Then, Tullos confronted the Sample Collector in the presence of another witness and when Tullos asked her point blank if she told him his leaving the facility would constitute a refusal to test, the Sample Collector said: I dont remember, but I dont think so.113 Tullos further testified that he had not seen the regulation that if he left the test site that would be considered a refusal.114 His memory about training at Net Jets was that they covered flight and duty time regulations, the use of supplemental oxygen, documentation of flight logs and related materials.115. (e) Any test information obtained by the Administrator under paragraph (c) or (d) of this section may be evaluated in determining a person's qualifications for any airman certificate or possible violations of this chapter and may be used as evidence in any legal proceeding under section 602, 609, or 901 of the Federal Aviation Act of 1958. Reddit and its partners use cookies and similar technologies to provide you with a better experience. The Complainant (FAA) simply has not sustained his burden of proof by a preponderance of the reliable evidence that the respondent knew the urine sample was adulterated by the placing of a surfactant into that sample. Official websites use .govA .gov website belongs to an official government organization in the United States. That problem being that he had enough alcohol to be twice the legal limit and still thought it was fine to go out and drive a car instead of walking home. .%6-$KXd/! FAA is a dick. This notification letter must be submitted within 60 days of the date of conviction. 5/25/2017 Successfully completed the JPDA Program with no infractions and clear final hair-analysis. The circumstances here and the evidence lead me to feel that the more credible evidence rests on the side of the respondent and that I would find on that basis that the testing procedure, collection procedure, was done by Mr. Jordan on September 22nd at the end of a busy day at about 5:00 may have been speeded up and done in the manner as testified to by the respondent and the two witnesses called by the respondent and, therefore, the respondent has raised sufficient doubt as to preclude a finding on a preponderance of the evidence that he knew that an adulterant had been placed in the sample or that he in fact placed the adulterant there. The previous version, however, required a one year wait period from the effective date of the order before an individual could apply for a new certificate. Again, it appears to me that that is asking me to apply a strict standard of liability in this case. She had received a one day training course on urine and drug testing procedures and had been on the job for about one month when Tullos came in for his random drug test. The definition of refusal incorporates 49 C.F.R. Feel free to DM me. Ugh! While hair testing samples may be admissible in evidence, because hair testing may not reveal a single instance of illicit drug use, the judge may give more weight to the urine test than the hair sample test. Recovering Alcoholic Airmen and Medical Certification Standards The Federal Air Surgeon's Column Editorial, by Jon L. Jordan, MD, JD Almost 7% of the 344 general aviation pilot fatalities in 1994 were found at postmortem to have tissue levels of alcohol at 0.04% or higher. If AME's are not certain about the appropriate action, they will contact the FAA Regional Flight Surgeon or the FAA Aeromedical Certification Division for advice. My son is going to college for aviation with hopes of being a commercial pilot like his dad. During post-accident drug testing, the airman submitted a urine sample collected at Cranston/Dottin Laboratory in St. Thomas, the sample being submitted to One Source Toxicology Laboratory, with a positive findings for cocaine on December 2, 2003. I therefore find that the complaint, the Emergency Order of Revocation herein, must be set aside and vacated on the finding that the Complainant has no sustained his burden of proof herein. The OMB Control Number for this information collection is 2120-0543. He has been off his meds for about 6 months. There is an online form that you can download and submit to the security division. The intent of the regulation is clear, to deprive airmen of the ability to defend themselves in shy bladder cases if they cannot provide a 45mL specimen of urine within three hours. At the hearing, Dr. Keller, the Medical Review Officer, testified that the federal testing protocols were followed. A written report received after 60 days, but before we discover the MVA, is normally considered a mitigating factor when determining sanction. Driving with an Unlawful Blood Alcohol Level. Arrests, administrative actions, and convictions are also reportable under Part 67, the airman application for a medical certificate. This position is covered by the Department of Transportation's Drug and Alcohol Testing Program. Jordan could only testify about his habit and practice in administering drug tests. Ah-hahahahhahahahahaha. Federal Aviation Administration Individuals are eligible for the policy if there is no basis other than that presented by the 14 CFR 67.403(a) (or 14 CFR 61.15, if applicable) violations to question their qualification to hold a part 61, 63, or 65 certificate and the FAA has found they have not previously violated 14 CFR 67.403(a)(1)-(4). Judge Geraghty, in rendering his initial decision, reasoned that the burden of proof was on the Administrator to prove Petersen knowingly introduced the adulterant; and the burden was not on Petersen to explain how the contaminant (surfactant) got into the urine specimen.47 Judge Geraghty noted that there was