What’s New in Military Health Law?

John A. CasciottiDoD Office of General CounselFor the Health Law Symposium

March 2008

2

Objectives

Introduction/Refresher on Military Health Law Network

What’s new from 2007 Year of the Wounded Warrior Year of the Advisory Committee

What’s ahead for 2008 Year of the Wounded Warrior, Part 2

Whadayado if . . .

3

Military Health Law Network:http://www.usuhs.mil/ogc/mhln Military Health Law Practitioners List * Military Health Law Research Materials

Research Helper   Military Health Law Working Papers *

Related Web Sites Links Military Health Law Symposium

Materials * * Files password protected.

User Name: “MHLN” Password: “Lunch”

4

Related Web Sites LinksAdvisory Committee Reports

Task Force on the Future of Military Medicine (12/07): www.ha.osd.mil/dhb

Mental Health Task Force: “An Achievable Vision” (6/07): www.ha.osd.mil/dhb

Independent Review Group: “Rebuilding the Trust” (4/07): www.ha.osd.mil/dhb

Dole-Shalala Commission: “Serve, Support, Simplify” (7/07) www.pccww.gov

Task Force on Returning Global War on Terror Heroes (4/07): www1.va.gov/taskforce

5

Military Health Law NetworkResearch Helper

Abortion 10 U.S.C. 1093Anthrax Vaccine Immunization Program (AVIP) Rempfer v. VonEschenbachCivilian Employees Health Care DepSecDef Memo 9/24/07Civilian Health Care Providers NDAA-08, § 1636Clinical Investigations Program DoDI 6000.8, “Funding and Administration of Clinical

Investigations Program,” 12/3/07

6

Anthrax Vaccine Immunization Program (AVIP)

04: In Doe v. Rumsfeld, DCDC nixed FDA order finding vaccine effective against inhalation anthrax, pending new public comment. So vaccine unapproved for inhalation anthrax. DoD enjoined, except under rules for unapproved drugs

05: New FDA final order, reaffirms vaccine is safe and effective against inhalation anthrax

06: Court of Appeals dismissed appeal as moot

06: Favorable CAAF decision in U.S. v. Kisala 07: Rempfer v. VonEschenbach and Gates –

alleges: FDA final order arbitrary and capricious DoD failing to follow dosing schedule, making it an

investigational use, requiring informed consent

7

AVIP (cont.): What’s New Mandatory program restored (in-theater) Doe v. Rumsfeld attorneys’ fees

Court ruled Plaintiffs entitled; amount in question No effect on past refusals, BCMR petitions

Rempfer: Government Motion to Dismiss FDA final order based on best scientific evidence DoD following best medical practice Courts defer to FDA agency expertise

Focus on proper implementation Keep it straight: mandatory vs. voluntary Stick to dosing schedule Use electronic data system to record shots

8

Whadayado?: Define “Child”10 USC 1072 definition: “legitimate child”USD(P&R) memo, “Determination of

Dependency for Health Care Benefits for Out-of-Wedlock Children,” 1/28/08

Voluntary acknowledgement of paternity State forms: www.ocse.acf.hhs.govPosthumously conceived child: 6/6/07 USD

decision – case by case Consent of member, born to spousePosthumous collection of sperm Army allows release of body for this purpose New policy to inform members pre-

deployment?

9

Civilian Employee Health Care

DepSecDef memo, “Policy Guidance for Provision of Medical Care to DoD Civilian Employees Injured or Wounded While Forward Deployed,” 9/24/07

Med-Evac & MTF care same as for military personnel

Includes any DoL Ofc of Workers Comp covered care

Implementation issues: support of hostilities; documenting eligibility

10

Civilian Health Care Providers:Employment Authorities

NDAA-08 § 1636 New 10 USC 1599c: SecDef may use

appointment and pay authorities of 38 U.S.C.

OSD/CPP-Led Medical Working Group developing implementation policy

National Security Personnel System also includes new authority

11

Civilian Health Care Providers: Military to Civilian Conversions

NDAA-07: Before converting mil to civ positions, Sec of MilDep must certify that conversion will not increase cost or decrease quality or access

NDAA-08 (sec 721): Prohibits conversions 10/1/07 – 9/31/12 Prohibition covers positions directly relating to

the provision of health care service Does not cover non-health care occupations;

HQ personnel; R&D labs; MTF management & administrative functions not directly related to care

Previous conversions, if unfilled by 9/30/08, must revert back

12

Whadayado? Mil to Civ Conversion

Scenario: MTF programmed 5 conversions of nurse assistants (NAs) from mil to civ; mil NAs leaving this summer; no military replacements coming; Cmdr asks: is there anything I can do to fill the void?

