[Federal Register Volume 75, Number 227 (Friday, November 26, 2010)]
[Rules and Regulations]
[Pages 72682-72685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29763]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 108
[Docket ID: DOD-2009-OS-0036]
RIN 0790-AI52
Health Care Eligibility Under the Secretarial Designee Program
and Related Special Authorities
AGENCY: Department of Defense (DoD).
ACTION: Final rule.
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SUMMARY: This rule establishes policy and assigns responsibilities for
health care eligibility under the Secretarial Designee Program. It also
implements the requirement that the United States receive reimbursement
for inpatient health care provided in the United States to foreign
military or diplomatic personnel or their dependents, except in certain
cases covered by Reciprocal Health Care Agreements (RHCAs) between the
Department of Defense and a foreign country.
DATES: Effective Date: This rule is effective December 27, 2010.
FOR FURTHER INFORMATION CONTACT: Col Michael Skidmore, (703) 614-4157.
SUPPLEMENTARY INFORMATION: This rule establishes policy and assigns
responsibilities under 10 U.S.C. 1074(c) for health care eligibility
under the Secretarial Designee Program. It also implements the
requirement of 10 U.S.C. 2559 that the United States receive
reimbursement for inpatient health care provided in the United States
to foreign military or diplomatic personnel or their dependents, except
in certain cases covered by Reciprocal Health Care Agreements (RHCAs)
between the Department of Defense and a foreign country.
Comments
The Department of Defense published a proposed rule on April 9,
2010 (75 FR 18138-18142). One public comment was received that was in
full support of the rule.
Other changes have been incorporated into the rule text based on
additional internal coordination within the Department to provide
clarity. The responsibilities of the Assistant Secretary of Defense for
Health Affairs under the proposed rule moved to the Under Secretary of
Defense for Personnel and Readiness.
Executive Order 12866, ``Regulatory Planning and Review''
It has been certified that 32 CFR part 108 does not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribunal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
Sec. 202, Pub. L. 104-4, ``Unfunded Mandates Reform Act''
It has been certified that 32 CFR part 108 does not contain a
Federal mandate that may result in the expenditure by State, local and
tribunal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that 32 CFR part 108 is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part 108 does not impose
reporting or recordkeeping requirements under the Paperwork Reduction
Act of 1995.
Executive Order 13132, ``Federalism''
It has been certified that 32 CFR part 108 does not have federalism
implications, as set forth in Executive Order 13132. This rule does not
have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among the
various levels of Government.
List of Subjects in 32 CFR Part 108
Diplomatic personnel, Health care, Military personnel.
0
Accordingly, 32 CFR part 108 is added to read as follows.
PART 108--HEALTH CARE ELIGIBILITY UNDER THE SECRETARIAL DESIGNEE
PROGRAM AND RELATED SPECIAL AUTHORITIES
Sec.
108.1 Purpose.
108.2 Applicability.
108.3 Definition.
108.4 Policy.
108.5 Eligible senior officials of the U.S. Government.
108.6 Responsibilities.
Authority: 10 U.S.C. 1074(c); 10 U.S.C. 2559.
Sec. 108.1 Purpose.
This part:
(a) Establishes policy and assigns responsibilities under 10 U.S.C.
1074(c) for health care eligibility under the Secretarial Designee
Program.
(b) Implements the requirement of 10 U.S.C. 2559 that the United
States receive reimbursement for inpatient
[[Page 72683]]
health care provided in the United States to foreign military or
diplomatic personnel or their dependents, except in certain cases
covered by Reciprocal Health Care Agreements (RHCAs) between the
Department of Defense and a foreign country.
Sec. 108.2 Applicability.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military
Departments, 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 in the
Department of Defense (hereafter referred to collectively as the ``DoD
Components'').
(b) Does not apply to health care services provided to coalition
forces in operational settings, or to allied forces in overseas
training exercises and similar activities. Also, does not apply to
health care services provided to foreign nationals overseas under DoD
Instruction 3000.05,\1\ DoD Instruction 2205.2,\2\ or DoD Instruction
2310.08E.\3\
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\1\ Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/300005p.pdf.
