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What Do You Do When The FAA Denies Your Medical Application Because Your Doctor Made The Wrong Diagnosis?

by Greg Reigel 28. November 2017 15:09
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I was recently asked this question by an airman in this very difficult situation. When the airman was younger, the airman was diagnosed as having bipolar disorder. More recently the airman was evaluated by a new doctor who told the airman that, in the doctor’s opinion, the previous diagnosis was wrong and the airman did not, in fact, have bipolar disorder.

Based upon the current doctor’s opinion, the airman applied for a medical certificate. However, despite submitting all of the airman’s medical records, including the earlier bipolar diagnosis as well as the current doctor’s opinion and evaluation, the FAA denied the airman’s application.

So, what are the airman’s options? Well, an airman may appeal the FAA's denial of a medical certificate by filing a petition with the NTSB requesting a hearing before an administrative law judge ("ALJ"). But 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 the Board’s perception that they have "superior" qualifications in aviation medical standards.

Also, 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.

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.

In this airman's situation, bipolar disorder is a disqualifying condition that prevents the FAA from issuing an unrestricted medical certificate. While the FAA may consider the airman for a special issuance, that decision is solely up to the FAA and may not be appealed. So, the airman would have to fight the FAA's determination that the airman has bipolar disorder.

In order to have the FAA’s denial reversed, the airman has to convince the ALJ. This means the airman would need to have the current doctor testify not only that the airman does not suffer from bipolar disorder, but also that the airman’s current condition, to extent the airman has other disclosed medical conditions, still meets the standards for issuance of an unrestricted medical certificate. It may also be beneficial to have an independent doctor evaluate the airman and provide an opinion that athe airman does not have bipolar disorder.

Additionally, the current doctor would need to explain why the earlier bipolar diagnosis was incorrect. Depending upon the circumstances, this can be a very tough battle for the airman to win.

Unfortunately, at a time when more and more doctors are “diagnosing” kids with ADD, ADHD and other such conditions, this situation is becoming more and more common. And as we have seen, a misdiagnosis as a youth may come back to haunt an adult who wants to become a pilot and needs a medical certificate.

If you find yourself in this situation or have a medical condition that may disqualify you from obtaining a medical certificate, get help BEFORE you apply for a medical certificate. Talk to an aviation attorney or the medical certification professionals at AOPA or NBAA.

By taking a pro-active approach and getting help, you will be able to "pick your battles" wisely to maximize your chances of being able to earn your wings and/or successfully obtaining a medical certificate if necessary.

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Greg Reigel

One Disqualifying Condition - All It Takes To Be Denied Medical Certificate

by Greg Reigel 1. February 2010 00:00
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A recent National Transportation Safety Board ("NTSB") opinion highlights the need for an airman involved in a medical dispute with the FAA to "pick your battles carefully" based upon the facts and proper procedure. The case, Petition of Cooper, involved an airman's appeal of the FAA's denial of his application for a first class medical certificate. The airman applied for a first class medical certificate and, based upon the airman's "history and clinical diagnosis of diabetes mellitus requiring oral hypoglycemic medication for control and bipolar disorder," the FAA denied the airman's application. In support of its denial, the FAA cited FARs 67.113(a)(b)(c), 67.213(a)(b)(c), and 67.313(a)(b)(c) in support of its denial (all three regulations identify diabetes mellitus as a disqualifying condition, although FAR 67.113(a)(b)(c) is the regulation specifically applicable to a first class medical certificate). However, the FAA did not cite FARs 67.107, 67.207, nor 67.307 even though those regulations identify bipolar disorder as a disqualifying condition.

The airman appealed the FAA's denial of his medical application by submitting a petition to the NTSB asking the Board to order the FAA to issue him a medical certificate. However, the NTSB administrative law judge ("ALJ") dismissed the airman's petition and terminated the case on his own accord, without holding a hearing and without any request from the FAA for such a dismissal. The ALJ concluded that a hearing "would serve no useful purpose" because the Board did not have the discretion to reverse the FAA's denial. The ALJ also rejected the airman's argument that he did not have bipolar disorder as moot because the airman had admitted to having diabetes mellitus, a specifically disqualifying condition. Of course the airman then appealed the dismissal to the full Board.

In his appeal to the full Board, the airman argued that the ALJ made a mistake when he determined that the FAA's denial of his application based on bipolar disorder was moot, in spite of the airman's concurrent diagnosis of, and treatment for, diabetes mellitus. The airman contended that whether he had bipolar disorder was a factual issue that the ALJ must resolve after a hearing, and that bipolar disorder is the only condition that might disqualify him since he would otherwise meet the criteria for a special issuance medical certificate under FAR 67.401 in spite of his diabetes mellitus.

