AOPA Pilot Magazine - November 2019 - 28

FOR THE RECORD

A toxic proposal

BY JARED ALLEN

Drug testing without pilots' knowledge or consent

JARED ALLEN is

AOPA's Legal
Services Plan senior
staff attorney and
an instrument-rated
private pilot.

A PROPOSED FAA STUDY would randomly collect and
conduct toxicology testing on 7,500 anonymous urine
specimens from all pilots examined for a medical certificate over a three-year period, without the pilots'
knowledge or explicit consent. While AOPA has joined
other industry associations to advocate against the study
and seek alternatives, all pilots who will be applying for
a medical should be aware of the proposal.
After the NTSB examined the prevalence of drugs
found by toxicology testing of fatally injured pilots
between 1990 and 2012, it issued several recommendations to the FAA, including recommendation A-14-95.
It suggests the FAA "conduct a study to assess the prevalence of over-the-counter, prescription, and illicit
drug use among flying pilots not involved in accidents,
and compare those results with findings from pilots
who have died from aviation accidents to assess the
safety risks of using those drugs while flying."
In response, the FAA's Civil Aerospace Medical
Institute (CAMI) devised a study to randomly collect and
test urine specimens that pilots provide to aviation medical examiners (AMEs) during medical exams. Normally,
a pilot's urine specimen is collected by an AME during
a medical exam, tested for indicators of kidney function
and diabetes, and then discarded. The NTSB's recommendation did not require or request testing of pilots' urine.
The proposal calls for the FAA to choose five to six
AMEs in each FAA region, whose practices are representative of the pilot population, to participate. The AMEs
would fill out a label for each specimen selected, indicating class of medical applied for, pilot's age range, and
highest certificate obtained. Specimens would be refrigerated until being sent by overnight delivery to the FAA.
The FAA's Toxicology Research Team would carry
out a full toxicology drug screen using procedures for aviation accident investigations, including about 180 drugs
of interest to the FAA. According to the FAA, no other
testing would be allowed; specimens would be secured
in a freezer, and destroyed within one year of analysis.
Neither AMEs nor the FAA would be required to
obtain the pilot's explicit consent for their urine specimen to be selected for the study or inform the pilot that
his or her specimen was chosen. An FAA institutional
review board decided the study met exemption criteria
under federal rules that otherwise require informed consent. By reusing urine specimens already being collected
for medical certification purposes, it is the FAA's position

28 | AOPA PILOT November 2019

that the study is "secondary research." Federal rules do
not require consent for secondary research if information
is recorded in such a manner that the identity of the subjects cannot readily be ascertained and the investigator
does not contact or re-identify the subjects.
Only recently has the FAA proposed adding a statement to the online MedXPress medical application that
"provides information about the study, emphasizes the
anonymity of the samples, and states that the results will
not be used in any disciplinary or legal action against
any airman." However, if a pilot is linked to a result, no
federal aviation regulation specifically prohibits the use
of the study information for enforcement or certification purposes. The FAA has implemented such rules for
other programs, such as FAR 91.25's prohibition against
use of NASA Aviation Safety Reporting System reports
for enforcement purposes. Furthermore, should a pilot
decide not to participate, the only option is to not apply
for a medical. According to the FAA, allowing pilots to opt
out of the study "would invalidate the study due to differential selection impacting all study variables."
Should the study proceed, the FAA suggests its results
would be used to "establish regulations regarding the
approval of drugs for use by pilots and to warn pilots of
the risks associated with these medications." A pilot's use
of drugs is addressed by existing rules such as FAR 91.19,
which prohibits acting or attempting to act as a crewmember while using any drug that affects the pilot's faculties in
any way contrary to safety. Likewise, FAR 61.53 prohibits
pilots from flying if they are taking medication for a medical condition that results in the pilot being unable to meet
the requirements of their medical certificate.
AOPA is strongly fighting the study. In a joint letter
to the FAA, AOPA and other pilot groups urged abandonment of the study entirely, asserting they "believe the
study does not comply with legal requirements, represents a waste of government funds and resources, and will
further erode any trust left between the pilot community
and the Office of Aerospace Medicine." The groups also
detailed their "strong belief that outreach, communication, and education are areas where the FAA should focus
its resources" and expressed their willingness to partner
with both the FAA and NTSB on those efforts.
AOPA
EMAIL jared.allen@aopa.org

The AOPA Legal Services Plan is offered as part of
AOPA's Pilot Protection Services (aopa.org/pps).
http://www.aopa.org/pps
AOPA Pilot Magazine - November 2019

Table of Contents for the Digital Edition of AOPA Pilot Magazine - November 2019
