Presentation on theme: "What’s New in Military Health Law?"— Presentation transcript:
1 What’s New in Military Health Law? John A. CasciottiDoD Office of General CounselFor the Health Law SymposiumMarch 2008
2 Objectives Introduction/Refresher on Military Health Law Network What’s new from 2007Year of the Wounded WarriorYear of the Advisory CommitteeWhat’s ahead for 2008Year of the Wounded Warrior, Part 2Whadayado if . . .
3 Military Health Law Network: http://www.usuhs.mil/ogc/mhln Military Health Law Practitioners List *Military Health Law Research MaterialsResearch Helper Military Health Law Working Papers *Related Web Sites LinksMilitary 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 Abortion10 U.S.C. 1093Anthrax Vaccine Immunization Program (AVIP)Rempfer v. VonEschenbachCivilian Employees Health CareDepSecDef Memo 9/24/07Civilian Health Care ProvidersNDAA-08, § 1636Clinical Investigations ProgramDoDI , “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 drugs05: New FDA final order, reaffirms vaccine is safe and effective against inhalation anthrax06: Court of Appeals dismissed appeal as moot06: Favorable CAAF decision in U.S. v. Kisala07: Rempfer v. VonEschenbach and Gates – alleges:FDA final order arbitrary and capriciousDoD 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’ feesCourt ruled Plaintiffs entitled; amount in questionNo effect on past refusals, BCMR petitionsRempfer: Government Motion to DismissFDA final order based on best scientific evidenceDoD following best medical practiceCourts defer to FDA agency expertiseFocus on proper implementationKeep it straight: mandatory vs. voluntaryStick to dosing scheduleUse 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,” 1/28/08Voluntary acknowledgement of paternityState forms:Posthumously conceived child: 6/6/07 USD decision – case by caseConsent of member, born to spousePosthumous collection of spermArmy allows release of body for this purposeNew 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,” 9/24/07Med-Evac & MTF care same as for military personnelIncludes any DoL Ofc of Workers Comp covered careImplementation issues: support of hostilities; documenting eligibility
10 Civilian Health Care Providers: Employment Authorities NDAA-08 § 1636New 10 USC 1599c: SecDef may use appointment and pay authorities of 38 U.S.C.OSD/CPP-Led Medical Working Group developing implementation policyNational 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 accessNDAA-08 (sec 721):Prohibits conversions 10/1/07 – 9/31/12Prohibition covers positions directly relating to the provision of health care serviceDoes not cover non-health care occupations; HQ personnel; R&D labs; MTF management & administrative functions not directly related to carePrevious 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,” 2/13/08Applies to filling pre-08 conversionsIf civilian employee can’t be hired, waives A-76 public-private competitionHuman Resources Officer certificationNDAA-08 § 1676: Moratorium on Conversion to Contractor Performance at MTFsApplies to starting new A-76 reviewsUntil certification that quality and availability not adversely affected by conversion or review processNo new conversions intended for 08
14 Disability Evaluation System Problem: Inconsistent disability ratings between DoD and VA and among ServicesSolutions:DES Pilot in NCR: DoD do fitness for duty; VA do %age disability ratingNDAA-08 § 1642: DoD shall use VASRD and Court of Veterans AppealsNDAA-08 § 1643: Board of Review for disability ratings <30% since 2001Dole Shalala Commission legislation: all disability compensation from VA
15 Disaster Preparedness: What’s New? HSPD-21, “Public Health and Medical Preparedness,” 10/18/07National Response Framework (ESF #8: DoD supports HHSInternational Health Regulations:“Public health emergency of international concern”U.S. Understanding: national security interests protectedU.S. Understanding: IHRs include CBRNCDC Public Health Law ProgramDoD Pandemic Influenza planning:DoDD , “Emergency Health Powers on Military Installations,” 5/12/03
16 . . . MHLN Research Helper . . .Emergency Contraception (incl. “Plan B”)Army memo 11/6/06Navy memo 2/27/07AF memo 8/1/07FDA Rules:DoDI , “Application of FDA Rules to DoD Force Health Protection Programs,” 2/19/08Force Health ProtectionDoDI , “Force Health Protection Quality Assurance Program,” 2/16/07Licensing & Credentialing ExpensesUSD(P&R) Memo, “Payment of Credentialing Expensed for Military Members,” 2/12/07 (implements 10 USC § 2015)
17 Domestic AbuseDoDI , “Domestic Abuse Involving DoD Military and Certain Affiliated Personnel,” 8/21/07Restricted Reporting Similar to Sexual Assault PolicyVictim gets services; medics do not tell command or copsException if required by state lawPara : 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 abuseBut doc interested in patient care, not criminal prosecution or using anything in trialPsychotherapy-patient privilege (MRE 513) currently excludes evidence of child or spouse abuseTestimonial immunity from commander?
19 Mental Health Care Task Force on Mental Health Dispell stigmaHA Policy , “TRICARE Access Standards for Mental Health Care,” 10/9/07Initial visit = primary care; no referral neededSecretary Gates Proposal: Security clearance form to request mental health info only if inpatientWhat’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 NCRDirect health care delivery & resources in NCRReport directly to SecDef through DepSecDefNew MHS governance endorsed in “concept” in 2006Shared 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 , “Patient Bill of Rights and Responsibilities in the Military Health System (MHS),” 9/5/07Privacy Program (DoD , “DoD Health Information Security Regulation,” 7/12/07DoD R, “DoD Privacy Program,” 5/14/07DA&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 OEFComp 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,” 6/04ResearchDoDD , “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 AFIPSE 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 MothersTRICARE Policy Manual, § 13.2, III.DTRICARE Supplemental PlansNDAA-07, § 707: Ban on Employer IncentivesVeterans Affairs Sharing Agreements38 USC 8111; 10 USC 1104DoDI , "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 venturesFederal Health Care FacilityCombine Great Lakes NH & VAMC North ChicagoData Sharing to Support Seamless TransitionNDAA-08 § 1635: fully interoperable systemsBut § 1614: info to VA requires patient authorization for outpatients in medical holdWounded Warrior implementation co-chaired by 2 Deputy Secretaries
27 Wounded Warrior Legislation NDAA-08: about 200 pages, requires 8 major policies, 10 studies, 27 reportsExpanded 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 warriorNDAA & Approps: Focus on TBI and PTSDComprehensive Facilities Standards RequiredFamily 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 permanentBut not if it would compromise the integrity or appearance of integrity of any programWhadayado?Can put out general notification re Gift FairCan contact particular charities that askedCan’t solicit from other individuals/entities
29 Recap: for homework, Whadayado? Work Wounded Warrior Issues MTF care and facility standardsDisability Evaluation SystemDispel stigma for mental healthSeamless transition with VAAndAdd MHLN to web site “favorites”