Defending the Mariner’s License: Part I – Drug Testing, the Proceeding, and the “Sweeny Cure”

September 4th, 2014

As professional mariners know, the use of drugs or alcohol while working on the water can result in a lost license and a lost livelihood. This article is the first in a series addressing these issues, and discussing the defense of a mariner’s license against prosecution by the United States Coast Guard (“USCG”) for the use of illicit drugs. Here, we provide an overview of drug testing procedures and the “Sweeny Cure” process that allows mariners to get back on the water after a negotiated settlement with the Coast Guard.

Overview

Maritime safety is a foremost concern for all who make their living on America’s waterways. One of the tools utilized by the USCG to ensure the highest quality of that safety is through the periodic drug testing of certain maritime employees, including anyone with a USCG issued document, credential, or license. The USCG’s drug testing program is based, in part, upon criteria from the Department of Transportation (“DOT”). According to the DOT, dangerous drugs detrimental to maritime safety are: Marijuana, Cocaine, Opiates (including Codeine, Morphine and heroin), Phencyclidine (PCP), and Amphetamines (including Methamphetamine), MDMA (Ecstasy), MDA, and MDEA.

Mariners who test positive for any of these substances stand to have their licenses revoked. However, by working with – instead of against – the USCG, mariners may be able to take advantage of the “Sweeney Cure” process. The Sweeny Cure process is based upon a Vice Commandant appeal decision United States Coast Guard v. Sweeney, (2535)(1992). The case was one of the first that implemented a long-term license suspension, coupled with drug treatment, to rehabilitate a mariner who had tested positive for dangerous drug use. The Sweeny decision became the Administrative Law Judges’ (“ALJ”) and USCG’s roadmap for the handling of similar cases, and remains the standard today.

Knowing how to navigate the Sweeny Cure process can make the difference between a successful license recovery, and a permanent loss. Being well armed with knowledge of the process, USCG expectations, and available resources, can get mariners back on the water and working on their licenses in about one year. Below, we outline the Sweeny Cure process. Since there are many details which cannot be succinctly summarized in this article, we encourage you to call our firm directly if you need legal assistance with this issue. As with the rest of the articles to follow in this series, this is a summary not intended as legal advice or a legal opinion.

The Drug Test

Mariners are required by the USCG to submit to a drug test for a variety of reasons, four of the most common are:

Pre-Employment: many schools and maritime employers in both the public and private sector are required to administer drug tests to prospective mariners or crewmembers at some point in their application/hiring process, and/or prior to reporting for an extended voyage or assignment;

Random: many marine employers in both the private and public sector are required to include in their standard safety protocols the random selection of employees for periodic testing. This includes crewmembers on both inspected and uninspected vessels;

Reasonable Cause: if a mariner is found with drugs, or drug paraphernalia, or a probability exists that a mariner is intoxicated or has used drugs, a marine employer must require a drug test;

Post-Accident: if a mariner is involved in a serious marine accident the employer must require that the mariner submit to a drug (and alcohol) test as soon as is practicable after the accident.

Regardless of the reason for the test, the mariner will most often be compelled to undergo testing at an approved testing center, at an appointed time. There, the mariner will be asked to provide a urine sample to a medical professional who is certified by the DOT to conduct drug tests. (Note: When representing mariners in drug-related prosecutions scheduled for hearing before an ALJ, we typically subpoena the testing site to produce documents related to the certification, training, and qualifications of the person(s) who administered the subject test, as well as all relevant documentation, including chain of custody forms. These documents can be critical to successfully defending the license, as we’ll discuss later in this series.)

Generally, there are three possible outcomes to any given testing scenario: a negative result, a positive result, or a refusal to test (refusal to test may, itself, manifest in multiple ways, and will also be addressed later in this series). Most frequently, the Sweeny Cure process comes into play when a mariner tests positive for a DOT designated “dangerous drug”, thus we focus on that result for the purposes of this article.

Complaint, Settlement, and Commencement of the Cure Process

Typically, testing sites and marine employers are required to immediately provide all positive drug test results directly to the USCG. Upon receipt, the USCG may issue a formal Complaint against the mariner to suspend or revoke the mariner’s license. Through early settlement negotiations with the USCG the mariner can avoid a full ALJ hearing and license revocation, and instead, participate in the Sweeny Cure process. The steps of the Sweeney Cure process include: 1) setting up a network of approved, professional support; 2) participation in a drug rehabilitation program; 3) non-association with drugs, and repeated negative tests; and, 4) participation in Narcotics Anonymous.

