FAA Flight Surgeon’s sleep apnea rules corrected, but procedural flaw not cured

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A new pronouncement by the FAA’s chief medical official has established rules by which pilots’ health will be measured in the future. The new FAA position on sleep apnea has been well received by stakeholders, but is it still procedurally flawed?

Two years ago, the FAA Flight Surgeon created a firestorm by issuing, without the requirements of the Administrative Procedure Act, mandated prognosis standards for Aviation Medical Examiners. The new very specific “rules” would determine if a pilot had sleep apnea and then would require that the pilot be subject to procedures like the above picture. The values for determining whether the pilot was afflicted and the prescription of what must be implemented immediately were uniformly faulted for being too absolute.

Substantial complaints from all sectors were heard (there was no docket to which to submit comments) and much of the critique had to do with the substance of Flight Surgeon’s medical criteria. The indicia for the sleep apnea treatment included whether the pilot had a body mass index (BMI) of 40 or greater, and a neck size of 17 inches or greater. The crescendo of experts, including the AME association, was directed at the absolute nature of this “prescription.

In addition to the substantive attacks, there were numerous arguments that the new standard was a substantive, mandatory amendment. Any such change must be submitted to the notice and comment process. The strength of this position was included in several bills introduced to stop the new “fat” pilot rule.

After consultation with all of the relevant industry association, the FAA has backed down. Now, the risk of OSA will be determined by an integrated assessment of history, symptoms and physical/clinical findings. The prognosis must incorporate guidance from the American Academy of Sleep Medicine in determining pilots’ eligibility for a medical certificate.

NBAA’s President and CEO, Ed Bolen, said “This new guidance, developed with NBAA’s input, reflects a pivot for the agency, which combines common sense with clinical discipline.” Another plus for NBAA is that under the new guidance, pilots will be able to continue to fly while being evaluated for OSA.

The cheering about the successful rollback of the absolute linkage of specific symptoms with required treatment has ignored the underlying APA violation. This “victory” cannot be cited for the proposition that the Flight Surgeon must only issue new rules with proper notice and comment. That may prove to be shortsighted or myopic (technically, medically speaking).

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