ML25148A109

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NRC Presentation to Licensed Professionals-NEI Access Authorization-Fitness for Duty Workshop June 2025
ML25148A109
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Issue date: 06/03/2025
From: Brian Zaleski
NRC/NSIR/DPCP/AAFPB
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Presentation to the Nuclear Energy Institute Access Authorization and Fitness for Duty Workshop Discussion Forum for Licensed Professionals 10 CFR Part 26 Brian Zaleski, Specialist - Fitness For Duty / Access Authorization U.S. NRC Office of Nuclear Security and Incident Response June 3, 2025

Discussion Topics Slide 2 MRO Responsibilities MRO Reviews (invalid results, subversion attempts)

Special Analyses Testing Oral Fluid Testing (Optional for Observed Collections)

Employee Assistance Programs Implementation Resources and Guidance Technical Issues Rulemaking Plan - Select Topics

MRO Responsibilities - 10 CFR 26.183(c)

Primary role: review and interpret positive, adulterated, substituted, invalid, and dilute test results AND identify any evidence of subversion of the testing process.

Also identify any issues associated with collecting and testing specimens AND advising and assisting FFD program management in planning/overseeing the overall FFD program.

Shall examine alternate medical explanations for ANY positive, adulterated, substituted, invalid or dilute test result. This action may include, but is not limited to:

o conducting a medical interview with the donor, o

reviewing the donor's medical history, or o

reviewing any other relevant biomedical factors.

Shall review ALL medical records a donor may make available when a positive, adulterated, substituted, invalid, or dilute test result could have resulted from responsible use of legally prescribed medication, a documented condition or disease state, or the demonstrated physiology of the donor.

May only consider test results of specimens collected and processed under 10 CFR Part 26.

Slide 3

Invalid Result, 10 CFR 26.161(f),

HHS-certified laboratory report An invalid result is reported for any one or more of the following validity test results (refer to 26.161(f) for specific criteria):

Inconsistent creatinine concentration and specific gravity results pH Nitrite concentration Possible presence of chromium (VI), halogen, glutaraldehyde, oxidizing adulterant, or surfactant Interference on the immunoassay (two separate aliquots)

Interference on drug confirmation assay (two separate aliquots)

Physical appearance of specimen indicates it may damage testing equipment Physical appearance of Bottles A and B (if a split collection) are clearly different, and either test result of Bottle A indicates an invalid specimen or the specimen in Bottle A was screened negative for drugs, or both Slide 4

Invalid Result, 10 CFR 26.185(f)

MRO Review MRO consults with certifying scientist to determine if additional testing by a 2nd HHS-certified laboratory may be useful to report a positive or adulterated test result:

If useful >> forward to a 2nd HHS-certified laboratory for testing If NOT useful AND no technical explanation >> MRO contacts donor If a legitimate medical explanation exists:

For a temporary condition >> unobserved urine collection For a condition that would affect another urine test >>

choose an alternative specimen for drug testing If NO legitimate medical explanation exists >>

directly observed urine collection subject to special analyses testing NOTE: if the invalid result is due to pH 9.0 to 9.5, the MRO first must evaluate specimen handling conditions (elapsed time and temperature):

If sufficient evidence exists (see Regulatory Guide 5.89, Nov. 2022) >>

cancel test and order an unobserved urine collection Slide 5

Invalid Test Results, 2024 Slide 6

  • Operating experience demonstrates 5-9 invalid test results per year with the directly observed 2nd specimen drug positive or refused
  • Significant increases in 2023 and 2024 (23 invalid results each year; all subversion attempts)

Reason for Testing Collection Date Reason for Test Explanation Labor Category Employment Type Outage Worker?

