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Federal Aviation Administration Medical practices & government made monopoly

Discussion in 'Constitutional Law & Civil Rights' started by Legal USA, Apr 4, 2021.

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  1. Legal USA

    Legal USA Law Topic Starter New Member

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    Jurisdiction:
    Texas
    The Code of federal regulations have medical requirements that pilots must have.
    This requirements are found in TITLE 14>CHAPTER I>SUBCHAPTER D>PART 67>SUBPART B.

    My question is if the Agency has a concern for a certain possible medical condition that might be affecting a pilot the Agency current practices are to request that the pilot submits for a medical evaluation. However they demand that the requested medical evaluation be performed by an Agency (FAA) selected group of doctors.

    Is this legal ?

    Is it constitutional ?

    Is it forming an unlawful government monopoly (Example: 15 U.S. Code CHAPTER 1- MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE) ?


    is it violating 5 U.S.C. § 552a(e)(5). ?


    In other words if the agency (FAA) demands medical proof from a "medical doctor" does FAA has the legal right to reject medical reports being made by "Qualified and licensed medical doctors"
    because the doctor is not listed on the Agency's (FAA) list of "Doctors" ?
    (An MD specialized in oncology is no different than an MD specialized in oncology who doesn't have some sort of business relationship with the Federal Agency
    Does the agency have the legal right to funnel financial gains only to a group and preferred list of doctors that the agency themself has made ?.


    References:

    §67.115 Discretionary issuance.

    A person who does not meet the provisions of §§67.103 through 67.113 may apply for the discretionary issuance of a certificate under §67.401.
     
  2. adjusterjack

    adjusterjack Super Moderator

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    What's your beef with the FAA? People who rant about whether something is legal, corrupt, a monopoly, or a conspiracy, usually have some sort of beef with whatever business or government agency is pissing them off.

    Let's get your beef out in the open so we don't waste our time here.
     
  3. Tax Counsel

    Tax Counsel Well-Known Member

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    Yes, it is legal and it does not violate the Constitution.

    No. The Sherman and Clayton Anti-trust Acts, which are codified starting at 15 U.S.C. § 1 only regulate private businesses. It has nothing to do with government requirements. In short, the government can (and does) operate a monopoly. Monopolies are only a problem with private enterprises if that private enterprise either used illegal means to become a monopoly or uses its monopoly position in a way that restrains trade and competition.


    That's simply a part of the federal Privacy Act that requires agencies to keep certain records. I don't see how that applies to the questions you have about the agency requiring that pilots get medical certification from doctors approved by the FAA.




    Yes. The FAA is within its power to require a pilot to see a doctor whom the agency has vetted as being appropriately qualified to examine and opine on the fitness of pilots. The government has a public safety interest insuring pilots are medically fit to fly planes, and to ensure that the agency needs evaluations from doctors it believes are competent to make those evaluations. Not every doctor will know the the FAA standard.
     
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  4. Legal USA

    Legal USA Law Topic Starter New Member

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    Great wealth of knowledge Thank you (for any Attorney interpretation).
    This is what I suspected all along. They have the right to vet the doctors that the individual pilots will use, even though the examination is being paid by the individual not the government.
     
  5. flyingron

    flyingron Well-Known Member

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    It's very legal and people have tried various things from ADA to other challenges before and wasted a lot of money with no positive result.

    Yes, they have a compelling public need and the authority under federal law to enforce only certain providers submit reports that they will trust. This is most particularly true of psychiatric conditions especially substance abuse. I think there's one current case trying to battle the FAA HIMS system and that appears to be going nowhere as well.

    If you want the medical, you have little choice but to play the FAA game. A good HIMS AME can guide you through a lot of it without resulting in testing that won't resolve the situation wasting time and money. In addition, in some sticky situations, the regional flight surgeons have a pilot advocate who can help get through some needless bureaucracy. Note that crying that it is unfair or illegal is not going to get you any traction with any of these people.

    Most "licensed" doctors have no idea what specific concerns the FAA is looking for anyhow. They usually write stuff that is useless or even detrimental to the applicant.
     
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  6. Legal USA

    Legal USA Law Topic Starter New Member

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    Thank you for the response.

