/15 inches or greater for women)

• Age 40 or older

• High blood pressure

Are you experiencing any of the following symptoms of sleep apnea?

• Loud snoring

• Observations that you stop breathing or gasp for breath during sleep

• Excessive sleepiness, nodding off during daily activities

• Interrupted sleep at least three nights per week or more

• Trouble falling asleep

• Waking up frequently during the night

• Waking up too early and cannot get back to sleep

For additional information on OSA, FMCSA has a library of resources on its website. Visit fmcsa.dot.gov and type in the key words “sleep apnea” to locate the Sleep Apnea Spotlight furnished by the agency for motor carrier and driver use. 

Kathy Close is an Editor — Transportation Safety for J. J. Keller & Associates, Inc. Contact her at transporteditors@jjkeller.com. Also be sure to check out J. J. Keller’s website at jjkeller.com.