Sleep Apnea—Emerging Concerns for Driver Safety

 GUEST COLUMNIST

Dana H. Hoffman

Attorney -  Young Moore Henderson P.A.

 

 

I.  What Is Sleep Apnea?

In individuals with sleep apnea, the upper airway is periodically blocked during sleep, causing complete obstruction (apnea) or incomplete obstruction (hypopnea) in airflow. These obstructions or pauses in breathing occur repeatedly during sleep. In severe cases, these obstructions can occur as frequently as every 30 seconds. The obstructions or pauses are followed by gasping and snoring sounds. Signs and symptoms of sleep apnea include cessation of breathing while asleep, gasping or choking while asleep, loud snoring, depression, heartburn, insomnia and erectile dysfunction. Individuals who are at risk for sleep apnea may also have a history of heart disease or stroke, hypertension, diabetes, or gastric reflux. Sleep apnea is a concern for commercial drivers because it prevents restorative sleep. Commercial drivers with sleep apnea can exhibit excessive daytime sleepiness, fatigue, and/or inattentiveness. Commercial drivers often mask these symptoms by compensating behaviors including use of caffeine. Untreated sleep apnea can result in crash rates 2 to 7 times higher than average.(Note 2)   The crashes are not only the result of a driver falling asleep, but are also due to fatigue due to the driver’s interrupted sleep. In addition, the driver himself faces long-term health consequences of untreated sleep apnea, including high blood pressure, diabetes and an increased risk of heart attack or stroke. Studies have shown that diagnosis and effective treatment protocols of sleep apnea reduce preventable crashes by 30%, reduce the median cost of crashes by almost 50%, improved driver retention rate by 60% and reduce health care costs by over 50%.

A sleep study called a polysomnagram is the gold standard for diagnosing sleep apnea. The study is administered and attended to by a sleep technician. The study allows the measurement of brain, heart, breathing and limb activity such as restless leg syndrome. Other diagnostic tools are available. Some studies allow for unattended monitoring. However, if a commercial driver is intentionally attempting to skew the results, then there is a risk that someone else could be substituted for the commercial driver during an unattended study.

The most common and effective treatment for sleep apnea is Continuous Positive Airway Pressure (CPAP). A mask, covering just the nose or the nose and mouth, is worn by the driver while sleeping. The device gently blows air into the individual’s throat to keep the airway pressure open. Other treatment options include surgical procedures to the uvula, ear, nose and/or throat, or the use of dental or oral appliances. Only drivers with the mildest cases of sleep apnea would be appropriate for use of the dental or oral appliances. Even with the use of these other treatment options, the driver may still need a CPAP machine. A repeat sleep study will be used to determine the effectiveness of the treatments and the ongoing need for a CPAP machine. As with any treatment, appropriate, effective, and ongoing use of the CPAP machine is key. For the commercial industry, utilizing technology to monitor the driver’s compliance is also key to avoiding federal violations and lawsuits. The biggest concern expressed by the Medical Review Board of the Federal Motor Carrier Safety Association pertains to methods for monitoring driver compliance.

II.   Why Should The Industry Be Concerned With Sleep Apnea?

First, the subject of sleep apnea among commercial drivers has been the focus of several governmental inquiries, many news articles and, unfortunately, an increasing number of lawsuits. On January 28, 2008, the Medical Review Board conducted a public hearing on sleep apnea. (Note 3)  The U.S. House of Representatives’ Committee on Transportation and Infrastructure met on July 24, 2008 for a hearing on “FMCSA’s progress in improving medical oversight of commercial drivers.”(Note 4)

Second, commercial drivers with sleep apnea are not “qualified” drivers. The Physical Qualifications and Examinations section (391.41(b)(4)) of the FMCSR provides that the driver must have “no medical history or clinical diagnosis of a respiratory dysfunction likely to interfere with his/her ability to control and drive a commercial motor vehicle safely”. Sleep apnea is specifically included as an example of respiratory dysfunction in the medical advisory criteria for this section: “[T]here 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.”(Note 5)   The failure to treat or require treatment for sleep apnea can cause both the driver and his employer to be in violation. Under Frequently Asked Questions/Medical on the FMCSA’s website, the following question and answer appears:

Is Sleep Apnea Disqualifying?

Drivers should be disqualified until the diagnosis of sleep apnea has been ruled out or has been treated successfully. As a condition of continuing qualification, it is recommended that a CMV driver agree to continue uninterrupted therapy such as CPAP, etc./monitoring and undergo objective testing as required.

Narcolepsy and sleep apnea account for about 70% of EDS. EDS lasting from a few days to a few weeks should not limit a driver’s ability in the long run. However, persistent or chronic sleep disorders causing EDS can be a significant risk to the driver and the public. The examiner should consider general certification criteria at the initial and follow-up examinations:

 

• Severity and frequency of EDS
• Presence or absence of warning of attacks
• Possibility of sleep during driving
• Degree of symptomatic relief with treatment
• Compliance with treatment.