    I am trying to obtain information about what to do when an African-American or any minority individual is denied medical certification even when the individual meets the medical standards and the Agency provides a denial letter refusing to state what part of the applicants health specifically fails to meet that standard. (IE: your blood results were shown to have an elevated level of...... etc)

    In other words the applicant is denied certification and provided with a letter stating that they do not meet the standard requirements. This is off course a broad vague answer at which point the applicant requests that the agency provides an explanation of what exactly it is outside the standards ?

    This has gained a fair amount of attention over the last several years particularly with minority groups.
     
  7. Legal USA

    Legal USA Law Topic Starter New Member

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    The regulation in part 67 (CFR's) dictates what the pilot must have as far as the medical fitness. However the "drama" begins when the FAA doctors begins to argue that a heart test should be done by a special doctor when in reality the "Special Doctor" chosen by FAA follows the same procedures as any other doctor from any well recognize national medical center, therefor providing an equally accurate test.

    In fact medical practitioners do not deviate from their standard practices when a "test must be administered" because the patient is a pilot (they don't because the medical standards and procedures that an MD are not there to be deviated from exposing the doctor for malpractice). It is understandable that the Agency might be overly cautious about health and pilots, but this should not allow them to create an unscientific process that is not being equally enforced upon all "applicants".
     
  8. Tax Counsel

    Tax Counsel Well-Known Member

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    Do you have any indication that the FAA routinely makes such denials for minority pilots but does not do the same thing for White pilots?
     
  9. Legal USA

    Legal USA Law Topic Starter New Member

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    similar complaints exist with the hiring practices that FAA utilizes to hire FAA employees.
     
  10. Legal USA

    Legal USA Law Topic Starter New Member

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  11. Tax Counsel

    Tax Counsel Well-Known Member

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    Yes, what? And if that's an answer to my earlier question about whether the agency treats white pilots differently than minority pilots, in what manner does that occur and what evidence do you have of it? It seems to me that if minority pilots can prove they are being discriminated against that would be a more fruitful line of attack than trying to challenge the FAA's system of using vetted doctors to make the medical evaluations.
     
  12. flyingron

    flyingron Well-Known Member

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    Since you refuse to provide any details, your best bet would be to talk to both legal and medical professionals who you can confide your concerns. You can't just go in saying, I want proof they're not treating African Americans differently. it doesn't work that way. Nothing in your initial gripe letter seems to have anything to do with racial issues and now you're grasping at straws. Unless they bounced you out because you have sickle cell or such (by the way, sickle cell is not going to raise an issue, even if you have genetic testing to show the trait, unless you've had the related "crises" in your history) syndrome that affects one community differently than others.

    Psych, sleep apnea, and substance abuse cases are all FAA hot buttons these days, and you won't fight them. Nor does some illusory EEO argument have any bearing on your medical case.

    And no limiting the designations of specialists isn't a "monopoly." I agree that the FAA is often pretty stingy with designations which does affect the free market, and in the past there's been a lot of "old boy" politics in getting one. They argue the need to keep the number down to allow them to monitor things, but they do a pretty piss poor job of that because some egregious abuses remain even after substantial evidence from the field.
     
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  13. Legal USA

    Legal USA Law Topic Starter New Member

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    Thanks flyingron!.

    Its an issue. You are correct many have tried with unsuccessful attempts.

    And from what I have seen Federal judges will usually maintain a stance that this is out of their area of expertise and will even go as far as dismissing expert matter witness in the topic.

    This particular complaint includes a nationally recognized MD considered an "Expert in the matter with greater qualifications then the selected doctors that FAA funnels business to.

    I have spent a fair amount of effort trying to find if a Federal Agency has to follow any laws when isolating medical providers or any individual or company to perform evaluations. (I am not talking about AME's, every country has an Aviation Medical designated doctors however no country besides us in the western world has such practices to only "trust" certain doctors to make evaluations FAA requires that AME’s cannot. In fact certain National minority communities of doctors have argued that FAA does not have a scientific medical reason to dismiss or reject services from Doctors meeting the legal requirements to practice Medicine within that specialty as required by law.

    Example: Doctor "1" is not in the list of FAA doctors to perform these evaluations, however Doctor "1" is far more qualified (greater experience, credentials and positions) than Doctor "2" the doctor in the list of FAA providers.