The Board agreed with the ALJ. It determined that the diabetes mellitus was a specifically disqualifying condition and that condition alone, regardless of the alleged bipolar disorder, justified the FAA's denial of the airman's application for a first class medical certificate. The Board noted that whether the airman qualified for a special issuance in spite of the diabetes mellitus was not an issue before it. Finally, the Board concluded that although the airman had presented evidence that potentially refuted the allegation that he suffered from bipolar disorder, the issue was moot in light of the diabetes mellitus.

The Board's decision is not a surprise. When an airman is denied a medical based upon an admitted disqualifying condition, an appeal will, in almost all cases, be unsuccessful. In that situation, the airman has the burden of proving that the airman is qualified to hold a medical certificate. That's a tough thing to accomplish if you have already admitted that you have a disqualifying condition.

If an airman is denied based upon a disqualifying condition, but the airman believes he or she is otherwise qualified, the airman should request that the FAA grant a special issuance medical certificate. A special issuance is a medical certificate that has limitations and/or conditions with which the airman must comply in order for the certificate to be valid. The conditions/limitations will often include regular testing, test results within acceptable ranges, no changes in medication etc.

If the FAA refuses to grant an airman's request for a special issuance, the airman may appeal that denial to the NTSB. However, since the Board defers to the FAA's discretion in denying a special issuance, the only way to be successful is to show that the FAA's refusal is arbitrary or capricious. For example, if a denied airman can prove that the FAA has granted a special issuance in circumstances that are very similar to or identical with those of the airman, then an ALJ may be convinced that the FAA's denial in the airman's case is arbitrary or capricious. As a practical matter, however, this can be a difficult task.

Fortunately for the airman in this case, he can still apply to the FAA for a special issuance and, if he meets the criteria, the FAA may grant a special issuance in spite of his diabetes mellitus. (This is what he should have done before appealing the initial denial). However, the airman may, unfortunately, still have to fight the FAA's determination that he has bipolar disorder. But if the airman is able to present evidence and facts that convince an ALJ that he does not suffer from bipolar disorder, the airman may ultimately be able to receive a medical certificate.

If you have a medical condition that may disqualify you from obtaining a medical certificate, get help. Talk to an aviation attorney or the medical certification professionals at AOPA or NBAA. By taking a pro-active approach and getting help, you will be able to "pick your battles" wisely to maximize your chances of successfully obtaining a medical certificate.

For more information regarding aviation law, safety and security, e-mail Greg at greigel@aerolegalservices.com or visit his website at www.aerolegalservices.com.

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Greg Reigel

Failure to Disclose a Conviction on an Airman Medical Application

by Greg Reigel 1. November 2008 00:00
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Consistent with precedent, the National Transportation Safety Board recently affirmed an Administrative Law Judge's ("ALJ") grant of summary judgment to the FAA on an order revoking all of an airman's certificates for violation of FAR 67.403(a)(1) (prohibition against making fraudulent or intentionally false statements on an application for a medical certificate). In Administrator v. Martinez, the airman checked the "no" box for question 18w on the application for medical certificate, certifying that he had "no history of nontraffic conviction(s) (misdemeanors or felonies)." However, less than 8 months earlier the airman had been convicted of disorderly conduct, a misdemeanor.

When the FAA discovered the discrepancy, it issued an emergency order revoking the airman's commercial pilot, ground instructor, flight instructor, and medical certificates, as well as any other airman certificates held by the airman. The airman appealed the revocation and, upon motion by the FAA, the ALJ entered judgment against the airman and affirmed the FAA's revocation order. The airman then appealed the ALJ's decision to the full Board.

On appeal, the Board initially reviewed the law applicable to an intentional falsification case: The FAA must prove that an airman (1) made a false representation, (2) in reference to a material fact, (3) with knowledge of the falsity of the fact. Applying the law to the case, the Board determined that the airman's answer to question 18w was false and material and the airman knew his answer was false.

With respect to the airman's defenses that he lacked intent to falsify and that he misunderstood the questions, the Board observed that failure to consider question 18w on a medical application carefully before providing an answer does not establish a lack of intent to provide false information. It further noted that lack of intent to provide false information is not proved by an airman's disclosure of the conviction to his employer. Similarly, the Board found that the two questions about traffic (18v) and other convictions (18w) are not confusing to a person of ordinary intelligence. It then concluded that the sanction of revocation was appropriate and consistent with Board precedent in falsification cases.

