A few years ago, an Australian study of 517 long-distance truck drivers found that an additional 41 percent of them possessed Obstructive Sleep Apnea (OSA) — a disorder estimated to affect only four to six percent of the general population. (4.4% of these drivers had previously acknowledged having been diagnosed with this disorder.) Few of the individuals with this disorder were identified by the “multivariable apnea prediction index, based on self-report measures.” Otherwise, among the Aussies evaluated, 50% were obese. And 49% smoked cigarettes. (SLEEP; journalsleeo.org). The latter of these characteristics is not even considered among the naive handful of superficial screening criteria (body mass indicators, neck circumference, snoring, micro-sleeps) employed by the FAA and FRA for selecting U.S. pilots or drivers to even test.
In fairness, the examinations administered to commercial drivers generally flag most medical conditions that would pose unacceptable risks. But not all of them. One study, years ago, found that a driver’s night vision at age 50 was half of what it was when he or she was 25. Of the hundreds of medical examinations I have reviewed as a forensic expert, I cannot recall reviewing a single form that explored this aspect of vision — the sensory mode through which we obtain 90% of our information. Of course one wonders what our industry would do with this information if it had it: While night goggles indeed have their drawbacks (e.g., they exaggerate glare), we employ them largely to kill people. We do not employ them to save any.
In marginal aerobic shape at age 68, I possess absolutely none of the superficial symptoms that OSA screening typically includes. Yet I have OSA. Almost every college or professional-level lineman, most of whom can bench-press 400 to 500 lbs. and are in terrific aerobic shape, would be caught in this screening sieve because of their neck sizes. Yet precious few of them would likely have OSA. There is no need to go any further to recognize the screaming need to diagnose every single commercial driver and driver applicant for this condition — especially when effective treatment for it has been available for at least a decade.
Should one need further evidence of this need, one need only examine our industry’s existing regulatory and industry-standard parameters for controlling driver fatigue. Apart from some medical conditions (e.g., blindness, tuberculosis) that would obviously weed out unfit drivers, there are four basic factors that govern fatigue:
- The duration of work
- The physical, mental and emotional difficulties of the work
- When the work is performed with respect to the driver’s sleep/wakefulness cycle
- Whether the worker has obtained a “good night’s sleep”
Individuals deprived of sleep for successive nights can build up a “sleep debt” that a single good night’s sleep may not alleviate. Otherwise, while there are secondary factors like this related to fatigue, the four factors cited above largely govern it.
Commercial drivers are pretty much stuck with the difficulties that come with their work. And the FMCSA’s current Hours-of-Service Requirements appropriately govern its duration. But the remaining two factors lie not only unchecked, but practically run wild among our commercial driving workforce — save for a select few enlightened companies and agencies which test at least “suspect” drivers for OSA, require those found to possess it to be treated, and/or control “shift-inversion” (what I like to call “bus-lag”) in their driver assignment process. Yet even with duration governed by stringent regulations, our Federal and State regulatory and law enforcement agencies have only a fraction of the staff needed to effectively monitor and enforce compliance. Electronic on-board recorders (EOBR) for documenting compliance with even this aspect of fatigue are only a discussion topic — although Congress has at least been engaging in it.
Solutions on the Horizon
Until this past March 10, 2016, efforts to minimize either shift inversion or to eliminate OSA have been largely ignored. In fact, given a chance to opine on shift inversion more than a decade ago (when the HOS Regulations were revised for the first time since their enactment in 1937), our industry’s own information-sharing organizations proactively lobbied against any efforts to include provisions to control shift inversion in the revised regulations — instead advocating for voluntary “fatigue management.” Apart from the daunting challenges this approach presents for many charter operators (particularly small ones with limited driver pools to choose from for driver-assignment purposes), at least one of our nation’s largest intercity/scheduled service providers not only employs no remote modicum of fatigue management, but does not even possess more than a child-like understanding of sleep.
Yet hope has finally arrived. This past March 10th, the Federal Motor Vehicle Safety Administration (FMCSA) and Federal Railway Administration (FRA) issued their joint Advanced Notice of Proposed Rulemaking for the testing and treatment of OSA, titled “Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea.” Yet hope is much like a dream. To become a reality, it requires support. This means that if our community wishes to remove or, preferably, treat-and-retain the roughly two-fifths of our workforce with this condition, eliminate a huge swath of our catastrophic accidents, significantly improve our image beyond already being one of the safest modes of public transportation, and provide us with a powerful marketing tool — we must get off the couch and chime in. While these agencies will still accept and review a hand-written letter, the far-simpler method is to simply Google the regulations — or simply enter this link into one’s browser: https://www.federalregister.gov/articles/2016/03/10/2016-05396/evaluation-of-safety-sensitive-personnel-for-moderate-to-severe-obstructive-sleep-apnea — and draft and submit a response.
