On June 12, 2023, the US Senate issued a Press Release and announced the Federal Aviation Administration (FAA) Reauthorization Act of 2023 (The Act). While the main focus of The Act is technology and innovation, two sections of the over 460-page document indicate the potential for changes in aeromedical regulations.
Section 509 of The Act titled “Aviation Medical Innovation and Modernization Working Group” requires the FAA to form a group of physicians and medical professionals to make recommendations for changes in FAA medical certification (The Working Group). The group members will consist of the Federal Air Surgeon, at least eight Aviation Medical Examiners (AMEs), and other physicians with expertise in various areas of medicine, defining aerospace medicine as its own category.
The Working Group is tasked with providing recommendations to the Administrator with respect to the following areas:
So now, the big questions are, what recommendations might this report contain, and what should it contain?
The Federal Aviation Regulations (FARs) pertaining to medical certification have not been updated in decades and are critically out of touch with current clinical standards. This has been an issue raised numerous times by numerous organizations and private individuals alike. However, for the first time since the 1990s, there is a real opportunity for the FAA to implement substantial change based on the recommendations of the soon-to-be established Working Group.
While there are many areas of the Federal Regulations that need to be updated, one of the most common regulations that airmen interact with are the mental standards for pilot medical certification found under 14 C.F.R. §§ 67.107, 207, and 307. More specifically, these sections address substance use disorder and events of substance abuse, such as hospitalizations and legal offenses involving alcohol and cannabis use.
The Relationship Between the Federal Regulations and Clinical Medicine
The American Psychiatric Association periodically publishes the Diagnostic and Statistical Manual of Mental Disorders, referred to as the DSM. The first DSM (the DSM-I) was published in 1952. Since then, the DSM has undergone several updates, including DSM-II (1968), DSM-III (1980), DSM-III-R (1987), DSM-IV (1994), DSM-IV-TR (2000), DSM-5 (2013), and DSM-5-TR (2022), which is the most current.
14 C.F.R. §§ 67.107, 207, and 307 are identical in their language and detail the mental standards for Airman of First-, Second-, and Third-Class Medical Certificates. These regulations were last updated on or about March 19, 1996.[1] For the purposes of this article, we will focus on just the substance use disorder section of the regulations and the inconsistencies with current clinical medicine.
§§ 67.107, 207, and 307, draw a clear distinction between substance dependence and abuse. According to these regulations, substance dependence is manifested by any one of the following four symptoms:
The DSM-5-TR, however, does not draw a distinction between substance dependence and abuse. Rather, an individual is measured on a sliding scale of substance use disorder, mild to severe, and the DSM-5-TR has foregone the terms of dependence and abuse altogether. An individual will receive a substance use disorder diagnosis if at least two of the eleven factors are met.
While it would not be reasonable to expect the Federal Regulations to be consistent with the most recently published DSM (published only last year), the DSM that was current when the regulations were passed was the DSM-IV, published in 1994, two years prior to the publication of the most current Regulations. The DSM-IV substance use disorder standards did include the terms found in the regulations of dependence and abuse, however requirements for substance dependency were much more extensive, and at least three of the seven factors needed to have been met within a 12-month period.[3]
The DSM-IV, which was current at the time of the latest update to the FARs, is largely inconsistent with the regulations. The first and most prominent distinction is that in the regulations, if only one of the factors is met, then an airman is diagnosed with substance dependence, whereas clinical medicine required at least three. The second distinction is that there were seven factors in the DSM-IV, rather than four. Finally, the DSM-IV requires that the factors must be met within 12 months, whereas the regulations inquire if any one of the factors have ever been met in the airman’s lifetime.
One must look further back in time since the regulations do not match either current clinical medicine or the DSM-IV. The DSM-III also uses dependence and abuse, however the diagnosis of the 1980 publication reads as follows: “Substance Dependence categories requires only evidence of tolerance or withdrawal, except for Alcohol or Cannabis Dependence, which in addition require evidence of social or occupational impairment from use of the substance or a pattern of pathological substance use.”[4] While the 1980s medicine more closely relates to the FARs, at least two of the standards must be met for a diagnosis of dependence, and therefore still inconsistent.
