AOPA Pilot Magazine - May 2018 - 32

FOR THE RECORD

'Not qualified'

BY JARED ALLEN

Retribution under the cloak of anonymity
"WE HAVE RECENTLY RECEIVED A SAFETY HOTLINE

Since joining
AOPA from private
practice in 2015,
JARED ALLEN has
served as senior
counsel of the
Legal Services Plan,
advising airmen
on regulatory
compliance and
enforcement
matters. He is an
instrument-rated
private pilot.

32 | AOPA PILOT May 2018

complaint which indicates on a reasonable basis that
you may no longer meet the medical standards prescribed in [the FARs]. You may not be qualified to
hold any class of medical certificate," begins the letter from the FAA. "In order to determine whether
you meet the medical standards," it continues, "you
are requested to provide a detailed statement from
your treating physician about your current health,
and undergo several evaluations performed to FAA
specifications." In closing, the letter emphasizes that
if no reply is received within 60 days, "we will have no
alternative except to find you not qualified...in accordance with FAR 67.413."
If you hold a medical certificate, you could
receive a letter like this one. And it could happen
simply because an anonymous complaint was filed
against you.
The AOPA Legal Services Plan has received calls
from pilots being asked for medical information in
response to allegations of substance abuse or other
criminal conduct, frequently determined to have been
made by a vengeful ex-significant other. Disgruntled
co-workers and industry rivals also have filed complaints against pilots who are the subject of their
contempt. Some airmen have said they felt like the
FAA was being used as a tool of retribution by these
anonymous accusers.
When the FAA requires additional medical information or history to determine whether you meet the
standards to hold a medical certificate, the agency
generally can't get it unless you provide it. However,
FAR 67.413 states that you must furnish that information, or authorize its release. This regulation
exemplifies the broad authority granted under federal law that empowers the FAA to reexamine
whether an airman is qualified to hold his or her certificates "at any time."
And the FAA's authority is far-reaching when it
comes to your medical information. Often, pilots are
required to provide complete medical records detailing past and present diagnoses, explanatory reports
from treating physicians, and personal statements.
In some cases, they must submit to additional medical testing or evaluations. Such procedures are at the
pilots' expense, and the tests might still be required
even if the treating physician objects.

Until the FAA gets the information and can determine that you meet the relevant medical standards, it
can suspend, modify, or revoke your medical certificate-or deny your application.
The FAA's need for more information might be
obvious, such as if a pilot gives notice that his driver's
license has been suspended for driving while intoxicated, or if he or she discloses a medical condition for
the first time on the medical application.
But conspicuously absent from the rule is any
requirement that the FAA evaluate the credibility
of complaints received before using them to require
pilots to provide medical information or undergo
additional testing. In fact, it has been our experience
that the FAA historically has taken a "better safe than
sorry" approach and assumed most allegations to be
true-guilty until proven innocent.
When a pilot challenges the FAA's request by
refusing to provide the information, the only issue
on appeal before an NTSB law judge is whether the
FAA's demand was "reasonable." Referred to by one
law judge as a "very light" standard, case law shows
that any explanation offered by the FAA will likely
be adequate. This limited review will not reach any
conclusion as to whether the pilot is healthy or is
qualified to hold a medical certificate.
Rather than refuse to comply with the FAA's
demand, or appeal any FAA action, we have had better success in reducing the scope of the demand-or
even getting the demand withdrawn-by responding
to the FAA with an explanation as to why false accusations about a pilot's medical qualifications may have
been made. Little to no details about the complaint
will be available, so the pilot must have the insight
to explain, to the FAA's satisfaction, why someone
would have made the allegations at issue.
As pilots who do not hold a medical certificate
are beyond the reach of FAR 67.413, a similar regulation was recently implemented specifically for
BasicMed-qualified pilots. Although untested, FAR
68.11 provides at least some standard to be met before
seeking additional medical information from these
pilots. Specifically, the complaint received by the FAA
must be "credible or urgent." It's unclear how a "credible or urgent" complaint might be different from a
"reasonable" one, or whether it is a step in the right
direction. Time will tell.
AOPA

AOPA Pilot Magazine - May 2018

Table of Contents for the Digital Edition of AOPA Pilot Magazine - May 2018