Recent Issues Facing Health Lawyers

1. Recent Issues Facing Health Lawyers Sal Maida BUMED Medical-Legal Affairs (703)681-8969 Salvatore.Maida@med.navy.mil

2. Issues Mental Health SAPR Patient Autonomy Healthcare Ethics FHCC Update

3. Mental Health • DODI 6490.04 • Issues

4. Separations for Physical or Mental Conditions not Amounting to a Disability (CnD) • Background • DoDI 1334.14 of August 2008 • Required the Surgeon Generals to endorse all administrative separations for personality disorders if member deployed to an imminent danger pay area • DoDI 1334.14, Change 3 of September 2011 • Expanded Surgeon General’s endorsement to any recommendation for separation, based on mental disorder, if member deployed to an imminent danger pay area

5. Separations for Physical or Mental Conditions not Amounting to a Disability (CnD) In FY13, which was a typical year, this pathway to separation was used ≈3200 times, which is comparable to IDES separation rates.

6. Diagnoses Identified Take Away: We can conclude from the sample that a significant number of Sailors and Marines have been separated for CnD when they might have benefited from a enrollment into IDES. Diagnosis FY13 Estimate Ortho Lower 582.3 Mood Disorder 336.9 Ortho Back 192.7 Ortho Upper 139.7 mTBI 98.3 PTSD 75.7 Psychotic/Bipolar 64.3

7. CnD Instructions Similar regulations have been in existence since at least WW2. • DODI 1332.14 • Enlisted Separations Manual • Updated August 28, 2008 • MILPERSMAN 1910-120 • Marine Corps Separation and Retirement Manual, Chapter 6, Section 2.

8. MILPERSMAN 1910-120

9. Navy and Marine Corps Public Health Center • Based on list of separations from FY13 provided by BUPERS and HQMC, NMCPHC sampled 256 cases. • NMCPHC reviewed AHLTA records for the year prior to discharge and tabulated active diagnosis. • AHLTHA record seldom identified which diagnosis led to the separation. • USMC provided command data and a tabulation by BUMED indicated ≈65% were from initial training commands.

10. CnD Processing Proposal A recommendation for separation from an individual provider will be reviewed by a BUMED appointed convening authority of a Medical Evaluation Board to ensure compliance with relevant instructions.

11. CnD ProcessingProposal Pros: Full compliance with current instructions. Decreases the barriers to using Personality Disorder diagnosis as a bases of separation which is often a more defendable diagnosis compared to Adjustment disorder. Improved data collection for GAO reporting. Improved clinical supervision of decision making process. Provides support to Marine commands on US Army posts. Provides guidance to USMC providers on cases requiring Flag level endorsement. Cons: Increased time required to get recommendation. Increases the number of cases requiring Flag level endorsement.

12. Non-Navy Medicine Providers and Counselors • SOCOM • Identified a need for approximately 120 mental health providers • Personal Services Contract • 10 U.S.C. 1091 implemented via DFARS 237.104(b)(ii)(C)(1) and DoDI 6025.5 • MTF Commanders have authority to authorize use of PSCs • MOUs between SOCOM and MTFs • 2014 NDAA

13. Non-Navy Medicine Providers and Counselors • Military Family Life Counselors • Paid for by Marine Corps Line • Embedded with Marine Corps Units • Sub/Pre clinical counseling • Originally wanted to privilege • Naval Expeditionary Forces • TBD

14. Non-Navy Medicine Providers and Counselors • Deployed Resiliency Counselors • Assign one counselor to all CV and big deck amphibs • No clinical privileges • Not part of medical department

15. Miscellaneous Mental Health Issues • DoD 6025.18-R, C7.11 • Commanders still having issues

16. SAPR Sexual Assault Nurse Examiners Maintaining 2911’s/Other Evidence Restricted Reporting Legislative proposals

17. Patient Autonomy When must CO’s be informed that Sailors are seeking non-emergent, elective care outside the MHS?

21. Healthcare Ethics • Navy Medicine Policy • Health care providers who, as a matter of conscience or moral principle, do not wish to perform abortions, orders not to attempt resuscitation, and certain procedures without informed consent shall not be required to do so unless under emergent circumstances where another provider who is willing to do so is not present.

22. Healthcare Ethics

23. Healthcare Ethics

24. Healthcare Ethics • The rest of the story: • Additional allegations • Screening of candidates • Mission is explained to all medical personnel prior to training • AAMER v. Obama, 742 F.3rd 1023 (2014) • Early Identification by COC • May have lead to different outcome

25. Healthcare Ethics • Civilian nurse working in pediatric care • Transferred to oversee nurses in adult care • Would be overseeing nurses who were involved in performing procedures that she found morally objectionable • Morale objection too far removed

26. FHCC Background Status: Established by NDAA 2010 as a 5 year demonstration project. • Combined DoD/DVA facility. Included new Navy ambulatory care center & parking structure. • SECVA, SECDEF, SECNAV entered Executive Agreement (EA): a single line of authority and budget. • FHCC is a VA program. Navy in supporting role. Funding: NDAA established Joint Dept. of Treasury Fund. • Contributions made by DoD and VA each year. • FY13 total expense was $441M (Navy portion - $199M). • Joint Fund Authority termination date originally Sep 15, Departments requested extension-Sep 16. • Allows time to implement Report to Congress recommendations. Goal: Per Executive Agreement (EA), FHCC is designed to: • Improve access, quality and cost effectiveness. • Promote operational readiness, staff and patient satisfaction and research/training opportunities. Evaluation: Report to Congress due Oct 2015. • Describe and assess exercise of authorities • Recommend whether to continue authorities.

27. Challenges EHR: Incompatibility of VA and DoD electronic health records (EHRs) systems required financial investment (+$125M) to build capabilities to support data interoperability and integration initiatives.  • IM/IT model: costly/complex implementation, maintenance, and data transaction structure. • Sustainability a question. Performance: Performance reporting is complicated by the multiple, disparate data systems/sources. • Workload and cost data is produced in two different systems, differently. • It’s a stretch to integrate/normalize VA and DoD dataand develop meaningful metrics. • Lack of comparative performance information hinders decision making. Expiration of the Demonstration Fund in 2016. • Joint Treasury fund expires in FY 2015, extended to FY 2016 for the two year operating account. • If integration continues past FY16 without the fund, it would have to be a detailed billing and payment system.

28. Challenges (continued) Leadership and Organization Climate/Culture. • Resistance to change and complacency with status quo. Quality of Medical Care. • Improving quality has been long/difficult. • Overall quality of care has been satisfactory; however, there have been issues. • Recent integration of Navy into key clinical leadership positions to include inpatient nursing care is clearly making a difference. • Issues in ICU being addressed. Active Duty. • Majority of leadership positions remained filled by VA civilian employees although the intent was for representation and rotation with Navy military personnel. • Active Duty struggled with maintaining clinical military readiness when not allowed to practice to their full training potential as compared with Navy assignments.

29. CONCLUSIONS • Practically, FHCC was bridge too far. • Numerous systemic and infrastructure support issues were harder than estimated. Culture differences were significant for a “joint” facility. • Not sure can be fully resolved unless one agency is in complete control. Congressional interest a significant factor. • Senators Durbin (D-IL) and Kirk (R-IL) were instrumental and remain engaged.

30. Possible Path Forward • No further Joint Facilities until key challenges sufficiently addressed. • Ensure FHCC Report to Congress reflects issues and successes. • Remain committed to providing highest quality health care possible for recruits and beneficiaries.

31. Questions? Sal Maida BUMED Legal-Medical Affairs (703)681-8969 Salvatore.Maida@med.navy.mil