For the record: ‘Not qualified’

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.