Aviation Medical Aviation Articles

FAA’s Intentional Falsification Settlement Policy: Not Much Of An Offer.

As you might imagine, the FAA has a dim view of intentional falsification cases.  These situations arise when the FAA believes that a certificate holder (whether airman, mechanic, air carrier, repair station etc.) has intentionally falsified a required record.  They range from airmen who have failed to disclose information on their applications for medical certificate to mechanics who have either omitted information or included incorrect information in aircraft maintenance records.

According to the FAA’s Compliance and Enforcement Program, a certificate holder who intentionally falsifies a record lacks the qualifications to hold any certificate.  As a result, FAA’s sanction in these cases is revocation of all certificates, usually by emergency order.  And after revocation, the certificate holder is generally prohibited from re-applying for new certificates for one year following the effective date of the order of revocation.

However, before the FAA issues a revocation order, it conducts an investigation in which it gathers evidence, sends out a letter of investigation, reviews any response, and analyzes all of the evidence to support its case.  This process can take a period of time.  But the certificate holder retains all certificates up until the revocation order is issued.

The New Policy

In the case where an airman has allegedly falsified his or her application for medical certificate in violation of 14 CFR 67.403(a)(1)-(4), the FAA recently announced a new “prompt settlement policy.”  According to the FAA, the new policy will afford an airman “the opportunity to apply for any airman and ground instructor certificate sooner than had the case proceeded in the absence of the policy.”

Under the new policy, the airman would still have to wait one year, but that would happen “sooner than under the current process because much of the investigation and evaluation processes would be abbreviated or eliminated.”  The policy provides the airman with an opportunity to resolve the alleged violation with a settlement agreement in which the airman (1) accepts an order revoking all of the airman’s certificates; (2) immediately surrenders all of his or her certificate; and (3) waives all of his or her appeal rights.

The FAA believes this policy will provide predictability for airmen as to when the revocation order is issued, and accordingly, when the airman would again be able apply for a new certificate.  It is also supposed to “promote better resource allocation.”

Who Is Eligible For This Policy?

The policy would be available to an airman who the FAA believes has violated 14 CFR 67.403(a)(1)-(4).  However, the policy will not be available to an airman if (1) the FAA believes the airman may lack qualification to hold his or her certificate(s) (other than because the airman allegedly violated 14 CFR 67.403(a)(1) through (4)); or (2) he or she has a prior violation of 14 CFR 67.403(a)(1) through (4).

How Does It Work?

When the FAA sends a letter of investigation (“LOI”) to an airman for alleged intentional falsification, the LOI will advise the airman that he or she may request consideration for a prompt settlement of the legal enforcement action.  If the FAA determines the airman is eligible, an FAA attorney will send the airman a settlement agreement with the following terms:

  1. The settlement agreement must be executed by the parties within ten days after the FAA sends the agreement to the airman;

  2. The FAA will issue an emergency order revoking all airman, ground instructor, and unexpired medical certificates the airman holds immediately upon receiving the fully executed settlement  agreement;

  3. The order of revocation will (a) require the immediate surrender of all airman, ground instructor, and unexpired medical certificates the individual holds to enforcement counsel; (b) notify the airman that the failure to immediately surrender these certificates could subject the airman to further legal enforcement action, including a civil penalty; and (c) inform the airman that the FAA will not accept an application for any new airman or ground instructor certificate for a period of one year from the date of the issuance of the order of revocation;

  4. The airman will waive all appeal rights from the order of revocation;

  5. The airman acknowledges that the agreement only concerns the legal enforcement action brought by the FAA and does not affect any actions that might be brought by State or other Federal agencies (whether civil or criminal), and that the agreement does not prevent the FAA from providing information about this matter to State or other Federal agencies;

  6. The parties will agree to bear their own costs and attorney fees, if any, in connection with the matter;

  7. The airman will agree to not initiate any litigation before seeking any costs, damages, or attorney fees, including applications under the Equal Access to Justice Act, incurred as a result of the legal enforcement action; and

  8. The airman will agree to waive any and all causes of action against the FAA and its current and/or former officials and employees relating to the legal enforcement action.

Is The Policy A Good Deal For An Airman?

From my perspective, this policy provides little real benefit to an airman, other than an airman who simply wants to roll over on his or her sword and start the clock ticking on his or her punishment.  Here are some of the problems I have with the policy:

  • An airman gives up all of his or her rights to have the FAA prove its case. The FAA has the burden of proof in these cases.  If the case involves factual issues as to whether the airman intentionally falsified rather than simply made a false statement, forcing the FAA to prove its case could be the difference between revocation of all certificates for intentional falsification versus revocation of just the airman’s medical certificate for making a false statement.

