The law does not require that the agency create a sleep apnea rule. It does, however, require that any action taking on regulating sleep apnea screening come via formal rulemaking process and not guidance, as the agency had hinted it planned to do.
The House first introduced the bill in early September. One of the bill’s sponsors, Rep. Larry Buschon (R-Md.) circulated a letter to House colleagues at the same time saying the FMCSA plan to use guidance alone would prevent the industry and the public from having the ability to properly evaluate the rule and take part in the process.
“In the interest of due process,” the letter said, any action FMCSA takes should come in the form of a rule. Guidance also, the letter said, would make carriers vulnerable to lawsuits.
Less than two weeks after the bill was introduced, however, FMCSA did release a statement saying it would use the rulemaking process and not guidance.
Regardless, the House passed its version Sept. 26, and the Senate passed a version last week.