58 th Annual Air Safety Forum. August 6-9, 2012

Transcription

1 58 th Annual Air Safety Forum August 6-9, 2012

2 Legal Standards Governing the Reporting of Medical and Other FAA Required Information; Managing Risks and Potential Consequences for Failure to Properly Report Suzanne L. Kalfus, Senior Attorney Legal Department

3 I. Pilot Obligations to Provide Documents where pilots provide information Log books Maintenance log Medical application Information to FAA FAA enforcement, largely medical cases Failure to report alcohol-related offenses Failure to report medications and medical professional visits

4 A. Alcohol-Related Offenses 14 C.F.R Reports Conviction Motor vehicle actions Arrest alone doesn t require report Medical Application Canadian Law re: inadmissible offenses

5 B. Medical Application (revised in 2008) Current medications Diagnoses Visits to health professionals

6 B. Medical Application (revised in 2008) Question 18(v) Asks about history of any arrests Along with convictions for DUIs/DWIs and/or administrative actions resulting in Denial, suspension, cancellation or revocation of driving privileges, or Which resulted in attendance at an educational or rehabilitation program

7 B. Medical Application (revised in 2008) Question 18(w) Non-traffic convictions Misdemeanors or felonies

8 8

9 C. FAA Policy Change in 2009 re: Motor Vehicle Actions Consequences for first incident Under certain circumstances Even if properly reported

10 Pilots Required to Provide FAA With: Complete copies of all court records associated with the offense (must include the police/investigative reports and blood/breath alcohol content (BAC) All records associated with any care, treatment, or assessments/evaluations for alcohol abuse or related disorders)

11 A detailed statement from the pilot regarding his past and present patterns of alcohol use and of the circumstances surrounding the offense A complete copy of the pilot s current driving record from the DMV from any state in which he held a driving record

12 Additionally: A substance abuse evaluation is required if: BAC was.15 or greater, or Pilot refused to submit to an alcohol test

13 D. Medical Standards vs. DSM Code (Diagnostic and Statistical Manual of Mental Disorders)

14 FAA Regulations Mental. Mental standards for a first-class airman medical certificate are: (a) No established medical history or clinical diagnosis of any of the following:... 4) Substance dependence, except where there is established clinical evidence, satisfactory to the Federal Air Surgeon, of recovery, including sustained total abstinence from the substance(s) for not less than the preceding 2 years. As used in this section (i) Substance includes: Alcohol; [and other drugs]

15 67.107(a) cont d. (ii) Substance dependence means a condition in which a person is dependent on a substance, other than tobacco or ordinary xanthine-containing (e.g., caffeine) beverages, as evidenced by (A) Increased tolerance; (B) Manifestation of withdrawal symptoms; (C) Impaired control of use; or (D) Continued use despite damage to physical health or impairment of social, personal, or occupational functioning. (b) No substance abuse within the preceding 2 years defined as:

16 (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.

17 II. Legal Standards Governing the Submission of False or Incorrect Information on Medical Application FAA s Compliance and Enforcement Program Manual updated 3/30/10 (FAA Order B) Case-law

18 DUI/DWI Program, Falsification of Drug Convictions and Airman Medical Certificate Violations Fig. B-4-a. Sanctions related to DUI/DWI Program (1) Intentionally false or fraudulent entry on medical certificate application regarding a DUI conviction or administrative action under 14 C.F.R (a)(1) (2) Making an incorrect statement on a medical certificate application regarding a DUI conviction or administrative action under 14 C.F.R (c)(1) (3) Failure to report a motor vehicle action (MVA) under 14 C.F.R (e) (4) Two MVAs arising from separate incidents within 3 years, and reported both under 14 C.F.R (d) (5) Three MVAs arising from separate incidents within 3 years under 14 C.F.R (d) Civil Penalty Certificate Action Revocation of all airman and medical certificates Indefinite Suspension (pending correction of application and determination of qualification) or Revocation of medical certificate 15- to 45-day Suspension of all part 61 certificates 90- to 120-day Suspension of all part 61 certificates Revocation of all part 61 certificates

