FAA makes medical certification rule mandating sleep apnea testing.

By Charlton Stanley, Weekend Writer

FAA logoLast year, in a virtually unprecedented move, the Federal Aviation Administration’s Office of Aerospace Medicine ordered that all pilots who applied for a medical certificate would have their Body Mass Index (BMI) calculated. If the BMI was 40 or greater, a sleep study became mandatory in order for the medical certificate to be granted. In other words, the pilot has to prove he or she does not have Obstructive Sleep Apnea (OSA).

This announcement of new rules bypassed completely a request for comments from the public, which is mandated by law. One day the rule did not exist, the next day there was a new rule requiring horrendously expensive and intrusive testing by a board certified specialist in sleep studies.

It got worse. The policy, published in the Federal Air Surgeon’s Medical Bulletin, Vol. 51, No. 4, goes on to say, “Airman applicants with a BMI of 40 or more will have to be evaluated by a physician who is a board certified sleep specialist, and anyone who is diagnosed with OSA (obstructive sleep apnea) will have to be treated before they can be medically certificated.” The kicker? The order makes it clear the standard will eventually be expanded to include pilots with an even lower BMI, whether they have any history of daytime sleepiness or sleep disorder. The order is based on BMI alone.

The FAA does not provide any accident or statistical data to justify this extraordinary rulemaking at all. Why? Because there isn’t any.

AOPA-LogoThe Aircraft Owners and Pilots Association (AOPA), along with other aviation organizations, objected strongly to this ham-handed, arbitrary and capricious move on the part of the FAA medical office. Adding insult to injury, the FAA has access to National Transportation Safety Board (NTSB) accident reports for the past six decades. Despite a diligent search of the records available online, I could not find a single aircraft accident or incident attributed to sleep apnea. There are, on average, about 1,200 general aviation aircraft accidents per year. Commercial scheduled airline accidents are so infrequent they are statistically insignificant, and aren’t included here. This article is really about about general aviation. Those 1,200 accidents range in severity from some bent sheet metal, up to fatal. Out of those twelve hundred airplane accidents per year, about 250 of them end up being fatal. That means they have records on about 24,000± general aviation accidents over the last twenty years, without the NTSB blaming any of them on sleep apnea.

On the other hand, fully certified pilots with no reported problems on their Medical Certificates have died in flight from medical issues unrelated to sleep apnea.

According to their own data, the causes of general aviation accidents are as follows, in ranked order. This is from the NTSB report for 2013:
1. System failure (engine failure, etc.)
2. Loss of control of aircraft in flight
3. Loss of control of aircraft during ground operation
4. Abnormal runway impact (i.e., bad landing)
5. Other collision
6. Runway excursion (somebody was where they weren’t supposed to be)
7. Ran out of gas
8. Unknown cause or could not be determined
9. Accidents that don’t fit into any of the above classifications.

Items 2, 3, 4, 5, 6, and 7 are all pilot error. Item two is usually due to a non-instrument rated pilot flying into instrument conditions, and becoming disoriented. Item three means the pilot wasn’t paying attention to where they were going while taxiing. Bad landings happen to every pilot, but if you can’t use the airplane again, that gets it written up. There is no excuse for running out of gas, unless the fuel system has sprung a leak, in which case the cause should be moved up to Item #1. There are incidents such as the one which killed golfer Payne Stewart, and the one this week that flew for hundreds of miles at high altitude with the windows frosted over, finally crashing near Jamaica. Both those airplanes had an oxygen system failure, the pilot died of hypoxia, and the airplane flew on by autopilot until it ran out of fuel.

So we need to figure out just why the FAA and the Department of Transportation suddenly determine that sleep apnea is such a danger to the public that new rules had to be installed so quickly that they violated their own rules and controlling Federal law.

As most know, many members of Congress are pilots, some of them coming from a military background. For the members affected, this is not a partisan or party issue; it is an issue that affects everybody who wants to fly or drive a truck. Last November 20, AOPA President Mark Baker wrote a letter to Michael P. Huerta, Administrator of the Federal Aviation Administration.

Mark Baker, speaking for AOPA members, pointed out in his letter that, “Any effort to improve general aviation safety must be data driven, and the available data simply do not support the need for this new OSA policy for general aviation.”

