What’s New in Military Health Law? FOR THE MILITARY HEALTH LAW SYMPOSIUM John A. Casciotti

1. What’s New inMilitary Health Law? FOR THE MILITARY HEALTH LAW SYMPOSIUM John A. Casciotti DoD Office of General Counsel October 2013

2. Big Issues in 2013 & 2014 Transformational Change • MHS Governance Reform • Modernization Review • Benefits Commission Old Business & New Business • Budget & Sequestration • Psychological Health • Quality Assurance & Transparency

3. MHS Governance Reform DepSecDef Memo 3/11/13 “MHS governance reform is a Departmental imperative. We must operate the MHS in the same manner that medical support of operational forces has been so effectively provided in our recent conflicts: jointly. We must also be responsive to the fiscal challenges facing the nation by achieving a sustainable health program budget. In doing so, we must attain greater integration of our direct and purchased healthcare delivery systems, essential to accomplishing the quadruple aim of the MHS: to assure medical readiness, improve the health of our people, enhance the experience of care, and lower our healthcare costs.”

4. MHS Governance (cont.)

5. MHS Governance Reform

6. Modernization Study:Review of Inpatient Markets Markets with Average Daily Inpatient Census Above Nat’l Average Markets with Average Daily Inpatient Census Below Nat’l Average

7. Modernization Study (cont): Relevant Statutes • 10 U.S.C. § 129c • Limits reduction of h.c. pers (mil & civ) to 5% per yr. or 10% in 3 yrs. (unless excess need and no PSC $ increase) • § 8044 of DoD Approps. Act 2013 • Civ. pers. not below 2003 level (unless fewer benes and cost-effective) • § 701 NDAA-08 • Prohibits mil-civ conversion • 10 U.S.C. § 2461 • Public-Private competition procedures not applicable

8. Military Compensation & Retirement Modernization Commission FY13 NDAA-13, § 671. et seq. establishes a 9-member Commission to review and make recommendations regarding the modernization of military compensation and retirement systems • Review includes: medical and dental care • Purpose of Commission: • Ensure long term viability of All-volunteer force • Foster successful recruiting, retention, and military careers • Modernize & achieve fiscal sustainability for compensation & retirement • Commission will operate under guiding principles provided by the President and must consider recommendations by the SecDef • Retirement changes may not affect current members or retirees

9. Military Health Law NetworkResearch Helperhttp://www.usuhs.mil/ogc/mhln Affordable Care Act • § 1557: Nondiscrimination in Federally conducted programs Budget • http://www.defense.gov/home/features/2013/0913_govtshutdown/ Detainee Health Care • DoDI 2310.08E, Medical Program Support for Detainee Operations, 6/6/06 Disability Evaluation System • http://warriorcare.dodlive.mil/disability-evaluation/ides/

10. Budget & Sequestration • Sequestration: Discretionary spending cut 10% • Same %age sequestration to all programs, projects & activities in account (2 USC 906(k)(2)) • DHP cut about $3 Billion in FY-13 • Largely absorbed by carryover, extra pharmacy refunds, facility maintenance deferrals, other “one time” actions • FY-14 cut estimated $3B - $4.5B • Sequestration scheduled for January

11. Why are Health Care Costs Growing in the MHS? • Increases in new eligible beneficiaries - Increase of 500,000 beneficiaries since 2007 • Expanded benefits - TRICARE plans and prescription benefits • Increased utilization • Existing users consuming more care (ER, ortho, MH) • 70% increase in AD outpt purchased care FY05-FY10 • Healthcare inflation • Higher than general inflation rate

12. Budget: Shutdowns & Furloughs • Director OMB Memo, 9/17/13, ”Planning for Agency Operations during a Potential Lapse in Appropriations” • Excepted activities: express statutory authority; emergency circumstances; Prez constitutional authority; continuation by necessary implication • DSD Memo, 9/25/13, “Guidance for Continuation of Operations in the Absence of Available Appropriations” • MHS excepted activities: inpatient MTF care, emergency and acute MTF outpatient care, private sector care, wounded warrior care • Not excepted: elective procedures in MTFs • Excepted = authority to obligate, but not to pay • Pay Our Military Act (POMA) - “pay and allowances”

13. Clinical Investigations Program DRAFT DoDI 6000.08, “Defense Health Program Funding and Administration of Research and Clinical Investigation Programs” • 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.

14. Conscience/Religious Protection NDAA-13, § 533. PROTECTION OF RIGHTS OF CONSCIENCE OF MEMBERS OF THE ARMED FORCES AND CHAPLAINS (1) ACCOMMODATION- The Armed Forces shall [except in cases of military necessity] accommodate the beliefs [, actions and speech] of a member of the armed forces reflecting the conscience, moral principles, or religious beliefs of the member . . . . (2) DISCIPLINARY OR ADMINISTRATIVE ACTION- Nothing in paragraph (1) precludes disciplinary or administrative action for conduct that is proscribed by . . . [the UCMJ] including actions and speech that [threaten] [actually harm] good order and discipline. • Proposed amendments under § 530 of House Bill NDAA-14 Potential Impacts: • Force Health Protection Requirements • Health Care Provider Responsibilities

15. Defense of Marriage Act • U.S. v. Windsor, S.Ct., 6/26/13: § 3 of DOMA unconstitutional • SECDEF and USD(P&R) memos 8/13/13 • Spouse health and other benefits same, effective 6/26/13 forward; ID cards issued • No longer need for special same sex domestic partner benefits, except non-chargeable leave for marriage allowed • OPM addressing civilian personnel same sex domestic partners overseas & in U.S.