19 DUI/DWI Program, Falsification of Drug Convictions and Airman Medical Certificate Violations Fig. B-4-b. Airman Medical Certificate Violations (1) Intentionally false or fraudulent statement on an application for a medical certificate or on a request for any special issuance or SODA under 14 C.F.R (a)(1) (2) Intentionally false or fraudulent entry in a record that is kept, made or used to show compliance under 14 C.F.R (a)(2) (3) Reproduction of a medical certificate for fraudulent purpose under 14 C.F.R (a)(3) (4) Alteration of medical certificate under 14 C.F.R (a)(4) (5) Making an incorrect statement on a medical certificate application under 14 C.F.R (c)(1) Civil Penalty Certificate Action Revocation of all airman and medical certificates Revocation of all airman and medical certificates Revocation of all airman and medical certificates Revocation of all airman and medical certificates Indefinite Suspension (pending correction of application and determination of qualification) or Revocation of medical certificate

20 Administrator v. Boardman (1996) Pilot answered no to Q18-W Any non-traffic convictions (misdemeanors and/or felonies) Was convicted 5 months earlier of 2 counts of indecent liberties with a child FAA revoked all certificates based on charge of submitting intentional false statements Pilot testified he did not read the instructions or the application He contended one time inadvertent error

21 Judge Fowler s Decision NTSB overturned ALJ Significant language regarding failure to read application Act of submitting medical application invites FAA reliance Tendering application with wrong answer when pilot chose not to read it, shows willful disregard of the truth or falsity of information submitted Evidences intent to submit false information Decision not appealed

22 Cited with approval by D.C. Circuit in Dillman v. NTSB, 588 F.3d 1085, 1094 (D.C. Cir. 2009) Standard recently upheld again by D.C. Circuit Court in Cooper v. NTSB, 660 F.3d 476 (D.C. Cir 2011) FAA s willful disregard standard for intentional falsification of statement on pilot medical application is reasonable interpretation of regulations NTSB s deference is not arbitrary, capricious, abuse of discretion or contrary to law Intentional falsification found despite pilot s report of arrest and suspension to FAA two years earlier and claim he lacked motive to falsify

23 Finazzo v. FAA (9 th Cir. 2011) Pilot accused of falsifying medical applications NTSB reversed favorable ALJ decision finding pilot s explanation incredible and against the overwhelming weight of the evidence We argued Board should have deferred to ALJ s credibility finding as intent to falsify is a credibility-based determination best left to ALJ

24 Finazzo v. FAA (9 th Cir. 2011) (cont d) 9 th Cir. agreed in a 2-1 decision, holding that NTSB acted arbitrarily and capriciously by not following its own precedent or departing from precedent without a reasoned explanation. It failed to defer to ALJ without substantial evidence to overturn the ALJ s credibility based finding. Current status no medical certificate as of yet

25 E. Helping a Pilot Avoid Enforcement Action After Falsely/Inaccurately Reporting Informing the FAA before it discovers the error, even if late Reporting discretely vs. explicit admission of nondisclosure The significance of the medical evidence not disclosed Would medical certification have been granted if timely reported?

26 Staying in the medical rather than the enforcement arena Where best to report? Oklahoma City / Airman Certification Branch Regional Flight Surgeon Washington, D.C.

27 F. Recent Cases

28 G. Lessons Learned FAA opinion of non-hims psychiatrist substance abuse evaluations w/out collateral sources of information (pilot self-report only) Differences between DSM and FAR Substance Dependence / Abuse Standards Challenges of Medical Appeals to NTSB pilot bears burden to prove he meets medical standards Lack of timely FAA action on internal medical reviews no FAR timeframes, unlike 60-day clock for review of AME determination

29 Time involved in medical certification cases (e.g., first time DUI with high BAC 21 months from arrest to return to work) Success of enforcement action does not lead to medical qualification Much greater number of Special Issuances

30 Approaches Failure to timely report motor vehicle actions Failure to report substance abuse diagnosis and treatment Any rule violations? Positive DOT tests?

31 Failure to report psychiatric diagnosis and prescribed antidepressant or anti-anxiety medication - Still using medication? - How long since use? - Diagnoses/medication eligible for FAA Special Issuance Protocol? - Any substance abuse issues? - Any rule violations (positive DOT tests?) - D.C. Enforcement Branch

32 Q & A