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Oregon Bulletin

October 1, 2012

Oregon University System, University of Oregon, Chapter 571

Rule Caption: Amend OAR 571-004-0020 et. seq. to include student-athlete random drug testing and safe-reporting program.

Adm. Order No.: UO 6-2012(Temp)

Filed with Sec. of State: 9-4-2012

Certified to be Effective: 9-4-12 thru 2-28-13

Notice Publication Date:

Rules Adopted: 571-004-0038

Rules Amended: 571-004-0020, 571-004-0025, 571-004-0030, 571-004-0050, 571-004-0055

Subject: The proposed rule amendments and new rule provide that the use by University of Oregon student-athletes of illicit substances and performance enhancing drugs is prohibited, provide for random testing, provide for sanctions for positive drug tests, provide for drug testing methods, and provide for self-reporting of and treatment for drug use.

Rules Coordinator: Amanda Hatch—(541) 346-3082

571-004-0020

Introduction and Purpose

(1) The University of Oregon has a compelling interest in prohibiting and deterring drug use by student-athletes. The University educates its student-athletes about the detrimental effects of drug use on health, safety, academic work, and careers. The University must abide by National Collegiate Athletic Association (NCAA) rules. Because student-athletes are viewed as University representatives, the University has an interest in promoting drug-free and healthful lifestyles to the community through its athletic program. The University must minimize the risk of injury caused by student-athlete drug use in intercollegiate athletics. The University must be able identify present or potential substance use and provide treatment and rehabilitation for its student-athletes. The University seeks to maintain a fair and drug-free sport, in which no student-athlete uses or feels pressured to use performance enhancing drugs or any other illegal substance.

(2) The University and its Department of Intercollegiate Athletics (Department) condemn and prohibit illegal drug and illegal alcohol use; the abuse of alcohol, drugs and other substances; and the use of performance-enhancing drugs by student-athletes.

(3) The program set forth in these rules includes random testing and testing based on reasonable suspicion, educational programs, substance abuse evaluation, treatment and disciplinary measures.

(4) Illicit Substances and Performance Enhancing Drugs are prohibited under these rules.

(a) An Illicit Substance is one that is illegal for the individual student-athlete to ingest, including but not limited to narcotic pain medications that have not been prescribed and street drugs like heroin, methamphetamines, cocaine, marijuana, T.H.C., or “ecstasy.”

(b) A Performance Enhancing Drug is one that gives a student-athlete an unfair advantage. The use of a Performance Enhancing Drug is a form of cheating. The use of such a drug also poses significant health and safety risks for the student-athlete and those in competition with the student-athlete. A current list of Performance Enhancing Drugs will be provided to each student-athlete before the start of the playing season or when the name of the student-athlete is first entered upon the team roster, whichever is later. The term “related compounds” means substances that are included in the class by their pharmacological action or chemical structure. No substance belonging to the prohibited class may be used, regardless of whether it is specifically listed.

(5) The Department has instituted a program of administrative drug testing by urinalysis or the analysis of a saliva sample for student-athletes engaged in intercollegiate athletics. The testing process may be initiated on the basis of individualized reasonable suspicion, pursuant to the random administrative testing protocols outlined in these rules, or on the basis of failing a laboratory-generated specimen-integrity test in the course of a previous test under these rules. A coach or administrator should communicate to the director of athletic medicine circumstances that give rise to an individualized reasonable suspicion. The circumstances giving rise to reasonable suspicion and the source thereof shall be recorded in writing by the director of athletic medicine who shall be the only person to authorize and initiate the drug testing process. This record shall be deemed a confidential record to the extent permitted by law and shall be kept in a secure place separate from and not a part of the student-athlete’s educational or medical records.

(6) “Reasonable suspicion” shall not mean a mere “hunch” or “intuition.” It shall instead be based upon a specific event or occurrence which has led to the belief that a student-athlete has used any drugs which are specified in OAR 571-004-0020(4) and which could have or could have had an effect during a period of organized practice, conditioning, or competition or during a period of counseling for substance abuse or, in the case of steroids, during any period of pre-season conditioning or weight training.

(a) Such belief may be engendered by, among other things, direct observation by coaches, trainers, the director of athletic medicine, or other appropriate personnel of physical or mental deficiency, medically indicated symptomology of tested-for drug use, aberrant or otherwise patently suspicious conduct, or of unexplained absenteeism.

