Closing the Gap in Access to Military Health Care Records: Mandating Civilian Compliance with the Military Command Exception to the HIPAA Privacy Rule
| By Getz, Dane B | |
| Proquest LLC |
Commanders play a critical role in the health and well-being of their Soldiers, and therefore require sufficient information to make informed decisions about fitness and duty limitations. Commanders must receive appropriate, timely information from medical personnel when health problems exist that may impair a Soldier's fitness for duty . . . . We must balance the Soldier's right to the privacy of his/her protected health information . . . with mission requirements and the commander's right to know.1
I. Introduction
A Reserve Component (RC) commander of a signal battalion is assigned to the 335th Signal Command (Theater), a multi-composition2
The battalion is deploying in six months. In preparation for deployment, the commander works closely with Human Resources Command (HRC) to obtain a knowledgeable, experienced operations sergeant. Human Resources Command assigns a senior active duty E-8 with two previous deployments and eighteen-and-a-half years of active federal service. The closer the unit gets to deployment, however, the more the noncommissioned officer (NCO) begins to miss duty, ostensibly for medical reasons, which adversely impacts the unit's ability to adequately plan and prepare for deployment. The NCO tells the commander he is currently seeing four civilian health care providers (CHPs):6 a primary care physician, a neurologist, a pain management specialist, and a psychiatrist. The NCO also claims that CHPs have diagnosed him with fibromyalgia and an anxiety disorder, restricted his duties, and placed him on medication that impairs his ability to drive and stay awake during duty hours. The commander directs the NCO to sign a
During the weekend BA, the NCO is overheard saying, "I'll be damned if I'm going to deploy again," and, "I have a plan to avoid deployment, get my twenty years of active federal service, and retire with a Veteran's Administration disability determination." Later that week, two of the NCO's CHPs respond to the commander's medical release requests and deny them, indicating they will only provide the NCO's PHI if he executes civilian release forms in the commander's favor, which the NCO has declined to do. To make matters worse, the Sergeant Major subsequently receives a frantic call from the NCO's wife stating her husband became extremely intoxicated while cleaning his semi-automatic pistol, got a strange look in his eye and said, "I am never going to let them deploy us again."
The commander needs the NCO's PHI as soon as possible to determine his continued fitness for duty and assess whether he may pose a danger to himself and others. In writing, he directs the NCO to do the following: (1) provide him with copies of his PHI as soon as possible; (2) sign civilian medical release forms in his favor, allowing him direct access to the NCO's PHI and authorizing CHPs to discuss the NCO's condition with the commander;9 and (3) bring copies of relevant portions of his PHI to an emergency mental health care appointment the commander has scheduled.
The NCO drags his feet. First, he claims the CHPs have informed him it will take at least forty-five to sixty days to copy and forward his PHI to the unit, and even though he initially signs civilian medical release forms, he later inexplicably revokes these releases.10 Next, he misses several MTF appointments, and when he does attend, he fails to bring his civilian PHI, thus impairing the ability of
As the unit's judge advocate (JA), you advise the commander of his nonjudicial, adverse administrative, and medical separation options; however, none of these courses of action will provide the commander with a timely solution to the problem of how to gain immediate access to the NCO's PHI, evaluate his physical and mental condition, coordinate adequate mental health care services if and as needed, and obtain a replacement before the unit deploys in thirty days.
Frustrated, the commander calls the CHPs and asks to discuss the NCO's physical and mental condition with them directly, requesting copies of the NCO's PHI. Civilian health care providers tell the commander the Health Insurance Portability and Accountability Act's (HIPAA's)12 Privacy Regulation (the Privacy Rule)13 prevents them from discussing the NCO's physical and mental condition with him and providing him with copies of the NCO's PHI absent a signed civilian release. You respond by informing attorneys for the CHPs of the Military Command Exception14 to HIPAA's Privacy Rule, but they counter by noting that the Military Command Exception is discretionary, not mandatory, and indicate their clients will not honor it in the absence of a signed release from the NCO out of concern for violating HIPAA's Privacy Rule.
