Appeal for FAA Certified When You Don’t Meet the Standards

If you receive a final denial of your application for a medical certificate from the FAA or the FAA issues an order of suspension or revocation of your existing medical certificate, you can appeal the decision to the NTSB. Your appeal will be heard by one of the board’s administrative law judges, like the hearing you would receive on appeal of an enforcement case.

If the appeal is from an FAA order suspending or revoking your medical certificate, the FAA has the burden of proving by a preponderance of the evidence that you are not medically qualified. In the case of an FAA denial of your application for medical certificate, however, you have the burden of proving (again, by a preponderance of the evidence), through the sworn in-person testimony of qualified physicians supported by copies of your medical records, that you are qualified. In either case, if you convince the ALJ, the NTSB can order the FAA to issue you a medical certificate or set aside the FAA’s order suspending or revoking your current medical certificate.

From the ALJ, the route of appeal goes to the full board, court of appeals, and Supreme Court under the same procedures described for enforcement cases.

Not all cases of denial, suspension, or revocation of a medical certificate are appropriate for appeal. If you have a history or diagnosis of one of the specific disqualifying conditions, and there is no real question that the history or diagnosis is accurate, appeal to the NTSB is futile. In that situation, the petition for special issuance is the only process by which you can have any hope of obtaining your medical certificate. If, however, the FAA position is based upon an erroneous or a subjective application of the catch-all conditions, an appeal to the NTSB may succeed. If your physicians testify convincingly that your physical condition does not make you an especially risky pilot or that the medication or treatment you are taking is unlikely to interfere with your safe performance in flight, the NTSB may overrule the FAA.

Getting FAA Reconsideration Certified When You Don’t Meet the Standards

Upon review of your application and completion of your examination, your AME has three alternative courses of action available:

(1) if you appear qualified, issue the medical certificate;

(2) if your qualifications are in question, defer the certification decision to FAA superiors, who review the question and decide whether to issue or deny your certificate; or

(3) if you appear disqualified, deny your application.

If your AME defers issuance, the review process begins automatically without further action on your part, but if your AME denies you a medical certificate, you must request that he issue you a denial slip and forward your application to the FAA Aeromedical Certification Branch in Oklahoma City for reconsideration of the denial. If this step is not taken, you are considered to have withdrawn your application for a medical certificate.

If the Oklahoma City office also denies your application, it may be necessary for you to request further reconsideration by the Federal Air Surgeon in Washington, D.C., in order to preserve your appeal rights.

According to the U.S. Government Accountability Office (GAO), each year about 400,000 candidates apply for an FAA airman medical certificate and complete the medical exam to determine whether they meet FAA medical standards. On average, about 90 percent are certified by their AME or regional flight surgeon. Of the remaining applicants, about 8.5 percent receive a special issuance medical certificate, while only about 1.2 percent are not medically certified as fit to fly.

Getting FAA Certified When You Don’t Meet the Standards

You may have a “history or diagnosis” of one of those specific disqualifying conditions or otherwise fail to meet Part 67 standards but now present no special risk. Perhaps you had a heart attack but then underwent heart surgery, quit smoking, went on a low cholesterol diet, and are following a good exercise regimen so that you are now no more likely to have another heart attack than anyone else of your age. Maybe you were able to beat an alcohol or drug habit. Maybe the history or diagnosis was erroneous (doctors are human and sometimes make mistakes too). Or perhaps the Federal Air Surgeon has disqualified you because in his opinion your condition, medication, or current course of treatment is incompatible with safe flying. Your treating physicians may strongly disagree with the Federal Air Surgeon’s opinion. Shouldn’t you be free to fly? Yes, and if you can convince the FAA that despite your medical history you are now fit to fly, you can.

Statement of Demonstrated Ability (SODA)
Pilots who have a static disability that is not expected to worsen may be certified through a process referred to as a Statement of Demonstrated Ability (SODA).

Let’s start with the easiest ones: vision and hearing problems. If your vision doesn’t meet FAA standards without eyeglasses or contact lenses but does with these lenses, all that may be required is for your AME to add this limitation to your medical certificate: “Holder shall wear correcting lenses while exercising the privileges of his/her airman certificate.”

If you failed the color vision test, you may be able to get your medical certificate by arranging a test to determine whether you are able to distinguish between the red, green, and white of the control tower light gun that would give you directions in the event of a radio failure. If you can, you get your medical certificate even if your color vision isn’t perfect. If your hearing is below standards but you can demonstrate that you can still hear and understand ATC instructions and flight deck conversation, you should be able to get your medical certificate, although it may have a limitation on it requiring you to use a noise-canceling headset while flying.

If you have a below-the-knee amputation of a leg, but have a prosthetic limb which generally enables you to function normally, and your AME is of the opinion that this would present no problem with operating the aircraft’s controls, she has authority to issue you a student pilot certificate with the limitation “For Student Pilot Purposes Only” to enable you to take a checkride with an FAA examiner. If you pass the checkride by demonstrating that you are in fact able to operate all of the aircraft’s controls despite your disability, you will be issued a SODA.

