One may wish to ponder how the NTSB would decide a case if the airman remained at the facility for three hours and could not provide a 45mL sample of urine. You must contact their office at (405) 954-4821, Option 1, regarding correspondence issued from their office. ", OK, maybe not a drinking problem, but how about he had a problem when he was drinking? 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. Official websites use .govA .gov website belongs to an official government organization in the United States. CONSEQUENCES OF USING DRUGS WHILE PERFORMING SAFETY- Once you enter the collection site, the testing process should commence without undue delay. Revocation, suspension, or cancellation of driver license for: Denial of an application for any certificate, rating, or authorization issued under this regulation for up to one year after the date of the motor vehicle action, Suspension or revocation of any certificate, rating, or authorization issued under this regulation, Name, address, date of birth, certificate number, Type of violation (conviction and/or administrative action), Statement whether this relates to a previously reported MVA, Driver license number or state identification number (if not licensed). 120.7. Generally, the Collector is not allowed to go into the restroom with you. so that the original out of temperature range and the subsequent specimen can be dispatched to the laboratory together. He presented no scientific or medical evidence to support his theory, nor did he even properly notify the Administrator of this defense by including it (or any other theory pertaining to adulterants) in his answer to the Administrators complaint or in his pre-trial discovery responses. Building a highly functional team, impactful long term . There is an online form that you can download and submit to the security division. My son hasnt started flying yet, they wont let him in college without the medical:-( he has been flying gliders all summer and weekends though. Jordan further testified that before the samples were collected, he cleaned down the area, wiped off the sink, taped off the water supply, and he taped off the soap dispensers. Washington, DC 20591 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. According to Jordan the procedures he followed were: The drug testing kit would be in a sealed condition. 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. 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. However, because the scientific testimony in Taylor indicated that a hair sample test may not detect a single instance of drug use, the judge may be inclined to grant more weight to the urine test than the hair sample test as was the case involving Judge Pope in Taylor. 120.7(o) [refusal to submit to a drug test]. Kidding aside though, I am starting to wonder if we have gone so far down the Puritan rabbit hole that we now consider a person's statement that they are NOT an alcoholic as EVIDENCE that they ARE. Conversely, if the sample will or may incriminate the pilot, the evidence is to be preserved. Administrator Todd S. Peterson, Applicant,12 is a case that demonstrates the failure of the drug Sample Collector to follow proper protocols and procedures can result in an adverse finding against the Administrator. 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. Use this sample reporting form to inform the Drug Abatement Division of a verified positive drug test by a part 67 medical certificate holder. 120.7(o) (definition of refusal to submit to a drug test including engaging in conduct under 49 C.F.R. A refusal to submit to the drug test can result in revocation of the airmans certificate. Discussion in 'Medical Topics' started by lbfjrmd, Jan 24, 2018. In response to the first argument, the Board noted that Judge Pope did not ignore all the evidence on hair testing. Collector may set a reasonable time for the voiding. 61.15(c), defines a motor vehicle action as: Examples of Reportable Convictions (Not a comprehensive list): The cancellation, suspension, or revocation of a license to operate a motor vehicle after November 29, 1990, for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug. Use this sample reporting form to inform the Drug Abatement Division of prohibited alcohol-related conduct by a part 67 medical certificate holder. 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. Judge Geraghty then awarded Petersen attorneys fees of $6,859.91 and costs of $60.00. 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. SE-19196 (November 30, 2011) (hereinafter . 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. 61.15(e) requires all Part 61 certificate holders to send a written report to the FAA within 60 calendar days of any drug- and/or alcohol-related MVA. This position is covered by the Department of Transportation's Drug and Alcohol Testing Program. The airman appealed the initial decision of Judge Pope asserting two challenges. Airmen Certification (AFB-720) (405) 954-3261 or 866-878-2498 Fax: (405) 954-4105 9-AMC-AFS760-Airmen@faa.gov 2. Do I have to report anything other than alcohol and/or drug related convictions? This notification letter must be submitted within 60 days of the date of conviction. 