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Whats New in Military Health Law? John A. Casciotti DoD Office of General Counsel For the Health Law Symposium March 2008.

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Presentation on theme: "Whats New in Military Health Law? John A. Casciotti DoD Office of General Counsel For the Health Law Symposium March 2008."— Presentation transcript:

1 Whats New in Military Health Law? John A. Casciotti DoD Office of General Counsel For the Health Law Symposium March 2008

2 2 Objectives Introduction/Refresher on Military Health Law Network Introduction/Refresher on Military Health Law Network Whats new from 2007 Whats new from 2007 Year of the Wounded Warrior Year of the Wounded Warrior Year of the Advisory Committee Year of the Advisory Committee Whats ahead for 2008 Whats ahead for 2008 Year of the Wounded Warrior, Part 2 Year of the Wounded Warrior, Part 2 Whadayado if... Whadayado if...

3 3 Military Health Law Network: Military Health Law Practitioners List * Military Health Law Practitioners List * Military Health Law Research Materials Military Health Law Research Materials Research Helper Research Helper Research Helper Research Helper Military Health Law Working Papers * Military Health Law Working Papers * Military Health Law Working Papers Military Health Law Working Papers Related Web Sites Links Related Web Sites Links Military Health Law Symposium Materials * Military Health Law Symposium Materials * * Files password protected. User Name: MHLN User Name: MHLN Password: Lunch Password: Lunch

4 4 Related Web Sites Links Advisory Committee Reports Task Force on the Future of Military Medicine (12/07): Task Force on the Future of Military Medicine (12/07): Mental Health Task Force: An Achievable Vision (6/07): Mental Health Task Force: An Achievable Vision (6/07): Independent Review Group: Rebuilding the Trust (4/07): Independent Review Group: Rebuilding the Trust (4/07): Dole-Shalala Commission: Serve, Support, Simplify (7/07) Dole-Shalala Commission: Serve, Support, Simplify (7/07) Task Force on Returning Global War on Terror Heroes (4/07): www1.va.gov/taskforce Task Force on Returning Global War on Terror Heroes (4/07): www1.va.gov/taskforcewww1.va.gov/taskforce

5 5 Military Health Law Network Research Helper Abortion 10 U.S.C U.S.C Anthrax Vaccine Immunization Program (AVIP) Rempfer v. VonEschenbach Rempfer v. VonEschenbach Civilian Employees Health Care DepSecDef Memo 9/24/07 DepSecDef Memo 9/24/07 Civilian Health Care Providers NDAA-08, § 1636 NDAA-08, § 1636 Clinical Investigations Program DoDI , Funding and Administration of Clinical Investigations Program, 12/3/07 DoDI , Funding and Administration of Clinical Investigations Program, 12/3/07

6 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 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 05: New FDA final order, reaffirms vaccine is safe and effective against inhalation anthrax 06: Court of Appeals dismissed appeal as moot 06: Court of Appeals dismissed appeal as moot 06: Favorable CAAF decision in U.S. v. Kisala 06: Favorable CAAF decision in U.S. v. Kisala 07: Rempfer v. VonEschenbach and Gates – alleges: 07: Rempfer v. VonEschenbach and Gates – alleges: FDA final order arbitrary and capricious FDA final order arbitrary and capricious DoD failing to follow dosing schedule, making it an investigational use, requiring informed consent DoD failing to follow dosing schedule, making it an investigational use, requiring informed consent

7 7 AVIP (cont.): Whats New Mandatory program restored (in-theater) Mandatory program restored (in-theater) Doe v. Rumsfeld attorneys fees Doe v. Rumsfeld attorneys fees Court ruled Plaintiffs entitled; amount in question Court ruled Plaintiffs entitled; amount in question No effect on past refusals, BCMR petitions No effect on past refusals, BCMR petitions Rempfer: Government Motion to Dismiss Rempfer: Government Motion to Dismiss FDA final order based on best scientific evidence FDA final order based on best scientific evidence DoD following best medical practice DoD following best medical practice Courts defer to FDA agency expertise Courts defer to FDA agency expertise Focus on proper implementation Focus on proper implementation Keep it straight: mandatory vs. voluntary Keep it straight: mandatory vs. voluntary Stick to dosing schedule Stick to dosing schedule Use electronic data system to record shots Use electronic data system to record shots

8 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 Voluntary acknowledgement of paternity State forms: State forms: Posthumously conceived child: 6/6/07 USD decision – case by case Consent of member, born to spouse Consent of member, born to spouse Posthumous collection of sperm Army allows release of body for this purpose Army allows release of body for this purpose New policy to inform members pre-deployment? New policy to inform members pre-deployment?

