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
  • /
  • 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.

 

FAA Medical Assistance

  • ON Jan 07, 2019
  • /
  • BY Anthony Ison
  • /
  • IN Pilot Law

When looking for FAA medical certification assistance, is it smart to hire an attorney? Having a FAA medical defense attorney on your side has its benefits when you need FAA medical certification assistance. When faced with a FAA medical application deferral, FAA medical denial, or FAA medical revocation, you have options on who to get help from – your aviation medical examiner (“AME”), your airline, your union, your pilot friends, FAA medical certification agencies, etc. However, having a FAA medical defense attorney provide FAA certification medical assistance offers you more protection than any of the foregoing. How so?

When a FAA medical defense attorney provides FAA medical certification assistance, certain documents and communication can be protected by the attorney-client privilege. This means that in the event your FAA medical certification issue is appealed to the National Transportation Safety Board (“NTSB”), certain documents and communications may be protected from disclosure. Whereas, with non-attorneys providing FAA medical certification assistance, communication and documentation is generally exposed to subpoenas, requests for production, interrogatories, depositions, and a myriad of other discovery tools.

Furthermore, hiring a FAA medical defense attorney to provide FAA medical certification assistance may aid in the cultivation of evidence which may be necessary for a future appeal to the NTSB. In that, anything submitted to the FAA will be included in your airman medical file. Your airman medical file ultimately will become part of the FAA’s evidence in the event a denial or revocation is appealed to the NTSB. As such, careful legal review of what is being submitted to the FAA medical office now is paramount to a potentially successful appeal later.

There are numerous reasons why hiring a FAA medical defense attorney is crucial to obtaining proper FAA medical certification assistance. Call The Pilot Lawyer at The Ison Law Firm today to discuss your needs for FAA medical certification assistance.

  • FAA medical defense attorneys do not provide medical advice, but rather aid in the logistics, legalities, and strategy of airman medical certification processes.

It’s Taking Forever To Get My FAA Medical Certificate

  • ON Dec 18, 2018
  • /
  • BY Anthony Ison
  • /
  • IN Pilot Law

It’s not uncommon for airmen with deferred FAA medical applications to find themselves saying: “it’s taking forever to get my FAA medical certificate.” When an airman’s FAA medical application is “deferred” by the Aviation Medical Examiner “AME,” the airman’s FAA medical application is sent to the cold, dark, labyrinth of either the FAA’s Regional Flight Surgeon’s office or the Aerospace Medical Certification Division in Oklahoma City for further evaluation. In some cases, following a denial, a medical application can be sent to the Federal Air Surgeon’s office for further consideration. Unfortunately, in these cases, it’s hard to say how long it will take for the FAA to evaluate your FAA medical application and make a determination as to whether you are eligible to hold a medical certificate. But why does it take so long?

This article doesn’t assume to know every reason why it’s taking forever for you to get your FAA medical certificate. Every case is different. Nevertheless, in practice, there are two main reasons why it takes so long for the FAA to make a determination on a deferred FAA medical application. The first reason is completely out of the airman’s control: backlog. There are a lot of airmen with deferred FAA medical applications and an insufficient staff to keep up with the backlog. So, sometimes, waiting for a file to actually be reviewed by a doctor or analyst adds the biggest delay to an airman’s file review.

The second reason for the delay in getting a FAA medical certificate following deferral is not having adequate medical documentation to support your eligibility to hold a FAA medical certificate. In some cases, your health may legitimately be disqualifying and it may not be possible to provide sufficient medical documentation. In other cases, however, when you don’t send in quality documentation (i.e. documentation that is responsive to the FAA’s requests, evaluations from qualified physicians, etc), this delays the FAA’s review of your application. This usually leads to the FAA requesting additional information and the process, perhaps unnecessarily, dragging on for much longer than is necessary. The key is ensuring at the outset that you’re sending in documentation that is likely to establish your eligibility for FAA medical certification.

If your FAA medical certificate is under review or if you anticipate your FAA medical application being deferred, consult with a knowledgeable FAA medical attorney. An experienced FAA medical attorney can identify the FAA’s policies appropriate to your medical condition and assist with gathering and providing documentation that may aid in your eligibility to hold a medical certificate and potentially cut down on the time it takes to be issued a FAA medical certificate.

Contact your FAA medical attorney at The Ison Law Firm to discuss your FAA medical issues.

*consultation with an attorney is not a guarantee to faster medical certification