Unfortunately, it no longer matters whether an airman has been clinically rehabilitated or if decades of sobriety have been demonstrated. With the chasm between pilots and the FAA growing deeper each day, and medical denial cases increasing exponentially in correlation to that disparity, it is more important than ever for pilots to stay informed and vigilant in order to avoid being grounded indefinitely and/or facing severe financial and emotional hardships. As a result, the intent of this article is to address the root cause of the FAA’s decision to begin lifetime monitoring of pilots who have experienced substance issues.
Almost thirteen years ago, the National Transportation Safety Board (NTSB) issued Safety Recommendation number A-07-43.[1] In this recommendation, the NTSB indicated that it was investigating “a number of aircraft accidents” in which: 1) the pilot had a history of substance dependence; and 2) the pilot’s alleged substance dependence was “relevant to the cause of the accident.”[2] In response to the number of accidents that they felt fit this criteria, the NTSB chose to independently investigate what they perceived to be a systemic problem in the aviation community: not enough administrative oversight of pilots suspected by the FAA of having substance dependence issues.
As part of their investigation, the NTSB relied on its own 1984 report on drunk driving entitled, “Actions to Reduce Fatalities, Injuries, and Crashes Involving the Hard Core Drinking Driver.” The report found that the risk of being arrested for driving while impaired varied from 1 in 300 to 1 in 2,000. Based on these figures, the NTSB posited that a pilot who has been convicted of a DUI/DWAI has likely “driven impaired on a large number of occasions” and, therefore, “may be substance dependent.”[3] Ostensibly, the inference that the NTSB made in its report is that a pilot who “may be substance dependent” has likely “driven impaired on a large number of occasions” and, would therefore, and theoretically, treat their operation of a motor vehicle with the same respect as their operation of an aircraft. With that logical leap in mind, the NTSB felt it necessary to examine how the FAA was mitigating this perceived risk.
During the course of the NTSB’s investigation, they were apparently shocked to find that the FAA was only checking the National Driving Registry to substantiate the answers given by an airman on his or her medical application, rather than querying arrest databases and requesting medical records. By way of comparison, the NTSB looked at the FAA’s practice of requiring pilots with “other” chronic diseases to provide original media medical records (such as coronary angiography films).[4]
In addition to its disagreement regarding the FAA’s lack of oversight on both arrest and medical records, the NTSB was seemingly appalled to learn that an airman with a documented history of substance dependence could gain an Airman Medical Certificate without a Special Issuance in circumstances where there is “established clinical evidence, satisfactory to the Federal Air Surgeon, or recovery, including sustain total abstinence from the substance for not less than the preceding 2 years.”[5]
Using Alcoholics Anonymous, the Minnesota Model[6], and the HIMS program[7] as its chief support, the NTSB considered alcohol dependence to “generally” be a chronic and progressive disease with a common trend of relapse. As a result, the NTSB recommended to the FAA that any airman who answered in the affirmative to item 18v of the FAA’s Application for Airman Medical Certificate (Form 8500-8) should be required to:
In other words, any pilot with a suspected history of substance dependence would be required to produce evidence regarding the same and, using that evidence, be monitored for the entirety of their remaining flying career under the NTSB’s recommendations.
Fast-forward through thirteen years, where no action was taken on the NTSB’s recommendation. On April 1, 2020, however, the FAA apparently determined that it was time to grant the NTSB’s request by announcing that all airmen who have been clinically diagnosed with substance dependence shall be placed on a special issuance for any duration deemed appropriate. [9] In our experience to date, “any duration” has translated into a period no less than lifetime monitoring.
Understandably, this new policy has raised a barrage of questions from pilots and attorneys alike. For instance, what happens to those who have already been released from a special issuance? To what degree of monitoring will pilots in these circumstances be subjected to? And, perhaps more importantly, what constitutes a clinical diagnosis of substance dependence and who must issue the diagnosis?
In order to diagnose an airman with substance dependence, the Administration relies on psychiatric evaluations performed by a psychiatrist of the airman’s choosing. However, the Administration is clear in its request that the airman find a psychiatrist who has experience in aerospace psychiatry. Specifically, this psychiatrist must be one who can provide an “explicit diagnostic statement” regarding “clinically or aeromedically significant findings” that are “consistent with Federal Aviation Regulations.”[10] The significant conflict in this requirement is the differentiation between a clinical diagnosis and one that is consistent with Federal Aviation Regulations.
Under the Federal Aviation Regulations, we have the following substance related definitions (the verbiage is the same for all classes medical certificates, but the following citations are for first class):
14 CFR § 67.107(a)(4)(ii) defines “substance dependence” to be a condition in which a person is dependent on a substance as evidenced by: increased tolerance; manifestation of withdrawal symptoms; impaired control of use; or, continued use despite damage to physical health or impairment of social, personal, or occupational functioning.
14 CFR § 67.107(b) defines “substance abuse” as the use of a substance in a situation that was physically hazardous; a verified drug test, alcohol test, or refusal to test as required by an agent of the U.S. Department of Transportation; or misuse of a substance that the Federal Air Surgeon believes may make the person unable to exercise the privileges of the airman certificate held.
Clinically, however, diagnoses of “substance dependence” or “substance abuse” do not exist.