2nd Observed Specimen Result Pre-Access 02/05/24 Reinstatement (31-365 days)

Maintenance (safety-significant)

C/V Yes Testing Refusal 02/06/24 Reinstatement (31-365 days)

Facility Support C/V Yes Marijuana 02/08/24 Reinstatement (31-365 days)

Maintenance (general facility)

C/V Yes Marijuana 07/09/24 Reinstatement (31-365 days)

Maintenance (general facility)

C/V No Marijuana 01/29/24 Initial Authorization Facility Support C/V Yes Marijuana 02/08/24 Initial Authorization Facility Support C/V Yes Marijuana 02/14/24 Initial Authorization Maintenance (general facility)

C/V Yes Testing Refusal 02/20/24 Initial Authorization Maintenance (general facility)

C/V Yes Marijuana 02/27/24 Initial Authorization Maintenance (general facility)

C/V Yes Marijuana 03/25/24 Initial Authorization Maintenance (general facility)

C/V Yes Testing Refusal 08/12/24 Initial Authorization Maintenance (general facility)

C/V Yes Marijuana 09/11/24 Initial Authorization Facility Support C/V Yes Marijuana 09/16/24 Initial Authorization Maintenance (general facility)

C/V Yes Marijuana 10/07/24 Initial Authorization Maintenance (general facility)

C/V Yes Marijuana 10/07/24 Initial Authorization Facility Support C/V Yes Testing Refusal 10/07/24 Initial Authorization Maintenance (general facility)

C/V Yes Marijuana 10/07/24 Initial Authorization Maintenance (general facility)

C/V Yes Marijuana 11/18/24 Initial Authorization Facility Support C/V No Testing Refusal 01/29/24 Maintenance (general facility)

C/V Testing Refusal 03/13/24 Maintenance (general facility)

C/V Marijuana 10/17/24 Maintenance (general facility)

C/V Testing Refusal Random 05/21/24 Facility Support C/V Yes Testing Refusal 11/21/24 Security Employee No Oxycodone; Oxymorphone

Invalid Specimen Reviews -

Examples from 2024 Example 1: 1st specimen temperature 96oF and invalid result (creatinine <2 mg/dL).

The MRO ordered a 2nd collection under direct observation, the donor refused.

Example 2: 1st specimen invalid test result. The directly observed 2nd specimen was special analyses tested and positive for Oxycodone and Oxymorphone.

Example 3: 1st specimen invalid test result. During the MRO directed 2nd specimen collection under direct observation, the collector found a bottle with hot hands wrapped around it tucked between the subject's leg with what appeared to be urine in it. The subject refused to provide the 2nd observed specimen.

Example 4: 1st specimen out of temperature range, smelled of a strong chemical substance, and an invalid test result. 2nd directly observed specimen was special analyses tested and positive for Marijuana.

Slide 7

Special Analyses Testing, 26.163(a)(2)

Required for:

Dilute specimens AND Directly observed specimens collected under four conditions:

26.115(a)(1): Donor provided a urine specimen with a substituted, adulterated, or invalid result with no adequate medical explanation 26.115(a)(2): Donor presents at this collection a urine specimen outside the required temperature range of 90-100oF 26.115(a)(3): Donor conduct indicates an attempt to subvert the testing process 26.115(a)(5): Donor requests a retest and either Bottle B or the single specimen is not available for testing When: The initial drug test concentration is 40% of the cutoff level or greater Then: Conduct confirmatory drug testing to the Limit of Quantitation (LOQ)

Slide 8 Verify testing conducted correctly by reviewing the HHS-certified laboratory test result report

Subversion Attempt Reviews Subversion and subvert the testing process means a willful act to avoid being tested or to bring about an inaccurate drug or alcohol test result for oneself or others at any stage of the testing process (including selection and notification of individuals for testing, specimen collection, specimen analysis, and test result reporting), and adulterating, substituting, or otherwise causing a specimen to provide an inaccurate test result. (10 CFR 26.5 definition)

Case 1: 1st specimen is out of temperature range (negative results) and the 2nd specimen collected under direct observation is drug positive Case 2: Testing refusals (e.g., 1st specimen out of temperature range and donor refuses directly observed 2nd specimen)

Case 3: 1st specimen is reported by the HHS-certified laboratory as invalid, and after the MRO interview with the donor, a 2nd specimen is collected under direct observation and is drug positive (or the collection is refused)

Case 4: 1st specimen out of temperature range (negative results), 2nd specimen collected under direct observation (negative results), subversion determination based on other information (e.g., differences in pH, creatinine)