This unfortunate scenario highlights the existing disparity in commanders' access to Soldiers' PHI under the current federal regulatory framework governing the privacy of military PHI. Under the current regulatory scheme, military command authorities15 whose commands, attachments, detachments, and schools are located within the catchment area-defined as forty to fifty miles within the radius of a MTF16-benefit from unrestricted17 access to their Soldiers' PHI as a matter of
The problem is neither esoteric nor academic. There are approximately 77,000 AGR Soldiers in the RC.22 Over 44,000 of these Soldiers utilize TPR outside the catchment area.23 In the AR alone, there are over 16,000 AGR Soldiers,24 most of who utilize TPR,25 and the inability of AR commanders to obtain unrestricted access to these Soldiers' PHI has impaired commanders' ability to fulfill their regulatory duty to ensure their Soldiers' medical readiness complies with Army Regulation (AR) 40-501, Standards of
While the adverse consequences from the lack of unrestricted access to Soldiers' PHI outside the catchment area are felt most acutely in the RC, the problem is neither unique nor limited to the RC. At present, there are approximately 11,528 AD Soldiers who utilize TPR outside the catchment area.27 The ability to obtain unrestricted access to AD Soldiers' mental health care PHI when an AD Soldier has demonstrated behavior suggesting he may pose a danger to himself or others is just as important outside the catchment area as it is within the catchment area, and the potential adverse consequences of being unable to access and act upon this information in a timely manner are just as real.
Acknowledging Soldiers' privacy rights must be balanced with the government's interest in ensuring military medical readiness, the DoD has directed changes to the
Part II of this article begins by providing a brief overview of the current statutory, regulatory, and policy framework governing the privacy of Soldiers' PHI in the military. Part III explains how the current regulatory framework has created an illogical, counterintuitive system of disparate command access that is susceptible to abuse by medically non-compliant34 Soldiers, disregarded by unknowledgeable and uncooperative CHPs, and characterized by a lack of uniformity that has adversely impacted medical readiness and ultimately, national security. Part IV of this article proposes two solutions to this problem and examines arguments for and against implementing these changes. Part V of this article describes how the DHHS and DoD could implement these proposed solutions within and across the MHS. This article concludes with the proposition that the benefits of implementing one or both of these proposed solutions clearly outweigh the potential adverse consequences of maintaining the current counterintuitive and counterproductive status quo.
II. The Statutory, Regulatory, and Policy Framework Governing the Privacy of PHI in the Military
A. HIPAA35
B. The Privacy Rule
The Privacy Rule is the centerpiece in the legal framework to protect the privacy of PHI.42 The Privacy Rule's goals are two-fold: to protect the privacy of individual PHI while simultaneously promoting the disclosure of PHI that is reasonably necessary "to protect the public's health and well-being."43 In this way, the Privacy Rule seeks to strike a balance between individual rights and societal interests.44
In disclosing PHI,45 a covered entity must comply with the Minimum Necessary Rule (MNR),46 which requires a covered entity to "make reasonable efforts"47 to request, use, and disclose only the "minimum [amount of information] necessary"48 to "satisfy a particular purpose or carry out a [particular] function"49 under one of the twelve Privacy Rule exceptions.50
The Privacy Rule exception for military personnel is the "essential government functions" exception,51 which encompasses the Military Command Exception.52 In creating the Military Command Exception, the DHHS acknowledged that the unique nature of military service requires Soldiers' privacy rights to be balanced with the public interest in maintaining a strong national defense, a goal that is advanced by ensuring military command authorities have the ability to access their Soldiers' PHI and evaluate their physical and mental conditions to achieve and maintain medical readiness.53
C. DoD Regulations
The DoD implemented the Privacy Rule and the Military Command Exception for all DoD components on
(1) to determine a Soldier's fitness for duty, including compliance with other DoD regulatory programs, standards, and directives;56
(2) to determine a Soldier's fitness to perform a specific order, assignment, or mission, "including compliance with any actions required as a precondition to performance of such mission, assignment, order, or duty;"57
(3) to carry out comprehensive medical surveillance activities;58
(4) to report casualties in connection with military operations or activities;59 and
(5) to "carry out any other activity necessary to the proper execution of the mission of the Armed Forces."60
Army Regulation 40-66, Medical Records and Administration and Healthcare Documentation,61 implements the provision of DoD 6025.18-R within the
D. The DoD Message and Instruction
Former Vice Chief of Staffof the