evidence the tops were off the collection bottles when the airman entered the testing facility, and he noted: How the contaminant got into the particular samples given by the respondent is not something I need to resolve here. hydraulic fluid to which he was exposed on the day of the incident could have caused the positive test result for cocaine metabolites. Nothing wrong with that and it doesn't make them a bad person (I am not saying that excuses drunk driving). The fact that a sample that was out of temperature and is inadequate in volume is dispatched to the laboratory while a benign sample with inadequate volume is discarded is further proof of the FAAs intent to deprive the airmen of exculpatory evidence to prove they did not have drugs in their system, simply because they could not provide a 45mL sample of urine. So, the FAA has made it clear time and time againthat if the sample might exonerate the pilot it will be destroyed. See Q8 on the BasicMed FAQ. Why would the FAA direct a Sample Collector to discard a sample that may prove the airman had no drugs in his system? Distribution Statement Medications, Drugs, Aviation, Safety, Fatal, Pilots Document is available to the public through the The HHS NPRM provided that, if adopted, the new rules would permit agencies to use hair testing for pre-employment, random, return-to-duty, or follow up testing.. FAR 61.15 (d) - FAA enforcement action against all certificates for two DUIs in three years; 3. (The MRO may perform this evaluation if the MRO has appropriate expertise. Edit: January. Thank you so much! Secondly, the airman maintained that the urine tests were in error. He was selected for random drug testing, but was not able to provide a sufficient quantity of urine for the test.78 The Sample Collector told Pasternak to remain in the waiting room until he could provide another specimen.79 Pasternak told the Sample Collector he had a scheduled business meeting and he needed to leave the collection site. Submit Airman Drug and Alcohol Personal Statement and copy of BAC (if available) to the FAA for retention in the file. The incident was subsequent to an over-indulgence at Christmas get-together of friends and former co-workers in New Orleans and happened less than mile from home. You have the right to request the Sample Collector provide his or her identification. This amended policy will still ensure that eligible individuals promptly receive an emergency order of revocation, but the order will allow them the opportunity to apply for a new airman or ground instructor certificate after nine months from the effective date of the order. I do not know of any other case in which the Board finds 40.191(a)(2) to be a strict liability standard. Note that an agency may not conduct or sponsor, and a person is Nicole is also a gifted entrepreneur. indicates that an airman relying upon a hair test result may employ it as part of his affirmative defense. . +t0^Xg5R8$%81$wGt`h,KRrx%f0^ilf8U;#\a*LvZ/T$L$qSYoIJ g,X. Due to aggressive automated scraping of FederalRegister.gov and eCFR.gov, programmatic access to these sites is limited to access to our extensive developer APIs. 800 Independence Avenue, SW Based upon the record before him, Administrative Law Judge Montao found that the Sample Collector, Ms. Ebersol, failed to tell Tullos that if he left the lobby of the testing facility or left the building, it would be considered a refusal to test. The Administrators argument is that the regulation trumps all testing procedure, training, policy, and what should be controlling, of course, is the regulation. Airline HIMS Chairs will be advised of HIMS AMEs not in compliance at that time. Part 120. I went through it my self a few decades ago and it involved a review of all of my medical records, a psychological test, and an MRI (for other issues) to finally get my first class medical issued. 40.191(a)(2) [failing to remain at a testing facility]; and 49C.F.R. Pasternak was a physician and also a part-time pilot. I do not know all the details, but everything turned out fine. If an airman requires monitoring they should establish with a HIMS (Human Intervention Motivation Study) trained AME (HIMS AME) to help them work through the FAA process. FAA 8100-9 Statement of Compliance with Airworthiness Standards AIR-600 2002-02-01 . Do I have to report anything other than alcohol and/or drug related convictions? Federal Aviation Administration Oklahoma City, OK 73125 September 2011 Final Report Drugs and Alcohol in Civil Aviation Accident Pilot Fatalities From 2004-2008 DOT/FAA/AM-11/13 . Washington, DC 20591 This is not an innocent or unforeseen mistake on the part of the FAA in promulgating its drug testing rules. It is remotely possible (but unlikely) that I may fly again by January. Use our Inspection Guide to help prepare for an inspection of your drug and alcohol testing program. By accepting all cookies, you agree to our use of cookies to deliver and maintain our services and site, improve the quality of Reddit, personalize Reddit content and advertising, and measure the effectiveness of advertising. The samples listed below are intended to help an employer or contractor meet the FAA's drug and alcohol testing program requirements. According to the testimony in the record, the Sample Collector never told Pasternak that his departure from the testing facility would be deemed a refusal to test. 91.17 Alcohol or drugs. 