    Doctor 1 is also a minority and feels these decision from the Agency lack reasoning and are arbitrary......

    Doctor 1 argues to FAA stating that they have no reason for rejecting his report and findings, FAA responds stating that he or she failed to provide the report or findings in a way FAA prefers it.

    FAA refuses to explain doctor “1” in greater detail what it is about his work that is causing the agency to reject the report and finding.

    A doc was interview who said:

    "I don't care about being a selected doctor on the FAA's list because what they are doing is blocking any applicant who does not uses their "Coup" doctors that have no greater or special qualifications than I do, interestingly enough these docs are also 99% white Males, and why should I participate into this suspicious activity", the doctor closed its statement by saying:

    "Does FAA Medical really expects the professional medical field to believe that a selected FAA doctor has a different way of performing an X-Ray or applying a diagnosis? If this was the case these doctors would be engaging in medical malpractice. It makes me uncomfortable how insulated and secret FAA keeps the selection of the doctors they push for applicants to use who decides who goes in the list ? does the federal worker gets quick backs from this formed monopoly ?. The human body of a pilot it’s not any anatomically different than the body of a lawyer, or a cook..... I feel the agency violates the best interest of the public by forming these invalidated processes violating § 732.301 Due process.

    Where did you find this information? (but they do a pretty piss poor job of that because some egregious abuses remain even after substantial evidence from the field)
     
  14. flyingron

    flyingron Well-Known Member

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    Well, fine, if you're such an expert, go and fight it. I can tell you that these appeals rarely suceed.

    Note that you seem to not want to avail yourself of the process with the FAA which you are obligated to do FIRST regardless of how superior your own personal expert you think is.

    Then, with an adverse decision there, you can appeal through the FAA internal process.

    Then you can go into the federal court's system, which you seem to hold as equally ignorant and biased. You do need to know, however, that when it comes to technical questions with regard to the regulatory process, the courts are BOUND to the interpretation of the agency with regulatory authority barring some clear statutory error.

    So it seems you want to jump straight to the supreme court (or at least high in the federal appellate circuit) with some unsubstantiated civil rights claim that your doctor is being discriminated against. However, you can't bring that claim. Only he can.

    Note that the fact your doctor is a minority is immaterial. I guarantee they are requiring a vetted doctor (such as HIMS), they will NOT accept stuff from other doctors regardless of their qualification or race.

    You don't fight the regulatory process in court. Congress passed laws allowing the FAA to set up these regulations and rules. The FAA institutes regulations following another federal law (APA) to enact the requirements. If you think the medical standards need to be changed, you have to either petition the FAA to change them (I have filed two petitions for rulemaking over the years, one was mooted by other interpretations and the other actually was implemented) or you get congress to pass a law mandating the FAA change things (this had been done several times over the years, often its a pet issue tacked into the FAA's funding act for a given term).
     
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  15. Tax Counsel

    Tax Counsel Well-Known Member

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    Actually, you can mount a court challenge, after exhausting administrative remedies, but as you noted challenging agency regulations is not an easy (or cheap) task, at least so long as the agency complied with the Administrative Procedures Act (APA) and other laws that govern agency rule making.
     
  16. Legal USA

    Legal USA Law Topic Starter New Member

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    Yes there is imply no other en lighting or better way to address this.
     
    Last edited: Apr 7, 2021
  17. flyingron

    flyingron Well-Known Member

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    Yes, I worded that poorly. I was trying to say, absent some improper creation fo the regulation, if you just don't like it and want to change the way things work you need to either petition the agency for a new rulemaking or push your issue with Congress to get them to enact a law forcing a revision.
     
  18. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    I hope you word your lawsuit better than that.
     
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  19. flyingron

    flyingron Well-Known Member

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    I'm not wording any lawsuit. I've got pretty good success with the petition for rule making process. One petition was directly approved and implemented. The other was mooted by the FAA chief counsel arguing that the reg I was concerned with didn't apply in the situation i was concerned with. When it comes to administrative regulations, that's about as good as having an appellate court rule in your favor.
     
  20. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    That wasn't aimed at you. It was in response to that ugly, pseudo sentence that I quoted from the OP, Legal USA.
     
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