9 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 Med-Evac & MTF care same as for military personnel Includes any DoL Ofc of Workers Comp covered care Includes any DoL Ofc of Workers Comp covered care Implementation issues: support of hostilities; documenting eligibility Implementation issues: support of hostilities; documenting eligibility

10 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. 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 OSD/CPP-Led Medical Working Group developing implementation policy National Security Personnel System also includes new authority

11 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 Prohibits conversions 10/1/07 – 9/31/12 Prohibition covers positions directly relating to the provision of health care service 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 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 Previous conversions, if unfilled by 9/30/08, must revert back

12 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 civilian over-hire authority? Temporary or term-limited appointment? Temporary or term-limited appointment? Temporary contract? (A-76?) Temporary contract? (A-76?) Resource sharing agreement with TRICARE contractor? Resource sharing agreement with TRICARE contractor?

13 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 Applies to filling pre-08 conversions If civilian employee cant be hired, waives A-76 public-private competition If civilian employee cant be hired, waives A-76 public-private competition Human Resources Officer certification Human Resources Officer certification NDAA-08 § 1676: Moratorium on Conversion to Contractor Performance at MTFs Applies to starting new A-76 reviews Applies to starting new A-76 reviews Until certification that quality and availability not adversely affected by conversion or review process Until certification that quality and availability not adversely affected by conversion or review process No new conversions intended for 08 No new conversions intended for 08

14 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 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 § 1642: DoD shall use VASRD and Court of Veterans Appeals NDAA-08 § 1643: Board of Review for disability ratings <30% since 2001 NDAA-08 § 1643: Board of Review for disability ratings <30% since 2001 Dole Shalala Commission legislation: all disability compensation from VA Dole Shalala Commission legislation: all disability compensation from VA

15 15 Disaster Preparedness: Whats New? HSPD-21, Public Health and Medical Preparedness, 10/18/07 National Response Framework (www.dhs.gov) ESF #8: DoD supports HHS ESF #8: DoD supports HHS International Health Regulations: Public health emergency of international concern Public health emergency of international concern U.S. Understanding: national security interests protected U.S. Understanding: national security interests protected U.S. Understanding: IHRs include CBRN 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 16... MHLN Research Helper... Emergency Contraception (incl. Plan B) Army memo 11/6/06 Army memo 11/6/06 Navy memo 2/27/07 Navy memo 2/27/07 AF memo 8/1/07 AF memo 8/1/07 FDA Rules: DoDI , Application of FDA Rules to DoD Force Health Protection Programs, 2/19/08 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 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) USD(P&R) Memo, Payment of Credentialing Expensed for Military Members, 2/12/07 (implements 10 USC § 2015)

17 17 Domestic Abuse DoDI , Domestic Abuse Involving DoD Military and Certain Affiliated Personnel, 8/21/07 Restricted Reporting Similar to Sexual Assault Policy Restricted Reporting Similar to Sexual Assault Policy Victim gets services; medics do not tell command or cops Victim gets services; medics do not tell command or cops Exception if required by state law 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. 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. 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 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 patients behavioral health relating to domestic abuse Doc is subject to UCMJ and will be asking questions about patients behavioral health relating to domestic abuse But doc interested in patient care, not criminal prosecution or using anything in trial 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 Psychotherapy-patient privilege (MRE 513) currently excludes evidence of child or spouse abuse Testimonial immunity from commander? Testimonial immunity from commander?

19 19 Mental Health Care Task Force on Mental Health Dispell stigma Dispell stigma HA Policy , TRICARE Access Standards for Mental Health Care, 10/9/07 Initial visit = primary care; no referral needed Initial visit = primary care; no referral needed Secretary Gates Proposal: Security clearance form to request mental health info only if inpatient Whats Ahead? Raise thresholds for reporting members involvement with mental health to command? Raise thresholds for reporting members involvement with mental health to command? Revise policy on command directed mental health exams? Revise policy on command directed mental health exams?