  • The policy does not protect the airman from criminal prosecution. An airman who the FAA believes committed intentional falsification could still be referred out to local or federal authorities for prosecution.  And the order of revocation and the facts upon which it was based would make it very easy for the prosecution to prove its case.  And since the FAA has, in fact, referred these cases out for prosecution, this is not a risk to be taken lightly.

  • The airman gives up his or her right to negotiate a reduction in the one-year prohibition on reapplication. If an airman appeals an order of revocation alleging intentional falsification, it is not uncommon for the FAA to agree to a 10 month, or in unusual circumstances a 9 month, prohibition in order avoid having to litigate its case against the airman before an NTSB administrative law judge.

  • The airman must surrender his or her certificates immediately. In the absence of surrender, the airman could have retained his or her certificates while the FAA completes its investigation and until it issues the revocation order.  This could be several months when the airman could continue to exercise the privileges of his or her certificates.

Conclusion

If you find yourself facing an allegation of intentional falsification, you know you made a mistake, and you just want to put the matter behind you, then the new policy may be worth considering.  However, you should also consider what you will give up.  In most situations it will likely make more sense to work through the enforcement process to obtain a more favorable resolution.

Avoiding Drug And Alcohol Testing "Gotchas"

Avioding Drug and Alcohol Testing Gotchas in Aviation Law
Image courtesy of Urine Drug Test HQ

The drug and alcohol testing requirements of 14 C.F.R. Part 120 and 49 C.F.R. Part 40 continue to cause issues for aviation employers. An initial decision in a recent civil penalty action, In the Matter of Regency Air, LLC, highlights two areas of potential confusion and risk faced by an aviation employer.

In Regency the FAA assessed a civil penalty of $17,400 against the employer for alleged violations of drug and alcohol testing regulations in connection with its hiring and use of mechanics. As you may know, aircraft maintenance is a “safety-sensitive function” that may only be performed by an employee who is included in the employer’s drug and alcohol testing program. Regency appealed the FAA’s order and a hearing was held before a Department of Transportation Administrative Law Judge (“ALJ”) which highlighted several drug and alcohol testing “gotchas.”

In one instance, Regency argued that the mechanic performed his work as a favor to Regency and since Regency did not compensate the mechanic for the work, the mechanic was thus not an employee subject to drug and alcohol testing. However, the ALJ rejected that defense stating that an "employee is an individual who is hired, either directly or by contract, to perform a safety-sensitive function for an employer”, and an individual is “hired” for a safety-sensitive function when he or she is retained “as a paid employee, as a volunteer, or through barter or other form of compensation.” Thus, even though the mechanic was a volunteer working without compensation, he was still considered an employee when he was performing safety-sensitive functions on behalf of Regency.

Another issue in the case arose from a mechanic’s employment by two separate employers. Although the mechanic was included in the first employer’s drug and alcohol testing program, Regency had not added the mechanic to its program. In analyzing the issue, the ALJ initially observed that “an employer may use a contract employee without including the contract employee in its own drug and alcohol testing program if: (1) the contract employee is subject to testing under the contractor’s drug and alcohol testing program, and (2) the work is performed on behalf of that contractor. The ALJ then determined that the mechanic performed the work in question it was performed on behalf of the first employer as a contractor for Regency, and as a result, the mechanic did not need to be included in Regency’s drug and alcohol testing program.

Drug and alcohol testing regulations can be tricky and complicated. However, misunderstandings and/or non-compliance with the regulations are serious and potentially very expensive. If you have questions about the regulations or whether you are complying with the regulations please contact me and I will be happy to help or any professional aviation law attorney, but don't wait until it is too late.

Greg Reigel
Shackelford, Bowen, McKinley & Norton, LLP
9201 N. Central Expressway, 4th Floor, Dallas, Texas 75231
Direct: (214) 780-1482 - Fax: (214) 780-1401
E-mail:  [email protected]
Website:  www.shackelford.law
Twitter:  @ReigelLaw

BasicMed: A Big Deal?

Several months ago, I wrote about the 3rd Class Medical Reform and what it meant for pilots.  Recently, the FAA published a new rule called BasicMed which is the latest in the medical reform issue. 