Commanders have unrestricted access71 to Soldiers' PHI when it relates to: (1) DoD drug test results; (2) medical readiness and fitness for deployability (e.g., profile status, medical board, immunization and allergy information, etc.); (3) line of duty investigations; (4) changes in duty status resulting from medical conditions (e.g., appointments, hospitalizations); (5) the weight control program; (6) medical conditions or treatments72 that limit or restrict Soldiers' abilities to perform their duties; and (7) "any perceived threat to life or health."73
Commanders are excluded from accessing Soldiers' PHI74 when it: (1) has no impact on Soldiers' medical readiness or duty fitness (e.g., the taking of routine medicines such as birth control pills, etc.); (2) relates to "the reason for [Soldiers'] medical appointments, routine medical treatments, clinical service seen, or other information that does not directly affect fitness for duty;"75 and (3) relates to family members, except where a family member is in the exceptional family member program and the circumstances of their enrollment will limit a Soldier's duty assignment.76
[t]he director, TRICARE Management Activity, under the authority, direction, and control of the Under Secretary of Defense for Personnel and Readiness, shall establish procedures comparable to those in Enclosure 2 for applicability to non- DoD health care providers in the context of mental health care services provided to servicemembers under the
While it is unclear whether this provision constitutes a proactive effort to close an obvious gap in uniform access to Soldiers' mental health care PHI inside and outside the catchment area, or a response to the alarming number of military suicides,82 it is arguably the most far-reaching action the DoD has directed to date relating to the privacy of Soldiers' PHI within and across the MHS.
E. Regulatory and Policy Goals
While the penultimate goal of the statutory, regulatory, and policy scheme governing the privacy of Soldiers' PHI is balance, the ultimate objective is national security.83 In implementing these regulations, both DHHS and DoD recognized the national security interest in providing commanders access to "needed medical information held by covered entities so that they can make appropriate determinations regarding . . . [their Soldiers'] medical fitness or suitability for military service"84 to achieve and maintain the overall health of the force. Given the importance of this national security objective, the DHHS rightfully made no distinction between military command authorities inside and outside the catchment area in promulgating the Military Command Exception. Unfortunately, as DHHS and DoD began to implement the Military Command Exception within and across the MHS, the problems inherent in the DHHS choice of discretionary, as opposed to compulsory language in the Military Command Exception began to surface, and the disparate and adverse impact on the MHS became apparent to Military Command Authorities outside the catchment area.
While recognizing the military imperative for commanders to access their Soldiers' PHI to achieve medical readiness and maintain national security, DHHS unfortunately stripped commanders outside the catchment area of the means necessary to accomplish this end by making the Military Command Exception discretionary, not mandatory. In doing so, DHHS thwarted the fundamental objective of the Military Command Exception-to allow commanders much needed access to their Soldiers' PHI in order to achieve and maintain national security.
III. The Problem: The Current Regulatory Framework Creates a Disparity in Commanders' Access to Soldiers' PHI
Despite the discretionary language of the Military Command Exception and DoD 6025.18-R,
On the other hand, there is no comparable regulatory or contractual mechanism outside the catchment area to compel CHPs to comply with the Military Command Exception. Consequently, while military command authorities within the catchment area are able to rely on
A. Examination of the Problem in the
The inability of RC commanders in the AR to obtain unrestricted access to their active duty Soldiers' PHI outside the catchment area has impaired their ability to fulfill their regulatory responsibilities under AR 40-501 and ensure their active duty Soldiers are medically fit for duty and deployment. An examination of this problem as it relates to AGR medical readiness in the AR illustrates this fact.88
1. The Regulatory Framework for Medical Readiness in the AR
As in the AD, medical readiness in the AR is a shared responsibility between commanders and Soldiers.89 Army Regulation 40-501 requires AR commanders to ensure AGR Soldiers assigned to their units "complete all medical readiness requirements"90 and ensure their Soldiers' medical status is "properly documented . . . and . . . [that] the appropriate follow-up action is taken in regards to . . . [their] medical or readiness status."91 Like their AD counterparts, AR commanders have a right and responsibility to collect, review, and continually monitor AGR Soldiers' PHI to determine their duty restrictions; whether they are taking medications that may adversely affect or limit their duty performance; current immunization status; the need for, and the basis of, temporary or permanent profiles; and their Soldiers' general fitness for duty.92 Conversely, AR 40-501 requires AGR Soldiers to maintain their medical and dental readiness by "seek[ing] timely medical advice whenever they have reason to believe that a medical condition or physical defect affects, or is likely to affect, their physical or mental well-being, or readiness status."93 In addition, AGR Soldiers are required to "seek medical care and report such medical care to their unit commanders94. . . [and] provide[] . . . commander[s with] all medical documentation, including civilian health records, and complete[] . . . annual physical health assessment[s]."95 The regulation requires AGR Soldiers to provide AR commanders with their PHI and to regularly supplement this documentation.96
