FAA is Unable to Establish Your Medical Eligibility

Did you receive a letter stating that the FAA is unable to establish your medical eligibility? This language is not particularly a cause for alarm. The FAA may conduct a reexamination of your eligibility to hold a medical certificate pursuant to 14 C.F.R. §67.413. This regulation authorizes the FAA’s Office of Aerospace Medicine to request additional medical information whenever the Administrator finds that such information is necessary to determine whether you meet the medical standards required to hold a medical certificate. In a “reexamination letter,” the FAA typically includes boilerplate language to state “we are unable to establish your eligibility to meet the medical standards prescribed in Title 14 of the Code of Federal Regulations (CFR), Part 67.”

Why would the FAA be unable to establish your medical eligibility? For the most part, if you report a medical condition that could lead to an aeromedically significant concern, the FAA will ask for medical records pertinent to that condition. Just because the FAA asks for records, however, doesn’t mean your medical application will be denied or revoked. For the most part, the FAA’s disposition of their review of your records will be dependent on what is in your records, how the records are presented, and whether the underlying condition is disqualifying (or if you are taking a disqualifying medication). It is always advisable to have a FAA medical attorney review your records prior to submission, and properly strategize as to what could be submitted to further support your eligibility.

What types of records should be submitted to the FAA? It depends. If the FAA’s request for records is not “necessary” pursuant to 14 C.F.R. §67.413, there may be an argument made to the FAA that such a request should be rescinded. On the other hand, there are some things, such as the FAA requesting a drug test within 48-hours, which is usually non-negotiable. Beyond that, if your records reveal a concern for other previously unreported issues, such as substance use, diabetes, criminal history, etc., or anything which may reveal that you have not provided accurate answers on your previous applications for medical certification, you may want to take action to supplement your submission. In other words, sometimes, it pays to give the FAA more than what they ask for, in order to explain or alleviate concerns which appear in your medical records.

If you have received a letter stating that the FAA is unable to establish your medical eligibility, you need to contact a FAA medical attorney. Having an FAA medical attorney assist you with your submission can allow you to maximize review of your records and strategize as to the best approach for obtaining your medical certificate. Your FAA medical attorneys at The Ison Law Firm are standing by to help you with your FAA medical eligibility.

TSA Imposes Fines Against Travelers Without Masks

Did you know that the TSA imposes fines against travelers without masks? In the wake of the COVID-19 pandemic, the Transportation Security Administration (TSA) looks to curb the spread of the coronavirus by imposing fines against travelers for not wearing a mask while in the public transit domain. In addition to denying entry, boarding, or continued transport to a traveler, the TSA may seek to fine a mask-less traveler anywhere from $250.00 for a first-time offense, up to $1,500 for repeat offenses. In some instances, the TSA may even seek a fine in excess of $1,500 depending upon aggravating factors.

Travelers should expect to wear a mask at TSA airport screening checkpoints and throughout the commercial and public transportation systems (to include airports and while traveling as a passenger on an aircraft) between February 2, 2021, and May 11, 2021. According to the TSA, “the federal face mask requirement extends to the nation’s domestic network of airports; passengers and crewmembers flying aboard airplanes operated by domestic and foreign air carriers with inbound flights to U.S. ports of entry… Passengers without a mask may be denied entry, boarding, or continued transport. Failure to comply with the mask requirement can result in civil penalties.” https://www.tsa.gov/news/press/releases/2021/01/31/tsa-implement-executive-order-regarding-face-masks-airport-security

While this latest mask requirement is in response to President Biden’s January 21, 2021, Executive Order on Promoting COVID-19 Safety in Domestic and International Travel, there are certain exemptions that may apply based upon age, disability, and security. For example, travelers under the age of two (2), those with a disability who cannot wear a mask as defined by the Americans with Disabilities Act (ADA), or those for whom a mask would create a risk to workplace health, safety, or job duties are exempt from wearing a mask. Additionally, there may be times while at the airport where TSA will ask the traveler to momentarily remove a mask to confirm the traveler’s identity.

Masks must conform to applicable guidelines from the Centers for Disease Control and Prevention (CDC), to include covering the nose and mouth while fitting snugly against the sides without gaps. Acceptable masks may be either commercially produced or homemade; however, the masks should be a solid piece of material without slits, exhalations valves, or punctures. To that end, face shields and/or goggles are not acceptable substitutes for the use of a proper mask (although a traveler can still wear them in addition to wearing a mask).

If you have received a Notice of Proposed Civil Penalty from the TSA because of an alleged violation of the TSA’s new mask policy, call the attorneys at The Ison Law Firm at 855-FAA-1215 to discuss your legal rights and options.

