Title 22—Foreign Relations--Volume 1
PART 242—IMPLEMENTATION OF THE HAVANA ACT OF 2021
§ 242.1   Authority.
(a) Under section 3 of the HAVANA Act of 2021 (Pub. L. 117-46), codified in 22 U.S.C. 2680b(i), the Secretary of State or other agency heads may provide a payment for a qualifying injury to the brain to a covered employee or covered dependent, who incurred a qualifying injury to the brain on or after January 1, 2016. The authority to provide such payments is at the sole discretion of the USAID Administrator or their designee.
(b) These regulations are issued in accordance with 22 U.S.C. 2680b(i)(4) and apply to former covered employees of the United States Agency for International Development and their covered dependents.
§ 242.2   Definitions.
For purposes of this part, the following definitions apply:
Covered employee: (1) An employee of USAID who, on or after January 1, 2016, becomes injured by reason of a qualifying injury to the brain.
(2) The term “covered employee” includes USAID Foreign Service Officers; USAID Civil Service employees; Appointment Eligible Family Member Adjudicator positions; Expanded Professional Associates Program members; Family Member Appointments; Foreign Service Family Reserve Corps; employees on Limited Non-Career Appointments; Temporary Appointments; students providing volunteer services under U.S.C. 3111; an individual under a Personal Services Contract (Third Country National, Cooperating Country National, and US Personal Services Contracts); or appointed to the position; and USAID's Interns and Fellows.
(3) The following are not considered employees of USAID for purposes of these regulations (see § 242.4): employees or retired employees of other agencies.
Covered dependent: A family member of a USAID current or former employee who, on or after January 1, 2016, becomes injured by reason of a qualifying injury to the brain while the dependent's sponsor was a covered employee of USAID.
Covered individual: A former employee of USAID (including retired or separated employees) who, on or after January 1, 2016, becomes injured because of a qualifying injury to the brain while they were a covered employee of USAID.
Family member: For purposes of determining “covered dependent,” a family member is defined as follows:
(1) Children who are unmarried and under 21 years of age or, regardless of age, are unmarried and due to mental and/or physical limitations are incapable of self-support. The term “children” must include natural offspring, step-children, adopted children, and those under permanent legal guardianship (at least until age 18), or comparable permanent custody arrangement, of the employee or spouse or domestic partner (as defined in 3 Foreign Affairs Manual (FAM) 1610) when dependent upon and normally residing with the guardian or custodial party, and U.S. citizen children placed for adoption if a U.S. court grants temporary guardianship of the child to the employee and specifically authorizes the child to reside with the employee in the country of assignment before the adoption is finalized;
(2) Parents (including stepparents and legally adoptive parents) of the employee or of the spouse or of the domestic partner as defined in 3 FAM 1610.
(3) Sisters and brothers (including stepsisters or stepbrothers, or adoptive sisters or brothers) of the employee, or of the spouse when such sisters and brothers are at least 51 percent dependent on the employee for support, unmarried and under 21 years of age, or regardless of age, are physically and/or mentally incapable of self-support; and
(4) Spouse.
Other incidents: A new onset of physical manifestations that cannot otherwise be readily explained.
Qualifying injury to the brain: (1) The injury must have occurred in connection with war, insurgency, hostile act, terrorist activity, or other incidents designated by the Secretary of State, and that was not the result of the willful misconduct of the covered individual; and
(2) The individual must have:
(i) An acute injury to the brain such as, but not limited to, a concussion, penetrating injury, or as the consequence of an event that leads to permanent alterations in brain function as demonstrated by confirming correlative findings on imaging studies (to include computed tomography scan (CT), or magnetic resonance imaging scan (MRI)), or electroencephalogram (EEG); or
(ii) A medical diagnosis of a traumatic brain injury (TBI) that required active medical treatment for 12 months or more; or
(iii) Acute onset of new persistent, disabling neurologic symptoms as demonstrated by confirming correlative findings on imaging studies (to include CT or MRI), or EEG, or physical exam, or other appropriate testing, and that required active medical treatment for 12 months or more.
§ 242.3   Eligibility for payments by the United States Agency for International Development.
(a) The United States Agency for International Development may provide a payment to covered individuals, as defined in § 242.2, if the qualifying injury to the brain was assessed and diagnosed in person by a currently board-certified physician from the American Board of Psychiatry and Neurology (ABPN), the American Osteopathic Board of Neurology and Psychiatry (AOBNP), the American Board of Physical Medicine and Rehabilitation (ABPMR), or the American Osteopathic Board of Physical Medicine and Rehabilitation (AOBPMR); occurred on or after January 1, 2016; and while the individual was a covered employee of USAID.
(b) The United States Agency for International Development may provide a payment to covered employees, as defined in § 242.2, if the qualifying injury to the brain was assessed and diagnosed in person by a currently board-certified physician from the ABPN, AOBNP, ABPMR, or AOBPMR; occurred on or after January 1, 2016; and while the employee was a covered employee of USAID.
(c) The United States Agency for International Development may provide a payment to a covered dependent if the qualifying injury to the brain was assessed and diagnosed in person by a currently board-certified physician from the ABPN, AOBNP, ABPMR, or AOBPMR; occurred on or after January 1, 2016; and while the employee was a covered employee of USAID at the time of the dependent's injury.
(d) Payment for a qualifying injury to the brain will be a non-taxable, one-time lump sum payment.
(e) USAID will determine the amount paid to each eligible person based on the following factors:
(1) The responses on the AID 442-1, “Eligibility Questionnaire for HAVANA Act Payments;” and
(2) Whether the Department of Labor (Workers' Compensation) has determined that the requester has no reemployment potential, or the Social Security Administration has approved the requester for Social Security Disability Insurance or Supplemental Security Insurance (SSI) benefits;, or the requester's ABPN, AOBNP, ABPMR, or AOBPMR board-certified physician has certified that the individual requires a full-time caregiver for activities of daily living, as defined by the Katz Index of Independence of Daily Living.
(3) The award thresholds are based on Level III of the Senior Executive Schedule: Base will be 75 percent of Level III pay, and Base+ will be 100 percent of Level III pay. If the requestor meets any of the criteria listed in paragraph (e)(2) of this section, the requestor will be eligible to receive a Base+ payment. Requestors whose neurologists confirm that the definition of “qualifying injury to the brain” has been met but have not met any of the criteria listed paragraph (e)(2) of this section, will be eligible to receive a Base payment. If a requestor who received a Base payment later meets any of the criteria listed in paragraph (e)(2) of this section, the requestor may apply for an additional payment that will be the difference between the Base and Base+ payment.
(f) The Chief Human Capital Officer (CHCO) may approve payments under the rule. The Office of Human Capital and Talent Management (HCTM) will notify individuals of the decision in writing.
(g) An appeal of a decision made by the Chief Human Capital Officer (CHCO) may be directed to the Deputy Administrator for Management and Resources in writing. The Deputy Administrator for Management and Resources is the final appeal authority. HCTM will notify individuals of the decision in writing.
§ 242.4   Consultation with other agencies.
The United States Agency for International Development will, to the extent possible, consult with the appropriate officials' other federal agencies to identify their current and former covered employees, and current and former dependents who reported an anomalous health incident. This consultation is solely to assist USAID in determining who might be initially eligible for payment under the HAVANA Act.