FAA Medical and Marijuana Use

FAA Medical and Marijuana Use

Your FAA medical and marijuana use do not go together. Marijuana has become “legalized” in many states for medicinal and personal use. Nevertheless, on a federal level (and the Federal Aviation Administration is on the federal level), marijuana is banned. For FAA medical certification purposes, marijuana is still, effectively “illegal,” as described in question 18n. on the application for airman medical certification. Specifically, question 18n. on the FAA medical application asks if ever in your lifetime you have ever been diagnosed with, had, or presently have “substance dependence or failed a drug test ever; or substance abuse or use of an illegal substance in the last two years.” As a result, if you have used marijuana within two years of applying for your airman medical certificate, you will have to report that use at question 18n. Situations in which you are using marijuana legally within your state will still warrant your reporting said use at question 18n., as well as potentially identifying marijuana as a medication at question 17a. But what is the consequence of the FAA finding out about your marijuana use?

As you may be aware, the Federal Aviation Regulations identify “substance abuse” and “substance dependence” as specifically disqualifying conditions for first-, second-, and third- class medical certification. Of course, these “conditions” are defined differently by the Federal Aviation Regulations than by clinical practitioners. The regulations have a lower threshold for what can be considered “substance abuse” or “substance dependence.” Fortunately, if you have an understanding of how the FAA defines these conditions, however, you can understand the general algorithm by which the FAA’s Office of Aerospace Medicine seems to handle an airman’s use of marijuana.

It has been the experience of our firm that while use of marijuana can meet criteria for “substance dependence” under the regulations, typically, airmen are less frequently found to meet criteria for “dependence” based purely on marijuana use. In practice, marijuana use meeting criteria for “substance dependence” is most commonly found as the result of an airman having multiple marijuana-related, legal infractions, or continuing to use marijuana despite the airman experiencing adverse consequences. Nevertheless, due to the fact that “substance dependence” for marijuana is less common, this article will focus on how marijuana use is most typically categorized under “substance abuse.”

The regulations relative to “substance abuse” require that there have been no “substance abuse” within the preceding 2 years defined as:

  1. Use of a substance in a situation in which that use was physically hazardous, if there has been at any other time an instance of the use of a substance also in a situation in which that use was physically hazardous;
  2. A verified positive drug test result, an alcohol test result of 0.04 or greater alcohol concentration, or a refusal to submit to a drug or alcohol test required by the U.S. Department of Transportation or an agency of the U.S. Department of Transportation; or
  3. Misuse of a substance that the Federal Air Surgeon, based on case history and appropriate, qualified medical judgment relating to the substance involved, finds – (i) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or, (ii) May reasonably be expected, for the maximum duration of the airman medical certificate applied for or held, to make the person unable to perform those duties or   exercise those privileges.

See 14 C.F.R. §§ 67.107(b), 67.207(b), and 67.307(b) (emphasis added).

The most important characteristic of the “substance abuse” regulation is the catchall of “misuse of a substance [at the Federal Air Surgeon’s discretion].” Herein, we find the FAA’s leeway to consider any evidence of use of marijuana as meeting criteria for “substance abuse.” Nevertheless, the airman’s use must have been within the past two years. If the FAA’s inquiry regarding your marijuana use reveals that your use is outside of two years, you can present an argument to the FAA that even if you met criteria for “substance abuse” at one point in time, you no longer meet such criteria due to more than two years having elapsed since your last use. If, however, there has been use of marijuana within the past two years, the FAA will determine that you meet criteria for “substance abuse” and require that you engage in ongoing, random testing with a HIMS-trained AME, as well as have a HIMS psychiatric evaluation prior to granting you a special issuance authorization. The FAA will likely require ongoing testing for a period of up to two years (generally).

Here are some things we would recommend that you consider when it comes to your FAA medical and marijuana use:

  • If you are currently using marijuana, you will not be able to get a medical certificate without achieving and demonstrating complete abstinence from all mood-altering substances. You will need to be issued a special issuance authorization. Obtaining a special issuance authorization for “substance abuse,” if done properly, will likely take at least six months.
  • Even if your current marijuana use is for medicinal purposes, the FAA will consider this “substance abuse,” at a minimum. As a bonus, the FAA will want to know more information about the underlying condition(s) for which you are being treated with marijuana.
  • If you have used marijuana within the past two years and report said use to the FAA appropriately, you will not be able to get a medical certificate without achieving and demonstrating complete abstinence from all mood-altering substances.
  • If you have ever used marijuana in any capacity throughout your lifetime which meets criteria for “substance dependence,” you will need to demonstrate recovery satisfactory to the Federal Air Surgeon. This will involve evidence of treatment, abstinence, ongoing recovery activities, and monitoring with a HIMS AME. Again, however, in our experience, it is relatively rare for an airman to be found to have “substance dependence” to marijuana by the FAA.
  • If you report a history of an arrest or conviction for a “possession” offense, consider that possession is not use. The FAA must have evidence of use per the above-referenced regulations to establish that there has been “misuse” of a substance.”
  • Learn more about your FAA medical and marijuana use in our episode about this topic on The Pilot Lawyer Podcast.