Clinical diagnoses involving alcohol find their origin in the Diagnostic and Statistical Manual of Mental Disorders, commonly referred to as the DSM. This manual is dynamic in nature, and changes as the medical field advances. The most current edition of the DSM is the DSM-V, which demonstrates several unique changes in the industry. The first update, which is arguably the most significant, is that it no longer separates substance abuse and substance dependence; rather, the two are combined into a single “substance use disorder” diagnosis. As there is only one diagnosis, there is only one list of symptoms:
In order to earn a substance use disorder diagnosis, a patient must exhibit two or more of the symptoms within a 12-month period. And, even when diagnosed, the DSM-V departs from the outdated binary view of the same. Instead, if a patient exhibits two or three of the symptoms, they are given a mild diagnosis; four to five of the symptoms results in a moderate diagnosis; and six or more results in a severe substance diagnosis.
Consequently, the FAA’s treatment of substance issues is contrary to the current medical standard, as the Administration now calls for the lifetime monitoring of those pilots who have been “clinically” diagnosed with a disorder that is no longer clinically recognized. Moreover, the FAA requires the nonexistent diagnosis to come from a board-certified psychiatrist who, as mentioned, must provide an “explicit diagnostic statement” regarding “clinically or aeromedically significant findings” that are “consistent with Federal Aviation Regulations.” Therefore, in summation, the Administration is requiring a board-certified medical professional to provide a clinical evaluation using standards that aren’t recognized by the board that certified them, with the ultimate goal of diagnosing a pilot with a diagnosis that is only recognized by Congress and not by the medical community.
Perhaps the most confusing part of this change to lifetime monitoring is that the Administration is ostensibly ignoring the regulations that provide that an airman may be eligible for the issuance of an unrestricted medical certification upon establishing clinical evidence of recovery and sobriety over the preceding two years.[11] These regulations were, prior to this new policy, respected and adhered to - are we to believe that a new policy preempts a regulation?
Despite the confusion created by the FAA’s new position and the resulting unresolved questions, the time of reckoning has arrived. As AOPA Panel Attorneys, we have already begun to see lifetime monitoring letters issued to pilots. Such letters have been issued to pilots concluding five-year Special Issuance Certificates, as well as pilots who have dutifully reported isolated episodes with alcohol or other substances that date back over decades with documented and uninterrupted periods of sobriety spanning those decades.
While it is our hope that this shift does not signal the beginning of the FAA using lifetime monitoring as a “catch all” for any substance use issues, the signs are troubling. My real concern, however, is that our industry is in danger of sliding back into a system that functions without transparency.
We have made great strides in improving the relationship between the FAA and the pilot community over the years, particularly within the realm of medical certification. However, there is an ever-present concern that pilots will feel that their only option in order to continue flying and to avoid living under medical scrutiny for the rest of their careers will be to conceal their medical histories involving alcohol or drug use, however long ago or minor in nature. While making such a decision legally constitutes falsification or fraud and may result in the revocation of any earned pilot and medical certificates, the truly unfortunate result is that many pilots may miss out on receiving much-needed medical treatment due to their fear of the lifetime monitoring and the significant associated costs. This, in turn, would negatively affect the safety of the National Airspace System and negate the FAA’s efforts to preserve the safety of our skies.
It is unsettling to think that this substantial blow to the aviation industry comes from a thirteen-year-old request, based on a then-decades-old report, made by an agency which does not directly manage or oversee aviation medical certification issues. It is our hope that the FAA will eventually ground its definitions regarding substance use issues in a medical and clinical framework, rather than grounding pilots and instituting lifetime monitoring for those who have worked hard to safely rehabilitate themselves.
The opinions expressed in this article are those of the author.
Editor's Note: Due to a production error, the July 2020 PPS Insights Newsletter Panel Attorney Spotlight misstated Mr. LoRusso’s answer as to when he became a Legal Services Plan attorney. The article erred by stating he became a panel attorney in 2009, but as he told us, he began working for another panel attorney in 2013, and became a panel attorney himself in 2015. We regret the error.
Joseph LoRusso is a Colorado native and aviation attorney at LoRusso & LoRusso, Ltd. He is an Airline Transport Pilot with an LR-JET type rating. Joseph has been a lifelong pilot and continues to contract when able. He began his undergrad education at the United States Air Force Academy and completed his Bachelor of Science degree at Metro State University of Denver. While at Metro State, Joseph co-founded a flight school, which he instructed at and operated for almost five years. Joseph left the flight school to attend law school at Washburn University’s School of Law in Topeka, Kansas.
After law school, Joseph and his wife, Caitlin, moved back to Colorado where they currently work to defend the rights and privileges of their fellow pilots. In addition to serving the piloting community, Joseph also works to support his other passion of soccer. Joseph currently sits on the Board of Directors for the Colorado Soccer Association and on the Board of Directors for his family’s foundation, the Nick J. LoRusso Memorial Scholarship Fund. The fund was founded in 2014 in response to the sudden passing of Joseph’s dad. To date, the fund has provided scholarships to over 70 kids who were financially unable to participate in soccer. From equipment and fees, to travel and hotels, the NJL Scholarship allows Colorado kids to enjoy the sport that has brought the LoRusso family so much happiness over the years.
[1] National Transport Safety Board. (2007). Safety Recommendation A-07-43
[2] Id at ¶1
[3] Id at ¶5
[4] Id.
[5] 14 CFR § 67.107(a)(4)
[6] The Minnesota Model is an ever-changing form of addiction treatment which finds roots in the AA 12-step program. The goal is to help patients recover from addiction rather than be cured from the same. The model is practiced in a group setting, not dissimilar to AA.
[7] The HIMS program is a federally funded, airline-focused treatment program designed to rehabilitate pilots and return them to their flying careers.
[8] National Transport Safety Board, Safety Recommendation A-07-41 through 43 (2007).
[10] See FAA’s “Specifications for Psychiatric and Psychological Evaluations.”
[11] See 14 CFR § 67.107(a)(4).
