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Dealing with FAA Denial of an Airman Medical Application

by Greg Reigel 1. October 2008 00:00
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Some airmen dread the regular pilgrimage to their local aviation medical examiner ("AME"), especially if they have experienced health problems since obtaining their last medical certificate. After all, if for some reason the AME is unable to issue an airman a medical certificate, that airman will be grounded for some period of time and, possibly, permanently. However, if an airman finds him or herself in this situation, the airman does have some limited recourse.

The Application Process

When an airman arrives at his or her AME's office, the airman completes an Application for Medical Certificate in which the airman must disclose prior/current medical condition and history. If the airman discloses a medical condition that is disqualifying under FAR Part 67, or if the AME's examination of the airman reveals a disqualifying medical condition, the AME will likely defer the application to the FAA Aeromedical Certification Division for a decision on whether to issue the airman a medical certificate.

Depending upon the condition, an actual diagnosis of a disqualifying medical condition may not be required for the FAA to deny a medical application. Simply presenting with the disqualifying symptoms or condition, or having experienced the symptoms or condition in the past, regardless of whether the airman currently has the symptoms or condition, may be sufficient justification for the FAA to deny the medical certificate.

If the airman presents with a disqualifying condition that precludes issuance of an unrestricted medical certificate, the FAA will typically also consider whether the airman qualifies for a special issuance under FAR 67.401. Grant of a special issuance is subject to the FAA's discretion. To obtain a special issuance, an airman must show that "the duties authorized by the class of medical certificate applied for can be performed without endangering public safety during the period in which the Authorization would be in force." If the FAA determines that a special issuance is not appropriate, it will issue the airman a letter indicating that it is denying the airman's application for medical certificate and the basis for the denial.

Responding To A Denial

In addition to denying the airman's application, the FAA's denial letter will also state that the airman has 30 days within which to request reconsideration of the FAA's denial pursuant to FAR 67.409. If reconsideration is not requested within that time, the airman "is considered to have withdrawn the application for medical certificate." When requesting reconsideration, usually via letter to the FAA, the airman may also submit additional information for the FAA to review and consider including doctor and expert opinions, medical reports, test results etc.

Once reconsideration is requested, the FAA does not have a deadline by which it must make a decision on the airman's request for reconsideration. Unfortunately, this can often result in a considerable delay during which time the airman's application is in limbo. If the FAA ultimately reaffirms its initial denial, that denial is then final and can be appealed to the National Transportation Safety Board ("NTSB").

Appealing A Denial

An airman appeals the FAA's denial of a medical certificate by filing a petition with the NTSB requesting a hearing before an administrative law judge ("ALJ"). An airman may only appeal the denial of an unrestricted medical certificate. Since the decision to grant a special issuance is at the discretion of the FAA, the NTSB will not entertain an appeal of the denial of a special issuance.

A hearing is then held at which both the airman and the FAA present evidence through documents and testimony from doctors, medical experts, the FAA and the airman. Oftentimes the airman's treating physician(s), who usually don't have aviation medicine training or experience, will testify that the symptoms and/or condition do not pose a threat to aviation safety and that the airman should be able to fly safely. However, when this type of opinion is presented at the hearing in contradiction to the FAA's expert witnesses, the Board will usually give greater weight to the FAA's expert witnesses based upon their "superior" qualifications in aviation medical standards.

In order for the ALJ to reverse the FAA's denial, the airman must prove by substantial, reliable and probative evidence that the airman is qualified for the medical certificate for which he or she applied, without limitations. In light of the NTSB's deference to the FAA's medical experts, this can be a very difficult burden to meet. Additionally, an appeal is expensive: Expert medical testimony and attorney fees required for the appeal process can be quite costly.

Conclusions

What can you do if you have had any health issues or medical conditions before you apply for your medical certificate? Do your research before you go to your AME. Is the condition disqualifying? Are you taking medication that is disqualifying? If so, or if you are in doubt, you may want to delay applying for your medical certificate. You may also want to consult with an aviation attorney or aviation medical expert who can advise and assist you.

Depending upon the medical condition, you may only need to wait until the condition has resolved, the condition is under control such that you would qualify for a special issuance or you have stopped taking the disqualifying medication. Alternatively, your situation may be more serious and require a different strategy. In the interim, assuming you otherwise meet the applicable requirements, you may be able to operate as a sport pilot without a medical certificate.

In the end, we all want the pilots with whom we share the sky to be healthy and safe. If an airman has a health condition that poses a hazard to safe flight, most, if not all, of us would be concerned about that airman being allowed to fly in the same airspace in which we fly. However, in some cases the FAA's determination of whether an airman's health condition, in fact, threatens safe flight may be too conservative, bordering on or becoming arbitrary and capricious. In those instances, an appeal of a denial is not only appropriate, but may even be successful.

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Greg Reigel

Survive Tough Times

by David Wyndham 1. October 2008 00:00
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Given the recent financial turmoil and bloodletting on Wall Street, I think there are three options to survive these tough times:

  1. Ignore the bad news and hope it goes away.
  2. Be proactive and have a plan (and revise it as needed).
  3. Convert all your assets to gold and head to a cabin in the woods with lots of canned food and candles.

Option 1 won't help and we are not even close to Option 3. You want to be proactive for your company. Here are three ways to try and survive tough financial times with your aviation department.

Stay Competitive.

Remind folks of the time saved. Remind them that time saved is allowing a person to do more in the same amount of time.

Remind your executives how much more productive they are while on their aircraft. Privacy and the ability to get uninterrupted work done on the aircraft is also valuable.

Try to expand the access to the company aircraft by one-tier lower executives. Think of the aircraft as a workforce multiplier: do more with fewer people, productively, and in teams. Finding new opportunities just got tougher and the aircraft allows you to act quickly.

Measure and Understand Your Costs A quick review:

A variable cost will vary in proportion to the level of activity. As activity increases, the total cost will increase but the cost per unit will remain constant. An example of this is fuel. Increasing utilization increases fuel used.

A fixed cost remains essentially constant for a given period or level of activity. Hangar and insurance are fixed costs. Whether I fly today or not, I need to pay my hangar and insurance costs. Keeping the aircraft flying keeps the average cost per hour down as it spreads the fixed cost over more hours.

If I decrease my aviation budget 10%, my fixed costs don't change, so my variable costs must decrease more than 10%. Similarly, if I fly one more hour, my cost increase is only the cost of the next hour: fuel and maintenance.

You need to know your costs, how they behave, and what/where cutting costs can have the desired effect on your overall budget.

Have A Plan

A strategic plan is a long term, forward looking plan for the aviation department. It should cover most likely scenarios, and also worst case scenarios.

What is your most important mission? Least important? What if utilization drops off, what happens to your costs? If you know where the flight department's priorities are, you can be better prepared if cuts are inevitable. Know your costs, your missions, and your people.

One question that can come up is "Are we operating the best aircraft for the job?" A strategic plan addresses this question with the reasoning and justification as to why you fly the aircraft you do. It also should tie directly into the company's mission statement.

No plan covers all contingencies, but a good plan has enough information so that you can react with knowledge and wisdom versus fear and panic. It also allows you the time to adjust to the times with a measured response.

Are many of you facing significant reductions in your flying requirements? Click reply and let me know.

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David Wyndham



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