Ms. Tracy Perez
Executive Director
Maine Transit Association
RR 1, Box 970
Woolwich, Maine 04579

RE: Coverage of volunteers under 49 CFR Parts 653 and 654

Dear Ms. Perez:

Thank you for your recent letter asking about an issue in connection with the Federal Transit Administration's (FTA) drug and alcohol testing regulations.

Background

Those rules require a recipient of funds under section 3, 9, or 18 of the Federal Transit Act, as amended, or under section 103(e)(4) of title 23 of the U.S. Code (the interstate transfer program), to implement a program requiring safety-sensitive employees to be tested for five controlled substances and for the misuse of alcohol. The regulations were published in the Federal Register on February 15, 1994, at 59 FR 7531 et seq. (49 CFR Parts 653 and 654.) Large transit operators must implement the drug and alcohol rules beginning on January 1, 1995, while States and small transit operators must begin implementation on January 1, 1996.

Issue

You state that some transit operators in Maine who receive section 18 funds also provide transportation to the public under certain Medicaid programs. Under these programs, volunteer drivers; the drivers provide transportation to Medicaid clients; the drivers use their own vehicles and are reimbursed for their costs by Medicaid based on vehicle mileage. Section 18 funds are not used to reimburse the drivers for costs they incurred or to pay for the administrative costs of operating the Medicaid programs. You ask whether the volunteer drivers are subject to FTA's drug and alcohol testing rules. In a subsequent telephone conversation with a lawyer in this office, you stated that the budget, personnel, and equipment for the section 18 and the Medicaid programs are kept separate.

Ruling

In general, volunteers who perform a safety-sensitive function for a recipient of funds under section 3, 9, or 18 of the Federal Transit Act, as amended, or under section 103(e)(4) of title 23 of the United States Code, are subject to the FTA drug and alcohol regulations. In this instance, however, the drivers volunteer their services to the Medicaid programs, and the Medicaid programs are kept separate form the section 18 program. Moreover, the Medicaid programs are not funded by the FTA in any manner, and the section 18 program and the two Medicaid programs have completely separate budgets and personnel. In light of these facts, and because our rule apply only to recipients of FTA funds, in our view the volunteers who drive exclusively for the Medicaid programs are not subject to FTA's drug and alcohol testing rules.

Sincerely,
(Signed)
Gregory B. McBride
Acting Chief Counsel