Obstructive Sleep Apnea (OSA) is an issue whose priority has ebbed and flowed. When it first emerged as a safety concern it was greeted by a lot of excitement and strong feelings on both sides. Since, absent government guidance, there’s been a steady drumbeat from advocates pressing the issue forward and encouraging carriers to adopt robust programs to screen, test and treat drivers for OSA. But now, with millions of Phillips continuous positive air pressure devices being recalled globally, and drivers and carriers confused on how to best respond, it may be time for government to act.
The sleep apnea issue continues to be unresolved and poses many questions among carriers. There have been many attempts to address the issues including proposed guidance in 2013 that was later withdrawn. This was followed by a notice of advance notice of proposed rulemaking in 2016 that was formally withdrawn in 2017. Meanwhile, FMCSA’s Medical Review Board has been proposing recommended screening and testing standards for years, which have been filed away as guidance prohibited by a 2013 law passed by Congress. The National Transportation Safety Board has had this issue on its Most Wanted list of safety improvements as recently as 2020, as a litany of research stresses the benefits of treating OSA.
The Phillips recall and the lack of any standards or formal guidance on effective screening methods from the Medical Review Board (MRB) or FMCSA is creating consternation and confusion in the industry on how to handle the situation. With the recall, drivers must choose whether to risk their health by either using a defective device, or by not using the device and placing their health and safety at risk by increasing their potential for heart disease, hypertension, or excessive daytime sleepiness. They also risk losing their medical certification. Regardless of which option is selected, it is a no-win situation for drivers and carriers.
Last month, the MRB met to discuss the growing crisis. Early reports indicate it may recommend that drivers with moderate sleep apnea who were using the recalled Philips devices, temporarily use oral appliance therapy until CPAP machines become available. It may also recommend that Medical Examiners temporarily certify (up to 90 days) these drivers while they adopt oral appliances. Drivers with severe OSA may be disqualified until they are able to resume their required CPAP treatment.
While this is a positive development and could provide a short-term fix for some drivers, it may run afoul of the statutory prohibition on OSA guidance. Ultimately, it’ll take a permanent fix to provide drivers and motor carriers with the guardrails they need to navigate these tough scenarios. So far, the Biden administration has been unwilling to put it on their official regulatory agenda, but we would not be surprised to see that change soon.