Substance Abuse Professional

Return-to-Duty Process Understanding the Employer & DOT-SAP Roles

Jon P. SpeckmanJon P. Speckman,, MSM, LCAS, CCSMSM, LCAS, CCS

800-942-3784 jspeckman@adatc.com800-942-3784 jspeckman@adatc.com

8th Annual FTA Conference Phoenix, Arizona

Introduction - Qualification

Jon P. Speckman, Jon P. Speckman, MSM, LCAS, ICAADC, CCSMSM, LCAS, ICAADC, CCS

• MSM – Masters of Management MSM – Masters of Management • LCAS – Licensed Clinical Addiction Specialist –NCLCAS – Licensed Clinical Addiction Specialist –NC• ICAADC – ICAADC – ICRC Advanced Alcohol & Drug CounselorICRC Advanced Alcohol & Drug Counselor

• CCS – NC Certified Clinical SupervisorCCS – NC Certified Clinical Supervisor• Field of Substance Abuse for 30+ years Field of Substance Abuse for 30+ years • 16 yrs. – Clinical Treatment 16 yrs. – Clinical Treatment • 10 yrs. – Third Party Administrator 10 yrs. – Third Party Administrator • 12 yrs. – Consultant, Trainer, Clinician/Evaluator 12 yrs. – Consultant, Trainer, Clinician/Evaluator • Small Employee Assistance service Small Employee Assistance service

What Credentials are Important – Why?What Credentials are Important – Why?

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DOT Expectations

DOT very wisely recognized 3 DOT very wisely recognized 3 things:things:

1.1.Alcohol & Drug problems are a Alcohol & Drug problems are a safety issue for transportationsafety issue for transportation

2.2.Each case is individual – there Each case is individual – there is no “one size fits all” is no “one size fits all”

3.3.Professionals are better suited Professionals are better suited than regulation in setting than regulation in setting individual corrective actionindividual corrective action 3

DOT Regulations Overview The ProcessThe Process

•Puts responsibility on employee who Puts responsibility on employee who violated rulesviolated rules

•Penalizes (fines) employer ONLY for use Penalizes (fines) employer ONLY for use of of “non-compliant”“non-compliant” employee employee

•Does not require employer to do things Does not require employer to do things outside their controloutside their control

•Allows an employerAllows an employer to help to help but only but only REQUIRES REQUIRES employer employer not to usenot to use “unqualified” individuals“unqualified” individuals

•Does not allow SAP to determine Does not allow SAP to determine “nothing required”“nothing required” after a violation after a violation 4

The Key Players

WHOWHOEmployer Employer

&&

Substance Substance Abuse Abuse

Professional Professional 5

WHO - The Employer

• §40.23 (d) §40.23 (d) As an employer, when As an employer, when an employee has a verified positive, an employee has a verified positive, adulterated, or substituted test adulterated, or substituted test result, or has otherwise violated a result, or has otherwise violated a DOT agency drug and alcohol DOT agency drug and alcohol regulation, you must NOT return regulation, you must NOT return the employee to the performance of the employee to the performance of safety-sensitive functions until or safety-sensitive functions until or unless the employee successfully unless the employee successfully completes the return-to-duty completes the return-to-duty process of Subpart O of this part.process of Subpart O of this part.

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WHO - The Designated Employer Representative (DER)

Employer - DER Employer - DER --§40.3 (Definition)§40.3 (Definition)

•An employee authorized by the An employee authorized by the employer to take immediate action(s) to employer to take immediate action(s) to remove employees from safety-sensitive remove employees from safety-sensitive duties, or cause employees to be duties, or cause employees to be removed from these covered duties, and removed from these covered duties, and to make required decisions in the to make required decisions in the testing and evaluation processes. The testing and evaluation processes. The DER also receives test results DER also receives test results and other and other communications for the employercommunications for the employer, , consistent with the requirements of this consistent with the requirements of this part. Service agents cannot act as DERs.part. Service agents cannot act as DERs. 7

