Commercial, Public Service, Regulatory

New Helicopter EMS Rules: What it Means for Public Operators

By By Frank Lombardi | October 1, 2011
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Medics unload a patient from a Fairfax County Police Helicopter Division Bell 407 in Virginia. The unit conducts HEMS operations in addition to law enforcement. Fairfax County Police

Since the mid-1990s, the number of helicopters providing emergency medical service in the United States has grown nearly 300 percent to approximately 840. Coupled with the industry’s rapid growth, the HEMS accident rate has almost doubled over that time. The main causes have centered on controlled flight into terrain (CFIT), inadvertent operation into instrument meteorological conditions, and pilot spatial disorientation/lack of situational awareness during night operations.

In 2004, the Federal Aviation Administration established a task force to review and guide government and industry efforts to reduce HEMS accidents. It has hosted numerous safety meetings, outlined best practices in advisory circulars, orders and notices, and even revised HEMS operating specifications in 2008. Despite these efforts, 2008 became the deadliest year on record for the HEMS industry, with eight out of 13 total accidents having fatalities—a total of 29 deaths—prompting the National Transportation Safety Board (NTSB) to put HEMS safety on the top of its “Most Wanted List of Transportation Safety Improvements” in October 2008.

AgustaWestland delivered the first of five GrandNew helicopters to Intermountain Healthcare’s aviation division in July. AgustaWestland

Realizing that voluntary compliance with suggested best practices alone is not enough to ensure safe flight operations within an industry, in 2009 the FAA issued a notice of proposed rulemaking (NPRM) project to address the continuing safety concerns of HEMS flights. NTSB has already examined most of these concerns over the past 11 years, resulting in the issuance of more than 30 safety recommendations. The latest changes FAA offered would address in whole or in part many of these NTSB recommendations.

In essence, the FAA proposal will consider issues such as:

• Helicopter terrain awareness and warning systems (HTAWS) for air ambulance helicopters;

• Radar altimeters for all part 135 helicopters;

• Operational control center for helicopter air ambulance operators with 10-plus aircraft;

• Part 135 weather minima for all legs of a helicopter air ambulance flight;

• Implementation of a risk management program;

• Flight data monitoring devices, i.e. Cockpit Voice Recorder / Digital Flight Data Recorder on helicopter air ambulance aircraft;

• Requiring pilots in commercial operations to demonstrate, annually, recovery from inadvertent flight into IMC;

• Change terminology to “helicopter air ambulance” in lieu of “helicopter EMS” to remove the reference to “emergency” regarding the air transportation flight; and

• Facilitating more IFR operations by permitting helicopter air ambulance operators to continue IFR approaches into hospitals or airports using weather reports from nearby stations rather than requiring weather reports specifically from the destination location.

The comment period for the proposed changes ended in January 2011. All comments are publicly available on the FAA website along with FAA replies, listed under the docket heading of FAA-2010-0982. Many comments convey the current confusion by some as to the proposal’s applicability and general interpretation.

Most of the 840 helicopters performing EMS work are operated by civilian entities for hire, and therefore are bound to the rules outlined in 14 CFR Part 135 of the Federal Aviation Regulations. Any of the above proposals, which may become law, would apply to them as well. However, according to the NTSB, there are 40 public operators—many police and fire agencies—currently providing air medical transportation using helicopters in the United States, funded by their respective federal, state or local municipality. Public aircraft are exempt from many FAA regulations applicable to civil aircraft.

Each Delaware State Police helicopter is outfitted as an air medical transport platform. The aft cabin of this Bell 407 on standby at the unit’s Sussex County base can carry one patient on a litter, the flight paramedic and another passenger.  Photo by Ernie Stephens

So what’s the difference between a civil and public operator conducting air medical transportation? Despite all that can be researched on the topic, the best answer to date is, “It depends.” This can present a problem. For one, it creates gray areas that act like leaks in the safety dam. Alternately, if the impending rules require changes to ground and flight operations, aircraft configurations, and pilot requirements, this can result in high-dollar expenses passed on to the operator. These expenses may prove to be too costly for some operations to continue. Therefore, it behooves operators to know the extent of the term “public use,” and whether or not it will apply to their operation.

FAA Order 8900.1, Volume 3, Chapter 14 defines public operations, and is the reference material for FAA safety inspectors when determining whether or not a flight can be deemed public use. Additionally, Advisory Circular (AC) 00-1.1 assists operators of government-owned aircraft in determining whether their operations are public under the definition. According to Order 8900.1, the status of an aircraft as a “public aircraft” or “civil aircraft” depends on its use in government service and the type of operation that the aircraft is conducting at the time. A few points as they relate to air ambulance operations are worth mentioning here.