Slide 9

Subversion Determination - Case 1 1st specimen is out of temperature range (negative results),

and the directly observed 2nd specimen is drug positive Slide 10

Subversion Determination - Case 2 Testing Refusals

  • 1st specimen is out of temperature range, donor refuses directly observed 2nd specimen
  • Collector discovered subversion paraphernalia and collection process stopped
  • Inability to provide a specimen (shy-bladder with no medical condition)

Slide 11

Subversion Determination - Case 3 1st specimen is reported by the HHS-certified laboratory as invalid, and the 2nd directly observed specimen is drug positive (or the collection is refused)

Slide 12 See Slide 7 for examples

Subversion Determination - Case 4 1st specimen out of range temperature, 2nd directly observed (both negative results)

Slide 13

Substituted Specimen Test Results, 2024 Slide 14

  • Operating experience demonstrates 1-3 substituted urine specimen test results received from an HHS-certified laboratory each year
  • Significant increases in 2023 and 2024 (13 in 2023; 10 in 2024)

Reason for Testing Collection Date Reason for Test Explanation Labor Category Employment Type Outage Worker?

Pre-Access 02/13/24 Reinstatement (31-365 days)

Maintenance (general facility)

C/V Yes 03/05/24 Initial Authorization Maintenance (general facility)

C/V Yes 03/12/24 Initial Authorization Facility Support C/V Yes 04/01/24 Initial Authorization Security C/V No 04/01/24 Initial Authorization Security C/V No 08/06/24 Maintenance (general facility)

C/V 08/07/24 Initial Authorization Maintenance (general facility)

C/V Yes 08/22/24 Reinstatement (31-365 days)

Maintenance (general facility)

C/V Yes 10/07/24 Initial Authorization Maintenance (general facility)

C/V Yes Random 04/17/24 Maintenance (general facility)

C/V

Employee Assistance Programs, 26.35

  • Strengthen the FFD program by offering confidential assessment, short-term counseling, referral services, and treatment monitoring to individuals who have problems that could adversely affect the safe and competent performance of duties
  • Designed to achieve early intervention and provide confidential assistance
  • EAP staff shall protect the identity and privacy of any individual (including those who have self-referred), except:

- if the individual waives the right to privacy in writing, OR

- the condition or actions of an individual pose or have posed an immediate hazard to themself or others (EAP shall inform the FFD program):

likely to commit harm to self or others

impaired from using drugs or alcohol while in a work status, or has a continuing substance abuse disorder that makes it likely they would be impaired in a work status in the future

has ever engaged in any action that would be reportable under 26.719(b)(1) through (b)(3)

Slide 15

Oral Fluid Testing (Optional)

The 2022 Part 26 final rule enabled the option to collect and drug test oral fluid specimens under four observed specimen collection conditions (i.e., 26.115(a)(1) through (a)(3) and (a)(5)).

Must be tested at an HHS-certified laboratory - 26.153(a), 26.31(d)(3)(i)

(No laboratory has yet to be certified by HHS)

Tables added for initial and confirmatory test cutoff levels for drugs and drug metabolites - 26.163 Specimen collector must meet same training requirements as for alcohol and urine specimen collectors - 26.85(a)

Visual privacy must be provided during the collection - 26.87 Store specimens under conditions specified by the device manufacturer - 26.117(j)

Slide 16 NOTE: No changes in the 2022 final rule on when alternative specimens may be collected:

Medical condition prevents providing urine (shy-bladder) - 26.119(g)(3)

Acceptable medical explanation for an invalid result that would affect the testing of another urine specimen - 26.185(f)(2)

Medical condition makes collecting a urine specimen difficult/hazardous - 26.31(d)(5)(i)

2022 Part 26 Final Rule -

Implementation Resources

(https://www.federalregister.gov/documents/2022/11/22/2022-24903/fitness-for-duty-drug-testing-requirements)

  • eCFR track changes version of Part 26 (identifies all final rule changes)

(https://www.ecfr.gov/compare/current/to/2022-11-21/title-10/chapter-I/part-26)

(https://www.nrc.gov/docs/ML2014/ML20143A034.pdf).

Covers 3 topics:

Donor hydration during shy-bladder events Observed collections using mirrors MRO review of invalid specimens, pH 9.0 to 9.5 Slide 17

Additional MRO Guidance HHS Medical Review Officer Guidance Manual for Federal Workplace Drug Testing Programs (revised February 1, 2024).

