Greg Reigel's Aero Legal Services

FAA To Update Application For Medical Certificate

By Gregory J. Reigel

© June, 2008 All rights reserved.

According to a recent article by Dr. Fred Tilton, Federal Air Surgeon, in the Federal Air Surgeon's Medical Bulletin, the FAA is updating FAA Form 8500-8, Application for Medical Certificate, to include potentially significant changes. Several changes occur in the aftermath of Operation Safe Pilot. The other change, and one which, in my opinion, is more significant and may be more problematic for certain airmen, relates to an airman's disclosure of his or her arrest and criminal conviction history (e.g. license suspension/revocations, driving while intoxicated/under the influence, non-driving, drug-related crimes etc.).

Changes Resulting From Operation Safe Pilot

Form 8500-8 will receive two additions as a direct result of Operation Safe Pilot:

Question 18(y). This new question will ask the airman to answer "yes" or "no" to whether he or she has ever had or has "medical disability benefits." Unfortunately, the question does not define or otherwise specify a source for the disability benefits. As a result, an airman will be required to disclose all sources of disability benefits even though the disclosure may include disability ratings or benefits that would in no way compromise aviation safety and would not disqualify the airman from receiving a medical certificate.

The airman disclosing such non-disqualifying disability benefits will need to fully explain the situation to the airman's aviation medical examiner to make sure that he or she and the FAA will understand and be able to properly issue the medical certificate where appropriate. Failure to disclose all disability benefits, even if the undisclosed benefits would not disqualify the airman from receiving a medical certificate, could expose the applicant to a charge of falsification, which would result in revocation of all airman certificates.

Paragraph (f) in the Privacy Act Statement. A new Paragraph (f) is being added to the Privacy Act Statement to state that the FAA is authorized to disclose information to other Federal agencies for verification of the accuracy or completeness of the information. This new language is intended to preclude a defense that was raised by several of the airmen in the Operation Safe Pilot prosecutions that the FAA violated the Privacy Act of 1975 5 U.S.C. 552a when it obtained the airmen's social security disability information without the airmen's consent. By signing Form 8500-8 with the new language, an airman will be agreeing to allow the FAA to contact the Social Security Administration, as it did in Operation Safe Pilot, the Veteran's Administration, or any other Federal agency. According to the FAA, the addition of Question 18(y) and Paragraph (f) should put airmen on notice that the FAA will be scrutinizing medical applications, and the disclosures airmen make in those applications, more closely.

Criminal History Disclosures

The most significant change to Form 8500-8 will be the addition of the word "arrest" in several key locations within Question 18(v). Currently, Question 18(v) asks an airman to disclose if he or she has a

"History of any conviction(s) involving driving while intoxicated by, while impaired by, or while under the influence of alcohol or a drug; or (2) any history of any conviction(s) or administrative action(s) involving an offense(s) which resulted in the denial, suspension, cancellation, or revocation of driving privileges or which resulted in attendance at an educational or rehabilitation program."

The new Form 8500-8 adds the words "arrest and/or" before each instance of the word "conviction." Although this may not appear significant at first, it is important to understand the distinction between "arrest" and "conviction." Currently, an airman is only required to disclose a "conviction," which means the airman, presumably, has received full due process that resulted in a conviction by a jury of the airman's peers or by the airman's agreement to enter a plea of guilty. With the addition of the word "arrest" to Form 8500-8, an airman must now disclose an arrest that may or may not have been legitimate or proper and which, ultimately, may not result in either a conviction or a plea of guilty. In other words, the airman must disclose an arrest even though he or she may not have been afforded full due process and may not be guilty of the crime for which he or she was arrested.

The practical effect of the new language on an airman arrested for a "motor vehicle action" (e.g. driving while intoxicated/under the influence of alcohol or drugs) may not be much different than it is currently. As you should know, FAR §61.15 requires an airman to make a written report to the FAA Civil Aviation Security Division if his or her license is administratively suspended as a result of an arrest for a motor vehicle action, and again if the airman is then convicted of driving while intoxicated/under the influence of alcohol or drugs.

In the majority of states, a driver's license is administratively suspended automatically under the applicable implied consent statute when the driver is arrested for driving while intoxicated/under the influence. Thus, when an airman is arrested for driving while intoxicated/under the influence in most states, the resulting administrative implied consent suspension will be a motor vehicle action that must be reported to the FAA even though the arrest has not resulted in a conviction (which is another reportable motor vehicle action). Thus, the FAA will receive information of the "arrest" regardless of whether an airman also disclosed it on a medical application prior to resolution of the driving while intoxicated/under the influence charge. However, the practical effect of the addition of "arrest" to Form 8500-8 is far more significant when an arrest for a non-driving, drug-related crime (e.g. growing, processing, manufacture, sale, disposition, possession, transportation, or importation of drugs) is involved. Since FAR §61.15 does not require any written report to the FAA Civil Aviation Security Division for a non-driving, drug-related conviction, currently an airman has to disclose his or her arrest for a non-driving, drug-related crime to the FAA only if the airman ultimately ends up with a conviction for that crime. This is accomplished on the existing Form 8500-8 and makes sense from an aviation safety perspective.

However, with the inclusion of "arrest" in new Form 8500-8, an airman will have to disclose an arrest for a non-driving, drug-related crime even though he or she may never be convicted of the crime for which he or she was arrested or, in fact, convicted of any non-driving, drug-related crime. This isn't necessarily a bad thing when the arrest actually discloses possible chemical dependency or substance abuse issues that potentially impact aviation safety. However this has the potential to result in unfortunate consequences for an airman who "was in the wrong place at the wrong time" or who made a mistake that does not present a risk for aviation safety.

Why is this a problem, especially in light of the fact that FAR §61.15 does not impose any sanctions against an airman's certificate when he or she is simply "arrested" for a drug-related crime but is not convicted? Well, I would expect that the dislosure of such an arrest on new Form 8500-8 will result in a letter to the airman from the FAA in which the FAA questions the airman's qualification/eligibility for a medical certificate, and possibly other airman certificates, and demands copies of police reports and court records related to the arrest, as well as a narrative explanation of the situation from the airman and, possibly, a chemical dependency assessment indicating that the airman does not have a chemical dependency/substance abuse problem.

Again, these requests may be justified in some circumstances. However, my concern is that the FAA, who is not particularly famous for evaluating cases on an individual basis, will simply invoke this procedure in all cases regardless of the factual explanation provided by the airman to his or her aviation medical examiner. I believe this "cookie-cutter" approach has the potential to adversely and unfairly impact airmen who are otherwise qualified to hold medical certificates, but that, for one reason or another, found themselves in a bad situation that resulted in an arrest, but not a conviction.

Conclusion

The Federal Air Surgeon's article does not provide a date for when the new Form 8500-8 will be available or required. However, the article notes that aviation medical examiners will receive several more notices from the Federal Air Surgeon before this happens. So, your guess about when revised Form 8500-8 will be implemented is as good as mine. However, in the meantime airmen should make sure they understand and are prepared for the new information and questions in revised Form 8500-8. Also, although it should go without saying, airmen are well advised to take the necessary measures to avoid finding themselves in situations that could result in serious consequences for their ability to obtain or maintain their airmen and medical certificates.

1 If you recall, OSP compared a list of individuals collecting disability benefits from the Social Security Administration against the list of certificated airmen in California. That comparison resulted in discovery of pilots who were collecting disability and had failed to disclose those disqualifying medical conditions on their airman applications for medical certificate. Approximately 40 of those pilots were prosecuted for fraud and lost their airmen medical certificates.