FAA Certificate Action After DOT Drug Test Refusal

Are you the subject of a FAA certificate action after DOT drug test refusal? Too often, refusals are the result of a shy bladder procedure gone awry.  Any airman or aviatrix in a safety-sensitive position knows that a poor outcome during a DOT drug test could be the end of his or her career. There are several ways that a random DOT urine drug test can result in a revocation of your certificates – the tests are returned as positive for one of the five drugs tested (THC, Cocaine, PCP, Opioids, or Amphetamines), the airman refused the test entirely, or the shy bladder process ended without a sufficient urine specimen. However, what happens when an airman or aviatrix, through no fault of his or her own, cannot produce a sufficient specimen? Fortunately, the DOT has a process whereby an individual with a “shy bladder” may be able to avoid the dreaded stigma of a “refusal,” assuming certain procedures are followed pursuant to 49 C.F.R. 40.193.

What is Shy Bladder?

The term “shy bladder” refers to a “situation when the employee does not provide a sufficient amount of urine (45 mL) for a DOT-required drug test.” “Urine Specimen Collection Guidelines,” revised July 3, 2014, page 20. Typically, if an individual informs the collector that he or she cannot provide a specimen, the collector must still begin the collection procedure regardless of any reasons given. Id. If, as the individual suspects, an insufficient amount of urine is provided to the collector on the initial attempt, or no urine at all, the collector must discard the insufficient specimen (assuming it is within the appropriate 90–100 degree Fahrenheit temperature range) and begin the “shy bladder” process. Id. at 20-21.

What is the Shy Bladder Procedure?

Generally, the Shy Bladder procedure consists of six (6) steps as found in 49 C.F.R. 40.139.

Step 1: The collector requests the employee to go into the rest room and try to provide a specimen.

Step 2: If an insufficient specimen is provided, the collector discards the insufficient specimen and notes in the “Remarks” line on the Federal Drug Test Custody and Control Form (CCF) when the individual provided the insufficient specimen. This is the time when the “shy bladder” collection process starts.

Step 3: The collector should then explain to the individual the process for a shy bladder collection and urge the individual to drink up to 40 ounces of fluids, distributed reasonably through a period of up to three hours, or until the individual has provided a sufficient urine specimen, whichever occurs first. Of note, is that the individual is not required to drink the 40 ounces of fluids.

Step 4: If the individual refuses to make the attempt to provide a new urine specimen or leaves the collection site before the collection process is completed, the collector must discontinue the collection, note the fact on the “Remarks” line of the CCF (Step 2), and immediately notify the DER. This is generally considered a refusal to test.

Step 5: If the individual has not provided a sufficient specimen within three hours of the firsts unsuccessful attempt to provide the specimen, the collector must discontinue the collection, note the fact on the “Remarks” line of the CCF (Step 2), and immediately notify the DER.

Step 6: The collector then sends Copy 2 of the CCF to the MRO and Copy 4 to the DER. This is done even if the individual did not provide any specimen in order to notify the MRO and the individuals employer of the problem. The collector must send or fax these copies to the MRO and DER within 24 hours or the next business day.

What is Your DER Supposed to Do When Notified of an Employee’s Shy Bladder After a Test?

Pursuant to 49 C.F.R. 40.193(5)(c), the DER, when the collector informs him or her that the individual has not provided a sufficient amount of urine, must consult with the MRO. After consulting with the MRO, the DER should direct the individual to obtain, within five (5) days, an evaluation from a licensed physician. The licensed physician must be acceptable to the MRO and must have expertise in the medical issues raised by the individual who failed to provide a sufficient specimen.

What is Your MRO Supposed to Do When Notified of an Employee’s Shy Bladder After a Test?

Likewise, 49 C.F.R. 40.193(5)(c)(1) speaks to the actions an individual’s MRO should take under the “shy bladder” procedures. As such, the MRO must provide the individual’s physician with certain information. This information should include that: the individual was required to take a DOT drug test, but was unable to provide a sufficient amount of urine to complete the test, the consequences of the appropriate DOT agency regulation for refusing to take the required drug test, and that the referral physician must agree to follow the requirements of 40.193.