\2\ Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/220502p.pdf.
\3\ Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/231008p.pdf.
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Sec. 108.3 Definition.
Secretarial Designee Program. The program established under section
1074(c) to create by regulation an eligibility for health care services
in military medical treatment facilities (MTFs) as well as dental
treatment facilities for individuals who have no such eligibility under
10 U.S.C. chapter 55.
Sec. 108.4 Policy.
It is DoD policy that:
(a) General Policy. The use of regulatory authority to establish
DoD health care eligibility for individuals without a specific
statutory entitlement or eligibility shall be used very sparingly, and
only when it serves a compelling DoD mission interest. When used, it
shall be on a reimbursable basis, unless non-reimbursable care is
authorized by this part or reimbursement is waived by the Under
Secretary of Defense (Personnel & Readiness) (USD(P&R)) or the
Secretaries of the Military Departments when they are the approving
authority.
(b) Foreign Military Personnel and Their Dependents. (1) MTF Care
in the United States. Foreign military personnel in the United States
under the sponsorship or invitation of the Department of Defense, and
their dependents approved by the Department of Defense to accompany
them, are eligible for space-available care as provided in DoD
Instruction 1000.13.\4\ Consistent with 10 U.S.C. 2559, in cases in
which reimbursement is required by DoD Instruction 1000.13, a RHCA may
provide a waiver of reimbursement for inpatient and/or outpatient care
in the United States in a military medical treatment facility for
military personnel from a foreign country and their dependents, if
comparable care is made available to at least a comparable number of
U.S. military personnel and their dependents in that foreign country. A
disparity of 25 percent or less in the number of foreign personnel and
dependents above U.S. personnel and dependents shall be considered
within the range of comparable numbers.
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\4\ Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/100013p.pdf.
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(2) Non-MTF Care in the United States. Foreign military personnel
in the United States under the sponsorship or invitation of the
Department of Defense, and their dependents approved by the Department
of Defense to accompany them, are not eligible for DoD payment for
outpatient or inpatient care received from non-DoD providers, except
for such personnel covered by the North Atlantic Treaty Organization
Status of Forces Agreement (SOFA) or the Partnership for Peace SOFA and
authorized care under the TRICARE Standard program according to Sec.
199.3 of title 32, Code of Federal Regulations, outpatient care may be
provided as specified therein.
(c) Foreign Diplomatic or Other Senior Foreign Officials. Foreign
diplomatic or other senior foreign officials and the dependents of such
officials may be provided inpatient or outpatient services in MTFs only
in compelling circumstances, including both medical circumstances and
mission interests, and through case-by-case approval.
(1) In the United States, the approval authority is the USD(P&R).
The authority to waive reimbursement for care provided in the United
States, to the extent allowed by law, is the USD(P&R) or the
Secretaries of the Military Departments when they are the approving
authority.
(2) Requests from the State Department or other agency of the U.S.
Government will be considered on a reimbursable basis.
(3) Under 10 U.S.C. 2559, reimbursement to the United States for
care provided in the United States on an inpatient basis to foreign
diplomatic personnel or their dependents is required.
(d) Other Foreign Nationals. Other foreign nationals (other than
those described in paragraphs (b) and (c) of this section) may be
designated as eligible for space-available care in MTFs only in
extraordinary circumstances.
(1) The authority to waive reimbursement for care provided in the
United States, to the extent allowed by law, is the USD(P&R) or the
Secretaries of the Military Departments when they are the approving
authority. Waiver requests will only be considered based on a direct
and compelling relationship to a priority DoD mission objective.
(2) Requests from the State Department or other agency of the U.S.
Government will be considered on a reimbursable basis. Such requests
must be supported by the U.S. Ambassador to the country involved and
the Geographical Combatant Commander for that area of responsibility
and must be premised on critically important interests of the United
States.