Professional Support from Service Agents: The MRO and the SAP

A mariner must work with certain licensed professionals, or “Service Agents”, in order to successfully complete the Sweeny Cure process. Two of these professionals are the Medical Record Officer (“MRO”) and the Substance Abuse Professional (“SAP”).

The MRO is a licensed physician, primarily responsible for receiving and reviewing a mariner’s laboratory results. The MRO has knowledge of substance abuse, and training to interpret and evaluate a positive test result, while taking into account an individual’s medical history, and any other relevant bio-medical information. The MRO must be qualified in accordance with 49 CFR Part 40 before performing MRO duties for DOT/USCG regulated entities.

The SAP must also meet DOT qualification standards but is not a licensed physician. The SAP will do a thorough assessment and evaluation of the involved mariner. The SAP will then guide that mariner though the cure process by making recommendations concerning rehabilitation, education, treatment, follow-up testing, and ongoing care.

A mariner will work closely with the SAP during in-person meetings to set up, coordinate, and complete treatment. This is unlike the relationship with the MRO, whom the mariner may never meet, as the MRO’s concerns are primarily the review and vetting of laboratory testing results. Approved drug testing facilities will assign an MRO to the mariner’s file. The mariner may then work with the MRO, the maritime employer, or the USCG to locate and select a SAP.

The MRO is the sole person responsible for certifying that the mariner has completed the Sweeny Cure process. Via a “Return to Work Letter” the MRO will declare that the mariner is considered “drug-free” and affirm that the risk of subsequent drug use is low enough to warrant the return to work of the subject mariner. Only the MRO has the authority to issue this type of letter to the USCG, the ALJ or a maritime employer.

Drug Rehabilitation

The Sweeny Cure process for every mariner must include successful completion of a USCG authorized drug rehabilitation program. The program must be designed to eliminate physical and physiological drug dependence. As interpreted by the USCG, such a program must be certified by a government agency (frequently by a state drug and alcohol abuse administration), or by an accepted professional association (for example, the Joint Commission on Accreditation of Health Care Organizations). The USCG or the SAP can provide a list of approved programs, and the USCG may be willing to vet any other programs proposed.

Ultimately, the rehabilitation program is selected by the mariner, in conjunction with the SAP. Mariners have a fair amount of control over the rehabilitation program selected, and are usually free to choose a program that is geographically convenient, at a time of the day and week that fits their work schedules, and is appropriate for their budgets – as long as that program fits the above criteria. (Note: Any mariners who have previous military experience, or other access to veterans’ services should investigate this avenue for rehabilitation treatment. Many Veterans Administration hospitals offer outpatient drug rehabilitation programs at no cost to former service members.)

Non-Association and Repeated Testing

After successful completion of the rehabilitation program, the mariner’s license is typically suspended for one year while the mariner exhibits long term non-association with drugs. Proof of the non-association must be provided to the USCG via repeated, unannounced testing. Usually, this testing is scheduled by the SAP, and results are reviewed by the MRO. Mariners’ individual settlement agreements may include a requirement that a specific number of tests occur within the one year non-association period. This information should be shared with the SAP, who can then design a testing schedule to comply with these settlement requirements. As with all other elements of the Sweeny Cure process, the mariner may have to bear the costs of each test. Occasionally, maritime employers may sponsor the treatment and testing of an employee, but mariners must be prepared to fund the process themselves.

Narcotics Anonymous

During the one year of demonstrated non-association with drugs, the Sweeny Cure process typically requires a mariner to also participate in Narcotics Anonymous. Mariners are usually required to attend one meeting a month. Proof of attendance is required by the SAP, MRO, and/or USCG. Mariners are strongly advised to keep a journal of each meeting attended, including the date and time of the meeting. The meeting leader should sign off, confirming the mariner’s attendance at the meeting. Failure to attend to such details is not usually overlooked by the MRO or USCG who could require the mariner to re-do the entire non-association period.

For more information about the contents of this article, or what topics will be covered in the rest of this series, please contact Courtney Crawford at ccrawford@cwlfirm.com