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What’s New in Military Health Law?

What’s New in Military Health Law?. John A. Casciotti DoD Office of General Counsel For the Health Law Symposium May 2009. Objectives. Introduction/Refresher on Military Health Law Network What’s new from 2008 What’s ahead for 2009 Whadayado if . . . .

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What’s New in Military Health Law?

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  1. What’s New in Military Health Law? John A. Casciotti DoD Office of General Counsel For the Health Law Symposium May 2009

  2. Objectives • Introduction/Refresher on Military Health Law Network • What’s new from 2008 • What’s ahead for 2009 • 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. Military Health Law NetworkResearch Helper Abortion • 10 U.S.C. 1093 Anthrax Vaccine Immunization Program (AVIP) • www.vaccines.mil Assisted Suicide • Assisted Suicide Funding Restrictions Act of 1997, 42 USC 14401, et seq. Civilian Employees Health Care • DoDD 1404.10, “DoD Civilian Expeditionary Workforce,” 1/23/09 Civilian Health Care Providers • HA Policy 08-005, “Policy for Mandatory Seasonal Influenza Immunizations for Civilian Health Care Personnel Who Provide Direct Patient Care in DoD MTFs,” 4/4/08

  5. Anthrax Vaccine ImmunizationProgram (AVIP) • 2007: Rempfer v. VonEschenbach and Gates • Challenge to FDA final order reaffirming that anthrax vaccine is safe & effective against all forms of anthrax; also DoD dosing schedule policy • District Court upheld FDA March 2008 • Argued in Court of Appeals April 20, 2009 • 2008: Label Change Approved by FDA • Shots reduced from 6 to 5 • Intramuscular administration, rather than subcutaneous

  6. Budget Impact of Health Care • “Health care is eating the department alive.” – Secretary Gates, 4/17/09 • 2001: $ 19 Billion (6% of DoD budget) • 2010: $ 48 Billion • > 60% for retirees (was 45% in ’01) • 2015: $ 64 Billion (11.3% of DoD budget) • Cost saving initiatives: • Federal Ceiling Prices for TRICARE Retail Pharmacy • TRICARE Outpatient Prospective Payment System • Update retiree cost sharing (?)

  7. Civilian Employee Health Care DoDD 1404.10, “DoD Civilian Expeditionary Workforce,” 1/23/09 • To support, e.g., contingency operations, humanitarian and civic assistance, disaster relief, stability operations • Medical readiness for Civilian Expeditionary Workforce personnel comparable to military personnel • For Civ. pers supporting mil engaged in hostilities, Med-Evac & MTF care same as for military personnel • Includes any DoL Workers Comp covered care in US • Implementation issues: support of hostilities; documenting eligibility

  8. Civilian Health Care Providers:Employment Authorities • New 10 USC 1599c (per § 1636, NDAA-08): SecDef may use appointment and pay authorities of 38 U.S.C. • § 1107 of NDAA-09: SecDef can designate health professional positions as “shortage category positions” and “appoint highly qualified persons directly to those positions.” • DoDI 1400.25, “DoD Civilian Personnel Management System” • Vol. 543, “Pay Plan for DoD Civilian Physicians and Dentists Covered by General Schedule,” 12/8/08 • Vol. 540, “Pay Pursuant to Title 38 – Additional Pay for Certain Healthcare Professionals,” 4/6/09

  9. Civilian Health Care Providers: Military to Civilian Conversions 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 • Legislative reconsideration?

  10. Detainee Health Care • APA: "Be it resolved that psychologists may not work in settings where persons are held outside of, or in violation of, either International Law (e.g., the UN Convention Against Torture and the Geneva Conventions) or the US Constitution . . . .” • Preemption: DoD can waive state licensure, but can’t block State licensure action. Whadaydo? • Proposed DoDI 2310.08: “As a matter of professional personnel management, physicians and psychologists normally engaged in clinical functions for the Military Health System are not ordinarily assigned duties as BSCs . . . .”  