(e) Invited Persons Accompanying the Overseas Force. The
Secretaries of the Military Departments and the USD(P&R) may designate
as eligible for space-available care from the Military Health System
outside the United States those persons invited by the Department of
Defense to accompany or visit the military force in overseas locations
or invited to participate in DoD-sponsored morale, welfare, and
recreation activities. This authority is limited to health care needs
arising in the course of the invited activities. Separate approval is
needed to continue health care initiated under this paragraph in MTFs
in the United States.
(1) In the case of employees or affiliates of news organizations,
all care provided under the authority of introductory paragraph (e) of
this section is reimbursable. For other individuals designated as
eligible under this paragraph (e), the designation may provide, to the
extent allowed by law, for outpatient care on a non-reimbursable basis,
and establish a case-by-case authority for waiver of reimbursement for
inpatient care.
(2) This paragraph (e) does not apply to employees of the Executive
Branch of the United States or personnel affiliated with contractors of
the United States.
(f) U.S. Nationals Overseas. Health care for U.S. nationals
overseas is not
[[Page 72684]]
authorized, except as otherwise provided in this part.
(g) U.S. Government Civilian Employees and Contractor Personnel.
(1) Civilian employees of the Department of Defense and other
government agencies, and employees of DoD contractors, and the
dependents of such personnel are eligible for MTF care to the extent
provided in DoD Instruction 1000.13.
(2) Occupational health care services provided to DoD employees
under 5 U.S.C. 7901, authorities cited in DoD Instruction 6055.1,\5\ or
under other authorities except 10 U.S.C. 1074(c) are not affected by
this Instruction. The Secretaries of the Military Departments and the
USD(P&R) may designate DoD civilian employees, applicants for
employment, and personnel performing services for the Department of
Defense under Federal contracts as eligible for occupational health
care services required by the Department of Defense as a condition of
employment or involvement in any particular assignment, duty, or
undertaking.
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\5\ Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/605501p.pdf.
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(3) Any health care services provided by the Military Health System
to employees of DoD non-appropriated fund instrumentalities shall be on
a reimbursable basis.
(4) In the case of DoD civilian employees forward deployed in
support of U.S. military personnel engaged in hostilities, eligibility
for MTF care (in addition to all eligibility for programs administered
by the Department of Labor Office of Workers' Compensation Programs
(OWCP)) is as follows:
(i) Consistent with Policy Guidance for Provision of Medical Care
to DoD Civilian Employees Injured or Wounded While Forward Deployed in
Support of Hostilities,\6\ DoD civilian employees who become ill,
contract diseases, or are injured or wounded while so deployed are
eligible for medical evacuation or health care treatment and services
in MTFs at the same level and scope provided to military personnel, all
on a non-reimbursable basis, until returned to the United States.
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\6\ Copies available at OASD (Health Affairs/TMA FHP&RP), 1200
Defense Pentagon, Room 3E1073, Washington, DC 20301-1200.
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(ii) DoD civilian employees who, subsequent to such deployment, and
have been determined to have OWCP-compensable conditions are eligible
for MTF care for such conditions, all on a non-reimbursable basis.
(iii) USD(P&R) may, under compelling circumstances, approve
additional eligibility for care in MTFs for other U.S. Government
civilian employees who become ill or injured while so deployed, or
other DoD civilian employees overseas.
(5) Contractor Personnel Authorized to Accompany U.S. Armed Forces.
In the case of contractor personnel authorized to accompany U.S. Armed
Forces in deployed settings under DoD Instruction 3020.41,\7\ MTF care
may be provided as stated in DoD Instruction 3020.41.
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\7\ Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/302041p.pdf.
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(h) Emergency Health Care. The Secretaries of the Military
Departments and the USD(P&R) may designate emergency patients as
eligible for emergency health care from MTFs in the United States
pursuant to arrangements with local health authorities or in other
appropriate circumstances. Such care shall be on a reimbursable basis,
unless waived by the USD(P&R) or the Secretaries of the Military
Departments when they are the approving authority.
(i) Research Subject Volunteers. Research subjects are eligible for
health care services from MTFs to the extent DoD Components are
required by DoD Directive 3216.02 \8\ to establish procedures to
protect subjects from medical expenses that are a direct result of
participation in the research. Such care is on a non-reimbursable basis
and limited to research injuries (unless the volunteer is otherwise an
eligible health care beneficiary). Care is authorized during the
pendency of the volunteer's involvement in the research, and may be
extended further upon the approval of the USD(P&R).