WHAT - The DER Role

Employer - DEREmployer - DER•DOT defines the DER position as DOT defines the DER position as

responsible for all confidential responsible for all confidential communications communications

•FIRST the DER sees that violating FIRST the DER sees that violating employee is immediately removed from employee is immediately removed from safety sensitive dutiessafety sensitive duties

•DER provides referral to SAP(s) regardless DER provides referral to SAP(s) regardless of what personnel action occursof what personnel action occurs

•DER is communicator with SAP DER is communicator with SAP Even if not coming back – violation informationEven if not coming back – violation information No additional consent needed from employeeNo additional consent needed from employee

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WHAT - The DER Role

Employer DER Employer DER (continued)(continued)

•DER should know the SAPs on your list DER should know the SAPs on your list •SAP should be local person firstSAP should be local person first•Meet & know your SAP - know their Meet & know your SAP - know their

practice, get SAP credentials practice, get SAP credentials •Talk about your understandings & Talk about your understandings &

expectations for anyone you send to expectations for anyone you send to SAPSAP

•Only use national / non-local when your Only use national / non-local when your employees are not local or local SAPs employees are not local or local SAPs change frequentlychange frequently

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WHO - The SAP

The - The - Substance Abuse ProfessionalSubstance Abuse Professional• DOT recognized need to use professionals DOT recognized need to use professionals

for a health problem affecting safetyfor a health problem affecting safety• Limit SAPs to those professionals with Limit SAPs to those professionals with

credentials and substance abuse trainingcredentials and substance abuse training• Requires “adjustment” to SAP’s usual Requires “adjustment” to SAP’s usual

clinical focus on patient to clinical focus on patient to include public include public safetysafety

• Requires separation of SAP & treatmentRequires separation of SAP & treatment• Requires education or treatment Requires education or treatment at minimumat minimum• Requires written communication with the Requires written communication with the

employeremployer

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WHO - SAP Credentials

Only These Professionals Only These Professionals --§40.281§40.281 Licensed Physician (MD or DO)Licensed Physician (MD or DO) Licensed or CertifiedLicensed or Certified

Social WorkerSocial Worker PsychologistPsychologist Employee Assistance Employee Assistance

ProfessionalProfessional Marriage & Family TherapistsMarriage & Family Therapists State Alcohol or Drug CounselorState Alcohol or Drug Counselor

Only if NAADAC or ICRC CertifiedOnly if NAADAC or ICRC Certified

NBCC -Master Addictions CounselorNBCC -Master Addictions Counselor 11

WHAT - SAP Required Knowledge

Regardless of Degree or CredentialRegardless of Degree or Credential - - §40.281§40.281

Experience in Addiction ServicesExperience in Addiction Services•Diagnosis and treatment of alcohol & Diagnosis and treatment of alcohol &

controlled substances-related disorderscontrolled substances-related disorders Knowledge of DOT RequirementsKnowledge of DOT Requirements

•The DOT SAP Return-to-Duty Process The DOT SAP Return-to-Duty Process •The DOT regulation 49 CFR Part 40The DOT regulation 49 CFR Part 40•The DOT Agency rules for your companyThe DOT Agency rules for your company•The DOT SAP GuidelinesThe DOT SAP Guidelines•ALL changes that occur to the aboveALL changes that occur to the above

Available at Available at www.dot.gov/odapc/ www.dot.gov/odapc/ 12

WHAT - Qualification Training

Key DOT Key DOT Drug Drug testing requirementstesting requirements

• Collections, lab, MRO & problems in testingCollections, lab, MRO & problems in testing Key DOT Key DOT AlcoholAlcohol testing requirements testing requirements

• Testing process, BAT, STT & problems in testingTesting process, BAT, STT & problems in testing SAP qualifications and prohibitionsSAP qualifications and prohibitions

