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For the Record: Prescription for trouble

Consider your answer to ‘current’ medication use

“Do you currently use any medications?” is asked by both the FAA’s medical application and the BasicMed exam checklist, and it seems some applicants interpret the question in a very literal way.

Two cases involving pilots who asserted that they did not “currently use” any medication at the time they completed the medical application might serve as a caution to others to carefully consider their own answers to this question.

Question 17(a) is the same on both the MedXPress application for a first, second, or third class medical certificate and the Comprehensive Medical Examination Checklist (CMEC) for BasicMed: “Do you currently use any medication (Prescription or Nonprescription)?” For “yes” responses, the MedXPress form seeks medication name, dosage, dosage unit, and frequency, and whether the medication was previously reported; the CMEC asks for medication name, dosage, and frequency.

It is critical that pilots properly answer questions on the medical application and CMEC. AMEs and state-licensed physicians use this information to determine whether a medication or the underlying condition it may be used to treat prevents a pilot from safely flying. Under FARs 67.403 and 61.59, the FAA may revoke all the certificates of an airman who knowingly makes a false statement on a medical application or BasicMed CMEC.

Cases alleging that a pilot intentionally falsified his or her response about medication use often turn on the pilot’s credibility and understanding of the phrase “currently use,” especially when the pilot asserts, as a defense, that he or she believed the answer provided was correct. In a 1992 case, a pilot’s certificates were revoked based upon allegations that he falsified two medical applications by, among other things, failing to report the use of lithium and Prozac. He testified that he had taken lithium only infrequently, but pharmacy records indicated that over an 864-day period, prescriptions for 2,700 lithium tablets had been issued and filled.

Ultimately, the law judge concluded that the pilot attempted to avoid reporting the lithium by theorizing that, if he did not take this medication during, shortly before, or shortly after the time of his application, he could state he was not currently taking it. This, in the law judge’s view, resulted in an intentionally false statement.

On appeal, the pilot asserted that he truthfully answered the question in accordance with common use of the word “currently.” The NTSB agreed that the phrase “‘currently use any medication’ must be read as it would be normally and reasonably understood” but disagreed on how it applied in this case. Deciding to uphold the revocation, the board reasoned that the pilot’s filling of the prescriptions supported a finding of “current use” because the medication was “a recurrent and standard part of his treatment to the extent that a reasonable person would consider it a medication currently in use.”

Following the hearing in another case, in 2019, the law judge found that the pilot had been prescribed medication and was intending to fill the prescription and begin using it, but not until the day after he completed his medical application. Concluding that “such actions are deceptive and designed to circumvent the purpose of the medical application process in question 17(a) specifically, which is to identify medications that may impact an individual’s medical fitness to fly,” the law judge upheld revocation of the pilot’s certificates.

On appeal, the NTSB agreed with the law judge’s findings and noted that it considers “the incentive an airman...would have for not disclosing information that presumptively would be significant to the certification decision” and found that the evidence established that the pilot was “an individual with a strong motive not to disclose his use of [medication], whose words and actions are indicative of an individual trying to conceal his use of an unapproved medication.”

In addition to safety concerns about medication use and flying, there are various ways the FAA may learn about a pilot’s undisclosed use of medication, with one example being FAA demands for additional medical information under FAR 67.413. These demands are often made after a medical condition is disclosed to the FAA or identified by an AME’s examination, and it is not unusual for prescription records, sometimes dating back 10 years, to be among the requested documents.

Pilots with any concerns about the medical application or CMEC should seek clarification prior to completing the application. Pilot Protection Services members can speak with AOPA Legal Services Plan attorneys and AOPA medical certification specialists. The FAA’s Do Not Issue—Do Not Fly list (faa.gov/go/dni) provides important guidance as to how certain medications affect an airman’s eligibility to fly.

Email [email protected]

The AOPA Legal Services Plan is offered as part of AOPA’s Pilot Protection Services (aopa.org/pps).

Jared Allen

Mr. Allen is AOPA’s Legal Services Plan (LSP) senior staff attorney and is an instrument-rated private pilot. He provides initial consultations to pilots through the LSP when the FAA has contacted them about potential FAR violations. Jared has helped numerous pilots successfully navigate through compliance actions.

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