If you are concerned about your FAA medical and marijuana use, consider a consultation with a FAA medical defense attorney at The Ison Law Firm before applying for a FAA medical certificate. We are happy to evaluate your case and discuss with you a plan for presenting your case to your AME or the FAA. Aviation law is all we do. Nothing else.

FAA Medical After a Heart Attack

FAA Medical After a Heart Attack

Can I get my FAA medical after a heart attack? If you are asking this question, there is hope for you, as there are many pilots who are able to reestablish eligibility for a FAA medical after a heart attack. The protocols for consideration of your medical eligibility following a heart attack are a bit nuanced, however, and they don’t always correlate to clinical practices. In other words, after a heart attack, the FAA’s risk mitigation protocol can often be different from what your treating physician may consider clinically necessary or relevant. On the other hand, the FAA’s standards and practices are designed for assessing and mitigating the risk for sudden incapacitation within the National Airspace System. As a result, there is often a disconnect between what your doctor would require from you in the normal course of treatment and what the FAA may require for mitigation of risk to aviation safety. This article will discuss some of these nuances and also, how you can get your FAA medical after a heart attack.

Having a medical history or clinical diagnosis of myocardial infarction or “heart attack” is a specifically disqualifying condition for airman medical certification pursuant to the Federal Aviation Regulations. See 14 C.F.R. §§ 67.111(a)(1), 67.211(a)(1), and 67.311(a)(1). What’s more (and significant to the process for showing the FAA that you are eligible for a medical after a heart attack) is that the regulations also identify the following, disqualifying condition: “coronary heart disease that has required treatment or, if untreated, that has been symptomatic or clinically significant.” See 14 C.F.R. §§ 67.111(a)(3), 67.211(a)(3), and 67.311(a)(3). It is important to look at these two “conditions” together for FAA medical certification purposes. Why? Well, because these conditions are identified in the regulations as being specifically disqualifying for FAA medical certification, you will require a special issuance authorization (waiver) in order to be issued a FAA medical certificate. During the process of evaluating your medical history for purposes of special issuance authorization, the FAA will consider whether you have coronary artery disease which remains untreated following your heart attack. Typically, this is where we see a disconnect between clinical medicine and regulatory medicine. For example, we typically see cases where an airman’s treating physician may not believe that an artery occlusion may be significant enough for treatment (such as implantation of a stent); however, the FAA might believe that for purposes of risk mitigation, the very same artery occlusion should be treated with a stent or some other form of treatment. More often than not, it has been the experience of our practice that it is usually a heart attack which will cause an airman to be denied a FAA medical certificate, but rather, it is the coronary artery disease which is left untreated and exposed to the FAA as a result of the heart attack.

So, what will the FAA look for after a heart attack? At the “heart” of the issue, is whether your heart attack or remaining coronary artery disease, if any, puts you at risk for prolonged physical deficiencies or risk for repeat heart attack/sudden incapacitation. The FAA’s assessment of your application will depend on the type of treatment you received for your heart attack, as well as what class FAA medical certificate you apply for.

There are four broad categories in which the FAA triages coronary artery disease, whether you have had a heart attack, or not. These categories include the following:

Category One: open revascularization of any coronary artery(s) and left main artery stenting

  • According to the FAA, this is considered “open revascularization includes coronary artery bypass grafting (CABG; on- or off-pump), minimally invasive procedures by incision, and robot operations. Left main coronary artery stenting carries the same risk of future cardiac events as CABG, thus it is treated the same for certification or qualification purposes.”

Category Two: percutaneous intervention

  • According to the FAA, this is considered “angioplasty (PTCA) and bare metal or drug-eluting stents.”

Category Three: myocardial infarction without any open or percutaneous intervention

  • This is a situation in which there has been no treatment for your heart attack.

Category Four: myocardial infarction from non-coronary artery disease causes

  • According to the FAA, these are situations in which a heart attack may be caused by something other than coronary artery disease such as “epinephrine injection, cardiac trauma, complications of catheterization, blood clotting disorders (e.g. PT/PTT, Protein S and C, Factor V Leiden), etc.”

Once your situation has been appropriately categorized, the FAA will determine what observation period, post-heart attack/treatment, will be required and what level of testing/documentation will be required for FAA review. Both the observation/recovery period and testing will be different based on you the category of your situation (from above) and the class medical you have applied for. These requirements are as follows:

FIRST CLASS MEDICAL
6-Month Observation Period

Category One Situations

3-Month Observation Period

Categories Two, Three, and Four Situations

SECOND CLASS MEDICAL
6-Month Observation Period

Category One Situations

3-Month Observation Period

Categories Two, Three, and Four Situations

THIRD CLASS MEDICAL
Observation Not Required

Once you’ve achieved the required observation period, the FAA will require that you provide records regarding your heart attack, as well as your current function. Again, this is where there may be a disconnect between what your treating physician and the FAA may believe to be reasonable. In many cases, but not all cases, we experience treating cardiologists disagreeing with the necessity of repeat or redundant testing, as required by the FAA. Nevertheless, the FAA’s requirements, generally, are as follow:

CATEGORY ONE
First and Unlimited Second Class:

  1.  Current, detailed, clinical progress report from treating cardiologist;
  2.  Copies of all medical records (inpatient and outpatient) relevant to the event, including all labs, tests, or studies;
  3.  6-month, post event, maximal, radionuclide, graded stress test; and,
  4.  6-month, post-event, cardiac catheterization.