• Limits referralLimits referral to SAP’s own services - ethics to SAP’s own services - ethics• Initial evaluation, referral, follow-up evaluation, Initial evaluation, referral, follow-up evaluation,

continuing care, the Follow-up testing plancontinuing care, the Follow-up testing plan SAP consultation and communicationsSAP consultation and communications Reporting and recordkeeping requirementsReporting and recordkeeping requirements Issues the SAP may & MAY NOT confrontIssues the SAP may & MAY NOT confront

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WHAT - SAP National Exam

Complete a Nationally Recognized ExamComplete a Nationally Recognized Exam• One time – Qualification only One time – Qualification only

National Exams are:National Exams are:• EAPAEAPA – Employee Assistance Professional Assoc.– Employee Assistance Professional Assoc.• NAADAC NAADAC – Association of Addiction Professionals– Association of Addiction Professionals• ICRC ICRC – International Credentialing & Reciprocity– International Credentialing & Reciprocity• SAPAASAPAA – Substance Abuse Program Administrators– Substance Abuse Program Administrators• Others can be found on DOT – ODAPC websiteOthers can be found on DOT – ODAPC website

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WHAT - Ongoing Requirements

Continuing EducationContinuing Education• 12 PDH or CEUs every 3 years 12 PDH or CEUs every 3 years

Following Qualification ExamFollowing Qualification Exam• Must be in DOT SAP relevant Must be in DOT SAP relevant

material – NOT just any material – NOT just any trainingtraining

Credential DocumentationCredential Documentation• SAP’s Sole responsibilitySAP’s Sole responsibility• Qualifying CredentialQualifying Credential• Certificate of SAP Exam Certificate of SAP Exam • Demonstrate 12 PDH or CEUs Demonstrate 12 PDH or CEUs

every 3 years from date of every 3 years from date of examexam

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Subpart O Required

WhatWhat Requires the SAP Requires the SAP Process be conducted?Process be conducted?•Positive drug or alcohol testPositive drug or alcohol test

Applicant OR EmployeeApplicant OR Employee

•Refusals to Test Refusals to Test (11 items now)(11 items now)

•Pre-duty use violationPre-duty use violation•On duty use On duty use •Drugs/Alcohol in vehicleDrugs/Alcohol in vehicle•NOT NOT – DWIs in Personal Car– DWIs in Personal Car

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SAP is Required?

WHATWHATARE THEARE THE

SAP SAP

SERVICES?SERVICES?

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SAP Return-to-Duty Process

Definition - Definition - §40.285 (a) §40.285 (a)

•No Employee who has violated the DOT No Employee who has violated the DOT regulations may perform Safety regulations may perform Safety Sensitive duties for ANY DOT regulated Sensitive duties for ANY DOT regulated employer until he/she has completed the employer until he/she has completed the initial evaluation, referral for education initial evaluation, referral for education treatment, follow-up evaluation AND treatment, follow-up evaluation AND passed a return-to-duty drug and/or passed a return-to-duty drug and/or alcohol testalcohol test..

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SAP Required Services

SAP Required Services? SAP Required Services? §40.291§40.291

SIX ELEMENTS:SIX ELEMENTS:

I.I. Initial Clinical AssessmentInitial Clinical Assessment

II.II. Referral to Education or Referral to Education or TreatmentTreatment

III.III.Managing Referral AccessManaging Referral AccessIV.IV.Follow-up Clinical AssessmentFollow-up Clinical AssessmentV.V. Establish Follow Up Testing Establish Follow Up Testing

PlanPlanVI.VI.Provide Employer Letters Provide Employer Letters

After Initial AssessmentAfter Initial Assessment After Follow-up Assessment with After Follow-up Assessment with

testing plan testing plan 19

I. Initial Assessment §40.293

Face-to-face evaluation - LocalFace-to-face evaluation - Local1.1. Clinical Diagnostic EvaluationClinical Diagnostic Evaluation

2.2. Requires use of a test instrumentRequires use of a test instrument

3.3. Screens for any problemScreens for any problem1.1. Substance abuse, Mental Health, etc. Substance abuse, Mental Health, etc.