FAA Medical Certificate Denied for Substance Dependence Part 2: Increased Tolerance

Has your FAA medical certificate been denied for “substance dependence?” If so, reference the previous article regarding the FAA’s criteria for “substance dependence.” You can read that article here: FAA Medical Certificate Denied for Substance Dependence: Part 1: Criteria for “Dependence” – The Pilot Lawyer This article will address the first and most problematic of the FAA’s four criteria for “substance dependence.” As you will recall, the relevant regulations in Part 67 identify four separate “clues” for determining whether an airman has “substance dependence.” Those items are: (a) Increased tolerance; (b) Manifestation of withdrawal symptoms; (c) Impaired control of use; or (d) Continued use despite damage to physical health or impairment of social, personal, or occupational functioning. The relevant regulations state that an airman’s history needs only establish one of the four criteria, not all four. This article will discuss “increase tolerance.”

In practice, it seems that the FAA identifies an airman as having a history of “substance dependence” by nature of “increased tolerance,” more so than any of the other criteria. What does “increased tolerance” mean? Well, the Federal Aviation Regulations do not identify the meaning of this criterion and the FAA does not have a hard and fast definition of this phenomenon. Generally, in practice, however, the FAA treats this issue as though it is a situation where an airman has used a substance more frequently and in larger amounts over time, such that it takes larger amounts to feel the same effects the airman may have felt when he or she was naïve to that substance and just had a small amount of it.  In other words, this can be defined as a need for larger amounts of the substance over time to feel the same effect.

The FAA has, in the past, at least also looked for some “purposeful function” to demonstrate the airman’s “increased tolerance.” This means that the FAA will evaluate whether the airman is able to function as if they weren’t intoxicated when there is evidence that the airman is extremely intoxicated with a substance. Most commonly is the FAA’s evaluation of a breath/blood alcohol content following a DUI. In these instances, the FAA tends to look at values at or above .15% to suggest whether there is any “tolerance.” An example is if an airman is able to find the keys to their car, put their key in the ignition of their car, drive their vehicle down the road, there is seemingly some indication of “purposeful function.” If an airman is intoxicated at an egregious level and is able to demonstrate this “function,” the FAA generally finds there is an “increased tolerance.” The key takeaways in medical certification cases are: 1) always be sure that BAC values are accurate before presenting them to the FAA; and 2) always evaluate whether there is any evidence of “purposeful function” in your history – if not, raise those points to the FAA.

Has your FAA medical certificate been denied for “substance dependence?” If so, remember the FAA’s essential criteria for this condition. If you need FAA medical certification help, contact an aviation medical attorney at The Ison Law Firm. If your FAA medical certificate was denied for “substance dependence,” there are opportunities for the FAA’s decision to be reconsidered and appealed. Learn more about what a FAA medical defense attorney at The Ison Law Firm can do for you.

Your FAA Medical Denial

Your FAA medical denial is not the end of the road for your flying career. Did you know that most FAA medical denials are not “final denials?” In other words, most FAA medical denials are subject to considerable “reconsideration” and potentially even review by the National Transportation Safety Board. To that end, not all FAA medical denials are created equal. In essence, there are three types of FAA medical denials to look out for:

  • “Failure to provide” medical denial: the FAA’s Office of Aerospace Medicine will issue a “failure to provide” denial when information that they have requested has not been received. In other words, if the FAA requests medical documentation from you and you don’t provide it, you may be denied because the FAA didn’t receive the information believed necessary to establish your eligibility for medical certification. Such a request is usually made pursuant to 14 C.F.R. §67.407 and may be made at the time of application or in the event information is received by the FAA which provides a reasonable basis to question your eligibility to hold an airman medical certificate.
  • “Non-Final” medical denial: the FAA’s Office of Aerospace Medicine can also issue an interim denial of an application for medical certification. This type of FAA medical denial is subject to reconsideration by the Federal Air Surgeon. Simply put, a “non-final” medical denial occurs when cursory review reveals that you may not be eligible for medical certification, but the reviewing staff physician does not have the authority pursuant to 14 C.F.R. Part 67 to issue a “final” denial.
  • “Final” medical denial: a “final” FAA medical denial is where the Federal Air Surgeon or, in certain cases, the Manager of the Aeromedical Certification Division or Regional Flight Surgeon has reviewed your file and determined that you are not eligible for medical certification or further reconsideration. Do not be fooled by the verbiage of this denial – a FAA medical denial is almost never legitimately “final.”

So, what to do when you receive any of the above FAA medical denials?