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\8\ Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/321602p.pdf.
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(j) Continuity of Care Extensions of Eligibility. The Secretaries
of the Military Departments and the USD(P&R) may establish temporary
eligibility on a space-available basis for former members and former
dependents of members of the seven Uniformed Services for a limited
period of time, not to exceed 6 months, or in the case of pregnancy the
completion of the pregnancy, after statutory eligibility expires when
appropriate to allow completion or appropriate transition of a course
of treatment begun prior to such expiration. In the case of a pregnancy
covered by this paragraph, the designation of eligibility may include
initial health care for the newborn infant. Care under this paragraph
is authorized on a non-reimbursable basis for the former member or
former dependent of member. Care under this paragraph for the newborn
of those former members or former dependents is authorized but on a
full reimbursable basis unless the Secretary of the Military Department
elect to use Secretarial Designee status for the newborn.
(k) Members of the Armed Forces. The Secretaries of the Military
Departments and the USD(P&R) may establish eligibility not specifically
provided by statute for critical mission-related health care services
for designated members of the Armed Forces, such as Reserve Component
members not in a present duty status. This authority includes payment
for health care services in private facilities to the extent authorized
by 10 U.S.C. 1074(c). Care under this paragraph is non-reimbursable.
(l) Certain Senior Officials of the U.S. Government. The officials
and others listed in Sec. 108.5 of this part are designated as
eligible for space-available inpatient and outpatient health care
services from the Military Health System on a reimbursable basis.
(m) Nonmedical Attendants. The Secretaries of the Military
Departments and the USD(P&R) may designate as eligible for space
available MTF care persons designated as nonmedical attendants as
defined by 37 U.S.C. 411k(b). Costs of medical care rendered are
reimbursable unless reimbursement is waived by the Secretary of the
Military Department concerned or USD(P&R). This authority is limited to
health care needs arising while designated as a nonmedical attendant.
(n) Patient Movement. Provisions of this Instruction concerning
inpatient care shall also apply to requests for patient movement
through the medical evacuation system under DoD Instruction 6000.11.\9\
Aeromedical evacuation transportation assets are reserved for those
individuals designated as Secretarial Designees who need transportation
to attain necessary health care.
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\9\ Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/600011p.pdf.
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(o) Other Individuals Entitled to DoD Identification (ID) Card.
Other individuals entitled to a DoD ID card under DoD Instruction
1000.13 are eligible for space-available MTF health care to the extent
provided in DoD Instruction 1000.13.
(p) Reciprocity Among Military Departments. Subject to the
capabilities of the professional staff, the availability of space and
facilities, and any other limitation imposed by the approving
authority, all Services will provide medical treatment to individuals
who have been granted Secretarial designee
[[Page 72685]]
status by any of the Secretaries of the Military Departments. Each
agreement must identify the specific MTF or geographical region in
which medical care is requested, requiring close coordination among
service program managers.
Sec. 108.5 Eligible senior officials of the U.S. government.
(a) The following individuals are Secretarial Designees for space-
available care in MTFs on a reimbursable basis, unless specified
otherwise by a Service Secretary:
(1) The President and Vice President, and their spouses and minor
children.
(2) Members of Congress.
(3) Members of the Cabinet.
(4) Officials of the Department of Defense appointed by the
President and confirmed by the Senate.
(5) Article III Federal Judges. (Article III courts are: The
Supreme Court of the United States, U.S. Courts of Appeal, U.S.
District Courts, U.S. Court of International Trade, United States
Foreign Intelligence Surveillance Court, United States Foreign
Intelligence Surveillance Court of Review.)
(6) Judges of the U.S. Court of Appeals for the Armed Forces.
(7) Assistants to the President.
(8) Director of the White House Military Office.
(9) Former Presidents of the United States and their spouses,
widows, and minor children.
(b) [Reserved].
Sec. 108.6 Responsibilities.