20 20 MHS Governance JTF CapMed created by DSD Memo 9/12/07 Direct BRAC medical implementation in NCR Direct BRAC medical implementation in NCR Direct health care delivery & resources in NCR Direct health care delivery & resources in NCR Report directly to SecDef through DepSecDef Report directly to SecDef through DepSecDef New MHS governance endorsed in concept in 2006 Shared support services consolidated under OSD Shared support services consolidated under OSD Whats ahead? JTF San Antonio Med? JTF San Antonio Med? Defense Health Agency? Defense Health Agency? Medical Command? Medical Command?

21 21... MHLN Research Helper... Patients Bill of Rights DoDI , Patient Bill of Rights and Responsibilities in the Military Health System (MHS), 9/5/07 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 , DoD Health Information Security Regulation, 7/12/07 DoD R, DoD Privacy Program, 5/14/07 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 DA&M Memo, Safeguarding Against and Responding to the Breach of Personally Identifiable Information, 9/12/07

22 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 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. 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 23... MHLN Research Helper... Quality Assurance Program E.O , Promoting Quality and Efficient Health Care in Federal Administered or Sponsored Health Care Programs, 8/22/06 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) 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 DoD R, Military Health System Clinical Quality Assurance Regulation, 6/04Research DoDD , Protection of Human Subjects and Ethical Standards in DoD Research, 3/25/02 DoDD , Protection of Human Subjects and Ethical Standards in DoD Research, 3/25/02

24 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 didnt 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 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 SE defined: An unexpected occurrence involving death or serious physical or psychological injury or risk thereof Also comply with JCAHO sentinel event reporting Also comply with JCAHO sentinel event reporting (major permanent loss of function) Whadayado?

25 25... MHLN Research Helper... Smallpox Vaccination Program Surrogate Mothers TRICARE Policy Manual, § 13.2, III.D TRICARE Policy Manual, § 13.2, III.D TRICARE Supplemental Plans NDAA-07, § 707: Ban on Employer Incentives NDAA-07, § 707: Ban on Employer Incentives Veterans Affairs Sharing Agreements 38 USC 8111; 10 USC USC 8111; 10 USC 1104 DoDI , "Department of Defense and Department of Veterans Affairs Health Care Resource Sharing Program," September 12, 2005 DoDI , "Department of Defense and Department of Veterans Affairs Health Care Resource Sharing Program," September 12, 2005

26 26 VA-DoD Sharing Resource: Resource: 400 Sharing Agreements, 7 joint ventures 400 Sharing Agreements, 7 joint ventures Federal Health Care Facility Federal Health Care Facility Combine Great Lakes NH & VAMC North Chicago Combine Great Lakes NH & VAMC North Chicago Data Sharing to Support Seamless Transition Data Sharing to Support Seamless Transition NDAA-08 § 1635: fully interoperable systems NDAA-08 § 1635: fully interoperable systems But § 1614: info to VA requires patient authorization for outpatients in medical hold But § 1614: info to VA requires patient authorization for outpatients in medical hold Wounded Warrior implementation co-chaired by 2 Deputy Secretaries Wounded Warrior implementation co-chaired by 2 Deputy Secretaries

27 27 Wounded Warrior Legislation NDAA-08: about 200 pages, requires 8 major policies, 10 studies, 27 reports NDAA-08: about 200 pages, requires 8 major policies, 10 studies, 27 reports Expanded Health Care Benefits in NDAA-08 Expanded Health Care Benefits in NDAA-08 § 1631: authorizes TDRL members care comparable to active duty (priority & SHCP) § 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 § 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 § 1672: MTF eligibility for family member on ITO in support of wounded warrior NDAA & Approps: Focus on TBI and PTSD NDAA & Approps: Focus on TBI and PTSD Comprehensive Facilities Standards Required Comprehensive Facilities Standards Required Family and Medical Leave Act – NDAA § 585 Family and Medical Leave Act – NDAA § 585

28 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 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 But not if it would compromise the integrity or appearance of integrity of any programWhadayado? Can put out general notification re Gift Fair Can put out general notification re Gift Fair Can contact particular charities that asked Can contact particular charities that asked Cant solicit from other individuals/entities Cant solicit from other individuals/entities

29 29 Recap: for homework, Whadayado? Work Wounded Warrior Issues MTF care and facility standards MTF care and facility standards Disability Evaluation System Disability Evaluation System Dispel stigma for mental health Dispel stigma for mental health Seamless transition with VA Seamless transition with VAAnd Add MHLN to web site favorites Add MHLN to web site favorites

30 30 Questions? From A to Z?


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