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Operation Safe Pilot All Over Again

by Greg Reigel 1. October 2018 10:29
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As some of you may know, the Department of Justice recently issued a Press Release announcing that it had indicted four pilots for lying on their medical applications. In each case, the airman failed to disclose that he was receiving Veterans Administration ("VA") benefits for a medical condition that would likely have either disqualified the airman from receiving a medical certificate, or would have certainly subjected the airman to additional scrutiny and/or testing requirements by the FAA's Office of Aerospace Medicine.

The airmen were "caught" when the FAA cross-checked its database of airmen holding medical certificates with the VA's disability benefits database. This is reminiscent of the FAA's 2002 Operation Safe Pilot in which it performed a similar cross-check, but with the Social Security Administration's ("SSA") disability database. Operation Safe Pilot resulted in prosecution of forty pilots who were receiving SSA disability benefits for conditions that would have either disqualified the airmen from receiving a medical or would have triggered further inquiry by the FAA.

After Operation Safe Pilot, the FAA revised the application for medical certificate to include language that specifically authorizes it to conduct this type of cross-check with SSA and VA. When an airman signs the medical application, he or she is agreeing that the FAA can perform this type of search.

Since the DOJ Press Release was issued, I have received multiple calls from airmen who believe they may be in a similar situation, but have not yet been "discovered" or received any notice from the FAA. In each call the airman is, perhaps justifiably, concerned regarding his or her liability exposure for criminal prosecution. Fortunately, options, albeit not great options, are available provided the airman is not yet in the FAA's cross-hairs.

Depending upon the circumstances, airmen have at least two options for dealing with the situation:

  1. An airman can contact the FAA via letter and disclose the previously omitted information regarding both the medical condition and the receipt of disability benefits. It is also helpful to provide an explanation for the non-disclosure, to the extent that the airman has a reasonable explanation for failing to disclose the information. This may persuade the FAA that the failure to disclose was not intentional, but merely a misunderstanding etc.; or

  2. The airman can apply for a new medical certificate and disclose the medical condition and receipt of benefits on the application. Then when the airman goes to his or her aviation medical examiner ("AME") for the medical examination the airman can explain the situation to the AME.

In either instance, the airman will want to have all of his or her VA medical/disability records available to provide to the FAA. However, an airman should keep in mind that any information he or she provides to the FAA could be used against the airman in a criminal prosecution. So it is important for the airman to be very careful about what he or she says to the FAA or AME.

Although pursuing one of these two options does not guarantee that the FAA will not prosecute the airman, coming clean and correcting the record before the airman is "caught" may convince the FAA that prosecution is unnecessary. However, even if an airman is not prosecuted, it is quite likely that the FAA will follow its standard playbook and revoke all of the airman's certificates as a sanction for falsifying the airman's medical application(s).

If you find yourself in this situation, please call and I will be happy to help you through the process.

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Greg Reigel

What Are An Airman's Options After The FAA Denies A Medical Application Based Upon A Disqualifying Condition?

by Greg Reigel 30. September 2013 15:44
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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 the airman has already admitted that he or she has 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 or evaluation, 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 denial 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 very difficult task.

If you have a medical condition that may disqualify you from obtaining a medical certificate, get help before you apply for your 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 successfully obtaining a medical certificate.

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Greg Reigel

What Are An Airman's Options After The FAA Denies A Medical Application Based Upon A Disqualifying Condition?

by Greg Reigel 29. July 2013 09:16
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When the FAA denies an airman's application for a medical certificate based upon an admitted condition that is disqualifying under 14 C.F.R. Part 67 (e.g. heart disease, epilepsy, bipolar disorder, diabetes requiring insulin, etc.), 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 the airman has already admitted that he or she has a condition that is specifically identified as disqualifying under the regulations.

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 pursuant to 14 C.F.R. §§ 67.115, 67.215 or 67.315 (depending upon the class of medical for which the airman is applying). 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 or evaluation, 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 denial 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 very difficult task.

If you have a medical condition that may disqualify you from obtaining a medical certificate, get help before you apply for your 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 successfully obtaining a medical certificate.