  11. Disability Evaluation System Reform • Expanding DES Pilot: DoD do fitness for duty; VA do %age disability rating • NDAA-08 § 1642: DoD shall use VASRD and Court of Veterans Appeals (Disregard DoDI 1332.39) • NDAA-08 § 1643: Board of Review for disability ratings <30% since 2001 • USD(P&R) Memo, 1/6/09, Expedited DES for Combat Related Catastrophic Conditions • DTM, Implementing DES Provisions of NDAA-08, 10/14/08 - (Encl. 8): Role of Legal Counsel in DES • Dole Shalala Commission legislation: all disability compensation from VA (Re-propose?) • www.defenselink.mil/prhome/reports.html

  12. Disaster Preparedness: What’s New? • DoDD 6055.17, “DoD Installation Emergency Management Program,” 1/13/09 • Installation commanders designate Installation Emergency Manager • Coordinate with MTF to develop Installation Emergency Plan for medical resource management • HA Policy 08-010, “DoD Policy for Prioritizing Delivery of Medical Care during Pandemics and other Public Health Emergencies of National Significance,” 9/1/08 • Public Health Emergency Plan must cover national security mission and TRICARE Prime enrollees • Surge capacity planning for alternate sites & supplemental workforce (e.g., intermittent employees, volunteers, retirees) • Legal Preparedness:CDC Public Health Law Program http://www2a.cdc.gov/phlp/

  13. Disaster Preparedness (cont.)Altered Standard of Care: Whadayado? Scenario: In major public health emergency, PHEO says capacity overwhelmed; asks for advice on implementing alternate standard of care. Whadayado? HA Policy 08-010: Achieve the greatest good for the greatest number, defined as lives saved and suffering alleviated. Do not expend resources if treatment likely would prove futile or if disproportionate assets would be expended for one patient at the cost of many other lives. Ensure the most competent medical authority is available at the lowest level possible to make medical judgments of this nature.

  14. Disaster Preparedness:What’s Ahead? • Update DoDI 6200.3, “Emergency Health Powers on Military Installations” • Establish new position of MTF Emergency Manager • Incorporate reporting under International Health Regs • Reference revised CDC quarantine regulations – 42 CFR Parts 70/71(?) • Civilian workforce: Emergency preparedness checklist – www.cpms.osd.mil/disasters • Essential functions • Communications • Alternate work sites • www.fhp.osd.mil/aiwatchboard

  15. . . . MHLN Research Helper . . . Emergency Contraception (incl. “Plan B”) • Army memo 11/6/06 • Navy memo 2/27/07 • AF memo 8/1/07 Emergency Health Powers • DoDD 6200.3, “Emergency Health Powers on Military Installations,” 5/12/03 Humanitarian Missions • HA Policy 08-009, “Credentialing and Authorization of Providers on Foreign Humanitarian Missions,” 8/28/08 • DoD Instruction 2205.02, “Humanitarian and Civic Assistance (HCA) Activities,” 12/2/08

  16. Feres Doctrine APA Resolution 2008: Congress should legislatively repeal Feres Rationale for Feres: • Workers Comp laws trade right to sue employer for no-fault compensation • Equity in compensation for all disabled members & survivors • Good order and discipline • Offsets for T-10 & T-38 compensation would eliminate most recoveries • Quality of care not based on tort litigation

  17. Feres Doctrine Legislation (cont.):Accountability Factor Carmelo Rodriguez Military Medical Accountability Act (H.R. 1478) • Sponsor: “This bill isn’t about members being compensated fairly for medical negligence, it’s about holding our military accountable for its actions.” • Amend 28 USC 2681: “A claim may be brought against the United States . . . for damages relating to the personal injury or death of a member of the Armed Forces . . . arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions” • Excludes “combatant activities of the Armed Forces during time of armed conflict” • Includes any act or omission occurring outside the United States, where the law of the place where the act or omission occurred shall be deemed to be the law of the place of domicile of the plaintiff. • Retroactive to 1/1/97

  18. Feres Doctrine Legislation (cont.):Accountability – Whadayado? Scenario: During MEB, doc says: It looks like this member’s condition might have been worsened by the medical care he got. Asks what to do. Whadayado? HA Policy 09-__, “Improved Medical QA Program Procedures for NPDB Reporting,” 1/16/09 • MEB approving official shall report to the risk manager if condition “may have been incurred or aggravated as a result of medical care” • PEBLO monitor PEB; if unfit, risk manager report to SG • SG do standard of care review, including external peer review, within 180 days • If SOC not met, report to NPDB