120.7. The Sample Collector told Pasternak to remain in the waiting room until he could provide another specimen. Conversely, if the sample will or may incriminate the pilot, the evidence is to be preserved. The FAA random testing rates in 2019 are as follows: 25% of safety-sensitive workforce for drugs 10% of safety-sensitive workforce for alcohol First, the airman asserted that Judge Pope failed to afford any weight to the hair analysis evidence. ", OK, maybe not a drinking problem, but how about he had a problem when he was drinking? 40.61(b). However, he provided an insufficient quantity of urine. (4) While having an alcohol concentration of 0.04 or greater in a blood or breath specimen. Then, the original specimen that was out of temperature range and the new specimen are sent to the laboratory for analysis. Ebersol, the Sample Collector, told Susan Snyder, the Anti-Drug and Alcohol Program Manager, that she had told Tullos he could not leave the testing site, the Sample Collector testified that she did not recall telling Tullos he could not leave the lobby and she did not remember telling him he could not leave the building. The cases and authorities discussed in this article demonstrate the troubling andperplexing nature of drug testing in drug testing and litigation. Hopefully, the contents of this article will allow airmen and their counsel to achieve just and informed outcomes in litigation brought by the FAA asserting the airman refused to submit to or failed a drug test. Claims Against Operators of Public Use Airports, Why The County Finally Gave Up Its 20 Years Fight to Ban Jets at Lantana Airport, Petition for Review of a Decision of the Federal Aviation Administration, United States Court of Appeals for the District of Columbia. good luck I know how bad this must suck. The FAA brought an emergency order of revocation on the theory Petersen refused to submit to a drug test by knowingly contaminating the test. 6/5/2017 Received letter from JPDA advising successful completion of the Program and that the DWI charges would be refused and would not be prosecuted. He informed the donors they could use the cup or the two bottles (splitting the samples). However, all drug- and/or alcohol-related arrests must be reported whenever the next application for medical certificate, FAA Form 8500-8, is made. Box 25810 An airman who has provided a sample of less than 45mL of urine that was discarded and over a three hour period was unsuccessful in providing a 45mL sample will then be directed by the MRO of the facility within five days of the evaluation to report to a licensed physician, acceptable to the MRO, who has expertise in the medical issues raised by the employees failure to provide a sufficient specimen. Any additional drugs/substances used in the airman's lifetime (This includes marijuana even if allowed in some states, illicit drugs, prescription medications, or . 91.17 Alcohol or drugs. Snyder, the Net Jets Anti-Drug and Alcohol Program Manager admitted that her PowerPoint Presentation did not state that leaving the collection site or failure to remain at the collection site constitutes a refusal to test. Examining airmen for initial certification and continuing competence; . He went to get his medical and told them he had taken ADHD medication in the past. He orally advised the donors to wash their hands. In terms of the discretion exercised by the Medical Review Officer (MRO) and the referral physician, 49 C.F.R. The airman asserted as an affirmative defense a hair test result taken two weeks and ten days after the urine test; and the hair test results demonstrated no signs of drugs in his system at the time of the urine test. If an individual is eligible for prompt settlement, an FAA Office of the Chief Counsel attorney will send the individual a formal agreement setting forth the conditions for prompt settlement, including those enumerated above. The language in 40.193(b)(1) requiring the Sample Collector to discard a specimen of insufficient quantity unless it is incriminating is essentially the same language that appears in 40.65(a)(2). 14 C.F.R. He just received a letter from the FAA saying he hasnt been denied but they need a personal statement in his own words about his ADD and his medical records. Submittal of hair-analysis samples (beginning, mid, and final 90-days). "%aZ^yyy'U9M% )cHvvYjl zBBDGZN@%"-&HW,Z="G 4%])cZEX"z}v@OD/E7T'-QtID-hpE##.]x($IL>FXGR[d`D91Rd ! Anyone who is "fine" at .15 is an all-star drunk. This should only be necessary once for each IP address you access the site from. ( a) No person may act or attempt to act as a crewmember of a civil aircraft - ( 1) Within 8 hours after the consumption of any alcoholic beverage; ( 2) While under the influence of alcohol; ( 3) While using any drug that affects the person's faculties in any way contrary to safety; or Use this sample form to notify an individual of their requirement to submit to a pre-employment drug test before they are hired or transferred into a safety-sensitive position. You must report all violations by an individual that holds a part 67 certificate to the FAA within 2 working days after the violation. Rather, he considered the testimony and found the urine sample was collected and tested by a certified laboratory in accordance with federally-established standards that no federal standards or laboratory certifications had yet been established for hair analysis, and that hair analysis was more useful for detecting chronic drug use and would not detect a single incident of cocaine use.141 Judge Pope, after weighing and considering all of the evidence, gave more weight to the urine test results than to the hair test results.142 The NTSB found there was no basis for the airmans assertion that Judge Pope misunderstood the evidence on hair testing. In the event the employer of the airman receives a report from the MRO that the test was cancelled, then no further action is taken with regard to the airman who remains in the random drug testing pool. The NTSB, in affirming the initial decision of Judge Pope noted that the airman had not presented any evidence to show his sample may have been contaminated or mixed up or any scientifically reliable to support his theory that exposure to hydraulic fluid or PABA could have caused a false positive in a urine test for cocaine metabolite. 