2. Problems with Regulatory Compliance
Unfortunately, a number of factors unique to the AR have made it difficult for AR commanders to fully comply with and enforce the requirements of AR 40-501 by actively collecting and reviewing their AGR Soldiers' PHI. First, AR 40-501 fails to fully account for the unique structure and composition of the RC and adequately address the unique challenges RC commanders face in enforcing the Regulation's medical readiness requirements outside the catchment area. For example, while AR 40-501 requires "civilian health records documenting a change which may impact . . . readiness status [to be collected] and placed in the . . . Soldier's military health record[s],"97 the regulation contains no discussion of the means, methods, and regulatory and practical obstacles to enforcing compliance with this provision outside the catchment area. Second, because the AR is a part-time force, it must spend most of its limited training time preparing for its primary support mission. Consequently, AR commanders and their Soldiers have had to prioritize their training objectives based upon the limited number of hours and duty days they have each year to train, and this has leftthem inadequate time to devote the necessary level of focus and attention on fulfilling their joint responsibilities under AR 40-501.98 Finally, even when AR commanders have found the time to familiarize themselves with their rights and responsibilities under AR 40-501, as a part-time force, they typically do not have the staffand funds necessary to actively enforce AR 40-501's medical readiness requirements to ensure their AGR Soldiers provide military command authorities with initial copies of their PHI and regularly supplement these records each and every time they see CHPs.99
3. Resistance from Medically Non-Compliant AGRs
In addition to the above factors, a disproportionate and unacceptably high number of AGR Soldiers have exploited their AR commanders' inability to obtain unrestricted access to their PHI outside the catchment area by failing and refusing to provide military command authorities with initial and ongoing access to their civilian PHI.100 Moreover, the ongoing problem of medically non-deployable101 AGRs has been significantly exacerbated by medically non-compliant AGR Soldiers, i.e., AGR Soldiers who "regularly and consistently"102 willfully fail to cooperate with their commanders' efforts to obtain access to their PHI in accordance with AR 40-501.103 While the number of medically non-deployable and medically non-compliant AGR Soldiers may seem small in comparison to total AR end strength,104 it is highly significant when considering the disproportionate impact AGR Soldiers have on the AR since they are the AR commander's principal full-time active duty force in charge of managing the day-to-day operations of the AR unit.105
4. Frustration with Current Enforcement Tools
5. CHPs' Resistance to, and Disregard of, the Military Command Exception
In response, AR commanders have attempted to circumvent medically non-compliant AGR Soldiers by contacting CHPs and requesting CHPs provide them with unrestricted access to their Soldiers' PHI and discuss their Soldiers' physical and mental conditions directly.109 Unfortunately, AR commanders and their medical and legal staffs have routinely found CHPs to be resistant to the Military Command Exception.110 Civilian health care providers are usually unfamiliar with the Military Command Exception, and when they learn of it, many of them are uncomfortable complying with it.111 Consequently, CHPs have routinely declined to honor the Military Command Exception outside the catchment area based on an overabundance of caution for fear of violating HIPAA's Privacy Rule and concerns about potentially garnering a professional responsibility complaint.112 This, in turn, has exacerbated the inability of AR commanders to effectively deal with the problem of medically non-compliant AGRs.113
6. Adverse Impact on AR and AD Medical Readiness
The inability of AR commanders to adequately fulfill their regulatory responsibilities under AR 40-501 as it relates to medically non-compliant AGRs has negatively impacted overall AR medical readiness.114 This is because AGR Soldiers are the military backbone of the AR115 and, a fortiori, problems with AGR medical readiness directly impact the entire AR and the Reserve Component. According to Major
B. Broader Implications
The inability of commanders outside the catchment area to obtain unrestricted access to Soldiers' PHI is not limited to the RC. Active Duty commanders outside the catchment area face the same obstacle. At present, there are approximately 11,528 AD Soldiers enrolled in TPR outside the catchment area.123 While this number is less than the RC, the need for AD commanders to obtain unrestricted access to their Soldiers' PHI to achieve and maintain medical readiness is no less important outside the catchment area than it is inside the catchment area.
