POCT ORAL FLUID DRUG TESTING AND STATE LAWS THAT REGULATE USE
By Bill Current
One of the hot issues in this year's annual drug testing industry survey conducted by WFC & Associates was oral fluid drug testing. It stands to reason seeing as the federal government is inching its way through the process of writing regulations that will eventually permit lab-based oral fluid testing. The over-arching effect of this process is that many people are also asking about rapid-result oral fluid testing in addition to lab-based testing. However, it's important to note that the two testing methods can be very different in some key ways.
Oral fluid testing, compared to urine testing, is easier to collect, considered by many to be less invasive, and much more difficult, if not impossible, to adulterate. Oral fluid can be used to reveal the presence of the same drugs detected with urine testing. The window of detection can be shorter with oral fluid compared to urine, but it begins almost immediately after ingestion of a drug making it ideal for reasonable suspicion and post-accident testing.
The biggest difference, though not the only difference, is with rapid-result testing you get, well, a rapid result. For some companies and organizations an immediate result is important and it's worth whatever trade-offs that may be involved in not getting a lab-based result.
There are two critical questions that must be thoroughly explored by any company planning to use rapid-result/POCT oral fluid testing:
1) is the device being considered FDA-cleared, and
2) are oral fluid testing and rapid-result testing permitted in the states where you are located?
The answer to both questions must be "yes" before a company can implement a rapid-result oral fluid testing program.
Remember, when it comes to state drug testing laws there are states with mandatory laws that apply to all employers who wish to conduct drug testing in a particular state, and states with voluntary laws that only apply to employers who are participating in a program that offers certain benefits to employers who comply with the state-regulated program. (There are also a handful of state with no drug testing statutes.) With that in mind, following is the status of POCToral fluid drug testing and state drug testing laws.
States That Prohibit Oral Fluid Testing. The good news is that oral fluid drug testing is legal in virtually every state. Among states with mandatory drug testing laws only three prohibit oral fluid testing in the workplace: Hawaii, Maine and Vermont. Additionally, the territory of Puerto Rico requires urine testing.
States That Prohibit Rapid-Result Testing. There are four states that prohibit rapid-result testing in the workplace and, as such, also prohibit rapid-result oral fluid testing. These states are: Kansas, Minnesota, New York and Vermont. (New York actually permits POCT but makes it nearly impossible for the average employer to qualify to use POCT devices on-site.)
States That Require FDA-cleared Devices. Additionally, some states only permit FDA-cleared POCT devices for workplace testing. In Louisiana, Maryland, Montana, New Jersey and Oklahoma you can use POCT oral fluid testing as long as the device being used is FDA-cleared. All other devices would not be permitted in the workplace.
States with Voluntary Laws that Prohibit Oral Fluid Testing. Finally, among states with voluntary drug testing laws, these states do not permit any type of rapid-result or POCT devices in the workplace: Alaska, Florida, Mississippi, Ohio, South Dakota and Tennessee. Outside of the voluntary law in these states employers are not restricted from using POCT devices.
Keep in mind that other procedural requirements in a state drug testing law typically apply to all forms of drug testing. For example, when a state regulates how collections must be conducted or how test results must be reported, these requirements will likely apply to oral fluid testing or POCT just as they do to lab-based urine testing.
All of the state law information referred to in this article only applies to drug testing. Even if a particular state prohibits oral fluid drug testing it may very well permit saliva alcohol testing.
Also, this article only pertains to workplace drug testing. Non-workplace organizations that conduct drug testing usually are not required to comply with the same drug testing laws as employers. Oral fluid testing and rapid-result testing are very common in the criminal justice and treatment markets, among others.
The FDA recently voted in favor of pushing a new formulation of oxycodone hydrochloride for approval. The new OxyContin formula is more difficult to crush or dissolve which will hopefully make it harder to be used as a drug of abuse . The FDA recommended that Purdue Pharma's application for a new, resin-coated formulation should replace the original version, which has been on the market since 1996. Randall Flick, MD, an anesthesiologist at the Mayo Clinic who voted to recommend approval of the drug said, "Clearly the old formulation is worse than the new, although I think the difference is relatively small," Flick concluded, "Hardcore abusers are likely to devise new ways to break down the harder tablet or figure out which solvents will dissolve it fastest, within 'day or weeks' of the product's release on the market."