(b) Such belief may also be engendered by, among other things, information supplied by reliable third parties, including but not limited to law enforcement officials, if the information is corroborated by objective facts, including but not limited to equivocal, contradictory, or unlikely and unsubstantiated explanation by the individual about whom the report is made or information which under the circumstances is credible based on specific articulable facts. Should information be proffered by law enforcement, prosecutorial or probation department officials, the University will use and act upon such information only if it obtains a written agreement that results of a potential test will not be used to prosecute or revoke parole for the use or ingestion of the drug disclosed by the test.

(c) Such belief may also be engendered by reasonable conclusions about observed or reliably described human behavior upon which practical people ordinarily rely.

(d) Such belief may also be engendered by a previous positive test under these procedures within the preceding twelve months.

(7) Random drug testing. Each student-athlete is subject to unannounced random drug testing throughout the entire calendar year. A student-athlete will be selected for testing using a random number system. Little or no notice may be given for a forthcoming test.

Stat. Auth.: ORS 351 & 352
Stats. Implemented: ORS 351 & 352
Hist.: UOO 7-1988(Temp), f. & cert. ef. 8-12-88; UOO 1-1989, f. 2-6-89, cert. ef. 2-9-89; UO 1-2011, f. 2-3-11, cert. ef. 2-7-11; UO 6-2012(Temp), f. & cert. ef. 9-4-12 thru 2-28-13

571-004-0025

Testing Method

(1) The standard method adopted by the Department for testing for drug use shall be through independent laboratory analysis of urine or saliva samples provided by the student-athlete. Urine specimens shall be collected in the proximity of a trained monitor of the same sex who is assigned for that purpose by the Department. Each sample will be collected as a split specimen, such that each tested student will have a sample A bottle and a sample B bottle of the specimen for testing.

(2) Results of the test shall be available only to the student-athlete, the head coach in the athlete’s sport, the athletic director, the director of athletic medicine and to others who have a legitimate educational, health or medical reason. This record shall be deemed a confidential record to the extent permitted by law and shall be kept in a secure place separate from and not a part of the student-athlete’s educational or medical records. Should any challenge to the test results, consequences of the test, or the test procedures be raised in relation to a particular student-athlete, other appropriate University officials may have access to the information in order to carry out their responsibilities in relation to the challenge. A record indicating that a student-athlete was tested and the basis for the decision to conduct the test shall be retained in the student-athlete’s medical file.

(3) Each student-athlete shall be provided with a copy of the rules describing the Athletic Department Substance Use and Drug Testing program before the start of the playing season or when the name of the student-athlete is first entered upon the team roster, whichever is later.

(4) The substances for which the student-athlete will be tested are any Illicit Substances or Performance Enhancing Drugs and their related compounds and derivative compounds.

(5) The student-athlete need not be given prior notice that a urine or saliva sample will be collected. A student-athlete who refuses to provide, including by failure to appear for a test, or impermissibly alters a sample during the testing process shall be deemed to be in violation of these administrative rules and shall be subject to sanction under these rules as if the test was positive. If a legitimate medical condition prevents the production of a urine sample, a saliva sample may be taken with a urine test performed the following day.

(6) Sample B Testing

(a) Any student-athlete whose sample A results in a positive test may request testing of sample B.

(b) The student-athlete must request the sample B testing within 72 hours of being notified that sample A test was positive. The request must be submitted in writing by the student-athlete to the director of athletic medicine. If requested, the director of athletic medicine will authorize the provision of the sample B bottle to an approved laboratory for testing. The Department may initiate temporary sanctions and corrective measures while awaiting results of the sample B test.

Stat. Auth.: ORS 351 & 352
Stats. Implemented: ORS 351 & 352
Hist.: UOO 7-1988(Temp), f. & cert. ef. 8-12-88; UOO 1-1989, f. 2-6-89, cert. ef. 2-9-89; UO 1-2011, f. 2-3-11, cert. ef. 2-7-11; UO 6-2012(Temp), f. & cert. ef. 9-4-12 thru 2-28-13

571-004-0030

Testing Protocol

The Department shall follow protocols required by the testing laboratory and the National Collegiate Athletic Association for testing student-athletes that respect the student-athlete’s reasonable expectation of privacy, minimize the chances of accidental error or cheating, and preserve the appropriate chain of custody and integrity of urine or saliva samples. A copy of the protocol shall be provided to each student-athlete along with a copy of the rules describing the Athletic Department Substance Use and Drug Testing program.

