Author: Matthew McQuillan, J.D.
The National Registry of Certified Medical Examiners (NRCME) is a list of medical professionals who are certified to give medical examinations to those seeking to become interstate truck drivers. In order to be listed, regulations require examiners to undergo training and testing to ensure they understand the restrictions and requirements of the Federal Motor Carrier Safety Act. Medical professionals seeking to conduct these examinations as part of their practice should understand the specific regulations and their history.
I. Background of the NRCME
The 2005 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users initially provided for the establishment of an examiner registry. See 49 U.S.C. § 31149(d). This statute directed the Federal Motor Carrier Safety Administration (FMCSA) to create a registry of qualified examiners as well as remove any that failed to maintain their certification requirements. Congress believed the registry necessary due to the increase in commercial trucks traveling the nation's highways. There was also evidence some crashes had occurred where the commercial drivers should not have been medically qualified. Congress believed the registry and additional regulatory authority would ensure examiners had received training and understood the medical certification requirements.
As is typically the case, the original statute did not set out the specifics of the regulations or the new registry. The law simply gave the FMCSA a general instruction to carry out Congress' intent as it best saw fit. FMCSA then began its own procedure to determine the actual form of the registry and examiner training. FMCSA sought and obtained comments and position papers from interested parties such as transportation businesses, public safety groups, medical associations, and labor organizations. Eventually, the FMCSA completed the new regulations and incorporated them into the existing code. See 49 CFR §§ 390.101 et seq. While the regulations officially took effect on May 21, 2012, examiners are not required to comply until May 21, 2014.
II. Eligibility Requirements
In order to qualify as an examiner under the new regulations, a medical professional must meet the qualifications contained in 49 CFR 390.103. The professional must first be authorized by state law to conduct physical examinations. The section specifically lists advanced practical nurses, chiropractors, medical doctors, doctors of osteopathy, and physician assistants, but also includes a "catch all" provision. Essentially, if a state allows the professional to conduct physical examinations, they are eligible for the registry.
The professional must also complete an authorized training program meeting 49 CFR § 390.105's requirements. The program must be accredited to provide continuing education credits by a "medical profession accrediting organization." That program must also give participants a contact point at the FMCSA and provide proof of completion. The course content itself must cover information the agency prescribes, generally including the registry's background and purpose, the examination protocol, and an examiner's documentation and reporting requirements.
The FMCSA also requires the medical professionals to pass an examination prior to being allowed to register. See 49 CFR § 390.107. This examination will be administered at private testing centers approved by the FMCSA. If an applicant fails the examination, they must wait 30 days to take it again. Upon completing of the FMCSA's criteria, including passage of the exam, it will add that provider to the NRCME. The certification is valid for 10 years from the date of issue.
III. Maintaining Certification
49 CFR § 390.111 contains the criteria examiners must follow to maintain their certification. In addition to continuing to meet the initial eligibility requirements, the examiner must report any changes to their application information to the agency within 30 days. This includes, among other things, addresses and contact information. An examiner's certification and licensing documentation must also be maintained in such a way that it can be produced within 48 hours of an investigator's request.
The FMCSA will also provide continuing education requirements that must be completed between an examiner's fourth and fifth certification years. After the ninth year but prior to expiration, an examiner must complete additional training and pass the certification exam again to maintain their registry status. The renewed certification will be valid for an additional ten year period.
The FMCSA can revoke an examiner's certification for failing to comply with section 390.111's requirements. Further, discovery of errors or omissions in the examiner's application allows the agency to revoke certification. If, at any time, the FMCSA discovers an examiner did not follow the prescribed procedure during an examination as set forth in section 391.43, or if a driver is issued a certificate that should not have been, the examiner's certification may be revoked.
The new regulations also added reporting and records preservation requirements to the prior examination rules. After May 21, 2014, for each calendar month, registered examiners must "electronically transmit" a copy of the results form (Form MCSA-5850) for every certification examination performed that month. See 49 CFR § 391.43(g)(3). Copies or electronic versions of every Medical Examination Report and certificate must also be retained for at least three years. See 49 CFR § 391.43(i).
IV. List Removal Procedure
When revoking an examiner's certification, some form of due process must be followed. Recognizing this, the FMCSA included an administrative procedure for revoking certification in its regulations. See 49 CFR § 390.115. The agency must first provide the examiner with written notice of its intent to revoke. All procedural deadlines run from the date of the agency's notice of intent. Missing a response deadline can result in automatic revocation. The examiner must provide the FMCSA a written response within 30 days of receiving the notice. The response must explain why the information on which the FMCSA relies is incorrect. The agency will evaluate the response to determine if a mistake was made. The FMCSA must reaffirm, modify, or withdraw its intent to revoke within 60 days of the initial notice. Regardless of the due process procedure, the agency has the authority to immediately revoke certification in a public health or safety emergency.
If an examiner's certification is revoked, they have only 30 days from the date of their registry removal to initiate an administrative review. The request for review must be in writing and explain the reasons why the agency's determination was incorrect, along with all facts and legal issues in dispute. The agency may then initiate review proceedings with which the examiner must cooperate or lose their ability to have the decision reconsidered.
If the administrative review timeframe expires, an examiner must wait at least 30 days after removal from the list before they may reapply for certification. If involuntarily removed from the registry, they must show compliance with corrective action the FMCSA required when the revocation occurred.
As mentioned, all examiners must comply with the FMCSA's regulations by May 21, 2014. After that time, drivers may not receive medical certification from examiners that are not part of the NRCME. The FMCSA began permitting examiners to sign up for a unique identification number on August 20, 2012. This number is required to take the certification examination. It is important examiners not delay in meeting the new regulatory requirements. Meeting the requirements early ensures there is no loss of an examiner's practice related income after the effective date.
Finding an appropriate certification course is crucial. The FMCSA's website, found at http://nrcme.fmcsa.dot.gov/index.aspx, lists the specific core curricula a class must cover. The site also addresses many of the questions an examiner may have regarding the new certification regulations. This article is not intended to address all the potential requirements of the new statute and does not constitute any type of legal advice. For more detailed information, one should contact the FMCSA or their attorney.