Third Class:

  1.  Current, detailed, clinical progress report from treating cardiologist;
  2.  Copies of all medical records (inpatient and outpatient) relevant to the event, including all labs, tests, or studies; and,
  3.  Maximal, plain graded stress test.

 

CATEGORY TWO
First and Unlimited Second Class:

  1.  Current, detailed, clinical progress report from treating cardiologist;
  2.  Copies of all medical records (inpatient and outpatient) relevant to the event, including all labs, tests, or studies;
  3.  Copy of operative or post procedure report. If a stent was placed, the report must include make of stent, implant location(s), and the length and diameter of each stent(s).
  4.  3-month, post event, maximal, radionuclide, graded stress test; and,
  5.  3-month, post-event, cardiac catheterization.

Third Class:

  1.  Current, detailed, clinical progress report from treating cardiologist;
  2.  Copies of all medical records (inpatient and outpatient) relevant to the event, including all labs, tests, or studies; and
  3.  Copy of operative or post procedure report. If a stent was placed, the report must include make of stent, implant location(s), and the length and diameter of each stent(s).
  4. Maximal, plain graded stress test.
CATEGORY THREE
First and Unlimited Second Class:

  1.  Current, detailed, clinical progress report from treating cardiologist;
  2.  Copies of all medical records (inpatient and outpatient) relevant to the event, including all labs, tests, or studies;
  3.  3-month, post event, maximal, radionuclide, graded stress test; and,
  4.  3-month, post-event, cardiac catheterization.

Third Class:

  1.  Current, detailed, clinical progress report from treating cardiologist;
  2.  Copies of all medical records (inpatient and outpatient) relevant to the event, including all labs, tests, or studies; and,
  3.  Maximal, plain graded stress test.

 

CATEGORY FOUR
All Classes

  1.  Current, detailed, clinical progress report from treating physician; and,
  2.  Copies of all medical records (inpatient and outpatient) relevant to the event, including all labs, tests, or studies.

We recommend that you consider the following when applying for a FAA medical certificate after a heart attack, especially when applying for the first time following an event:

  • You should always report your history of a heart attack or coronary artery disease to the FAA on your application for FAA medical certificate, Form 8500-8 (MedXPress). The responsive question to such an event is question 18g., which asks if you in your life whether you have been diagnosed with, had, or presently have “heart of vascular trouble.” A heart attack and/or treatment would qualify as a “yes” to this question. Remember, that if the FAA discovers a diagnosis or treatment which has not been appropriately reported on your application for airman medical certification, you could be at risk for enforcement action and revocation of your airman certificates.
  • There is often a struggle, especially in cases of post-event, cardiac catheterization, in convincing treating cardiologists that testing required by the FAA is necessary. Usually, explaining to your physician that the FAA’s standards are regulatory in nature and not to clinical standards can help provide context for the FAA’s requests.
  • When performing a standard, Bruce protocol stress test, the FAA will require that your heart rate achieve no less than 85% of the calculated maximum predicted heart rate and that you walk for a minimum of 9 minutes if you are under the age of 70 and a minimum of 6 minutes if you are over the age of 70.
  • Your treating cardiologist should identify in a statement to the FAA, if applicable, that you are demonstrating attempts to meet goals regarding the modifiable risk factors as recommended by the ACC or AHA guidelines, especially as it relates to lipid panels.
  • If post-event, testing reveals any level of remaining coronary artery disease or ischemia, be sure to have your treating cardiologist identify for the FAA why such disease is not clinically significant, if applicable. See 14 C.F.R. §§ 67.111(a)(3), 67.211(a)(3), and 67.311 (a)(3).
  • If you are applying for a first-class medical certificate following a heart attack and the FAA denies you, consider applying for a lower-class medical certificate (in the event your desired operations are suitable to a lower class medical certificate). The FAA may consider your situation favorably.
  • Your current status report from the treating cardiologist (cardiovascular evaluation (CVE) should include:
    • Personal and family medical history assessment; clinical cardiac and general physical examination; assessment and statement regarding the applicant’s functional capacity and prognosis for incapacitation
    • Documentation of counseling on modifiable cardiovascular risk factors
    • All medications and side-effects, if any
    • Labs (lipids, blood glucose)
  • Remember that if you also have hypertension, the FAA will likely consider you for the CACI program, but hypertension following a heart attack may be considered an aggravating factor in considering future risk mitigation. Listen to more on The Pilot Lawyer Podcast.
  • For more information, check out The Pilot Lawyer Podcast, Episode 27.

If you are facing a FAA medical after a heart attack, consider a consultation with a FAA medical defense attorney at The Ison Law Firm before applying for a FAA medical certificate. We are happy to evaluate your case and discuss with you a plan for presenting your case to your AME or the FAA. Aviation law is all we do. Nothing else.