The rulemaking concludes with 18 questions, presumably designed to capture those aspects of the subject about which these Administrations are most interested in receiving comments, in an organized way, and likely easier to absorb and dissect. It is not clear whether or not responses must conform to this structure. For that reason, and because the subject is of such critical importance, I intend to submit comments in both the 18-question format and a broader one containing some information beyond the boundaries of these questions.
This form of rulemaking usually involves three steps:
- The Advanced Notice of Proposed Rulemaking (ANPRM) lays out these Administration’s intents, in raw form, as a means of inviting comments on them.
- The second-stage Notice of Proposed Rulemaking (NPRM) largely reiterates the ANPRM’s language — somewhat modified by the Administrations’ responses to the comments — and actually cites many comments along with their responses to them.
- The final Proposed Rulemaking than comprises the regulations.
So this approach is deliberately designed to solicit and consider input from those outside the two regulatory agencies. However, do not take this challenge lightly. Responses to past rulemaking on topics of extreme urgency (e.g., regulations like those that would mandate seatbelts) have met with only a few score of responses. So if we want our industry to be much, much better, then we must “get out the vote.” Responders need not be physicians or sleep research experts. The FMCSA and FRA are transportation agencies. So they also want responses from individuals in their industries. And because both the symptoms and the regulations affect vehicle operators the most, it is reasonable to assume that these agencies are dearly hoping for some feedback from drivers and motormen. But all are welcome. And I feel confident that all responses will be reviewed and considered.
Proof in the Prudence
During the estimated 28M vehicle miles of travel my former 70-vehicle paratransit system provided from 1982 to 1992, we experienced only a single serious accident, severely injuring only a single passenger. Admittedly we did not provide night or owl service. And many of our (mostly split) shifts were identical or similar from day to day, and mostly driven by the same drivers — although not entirely because, employing “progressive driver assignment” (see NBT article, October, 2001), our best driver (“cover drivers”) drove different shifts almost every day. But we also employed bio-sensitive driver assignment. I or a colleague also reviewed almost every single driver’s log every day; I estimate I myself reviewed more than 200,000 of them during this period. And totally unaware of the existence of Obstructive Sleep Apnea (but more aware of sleep cycles and circadian rhythms than most specialized medical professionals at the time), we also did not hire anyone fat. (I had one fat uncle who slept and napped constantly; that was enough for me).
I will not argue that my approach was fair or even legal. It was certainly not uber-scientific. And it was politically incorrect, to put it mildly. But it was grounded in science and swollen with common sense. And I did not have Today’s opportunities to detect and treat OSA at my disposal. Regardless, our operating experiences bore the wisdom of this approach out: We experienced a single serious accident, injuring a single passenger and his driver, during a full decade in operations — encompassing an estimated 29 million miles of travel.
Success or Squander
In the scheme of things, bio-sensitive driver assignment is only the frosting on focused efforts to eliminate shift inversion. As a regulatory reality, bio-sensitive driver assignment is unlikely to ever become a requirement. But the opportunity to at least regulate shift inversion out of existence — Step #4 of the attempt to practically wipe catastrophic motorcoach incidents off the map — will not likely come if we squander the opportunity to take Step #3. Step 33 is what the current regulations represent. The opportunity to eliminate a significant, two-digit percentage of our industry’s accidents by enacting a single piece of legislation that would rarely result in a driver’s termination would be a shame to squander. To those victims of these accidents, and their families and friends, it would be a tragedy.
While arguably secondary in importance, failing to take Step #3 would also squander an opportunity for significant cost savings from reduced liability exposure. And it could translate into a considerable reduction in insurance premiums. Further, it would deprive us of the marketing opportunities that a noticeable reduction in high-profile catastrophic accidents would endow us with. Ignoring this opportunity would not simply be naive. It would be foolish.
In Part 2 of this series, I will share with you many of my own comments about the rulemaking. The June issue of NBT containing it should give readers another month to use or improve upon my comments, and continue to chime in about this opportunity. For the otherwise accident victims of our failure to do so, it is genuinely the opportunity of a lifetime.
Beyond what it would accomplish by itself, perhaps the most stunning thing about OSA testing and treatment (Step #3) is that it would likely comprise a slippery slope to Step #4 — the regulatory-mandated elimination of shift inversion in driver assignment. Along with Step #3, the passage of Step #4 — an opportunity we squandered more than a decade ago — would give us another opportunity to doom catastrophic motorcoach accidents to a rarity. As John Lennon once crooned, “Just imagine.” Just imagine what a marvel our industry would become if travel by motorcoach were to become almost completely safe. Just imagine what we would have to market. The best part is, that to get there, we simply have to vote.
For all you pessimists out there who believe that government does not work, there are two lessons here. The first lesson is that, given a chance, it can. The second is that, for it to work, we must support the best it has to offer when it comes along. A safe, efficient, affordable, unsubsidized private industry does not simply fall into our laps. Our industry is what we make it. The regulations that could bring both much-deserved attention and prosperity to our industry lie at our fingertips. We merely need to get off the couch and make it happen.