Whadayado? Temporary civilian over-hire authority?

Temporary or term-limited appointment? Temporary contract? (A-76?) Resource sharing agreement with

TRICARE contractor?

13

Contractor Health Care ProvidersUSD(P&R)/USD(AT&L) Memo: “Military

Conversions – Contracting for Services when Civilians Cannot be Hired,” 2/13/08

Applies to filling pre-08 conversions If civilian employee can’t be hired, waives A-

76 public-private competition Human Resources Officer certificationNDAA-08 § 1676: Moratorium on

Conversion to Contractor Performance at MTFs

Applies to starting new A-76 reviews Until certification that quality and availability

not adversely affected by conversion or review process

No new conversions intended for 08

14

Disability Evaluation System

Problem: Inconsistent disability ratings between DoD and VA and among Services

Solutions: DES Pilot in NCR: DoD do fitness for duty; VA

do %age disability rating NDAA-08 § 1642: DoD shall use VASRD and

Court of Veterans Appeals NDAA-08 § 1643: Board of Review for

disability ratings <30% since 2001 Dole Shalala Commission legislation: all

disability compensation from VA

15

Disaster Preparedness: What’s New?

HSPD-21, “Public Health and Medical Preparedness,” 10/18/07

www.whitehouse.govNational Response Framework (www.dhs.gov) ESF #8: DoD supports HHSInternational Health Regulations:

http://www.who.int/csr/ihr/en/ “Public health emergency of international concern” U.S. Understanding: national security interests

protected U.S. Understanding: IHRs include CBRNCDC Public Health Law Program http://www2a.cdc.gov/phlp/ DoD Pandemic Influenza planning: http://fhp.osd.mil/aiWatchboard/ DoDD 6200.3, “Emergency Health Powers on Military

Installations,” 5/12/03

16

. . . MHLN Research Helper . . .Emergency Contraception (incl. “Plan B”) Army memo 11/6/06 Navy memo 2/27/07 AF memo 8/1/07FDA Rules: DoDI 6200.02, “Application of FDA Rules to DoD

Force Health Protection Programs,” 2/19/08 Force Health Protection DoDI 6200.05, “Force Health Protection Quality

Assurance Program,” 2/16/07Licensing & Credentialing Expenses USD(P&R) Memo, “Payment of Credentialing

Expensed for Military Members,” 2/12/07 (implements 10 USC § 2015)

17

Domestic Abuse

DoDI 6400.06, “Domestic Abuse Involving DoD Military and Certain Affiliated Personnel,” 8/21/07

Restricted Reporting Similar to Sexual Assault Policy Victim gets services; medics do not tell command or

cops Exception if required by state law

Para. 6.1.1.6: Commanders shall counsel a military suspect “after consulting with the judge advocate general about providing the military suspect his Article 31 rights under the UCMJ.”

Art. 31: “No person subject to this chapter may . . . request any statement from . . . a person suspected of an offense without first . . . advising him” of right to remain silent.

18

Whadayado? Domestic Abuse Counseling

Scenario: Domestic violence suspect referred by commander to mental health. Doc asks: Do I have to read him his rights?

Whadayado? Doc is subject to UCMJ and will be asking

questions about patient’s behavioral health relating to domestic abuse

But doc interested in patient care, not criminal prosecution or using anything in trial

Psychotherapy-patient privilege (MRE 513) currently excludes evidence of child or spouse abuse

Testimonial immunity from commander?

19

Mental Health Care

Task Force on Mental Health Dispell stigma

HA Policy 07-022, “TRICARE Access Standards for Mental Health Care,” 10/9/07 Initial visit = primary care; no referral needed

Secretary Gates Proposal: Security clearance form to request mental health info only if inpatient

What’s Ahead? Raise thresholds for reporting member’s

involvement with mental health to command? Revise policy on command directed mental health

exams?

20

MHS GovernanceJTF CapMed created by DSD Memo 9/12/07 Direct BRAC medical implementation in NCR Direct health care delivery & resources in NCR Report directly to SecDef through DepSecDefNew MHS governance endorsed in “concept”

in 2006 Shared support services consolidated under

OSDWhat’s ahead? JTF San Antonio Med? Defense Health Agency? Medical Command?