Special Issuance
If your problem is a history or diagnosis of one of the specific disqualifying conditions listed above, but you can prove that in spite of that history you are unlikely to become suddenly incapacitated while flying (or to fly irresponsibly), you may obtain an FAA medical certificate by “special issuance.” The burden will be on you and your doctors to convince the Federal Air Surgeon that you are now an acceptable risk to flight safety. If you succeed, the Federal Air Surgeon has the discretionary authority to issue you any class of medical certificate by special issuance, even though you don’t meet the letter of the law. Long a tedious, time-consuming, and frustrating bureaucratic process, the Federal Air Surgeon has delegated special issuance authority for certain medical conditions to the AME under new published guidelines called “Certificates an AME Can Issue (CACI).” This allows an AME the discretion to issue a medical certificate to applicants with arthritis, asthma, glaucoma, chronic hepatitis C, hypertension, hypothyroidism, migraine and chronic headache, pre-diabetes and renal (kidney) cancer. This delegation has simplified and expedited certification for many airmen, and this list is likely to continue to expand.

One exception to the possibility of certification through the special issuance process is the diabetic who requires insulin injections to control the disease. The FAA long considered insulin-treated diabetes mellitus (ITDM) absolutely disqualifying for any class of medical certificate. No special issuance medical certificates of any class were granted to individuals with ITDM. In response to a petition from the American Diabetes Association, the FAA has opened third-class aviation medical certification by special issuance to individuals with IDTM who haven’t experienced any further complications, such as heart or kidney disease, neurological abnormalities, or vision problems. The conditions for special issuance to individuals with ITDM, which include stringent monitoring requirements, are available on the FAA’s website. This change has opened up the joy and freedom of personal flying (under a student, recreational or private pilot certificate) to hundreds of such individuals, at this writing. Flight operations by these individuals are, however, limited to the United States, as ICAO has yet to adopt comparable rules. It continues to be the FAA’s position that individuals with ITDM still pose too great a risk of sudden incapacitation to allow first or second-class medical certification as would allow them to carry passengers for hire.

Periodic renewal of medical certificates issued under this special issuance process, once as slow and cumbersome as getting the first special issuance, is now being expedited under the FAA’s “Quick-Cert” program.

This program is part of the Federal Air Surgeon’s goal to provide “same-day medical certification” to qualified applicants.

According to the NTSB, medical causes are a factor in only about 2.5 percent of civil aviation accidents in the United States. The safety record of pilots operating under specially issued medical certificates has proven every bit as good as that of the general pilot population over the years, so this increasingly enlightened and humane process of personalized evaluation is likely to remain a feature of aviation medical certification.

FAA Health Standards

Doctors and lawyers tend to communicate with their respective colleagues in their own professional languages, which are often largely unintelligible to outsiders. 14 CFR Part 67, which describes the medical standards and certification procedures for aviators, was written by doctors and lawyers in a not particularly readable mixture of the languages of both professions. To make sense of the specific FAA medical standards, it is helpful to bear in mind that each of these standards was designed to enable the FAA to answer the following basic questions about your health:

1.       Can you see well enough to control the aircraft, see and avoid other aircraft, distinguish runways from taxiways at night, and recognize light gun signals in the event of radio failure?

2.       Can you speak and hear well enough to effectively converse with other crewmembers on a noisy flight deck and with air traffic controllers?

3.       Are you likely to suffer disorienting vertigo or loss of equilibrium in flight?

4.       Are you likely to suffer a suddenly incapacitating medical event in flight?

5.       Are you likely to operate an aircraft irresponsibly so as to endanger other people?

The specific medical standards are designed so that if you have any medical condition that would result in an unfavorable answer to any of these basic questions, you are not qualified for an FAA medical certificate. Therefore, your aviation medical examiner (AME) should not issue you a medical certificate if you fail to pass the hearing and vision requirements of Part 67 or if you have a history or diagnosis of any of the following “specific disqualifying conditions”:

1.       Diabetes requiring insulin or other hypoglycemic medication for control. (If your diabetes can be controlled by careful attention to diet, you are not disqualified.)

2. Heart attack (myocardial infarction).

3. Angina pectoris (the crushing chest pain that is your clue that you are having a heart attack).

4. Other evidence of coronary artery disease (such as an irregular electrocardiogram (EKG).

5. Heart valve replacement.

6. Permanent cardiac pacemaker implantation.

7. Heart replacement (transplant).

8. A psychosis.

9. A personality disorder that has repeatedly manifested itself by overt acts.

10. A bipolar disorder (formerly known as manic depressive disorder).

11. Epilepsy.

12. A disturbance of consciousness without a satisfactory medical explanation of the cause.

13. A transient loss of control of nervous system function(s) without a satisfactory medical explanation of the cause (such as a so-called transient ischemic attack).