(a) The USD(P&R) shall:
(1) Evaluate requests for and where appropriate, grant exceptions
to policy established by this part and DoD Directive 5124.02,\10\
including waiver of reimbursement, to the extent allowed by law.
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\10\ Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/512402p.pdf.
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(2) Following approval of the USD(P) and in coordination with
USD(P) and the GC, DoD, and in accordance with DoD Directive
5530.3,\11\ begin negotiations, negotiate, and have the authority to
sign RHCAs.
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\11\ Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/553003p.pdf.
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(b) The USD(P) shall evaluate requests and determine DoD mission
interest for Secretarial Designee Status and RHCAs to identify those
agreements that would be in the best interest of the Department of
Defense and approve negotiations of RHCAs by the USD(P&R).
(c) The USD(C) shall in coordination with USD(P&R), establish
appropriate reimbursement rates, including appropriate interagency
rates and rates applicable to students in International Military
Education and Training programs.
(d) The Under Secretary of Defense for Acquisition, Technology, and
Logistics shall evaluate requests for Exception to the Transportation
Policy. The authority to grant such a exception is by USD(P&R) or the
Secretary of the Military Department concerned.
(e) The Secretaries of the Military Departments shall:
(1) Issue, revise or modify as appropriate, regulations to comply
with this part.
(2) Appoint a Military Department representative who will
administer the Secretarial Designee Program within the Military
Department and coordinate with other DoD Components in its effective
operation.
(3) Where and when appropriate, the Military Department concerned
shall coordinate with U.S. Transportation Command/Global Patient
Movement Requirements Center.
(4) Identify Secretarial Designees treated at MTFs.
(5) Provide an annual consolidated list reflecting the number of
Secretarial Designees within their departments, reasons for such
designation, location where designee is receiving treatment, the costs
and sources of funding, nature and duration of treatment and expiration
date of designee status to USD(P&R) and USD(C). The annual report is
due 30 days after the start of the fiscal year reflecting the prior
fiscal year's information.
(i) In cases where the USD(P&R) designates an individual as a
Secretarial Designee, the Military Department concerned shall include
this individual on any lists provided to USD(P&R) and USD(C) for
reporting purposes.
(ii) Annually consolidate Secretarial Designee patient costs and
forward those data to USD(P&R) and OSD(C), along with a report of
collection for reimbursable costs.
(f) The Commanders of the Geographic Combatant Commands (GCCs)
shall:
(1) Refer requests to waive reimbursement through the Chairman of
the Joint Chiefs of Staff to the USD(P&R).
(2) Refer requests for Secretarial Designee status for medical care
in the United States through the Chairman of the Joint Chiefs of Staff
to USD(P&R).
(3) Through the Chairman of the Joint Chiefs of Staff, provide
written annual reports to the USD(P&R) and USD(C) reflecting the number
of individuals designated as Secretarial Designees within their
geographic area of responsibility, the reasons for such designation,
the expected duration of such designation, the costs and sources of
funding authorizing the support of such designee status for each
designee.
(4) Identify Secretarial Designees treated at MTFs within their
geographic area of responsibility.
(5) Provide for an accounting and collection system for
reimbursement of medical costs within their geographic area of
responsibility.
(g) The Commander, United States Transportation Command shall:
(1) Coordinate patient movement with all concerned Military
Departments.
(2) Upon request of the Military Department concerned or Commanders
of the GCCs, determine availability of DoD transportation assets, or
when cost effective, coordinate with civilian ambulance authorities, to
effect transportation of Secretarial Designee as appropriate.
(3) Ensure the Global Patient Movement Requirements Center, as the
regulating agency, will consistently serve as the single point of
contact for patient movement for Secretarial Designee patients using
DoD assets upon request.
(4) Annually consolidate Secretarial Designee patient listing who
utilized the DoD patient movement system and forward to USD(P&R) and
USD(C).
Dated: November 15, 2010.
Patricia L. Toppings,
OSD Federal Register, Liaison Officer, Department of Defense.
[FR Doc. 2010-29763 Filed 11-24-10; 8:45 am]
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