by Greg Reigel, AAL
Copyright 2018. All Rights Reserved
Published in Midwest Flyer – December 2018/January 2019 issue
As some of you may know, the Department of Justice (DOJ) recently issued a press release announcing that it had indicted four pilots for lying on their medical applications. In each case, the airman failed to disclose that he was receiving Veterans Administration (“VA”) benefits for a medical condition that would likely have either disqualified the airman from receiving a medical certificate, or would have certainly subjected the airman to additional scrutiny and/or testing requirements by the FAA’s Office of Aerospace Medicine.
The airmen were “caught” when the FAA cross-checked its database of airmen holding medical certificates with the VA’s disability benefits database. This is reminiscent of the FAA’s 2002 Operation Safe Pilot in which it performed a similar cross-check, but with the Social Security Administration’s (“SSA”) disability database. Operation Safe Pilot resulted in prosecution of 40 pilots who were receiving SSA disability benefits for conditions that would have either disqualified the airmen from receiving a medical or would have triggered further inquiry by the FAA.
After Operation Safe Pilot, the FAA revised the application for medical certificate to include language that specifically authorizes it to conduct this type of cross-check with SSA and VA. When an airman signs the medical application, he or she is agreeing that the FAA can perform this type of search.
Since the DOJ press release was issued, I have received multiple calls from airmen who believe they may be in a similar situation, but have not yet been “discovered” or received any notice from the FAA. In each call the airman is, perhaps justifiably, concerned regarding his or her liability exposure for criminal prosecution. Fortunately, options, albeit not great options, are available provided the airman is not yet in the FAA’s cross-hairs.
Depending upon the circumstances, airmen have at least two options for dealing with the situation:
1. An airman can contact the FAA via letter and disclose the previously omitted information regarding both the medical condition and the receipt of disability benefits. It is also helpful to provide an explanation for the non-disclosure, to the extent that the airman has a reasonable explanation for failing to disclose the information. This may persuade the FAA that the failure to disclose was not intentional, but merely a misunderstanding, etc.; or
2. The airman can apply for a new medical certificate and disclose the medical condition and receipt of benefits on the application. Then when the airman goes to his or her aviation medical examiner (“AME”) for the medical examination, the airman can explain the situation to the AME.
In either instance, the airman will want to have all of his or her VA medical/disability records available to provide to the FAA. However, an airman should keep in mind that any information he or she provides to the FAA could be used against the airman in a criminal prosecution. So, it is important for the airman to be very careful about what he or she says to the FAA or AME.
Although pursuing one of these two options does not guarantee that the FAA will not prosecute the airman, coming clean and correcting the record before the airman is “caught” may convince the FAA that prosecution is unnecessary. However, even if an airman is not prosecuted, it is quite likely that the FAA will follow its standard playbook and revoke all of the airman’s certificates as a sanction for falsifying the airman’s medical application(s).
If you find yourself in this situation, please call and I will be happy to help you through the process.
EDITOR’S NOTE: Greg Reigel is an attorney with Shackelford, Melton, McKinley & Norton, LLP, and represents clients throughout the country in aviation and business law matters. For assistance, call 214-780-1482, email firstname.lastname@example.org, or Twitter @ReigelLaw.