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| If You Have Attention Deficit Hyperactive Disorder, the FAA Says You Can’t Fly | Jul '08 |
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| By Robert B. Schultz, Attorney at Law |
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In a recent opinion, the NTSB upheld the FAA's position that ADHD, attention deficit hyperactive disorder, is a disqualifying medical condition under FAR §§ 67.107, .207 and .307(c), which apply to first, second and third class medicals respectively. In this particular case, the FAA denied a third class medical certificate based on the petitioner's (a student pilot who happened also to be a medical doctor) admission that he used the drug Adderall to control his ADHD condition. The regulation, which lists mental standards for a third class airman medical certificate, states, "No other personality disorder, neurosis or other mental condition that the Federal Air Surgeon, based on the case history and appropriate, qualified medical judgment relating to the condition involved, finds— (1) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or (2) May reasonably be expected, for the maximum duration of the airman medical certificate applied
for or held, to make the person unable to perform those duties or exercise those privileges."
At the hearing, the petitioner's own doctor testified that his ADHD condition didn't affect the petitioner's ability to fly safely because the drug Adderall, an antidepressant commonly used for such treatment, effectively controlled his symptoms. Nonetheless, in a classic catch-22, the FAA found that use of the drug was also disqualifying under FAR §67.313(c), which lists general medical standards for a third-class airman medical certificate. It states, "No medication or other treatment that the Federal Air Surgeon, based on the case history and appropriate, qualified medical judgment relating to the medication or other treatment involved, finds—(1) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or (2) May reasonably be expected, for the maximum duration of the airman medical certificate applied for or held, to make the person unable to perform those duties or exercise those privileges."
On denying this student pilot's third class medical, the Federal Air Surgeon determined that "both the ADD and Adderall were incompatible with aviation safety." Some may dispute this finding, but unlike all other FAA litigation, the rule with respect to denial of a medical certificate is that the FAA is presumed correct and the pilot has the burden of proving he is medically qualified. In other words, the pilot must "demonstrate by a preponderance of the evidence that the FAS was not reasonable in concluding that the cited FAR provisions prevented issuing an unrestricted medical certificate."
At trial, the petitioner said that while taking Adderall, he was able to function normally and didn't have trouble with inattention and lack of concentration and comprehension that he experienced before. His doctor agreed that while he's taking Adderall, he's mentally up to performing the duties of a pilot, including multitasking. But the petitioner admitted that from time to time, primarily on weekends, when he didn't take Adderall, his symptoms returned. Those symptoms included difficulty retaining and understanding things he read, poor concentration, difficulty in multitasking and irritability.
The FAA's expert witness said that ADHD is classified as a mental illness whose symptoms are inattention (hence the name attention deficit), impulsivity and hyperactivity. She said she was concerned about his working memory and his problems with attention and concentration, as well as his problems with divided attention—areas of concern to a pilot who has to make quick decisions and pay attention to an abundance of incoming data.
The judge concluded, "While the petitioner appears to respond well to treatment by taking Adderall, he has demonstrated in the past that he cannot be trusted to faithfully take the dose of Adderall prescribed for him daily. And when he does not take his prescribed dose of Adderall, he reverts to his untreated symptoms. . Further, there is no practical way for the (FAA) to effectively monitor whether the petitioner is, at any particular time, taking his prescribed dose of Adderall or if the prescribed dosage of Adderall is continuing to be effective as a treatment for his condition, or whether he is experiencing regression to his untreated condition or has developed an adverse reaction to Adderall. Because Adderall is a mind-altering psychotropic drug, I find that it's reasonable for the administrator not to issue medical certification to persons who are taking the drug."
On the issue of multitasking, which the FAA found to be an essential piloting skill, an Air Force instructor pilot said, "This is one of the first myths I had to dispel for aspiring young pilot candidates. The best pilots are excellent at rapid sequencing. They give full and complete attention to a visual indication, an aural signal or a kinesthetic sensation, interpret it accurately, act on it effectively, and then move to the next appropriate point of focus. Scientists from the NASA Ames Research Center conclude that attempting to split attention is deadly for a pilot."
In a comment to an article on the Internet listing the "Top Ten ADD Advantages in a Hi-Tech Career," an anonymous ADHD sufferer wrote, "One of my favorite things to do is fly airplanes and helicopters. As a pilot, one of the most intense things you can do flying is fly instrument approaches. When you're coming in to land, flying by your flight instruments alone in bad weather, there is so much going on; it's crazy and I love it. You're flying the airplane, talking and listening to air traffic control, adjusting engine settings, flaps, radios, navigation, monitoring altitude, airspeed, course headings, time, reading approach charts and constantly doing 10 things at a time without end. Oh, and don't forget landing gear. ... I really can't put into words how much insane fun it is!"
Obviously, this pilot never admitted his condition to an FAA medical examiner.
Robert B. Schultz practices law in Denver and specializes in aviation law nationwide. He can be reached at bob.schultz@airportjournals.com and welcomes your comments and questions.
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