For the Record: Remaining qualified

A recent FAA memorandum was issued in response to questions from pilots looking to leave their special issuances behind. The pilots questioned whether they still had to comply with demands for periodic medical tests and reports imposed as part of their special issuances.

Most pilots discover the need for a special issuance when their MedXPress application or examination reveals a condition that requires the AME to defer the certification decision to the FAA. Upon reviewing the case, if the FAA determines that the pilot is not eligible for a regular medical certificate, the airman can request an authorization for special issuance of a medical certificate.

An airman’s request for an authorization is granted at the discretion of the federal air surgeon (FAS), who may consider the pilot’s experience and any medical facts that may affect the pilot’s ability to perform airman duties. This can require the pilot to provide records of medical history or undergo additional evaluations.

If an authorization is granted, the pilot receives a letter listing the conditions he or she must meet to receive and hold a medical certificate. The authorization is typically valid for one to five years, while any medical certificate issued pursuant to the authorization is typically valid for 12 months. The authorization lists medical records, reports, or tests that the pilot must periodically provide to continue to be eligible for a medical certificate. If the pilot fails to provide medical information “reasonably needed by the FAS for certification,” the federal air surgeon has the discretion to withdraw the authorization.

The pilots’ authorization letters stated that “This authorization REQUIRES THAT YOU MUST…comply with all of the following conditions or your Special Issuance will be withdrawn.” A warning emphasized (in bold) that “This authorization will be withdrawn if you do not comply with any of the conditions for continued eligibility of this authorization.” As a result, many pilots expressed concern that they would be forced to undergo expensive tests and provide reports until their authorizations expired, even if their special issuance medical certificate had expired and they had transitioned to flying under sport pilot or BasicMed rules.

Withdrawal of an authorization not only requires the immediate surrender of the associated medical certificate, it renders the pilot ineligible to fly under sport pilot or BasicMed rules. If an authorization is withdrawn, a request for reconsideration can be made to the federal air surgeon, but his decision cannot be appealed.

Aware of the predicament these pilots faced, AOPA met with the FAA. The central question: If an airman has an unexpired authorization, but his special issuance medical certificate has expired and he will not be applying for another, must he continue to comply with the authorization’s requirements until it expires to prevent the authorization from being withdrawn?

No, answered the FAA’s Office of Chief Counsel, because a pilot’s “responsibility to comply with the terms of an unexpired authorization—including a term that requires regular submission of medical information—terminates when the associated special issuance medical certificate expires.” Once the pilot’s medical certificate expires, the federal air surgeon has “no reasonable basis” to require the pilot to continue to provide information as long as the pilot does not reapply for a medical.

For those transitioning to BasicMed, the FAA reasoned that “it does not appear that Congress, who mandated BasicMed, wanted an airman to be beholden to continued requests for information related to a prior authorization after the most recent special issuance medical certificate has expired and the airman is not in the process of seeking a renewed special issuance medical certification.” The law allows the FAA to act only if it receives “credible or urgent information” that reflects on a BasicMed pilot’s ability to safely operate an aircraft.

The FAA did not respond to AOPA’s inquiries concerning a pilot’s ability to surrender an unexpired special issuance medical certificate. Also, there remain other scenarios where the federal air surgeon could withdraw a pilot’s authorization. In any case, keep in mind that every pilot has a duty under FAR 61.53 to ensure that he or she is not operating an aircraft when medically unfit. Pilots should consult with AOPA’s Pilot Protection Services before leaving their special issuance behind.

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The AOPA Legal Services Plan is offered as part of AOPA’s Pilot Protection Services (www.aopa.org/pps).