14. Substance dependence, abuse or misuse (including alcohol and a wide variety of drugs and controlled substances) within the previous 2 years.

Compare these “specific disqualifying conditions” to the previous basic questions the FAA is trying to answer about your health. The vision standards are designed to be sure that you can see well enough to control the aircraft, see and avoid other aircraft, distinguish runways from taxiways at night, and recognize light gun signals in the event of radio failure. Hearing and speech standards are to ensure you can communicate with other flight crewmembers on a noisy flight deck and with air traffic controllers.

Concern for risk of sudden and unpredictable in-flight incapacitation compels your AME to disqualify you if you have diabetes requiring insulin (putting you at risk of incapacitation by insulin shock), have suffered a heart attack or have coronary artery disease (which can lead to an incapacitating heart attack). The same concern requires your AME to disqualify you if are epileptic, or have experienced a loss of consciousness without a satisfactory medical explanation (so that your next seizure might happen while you’re at the controls of an aircraft in flight).

Concern over potential irresponsible operation of aircraft endangering others disqualifies people having a psychosis or other psychiatric problems that have led to irrational behavior, as well as substance abusers.

A “history or diagnosis” of any one of the specific disqualifying conditions prevents your AME from issuing you an FAA medical certificate regardless of how good your health may otherwise appear during the examination.

There are also catch-all subparagraphs that disqualify you for any other physical condition that in the opinion of the Federal Air Surgeon could make it unsafe for you to exercise airman certificate privileges, or if you are taking any medication or undergoing any course of treatment that could adversely affect your performance.

Some examples of physical conditions the Federal Air Surgeon has found disqualifying under this “other physical condition” catch-all, depending on severity and treatment, include arthritis, asthma, chronic lymphocytic leukemia, colitis, colon cancer, glaucoma and ocular hypertension, hepatitis C, hyperthyroidism, hypothyroidism, lymphoma and Hodgkin’s disease, migraine syndrome, prostate cancer, sleep apnea, and urolithiasis (kidney stones).

Some examples of medications the Federal Air Surgeon presently considers disqualifying include antidepressant or serotonin blocker drugs (SSRIs) such as Prozac, Paxil, and Zoloft.

Aviation Medical Cases

In the United States, you must hold a current FAA airman medical certificate in order to serve as a pilot or air traffic control tower operator. The exceptions are that glider and balloon pilots may self-certify that they have no known medical defects which would make them unable to pilot one of these aircraft, and a sport pilot candidate is not required to possess an FAA airman medical certificate but may use a valid U.S. driver’s license as proof of medical fitness. Any restriction on the driver’s license becomes a medical restriction for exercising sport pilot privileges. 

If the previously mentioned proposed Pilot’s Bill of Rights 2 is enacted into law, those relaxed medical certification standards now in place for sport pilots will be expanded to cover all pilots operating aircraft with a maximum certified gross take- off weight of no more than 6,000 lbs with no more than 5 passengers or 6 occu- pants (“covered aircraft”), at or below 14,000 feet above mean sea level and at an airspeed not to exceed 250 knots, whether IFR or VFR, as long as no passenger or property is being carried for compensation. This proposal is intended to help re- verse the current steeply declining number of active U.S. general aviation pilots.

The FAA’s scrutiny of applications for medical certification is heightening with increasing accumulation of medical and related data on individuals in computer data banks of various government agencies and increasing cross-matching of this data between agencies. For example, in order to obtain an FAA medical certificate, you are now required to give the FAA written permission to access your driving record file in the National Driver Registry (NDR) database of traffic violations. NDR data is routinely cross-matched with information you provide on your application for an FAA airman medical certificate. Other data in the possession of federal agencies has also been cross-matched with FAA airman medical certificate application data and used for enforcement purposes. This trend is likely to grow in this new era of big data. Aviators who are unaware of this process and the potential consequences frequently succumb to the temptation to be less than candid on applications for medical certification, with immediate and catastrophic results to their aviation careers. Personal, financial, or employer-imposed pressures may also lead a person who is not fully cognizant of the possible consequences to act as a pilot or required crew member at a time when medically disqualified. The purpose of this chapter is to ensure that you have a practical working knowledge of how to analyze various aeromedical problems and dilemmas and arrive at the best solution or course of action.

I often see a classified ad listing an aircraft for sale that tells a tale of tragedy of Shakespearean depth encapsulated in the succinct phrase: Must sell, lost medical.

It’s not often that I’m moved almost to tears by Trade-A-Plane but that one gets me every time. I always want to call the seller up and say, “Wait! Before you sell your aircraft, are you sure you’ve done everything possible to get your medical certificate back?” You see, you don’t always have to take no for a final decision.

Sometimes the FAA can be persuaded to change its mind and reinstate your medical and in some circumstances the NTSB can order the FAA to issue or rein- state your medical certificate. We will now examine how the medical certification process and appeal procedure works. The procedure is very different from that of enforcement cases in important respects.

Popular Posts