In a Nut Shell

In the wake of the 3rd Class Medical Reform ruling, BasicMed comes as a relief for pilots that have held a valid medical certificate within the last 10 years – this look-back period starts July 15, 2016 and applies to regular and special issuance medical certificates.  However, you cannot just go back to flying if you had a medical certificate revoked in that period.

First, pilots must find a state-licensed physician and complete the associated checklist for the BasicMed.  Next, an online aeromedical course must be taken and passed.  These tasks must be done in that order as the information will need to be transmitted on successful completion.  The online course has to be taken every two years and pilots must visit their primary physician every four years at least.

As we saw in the 3rd Class Reform ruling, the pilots that complete the prerequisites for BasicMed will be able to fly aircraft with up to six passengers and weighing up to 6,000 pounds, in IFR or VFR, day or night, up to 18,000 feet and 250 knots in the United Sates.  However, BasicMed prohibits flying for compensation or hire.  While not being able to exercise the privilege of a full commercial license, it is important to note that some preexisting medical conditions make flying for hire inherently dangerous.

Currently, there is not an online aeromedical course, but AOPA.org is currently working to have the FAA approve their course “Fit to Fly”.

What This Means for General Aviation

This particular ruling is a big deal for those in general aviation.  This means that many pilots that were precluded under the old 3rd Class Medical rules now have the chance to take to the skies again at a reduced cost with almost all of their previous privileges, excluding flying for hire.  While the ruling is but days old at this point, it will be interesting to see if this will revitalize the general aviation population and perhaps to encourage younger generations to fly. 

Is this rule a big deal?  Of course!  As a proponent of general aviation, anything that gets people out there back flying is a good thing.  As someone who has seen friends lose their medicals for innocuous reasons, I hope BasicMed allows them to get back to the skies where they belong.

Have comments? Leave them below!

For more on this rule, check out these articles:

EAA & AOPA

 

Images courtesy of Google.com

Is Your Co-Pilot Depressed?


Photo: NIMH

In light of the Germanwings Flight 9525 crash in which one of the pilots locked the other out of the cockpit and then intentionally flew an Airbus A320 into a mountain in the French Alps, killing all 150 people on board, the issue of mental health in pilots has resurfaced.

After the captain of the aircraft got up to use the restroom mid-flight, 27-year-old co-pilot Andrews Lubitz locked him out and refused to allow him back in. Then he reportedly programmed the autopilot to descend from an altitude of 38,000 feet down to 100 feet with the intention of crashing into the side of a mountain along the way.

Investigators reportedly found an anti-depressant medication in the apartment of Lubitz, along with other evidence that suggested the Germanwings first offficer was seeing a doctor for depression.

Lubitz had not informed the airline of this most recent bout with depression, but people who knew him have come forward to say that he was suicidal at one point. And, according to an ex-girlfriend, he had a temper. But how could anyone have known that this person could commit such a heinous act?

CNN reported that Lubitz passed an aviation medical exam in 2014, which a Lufthansa official said didn't test mental health. But even if the exam did covered mental health issues in depth, what pilot would admit to depression or mood disorders knowing that he'd lose his job? For many pilots, flying is a life-long dream - a career that they've worked hard for - and to know that depression, suicidal thoughts or a more severe mood disorder would essentially disable them from flying professionally and perhaps even as a hobby, would be a tough pill to swallow. Because they'd lose their jobs, careers, and for many, their livelihood, most pilots who have experienced depression or other symptoms of a mood disorder or mental health issue, will, sadly, fail to report them.

The National Institute of Mental Health (NIMH) states that mental illness is common in the United States. In 2012, according to the NIMH website, about 18.6 percent of adults in the United States had some form of mental illness (not including those related to substance abuse.) Luckily for the traveling public, most of them are not suicidal.

We can probably assume that this statistic carries over to the pilot career profession, although statistics pertaining to pilots with a mental illness won't reflect this same trend due to the nature of the job. We rely on self-reporting procedures, and when a pilot's career is on the line, chances are good that he or she just won't report it.

Eighteen percent of adults in the United States have some sort of diagnosed mental illness. This could be anything from minor depression or social anxiety to bipolar disorder or suicidal behavior. To be more specific, the NIMH says that a Serious Mental Illness (SMI) occurs in about four percent of all adults. A serious mental illness is defined as one that interferes with normal life activities and results in "serious functional impairment."

So, according to these numbers, somewhere between four and 18 percent of people in general have some sort of mental illness. This means that if you're a pilot, up to one out of six pilots you fly with could be suffering from some sort of mental illness. Luckily, very few of these people are also suicidal, and flights continue to operate safely every day.

