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What’s New in Military Health Law? FOR THE MILITARY HEALTH LAW SYMPOSIUM John A. Casciotti DoD Office of General Counsel September 2014.

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Presentation on theme: "What’s New in Military Health Law? FOR THE MILITARY HEALTH LAW SYMPOSIUM John A. Casciotti DoD Office of General Counsel September 2014."— Presentation transcript:

1 What’s New in Military Health Law? FOR THE MILITARY HEALTH LAW SYMPOSIUM John A. Casciotti DoD Office of General Counsel September 2014

2 Military Health Law: Who’s Who? Hon. Stephen W. Preston Hon. Jonathan Woodson, M.D. General Counsel of DoD ASD for Health Affairs 2

3 3 Outline Military Health Law Network Refresher Whazup? Big Issues in 2014 & 2015 –Quality Assurance & Patient Safety –Budget & Sequestration –Psychological Health & Suicide Prevention Whadayado?

4 4 Military Health Law Network Research Helper Appropriations HR 4870, DoD Appropriations Act 2015 Continuing Resolution Clinical Laboratory Improvements Act DoDI , “Clinical Laboratory Improvement Program (CLIP),” 5/29/14 Detainee Health Care DoDI E, Medical Program Support for Detainee Operations, 6/6/06 Disability Evaluation System

5 DoD Budget Proposals FY 15 Consolidated TRICARE Health Plan –Replacing triple option –Copays higher than Prime, but less than Standard –Freedom of choice of provider –Save $3.9B FY15-19 “TRICARE for Life” Enrollment Fee Pharmacy Copay Increases –From current $5/17/34 & $0/13/43 phase to 2024: $14/45/XX and $14/45/90 –SASC bill includes 5

6 More Potential Budget Issues Return of sequestration? –6.6% reduction in FY- 16 from FY-15 level 6 Rx refills for chronic conditions out of retail –TFL now; Other retirees 2015 U.S. Family Health Plan –GAO recommends termination Military Compensation & Retirement Modernization Commission –Recommendations 2/1/15

7 Clinical Investigations Program DoDI , “Defense Health Program Funding and Administration of Research and Clinical Investigation Programs,” 1/22/14 Requires Management Controls to ensure: (1) Acceptance of non-federal support will be well documented and transparent and avoid the appearance of impropriety. (2) Can’t accept any compensation from any non-federal source for duties within the scope of the CIP. Includes off-duty employment in connection with a CI activity. (3) Can’t accept honoraria in connection with a CI activity or direct honoraria to third parties. (4) Can’t direct use of funds of a non-federal entity except as specifically provided by approved agreement. 7

8 Disability Evaluation System DoDI & DoDM “Disability Evaluation System (DES),” 8/5/14 Vol. 1: General Information & Legacy DES Time Standards –PEBLO ratio 1:34 Vol. 2: Integrated DES –Codification & housekeeping 8

9 ... MHLN Research Helper... Emergency Health Powers DoDI , “Public Health Emergency Management within DoD,” 3/5/10, Ch. 6/1/12 Health Promotion DoDI , “Health Promotion and Disease Prevention,” 4/28/14 Medical Readiness DoDI , “Individual Medical Readiness,” 6/9/14 Medical Marijuana ASD(R&FM) memo 2/4/13 reaffirms federal policy 9