This case is neither unusual nor unexpected. The FAA takes a dim view of falsification cases and the NTSB supports this position. You may wonder "what does a disorderly conduct misdemeanor have to do with medical qualification or flying an airplane?" Well, it doesn't necessarily. However, as far as the FAA is concerned, the conviction is something of which the FAA believes it should be made aware.

Maybe the incident upon which the conviction was based involved drugs or alcohol but through a plea deal resulted in a conviction for an offense that would not otherwise be reportable to the FAA or disqualifying under FAR 61.15 (Offenses involving drugs and alcohol). And even if the conviction was unrelated to drugs or alcohol, the fact that an applicant was convicted is something that the FAA takes into consideration when issuing a medical certificate.

Additionally, although the sanction may appear extreme, after all the falsification was on an application for a medical certificate and did not relate to any other airman certificate, the FAA considers falsification evidence that an airman lacks the qualification to hold any airman certificate, medical or otherwise. Thus, an omission or a false statement on a medical application, or any other application for that matter, will jeopardize all of an airman's certificates.

The result is unfortunate for the airman in this case for a couple of reasons. First, disclosure of a disorderly conduct misdemeanor is, by itself, typically not disqualifying. Absent any other circumstances (e.g. involvement of alcohol or drugs, history of convictions etc.), if the airman had disclosed the conviction he probably would have still been issued a medical certificate. Second, the airman is now back to square one. If he wants to continue to fly, he will need to re-take written examinations and check rides etc. In the meantime, he will have to earn a living doing something other than flying airplanes or teaching people how to fly airplanes.

This case is a good example of why accurate disclosure on an application for medical certificate is necessary and, indeed, in the majority of situations is preferable to the consequences that can result from falsification. If you have questions about what you are obligated to disclose in response to Question 18 and its subparts on an application for medical certificate, consult with an aviation attorney before you go in for your examination. An aviation attorney will be able to tell you whether you need to disclose something and what, if any, impact that disclosure may have on your application. It may not be as bad as you think.

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Greg Reigel

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

FAA to Update Application for Medical Certificate

by Greg Reigel 1. June 2008 00:00
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According to a recent article by Dr. Fred Tilton, Federal Air Surgeon, in the Federal Air Surgeon's Medical Bulletin, the FAA is updating FAA Form 8500-8 , Application for Medical Certificate, to include potentially significant changes. Several changes occur in the aftermath of Operation Safe Pilot. The other change, and one which, in my opinion, is more significant and may be more problematic for certain airmen, relates to an airman's disclosure of his or her arrest and criminal conviction history (e.g. license suspension/revocations, driving while intoxicated/under the influence, non-driving, drug-related crimes etc.).

Changes Resulting From Operation Safe Pilot

Form 8500-8 will receive two additions as a direct result of Operation Safe Pilot:

Question 18(y). This new question will ask the airman to answer "yes" or "no" to whether he or she has ever had or has "medical disability benefits." Unfortunately, the question does not define or otherwise specify a source for the disability benefits. As a result, an airman will be required to disclose all sources of disability benefits even though the disclosure may include disability ratings or benefits that would in no way compromise aviation safety and would not disqualify the airman from receiving a medical certificate.

The airman disclosing such non-disqualifying disability benefits will need to fully explain the situation to the airman's aviation medical examiner to make sure that he or she and the FAA will understand and be able to properly issue the medical certificate where appropriate. Failure to disclose all disability benefits, even if the undisclosed benefits would not disqualify the airman from receiving a medical certificate, could expose the applicant to a charge of falsification, which would result in revocation of all airman certificates.

Paragraph (f) in the Privacy Act Statement. A new Paragraph (f) is being added to the Privacy Act Statement to state that the FAA is authorized to disclose information to other Federal agencies for verification of the accuracy or completeness of the information. This new language is intended to preclude a defense that was raised by several of the airmen in the Operation Safe Pilot prosecutions that the FAA violated the Privacy Act of 1975 5 U.S.C. 552a when it obtained the airmen's social security disability information without the airmen's consent. By signing Form 8500-8 with the new language, an airman will be agreeing to allow the FAA to contact the Social Security Administration, as it did in Operation Safe Pilot, the Veteran's Administration, or any other Federal agency. According to the FAA, the addition of Question 18(y) and Paragraph (f) should put airmen on notice that the FAA will be scrutinizing medical applications, and the disclosures airmen make in those applications, more closely.

Criminal History Disclosures

The most significant change to Form 8500-8 will be the addition of the word "arrest" in several key locations within Question 18(v). Currently, Question 18(v) asks an airman to disclose if he or she has a

"History of any conviction(s) involving driving while intoxicated by, while impaired by, or while under the influence of alcohol or a drug; or (2) any history of any conviction(s) or administrative action(s) involving an offense(s) which resulted in the denial, suspension, cancellation, or revocation of driving privileges or which resulted in attendance at an educational or rehabilitation program."

