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What’s New in Military Health Law?

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Presentation on theme: "What’s New in Military Health Law?"— Presentation transcript:

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 (www.dhs.gov) 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 (www.defenselink.mil/privacy) 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?


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