10 MHS Governance: DHA Pubs DoDD , Defense Health Agency, 9/30/13 Director, DHA has authority to:... Establish and maintain... for functions assigned, a DHA publication system for regulations, instructions, and reference documents produced by the DHA.... (1) The Director, DHA, must ensure that all OSD and DoD Components... are given the opportunity to coordinate when such publication is written, changed, or revised. (2) For assigned functions, approved DHA publications are binding on DoD Components. 10 Defense Health Agency INSTRUCTION DRAFT NUMBER [Date] SUBJECT: Publication System Program References: See Enclosure 1 1. PURPOSE. This Instruction: a. In accordance with Deputy Secretary of Defense Memorandum (Reference (a)) and pursuant to the authority in DoDDs and (References (b) and (c)), this instruction implements policy, assigns responsibilities and prescribes procedures for the development, coordination and publication of Defense Health Agency (DHA) Publications. b. Establishes the DHA Publication Website on the unclassified DHA Intranet (.mil domain) and the Internet (public domain). 2. APPLICABILITY a. OSD, the Military Departments (including the Coast Guard at all times, including when it is a service in the Department of Homeland Security by agreement with that Department), the Office of the Chairman of the Joint Chiefs of Staff (CJCS) and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the DoD (referred to collectively in this instruction as the “DoD Components”). b. The Commissioned Corps of the Public Health Service and the Commissioned Corps of the National Oceanic and Atmospheric Administration, under agreement with the Department of Health and Human Services. c. In accordance with the authority in Reference (b), for assigned functions, approved DHA publications are binding on DoD Components.

11 Psychological Health: Command Directed Mental Health Evaluations DoDI , Mental Health Evaluations of Members of the Military Services, 3/4/13 Implements NDAA-12, § 711: SECDEF to issue regs: –“to eliminate perceived stigma associated with... mental health services, promoting the use... on a basis comparable to the use of other... services.” § 711 repealed § 546 of NDAA-93, which required elaborate procedures for CDMHEs –Keeps whistleblower protections, inpatient procedures Stigma still major issue –DoDI , Command Notification to Dispel Stigma. 8/17/11 11

12 Psychological Health & Suicide SASC Proposed NDAA-15, § 701 –Requires “a person-to-person mental health assessment” annually for each member of a regular component and each member of the Selected Reserve –Purpose is to “identify mental health conditions” needing treatment House-passed Proposed NDAA-15, § 701 –For deployed personnel, person-to-person mental health assessment required every 180 days DoDI , Integration of Behavioral Health Services into Patient-Centered Medical Home Primary Care & Other Primary Care Settings, 8/8/13 12

13 Psych Health: Whadayado? Scenario: Mental health provider says to JAG: A guy’s commander called me. He had referred the guy to mental health but it wasn’t an order. He wants me to tell him about the guy. The guy is not a threat to self or others, but he has problems. I’m not sure I should say anything. What’s your advice? Choices: a)Commander always has a need to know b)Medical ethics require confidentiality c)It depends 13

14 Source: Mortality Surveillance Division, Armed Forces Medical Examiner (Contact: ) Note: Orange total in 2012 shows expected suicides based on the trend.

15 Suicide Prevention: Means Reduction Privately owned firearms –USD(P&R) Memo, “Guidance for Commanders & Health Professionals on Reducing Access to Lethal Means Through Voluntary Storage of Privately-Owned Firearms,” 8/28/04 –Encourage voluntary storage; no incentives/disincentives Controlled Substances –DEA Final Rule, “Disposal of Controlled Substances,” 79 FR 53,520, 9/9/14: Accepted DoD request to allow registered MTF pharmacies to have collection receptacles –MHS will implement broadly 15

16 Quality Assurance/Patient Safety NYT 6/29/14, p. 1 “The military lags behind many civilian hospital systems in protecting patients from harm.” There is “an overall failure to make patient safety a top priority.” : 239 unexpected deaths; only 100 RCAs Featured several multi-million dollar OB malpractice cases 16

17 QA/PS (cont.) NYT 9/2/14, p.1 9 MTFs have ADPL < 10; Dr. Lucian Leape says “they should be outlawed.” DoD Sentinel Event policy often not followed. “In fact, … last year, the government paid 21 military patients more than $500,000 each to settle malpractice claims, an indication of ‘significant harm.’ Yet, hospitals identified only three as sentinel events, a pattern that has persisted for years.” 17

18 NYT (continued) MHS “has consistently had higher than expected rates of harm and complications” in maternity care & surgery Data show several MHS medical centers have higher than expected surgical complications “and some hospitals perform worse” than civilian benchmarks “in multiple safety categories,” some “over 2 times average” One take-away message: MTF-specific performance data transparency is the new normal 18

19 Report to SECDEF Review of access, quality, patient safety Includes external experts reviewing data & analysis Comparisons to civilian benchmarks Comparison to high performing civilian systems 600+ page report scheduled for publication 9/24/14 19

