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[Federal Register Volume 75, Number 227 (Friday, November 26, 2010)]
[Rules and Regulations]
[Pages 72682-72685]
From the Federal Register Online via the Government Printing 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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