In implicit recognition of this fact, the DoD directed the TMA,125 under the authority of the USD(P&R), to direct CHPs to disclose Soldiers' mental health care PHI to military command authorities outside the catchment area under the same circumstances DoD mental health care providers are required to do under DoDI 6490.08.126 According to
IV. The Solution: Regulatory Revision and Contractual Mandate
There are two potential ways for the DHA to comply with the USD(P&R)'s directive and eliminate the gap in commanders' access to Soldiers' PHI outside the catchment
area: (1) change the discretionary language of Military Command Exception in the Privacy Rule to mandate CHPs honor the Military Command Exception and provide military command authorities with unrestricted access to Soldiers' PHI; and/or
(2) change the
A. Arguments for Mandating Unrestricted Access to Soldiers' PHI Outside the Catchment Area
1. The Current Regulatory Framework is Illogical and Counterintuitive
The DHHS's decision to make the Military Command Exception discretionary is illogical and counterintuitive. While recognizing the importance of creating an exception to the Privacy Rule to ensure military command authorities have access to their Soldiers' PHI to achieve and maintain medical readiness, the DHHS thwarted this objective by allowing CHPs to disregard the Military Command Exception at will. Consequently, as written, the Military Command Exception undermines its ostensible goal of ensuring military command authorities can access their Soldiers' PHI to accomplish their military mission and maintain national security. Rather than providing military command authorities outside the catchment area with a right to access this information, the Military Command Exception merely gives military command authorities the right to hope CHPs will provide them access to this information. In this way, the Military Command Exception gives military command authorities a right without a remedy.
By withholding the means necessary for military command authorities outside the catchment to ensure they can achieve and maintain medical readiness by gaining access to their Soldiers' PHI when active duty Soldiers fail or refuse to provide ready access to these records, as written, the Military Command Exception impairs, rather than advances, the ultimate goal of national security.128 If it is a national security imperative that military command authorities within the catchment be provided unrestricted access to their Soldiers' PHI, then it is just as critical to national security that military command authorities outside the catchment area be given that same level of access. With that in mind, it is completely illogical to allow geographic location, as opposed to legitimate need, to determine whether military command authorities are provided unrestricted access to their Soldiers' PHI.
2. The Current Regulatory Framework Lacks Essential Uniformity
The current bifurcated regulatory system lacks the uniformity necessary and essential for an efficient and effective national MHS. Uniformity imbues the MHS with the consistency, stability, predictability, and efficiency it needs to ensure military command authorities can achieve and maintain medical readiness in order to accomplish their military missions and maintain national security. Military command authorities need to be able to rely on clear, unambiguous, uniform, and consistent standards when it comes to fulfilling their responsibilities under AR 40-501 and ensuring they have a medically ready force.
As written, the Military Command Exception is disuniform and injects an unnecessary and unacceptable degree of inconsistency and uncertainty into the MHS. This reasoning is supported by the findings of a recent RAND study on medical readiness in the RC, which found that "inconsistencies in procedures for obtaining medical readiness compliance"129 were impediments to military medical readiness. By placing obstacles to medical readiness in the path of commanders outside the catchment area by denying them the ability to rely on uniform, standardized, medical readiness compliance procedures to achieve and maintain Soldiers' medical readiness, policymakers are unfairly impairing commanders' ability to fulfill their regulatory-mandated military medical readiness mission. In light of the solutions available to remedy this problem, this is not only unnecessary, it is unacceptable.
3. The Current Regulatory Framework Is Vulnerable to Abuse by Medically Non-Compliant Soldiers
As demonstrated by problems with AGR medical readiness in the AR,130 medically non-compliant active duty Soldiers stationed outside the catchment area can, and routinely do, exploit the inability of military command authorities to obtain unrestricted access to their PHI. The absence of a regulatory or contractual mechanism to allow military command authorities to effectively counter this problem by going directly to CHPs and obtaining unrestricted access to their Soldiers' PHI places medically non-compliant Soldiers, rather than commanders, at the helm of the medical readiness compliance procedures outside the catchment area. It gives medically non-compliant Soldiers- many of whom have a disincentive to cooperate with their commanders by providing their PHI to military command authorities when facing medical separation or other adverse administrative action-the ability to control the pace and speed at which military command authorities and the MHS are able to access Soldiers' PHI, evaluate their mental and physical conditions, ensure their continued fitness for duty, get them necessary mental health care services if and when needed, and reassign and/or medically separate them if and as necessary.
