1. What’s New in Military Health Law?
John A. Casciotti
DoD Office of General Counsel
For 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 Links Advisory Committee Reports
Task Force on the Future of Military Medicine (12/07):
Mental Health Task Force: “An Achievable Vision” (6/07):
Independent Review Group: “Rebuilding the Trust” (4/07):
Dole-Shalala Commission: “Serve, Support, Simplify” (7/07)
Task Force on Returning Global War on Terror Heroes (4/07): www1.va.gov/taskforce

5. Military Health Law Network Research Helper
Abortion
10 U.S.C. 1093
Anthrax Vaccine Immunization Program (AVIP)
Rempfer v. VonEschenbach
Civilian Employees Health Care
DepSecDef Memo 9/24/07
Civilian Health Care Providers
NDAA-08, § 1636
Clinical Investigations Program
DoDI , “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:
Posthumously conceived child: 6/6/07 USD decision – case by case
Consent of member, born to spouse
Posthumous 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 Providers
USD(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 certification
NDAA-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
National Response Framework (
ESF #8: DoD supports HHS
International Health Regulations:
“Public health emergency of international concern”
U.S. Understanding: national security interests protected
U.S. Understanding: IHRs include CBRN
CDC Public Health Law Program
DoD Pandemic Influenza planning:
DoDD , “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 8/1/07
FDA Rules:
DoDI , “Application of FDA Rules to DoD Force Health Protection Programs,” 2/19/08
Force Health Protection
DoDI , “Force Health Protection Quality Assurance Program,” 2/16/07
Licensing & Credentialing Expenses
USD(P&R) Memo, “Payment of Credentialing Expensed for Military Members,” 2/12/07 (implements 10 USC § 2015)

17. Domestic Abuse
DoDI , “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 : 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 , “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 Governance JTF 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 DepSecDef
New MHS governance endorsed in “concept” in 2006
Shared support services consolidated under OSD
What’s ahead?
JTF San Antonio Med?
Defense Health Agency?
Medical Command?

21. . . . MHLN Research Helper . . . Patient’s Bill of Rights
DoDI , “Patient Bill of Rights and Responsibilities in the Military Health System (MHS),” 9/5/07
Privacy Program (
DoD , “DoD Health Information Security Regulation,” 7/12/07
DoD 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 Research
E.O , “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 R, “Military Health System Clinical Quality Assurance Regulation,” 6/04
Research
DoDD , “Protection of Human Subjects and Ethical Standards in DoD Research,” 3/25/02

24. Whadayado? Sentinel Event
Scenario: 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 (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
Surrogate Mothers
TRICARE Policy Manual, § 13.2, III.D
TRICARE Supplemental Plans
NDAA-07, § 707: Ban on Employer Incentives
Veterans Affairs Sharing Agreements
38 USC 8111; 10 USC 1104
DoDI , "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 VA
And
Add MHLN to web site “favorites”

30. Questions?
From A to Z?