The new Form 8500-8 adds the words "arrest and/or" before each instance of the word "conviction." Although this may not appear significant at first, it is important to understand the distinction between "arrest" and "conviction." Currently, an airman is only required to disclosed a "conviction," which means the airman, presumably, has received full due process that resulted in a conviction by a jury of the airman's peers or by the airman's agreement to enter a plea of guilty. With the addition of the word "arrest" to Form 8500-8, an airman must now disclose an arrest that may or may not have been legitimate or proper and which, ultimately, may not result in either a conviction or a plea of guilty. In other words, the airman must disclose an arrest even though he or she may not have been afforded full due process and may not be guilty of the crime for which he or she was arrested.

The practical effect of the new language on an airman arrested for a "motor vehicle action" (e.g. driving while intoxicated/under the influence of alcohol or drugs) may not be much different than it is currently. As you should know, FAR 61.15 requires an airman to make a written report to the FAA Civil Aviation Security Division if his or her license is administratively suspended as a result of an arrest for a motor vehicle action, and again if the airman is then convicted of driving while intoxicated/under the influence of alcohol or drugs.

In the majority of states, a driver's license is administratively suspended automatically under the applicable implied consent statute when the driver is arrested for driving while intoxicated/under the influence. Thus, when an airman is arrested for driving while intoxicated/under the influence in most states, the resulting administrative implied consent suspension will be a motor vehicle action that must be reported to the FAA even though the arrest has not resulted in a conviction (which is another reportable motor vehicle action). Thus, the FAA will receive information of the "arrest" regardless of whether an airman also disclosed it on a medical application prior to resolution of the driving while intoxicated/under the influence charge.

However, the practical effect of the addition of "arrest" to Form 8500-8 is far more significant when an arrest for a non-driving, drug-related crime (e.g. growing, processing, manufacture, sale, disposition, possession, transportation, or importation of drugs) is involved. Since FAR 61.15 does not require any written report to the FAA Civil Aviation Security Division for a non-driving, drug-related conviction, currently an airman has to disclose his or her arrest for a non-driving, drug-related crime to the FAA only if the airman ultimately ends up with a conviction for that crime. This is accomplished on the existing Form 8500-8 and makes sense from an aviation safety perspective.

However, with the inclusion of "arrest" in new Form 8500-8, an airman will have to disclose an arrest for a non-driving, drug-related crime even though he or she may never be convicted of the crime for which he or she was arrested or, in fact, convicted of any non-driving, drug-related crime. This isn't necessarily a bad thing when the arrest actually discloses possible chemical dependency or substance abuse issues that potentially impact aviation safety. However this has the potential to result in unfortunate consequences for an airman who "was in the wrong place at the wrong time" or who made a mistake that does not present a risk for aviation safety.

Why is this a problem, especially in light of the fact that FAR 61.15 does not impose any sanctions against an airman's certificate when he or she is simply "arrested" for a drug-related crime but is not convicted? Well, I would expect that the dislosure of such an arrest on new Form 8500-8 will result in a letter to the airman from the FAA in which the FAA questions the airman's qualification/eligibility for a medical certificate, and possibly other airman certificates, and demands copies of police reports and court records related to the arrest, as well as a narrative explanation of the situation from the airman and, possibly, a chemical dependency assessment indicating that the airman does not have a chemical dependency/substance abuse problem.

Again, these requests may be justified in some circumstances. However, my concern is that the FAA, who is not particularly famous for evaluating cases on an individual basis, will simply invoke this procedure in all cases regardless of the factual explanation provided by the airman to his or her aviation medical examiner. I believe this "cookie-cutter" approach has the potential to adversely and unfairly impact airmen who are otherwise qualified to hold medical certificates, but that, for one reason or another, found themselves in a bad situation that resulted in an arrest, but not a conviction.

Conclusion

The Federal Air Surgeon's article does not provide a date for when the new Form 8500-8 will be available or required. However, the article notes that aviation medical examiners will receive several more notices from the Federal Air Surgeon before this happens. So, your guess about when revised Form 8500-8 will be implemented is as good as mine. However, in the meantime airmen should make sure they understand and are prepared for the new information and questions in revised Form 8500-8. Also, although it should go without saying, airmen are well advised to take the necessary measures to avoid finding themselves in situations that could result in serious consequences for their ability to obtain or maintain their airmen and medical certificates.

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Greg Reigel



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