The referral physician must recommend to the MRO that the individual has a medical condition which, within a high degree of probability, could have precluded the employee from providing a sufficient amount of urine or that there is not an adequate basis for determining that a medical condition has or, with a high degree of probability, could have precluded a sufficient amount of urine.

If the referral physician informs the MRO that the individual has a medical condition which could have precluded the employee from providing a sufficient amount of urine, the MRO must accept that recommendation and check “Test Cancelled” on the CCF. However, if the referral physician does not make that determination, the MRO must check the “Refusal to Test” box and “Other” box in Step 6 on Copy 2 of the CCF and note in the “remarks” line as needed.

When to Call the Ison Law Firm

If you have recently been selected for a random FAA DOT urine drug test but were unable to provide a sufficient specimen, you should immediately talk to the attorneys at The Ison Law Firm, especially before you speak with anyone at the FAA. Keep in mind, anything you say, can and will be held against you in this process. Carefully choosing your words and what information you provide to the FAA is of the utmost importance in this situation – your certificates and career are on the line! If you are facing FAA certificate action because of a DOT drug test refusal, call the Pilot Lawyers at The Ison Law Firm at 855-FAA-1215 to discuss your options today!

 

 

FAA Hotline Complaint

  • ON Apr 22, 2021
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  • BY Anthony Ison
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  • IN Pilot Law

FAA hotline complaints can cause a big headache for an unsuspecting airman. A FAA hotline complaint starts with a complaint made through the FAA’s hotline reporting form, wherein the general public can make reports via an online forum regarding aviation safety issues. By design, anybody can make a report about anyone or anything through the FAA hotline reporting form. As a result, and unfortunately, the FAA hotline oftentimes is misused and becomes a forum for individuals to present malicious and inaccurate attacks against their ex-spouse, ex-girlfriend, ex-boyfriend, an employee, or an airman they just don’t like.

Seemingly the most common types of reports made through the FAA hotline are about an airman’s fitness for duty. Common hotline complaints made about airmen include allegations of alcohol use, drug use, undisclosed medical disorders, observed behavior, etc. Such a report will prompt the FAA’s Office of Aerospace Medicine to inquire as to an airman’s eligibility to hold a medical certificate. The FAA has the authority to make such an inquiry pursuant to 14 CFR 67.413(a), as a hotline report gives the FAA a reasonable basis for redetermination of an airman’s eligibility to meet the standards prescribed in Part 67.

If as a result of a FAA hotline complaint you have received a letter from the Office of Aerospace Medicine requesting medical documentation, be careful how you respond. If you provide a response to the Office of Aerospace Medicine and offer too much information, or too little information, your medical could be denied or revoked. If the hotline complaint reveals that you have failed to report a medical condition on your application for medical certification, the FAA could revoke your airman certificate for “falsification,” too. As a result, it is important to consult with an aviation attorney as to an appropriate response to the FAA’s inquiry, as any such response could be used as evidence against you in an enforcement action.

If you are the subject of a FAA hotline complaint, call the pilot lawyers at The Ison Law Firm today – 1-855-FAA-1215. An aviation attorney should be able to provide counsel on an appropriate response to the FAA and work to achieve a disposition with the FAA. Aviation law is all we do and nothing else!

Applying for a FAA Medical Certificate While taking SSRI Medication?

  • ON Apr 06, 2021
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  • BY Anthony Ison
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  • IN Pilot Law

Applying for a FAA medical certificate while taking SSRI medication does not does not automatically mean you will never get to fly again. Airmen with a history of Selective Serotonin Reuptake Inhibitor (SSRI) usage may still be eligible to hold a medical certificate, despite their history with SSRI medications, through the special issuance process. While SSRI medication disqualifies an individual from an aeromedical eligibility standpoint, if you can establish stability while on the SSRI medication, with no cognitive deficits caused by the SSRI use, then the FAA will consider you for a special issuance authorization – meaning you still get to go fly!

