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. He informed the donors they could use the cup or the two bottles (splitting the samples). He sealed the bottles and put a piece of tape on the top. Share sensitive information only on official, secure websites. I have no arrests (other than the one reported here), stops, accidents or other alcohol-related police action in my. A lock ( LockA locked padlock ) or https:// means youve safely connected to the .gov website. Both Pasternak and Tullos involve situations where the airman left the drug testing facility. This includes a suspension based on either failing a blood/breath test OR refusing to submit to a blood/breath test regarding an incident of operating a motor vehicle under the influence. This is a refusal to test. If you have any questions, please contact us at (202) 267-8442 or drugabatement@faa.gov. "|HGHbBiBk IrLnP,BrXE=i1xsT(U@dR(_bKJBI 88\)K ZZ8#>5pu%9*`U_oRQQsQJn-J+%"_y$adv+4brB 90r9O%uI:B. 1 (D.C. Cir. The question is whether or not this test was performed in a way which would preclude a reasonable probability that the adulterant could have been introduced in a manner other than by the respondent. Going the abstinence route is a small price to pay to keep your ticket. Report the MVA as soon as you become aware of the reporting requirement. We in the Office of Aerospace Medicine are concerned that many 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. What substance(s) were involved; c. State or locality or jurisdiction where the incident occurred; d. Date of the arrest, conviction, and/or administrative action; e. Description of . It takes 9 drinks in an hour for a 220-pound male to get to .15. (4) While having an alcohol . This position is covered by the Department of Transportation's Drug and Alcohol Testing Program. If the airman fails to provide 45mL of urine, he has thereby engaged in conduct that constitutes a refusal unless there is an adequate medical explanation for the failure. U.S. News & World Report's Best Lawyers in America also recently named Doug to their prestigious 2023 " Lawyer of the Year " list for Houston DWI defense. The regulations relied upon by the Administrator were 49 C.F.R. They also restrict pilots from "flying or attempting to fly an aircraft within 8 hours of consuming alcohol or if they have an alcohol concentration of 0.04 percent or greater, " according to . When the Medical Review Officer learned that Pasternak had left the testing site, he concluded that Pasternak had refused to submit to a DOT drug test. Then, Ms. Snyder, along with the Director of Labor Relations, got on the phone and spoke with the Sample Collector who told Snyder that she had told Tullos he could not leave the collection site. I do not believe he was told not to leave the test site by Ms.Ebersol and the training he received at Net Jets certainly did not inform him of that prohibition. , which dealt with the issue of whether a collector had specifically informed, in case this case Dr. Pasternak, that his departure from the testing facility would be deemed a refusal. Along with Tullos, two Net Jet Pilots testified about their training and experience at Net Jets dealing with drug testing. He put the temperature tapes on the bottles. <> ", OK, maybe not a drinking problem, but how about he had a problem when he was drinking? The FAA requires pilots to report drug- and/or alcohol-related motor vehicle actions (MVA) to the agency's Security and Hazardous Materials Safety Office, Regulatory Investigations Division. Any applicant tentatively selected for this position will be subject to pre-employment or pre-appointment drug screening. 120.7(o) [refusal to submit to a drug test]. In light of the Boards pronouncement in Peterson, the airman will be well-advised to make himself conversant with the procedures to be followed in a drug testing setting and note any departures from drug testing protocols in the administration of the test by the Sample Collector. Judge Geraghty found that the FAA, in ignoring the statements of Petersen and the two other mechanics, failed to thoroughly and properly investigate the case and proceeded with the prosecution based upon a case that was weak or tenuous. The FAA appealed the award of attorneys fees in favor of Petersen in Todd S. Petersen v. David R. Hinson, Administrator, Federal Aviation Administration.53 The NTSB affirmed the award of attorneys fees in favor of Petersen with the proviso that fees incurred by Petersen before the issuance of the complaint should be disregarded.54 In rendering its decision the NTSB made this striking observation: While we might not have the same view had this issue arisen in another context (and to comment generally would be merely dicta), we review government imposition of drug testing programs and government use of drug testing results to carry a special, heightened, obligation. While having a breath alcohol concentration of .04 or . "%aZ^yyy'U9M% )cHvvYjl zBBDGZN@%"-&HW,Z="G 4%])cZEX"z}v@OD/E7T'-QtID-hpE##.]x($IL>FXGR[d`D91Rd ! Not surprisingly, 40.193(a) like 40.65(a), requires the airman to provide a sample of 45mL of urine. You are not required to use the sample forms and