4.4. Establish treatment goals Establish treatment goals

5.5. ““NO PROBLEM FOUND”NO PROBLEM FOUND” not an not an optionoption

6.6. Results in Initial Letter to employerResults in Initial Letter to employer

7.7. Establishes goalsEstablishes goals No Consideration of employee No Consideration of employee

“claims”“claims” Wrong test, no reason, etc.Wrong test, no reason, etc. 20

II. Referral to Service §40.299

• Always Requires ReferralAlways Requires Referral Can’t refer to SAP’s own practiceCan’t refer to SAP’s own practice Facilitates entry to servicesFacilitates entry to services

• Education ServicesEducation Services Structured education programStructured education program Monitored self-help Monitored self-help Specific goals to achieveSpecific goals to achieve

• Treatment ServicesTreatment Services Possible inpatient – used rarely Possible inpatient – used rarely Outpatient most commonOutpatient most common Weekly to multiple times a weekWeekly to multiple times a week Often a combination of servicesOften a combination of services May have two levels over timeMay have two levels over time

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III. Referral Monitoring §40.299

Communicates with TreatmentCommunicates with Treatment• Monitors if change is necessaryMonitors if change is necessary• Receives clinical progress updatesReceives clinical progress updates

Works with counselor if Works with counselor if problemsproblems• Receives final discharge summaryReceives final discharge summary• Consults with counselor on any Consults with counselor on any

follow up needsfollow up needs Prepares for Re-evaluationPrepares for Re-evaluation

• Reviews written progress reportsReviews written progress reports• Consults with counselorConsults with counselor

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IV. Follow-Up Evaluation §40.301

Face to Face with employeeFace to Face with employee Focuses on employee’s learningFocuses on employee’s learning Understanding of problemUnderstanding of problem Internalization of goalsInternalization of goals Behavior and lifestyle changesBehavior and lifestyle changes

Two Outcomes PossibleTwo Outcomes Possible• Successful Successful Compliance –Compliance – Return-to-Duty Return-to-Duty

SAP only authorizes R-T-D testing SAP only authorizes R-T-D testing Employer decides actual Return-to-DutyEmployer decides actual Return-to-Duty

• UnsuccessfulUnsuccessful Compliance Compliance – – NO RETURNNO RETURN Employer sets personnel actionEmployer sets personnel action

• Evaluates Need for Ongoing supportEvaluates Need for Ongoing support SAP must set follow up testing needsSAP must set follow up testing needs Can recommend self-help, aftercare Can recommend self-help, aftercare

counseling, etc. counseling, etc.

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V. Follow-Up Testing Plan §40.307

SAP Establishes – Employer Carries outSAP Establishes – Employer Carries out• Recognizes relapse potential – safety riskRecognizes relapse potential – safety risk• Testing should be Testing should be employee specificemployee specific – based – based

on SAP’s knowledge of use patternon SAP’s knowledge of use pattern• Requires Requires MIMIMUMMIMIMUM 6 tests in 1 6 tests in 1stst year year• Can go up to 60 months – based on needCan go up to 60 months – based on need• Rate depends on employee need for supportRate depends on employee need for support• Usually drug/person specificUsually drug/person specific

More intense the craving – more frequent the More intense the craving – more frequent the follow-up testing – Cocaine-Meth vs. Marijuanafollow-up testing – Cocaine-Meth vs. Marijuana

Less intense – less frequentLess intense – less frequent Should be supportive not punitiveShould be supportive not punitive

• SAP sets frequency and volumeSAP sets frequency and volume• Employer sets actual datesEmployer sets actual dates

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VI. Required Reports §40.311

• Letter After Initial EvaluationLetter After Initial Evaluation1.1. Employee name & SS# (D-O-B)Employee name & SS# (D-O-B)

2.2. Employer name & addressEmployer name & address

3.3. Reason – specific violation & dateReason – specific violation & date

4.4. Date(s) of assessmentDate(s) of assessment

5.5. SAP’s education/treatment requiredSAP’s education/treatment required

6.6. SAP’s phone & contact informationSAP’s phone & contact information

• On SAP’s own letterhead On SAP’s own letterhead • No Personal Clinical InformationNo Personal Clinical Information

No diagnosis, personal history, etc.No diagnosis, personal history, etc.