  • “Failure to provide” medical denial: you can always provide the information that has been asked for – even if it is after you’ve received the denial! Keep in mind, however, that the FAA’s request must be necessary. So, there is good reason to engage an aviation attorney to assess whether the FAAs’ request is overreaching and/or aid you in gathering and presenting your records to the Office of Aerospace Medicine.
  • “Non-Final” medical denial: a “non-final” FAA medical denial should always be challenged. The FAA typically offers the opportunity for reconsideration of such a denial. Requesting reconsideration, often times, must be done with an eye for arguing the facts of your eligibility and, perhaps, gathering and submitting additional medical information to establish your eligibility.
  • “Final” medical denial: as mentioned above, you can always submit new information and applications for medical certification following a “final” medical denial. After a “final” medical denial, however, you also have an opportunity to petition the National Transportation Safety Board for judicial review of the FAA’s denial. Oftentimes, this is a great opportunity to pursue.

If you’ve received a FAA medical denial, it is not the end of the road for your interest in aviation. There are almost always opportunities for reevaluation by the FAA and even the National Transportation Safety Board. There are also considerations of special issuance authorization and revocation of your medical certificate, which are not addressed herein. If you have a FAA medical denial, call for a consultation with your FAA medical denial attorney at The Ison Law Firm today. Learn more here: https://thepilotlawyer.com/faa-medical/

Three Steps to Avoid a FAA Medical Denial

  • ON Jan 18, 2020
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  • BY Anthony Ison
  • /
  • IN Pilot Law

There are three steps to avoid a FAA medical denial, whether you’ve been flying for years or this is your first FAA medical application. As you probably already know, a pilot’s license is only as good as the medical certificate that you hold. If you’re an ATP, student pilot, or just interested in getting into aviation, the common denominator is the need for a valid FAA medical certificate. Beyond that, the FAA’s new “BasicMed” certificate requires that your most recent medical application not have been denied. So, the impact of a FAA medical denial is becoming more consequential in the airman certification process, overall.

TIP #1: REVIEW BEFORE YOU SUBMIT

Before you submit an application to the FAA for medical certification, you hold all the power. Once you submit your application or medical records to the FAA, the FAA takes charge. Anything and everything that is submitted will be scrutinized by the FAA medical officers and considered in a light most favorable to aviation safety. This does not mean you should fabricate, falsify, or redact any information or documents. Instead, you should review all records and documentation prior to submission to the FAA in order to avoid a FAA medical denial. Doing so, gives you an opportunity to consider obtaining potential second opinions, more complete medical records, and developing additional evidence to support your eligibility in light of your condition. Addressing problematic conditions or records prior to submission to the FAA can work to alleviate the FAA’s concerns and help avoid a FAA medical denial.

TIP #2: UNDERSTAND THE FEDERAL AVIATION REGULATIONS

Not all medical conditions are treated the same by the FAA. Some medical conditions require simple document review by the FAA, which can ultimately result in issuance of a FAA medical certificate. However, Part 67, the body of regulations which identify criteria for medical certification, identifies certain disqualifying medical conditions. If you have an established medical history or clinical diagnosis of one of these “specifically disqualifying” conditions, as outlined in Part 67, you will always end up with a FAA medical denial. Nevertheless, even if you received a FAA medical denial due to one of these disqualifying conditions, you may be eligible for a special issuance authorization (essentially a waiver). The various conditions requiring special issuance authorization require medical evidence specific to that condition to establish eligibility for issuance. Knowing what conditions require special issuance authorization can prevent a FAA medical denial and ultimately preserve your opportunity to fly under Sport Pilot rules.

TIP #3: APPRECIATE THAT YOUR AME MIGHT NOT KNOW IT ALL

Do not expect your aviation medical examiner or “AME” to necessarily understand how the FAA will treat your medical condition. Clinically, you may appear eligible for medical certification, which might support your AME trying to issue your medical certificate. However, certain conditions require the FAA to review your medical records, whether your AME believes you are eligible, or not. Ultimately, even if your AME issues you a medical certificate, the FAA can still deny your FAA medical application.

As you can see, there are ways to avoid a FAA medical denial. These tips can be broken down into more nuanced procedures and have been refined by the aviation attorney at The Ison Law Firm. If you are facing a FAA denial, help is only a phone call away: 1-855-FAA-1215.

Check out more, here:  https://thepilotlawyer.com/faa-medical/

The information contained in this web-site is intended for the education and benefit of those visiting this site. The information should not be relied upon as advice to help you with your specific issue. Each case is unique and must be analyzed by an attorney licensed to practice in your area with respect to the particular facts and applicable current law before any advice can be given.