Cutting the strings

Depending on the underlying medical condition, these strings could be taut, like guywires securing a tower. Other strings are more like those affixed to a small kite, barely visible and moving as the wind blows. Few enjoy being strung along by the FAA, but many on the special issuance tether do not realize there may be an alternative: transitioning to BasicMed.

BasicMed is not for everyone. Professional pilots will still need to maintain their first- or second-class medical certificates to legally receive compensation for their flying activities. But for those who are not paid to fly (including flight instructors), BasicMed may be the answer. BasicMed is a congressionally mandated alternative to third class medical certification born from the FAA Extension, Safety, and Security Act of 2016. BasicMed allows pilots to exercise private or recreational pilot and flight instructor privileges in aircraft authorized to carry not more than six occupants with a maximum takeoff weight of not more than 6,000 pounds without holding an FAA medical certificate.

To be eligible for BasicMed, an airman must have held a valid medical certificate at any point after July 14, 2006. The most recent medical certificate may be expired but cannot have been suspended or revoked. Additionally, the most recent application cannot have been submitted and denied. Finally, if on a special issuance medical certificate, the most recent authorization must not have been withdrawn.

It is also important to recall that there are two separate elements to a special issuance medical certificate. The first is a special issuance authorization, which confirms an airman’s eligibility for a special issuance medical certificate and specifies the continued evaluation and reporting requirements necessary to renew that medical certificate (i.e., the strings). The second part is the medical certificate itself, which is valid only so long as the authorization remains in good standing. If the authorization is withdrawn, the special issuance medical certificate is no longer valid, and the airman will require a new special issuance medical certificate and authorization before again being eligible for BasicMed.

Often, an authorization letter is “valid” for several years, whereas the special issuance medical certificate is only valid for six to 12 months. This creates a situation where a special issuance medical certificate has expired but the authorization letter is still purportedly “valid.” This raises the question: Must an airman comply with a “valid” authorization when the underlying medical certificate has expired?

To find the answer, look to a 2018 legal interpretation to Ricardo Domingo, then the executive director of Flight Standards Service, issued by the FAA’s Office of Chief Counsel. The interpretation explains that an airman with an expired special issuance medical certificate can legally transition to BasicMed without needing to comply with the terms of an authorization letter. The interpretation states, “an airman’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.” In short, the airman must comply with the terms of the authorization letter until the underlying medical certificate expires. Once the medical certificate expires, the airman can cut the strings and ignore the authorization letter.

The interpretation continues: “[b]ecause there is no reasonable basis for requiring an airman in those circumstances to provide medical information that is not needed for determining medical certification under [FAR] 67.401, the FAA would not have a basis to withdraw the authorization.” Stated differently, the FAA cannot demand compliance with an authorization letter if the underlying medical certificate has expired and the airman is not in the process of obtaining a new medical certificate because the FAA has no reasonable basis to do so.

While this legal interpretation is very clear as to when the FAA lacks a basis to withdraw an authorization letter, AOPA is aware of several instances where the FAA has chosen to ignore it and withdrawn an authorization without a reasonable basis. So, before deciding to cut the strings, you should be aware that risks are involved and discuss your situation with informed counsel.

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