What’s New in
Military Health Law?
FOR THE MILITARY HEALTH LAW SYMPOSIUM
John A. Casciotti
DoD Office of General Counsel
October 2013
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
2
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.”
3
MHS Governance (cont.)
DSD Memo:
Department of Defense
DIRECTIVE
“The centerpiece of the
reform is the
establishment of a
Defense Health Agency
(DHA) to assume
responsibility for shared
services, functions, and
activities of the MHS and
other common business
and clinical processes.”
NUMBER 5136.13
September 30, 2013
DA&M
SUBJECT: Defense Health Agency (DHA)
References: See Enclosure 1
1. PURPOSE. Pursuant to the authority vested in the Secretary of Defense by Title 10,
United States Code (U.S.C) (Reference (a)), and in accordance with Deputy Secretary
of Defense Memorandum (Reference (b)), this directive:
a. Establishes the DHA with the mission, organization and management,
responsibilities and functions, relationships, and authorities as described in this
directive.
b. Effective October 1, 2013, disestablishes the TRICARE Management Activity
(TMA), transfers appropriate TMA functions to the DHA, and cancels DoD Directive
(DoDD) 5136.12 (Reference (c)). Any reference in law, rule, regulation, or issuance to
TMA will be deemed to be a reference to DHA, unless otherwise specified by the
Secretary of Defense.
2. APPLICABILITY. This directive applies to:
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 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 directive 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.
3. MISSION. DHA:
a. Manages TRICARE
.
4
MHS Governance Reform
5
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
6
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
7
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:
o Ensure long term viability of All-volunteer force
o Foster successful recruiting, retention, and military careers
o 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
8
Military Health Law Network
Research Helper
http://www.usuhs.mil/ogc/mhln
Affordable Care Act
• § 1557: Nondiscrimination in Federally conducted
programs
Budget
• http://www.defense.gov/home/features/2013/0913_govt
shutdown/
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/9
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
10
Why are Health Care Costs
Growing in the MHS?
70,000
Total Increase:
$43.0B (247%)
70,000
$7.1B (+16%)
Total Increase:
$43.0B (247%)
60,000
$7.1B (+16%)
60,000
$3.2B (+7%)
50,000
$3.2B (+7%)
50,000
$4.5B (+11%)
$4.5B (+11%)
40,000
40,000
($M)
($M)
$16.3B (+38%)
$16.3B (+38%)
30,000
30,000
(+35%)
$15.3B
$15.3B
(+35%)
20,000
20,000
FY2000
Baseline
Baseline
FY2000
$17.4B
$17.4B
10,000
10,000
0
0
FY00
FY01
FY02
FY03
FY04
FY05
FY06
FY07
FY08
FY09
FY10
FY11
FY12
FY13
FY14
FY15
FY16
FY17
FY13 FY14 FY15 FY16
FY08 FY09 FY10 FY11 FY12 Volume/Intensity/Cost
FY04 FY05 FY06
FY02 FY03
FY01 Medical
FY00 Unified
FY2000
Program
PriceFY07
Inflation
ShareFY17
Creep, etc.
1.
2.
Unified Medical Program
FY2000
New Users <65
Inflation
Price
Explicit Benefit Changes to <65
Share Creep, etc.
Volume/Intensity/Cost
Explicit Benefit Changes to 65+
Users <65
New
GWOT/OCO
Explicit
Total Benefit Changes to <65
Explicit Benefit Changes to 65+
GWOT/OCO
Total
Increases in new eligible beneficiaries 3.
Increased utilization
- Increase of 500,000 beneficiaries since 2007
– Existing users consuming more care (ER, ortho, MH)
- TRICARE plans and prescription benefits
11
– 70% increase in AD outpt purchased care FY05-FY10
Expanded benefits
4.
Healthcare inflation
– Higher than general inflation rate
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
12
• Pay Our Military Act (POMA) - “pay and allowances”
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.
13
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
14
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
15
domestic partners overseas & in U.S.
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 16
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.
17
. . . 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
18
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
19
adjustment disorder as compensable disability
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
20
Active Duty Suicides For All Military Services & Components
1/1/2001 through 12/31/2012
400
Note: Orange total in 2012 shows expected suicides based on the 2001-2011 trend.
349
350
310
300
250
Number of Suicides
298
28
34
270
298
267
301
2010
2011
324.9
26
267
226
214
190
200
171
160
150
32
301
15
33
25
145
160
146
171
157
190
2001
2002
2003
195
189
24
41
171
195
27
26
188
34
284
310
317
233
267
199
226
214
148
189
100
50
0
Regular Suicides
2004
2005
Reserve Suicides
2006
2007
2008
Suicides YTD Each Year
2009
2012
Expected Number of Suicides YTD
Source: Mortality Surveillance Division, Armed Forces Medical Examiner (Contact: 302-346-8641)
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)
22
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 Feresbarred 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
23
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
24
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
25
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)
26
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
27
. . . 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
28
RECAP
Transformational Change
– MHS Governance Reform
– Modernization Review
– Compensation & Benefits Commission
Old Business & New Business
– Budget & Sequestration
– Psychological Health & Suicide Prevention
– Quality Assurance & Transparency
29
QUESTIONS?
30