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. Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification (A449) by contacting your FAA Principal Operations Inspector. 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. 40.63(b). So, much to their annoyance, they have to allow some people to get a medical. Random urine tests (daily call-in to receive instructions) (6 times during 90-day period). 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. According to 14 C.F.R. Electronic Code of Federal Regulations (e-CFR), CHAPTER I - FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, SUBCHAPTER F - AIR TRAFFIC AND GENERAL OPERATING RULES, PART 91 - GENERAL OPERATING AND FLIGHT RULES. wLA4&WY#u",L& M On the second appeal by Pasternak to the United States Court of Appeals for the District of Columbia, the Court again reversed the NTSB because the FAA conceded that leaving a drug testing facility with permission does not constitute a refusal to test. 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. In rendering its decision the NTSB made this striking observation: Accordingly, in cases involving drug tests and the implications to certificate holders of positive or contaminated test results, it is our view that, to be substantially justified in proceeding, the Administrator must investigate all reasonable avenues offered by a respondent, and that the written statements of two co-workers, notably in view of applicants prior negative test, were such reasonable avenues for which inquiry should have been made. The discussion of what information was provided by the collector to Dr. Pasternak is discussed at length. As a result of such a disclosure, there are no specific tests or processes required under the regulation. 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. LAupJ(Sxjl#=tEpP:"ETBWErHDLk")S`Jzo"+_hW&::PD#)-"htCW!z They have one job: Cover their own asses. Oklahoma City, OK 73125-0810 . Secure .gov websites use HTTPS LTPR FAA Anti-Drug and Alcohol Misuse Prevention Plan Lufthansa Technik Puerto Rico May 2019 3 Engaging in drug and alcohol related conduct identified below is a violation of FAA regulations. In all likelihood, the MRO will refer the airman to a general practitioner physician. WHEN IS A NON-REFUSAL A REFUSAL THE SHY BLADDER RULE. 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. More importantly, Tullos testified that if he had been told by the Sample Collector that his leaving the facility would be considered a refusal to test, he would have remembered that instruction. Use this sample checklist to ensure you complete all necessary steps when hiring an individual for or transferring an employee into a safety-sensitive position. 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. Petersen, a mechanic at Northern Air Cargo, was called in for a random drug test at 5:30 in the afternoon. The samples listed below are intended to help an employer or contractor meet the FAA's drug and alcohol testing program requirements. 120.5 Procedures. Consequently, I do not find that the Respondent refused to submit to a drug or alcohol test as required under 14 C.F.R. E'\*p=1` He was diagnosed with a possible ADHD diagnosis at age 10 and took meds off and on until his senior year in high school. He returned a few hours at which time he provided a sample that tested negative for drugs.80 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.81, 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.82 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.83 The NTSB disagreed and concluded Pasternaks abrupt departure from the facility precluded the Sample Collector from telling him that his departure would be considered a refusal to submit to the test.84 The United States Court of Appeals for the District of Columbia reversed and remanded the case to the NTSB because there was no evidence in the record to support the NTSBs conclusion that Pasternaks behaviorprecluded the Sample Collector from informing him that his leaving the testing site would be considered a refusal.85, In Pasternak v. Huerta,86 Pasternak once again appealed to the United States Court of Appeals for the District of Columbia after a finding was made by the NTSB that Pasternak had refused to submit to a drug test. 40.191 which says that an airman has refused to submit to a drug test when he fail(s) to provide a sufficient amount of urine when directed, and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure. 40.191(a)(2) and (3) (sic), and 14 C.F.R. Use this sample reporting form to inform the Drug Abatement Division of a refusal to submit to testing by any individual that holds a part 61, 63 or 65 certificate. The United States Court of Appeals for the District of Columbia reversed and remanded the case to the NTSB because there was no evidence in the record to support the NTSBs conclusion that Pasternaks behavior. 