Taken, in part, from Order 8900.1, “medical evacuation” as a general matter is not considered a government function unless: 1) The nature of the operation requires the use of an aircraft with special configurations, which may not be eligible for a standard airworthiness certificate, 2) The victim cannot be accessed by ground transportation, 3) Insufficient number of properly certified and equipped civil aircraft operating under the appropriate rule, are available to complete the mission, or 4) Other, similar non-routine factors are present.

Although the wording of this particular section may seem clear, it is clouded by what is contained in AC 00-1.1, which states in part that although the term “medical evacuation” is not considered synonymous with “search and rescue,” it may be an included governmental function, depending on the particular circumstances of the operation.

Several high-profile accidents in the public use sector have brought into question FAA’s own interpretation of the term “public use,” not only in the HEMS role, but in all government flight operations when it comes to oversight. Any aircraft certificated by the FAA is subject to the agency’s normal surveillance activities regardless of whether the aircraft is operating as a public or a civil aircraft, and it would seem that the FAA down to the FSDO level still cannot agree as to how to best surveil public operators. As recently as January of 2011 during an HAI forum, the FAA has acknowledged the need for clarity in the guidelines.

When it comes to HEMS safety, NTSB board member Robert Sumwalt commented, “There’s no magic bullet. Individually, each of the FAA’s proposed changes may seem ineffective. But as a whole, safety will be improved.”

Sumwalt was involved in both the 2009 NTSB public hearing examining HEMS operations as well as the accident investigation of the 2008 crash of a Maryland State Police (MSP) helicopter during an EMS flight. He went on to explain that, “among the nine safety recommendations issued from that accident was one to the FAA, to seek legislative authority to regulate HEMS operations conducted using government-owned aircraft.”

This is where public operators, even those who feel confident that their operation falls within the public use guidelines, must take heed. As pressure mounts for legislation toward increased FAA oversight of government aircraft operations, the possibility of exemption from any mandates becomes slimmer. Many public agencies have begun taking stock of their programs, aircraft and crews, and are being proactive in the trend towards increased safety, prior to any ruling which may send a shockwave throughout their organization.

“We try to stay ahead of the curve,” said Sgt. Mark Smith, of the Fairfax County Police Aviation Unit in Virginia. “Today a lot of agencies have a problem with finance to get the latest equipment. That’s not only the police, but ‘for-profit’ agencies as well. You operate in these bad budget times; you’re stretching every dollar you can. If you need a piece of equipment that is going to help safety, help us do our job better, then you have to educate the people in finance. At the end of the day, that’s what will keep us safe.”

NTSB has offered its ideas as to what will keep us safe as well. A 2009 public hearing resulted in five recommendations to public operators, in essence the safety board recommends:

• Improved scenario-based pilot training (A-09-97);

• Implementation a safety management system (A-09-98);

• Installation of flight data recording devices (A-09-99);

• Use of night vision imaging systems (NVIS) (A-09-100); and

• Use of autopilots in HEMS aircraft (A-09-101).

Piggybacked on these, come recommendations to public operators as a result of the MSP accident:

• Implementation of flight risk evaluation programs (A-09-131);

• Use of formalized dispatch and flight following which include weather (A-09-132); and

• Installation of terrain awareness and warning systems (TAWS) on aircraft (A-09-133).

Whether or not any of the above suggestions get implemented in any form of FAA mandate is still to be seen. For now, many public agencies already operate with some or all of the above recommendations by their own choice, some even operating to Part 135 standards. They have voiced their opinions during the FAA’s open comment period, some as unified groups, deftly explaining why they agree or disagree with each of the FAA’s proposals, and highlighting what makes them uniquely different from civilian operations.

Los Angeles County Sheriff’s Department, which received the last of a dozen AS350B2s earlier this year, has an emergency unit known as Air Rescue 5. Eurocopter

When asked if the answer to improving overall HEMS safety lies in technology or rulemaking, Senior Pilot Thomas Short with the County of Los Angeles Fire Department Air Operations said, “I don’t think technology or tighter regulation is the answer. I think it goes back to the pressures on these programs to perform, and the subtle pressures on the flight crews to make poor decisions. I believe there’s no substitution for proper training of the pilots and the flight crews.”

Indeed, the civilian operations have different forces and pressures to contend with, not the least of which is monetary. This is one of the biggest differences cited between public and civil operations. The pressures of flying for hire cannot be overlooked when examining human factors. Sumwalt added, “You’ve got humans making decisions, which will always be a source of error.”

At this time, the FAA’s Regulatory Agenda lists the final ruling as coming in May 2012. Although the formal comment period has ended, the possibility exists for a further notice of proposed rulemaking (FNPRM), if the comments from the initial NPRM drastically change the proposal to the point where further comment is required. However, some things remain certain. No matter what agency we fly for, we are all human, subject to the same mental, physical and biological limitations. What makes us supremely professional pilots is the humility to accept our limits in the pursuit of 100 percent safety.

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