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[Federal Register: April 9, 2010 (Volume 75, Number 68)]
[Proposed Rules]               
[Page 18138-18142]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ap10-31]                         

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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: Proposed rule.

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SUMMARY: This proposed action would establish policies and assign 
responsibilities for health care eligibility under the Secretarial 
Designee Program. It would also implement the requirement where the 
United States would 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.

[[Page 18139]]


DATES: Comments must be received by June 8, 2010.

ADDRESSES: You may submit comments, identified by docket number and/or 
RIN number and title, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, OSD Mailroom 3C843, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Col Michael Skidmore, (703) 614-4157.

SUPPLEMENTARY INFORMATION:

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, Public Law 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.

    Accordingly, 32 CFR part 108 is proposed to be 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 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/html/231008.htm.
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Sec.  108.3  Definition.

    Secretarial Designee Program. The program established under 10 
U.S.C. 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.

[[Page 18140]]

2559, in cases in which reimbursement is required by DoDI 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. RHCAs may have durations of up to 4 years, 
provided that there is a revalidation every 2 years of continuing 
compliance with the requirements for comparable care and comparable 
numbers. 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 this title, 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 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 part. 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.
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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, 
identify 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

[[Page 18141]]

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) 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 emergency patients 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).
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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.
    (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 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 part 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 
that have been granted Secretarial designee 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. 
Secretarial designee status may have durations of up to two years.


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:
    (1) The President and the Vice President.
    (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 evaluate requests for and where appropriate, 
grant exceptions to policy established by this part and DoDD 
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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    (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 Assistant Secretary of 
Defense (Health Affairs) (ASD(HA)).
    (c) The USD(C)) shall, in coordination with ASD(HA), 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 ASD(HA), under the authority, direction, and control of the 
USD(P&R), shall, following approval of the USD(P) and USD (P&R) 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/html/553003.htm.
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    (f) 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

[[Page 18142]]

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) Provide written quarterly reports to the USD(P&R) and USD(C) 
reflecting the number of individuals designated as Secretarial 
Designees within their Military Departments, 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.
    (5) Create a Patient Category code to identify Secretarial 
Designees treated at MTFs.
    (6) 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), USD(C), and ASD(HA).
    (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 ASD(HA) and USD(C), along with a report of 
collection for reimbursable costs.
    (g) 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 quarterly 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) Use existing approved Patient Category code(s) to 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.
    (6) Provide an annual consolidated list reflecting the number of 
Secretarial Designees within their respective geographic areas of 
responsibility, reasons for such designation, location where designee 
is receiving treatment, nature and duration of treatment, and 
expiration date of designee status through the Chairman of the Joint 
Chiefs of Staff to USD(P&R), USD(C), and ASD(HA).
    (h) 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 ASD(HA) and 
USD(C).

    Dated: April 6, 2010.
Mitchell S. Bryman,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2010-8161 Filed 4-8-10; 8:45 am]
BILLING CODE 5001-06-P
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