The DoD does not allow Soldiers within the catchment area to exert this type and degree of control over the medical readiness compliance process, and it should not allow Soldiers outside the catchment area to do so either Doing so allows medically non-compliant Soldiers outside the catchment the ability to weaken the MHS in a way that is unacceptable.
4. The Current Regulatory Framework Allows CHPs to Disregard the Military Command Exception to the Detriment of RC Medical Readiness and National Security
The current regulatory framework also gives CHPs outside the catchment area the ability to exert an unacceptable degree of influence over the military medical readiness compliance process to the detriment of RC medical readiness. As experience in the AR has demonstrated, CHPs can, and routinely do, decline to honor the Military Command Exception.131 This has impaired the ability of RC commanders to fully comply with AR 40-501 and hampered the AR's efforts to meet its medical readiness goals.132 Even in those instances where CHPs do honor the Military Command Exception, the Privacy Rule's Minimally Necessary Rule133 still gives CHPs outside the catchment area a de facto veto power over commanders' ability to review a Soldiers' PHI by giving CHPs the ability to secondguess commanders and limit their access to the information CHPs-not commanders-deem relevant to Soldiers' military duties. While this level of influence may be acceptable within the catchment area when exercised by DoD health care providers who are familiar with the military and its culture, the wisdom of leaving this authority in the hands of CHPs is highly questionable.
B. Arguments Against Mandating Unrestricted Access to Soldiers' PHI Outside the Catchment Area
1. The DHHS Does Not Possess the Constitutional Authority to Mandate CHPs Comply with the Military Command Exception Outside the Catchment Area
While neither DHHS' commentary to the Military Command Exception nor DoD public comments to the proposed Privacy Rule discuss the issue, the argument that the DHHS lacks the constitutional authority to mandate CHPs comply with the Military Command Exception outside the catchment area is a legitimate concern. It is an issue that at least one senior attorney in the MHS who played a significant role in the regulatory process of drafting and implementing the Military Command Exception believes is a potential impediment to changing the Military Command Exception.135 However, both case law and existing regulatory language in the Privacy Rule support the argument that DHHS has the constitutional and regulatory authority to compel CHPs to comply with the Military Command Exception outside the catchment area under the Commerce Clause.136
a. Case Law
In
Dismissing the plaintiffs' contention that HIPAA only allowed the DHHS to promulgate regulations under the Privacy Rule that enhanced, not reduced, a patient's privacy, the court affirmed the principle that as long as a regulation is reasonably related to a legitimate exercise of validly delegated legislative authority, it will withstand constitutional challenge. In doing so, the court stated that "[a]lthough HIPAA also required the Secretary to protect the privacy of health information, the court finds nothing . . . requiring the Secretary to maximize privacy interests over efficiency interests."142 Based on this reasoning, the court upheld the DHHS's action in authorizing the release of PHI without patient consent as constitutionally permissible because the DHHS's actions were reasonably related to HIPAA's purpose of improving the efficiency and effectiveness of the healthcare system. Read together, the holdings in
b. Existing Regulatory Authority
The Privacy Rule already grants the DHHS the ability to compel disclosure of an individual's PHI in the context of mandatory compliance reviews,143 and the DHHS's right to do so in that context has not been successfully challenged on constitutional grounds. Consequently, allowing the DHHS to compel disclosure of individual PHI under a second set of circumstances-albeit for the different, but similarly legitimate reason of advancing HIPAA's goal of maximizing the efficiency and effectiveness of the healthcare system- would simply be a logical and legitimate extension of the DHHS's current regulatory authority to compel disclosure of PHI under HIPAA if, when, and where warranted to accomplish HIPAA's ends.
2.
