Presentation on theme: "What’s New in Military Health Law?"— Presentation transcript:
1 What’s New in Military Health Law? FOR THE MILITARY HEALTH LAW SYMPOSIUMJohn A. CasciottiDoD Office of General CounselSeptember 2014
2 Military Health Law: Who’s Who. Hon. Stephen W. Preston Hon Military Health Law: Who’s Who? Hon. Stephen W. Preston Hon. Jonathan Woodson, M.D General Counsel of DoD ASD for Health Affairs
3 Outline Military Health Law Network Refresher Whazup? Big Issues in 2014 & 2015Quality Assurance & Patient SafetyBudget & SequestrationPsychological Health & Suicide PreventionWhadayado?
4 Military Health Law Network Research Helper http://www. usuhs AppropriationsHR 4870, DoD Appropriations Act 2015Continuing ResolutionClinical Laboratory Improvements ActDoDI , “Clinical Laboratory Improvement Program (CLIP),” 5/29/14Detainee Health CareDoDI E, Medical Program Support for Detainee Operations, 6/6/06Disability Evaluation System
5 DoD Budget Proposals FY 15 Consolidated TRICARE Health PlanReplacing triple optionCopays higher than Prime, but less than StandardFreedom of choice of providerSave $3.9B FY15-19“TRICARE for Life” Enrollment FeePharmacy Copay IncreasesFrom current $5/17/34 & $0/13/43 phase to 2024: $14/45/XX and $14/45/90SASC bill includes
6 More Potential Budget Issues Rx refills for chronic conditions out of retailTFL now; Other retirees 2015U.S. Family Health PlanGAO recommends terminationMilitary Compensation & Retirement Modernization CommissionRecommendations 2/1/15Return of sequestration?6.6% reduction in FY-16 from FY-15 level
7 Clinical Investigations Program DoDI , “Defense Health Program Funding and Administration of Research and Clinical Investigation Programs,” 1/22/14Requires 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.
8 Disability Evaluation System DoDI & DoDM “Disability Evaluation System (DES),” 8/5/14Vol. 1: GeneralInformation &Legacy DESTime StandardsPEBLO ratio 1:34Vol. 2: IntegratedDESCodification &housekeeping
9 . . . MHLN Research Helper . . . Emergency Health Powers DoDI , “Public Health Emergency Management within DoD,” 3/5/10, Ch. 6/1/12Health PromotionDoDI , “Health Promotion and Disease Prevention,” 4/28/14Medical ReadinessDoDI , “Individual Medical Readiness,” 6/9/14Medical MarijuanaASD(R&FM) memo 2/4/13 reaffirms federal policy
10 MHS Governance: DHA Pubs Defense Health AgencyINSTRUCTIONDRAFT NUMBER[Date]SUBJECT: Publication System ProgramReferences: See Enclosure 11. 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. APPLICABILITYa. 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.DoDD , Defense Health Agency, 9/30/13Director, 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.
11 Psychological Health: Command Directed Mental Health Evaluations DoDI , Mental Health Evaluations of Members of the Military Services, 3/4/13Implements 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 CDMHEsKeeps whistleblower protections, inpatient proceduresStigma still major issueDoDI , Command Notification to Dispel Stigma. 8/17/11
12 Psychological Health & Suicide SASC Proposed NDAA-15, § 701Requires “a person-to-person mental health assessment” annually for each member of a regular component and each member of the Selected ReservePurpose is to “identify mental health conditions” needing treatmentHouse-passed Proposed NDAA-15, § 701For deployed personnel, person-to-person mental health assessment required every 180 daysDoDI , Integration of Behavioral Health Services into Patient-Centered Medical Home Primary Care & Other Primary Care Settings, 8/8/13
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:Commander always has a need to knowMedical ethics require confidentialityIt depends
14 Note: Orange total in 2012 shows expected suicides based on the 2001-2011 trend. Expected number of suicides was calculated by using a forecast model based on previous years year-to-date suicide counts.Source: Mortality Surveillance Division, Armed Forces Medical Examiner (Contact: )
15 Suicide Prevention: Means Reduction Privately owned firearmsUSD(P&R) Memo, “Guidance for Commanders & Health Professionals on Reducing Access to Lethal Means Through Voluntary Storage of Privately-Owned Firearms,” 8/28/04Encourage voluntary storage; no incentives/disincentivesControlled SubstancesDEA Final Rule, “Disposal of Controlled Substances,” 79 FR 53,520, 9/9/14: Accepted DoD request to allow registered MTF pharmacies to have collection receptaclesMHS will implement broadly
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 RCAsFeatured several multi-million dollar OB malpractice cases