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. Federal Aviation Administration The airman's lengthy personal statement (his right) defends his right to continue to drink responsibly. If these commitments coincide with your personal ideals and professional aspirations, please consider joining the DOT family. Describe for each: a) Frequency of use; b) Amount used; c) Setting in which used; and You have 60 days from the effective date of the administrative action (driver license suspension, revocation, or cancellation) or conviction. Use this sample reporting form to inform the Drug Abatement Division of a refusal to submit to testing by an employee who does not hold a part 61, 63, or 65 certificate. 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. Between 2010 and 2015, FAA records show 64 pilots were cited for violating the alcohol and drug provisions, and in 2015, some 1,546 personnel who must ensure airline safety, including 38 pilots . You may use the Online Notification Letter, or draft your own notification letter, and mail or fax to: Mail: 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. January of 2025, maybe. You may contact an investigator Monday through Friday, 8:00 a.m. to 4:30 p.m. CT, at (405) 954-4848. However, the science may militate against the weight of hair testing as opposed to urine testing to the extent that a single instance of using illegal drugs may not appear on a hair sample test. 40.193. Just because you have no idea what you're talking about doesn't mean these people don't. Daniel Roose testified that he did not remember initial drug or alcohol training at Net Jets and he did not recall ever discussing the Drug and Alcohol Program during recurrent training. "%aZ^yyy'U9M%
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4%])cZEX"z}v@OD/E7T'-QtID-hpE##.]x($IL>FXGR[d`D91Rd ! He went to get his medical and told them he had taken ADHD medication in the past. I do not know of any other case in which the Board finds 40.191(a)(2) to be a strict liability standard. I found the testimony of the Respondent to be credible. Dr. Keller further testified that he offered TaYlor the opportunity to provide a medical explanation for the positive results. 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. +t0^Xg5R8$%81$wGt`h,KRrx%f0^ilf8U;#\a*LvZ/T$L$qSYoIJ g,X. When Tullos came in, she told him to empty his pockets and wash his hands and provide a urine specimen. The FAA random testing rates in 2019 are as follows: 25% of safety-sensitive workforce for drugs 10% of safety-sensitive workforce for alcohol The referral physician is required to provide a written statement with his recommendations and the basis for them to the MRO. 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. 1. He could have just left it out and it would not effect his story regardless. Or is all tolerance from repeated past drinking? .%6-$KXd/! The FAA will obtain applicable records to determine if you have a reportable alcohol- and/or drug-related MVA. It is an important for the National Transportation Safety Board when they reviewed the ALJ decision. No end in sight. Abuse is defined the Substances of Dependence/Abuse FAQ document. 40.193 (what happens when an employee does not provide a sufficient amount of urine? 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. By rejecting non-essential cookies, Reddit may still use certain cookies to ensure the proper functionality of our platform. You must report all violations by an individual that holds a part 67 certificate to the FAA within 2 working days after the violation. The only reason they allow anyone to get a medical is because if they denied everyone, people would scream, and if they could deny everyone outright, it would eliminate the need for their agency. 1995WL623847 (N.T.S.B. As we conclude our discussion on drug testing, the reader may wish to consider the following drug testing cliff notes: alan@alanarmstronglaw.com | 770-451-0313. is a case that demonstrates the failure of the drug Sample Collector to follow proper protocols and procedures can result in an adverse finding against the Administrator. What happens if I fail to report an alcohol- and/or drug-related MVA and the FAA finds out about it? 40.193. 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. The case has been remanded to the NTSB for further proceedings relative to credibility findings by the Administrative Law Judge. The purpose of this part is to establish a program designed to help prevent accidents and injuries resulting from the use of prohibited drugs or the misuse of alcohol by employees who perform safety-sensitive functions in aviation. The airman further asserted that the FAA did not disprove the possibility that. 