20 Sentinel Events: Whadayado? Policy: “MTFs shall actively identify sentinel events that occur in their facilities, conduct a root cause analysis, and form a corrective action plan for each event. The results... shall be promptly reported....” Definition: “An unexpected occurrence involving death or serious physical or psychological injury or risk thereof. Serious injury specifically includes loss of limb or function.... Such events are called ‘sentinel’ because they signal the need for immediate investigation and response.” “Military Health System Patient Safety Program: A Legal Foundation for Preventing Medical Errors” –Root cause analysis preventive, not punitive 20

21 Feres Doctrine Rationale for Feres: Workers Comp premise Equity for all disabled members & survivors Good order and discipline Quality of care not based on tort litigation Accountability not based on tort litigation Defensive medicine would impair MHS mission Ritchie v. U.S. cert. denied 5/5/14 _______________No _____________ In the Supreme Court of the United States _____________________________________ JONATHAN RITCHIE, PETITIONER v. UNITED STATES OF AMERICA ______________ ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ______________ BRIEF FOR THE UNITED STATES IN OPPOSITION __________________________________________________

22 Quality Assurance Program: DoD M, Oct Implement stat. changes to licensure portability Adopt credentialing by proxy for telemental health Revise § 1102 standards to increase transparency Follow same “accountability process” for Feres- barred cases (i.e., disability) as for paid claim cases Reinforce NPDB reporting w/in 180 days Improve reporting of Sentinel Events Establish patient opportunity to be heard DoD-wide Healthcare Resolutions Program 22

23 Sexual Assault Prevention & Response NDAA 14, § 1725(b): At least 1 Sexual Assault Nurse Examiner (SANE) assigned to every MTF with 24/7 ED; Other MTFs must make SANE services available (report language says in MTF) SD sets training and certification requirements DoDI , “Sexual Assault Prevention and Response Program Procedures,” 3/28/13 Encl. 7, Healthcare Provider Procedures 23

24 Transgender Issues EO (7/21/14) amended prior EOs on Fed. employee (EO 11478) and Federal contractor (E.O ) nondiscrimination –Prohibits discrimination based on “gender identity” –For contractors, Sec-Labor shall do regulations within 90 days HHS: gender discrimin. prohibition includes gender identity VA now has Transgender Treatment Program DoDI , “Medical Standards for Appointment, Enlistment, or Induction in the Military Services,” 4/28/10 DoDI , “Enlisted Administrative Separations,” 1/27/14 10 USC 1079: no TRICARE for gender change surgery TRICARE regulation: gender dysphoria treatment not covered 24

25 Veterans Affairs Sharing DTM , “Separation History and Physical Examination (SHPE),” 7/7/14 –All members serving > 180 days get DoD or VA SHPE before separation; implements 10 USC §1145(a)(5) SD Memo 6/23/14, Service Treatment Records to VA –Health Artifact & Image Management Solution (HAIMS) “taking too long”; take corrective action; 45 day goal NDAA-14 § 525: STRs to VA = HIPAA allowed disclosure Veterans Access, Choice, and Accountability Act of 2014 –Expands VA services from non-VA providers (incl. DoD) Approps. Act § 8061: don’t support agency >90 days in arrears without SD national security waiver 25

26 26... MHLN Research Helper... Outpatient Food & Beverages DoDI , “Food & Beverages to Certain Members & Dependents Not Receiving Inpatient Care at MTFs,” 3/7/14 Personal Services Contracts DEA Registration rules same as for civilian employees Suicide Prevention DoDD , “Defense Suicide Prevention Program,” 6/18/13 Wounded Warriors DTM , “Interim Guidance on Personal Acceptance of Gifts from Outside Sources for Combat-Related or Similar Injuries or Illnesses,” 4/17/14 DoD-VA MOU Interagency Complex Care Coordination, 7/29/14

27 RECAP: Whadayado? –Patient Safety: Do Sentinel Event RCAs –Psych Health: Reduce stigma –Budget: Follow the money QUESTIONS? 27

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