16. Detainee Health Care Senate Bill NDAA-14, § 1032 • SECDEF may temporarily transfer GTMO detainee to a DoD medical facility in U.S. for medical treatment “necessary to prevent death or imminent significant injury or harm to health” if unavailable at GTMO • Security arrangements required; no effect on legal rights; no judicial review Aamer v. Obama, pending at D.C. Circuit • Challenging U.S.Gov’t hunger strike policy

17. Licensure of Providers • 10 U.S.C. § 1094(d): Licensure portability (preemption of local State licensure law) applies to any “member of the armed forces, civilian employee of [DoD], personal services contractor, or other health-care professional credentialed and privileged at a Federal health care institution or location specially designated by the Secretary for this purpose who” has a license and “is performing authorized duties for [DoD].” • Draft DoD 6025.13-M: Portability of State licensure does not apply to: (a) Non-personal services contract providers, whether on-base or off, unless stated in the contract and specifically approved by ASD(HA). (b) Personnel of non-DoD agencies, unless specifically approved by the ASD(HA), or unless such personnel are properly detailed to DoD. • Additional requirements apply to preemption of state law involving off-base duties.

18. . . . MHLN Research Helper . . . Emergency Health Powers • DoDI 6200.03, Public Health Emergency Management within DoD, 3/5/10, Ch. 6/1/12 Live Animal Training • NDAA-13, § 736: strategy to phase out Medical Marijuana • ASD(R&FM) memo 2/4/13 reaffirms federal policy Personal Services Contracts • NDAA-13, § 713: PSC Subcontractors at any tier covered for tort claim purposes same as PSCers • DEA Registration rules uncertain

19. Psychological Health & Suicide • E.O. 13625, Improving Access to Mental Health Services for Veterans, Service Members and Families, 8/31/12 • DoDI 6490.12, Mental Health Assessments for Service Members Deployed in Connection with a Contingency Operation, 2/26/13 • HA Policy Memo 12-010, Waiver of Restrictive Licensure and Privileging Procedures to Facilitate the Expansion of Telemedicine Services in the MHS, 12/21/12 • 10 U.S.C. § 1177: For member who deployed, no administrative discharge under other than honorable conditions w/out PTSD/TBI screening; excludes CM but not discharge in lieu of CM • DoDI 1332.38, Disability: Change 4/10/13 adding chronic adjustment disorder as compensable disability

20. Psychological Health: Command Directed Mental Health Evaluations • DoDI 6490.4, 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 6490.08, Command Notification to Dispel Stigma

21. Note: Orange total in 2012 shows expected suicides based on the 2001-2011 trend. Source: Mortality Surveillance Division, Armed Forces Medical Examiner (Contact: 302-346-8641)

22. Suicide Prevention • NDAA-13, § 582, Comprehensive Policy on Prevention of Suicide by Armed Forces Members • DoDD 6490.14, “Defense Suicide Prevention Program,” 6/18/13 • Means Reduction • NDAA-13, § 1057: can ask about privately owned firearms if “member is at risk for suicide or causing harm to others” • DEA Proposed Rule, “Disposal of Controlled Substances,” 77 FR 75,784 (12/21/12)

23. Quality Assurance Program:Draft DoD 6025.13-M Changes • 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 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

24. Sexual Assault Prevention & Response DoDI 6495.02, “Sexual Assault Prevention and Response Program Procedures,” 3/28/13 • Encl. 7, Healthcare Provider Procedures • Priority as emergency cases • Procedures for SAFE Kits in MTF or by MOU • Confidential restricted reports unless exception (such as State law) • Encl. 8, SAFE Kit Collection & Preservation • Also includes restricted reporting cases

25. Sexual Assault: Abortion Coverage 10 USC § 1093, amended by NDAA-13 § 704 • Allows DoD funding abortions in “case in which the pregnancy is the result of . . . rape or incest” • ASD(HA) memo 3/12/13: • Restricted reporting for sexual assault applies; no reporting to command or law enforcement • Follow prevailing practice of other Federal health programs regarding documentation • No change in policy on following applicable state or host nation laws • No change in provider conscience policy

26. Third Party Collection Program • Potential initiative: contract to identify more beneficiaries with other health insurance • Senate Bill NDAA-14, § 711; House Bill § 714 • Pilot program at MTFs for commercially available enhanced recovery practices used by private sector facilities • Public-Private competition requirements apply? • DoD 6010.15-M, Military Treatment Facility Uniform Business Office Manual (2006)

27. Tort Litigation • Lanus v. U.S., 6/27/13, cert. denied: • 11th Cir. (nonmedical) case applying Feres • Read v. U.S., 5th Cir., 7/19/13: • Medical malpractice case applied Feres • Levin v. U.S., S.Ct. 3/4/13: • Gonzalez Act (10 USC 1089(e)) granted personal immunity to providers, but created exception to FTCA exception for intentional torts • Impact: FTCA claim for battery due to lack of consent now permissible

28. . . . MHLN Research Helper . . . Quality Assurance Program • DoDI 6025.13, Medical QA in the MHS, 2/17/11 Reserve Components Health Care • Draft DoDI 1241.01, Reserve Component Line of Duty Findings for Health Care and Incapacitation Pay Sexual Assault • 10 USC § 1565b (from NDAA-12): Provides statutory authority for restricted reporting to facilitate medical care and victim advocate services Veterans Affairs Sharing • MOU: VA to share RC member disability info (10/13) • http://www.tricare.mil/DVPCO/default.cfm

29. RECAP Transformational Change • MHS Governance Reform • Modernization Review • Compensation & Benefits Commission Old Business & New Business • Budget & Sequestration • Psychological Health & Suicide Prevention • Quality Assurance & Transparency

30. QUESTIONS?