  19. Mental Health Care Draft DTM 09-006, “Revised Command Notification Requirements to Dispel Stigma in Providing Mental Health Care to Military Personnel,” __, 2009 • Presumption of non-notification to command of mental health care • Overcome presumption if: • Harm to self or others or specific mission • Special personnel (e.g., PRP) • Acute medical condition interfering with duty • Substance abuse treatment (not voluntary alcohol ed.) • Command directed mental health evaluation • Other special circumstances where notification trumps

  20. MHS Governance: Changing? JTF CapMed created by DSD Memo 9/12/07 • Direct BRAC medical implementation in NCR • Direct health care delivery & resources in NCR • Initially 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? • Centers of Excellence? • Defense Health Agency? • Joint Medical Command?

  21. . . . MHLN Research Helper . . . Obama Health Care Reform • www.healthreform.gov Preventive Health Care • NDAA-09, §§ 711-715 Quality Assurance Program • E.O. 13410, “Promoting Quality and Efficient Health Care in Federal Administered or Sponsored Health Care Programs,” 8/22/06 • DoD 6025.13-R, “Military Health System Clinical Quality Assurance Regulation,” 6/04 Secretarial Designees • Draft DoDI 6025.qq, “Health Care Eligibility Under Secretarial Designee Authority,” ___, 2009

  22. Personality Disorder Separations DoDI 1332.14, “Enlisted Administrative Separations,” 8/28/08 • Personality disorder separation requires diagnosis of mental disorder & determination that member’s ability to function is significantly impaired • If member had served in imminent danger pay area, diagnosis must be corroborated by peer or higher mental health professional and endorsed by SG • Diagnosis must address PTSD or other mental co-morbidity Pattern of Misconduct Separation – Whadayado? Head of Behavioral Health says a patient told her he is being processed for pattern of misconduct separation. Member returned from Iraq 6 months ago, has a PTSD diagnosis, but not unfitting. Doc seeks advice. Whadayado?

  23. Reserve Health Care • § 735 of NDAA-09, Enhancement of Medical and Dental Readiness of RC Members • For RC early deployers, required annual medical & dental screening + dental care for deployability • Discretionary authority to provide same for non-early deployers • Report to Congress on DoD policies to ensure medical & dental readiness • USD(P&R) Memo on LOD Conditions, 4/6/09: Authorizes readiness-related LOD care for members for injuries during duty > 30 days – MTFs or SHCP • DoDD 1200.17, “Managing the Reserve Components as an Operational Force,” 10/29/08

  24. . . . MHLN Research Helper . . . Surrogate Mothers • TRICARE Policy Manual, § 13.2, III.D Third Party Collection Program • HA Policy 08-002, “Policy for Billing for Care Furnished by MTFs to Federal Employees for on the Job Injuries for Occupational Health,” 3/26/08 • 10 U.S.C. § 1097c. TRICARE program: relationship with employer sponsored group health plans Umbilical Cord Blood Donation • http://bloodcell.transplant.hrsa.gov/CORD/index • Pub. L. 109-129 Veterans Affairs Sharing Agreements • 38 USC 8111; 10 USC 1104

  25. VA-DoD Sharing & Partnership • Resource: http://www.tricare.mil/DVPCO • 400 Sharing Agreements, 7 joint ventures • Federal Health Care Facility • Combine Great Lakes NH & VAMC North Chicago • § 706 of NDAA-09: Signed agreement required • 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 • Prez (3/19/09): Joint Virtual Lifetime Electronic Initiative • § 726 of NDAA-09 extended Senior Oversight Committee, co-chaired by 2 Deputy Secretaries

  26. Wounded Warrior Legislation • Expanded Health Care Benefits in NDAA-08 • § 1631: authorizes TDRL members care comparable to active duty (priority & SHCP) • § 1633: respite care for active duty members • § 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 • Family and Medical Leave Act – NDAA § 585 • DoL Regulations: 29 CFR Part 829 (and Appendix H Certification Form)

  27. Recap: for HomeworkWhadayado? • Accountability QA procedures • Installation emergency plan • Fix wounded warrior care, especially seamless transition with VA And • Add MHLN to web site “favorites”

  28. Questions? From A to Z?

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