INFORMATION MEMORANDUM REGARDING CASES ARISING UNDER SECTION 44703(d) FOR DENIAL OF MEDICAL CERTIFICATION (revised 3/2012)
The purpose of this memorandum is to guide individuals who may wish to seek review by the National Transportation Safety Board (NTSB) of a denial of medical certification by the Federal Aviation Administration (FAA). This memorandum also attempts to inform individuals seeking medical certification as to the differences between the unrestricted and special issuance medical certification processes, and the differing ways "specifically disqualifying" medical conditions and other medical disorders cited by the FAA as grounds for medical certificate denials are treated in evaluating an applicant's qualifications for medical certification.
COURSES OF ACTION
In any medical proceeding arising under 49 U.S.C. § 44703(d), there are two courses of action available to an individual who has been denied medical certification by the FAA.
THE FIRST ALTERNATIVE 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 ("FARs," which are codified at 14 C.F.R.; the complete set of medical regulations are found at FAR Part 67).
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, 490 L'Enfant Plaza East, S.W., Washington, D.C., 20594. The petition may be in the form of a letter. We need a copy of the FAA's denial letter to accompany the petition.
THE SECOND ALTERNATIVE 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 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, Aerospace Medical Certification Division (AAM-300), Federal Aviation Administration, Post Office Box 26080 Oklahoma City, Oklahoma 73125-9914; Telephone: 405-954-4821.
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. 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. Anyone who contemplates seeking NTSB review of an FAA medical certificate denial should carefully review the Board's Rules of Practice, especially § 821.24, in order to protect his or her right to a hearing.
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. 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, he or she 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. (See list of specifically disqualifying conditions.)
In cases involving specifically disqualifying conditions, the sole question is whether or not the applicant/petitioner has, or has ever had, the condition in question. 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 (see discussion above). If a request for special issuance certification is denied by the FAA, 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.
Applicant/petitioners are entitled to copies of all pertinent medical reports and records which the FAA has not previously provided to them, and which the FAA expects to introduce into evidence at the hearing. Such reports and records may be requested by writing to the Federal Aviation Administration, Office of the Chief Counsel, Enforcement Division (AGC-300); 800 Independence Avenue, SW, Washington, DC 20591.
Individuals who file a petition for review of an FAA denial of unrestricted medical certification with the NTSB should advise the NTSB's Office of Administrative Law Judges, as soon as possible after filing the petition, of the location (city and state) in which they prefer the hearing to be held. The NTSB administrative law judge will set the hearing in the city the applicant/petitioner selects, so long as there are available courtroom facilities in, and major air transportation to, that city.
As is noted above, the burden of proof in medical certification cases is on the applicant/petitioner. Most hearings in medical cases run approximately one entire day (about 8 hours). Approximately 25 days after the conclusion of the hearing, an official hearing transcript will automatically be mailed to the applicant/petitioner, or his or her attorney (and to the FAA's attorney). Currently there is no charge for a copy of the hearing transcript.
Any other questions regarding procedures or format for filing a petition for review with the NTSB should be directed to the Office of Administrative Law Judges, National Transportation Safety Board; Attention: Case Manager, 490 L'Enfant Plaza East, SW, Washington, D.C. 20594 (telephone: 202-314-6150 or toll free: 1-800-854-8758).