Commercial companies rely upon the DOT examiner to certify a commercial driver. The DOT examiner may rely upon the driver’s disclosure that he has had a clinical diagnosis of sleep apnea, or the medical examiner may carefully review certain signs or symptoms that are often attributable to sleep disorders. However, this current approach is ineffective if the driver intentionally fails to reveal a clinical diagnosis or intentionally avoids identifying such signs and symptoms. The current approach also allows commercial drivers to shop around for a cooperative examiner. A primary example of this situation occurred in Kansas in May of 2005 when a commercial driver struck and killed a mother and her two young children after falling asleep. The driver admitted that he had sleep apnea and had gone to several DOT examiners before being certified.

The prevalence of sleep apnea among commercial drivers, the difficulties of diagnosing, treating and monitoring compliance with treatment, and the safety risks that this condition poses to the general public was recently the subject of a presentation to the Medical Review Board of FMCSA. Recommendations currently under consideration by the Medical Review Board include:

 

1. Improve the knowledge of DOT medical examiners and adopt more stringent requirements for certifying who can be a DOT examiner,
2. Require a sleep apnea screening for drivers with a body mass index of 30 or greater with high blood pressure or heart disease before the medical examiner can issue a medical card,
3. Disqualify a driver with evidence of excessive daytime sleepiness or involved in a crash resulting from the driver falling asleep. An AHI of greater than 20 may result in driver disqualification until the driver is compliant with CPAP use,
4. Disqualify a driver with evidence of non-compliance with treatment for sleep apnea.(Note 6)

The Medical Review Board also received recommendations specific to treatment protocols. It has been recommended that a driver should be required to use a CPAP machine for a minimum of 4 hours every 24 hours and have a 70% compliance rate each week. Such use and compliance with a CPAP machine will result in a one year medical certification if the driver is compliant for three months. Thereafter, compliance rates will be checked every year. The ongoing concerns include issues with real time compliance monitoring for over-the-road drivers, drivers who intentionally try to evade the system, and the fact that CPAP machines are not designed for use in a tractor trailer.

Although the Federal Motor Carrier Safety Administration has not yet approved and adopted any of the recommendations submitted by the Medical Expert Panel and the Medical Review Board, at least some of the recommendations are expected to be adopted. Given the prevalence of this topic, industry leaders should be aware of and responding to this problem. While larger carriers may have more financial resources to address sleep apnea within its driver population, the duty for all carriers of any size is the same—to ensure an FMCSR-qualified driver. Some efforts implemented by carriers include making an initial assessment during the hiring process. This assessment would include a review of the medical qualifications long form to identify any known signs and symptoms of sleep apnea, the use of a web-based screening questionnaire, and communication with DOT clinics. The duty on the industry does not stop with the hiring process since drivers who may not have sleep apnea when hired may develop it over the course of their employment. The risk of sleep apnea increases with age. In addition, several factors inherent in the commercial transportation industry, including sedentary lifestyle, poor diet, little exercise and irregular sleep patterns, add to this risk. Carriers should prepare, implement and follow through on a fatigue prevention and wellness program. A successful program should be proactive in managing fatigue issues and identifying the impact of medical issues, including sleep apnea. An effective program should also include an ongoing training and awareness program. Finally, employers can facilitate a driver’s sleep apnea problems by ensuring proper rest through consecutive hours of sleep when the driver can implement treatment protocols such as the use of a CPAP machine.

 

Despite the challenges, carriers must respond or be subject to liability exposure following a sleep apnea-related crash or incident. Exposure can equally arise from a carrier who has failed to implement a sleep apnea/fatigue and wellness program and carriers who have implemented a plan, but failed to follow through with that plan.

 

The future is coming, and it includes sleep apnea.  Some would say that the future is already here.

 

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Footnotes:

Title:  This article is reproduced with permission from a presentation presented by Tom DiSalvi (Schneider National, Inc.), Dana Hoffman (Young Moore & Henderson) and Wendy Sullivan (Precision Pulmonary Diagnostics).

2. According to data compiled by the National Highway Traffic Safety Administration, 7% of all serious truck crashes in which the commercial driver was at fault were attributable to the driver being asleep, which could have occurred for a variety of reasons including sleep apnea. A study sponsored by the FMCSA and the American Transportation Research Institute of the American Trucking Association determined that 28% of commercial truck drivers have mild to severe sleep apnea.

3. The Medical Review Board is commissioned to advise the FMCSA on the medical guidelines for commercial drivers.

4. The hearing was intended to focus on efforts to address eight outstanding National Transportation Safety Board recommendations and several congressional mandates to insure that commercial driver’s license holders are medically fit to drive.

5. The FMCSR recognizes that these recommendations are simply guidance and that the medical examiner may, but is not required to, accept these recommendations. However, while the medical examiner certifies a commercial driver at the time of exam, a motor carrier qualifies the driver every time he puts him in a truck. To this end, Section 3 90.3(d) of the FMCSR allows employers to have more stringent medical requirements.

6. A meeting summary from the Medical Review Board’s January 28, 2008 meeting on Sleep Apnea can be found at www.mrb.fmcsa.dot.gov\. The Medical Expert Panel which made presentations and submitted reports to the Medical Review Board submitted 14 recommendations specifically related to sleep apnea to replace the FMCSA’s current guidelines. These recommendations are also included within the meeting summary.

