FAA Certificate Action and Civil Penalty Lawyers
FAA Certificate Action and Civil Penalty Lawyers

Denied a Medical Certificate?

What can you do? There are two courses of action available to an individual who has been denied medical certification by the FAA.

 

THE FIRST ALTERNATIVE (with the NTSB) is available to individuals who, after receiving the FAA’s medical certificate denial letter, believe that they are medically qualified for unrestricted medical certification under the applicable medical regulations (specifically §§ 67.101-113, 67.201-213 and 67.301-313 of the Federal Aviation Regulations. 

 

If an individual believes that he or she is qualified for an unrestricted medical certificate, he or she should seek NTSB review of the FAA’s denial action.  The NTSB has the statutory authority to review the FAA’s determination as to whether an individual is qualified for unrestricted medical certification, and the first and most important step in obtaining NTSB review of the FAA denial is to file a petition requesting review by the NTSB no later than 60 days from the mailing/postmark date of the FAA’s denial letter, with the Office of Administrative Law Judges, National Transportation Safety Board. The petition may be in the form of a letter.  You must provide a copy of the FAA’s denial letter with the petition.

 

An individual may, at the same time he or she is seeking NTSB review of the FAA’s denial of unrestricted medical certification, pursue special issuance certification from the FAA.  The method to do this is discussed below. In such a case, the individual may request that the NTSB hold his or her petition for review of the FAA denial of unrestricted certification in abeyance pending the outcome of a special issuance request.  However, a petition for review of an FAA unrestricted medical certificate denial cannot be held in abeyance by the NTSB for more than 180 days from the date on which the FAA informed the applicant/petitioner of the denial of unrestricted certification.

 

THE SECOND ALTERNATIVE (with the FAA) is for an individual who may not meet the qualifications for unrestricted medical certification to request a “special issuance” medical certificate from the FAA.  Decisions on whether or not to grant special issuance certification (and what restrictions to impose on a special issuance certificate) are completely within the FAA’s jurisdiction, because the NTSB has not been given statutory authority by Congress to grant or deny special issuance status.  Thus, the NTSB cannot, and does not accept any request for the issuance of a special issuance certificate, or for review of an FAA denial of special issuance certification.  Special issuance requests should be directed to the Manager of the FAA's Aerospace Medical Certification Division.

What can we do?

FIRST- you must determine if seeking an FAA Medical Certificate is an obtainable goal. There are some past medical histories and disqualifying conditions that automatically prevent the FAA from issuing a Medical Certificate. When that is the case, we advise you of this.

 

SECOND- assuming the objective is reasonable, and not precluded by the FAR's, we create a strategy crafted to your individual situation with the ultimate objective of achieving a Certificate. While no one can guarantee an outcome, we will work tirelessly and diligently on your behalf. 

Categories of Disqualifying Medical Conditions

There are two categories of disqualifying conditions in medical cases:

 

THE FIRST CATEGORY is “specifically disqualifying conditions” set forth in the medical regulations at FAR Part 67 and below. The FARs clearly provide that once it is established that an applicant for medical certification has a medical history or clinical diagnosis of a listed specifically disqualifying condition, they cannot qualify for unrestricted medical certification. Thus, where the existence of a medical history or clinical diagnosis of a specifically disqualifying condition is beyond dispute, the NTSB has no alternative but to affirm the FAA's certificate denial, and if the FAA moves to dismiss a petition for review of a certificate denial and provides indisputable evidence that the applicant/petitioner has, or has ever had, a specifically disqualifying condition, the petition will be dismissed without a hearing.  

 

The medical standards of Part 67 of the Federal Aviation Regulations require that in order for an airman medical certificate to be issued pursuant to the completion of an application, a pilot must have no established history or clinical diagnosis of any of the following:

Diabetes mellitus requiring hypoglycemic medication;

Angina pectoris;

Coronary heart disease that has been treated or, if untreated, that has been symptomatic or clinically significant; Myocardial infarction;

Cardiac valve replacement;

Permanent cardiac pacemaker;

Heart replacement;

Psychosis;

Bipolar disorder;

Personality disorder that is severe enough to have repeatedly manifested itself by overt acts;

Substance dependence;

Substance abuse;

Epilepsy (Seizures);

Disturbance of consciousness and without satisfactory explanation of cause; and Transient loss of control of nervous system function(s) without satisfactory explanation of cause.

 

Thus, to be successful, the applicant/petitioner must prove that there is no valid diagnosis or medical history of that condition ― in other words, he or she must establish that the condition cited by the FAA has never existed, and does not currently exist. If there is a genuine issue as to whether the specifically disqualifying condition cited by the FAA has ever existed, an NTSB administrative law judge will conduct a hearing to resolve that question.  At the hearing, the applicant/petitioner will bear the burden of proof. 