17 QA/PS (cont.) NYT 9/2/14, p.19 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.”
18 NYT (continued)MHS “has consistently had higher than expected rates of harm and complications” in maternity care & surgeryData 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
19 Report to SECDEF Review of access, quality, patient safety Includes external experts reviewing data & analysisComparisons to civilian benchmarksComparison to high performing civilian systems600+ page report scheduled for publication 9/24/14
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
21 Feres Doctrine In the Supreme Court of the United States Rationale for Feres:Workers Comp premiseEquity for all disabled members & survivorsGood order and disciplineQuality of care not based on tort litigationAccountability not based on tort litigationDefensive medicine would impair MHS missionRitchie v. U.S.cert. denied 5/5/14_______________No _____________In the Supreme Court of the United States_____________________________________JONATHAN RITCHIE, PETITIONERv.UNITED STATES OF AMERICA______________ON PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITBRIEF FOR THE UNITED STATES IN OPPOSITION__________________________________________________
22 Quality Assurance Program: DoD 6025.13-M, Oct. 2013 Implement stat. changes to licensure portabilityAdopt credentialing by proxy for telemental healthRevise § 1102 standards to increase transparencyFollow same “accountability process” for Feres-barred cases (i.e., disability) as for paid claim casesReinforce NPDB reporting w/in 180 daysImprove reporting of Sentinel EventsEstablish patient opportunity to be heardDoD-wide Healthcare Resolutions Program
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 requirementsDoDI , “Sexual Assault Prevention and Response Program Procedures,” 3/28/13Encl. 7, Healthcare Provider Procedures
24 Transgender IssuesEO (7/21/14) amended prior EOs on Fed. employee (EO 11478) and Federal contractor (E.O ) nondiscriminationProhibits discrimination based on “gender identity”For contractors, Sec-Labor shall do regulations within 90 daysHHS: gender discrimin. prohibition includes gender identityVA now has Transgender Treatment ProgramDoDI , “Medical Standards for Appointment, Enlistment, or Induction in the Military Services,” 4/28/10DoDI , “Enlisted Administrative Separations,” 1/27/1410 USC 1079: no TRICARE for gender change surgeryTRICARE regulation: gender dysphoria treatment not covered
25 Veterans Affairs Sharing DTM , “Separation History and Physical Examination (SHPE),” 7/7/14All 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 VAHealth Artifact & Image Management Solution (HAIMS) “taking too long”; take corrective action; 45 day goalNDAA-14 § 525: STRs to VA = HIPAA allowed disclosureVeterans Access, Choice, and Accountability Act of 2014Expands VA services from non-VA providers (incl. DoD)Approps. Act § 8061: don’t support agency >90 days in arrears without SD national security waiver
26 . . . MHLN Research Helper . . . Outpatient Food & Beverages DoDI , “Food & Beverages to Certain Members & Dependents Not Receiving Inpatient Care at MTFs,” 3/7/14Personal Services ContractsDEA Registration rules same as for civilian employeesSuicide PreventionDoDD , “Defense Suicide Prevention Program,” 6/18/13Wounded WarriorsDTM , “Interim Guidance on Personal Acceptance of Gifts from Outside Sources for Combat-Related or Similar Injuries or Illnesses,” 4/17/14DoD-VA MOU Interagency Complex Care Coordination, 7/29/14
27 QUESTIONS? RECAP: Whadayado? Patient Safety: Do Sentinel Event RCAsPsych Health: Reduce stigmaBudget: Follow the moneyQUESTIONS?