FAA Medical Certificate Denied for Substance Dependence Part 2: Increased Tolerance

Has your FAA medical certificate been denied for “substance dependence?” If so, reference the previous article regarding the FAA’s criteria for “substance dependence.” You can read that article here: FAA Medical Certificate Denied for Substance Dependence: Part 1: Criteria for “Dependence” – The Pilot Lawyer This article will address the first and most problematic of the FAA’s four criteria for “substance dependence.” As you will recall, the relevant regulations in Part 67 identify four separate “clues” for determining whether an airman has “substance dependence.” Those items are: (a) Increased tolerance; (b) Manifestation of withdrawal symptoms; (c) Impaired control of use; or (d) Continued use despite damage to physical health or impairment of social, personal, or occupational functioning. The relevant regulations state that an airman’s history needs only establish one of the four criteria, not all four. This article will discuss “increase tolerance.”

In practice, it seems that the FAA identifies an airman as having a history of “substance dependence” by nature of “increased tolerance,” more so than any of the other criteria. What does “increased tolerance” mean? Well, the Federal Aviation Regulations do not identify the meaning of this criterion and the FAA does not have a hard and fast definition of this phenomenon. Generally, in practice, however, the FAA treats this issue as though it is a situation where an airman has used a substance more frequently and in larger amounts over time, such that it takes larger amounts to feel the same effects the airman may have felt when he or she was naïve to that substance and just had a small amount of it.  In other words, this can be defined as a need for larger amounts of the substance over time to feel the same effect.

The FAA has, in the past, at least also looked for some “purposeful function” to demonstrate the airman’s “increased tolerance.” This means that the FAA will evaluate whether the airman is able to function as if they weren’t intoxicated when there is evidence that the airman is extremely intoxicated with a substance. Most commonly is the FAA’s evaluation of a breath/blood alcohol content following a DUI. In these instances, the FAA tends to look at values at or above .15% to suggest whether there is any “tolerance.” An example is if an airman is able to find the keys to their car, put their key in the ignition of their car, drive their vehicle down the road, there is seemingly some indication of “purposeful function.” If an airman is intoxicated at an egregious level and is able to demonstrate this “function,” the FAA generally finds there is an “increased tolerance.” The key takeaways in medical certification cases are: 1) always be sure that BAC values are accurate before presenting them to the FAA; and 2) always evaluate whether there is any evidence of “purposeful function” in your history – if not, raise those points to the FAA.

Has your FAA medical certificate been denied for “substance dependence?” If so, remember the FAA’s essential criteria for this condition. If you need FAA medical certification help, contact an aviation medical attorney at The Ison Law Firm. If your FAA medical certificate was denied for “substance dependence,” there are opportunities for the FAA’s decision to be reconsidered and appealed. Learn more about what a FAA medical defense attorney at The Ison Law Firm can do for you.

FAA Medical Certificate Denied for Substance Dependence: Part 1: Criteria for “Dependence”

  • ON Dec 04, 2020
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  • BY Anthony Ison
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  • IN Pilot Law

Has your FAA medical certificate been denied for “substance dependence?” The first thing to know is that the Federal Aviation Administration (“FAA”) has a different definition of “substance dependence” than does the rest of the medical community. Specifically, the medical community typically evaluates whether an individual has a “substance use disorder” by determining whether that individual meets criteria under the Diagnostic and Statistical Manual of Mental Disorders (“DSM”). The FAA is usually quick to argue, however, that just because your psychiatrist, primary care physician, substance use counselor, or other healthcare professional doesn’t think you meet criteria for a disorder under the DSM, you can still meet criteria for “substance dependence” under the Federal Aviation Regulations (“FARs”). In other words, it’s easier to meet the FAA’s criteria for “substance dependence.”

So, how does the FAA define “substance dependence?” The FAA defines their criteria for “substance dependence” at 14 C.F.R. §67.107(a)(4)(ii), 14 C.F.R. §67.207(a)(4)(ii), and 14 C.F.R. §67.307(a)(4)(ii). These regulations, respectfully, coordinate to criteria for first-class, second-class, and third-class medical certification; however, the definition for “substance dependence” is identical across first-class, second-class, and third-class medical certification. The pertinent language from the FARs is as follows:

(ii) ‘Substance dependence’ means a condition in which a person is dependent on a substance, other than tobacco or ordinary xanthine-containing (e.g., caffeine) beverages, as evidenced by –

(A) Increased tolerance;

(B) Manifestation of withdrawal symptoms;

(C) Impaired control of use; or

(D) Continued use despite damage to physical health or impairment of social, personal, or occupational functioning.”

