FAA will move forward with sleep apnea policy

Federal Air Surgeon says agency will not go through rulemaking process

December 12, 2013

During a hastily organized webinar held Dec. 12, the Federal Air Surgeon said the FAA will move forward with implementing mandatory screening and testing for obstructive sleep apnea despite opposition from the pilot and aviation medical communities.

The FAA recently announced that it would require aviation medical examiners to calculate body mass index (BMI) for all pilots. Those with a BMI of 40 or greater would have to be screened and, if necessary, treated for obstructive sleep apnea (OSA). The AME may issue a medical certificate at the time of the examination; however, the FAA will follow up with a request for additional evaluations, including a sleep study and evaluation by a board-certified sleep specialist. Pilots who don’t undertake the evaluation within 60 days would face receiving a letter of disqualification. Over time, the FAA would lower the BMI requirement, compelling more pilots to be screened by a sleep specialist. The FAA currently lists 5,000 pilots with a BMI of 40 or greater and more than 120,000 who qualify as obese with a BMI of 30 or higher.

AOPA and others have objected to the new testing requirements, saying they force AMEs to venture into predictive medicine, rather than focusing on their mandate of determining the likelihood that a pilot will be medically incapacitated at some point in the duration of the medical certificate. The association also has argued that such a significant change needs to go through the rulemaking process to allow public input and the opportunity to explore less intrusive and less costly methods for addressing concerns about sleep disorders.

But during the nearly two-hour webinar, Dr. Fred Tilton, who was joined by Dr. Mark Rosekind of the NTSB and Dr. Mark Ivey, a board-certified sleep specialist, characterized the sleep apnea screening requirements as a “process enhancement” rather than a policy change. As a result, Tilton said, the FAA does not need to, and won’t, go through the rulemaking process. He added that the policy will be implemented in early January when AMEs will receive formal guidance from the FAA.

While he acknowledged that there have been no fatal GA accidents attributed to sleep apnea, Tilton said the FAA is pursuing this policy because sleep apnea is a serious problem in other modes of transportation and the agency believes many pilots may be flying with undiagnosed sleep disorders.

AOPA is insisting that the FAA withdraw the policy or submit to the rulemaking process. In a Dec. 12 letter to FAA Administrator Michael Huerta, AOPA reiterated its objection to the policy and warned that a webinar is no substitute for rulemaking.

“I am deeply troubled by the manner in which the Federal Air Surgeon is proceeding, and call upon you to put a stop to it so that all concerned parties can have input in determining how to most effectively address concerns regarding sleep disorders,” wrote AOPA President Mark Baker.

The letter also noted that the FAA is moving forward on this policy at a time when Congress has just introduced the General Aviation Pilot Protection Act, legislation that would revise third-class medical requirements to expand the number of pilots who could fly without an FAA medical. Congress introduced the legislation after waiting 21 months for FAA to respond to a petition from AOPA and the Experimental Aircraft Association seeking more limited changes to the medical requirements.

Earlier this month, the House Transportation and Infrastructure Committee also took action, passing legislation that would require the FAA to go through the rulemaking process before implementing policy changes related to sleep disorders. The measure is now poised for a vote by the full House. Similar legislation affecting sleep disorders and the truck driving industry recently became law.

The Civil Aviation Medical Association, which is composed of aviation medical examiners, has also objected to the new policy, saying that the FAA is not tasked to provide long-term prognoses, there is no scientific evidence that undiagnosed obesity or OSA has compromised aviation safety, and that a sudden increase in the demand for special issuance medicals would add to existing processing delays.

Elizabeth Tennyson

Elizabeth A Tennyson | Director of Government Affairs and Executive Communications, AOPA

Director of Government Affairs and Executive Communications Elizabeth Tennyson joined AOPA in 1998, the same year she earned her private pilot certificate. She also holds an instrument rating and enjoys jumping out of planes almost as much as flying them.