(https://www.samhsa.gov/sites/default/files/mro-guidance-manual-2024.pdf)

Specifically, Chapter 5, Interpretation of Results and Drug Information), which provides information on the routes of administration, metabolism and excretion, and pharmaceuticals and use.

Remember though, this manual is for Federal agency drug testing programs that implement the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs and not 10 CFR Part 26.

National Laboratory Certification Program (NLCP), Drug Testing Matters. A continuing education newsletter on topics of interest to laboratories, laboratory staff, and NLCP inspectors. For a free email subscription, send an email with your name and the phrase Subscribe-DTM in the email subject line to NLCP@rti.org.

Slide 18

Tech Issues Rulemaking Plan Drugs and Alcohol: Technical Issues and Editorial Changes (RIN 3150-AJ15, Docket: NRC-2012-0079)

Slide 19 Effectiveness and efficiency improvements in three topic areas:

1)

Incorporating 15+ years of lessons learned from implementing Part 26 2)

Aligning with updates to HHS and DOT testing program requirements 3)

Resolving three petitions for rulemaking accepted by the NRC Why now? A key driver for rulemaking is the continuing prevalence of subversion attempts of the urine drug testing process Public meeting to discuss plan - held on February 7, 2024 (NRC slides: ML24036A330; Meeting transcript: ML24116A143)

Rulemaking Plan - delivered to the Commission on July 9, 2024 (ML24060A008)

Rulemaking Plan Regulatory Basis Proposed Rule Final Rule (were here)

Technical Issues Rulemaking Plan -

Medical Review Officers Considerations:

Legitimate medical explanation for a positive drug test result (Part 26 does not define) 26.5 defines illegal drug as any drug that is included in Schedules I to V of section 202 of the Controlled Substances Act [21 U.S.C. 812], but not when used pursuant to a valid prescription or when used as otherwise authorized by law.

(Part 26 does not define valid prescription)

Test results review (subversion attempts)

Test results review (misuse) - 26.185(j)(2)

Time to complete test result review and notify FFD program (10 business days from receipt of positive, adulterated, substituted, or invalid result) - 26.185(p)

Retraining? An MRO is only required to receive initial training - 26.183(a)

(i.e., pass an examination administered by a nationally-recognized MRO certification board or subspecialty board for medical practitioners in the field of medical review of Federally mandated drug tests)

Slide 20

Technical Issues Rulemaking Plan -

Substance Abuse Experts Considerations:

FFD program personnel involved in the day-to-day operations of the FFD program 26.4(g) and frequency of job activity performance Behavioral observation program applicability when an SAE is remote (i.e., does not have unescorted access to a site)

Initial evaluation performed after an FFD policy violation (e.g., positive result)

Face-to-face determination of fitness conducted for cause (i.e., because of observed behavior or a physical condition), 26.189(c)

Slide 21

Technical Issues Rule Plan -

Subversions Considerations Prohibit possession of subversion paraphernalia (e.g., product in backpack or in a in locker - events not tied to the collection process)

- Products illegal in some states

- No legitimate reason for possession Include 26.75 permanent denial for possession of subversion paraphernalia Evaluate if more restrictive urine specimen temperature range would be beneficial in identifying additional subversion attempts (current range = 90-100oF)

Improve information on MRO test result reviews, for example:

- 1st specimen out of temperature (negative); 2nd observed specimen (positive)

- 1st specimen (invalid result); 2nd observed specimen (positive)

- Clarify that the MRO is to consider all information in making subversion determinations, such as comparison of specimen characteristics when multiple specimens are collected (temperature, creatinine, pH, specific gravity)

Slide 22

NRC/NSIR FFD Team Office of Nuclear Security and Incident Response Division of Physical and Cyber Security Access Authorization, Fitness for Duty, and Policy Branch Brian Zaleski, Specialist - Fitness for Duty / Access Authorization Brian.Zaleski@nrc.gov (301-287-0638)

Kara Smith, Fitness for Duty Specialist Kara.Smith@nrc.gov (301-415-1684)

Slide 23

Questions Slide 24

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