policies, and you may edit them to fit your needs. `@S)lV@*avRez@w`c$\ Y*>K1V@ JmZ"%$c])WC)`. The Sample Collector is instructed by the regulation to discard any sample that is less than 45mL, In other words, a sample that could prove the airman is not under the influence of drugs must be destroyed in order that the FAA can bring charges claiming that he refused to submit to a drug test because he could not urinate on command. Federal Aviation Administration Security and Investigations Division AMC-700; P.O. Federal Aviation Administration This community is for discussion among pilots, students, instructors and aviation professionals. Being drunk and operating things which can kill you is a bad idea. THE PASTERNAK CASE TWO APPEALS FROM NTSB DECISIONS TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, The case of Pasternak v. National Transportation Safety Board,77 involves the shy bladder protocol discussed previously. He was diagnosed with a possible ADHD diagnosis at age 10 and took meds off and on until his senior year in high school. You must report all refusals by any individual that holds a part 61, 63 or 65 certificate to the FAA within 2 working days after the violation. I think it would be very easy to paint a lot of folks like this guy with a broad stroke. FAA CERTIFICATION AID - Drug and Alcohol INITIAL (Page 1 of 6) (Updated 03/28/2018) The following information is to assist your treating physician/provider who may be unfamiliar with FAA medical certification requirements. In terms of the discretion exercised by the Medical Review Officer (MRO) and the referral physician, 49 C.F.R. Although the Sample Collector told Ms. Snyder the Anti-Drug and Alcohol Program Manager at Net Jets that she did tell Tullos if he left the facility it would be a refusal to test, she contradicted herself and admitted she did not recall telling Tullos he could not leave the lobby or the building. My personal advice is to be contrite in the letter. The FAA drug and alcohol testing regulation (14 CFR part 120) does not apply when an individual self-discloses a substance abuse problem to his or her employer before a violation of the regulations has occurred. It was an important issue for the ALJ in the case. When was the last time you had 9 drinks in an hour? I've been waiting for over a month to get my medical. COMMUNITY SERVICE HOTLINE . To be clear, an airman who cannot provide a 45mL sample of urine within three hours has refused the drug test unless there is an adequate medical explanation for the failure. (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. The discussion of what information was provided by the collector to Dr. Pasternak is discussed at length. First of all, medical conditions are not defined anywhere in these regulations. The FAA proposes to amend the airman medical certification standards to disqualify an airman based on an alcohol test result of 0.04 or greater breath alcohol concentration (BAC) or a refusal to take a drug or alcohol test required by the Department of Transportation (DOT) or a DOT agency. 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. x\{oH6]D\,p7O^#-,$yg}~~PD)b4~TYLLgBd,3I2SL9+2-LL[3k\&LV*6$n(*, variability in response to alcohol is a sign of tolerance! The MRO in referring the airman to the referral physician merely relates to the referral physician that the airman was unable to provide a sufficient amount of urine, advises the referral physician of the consequences of the appropriate DOT agency regulation for refusing the required drug test, and the referral physician must agree to follow the requirements of Paragraph (d) through (g) of 49 C.F.R. 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. . There is sufficient doubt raised by the evidence in front of me that the manner in which the samples were collected on that particular day left the collection process open to the reasonable inference that a soap adulterant could be introduced into the bottles in a manner other than a knowing placing there by respondent. Tolerance and denial. As a result of such a disclosure, there are no specific tests or processes required under the regulation. .*_b (p%XYS_ . TESTING INFORMATION FOR FAA DRUG TESTING . Generally, the Collector is not allowed to go into the restroom with you. With regard to the respondents second argument that the evidence showed the urine tests were in error, the airman argued that drug impairment was inconsistent with his flying skills during the emergency landing, that he was praised by witnesses for his performance, that his Principal Operations Inspector was surprised the positive test results, and that respondent voluntarily submitted to the urine test. https://pilot-protection-services.aopa.org/news/2018/february/01/adhd-and-the-faa. No legal issue or problem is too small or too large for The Ison Law Firm. The training requirements for a Department of Transportation Sample Collector are fairly rudimentary. The FAA random testing rates in 2019 are as follows: 25% of safety-sensitive workforce for drugs 10% of safety-sensitive workforce for alcohol Describe for each: a) Frequency of use; b) Amount used; c) Setting in which used; and This position