 

The FAA will offer expert medical testimony and documentary evidence to support its position that a bona fide medical history or clinical diagnosis of the specifically disqualifying condition exists, and it is, therefore, imperative that the applicant/petitioner be prepared to provide his or her own expert medical testimony and other pertinent medical evidence to disprove the existence of a medical history or clinical diagnosis of the condition in question.  In these cases, the testimony of doctors and other medical experts is of great importance to the applicant/petitioner, and, although legal representation is not required, it is advised.

 

Once the existence of a disqualifying condition is established, unrestricted medical certification cannot be obtained, and any improvement in the disqualifying condition is immaterial. At that point, the only avenue available for medical certification is through the special issuance process.  If the FAA denies a request for special issuance certification, the only recourse available to the applicant is to later make another request for special issuance status to the FAA, supported by evidence showing sustained medical stability or improvement.

 

THE SECOND CATEGORY of medical condition that may result in a denial of unrestricted certification depends on an assessment of medical risk

 

In cases where a specifically disqualifying condition does not exist, the FAA may still deny unrestricted medical certification to an applicant where it is found that the symptoms associated with a certain disorder would make him or her an unacceptable risk to air safety. In these cases, the burden of proving that the condition does not pose such a risk is still on the applicant/petitioner, who must establish that, despite the medical condition in question, he or she is medically able to safely operate as an airman.  Since the mere existence of the cited condition does not, in and of itself, prohibit unrestricted medical certification, the general medical risk question must be resolved at an evidentiary hearing before an NTSB administrative law judge.  Here, the FAA will present expert medical testimony and documentary evidence to support its position that a genuine medical risk exists, and the applicant/petitioner must be ready to provide his or her own expert medical testimony, and any other relevant medical evidence, to show that the condition in question is not characterized by symptoms which pose a legitimate risk to air safety.  The testimony of doctors and other medical experts is of great importance to applicant/petitioners attempting to meet their burden of proof in these cases, and legal representation, while not required, is advised.

Statement of Demonstrated Ability (SODA)

This is a method to obtain a certificate for those that have disqualifying conditions that are static and non-progressive. The issuance of a SODA is discretionary. Much like the special issuance certificates, The NTSB does not have jurisdiction to review the denial of a SODA.  

 

SODA- a "statement of demonstrated ability" may be granted, instead of an Authorization, to a person whose disqualifying condition is static or non-progressive and who has been found capable of performing airman duties without endangering public safety. A SODA does not expire and authorizes a designated Examiner to issue a medical certificate of a specified class if the Examiner finds that the condition described on the SODA has not adversely changed.

 

In granting a SODA, the Federal Air Surgeon may consider the person's operational experience and any medical facts that may affect the ability of the person to perform airman duties including:

1) The combined effect on the person of failure to meet more than one requirement of part 67; and 2) The prognosis derived from professional consideration of all available information regarding the person.

 

In granting a SODA under the special issuance section of part 67 (14 CFR 67.401), the Federal Air Surgeon specifies the class of medical certificate authorized to be issued and may do any of the following:

  • State on the SODA, and on any medical certificate based upon it, any operational limitation needed for safety; or
  • Condition the continued effect of a SODA, and any second- or third-class medical certificate based upon it, on compliance with a statement of functional limitations issued to the person in coordination with the Director of Flight Standards or the Director's designee.
  • In determining whether a SODA should be granted to an applicant for a third class medical certificate, the Federal Air Surgeon considers the freedom of an airman, exercising the privileges of a private pilot certificate, to accept reasonable risks to his or her person and property that are not acceptable in the exercise of commercial or airline transport pilot privileges, and, at the same time, considers the need to protect the safety of persons and property in other aircraft and on the ground.

 

WITHDRAWAL OF A SODA- A SODA granted to a person who does not meet the applicable standards of part 67 may be withdrawn, at the discretion of the Federal Air Surgeon, at any time if:

  • There is adverse change in the holder's medical condition;
  • The holder fails to comply with a statement of functional limitations or operational limitations issued under the special issuance section of part 67 (14 CFR 67.401);
  • Public safety would be endangered by the holder's exercise of airman privileges;
  • The holder fails to provide medical information reasonably needed by the Federal Air Surgeon for certification under the special issuance section of part 67 (14 CFR 67.401); or
  • The holder makes or causes to be made a statement or entry that is the basis for withdrawal of a SODA under the falsification section of part 67.

 

A person who has been granted a SODA under the special issuance section of part 67 (14 CFR 67.401), based on a special medical flight or practical test need not take the test again during later medical examinations unless the Federal Air Surgeon determines or has reason to believe that the physical deficiency has or may have degraded to a degree to require another special medical flight test or practical test.