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VI. Required Reports - Continued

• Letter After Follow-Up EvaluationLetter After Follow-Up Evaluation Same 1-6 items from 1Same 1-6 items from 1stst letter letter

7.7. Name of education/treatment serviceName of education/treatment service

8.8. Inclusive dates of participationInclusive dates of participation

9.9. Clinical characterization of Clinical characterization of participationparticipation

10.10. SAP’s determination of employee’s SAP’s determination of employee’s successful/unsuccessful compliancesuccessful/unsuccessful compliance

11.11. Specific follow-up testing planSpecific follow-up testing plan Best if an attachment – not in letterBest if an attachment – not in letter SAP can re-evaluate after a yearSAP can re-evaluate after a year

After Care needs if anyAfter Care needs if any

1.1. Must be presented at follow-upMust be presented at follow-up

2.2. Monitored by employer Monitored by employer 26

SAP Letter EXAMPLES

Review SAP Sample LettersReview SAP Sample Letters• Initial LetterInitial Letter•Successful LetterSuccessful Letter•Follow-Up Testing ScheduleFollow-Up Testing Schedule•Unsuccessful LetterUnsuccessful Letter

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Documentation?

HOWHOWDO I DOCUMENT DO I DOCUMENT

COMPLIANCE COMPLIANCE

SAP SERVICES?SAP SERVICES?

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EMPLOYER DOCUMENTS §40.311

Successful Successful Compliance with Subpart Compliance with Subpart OO• Copy of original violationCopy of original violation• Document removing from safety Document removing from safety

sensitive duties with SAP resourcessensitive duties with SAP resources• Initial evaluation letterInitial evaluation letter• Follow-up letterFollow-up letter• Follow-up testing scheduleFollow-up testing schedule• Negative Negative Return-to-Duty drug and/or Return-to-Duty drug and/or

alcohol testsalcohol tests• Copies of ALL follow-up tests as Copies of ALL follow-up tests as

required in SAP schedule of testingrequired in SAP schedule of testing 29

EMPLOYER DOCUMENTS § 40.311

UnsuccessfulUnsuccessful Compliance Compliance Subpart OSubpart O• Copy of original violationCopy of original violation• Document removing from safety Document removing from safety

sensitive Duties with SAP resourcessensitive Duties with SAP resources• Initial evaluation letterInitial evaluation letter• Follow-up Letter indicating Follow-up Letter indicating

unsuccessfulunsuccessful compliance compliance• Any additional correspondence to/from Any additional correspondence to/from

SAP – Possible re-evaluation, etc.SAP – Possible re-evaluation, etc.• NO DOT TESTING ALLOWEDNO DOT TESTING ALLOWED• Termination letter or transfer of job Termination letter or transfer of job

duties to NON-safety-sensitive duties duties to NON-safety-sensitive duties 30

SUMMARY - EMPLOYER DUTIES As an employer, you are responsible As an employer, you are responsible

for your program- even if parts for your program- even if parts contractedcontracted

You must receive both letters from the You must receive both letters from the SAP BEFORE you TESTSAP BEFORE you TEST

You manage the follow-up testing You manage the follow-up testing dates - dates - be sure to complybe sure to comply

You still must provide a referral to SAPYou still must provide a referral to SAP• Employee even if terminatingEmployee even if terminating• Applicant even if not hiring themApplicant even if not hiring them

SAPs are a resource for youSAPs are a resource for you Document all effortsDocument all efforts 31

Common Questions Myths/Issues-1

AM I SUPPOSED TO KNOW THE AM I SUPPOSED TO KNOW THE SAP?SAP?•Yes, if you plan on returning an Yes, if you plan on returning an

employee you must be on the same employee you must be on the same page as the SAP you use. page as the SAP you use.