Stat. Auth.: ORS 351 & 352
Stats. Implemented: ORS 351 & 352
Hist.: UOO 7-1988(Temp), f. & cert. ef. 8-12-88; UOO 1-1989, f. 2-6-89, cert. ef. 2-9-89; UO 1-2011, f. 2-3-11, cert. ef. 2-7-11; UO 6-2012(Temp), f. & cert. ef. 9-4-12 thru 2-28-13

571-004-0038

Safe Harbor for Self-Reporting

(1) Any student-athlete may seek evaluation or counseling by contacting a coach, athletic trainer, director of athletic medicine or psychologist for the Department. The University will share this information only with persons who have a need to know, except to the extent that further disclosure is required by law. No Department sanctions will be imposed upon a student-athlete who has sought evaluation or counseling under this section. The student-athlete will receive counseling and education about substance abuse and undergo a mandatory assessment by a clinical psychologist to discern the severity of the student-athlete’s substance use and other factors that may influence the student-athlete’s recovery as required by OAR 571-004-0050(3)(a). The student-athlete may be required to attend additional sessions of counseling.

(2) A student-athlete who has sought evaluation or counseling under this section and completes the program required by OAR 571-004-0050(3)(a) shall be deemed to have completed the sanction for a first positive test under OAR 571-004-0050(3)(a) or OAR 571-004-0050(4)(a), at the election of the Department. Accordingly, if the student-athlete tests positive for an Illicit Substance or Performance Enhancing Drug after taking advantage of the remedies in this safe harbor provision, the student-athlete will start at the sanction level outlined in OAR 571-004-0050(3)(b) or OAR 571-004-0050(4)(b), at the election of the Department.

(3) This rule may not be invoked after a student-athlete is notified of an impending drug test.

(4) A student-athlete invoking this rule may be temporarily medically ineligible during any period that he or she is deemed by the team physician unfit to continue participation safely.

(5) This rule does not prevent the NCAA from testing a student-athlete. A student-athlete remains subject to sanctions imposed by the NCAA in the event of a positive drug test.

Stat. Auth.: ORS 351 & 352
Stats. Implemented: ORS 351 & 352
Hist.: UO 6-2012(Temp), f. & cert. ef. 9-4-12 thru 2-28-13

571-004-0050

Positive Test Results Sanctions

(1) The director of athletic medicine, the athletic director, the head coach, and other appropriate personnel shall review a positive test result and shall, bearing in mind the type of drugs identified, the recency of use, and the medical, safety and performance-enhancing effects of the use, formulate an appropriate program for the student-athlete. Such program shall include abstention from further use and periodic retesting and may include counseling, reduced playing time, and withdrawal from drills, scrimmages, or competitions. The program shall also describe potential sanctions for repeated use or abuse of substances for which tests are conducted. However, a student-athlete may be dismissed from the team and lose all athletic financial aid, beginning with the next academic term after a single positive test result.

(2) Repeated positive tests, admissions, or other information that disclose continued use of Illicit Substances or Performance Enhancing Drugs may cause a student-athlete to be dismissed from the team and lose all athletic financial aid beginning with the next academic term. A student-athlete who refuses to provide a urine or saliva sample as part of the testing process, by failing to appear for a test or otherwise, shall be deemed to have provided information that discloses use of Illicit Substances or Performance Enhancing Drugs.

(3) Illicit Substances. If the student-athlete tests positive for the use of an

Illicit Substance, the sanctions will be consistent with the sanctions listed in this subsection. These sanctions define the least severe sanctions that may be taken after each positive test. Notwithstanding the sanctions outlined in this subsection, if concluded to be appropriate, a student-athlete may be dismissed from the team and lose all athletic financial aid after a single positive test.

(a) First positive test. The student-athlete will receive counseling and education about substance abuse. The student-athlete will undergo a mandatory assessment by a clinical psychologist to discern the severity of the student-athlete’s substance use and other factors that may influence the student-athlete’s recovery. If concluded to be necessary, the student-athlete may be referred for additional sessions of counseling.