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.48, After Petersen prevailed and defeated the Administrators emergency order of revocation, he filed a claim for attorneys fees and expenses under the Equal Access to Justice Act.49 The irregularities in the drug testing process were called to the attention of the Administrator by written statements of Petersen and the two other mechanics, but the FAA chose to go forward with the case relying upon the non-specific testimony of Mr.Jordan on the possibility that Petersen and the other two mechanics were lying.50 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.51 Judge Geraghty then awarded Petersen attorneys fees of $6,859.91 and costs of $60.00.52. The incumbent serves as the primary operations interface between assigned air carriers, air operators, air agencies, airmen, designees and the Federal Aviation Administration (FAA). PERSONAL STATEMENT DRUG AND ALCOHOL (D&A) e. f. 2. You are not required to use the sample forms and policies, and you may edit them to fit your needs. 16 hours community service at JPDA-approved facility (Jefferson Parish Animal Shelter). 40.191 (refusal to take a DOT drug test); 49 C.F.R. What type of offense occurred; b. When you report alcohol- and/or drug-related MVA, we initiate a preliminary investigation to ensure your report was within the required 60-day time frame and that there are no other reportable actions. It was an important issue for the ALJ in the case. New comments cannot be posted and votes cannot be cast. Then, 49 C.F.R. I read this and think "the guy knew he was drunk but since home was only .5 miles away he thought he'd chance it." As an Examiner you are required to be aware of the regulations and Agency policy and have a responsibility to inform airmen of the potential adverse effects of medications and to counsel airmen regarding their use. Based upon the telephone conversation between Ms. Snyder and the Sample Collector. This is not an excuse but only a statement of background. Note that an agency may not conduct or sponsor, and a person is 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. Secondly, it is common knowledge that dehydration can result in an inability to urinate. On January 31,2022, the FAAs Amended Prompt Settlement Policy for Legal Enforcement Actions Involving Medical Certificate Related Fraud, Intentional Falsification, Reproduction, or Alteration (i.e., amended prompt settlement policy) went into effect. But making that little statement suggests he knew at the time what he was doing was risky but did it anyway. If the individual requests to be considered under the policy, the FAA will determine the individuals eligibility for the policy. He says that he did not know. He felt he didnt need them anymore for college and his grades have been great! In summarizing the Boards findings in relation to the airmans first argument, the Board noted: Assuming the test result are valid and found accurate, the record is abundantly clear that the differing results of urine and hair test are not inconsistent. One may wish to ponder how the NTSB would decide a case if the airman remained at the facility for three hours and could not provide a 45mL sample of urine. Box 25082, Oklahoma City, Oklahoma 73125. 7/12/2017 Received letter from JPDA advising that the DWI charges were refused 6/1/2017 and would not be prosecuted. If you have any questions, please contact us at (202) 267-8442 or drugabatement@faa.gov. The settlement agreement provides for the prompt issuance of an emergency order (1) revoking all airman, ground instructor, and medical certificates the individual holds; (2) requiring the immediate surrender of the affected certificates; and (3) allowing application for a new airman or ground instructor after nine months from the effective date of the order. stream He put the temperature tapes on the bottles. You can also use it to renew or amend your registration. L4 OUK22t( 120.107, Each employer shall test each employee who performs a safety-sensitive function for evidence of Marijuana, Cocaine, Opiates, Phencyclidine (PCP), and Amphetamines during each test required by 120.109. Drug testing of airmen is intrusive as the airman confronts a Sample Collector who directs the airman to urinate in a bottle. Administrator v. Taylor, NTSB Order No. He orally advised the donors to wash their hands. It is also common knowledge that some people may feel social pressure or uncomfortable in situations where they have to urinate quickly in response to the command of a Sample Collector. Official websites use .govA .gov website belongs to an official government organization in the United States. I would disagree, from my own observations of dealing with/or arresting 1000's of drunks. Remain at the drug testing facility until the drug testing process is complete. But your right, I don't know the guy or know the full story. In order to appreciate the intrusive nature of drug testing, the airman must appreciate that in the event the urine specimen he provides is outside of the acceptable range, then the Sample Collector is required to engage in direct observation, that is, actually observe the airman urinate. 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. Please Note: You must send a written notification of your alcohol- and/or drug-related MVA. Any applicant tentatively selected for this position will be subject to pre-employment or pre . The MRO is not required to refer the airman to an urologist. 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.