21

. . . MHLN Research Helper . . .Patient’s Bill of Rights DoDI 6000.14, “Patient Bill of Rights and

Responsibilities in the Military Health System (MHS),” 9/5/07

Privacy Program (www.defenselink.mil/privacy)

DoD 8580.02, “DoD Health Information Security Regulation,” 7/12/07

DoD 5400.11-R, “DoD Privacy Program,” 5/14/07

DA&M Memo, “Safeguarding Against and Responding to the Breach of Personally Identifiable Information,” 9/12/07

22

Whadayado? Personality Disorder Separations

NDAA 08 § 597: SecDef shall report to Cong by 4/1/07 on personality

disorder separations of members who served OIF or OEF

Comp Gen shall report on whether Service policies “provide adequate safeguards aimed that ensuring that members . . . who suffer from mental health conditions [including PTSD & TBI] resulting from service in a combat zone are not separated . . . on the basis of a personality disorder.”

Scenario: Commander refers member with OIF service for a personality disorder discharge; says member has been screwing up and has a bad attitude. Psychiatric Social Worker asks: Do I need to do anything special?

Whadayado?

23

. . . MHLN Research Helper . . .Quality Assurance Program E.O. 13410, “Promoting Quality and Efficient Health

Care in Federal Administered or Sponsored Health Care Programs,” 8/22/06

“Guidelines Relating to the Collection and Release of Aggregate Statistical Data Derived from Medical Records and Quality Assurance Information within the MHS” (in MHLN Working Papers)

DoD 6025.13-R, “Military Health System Clinical Quality Assurance Regulation,” 6/04

Research DoDD 3216.2, “Protection of Human Subjects and

Ethical Standards in DoD Research,” 3/25/02

24

Whadayado? Sentinel EventScenario: SASC asks about $1 Million settlement

resulting from bad event 3 years ago; asks if QA procedures were followed. Commander asks: what do I say about why we didn’t report it as a sentinel event?

DoDD 6025.13 (5/4/04): “MTFs shall actively identify SEs …, conduct a root cause analysis, and form a corrective action plan for each event” – and report RCA results to AFIP

SE defined: “An unexpected occurrence involving death or serious physical or psychological injury or risk thereof”

Also comply with JCAHO sentinel event reporting(“major permanent loss of function”)

Whadayado?

25

. . . MHLN Research Helper . . .Smallpox Vaccination Program www.vaccines.milSurrogate Mothers TRICARE Policy Manual, § 13.2, III.DTRICARE Supplemental Plans NDAA-07, § 707: Ban on Employer IncentivesVeterans Affairs Sharing Agreements 38 USC 8111; 10 USC 1104 DoDI 6010.23, "Department of Defense and

Department of Veterans Affairs Health Care Resource Sharing Program," September 12, 2005

26

VA-DoD Sharing Resource: http://www.tricare.mil/DVPCO 400 Sharing Agreements, 7 joint

ventures Federal Health Care Facility

Combine Great Lakes NH & VAMC North Chicago

Data Sharing to Support Seamless Transition NDAA-08 § 1635: fully interoperable

systems But § 1614: info to VA requires patient

authorization for outpatients in medical hold

Wounded Warrior implementation co-chaired by 2 Deputy Secretaries

27

Wounded Warrior Legislation NDAA-08: about 200 pages, requires 8 major

policies, 10 studies, 27 reports Expanded Health Care Benefits in NDAA-08

§ 1631: authorizes TDRL members care comparable to active duty (priority & SHCP)

§ 1637: veterans eligible for 180 days active duty like care for line of duty conditions identified during TAMP

§ 1672: MTF eligibility for family member on ITO in support of wounded warrior

NDAA & Approps: Focus on TBI and PTSD Comprehensive Facilities Standards

Required Family and Medical Leave Act – NDAA § 585

28

Whadayado? Gift Fair for Wounded Warriors

Scenario: Warriors in Transition Unit wants to sponsor gift fair for charities to match up with wounded warriors. OK?

Special gift authority (10 USC 2601(b)) for wounded warriors; NDAA-08 § 593 makes permanent

But not if it would compromise the integrity or appearance of integrity of any program

Whadayado? Can put out general notification re Gift Fair Can contact particular charities that asked Can’t solicit from other individuals/entities

29

Recap: for homework, Whadayado?

Work Wounded Warrior Issues MTF care and facility standards Disability Evaluation System Dispel stigma for mental health Seamless transition with VAAnd Add MHLN to web site “favorites”

30

Questions?

From A to Z?