(b) Second positive test for the same or a different Illicit Substance. A formal behavior modification contract will be produced by the director of athletic medicine. The athletic director shall have discretion to approve the behavior modification contract or require that terms be added. Upon approval by the athletic director, the behavior modification contract shall be reviewed and signed by the head coach and the student-athlete. A copy of the behavior modification contract will be kept on file with the director of athletic medicine. The behavior modification contract will define the behaviors expected from the student-athlete and the consequences for noncompliance.

(c) Third positive test for the same or a different Illicit Substance. The student-athlete will be immediately ineligible for competition. The student-athlete will remain ineligible until he or she has missed the equivalent of 50% of a season.

(d) Forth positive test for the same or a different Illicit Substance. The student-athlete will be dismissed from the team and lose all athletic financial aid, beginning with the next academic term, to the extent permitted under NCAA rules.

(4) Performance Enhancing Drugs. If a student-athlete tests positive for the use of a Performance Enhancing Drug, the sanctions will be consistent with the sanctions listed in this subsection. These sanctions define the least severe sanctions that may be taken after each positive test. Notwithstanding the sanctions outlined in this subsection, if concluded to be appropriate, a student-athlete may be dismissed from the team and lose all athletic financial aid after a single positive test.

(a) First positive test. A student-athlete who tests positive for the use of a Performance Enhancing Drug is ineligible to represent the University in intercollegiate competition during the time period starting with the date of the positive drug test and ending one calendar year later. In addition, the director of athletic medicine will determine a management plan for the student-athlete which will include education or counseling. A first positive test result for a Performance Enhancing Drug is also deemed to be a first positive test for an Illicit Substance.

(b) Second positive test for the same or a different Performance Enhancing Drug. A student-athlete who tests positive for the use of the same or a different Performance Enhancing Drug shall be declared permanently ineligible for intercollegiate competition. The student shall be immediately and permanently dismissed from the team and all athletic financial aid shall be terminated beginning with the next academic term, to the extent permitted under NCAA rules.

(5) Failure of a student-athlete to comply with a treatment plan, management plan or behavior modification contract mandated under these rules may result in immediate suspension from all practices, games and Department functions until the director of athletic medicine determines sustained compliance with the treatment plan, management plan or behavior modification contract. If the director of athletic medicine determines that the student-athlete is not in compliance after one competitive season for the sport, the student-athlete will be immediately dismissed from the team and all athletic financial aid shall be terminated beginning with the next academic term, to the extent permitted under NCAA rules.

(6) Selling or Providing Illegal Drugs. Any student-athlete convicted of or otherwise found responsible for selling or providing an illegal drug to another person is subject to immediate and permanent dismissal from any team on which the student-athlete participates and, to the extent permitted under NCAA rules, the termination of any athletic financial aid.

(7) A student-athlete who loses athletic financial aid under these rules may appeal that decision under the established procedures regarding non-renewal of financial aid.

Stat. Auth.: ORS 351 & 352
Stats. Implemented: ORS 351 & 352
Hist.: UOO 1-1989, f. 2-6-89, cert. ef. 2-9-89; UO 1-2011, f. 2-3-11, cert. ef. 2-7-11; UO 6-2012(Temp), f. & cert. ef. 9-4-12 thru 2-28-13

571-004-0055

Records Security

(1) The purpose of the administrative testing program established by these rules does not include enforcement of the criminal laws or the Student Conduct Code.

(2) The University in conducting the testing program is not acting in aid of, or as an agent for, law enforcement officials, nor are those administering the tests acting as, for, or on behalf of the Division of Student Affairs. The Student Conduct Code applies to drug or substance use by a student-athlete only under the same circumstances as other students.

(3) Test results are part of a student’s educational and medical records protected from disclosure under state and federal law. However, records may be subject to disclosure pursuant to a lawfully issued subpoena or court order. In such an instance, the University will take reasonable steps to notify the record-subject in advance of compliance with any such subpoena or order. The University or the record-subject may move the court or agency to quash any portion of the subpoena which pertains to drug testing records or to withdraw or narrow any such court order.

Stat. Auth.: ORS 351 & 352
Stats. Implemented: ORS 351 & 352
Hist.: UOO 7-1988(Temp), f. & cert. ef. 8-12-88 UOO 1-1989, f. 2-6-89, cert. ef. 2-9-89; UO 1-2011, f. 2-3-11, cert. ef. 2-7-11; UO 6-2012(Temp), f. & cert. ef. 9-4-12 thru 2-28-13

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

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Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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