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Dana H. Hoffman is a shareholder at Young Moore & Henderson, PA located in Raleigh, North Carolina and an active representative of the trucking industry for more than 18 years. Dana’s practice routinely takes her across the state of North Carolina for appearances in State and Federal courts on behalf of her clients.

Comments

[B.G]

My family doctor requested my sleep test and it turned out I had sleep apnea. I am totally compliant. I can tell the difference on the rare occasions that I do not wear my cpap (stuffy nose or cough). What concerns me are the other drivers (sleep apnea or not) that don't get as much sleep as I do. I do not think it is fair to regulate the amount of sleep that I get and not monitor them. My cpap hours of sleep range from 6 to 7 hours per night. Even though I have been on my cpap for 4 years, the last time I went for my DOT physical, they changed my rate to yearly. I don't like that. Also, when I asked my sleep doctor if there was some form that he could fill out to take to my DOT physical, he said that there wasn't. He just wrote me a note that said I had been seen by him. So at my DOT physicals that I have had since getting diagnosed, I have never been asked to proved compliance.

[Ryan Ary]

My carrier has turned this in to quite a money maker by forcing drivers to pay them $1970 for a poly test and an apap machine. Its a good old fashioned company store to the tune of 2 grand for every driver they can get diagnosed. Every driver that doesn't hit their body mass index standard (most of us) are forced to go do a sleep study costing $149 at our own expense.

They even made their own sleep study facility they require us to use and all the data from the studies go to a specialist in Chicago that never sees us or talks to us but he does get paid... by us. And once their doctor makes a diagnosis we have to pay them the $1970 or we are no longer "qualified" and they can fire us and not be liable for unemployment.

Whats more, they can note on our work history that we "failed" the poly test and no one else will touch us after that because the next carrier could open themselves up to a lawsuit for using an "unqualified" driver.

But wait it gets better. The machine they require us to buy from them has an SD card in it that records 3 months worth of sleep data. So now I live in a truck with my whole day AND NIGHT recorded electronically for my employer to peruse at will. We have be requalified to keep our job every three months by turning in the card. If we use the device correctly 70% of the time we can continue working. So much for job security.

BUT.. All that data and the device and treatment does someone some good right? The driver? Maybe. The carrier? Definitely. Because for the low, low price of $1970 I am paying my employer for this treatment that his doc says I need, I'm giving his an absolute defense agaist a slick trial lawyer in the event I cause an accident. WOW!! What carrier wouldn't like this scam.. I mean rule. Handed down by our benevolent government. With only the best of intentions for all the "stake holders".

Guess I need a bigger stake.

Oh by the way. I sleep great. I never complained about my sleep or not getting enough rest. I've been driving 6 accident free years.

I made 36k last year according to my W-2. Guess this year that'll be 2k lighter.

Thanks for looking out for the drivers DOT!!

Flipping burgers never looked so good.

Thanks

Ryan Ary, Professional Driver.

[How To Stop Snoring]

One of the most effective ways I have found was to use a stop snoring exercise program online. Most people have no idea about the true causes of snoring, which is why they have a hard time trying to get rid of it.

[sleep apnea machine]

I agree that sleep apnea should be delt with by someone who drives for a living, but it should be that persons responsability. Not the governments.

[snoring solutions]

I agree with the concern over driving and sleep apnea. I know before I had my apnea treated I would struggle to stay awake when driving.

[Treat Sleeping Disorders]

I am totally for disqualifying drivers until the diagnosis of sleep apnea has been ruled out or has been treated successfully...I know a lot of drivers will most probably react badly to my comment..but hey this is more than just somebodies job at stake...lives are at stake here...just imagine how much damage can a bus driver cause..should he or she fall asleep while driving!!

[Andrew Woods]

I fail to see how one can arbitrarily decide for a commercial driver "what is best" for him/her and the general public based on very few isolated cases. Some of us drivers have enough common sense and personal responsibility/pride in their work to disqualify themselves any time they feel unfit for duty. It really rubs me the wrong way that all people who do the same job must pay with the revocation of their personal liberties for the mistakes of the few.

[richard a belcher]

I have a issue concerning sleep apena and the use of the cpap.......the cpap which was purchased by my company, was a defect that was not showing my useage time.....it was determined that my cpap was defected and was replaced......my company saw this as non compliant to DOT regulation and i was dismissed from my company....
Is there any part of the DOT regulation that's makes a trucking company liable for sleep apena condition.....I feel they used a defective cpap as a way to dismiss me.....I wonder how many drivers have been dismissed over the same issue as myself.....

thank you

[Christopher Comins]

Really great contribution. I think, Sleep apnea is a common lack of the required amount of sleep. This may arise as a result of sleep disorders. Now most of the peoples are facing this kind of problem. Sleep is as important to the human body as food and water. Use relaxation techniques to help you fall asleep quickly. Purposefully go to bed earlier each night. Don’t smoke or drink alcoholic or caffeinated beverages in the hours before bedtime. Improve your sleeping environment in any way you can.