Germanwings Flight 9525 was, perhaps, a case that could have been prevented. But what's the fix for depression in pilots and the failure to self-report? Better mental health screening for pilots? Better working conditions? A mandate for two pilots in the cockpit at all times? (Most or all U.S. airlines already employ a strategy of this kind, by the way.) Take the human element out of the cockpit altogether?

While we need to do all we can to prevent another tragedy like this from occurring, how far will we go, or how far should we go, to save ourselves from… ourselves? "Better" mental health screening could lead to even less reporting by pilots. Two pilots in the cockpit will help, unless the second physically overtakes the first one. And can we really take the human element out of the equation altogether? Even RPAs - remotely piloted airplanes - are flown by humans on the ground. If one of these pilots were to be suicidal, they could still fly the airplane into a mountain.

Is there a solution to making certain that a suicide mission like Germanwings 9525 doesn't happen again? Or is there a certain element of risk - a low probability/high consequence risk like an aircraft suicide mission- that we must accept as human beings functioning in a world with other human beings? Or is there a happy medium? What are your thoughts?

Pilots Bill of Rights 2: Medical Exemptions, Due Process & NOTAMs

Photo © Robert Couse-Baker/Flickr

In a move that is being applauded by the general aviation community, Senator James Inhofe (R-Okla.) last week introduced two new GA-friendly bills. The new laws– the General Aviation Pilot Protection Act and the Pilots Bill of Rights 2 (PBOR-2) - could have a significant impact on general aviation operations if they move through congress.

Sen. Inhofe successfully led the first Pilot’s Bill of Rights through Congress in 2012. PBOR-2 expands upon the pilot protections offered by the initial PBOR.

"The first Pilot’s Bill of Rights was a victory for the aviation community and made possible by the support of pilots and industry leaders across the nation," Inhofe said. "Since being signed into law, more issues facing the general aviation (GA) community have surfaced. The Pilot’s Bill of Rights 2 addresses these concerns and builds on the success of my previous legislation."

Twelve sponsors, including Sen. Joe Manchin (D-W.V.), House General Aviation Caucus co-chair Sam Graves (R-Mo.), and a variety of industry stakeholders, such as AOPA, EAA, and GAMA, supported Sen. Inhofe’s Pilot Bill of Rights.

Mark Barker, President of AOPA, released this statement: "The introduction of the Pilot’s Bill of Rights 2 is great news for the general aviation community and we are grateful to Sen. Inhofe for putting forward this legislation that would do so much to help grow and support general aviation activity. Pilots have already waited too long for medical reform, so we’re particularly pleased to see it included in this important measure. We will actively work with Congress to build support for this legislation that is so vital to the future of GA and the 1.1 million jobs that depend on it."

The General Aviation Pilot Protection Act was first introduced in 2013. The 2015 version intends to expand the medical exemption requirement for pilots, and the PBOR-2 addresses the same medical exemption requirements, along with a handful of other issues.

According to Sen. Inhofe’s website, highlights of the new bill will include the following:

  • Medical Certificate Exemption:
    Allows more pilots to operate without obtaining an aviation medical certificate. Under the new law, private pilots would be able to fly VFR or IFR in aircraft under 6,000 pounds, below 14,000 feet MSL, and under 250 knots.
  • Due Process:
    PBOR-2 will maintain the rights set forth in the first PBOR from 2012, and will extend those rights to all FAA certificate holders instead of just pilots. This means that maintainers, dispatchers and other certificate holders will also be granted due process rights along with the right to appeal an FAA decision through a merit-based trial in Federal Court.
  • Violation Transparency:
    The new bill will require the FAA to notify pilots of any pending enforcement action, as well as provide specific documentation.
  • Flight Data Accessibility:
    Under the new bill, pilots will be able to access data from contractors, including flight service stations, contract controllers and controller training programs in order to defend themselves from enforcement action.
  • Protection for Volunteer Pilots:
    PBOR-2 will establish a Good Samaritan Law to protect volunteer pilots from liability.
  • Protection for individuals performing federal tasks:
    PBOR-2 will establish liability protections for individuals performing federal tasks, such as designated examiners, medical examiners and airworthiness inspectors.
  • NOTAMs:
    PBOR-2 will require the FAA to develop a better NOTAM (Notice to Airman) system, and maintains that the FAA will not be allowed to bring about enforcement action on pilots until they complete the NOTAM Improvement Program

The FAA has 180 days to weigh in on the regulations. If the organization doesn’t respond, the bills will automatically become laws.

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