The SIU in late November formally submitted comments on a proposed U.S. Coast Guard (USCG) navigation and inspection circular (NVIC) designed to spell out medical and physical evaluation guidelines for merchant mariner credentials (Docket No. USCG 2006-25080). While crediting the Coast Guard for soliciting comments and agreeing with the agency about the need for appropriate shipboard safety measures, the union voiced numerous concerns about potential unintended consequences that may stem from the draft NVIC.
When the NVIC was issued in September, the unofficial word initially was that the document simply specified the normal past practices for mariners who take physicals in order to secure or renew their merchant mariner document (MMD), also called a z-card. However, while not questioning the agency’s intent, the SIU along with other maritime unions immediately recognized that the draft NVIC would significantly expand the list of potentially disqualifying medical conditions.
The SIU worked with the AMO, MEBA and MM&P in reviewing the NVIC and crafting early strategies to help ensure appropriate revisions. In essence, each of the unions said that the NVIC goes too far, even while generally agreeing with its goals.
“This is believed to be the first time a NVIC has been opened for public comment, and the Coast Guard should be applauded for doing so,” stated SIU Secretary-Treasurer David Heindel. “It’s safe to say that maritime labor only asks that the end result be fair for everyone.”
Comments were filed on behalf of both the SIU and the Seafarers Health and Benefits Plan (SHBP) by Kenneth B. Miller, MD, medical director of the SHBP. The SIU’s remarks and recommendations included the following:
- In accordance with existing federal laws, develop a privacy policy to protect the rights of the individual mariner that is included in the NVIC, along with a statement indicating that mariners won’t face discrimination because of disabilities.
- The NVIC should clearly spell out basic elements of the appeals procedure for mariners. For instance, “It would be important for mariners and their physicians to know, at the outset, that any appeal must be filed in writing within 30 days, that the timeframe may be extended upon written request with good cause and that the initial action (denial) stands while the appeal is reconsidered, unless the denial is stayed by the USCG…. Given the unusually short timeframe for filing an appeal, it is unnecessarily burdensome to expect that a mariner or a physician be required to search for the critical information which may determine whether or not a mariner can retain his credential to be employed.”
- Recognize and act upon potential problems stemming from the use of Federal Aviation Administration (FAA) physical exam guidelines in the maritime industry. “Inasmuch as the genesis and basis for Encl. #3 (the list of potential disqualifiers) was the rather detailed and comprehensive standards contained in the FAA regulations rather than a more traditional set of maritime related standards, there is a persistent concern that items in Encl. #3 will generate large numbers of waiver requests, costs and delays in medical follow-up, etc. Since everyone involved in the process up until this point has invested significant efforts in adapting the FAA standards to the maritime work environment, it is critical that the USCG recognize that a significant amount of discretion must be exercised in the adherence to such a detailed set of standards. Such discretion must be exercised at all levels of review including the initial examining physician, the initial and final medical reviewers at the National Maritime Center (NMC) and the reviews that may take place in the appeals process. In accordance with the general principles as outlined in the employment provisions of the Americans with Disabilities Act (ADA), each case must be handled on a case-by-case basis without application of absolute or inflexible automatic disqualifications.”
- Rewrite the list of potentially disqualifying conditions, because the initial draft in places is repetitive and overly complex.
In an introduction to a section titled “Technical Comments,” Miller states, “Theoretically, many of the conditions listed in this enclosure, if taken to the extreme, could possibly be determined to either represent a ‘significant impairment of functional status’ or present ‘a risk of sudden incapacitation’. Unfortunately, very little actual data exists in the medical literature to support such theoretical assumptions for many of the listed conditions. Therefore, it is even more critical that the NMC and the USCG be very thoughtful in their justification that such risks actually exist to the extent that a waiver should be denied.”
He concluded, “The new USCG draft NVIC represents a major departure from current practice which may have far-reaching effects upon the entire maritime community…. The challenge for medical reviewers at the NMC will reside in the application of the medical guidelines in the NVIC in a fair and consistent manner in accordance with generally accepted principles within current medical practice…. We look forward to our continuing involvement in the review process.”
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