See 14 C.F.R. §67.107, here: 14 CFR § 67.107 – Mental. | CFR | US Law | LII / Legal Information Institute (cornell.edu)

Read in full, the regulation requires the doctors in the FAA’s Office of Aerospace Medicine to review your case to establish whether your medical history meets one of these four criteria. These criteria will be reviewed in greater detail in later writings. Nevertheless, it is important to note that the FAA only has to think that you meet one of these criteria, rather than all four.

What does the FAA review to establish whether you meet criteria for “substance dependence?” The most common records that the FAA doctors review are police reports from DUI arrests, hospital records from motor vehicle accidents which involved drugs or alcohol, records from substance abuse facilities, and primary care physicians. Other times, when the FAA suspects you may have “substance dependence,” they will ask for you to provide a statement, identifying your past, present, and future plans of alcohol use. More often than not, these statements can also reveal to the FAA that an airman meets criteria for “substance dependence.”

Ultimately, if you feel you’ve been wrongly identified as meeting the FAA’s criteria for “substance dependence,” you need to consult with a FAA medical defense attorney.  If your FAA medical certificate was denied for “substance dependence,” there are opportunities for the FAA’s decision to be reconsidered and appealed. Learn more about what a FAA medical defense attorney at The Ison Law Firm can do for you. FAA Substance Abuse – The Pilot Lawyer

Learn more about The Pilot Lawyer. Meet The Pilot Lawyer Anthony G. Ison, Aviation Attorney Lakeland Florida


Selecting a HIMS AME

  • ON Dec 03, 2020
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  • BY Anthony Ison
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  • IN Pilot Law

Selecting a HIMS AME for your FAA medical certification can be a daunting process. What is a HIMS AME? What does a HIMS AME do? A HIMS AME is a senior Aviation Medical Examiner which has undergone the necessary training in the “HIMS” program in order to monitor airmen for certain medical conditions. “HIMS” stands for “Human Intervention Motivational Study” and is a substance use recovery program that has received grants from the Federal Aviation Administration “FAA” to develop aeromedical programs for airman medical certification and special issuance authorization. As with many elements of airman medical certification, the HIMS program comes with issues and may not be an appropriate pathway to medical certification for all airmen (especially if the airman has erroneously been identified as having a disqualifying medical condition). Identifying concerns with the HIMS program is not the purpose of this article (these issues will be identified in subsequent writings). Be that as it may, there are times when engagement with a HIMS AME may be the most efficient and legitimate pathway to medical certification. A HIMS AME may be needed for many different issues, including SSRI medication use, substance abuse/dependence, HIV, and others.

What should you look for in selecting a HIMS AME? In the event you have a legitimate need for a HIMS AME, one of the most important things to look for is how many HIMS cases the AME has actually handled. Consider that an AME can undergo training to become a HIMS AME, but that doesn’t necessarily mean that he or she is well-versed in the FAA procedures, best practices to efficiently obtain medical certification, and cost-efficient ways to perform monitoring and other necessary tasks. So, experience matters.

Another element to evaluate is how the HIMS AME will monitor your case. What methods will the HIMS AME use to establish abstinence in substance use cases? What are the HIMS AME’s practices when there is a concern for a false-positive result on a drug or alcohol test? Also, establishing with the HIMS AME what his or her practice is to communicate and present your case to the FAA is important, too.

Don’t forget that you have to feel comfortable working with the HIMS AME, as you will be spending a lot of time with this individual – make sure your personalities don’t clash!

Selecting a HIMS AME is a matter of knowing what you are getting into before it’s too late. Remember, however, that contrary to a popular misconception, while your HIMS AME can be helpful in your case, the HIMS AME, per FAA guidance, is not your advocate. The HIMS AME is your monitor. Oftentimes having an aviation attorney who regularly helps with medical certification issues can be a valuable asset in working your case through the HIMS program and looking out for your interests in the process.  Learn more about what an aviation attorney can do to help you with the HIMS program: FAA Medical – The Pilot Lawyer If you need help selecting a HIMS AME, call an aviation attorney at The Ison Law Firm to discuss your case today.

You can find the HIMS AME locator offered by the FAA, here: https://www.faa.gov/pilots/amelocator/

*The opinions expressed in this article regarding the HIMS program are opinions. This article is not intended to provide medical or legal advice and should not be treated as such.

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