120.5 Procedures. Not surprisingly, 40.193(a) like 40.65(a), requires the airman to provide a sample of 45mL of urine. 1. Use this suggested form to obtain authorization for the release of drug and alcohol testing records from a new safety-sensitive employee, and to request the employee's drug and alcohol testing records from a previous DOT-regulated employer. An applicant may obtain a list of aviation medical examiners from the FAA Office of Aerospace Medicine homepage on the FAA Web site, from any FAA Regional Flight Surgeon, or by contacting the Manager of the Aerospace Medical Education Division, P.O. I found the testimony of the Respondent to be credible. You are not required to use the sample forms and policies, and you may edit them to fit your needs. 40.63(b). https://pilot-protection-services.aopa.org/news/2018/february/01/adhd-and-the-faa. It was not, as respondent claims, incumbent on the FAA to produce scientific evidence showing that hydraulic fluid cannot adulterate urine to make it appear to obtain cocaine. To the contrary, a respondent has the burden of proving an affirmative defense. Would love to see a copy of a letter that the FAA approved! They have one job: Cover their own asses. You are not required to use the sample forms and policies, and you may edit them to fit your needs. CONSEQUENCES OF USING DRUGS WHILE PERFORMING SAFETY- Dr. Caplan testified that the Department of Health and Human Services (HHS) had issued a Notice of Proposed Rule Making (NPRM) proposing to allow testing of hair, sweat, and oral fluids in addition to urine which is already authorized by the Federal Workplace Drug Testing Programs. The airman further asserted that the FAA did not disprove the possibility that. 1 0 obj HmmI think we will have to agree to disagree on this subject, but I don't quite extrapolate that the guy has a "drinking problem". On December 9, 2003, the Medical Review Officer, Dr. Wayne Keller, verified the positive test result.124 Since the sample was split, the airman had the remaining sample submitted to Lab Corp in San Diego, California which again found a positive test result for cocaine.125 From the time the airman was notified on December 5, 2003, up to and including the date of the notice of emergency order of revocation, the airman did not provide any letter or explanation from a doctor or a dentist that could explain the positive test result or that reverse the positive result to a negative result.126, The airman asserted as an affirmative defense a hair test result taken two weeks and ten days after the urine test; and the hair test results demonstrated no signs of drugs in his system at the time of the urine test.127, At the hearing, Dr. Keller, the Medical Review Officer, testified that the federal testing protocols were followed.128 Dr. Keller further testified that he offered TaYlor the opportunity to provide a medical explanation for the positive results.129 In response to Dr.Kellers request for an explanation, Taylor told Dr. Keller he used vitamins, PABA, ephedra, poppy seed food products, flu and pneumonia vaccinations, and he was exposed to hydraulic fluid at the time of the landing incident.130 However, Taylor never provided Dr. Keller with any documentation or medical evidence to show that any of those things could have resulted in the positive urine test for cocaine.131, The Administrator presented the testimony of Dr. Yale Caplan who stated that hair sample analysis has not yet been approved for use in federal drug testing programs.132 Dr. Caplan testified that the Department of Health and Human Services (HHS) had issued a Notice of Proposed Rule Making (NPRM) proposing to allow testing of hair, sweat, and oral fluids in addition to urine which is already authorized by the Federal Workplace Drug Testing Programs.133 The HHS NPRM provided that, if adopted, the new rules would permit agencies to use hair testing for pre-employment, random, return-to-duty, or follow up testing.134 The NTSB, while considering the status of the HHS NPRM, noted that it did not mention hair testing as an appropriate method for reasonable suspicion/cause testing or post-accident testing.135 Dr.Caplan testified that because a ninety-day hair growth was the standard sample size, a limited or single instance of drug use during that period would be so diluted that it would be undetected by such a test.136 In light of the science on the subject matter, it was the opinion of Dr. Caplan that a positive urine test followed by a negative hair analysis test were not necessarily inconsistent, unless the airman was a chronic user.137 The NTSB, in affirming the initial decision of Judge Pope noted that the airman had not presented any evidence to show his sample may have been contaminated or mixed up or any scientifically reliable to support his theory that exposure to hydraulic fluid or PABA could have caused a false positive in a urine test for cocaine metabolite.138 The Board noted that Judge Pope reasoned that the negative hair test results offered by the airman were not sufficient offset the urine test results.139 Further, Judge Pope found the testimony of the airman was not credible and entirely unconvincing to the extent the airman testified he did not know how the cocaine got into his urine.140.