 

If a SODA is withdrawn at any time, the following procedures apply:

  • The holder of the SODA will be served a letter of withdrawal stating the reason for the action;
  • By not later than 60 days after the service of the letter of withdrawal, the holder of the SODA may request, in writing, that the Federal Air Surgeon provide for review of the decision to withdraw. The request for review may be accompanied by supporting medical evidence;
  • Within 60 days of receipt of a request for review, a written final decision either affirming or reversing the decision to withdraw will be issued; and
  • A medical certificate rendered invalid pursuant to a withdrawal, in accordance with the special issuance section of part 67 (14 CFR 67.401 (a)) shall be surrendered to the Administrator upon request.

Medical Questions and Answers

Am I prohibited from exercising the privileges of my pilot certificate during medical deficiency?

 

Yes. You are prohibited from acting as pilot-in-command or as a required pilot flight crewmember during any medical deficiency that would be disqualifying or may interfere with the safe operation of an aircraft. For more information, see 14 CFR §61.53.

 

A simple problem such as a cold, a broken arm, or an abscessed tooth may require nothing more than the appropriate treatment and a little time before you can safely return to the skies. A more complicated problem or the development or change of a chronic illness may necessitate consultation with an AME or the FAA before resuming flying. New medical conditions do not need to be reported to the FAA until you wish to return to flying.

 

Can I appeal if my application for medical certification is denied?

 

Yes. Section 67.409 under 14 CFR sets forth the appeal process within the FAA for applicants who are denied medical certification. Within 30 days after the date of the denial, you may apply for reconsideration to:

Federal Air Surgeon


Attention: Manager, Aerospace Medical Certification Division, AAM-300


Federal Aviation Administration


P.O. Box 25082


Oklahoma City,

Oklahoma 73126

 

How does the appeal process work?

 

The FAA sends a letter denying medical certification. An applicant whose medical certification is denied by an AME may request reconsideration of the decision by the Manager, FAA Aerospace Medical Certification Division (AMCD) or an FAA Regional Flight Surgeon (RFS).

If the AME simply defers issuance of a certificate, the AMCD or the RFS, as appropriate, automatically will review the application and inform the applicant of the decision.

If the AMCD or the RFS deny an applicant based on a medical condition that is specifically disqualifying as set forth under Part 67, the denial is final and may be appealed to the National Transportation Safety Board (NTSB).

 

If the AMCD or the RFS deny an applicant based on a medical condition that is not specifically disqualifying then the applicant may appeal to the Federal Air Surgeon (FAS). An unfavorable decision by the FAS may be appealed to the NTSB.

 

As appropriate, an Administrative Law Judge (ALJ) will schedule and conduct a hearing on the question of the applicant's eligibility for certification. If the ALJ's decision is unacceptable to the applicant or the FAA, the matter may be appealed to the full NTSB. If the full board affirms the denial of certification, the applicant may seek review by a U.S. Court of Appeals. From an adverse decision by a Court of Appeals, the applicant may ask for review by the U.S. Supreme Court (although such a review is highly unlikely).

 

Is a pilot required to report to the FAA that he or she has undergone LASIK or other laser eye surgery to correct vision?

 

LASIK and other forms of vision corrective surgery have potentially adverse effects that could be incompatible with flying duties.

These include:

Corneal scarring or opacities;

Worsening or variability of vision;

Night-glare; and

Haziness of vision.

 

The FAA expects that a pilot will not resume piloting aircraft until his or her own treating health care professional determines:

The post operative condition has stabilized;

There have been no significant adverse effects or complications; and

The person meets the appropriate FAA vision standards.

 

If these determinations are favorable and if otherwise qualified, the pilot may immediately resume piloting but must ensure that:

The treating health care professional documents his or her determinations in the pilot's health care treatment record;

A copy of that record is immediately forwarded to the Aerospace Medical Certification Division in Oklahoma City; and

A personal copy is retained.

The airman may continue flight duties unless informed otherwise by the FAA or another disqualifying condition occurs.

 

What medical conditions does the FAA consider disqualifying? The following conditions are listed in the regulations as disqualifying medical conditions; however, in many cases when the condition is adequately controlled, the FAA will issue medical certification contingent on periodic reports.

Angina pectoris

Bipolar disease

Cardiac valve replacement

Coronary heart disease that has been treated or, if untreated, that has been symptomatic or clinically significant

Diabetes mellitus requiring hypoglycemic medications

Disturbance of consciousness without satisfactory explanation of cause

Epilepsy

Heart replacement

Myocardial infarction

Permanent cardiac pacemaker

Personality disorder that is severe enough to have repeatedly manifested itself by overt acts Psychosis

Substance abuse

Substance dependence

Transient loss of control of nervous system function(s) without satisfactory explanation of cause.

 

Other conditions not specifically listed in the regulations are also disqualifying.

For further information refer to the Guide for Aviation Medical Examiners.

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