Aviation Gets a Congressional Star Turn

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If you were paying attention to the news last week, you may have noticed that the otherwise chronically broken Congress actually proposed a bi-partisan budget package. Now lets not delude ourselves into thinking strains of Kumbaya will soon be pealing from the Capitol and the members will be caroling on Pennsylvania Avenue, but this little outbreak of cooperation may have positive consequences for aviation.

Specifically and without undue prodding, Congress got busy pushing back on two critical issues, the FAAs plan to require sleep apnea diagnosis for medical certification and the very idea that the Third Class medical requirement is still viable. Its not unusual for Congress to dip deeply into the affairs of government agencies; thats what they do, after all. But I cant recall a confluence of Congressional involvement in two important aviation issues occurring so quickly.

First, the proposed sleep apnea diagnosis. Im surprised that FAA air surgeon Fred Tilton stumbled into this mess. Mid-level agency executives are usually a lot smarter about whats going to stir up the masses enough to invoke the wrath of Congress. They like to avoid that sort of thing. Yet, by administrative fiat, Tilton decreed in early November that all pilots over a body mass index of 40 would have to be tested for obstructive sleep apnea (OSA) and that eventually, the agency wants to extend that to lower BMIs. Heres Tiltons announcement. (PDF) Its breathtaking in its potential scope, cost to airmen and utter lack of supporting data demonstrating how aviation safety will be improved or even anything showing that OSA is a threat to aviation safety. Earlier this month, the House introduced a bill to require the FAA to follow standard rulemaking procedures for this proposed new requirement.

What stuns me is that Tilton didnt have his ducks in a row on this, attaching links to convincingly show how OSA is causal in aviation accidents to the extent that its worth the enormous expense he is proposing to address this issue. Could it be there are no ducks to line up? My guess is the convincing data doesnt exist. Yes, the NTSB has opined (PDF) on this subject, but largely in the context of fatigue in general, with apnea as but one factor. In other words, Tilton may be proposing an expensive fishing trip, to be paid by pilots seeking medicals.

If you break through the crust of all the coverage on sleep apnea, you soon see that it has become the condition du jour, the suddenly discovered silent killer of the masses. How could civilization have endured so long with the scourge of sleep apnea? An entire industry to treat it has emerged and doctors are being shown how they can make lots of money in the burgeoning field of sleep medicine. In this story, NPR reported that Medicare payments for sleep testing increased nearly four fold between 2001 and 2009, from $62 million to $235 million. According to the report, a company called Aviisha specializes in sleep testing and lures physicians with a picture of a doctor with a stack of cash in his lab coat pocket. Not to say the sleep medicine business is entirely a racket, but you can see the potential for abuse. I suspect Tiltons proposal will be seen as playing into this. If Congress forces rulemaking, perhaps well get a look at what data is supposed to support how OSA treatment will materially improve aviation safety.

Of course, if there werent a requirement for medicals, expensive OSA treatments wouldnt be a requirement, either. And thats the idea behind a bill introduced last week by Rep. Todd Rokita, an Indiana Republican whos also a pilot. The bill would expand the use of the drivers license medical certification to allow pilots to fly aircraft up to 6000 pounds, VFR in non-commercial operations. It doesnt eliminate the Third Class, but rather reduces the scope of operations where it’s required. If passed, its a huge step forward, but theres one thing about it I dont like: it doesnt allow IFR operations. This makes no sense to me, for instrument skills and operations have always been seen as a means of improving safety. Its counter-logical to say that its medically stressful or that it should require a higher degree of medical screening. My guess is its thrown into the bill as a bone and Im not really complaining. We have to start somewhere on eliminating the Third Class and this is a positive development.

But its not without negatives. While I dont think the elimination or curtailment of the Third Class will kill the light sport industry, it will put a dent it, especially for some manufacturers. Many LSA buyers are older pilots who have the wherewithal to pay cash for $130,000 airplanes. Some are doing that because theyre selling their Bonanzas or Skyhawks out of medical-loss fear. They see LSAs as lifeboats to extend their flying career. If fear of medical loss no longer propels them, light sport will lose some sales. So be it. Its unreasonable to expect light sport to sustain on the back of a medical requirement that has long since outlived its usefulness, if it was ever useful.

How these two issues play out will be interesting to watch and will likely be another case study in how bureaucracies protect their castles by maneuvering around Congress. Its always amusing-or maybe infuriating-to attend public meetings where FAA mid-level or even administrator-level executives talk the talk about supporting GA and removing regulatory barriers. Yet here are two examples where they are doing just the opposite. Elimination of the Third Class medical wont instantly stimulate GA growth, but it will surely reduce the erosion of the pilot population, which is the next best thing. Tiltons sleep apnea proposal is just bizarre. I have little doubt that many pilots on the verge of bailing from GA will be encouraged to do just that when confronted with a requirement for $3000 worth of OSA testing and then living with a CPAP machine. Personally, Id rather take up crack smoking than look and sound like Darth Vader when getting ready for bed. But thats just me. Either way, it ought to be my choice, not the FAAs.

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