is covered by the Department of Transportation's Drug and Alcohol Testing Program. x[{sHG#[[S67L*vnJ)6|| RDh4@?lQRU The burden is on the complainant to show that the respondent knew it had been adulterated. It is an important issue certainly for the appeal. It lists the ABSOLUTE MINIMUM information required by the FAA to make a determination on an airman medical certificate. Taylor indicates that an airman relying upon a hair test result may employ it as part of his affirmative defense. Tullos testified that he did sign a Net Jets Training Sheet, but he did not believe it pertained to him, since he did not have a drug problem and rarely drank. the Administrator brought a revocation action against the airmans airline transport certificate and his first class medical certificate because he allegedly left the drug testing site without having been told by the Sample Collector that his leaving the site would be considered a refusal to test. Online/Written Notification Letters 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. They have one job: Cover their own asses. If the employee has not provided a sufficient specimen within three hours of the first unsuccessful attempt to provide the specimen, you must discontinue the collection, note the Remarks line of the CCF (Step 2), and immediately notify the DER. What type of offense occurred; b. SE-14007 (hereinafter , 1995WL702463 (N.T.S.B. Accordingly, the Administrative Law Judge found that the Net Jet training materials did not really inform Tullos that if he left the testing site during the shy bladder procedure it would constitute a refusal to test.120 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.121 In overruling the Administrators Order of Revocation and finding in favor of Tullos, Judge Montao made the following observations in his Decision: This case is not controlled by a strict liability standard, so his knowledge of the statute is something that I may consider. However, if the sample is inadequate in volume, it is still preserved if it may evidence deceptive conduct on the part of the airman. (b) Except in an emergency, no pilot of a civil aircraft may allow a person who appears to be intoxicated or who demonstrates by manner or physical indications that the individual is under the influence of drugs (except a medical patient under proper care) to be carried in that aircraft. I kind of had this same problem, I talked with my ame, and he told me to go talk to a physiatrist and get a letter saying he would feel safe to fly with me. The underlying disease has an equal and often greater influence upon the determination of aeromedical certification. Use this sample reporting form to inform the Drug Abatement Division of non-DOT/FAA alcohol-related conduct by a part 67 medical certificate holder. 40.191(a)(2) [failing to remain at a testing facility]; and 49. This position is covered by the Department of Transportation's Drug and Alcohol Testing Program. Generally speaking, as one reviews these regulations, you come to the realization that unless the airman had a documented medical history in the past of not being able to urinate or having a medical condition making urination problematic, then the FAA is by regulation going to dictate to the medical review officer and to the referral physician that they render a finding that the airman refused to submit to a DOT drug test. I'm not sure how else to explain it. Reddit and its partners use cookies and similar technologies to provide you with a better experience. Furthermore, the Net Jets PowerPoint Presentation said nothing about the shy bladder procedure. Washington, DC 20591 Upon receipt of an executed agreement, an FAA attorney will issue the emergency order of revocation. He returned a few hours at which time he provided a sample that tested negative for drugs. 40.193. Make no mistake: substance abuse affects your mind, body, and your future. I cannot find that the Administrator has established the grounds for revocation of respondents ATP, airline transport certificate or his first class airman medical certificate.122, THE TAYLOR CASE HOW THE NTSB LOOKS AT HAIR SAMPLE TESTS, In Administrator v. Taylor,123 Judge Pope of the NTSB affirmed an emergency revocation of the airmans airline transport pilot certificate and medical certificates following a gear up landing and post-accident drug test. That's demonstration of at least two FAA hazardous attitudes. A refusal to submit to the drug test can result in revocation of the airmans certificate. Because Pasternak was not told of the consequences of his leaving for a few hours, he maintained that he had an exculpatory justification for his actions. If the airman can demonstrate that the Sample Collector failed to follow proper protocols and procedures, the Court may consider the drug test results unreliable allowing the airman to prevail. During the course of the day, Petersen had been handling aircraft parts that had been inspected. 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. I talked to the physiatrist that he took the testing from 8 years ago and she said she would write a letter stating he was never diagnosed with actual ADHD maybe that will help!