Often times, an individual may be prescribed SSRI medication by his/her treating physicians to combat depression, feelings of sadness, or other external factors affecting that person. SSRI medications are commonly known as antidepressants and generally work by increasing levels of serotonin (the “feel good hormone”) within the brain. Consequently, airmen with a history depression, anxiety, or some other mood disorder may be prescribed SSRI medications such as Citalopram (Celexa), Escitalopram (Lexapro), Fluoxetine (Prozac), or Sertraline (Zoloft).

If an airman elects to discontinue use of SSRI medication, his/her Aviation Medical Examiner (AME) may note that fact and defer issuance of the medical certificate, until such time as the airman’s treating physician can opine that the airman is of a stable mood. Typically, the FAA wants to see at least a 60-day period of no SSRI medication usage when an airman elects to discontinue SSRI medication. There are a few ways to document this weaning properly and in a way that will give the FAA more confidence in the airman’s prognosis. It is important that when you attempt to wean off SSRI medication that you do so under the careful watch of a medical physician’s supervision. If, however, the airman elects to continue using SSRI medication, the analysis becomes more involved, as you will see below.

In order to properly assess an airman’s aeromedical eligibility due to continued SSRI medication usage, he/she will likely need to see a Human Intervention Motivational Study (HIMS) AME for proper assessment of his/her aeromedical fitness.  To learn more about the role and purpose of a HIMS AME, you may consider reading the following blog: Selecting a HIMS AME.  As such, the HIMS AME will need to inquire into several areas of the airman’s medical history to determine whether he/she is eligible for a medical.

If the airman is taking Prozac, Lexapro, Zoloft, or Celexa, then the HIMS AME may be able to recommend medical certification to the FAA. If any one of these SSRI medications are being used by the airman, then the HIMS AME will likely inquire as to the length of time that the airman has been on that prescribed medication. If the period of prescription is less than six (6) months, the HIMS AME will likely require thee airman to remain on a stable dosage of that SSRI medication for at least six (6) months before consideration of a FAA medical certificate.

If, however, the airman has been on one of the above-mentioned SSRI medications for at least six (6) months, the HIMS AME will then consider additional information, such as the nature of the underlying diagnosis and the treatment. If the underlying diagnosis and treatment suggests that the airman has a history of, or is currently using, multiple psychiatric medications and/or has a history of unacceptable diagnosis or symptoms, the HIMS AME will likely defer the medical application to the FAA. This, of course, is a less than desirable outcome and should be discussed with the FAA medical attorneys at The Ison Law Firm for further guidance and representation.

Should the HIMS AME find that there is an acceptable diagnosis and treatment relating to the airman’s need for SSRI medication, then the HIMS AME will require the airman to provide a typed statement, describing his/her mental health history, antidepressant use, and any other treatment related to the SSRI medication usage. This written statement must be signed and dated. Additionally, the airman will be required to provide copies of all medical/treatment records related to his/her mental health history. Typically, the FAA will require treatment records for past related symptoms where the airman was not on SSRI as well as from the date that the airman began treatment to the present.

Additionally, the FAA will likely require a written report from the airman’s treating physician, as well as a psychiatric evaluation from a board-certified or HIMS-trained psychiatrist, along with CogScreen results and a neurocognitive evaluation from a HIMS-trained neuropsychologist. This information is time sensitive and must be current within the last 90 days for FAA purposes. Once this information is gathered and given to the HIMS AME, the HIMS AME will send all document for initial review to the FAA for a decision on the airman’s medical certification.

Given the delicate nature of SSRI medication usage in relation to FAA medical certification, having an experienced attorney representing your interests throughout the medical certification process is essential. Often times, we are able to use our contacts within the aviation industry to help expedite what would otherwise be a lengthy, confusing, and costly process.

Applying for a FAA Medical Certificate While taking SSRI Medication?  If you are planning to apply for medical certification with the FAA and have a history of SSRI medication usage, call the pilot lawyers at The Ison Law Firm today – 1-855-FAA-1215. Aviation law is all we do and nothing else!