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Greg Reigel

Airmen With Special Issuance Medical Certificates Will No Longer Need To Carry Their Letters Of Authorization With Them

by Greg Reigel 28. March 2012 10:27
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In a Direct Final Rule published on March 22, 2012, the FAA disclosed its intent to remove the FAR 67.401(j) requirement that currently requires an airman granted a Special Issuance Medical Certificate to have his or her corresponding letter of Authorization in the airman's physical possession or readily accessible on the aircraft while exercising pilot privileges. (A special issuance is comprised of both a medical certificate and a letter of authorization that specifies any corresponding requirements or limitations associated with the medical certificate).

The FAA originally imposed this requirement in 2008 to respond to a 2007 International Civil Aviation Organization (ICAO) adverse audit finding regarding endorsement of FAA certificates. At that time, the FAA was concerned "that traditional enumeration placed on U.S. medical certificates under the FAA's special-issuance medical certification process might not be detailed enough for affected U.S. pilots during a ramp check in a foreign country, for example." The FAA believed that it was in the airman's best interest to have the letter of Authorization readily available.

However, after imposing the rule, the FAA received many complaints from affected airmen that the full force of the requirement was overly burdensome and invasive. Additionally, during the three years that the rule has been in effect, "[t]he FAA is not aware of any individuals affected by the standard who have had to produce their letter of Authorization for any civil aviation authorities."

As a result, the FAA determined that the regulation was one that could be removed. However, the Final Rule cautions that "[w]hile this action removes the burden for affected individuals to carry their medical letter of Authorization, long-standing requirements under FAA operational standards requiring individuals to carry FAA certificates while exercising pilot privileges remain unchanged." Thus, airmen will still need to carry their airmen and medical certificates with them while exercising their pilot privileges.

The FAA is accepting comments to the Final Rule on or before May 21, 2012. If it receives adverse comments, it will withdraw the Final Rule. Otherwise, the Final Rule will be effective July 20, 2012.

It's nice to see the FAA actually doing something to make things easier for airmen. Although the Final Rule won't affect a wide range of airmen, it certainly represents a move by the FAA in the right direction. And under the circumstances, I wouldn't expect to see any adverse comments to the Final Rule. But I will keep my fingers crossed anyway.

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Greg Reigel

Why You Need To Read The Questions On An FAA Medical Application Before Answering

by Greg Reigel 29. September 2010 18:17
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An airman recently found out the hard way that failure to read the questions on an FAA medical application was not a defense to a charge of intentional falsification under FAR 67.403(a)1. In Administrator v. Cooper, the FAA alleged that the airman checked "No" in response to question 18(v) on the medical application which asks about convictions and/or administrative actions relating to the applicant's driver's license. However, the airman's driver's license had, in fact, been suspended in connection with an alcohol related motor vehicle action.

As a result, the FAA issued an emergency order revoking the airman's airline transport pilot (ATP), certified flight instructor (CFI), and second-class medical certificates based upon alleged violations of FARs 67.403(a)(1) (prohibiting an airman from making fraudulent or intentionally false statements on an application for a medical certificate), 67.403(c)(1) (providing that the making of an incorrect statement in support of an application for a medical certificate may serve as a basis for suspending or revoking a medical certificate) and 61.15(e) (requiring an airman to provide a written report of each motor vehicle action to the FAA, Civil Aviation Security Division within 60 days).

The airman appealed and presented a number of arguments at the hearing. Although the airman admitted that he failed to answer question 18v correctly, he argued that he did not intentionally falsify the application because he had simply failed to read the question or the instructions that accompanied the medical application before answering. Rather than reading the questions, the airman stated that he had just copied his answers from a previous application. However, he also admitted that, if he had read question 18(v), he would have answered "Yes."

The administrative law judge ("ALJ") determined that the airman's incorrect answer was "inadvertent," and that the FAA had not shown that the airman had an intent to falsify the application. As a result, the ALJ dismissed the FAR 67.403(a)1 charge. However, because the airman did answer question 18(v) incorrectly, the ALJ concluded that revocation of the airman's medical certificate was appropriate for violation of FAR 67.403(c)1. The FAA appealed the ALJ's decision to the full NTSB, arguing that the ALJ erred in finding that the airman had not intentionally falsified the application simply because he did not read it.

More...

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Greg Reigel



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