The FAA also identifies the Airman’s BAC when reporting an alcohol event, such as a DUI. If the BAC at the time was above .15, the FAA will revert to dependence rather than abuse under the theory of tolerance. This is inconsistent, however, with the definition of tolerance. Under the FAA’s practice, if an airman has never had a sip of alcohol in his life, then gets drunk to the level of .15 or greater, receives a BAC recording during an event, and never drinks again, he will still be assigned a diagnosis of dependence according to the Airman Medical Standards.
To put it simply, the Federal Aviation Regulations, with regard to substance use, have never been in step with clinical medicine. While it is understandable that the standards for pilots should be higher than the general population, the current regulations are problematic for a number of reasons.
The distinction between abuse and dependence in the current DSM was abandoned due to at least four findings by the APA. The fact that this distinction remains in the FARs may be the most problematic issue within aviation medicine today. The four findings, as follows, are largely consistent with the current issues in aviation medicine:
(1) the distinction provided little guidance for treatment; (2) the distinction created “diagnostic orphans” (individuals who endorsed two dependence symptoms and no abuse symptoms and therefore did not meet any diagnostic criteria); (3) the hierarchical structure did not follow the anticipated relationship between abuse and dependence (that abuse was largely a less severe prodrome of dependence); and (4) the separation caused the abuse diagnosis to suffer from significant reliability problems.[5]
While the new DSM fixed these issues, the current regulations still run into these barriers on a daily basis. For example, any pilot who has ever been diagnosed with one of the factors of dependence is thrown in the bucket of substance dependent and treated the same in the eyes of FAA Medical Certification, regardless of the severity of their situation. Due to the current binary standards in the FARs, pilot treatment is severely lacking personalization for each pilot’s needs.
Pilots who are no longer substance dependent (recovered) or are on the mild end of the clinical spectrum are still treated the same as the most severe alcoholics. This process, while meeting the needs of the severely dependent few, is overly burdensome, costly, and unnecessary to the majority who have already recovered, or are mildly dependent. When a pilot is diagnosed with substance dependence pursuant to the FARs, in order to keep their license, they will be required to enter into a monitoring program known as The HIMS Program (Human Interventional Motivational Study). The first stages of the program will consist, for every pilot entering this program, of the following:
This one size-fits-all style of monitoring is a direct result of the out-of-touch regulations leaving no guidance for effective treatment. Furthermore, as of April 1, 2020, this program is a lifetime program, where pilots will be faced with monitoring for the remainder of their flying careers. Pilots with questionable or mild regulatory diagnoses will face the exact same requirements from the start as the most severe substance dependent pilots. Since insurance is unlikely to cover any of the HIMS components, non-career pilots are forced to pay large sums to simply continue flying for fun. As a result, pilots are disincentivized from getting any help knowing what they are facing for the rest of their life, leading them to only get worse over time.
What Needs to Change
It is hoped that the Working Group might modernize the regulations and put them in touch with the current DSM-5-TR and update the HIMS monitoring requirements in the same manner. In turn, an airman who is on the severe end of the spectrum for substance use disorder would engage in full monitoring and recovery, whereas an airman who is on the mild end, or in sustained remission, would be directed towards a reduced monitoring program from the start. Thus, more pilots would engage with treatment, the treatment would be tailored to each individual’s needs, and the regulations would be consistent with clinical medicine, rather than the current outdated and binary process.
The FAA has an excellent opportunity to implement changes and improve aeromedical safety through the reauthorization and the soon to be established Working Group. It is our hope that they enact the much-needed changes to the regulations for the first time in almost 30 years.
To learn more about the HIMS Program and lifetime monitoring, click here.
Taylor Dickmann is an Aviation Law Clerk under the direction of Joe LoRusso and Zeke Denison at the Ramos Law Firm – Aviation Division in Denver, Colorado. Taylor is a 2L student at the University of South Dakota School of Law and plans to continue flying and practicing Aviation Law following his graduation in 2025.
Zeke Denison is an aviation attorney with the Ramos Law Firm – Aviation Division, focusing on airman certificate defense. Ramos Law was founded by Dr. Joseph Ramos, MD. JD. In addition to being an attorney, Dr. Ramos is a medical doctor and an active pilot. In 2022, Ramos Law opened its aviation law division, directed by Joseph LoRusso, JD., which focuses on airman certificate defense and crash litigation. The aviation law team is passionate about keeping pilots informed, certified, and in the air
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