Can my SAP put a Friday Positive Can my SAP put a Friday Positive back to work on Monday?back to work on Monday?•NO, unless a SAP can clearly justify NO, unless a SAP can clearly justify

why a safety sensitive employee who why a safety sensitive employee who has been trained in prohibited drug has been trained in prohibited drug use in DOT work would suddenly use in DOT work would suddenly violate those rules and jeopardize violate those rules and jeopardize his/her career, not just a job.his/her career, not just a job.

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Common Questions Myths/Issues-2

Can my SAP require a Marijuana Can my SAP require a Marijuana positive to also stop drinking positive to also stop drinking alcohol?alcohol?• YES, every SAP must fully evaluate the YES, every SAP must fully evaluate the

individual and their clinical problems individual and their clinical problems and treat whatever the issues are – not and treat whatever the issues are – not just the identified drug they were just the identified drug they were positive for on a test. positive for on a test.

Can we do more follow-up tests Can we do more follow-up tests than the SAP stipulates?than the SAP stipulates?• NO, as an employer or DER you must NO, as an employer or DER you must

do only what the SAP stipulates on a do only what the SAP stipulates on a DOT violation. DOT violation.

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Common Questions Myths/Issues-3 Who is supposed to explain the Who is supposed to explain the

“Dropping your pants in Return-to-Duty “Dropping your pants in Return-to-Duty and Follow-up testing?and Follow-up testing?• The DER, the SAP and/or the collector The DER, the SAP and/or the collector

should clearly explain to the employee the should clearly explain to the employee the collection process under direct observation collection process under direct observation so there is no misunderstanding.so there is no misunderstanding.

What’s the deal with an employee using What’s the deal with an employee using “bath salts” or that “legal Marijuana” “bath salts” or that “legal Marijuana” stuff?stuff?• In the last 10 years, the use of products In the last 10 years, the use of products

touted on the market as harmless bath salts touted on the market as harmless bath salts or legal marijuana are far from either. These or legal marijuana are far from either. These are situations where routine products are are situations where routine products are treated with chemicals that mimic treated with chemicals that mimic stimulants in bath salts and mimic the stimulants in bath salts and mimic the effects of THC by spraying incense or herbs effects of THC by spraying incense or herbs with chemicals. ALL SUCH PRODUCTS ARE with chemicals. ALL SUCH PRODUCTS ARE ILLEGAL NOWILLEGAL NOW

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Questions

QuestionsQuestionsABOUT ABOUT

DRUGS orDRUGS orPROCESSPROCESS

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RESOURCES

www.dot.gov/odapcwww.dot.gov/odapc http://transit-http://transit-

safety.volpe.dot.gov/safety.volpe.dot.gov/DrugAndAlcoholDrugAndAlcohol

www.health.orgwww.health.org www.saplist.comwww.saplist.com www.workplace.samhsa.gov/www.workplace.samhsa.gov/

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QUESTIONS & EVALUATION

LAST CHANCELAST CHANCE Anything you didn’t get answered Anything you didn’t get answered

about the Return-to-Duty process?about the Return-to-Duty process?•EmployerEmployer•Substance Abuse ProfessionalSubstance Abuse Professional•DocumentationDocumentation

Please complete your evaluationPlease complete your evaluation

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THANK YOU

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NEED HELPNEED HELPFTA – 617-494-6336FTA – 617-494-6336

ODAPC – 800-225-3784ODAPC – 800-225-3784

If you can’t find the answer you need,If you can’t find the answer you need,call me for assistance:call me for assistance:

Jon P. SpeckmanJon P. Speckman, MSM, LCAS, CCS, , MSM, LCAS, CCS,

800-942-3784800-942-3784 jspeckman@adatc.com or www.adatc.comjspeckman@adatc.com or www.adatc.com