The letter goes on to point out the obvious.  Baker warns the FAA, and by extension their parent body, the Department of Transportation, that the cost of the new policy could be astronomical in terms of both money and time. Sleep apnea testing for the 124,973 airmen identified as obese by the FAA in 2011 could cost as much as $374 million. Affected pilots would also have to apply for a special issuance medical certificate at a time when the FAA already has a backlog of 55,000 cases.

About a month before AOPA’s Mark Baker wrote that letter to Administrator Huerta, the Department of Transportation’s Federal Motor Carrier Safety Administration had tried the same end run around the rulemaking process, but that time it was commercial truck drivers who had their medical certificates targeted. Congress jumped on that immediately, passing a bipartisan law in near-record time, ordering the DoT to abide by established rulemaking procedures. It seems strange to me, that even after Congress passed that law, within thirty days another agency within the same DoT would do exactly the same thing.

These are the same bureaucrats who insist that members of the public do as they say to the letter, in great detail, not neglecting, “…plaster tire tracks, foot prints, dog smelling prints, and…twenty seven eight-by-ten colour glossy photographs with circles and arrows and a paragraph on the back of each one explaining what each one was…”

As one who has been on many insurance provider panels, one cannot legally file an insurance claim for a service that is neither needed nor wanted, and for which there is no medical or psychological justification. Guess what. The pilot, who may be just like you or your next door neighbor, has to cough up thousands of dollars for an unneeded invasive procedure for which there is no rational justification.

A commenter to one of the news stories about this issue suggested the FAA bureaucracy is operating out of fear of being sued.

I think it is a bit more complicated than that. Many commenters on news articles are quick to blame all FAA employees. Before everyone starts jumping on FAA employees, “the bureaucrats,” I would like to point out that the vast majority of them work very hard, the pay is not all that great, and most of the ones I know try to help. Many FAA employees are pilots who will be affected by this rule just like the rest of us. Where the problem comes starts at upper middle management and works its way clear to the top.

Something about this does not pass the smell test. A pilot reports being told by the local Aviation Medical Examiner that a sleep study would be required in order to renew the medical certificate; however, it could only be done at a sleep clinic ninety miles from his home. While waiting in the clinic waiting room, he began to read one of the clinic’s public relations brochures. What did he find? The doctor who told him that the only clinic he could go to for his FAA sleep study….is an owner of the clinic.

This old pilot is now wondering if this sudden midnight rulemaking should really be called the, “Guaranteed Employment for Sleep Specialist Physicians and Sleep Clinic Staff,” rule.

I am still making phone calls and doing research on this story. This is a live one, and I will be writing more. You may find updates here, or on some of the other places where I am a regular contributor (Daily Kos as ‘Otteray Scribe,’ and Flowers for Socrates). Stay tuned and get the popcorn. This is getting interesting.

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The views expressed in this post are the mine alone and not necessarily those of the blog, the host, or other weekend writers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art is solely my decision and responsibility.

22 thoughts on “FAA makes medical certification rule mandating sleep apnea testing.”

  1. I agree with Dr. Farber wholeheartedly, both in what he has to say about sleep apnea and that following proper procedures is vital.

    I offer the following to show what was done in only one specific case as an example of what might be done. My husband is a long haul trucker for a national carrier. In his case it was the company that required all of its drivers to be tested for sleep apnea (this was in 2006). The company paid for the testing, routing the drivers to a facility as part of their run. When my husband was diagnosed with OSA, no surprise to me, all of his supplies and follow up visits were covered by the company or its insurer. Close tabs were kept on his compliance in using his CPAP machine.

    I thought some of you might find this interesting. The DOT had nothing to do with it. Of course, a large national company can do things that smaller ones and individuals would find prohibitive.

    M.S.Huiner

  2. To: Charlton Stanley – Sleep Apnea DOES cause sleep deprivation. If one never experiences REM sleep, one is, by definitiion, sleep deprived. So yes, while it is sleep deprivation, it isn’t because people who suffer from apnea aren’t going to bed early enough. I was going to bed at 9:30 every night because I couldn’t stay awake, but was sleepy all day anyway. I was diagnosed with OSA over a year ago, and since using the CPAP mask I’m not falling asleep any longer while I’m driving home from the gym (at 7am).

    On the other hand, BMI means nothing. There isn’t any science behind it, so far as I’m aware. Just made up numbers, and you know how much bureaucrats love their numbers to justify things they do arbitrarily.

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