A second argument against mandating compliance with the Military Command Exception outside the catchment area is that DoD lacks the regulatory authority to impose a contractual mandate on CHPs absent specific congressional authorization or the DHHS's affirmative amendment of the Military Command Exception. A review of existing federal statutes and regulations granting DoD authority to promulgate rules, regulations, and contractual provisions governing the provision of military health care to Soldiers, however, belies this argument. The statutory basis for the DoD's authority to impose a contractual mandate on CHPs to comply with the Military Command Exception as a precondition to joining the
The DHA falls under the USD(P&R)147 and operates under the authority, direction, and control of the Assistant Secretary of Defense for Health Affairs (ASD(HA)).148 Since the DHA assumed the TMA's functions on
This regulatory mandate includes the authority to enter into and establish the terms and conditions of agreements with CHPs to become network providers153 through
3. Imposing a Regulatory Mandate or Contractual Precondition Would Erode the Quality of Health Care in the MHS by Reducing the Number of CHPs
A third argument against mandating compliance with the Military Command Exception outside the catchment area is that it would discourage CHPs from becoming
Second, it would encourage rather than discourage CHPs from providing health care services to Soldiers outside the catchment area because it would give CHPs the confidence they need to comply with the Military Command Exception without undue fear of violating HIPAA's Privacy Rule or subjecting themselves to an unwarranted, frivolous lawsuit or charge of breach of confidentiality and professional ethics. According to AR physician Dr. (Lieutenant Colonel) (LTC) Bedemi Alaniyi-Leyimu and Dr. (LTC) (Promotable)
Third, assuming arguendo that some CHPs might decline to become
V. Implementing Change
To fully understand how either or both of these proposed solutions could be implemented, it is helpful to provide an overview of the structure of the DoD's Health Program and the principal authorities, officials, agencies, programs, and processes within the MHS that would play a role in implementing these changes.
A. The DoD Authorities, Principals, Agencies, Programs, and Processes
Chapter 55 of Title 10 of the U.S. Code 160 and 32 C.F.R. parts 199.1-199.26161 provide the authority for DHHS and DoD to jointly proscribe regulations for the administration of the MHS.
The DHA has assumed TMA's responsibilities for supervising and administering all
The regulations establishes four primary categories of CHPs. First, as an initial matter, all CHPs who provide health care to Soldiers outside the catchment area must be
Second, network CHPs are
Importantly,
With this framework in mind, the following steps would be the most effective and efficient way to implement the proposed regulatory and contractual solutions to the problem of disparate command access to Soldiers' PHI within and across the MHS.
B. Changing the Language of the Military Command Exception to the Privacy Rule
First, ASD(HA) should conduct a formal study to document the nature and extent of the problem of CHPs' non-compliance with the Military Command Exception within and across the MHS. Second, assuming the study confirms the problem is extant, pervasive, and imposes an ongoing impediment to medical readiness and national security, ASD(HA) should drafta proposed amendment to the Military Command Exception and staffthe proposal through the USD(P&R) to the SECDEF. The following additional language would accomplish this goal:
A covered entity (including a covered entity not part of or affiliated with the
In conjunction with this change, the DHHS should amend the Privacy Rule's SOF authorization provision184 to reflect the fact that Soldiers' SOF authorizations are no longer required to release Soldiers' PHI to military command authorities.
Consistent with their authority to prescribe joint regulations for the administration of the MHS, the DoD should work closely with the DHHS in drafting these proposed changes to facilitate the DHHS's ultimate approval of this language. Once the proposed regulatory amendment to the Military Command Exception has been staffed through the DoD, the SECDEF should submit a formal request to change the Military Command Exception to the Secretary of the DHHS. The DHHS should then staffthis proposed change to the Military Command Exception and publish it for public comment in the
C. Imposing a Contractual Mandate on CHPs Through TRICARE
Title 10 of the U.S. Code provides the SECDEF with the authority to enter into contracts with CHPs for the provision of health care outside the catchment area.187 Pursuant to this authority, implementing
To impose a contractual mandate on
Next, TMA should amend its TPM, Chapter 11, section 12.3, paragraph 2.0, entitled "Participation Agreement Requirements,"193 which lists the basic contractual provisions that must be included in
Lastly, to ensure
VI. Conclusion
Revisit the scenario of the medically non-compliant active duty Soldier in the introduction. This time, the Military Command Exception is compulsory for CHPs outside the catchment area as the result of the DHHS's amendment of the Military Command Exception and/or DoD's imposition of a
This scenario demonstrates what most commanders who have faced this problem outside the catchment area already know: the benefits from remedying the existing problem of disparate command access to Soldier's PHI within and across the MHS clearly outweigh the potential adverse consequences from maintaining the current counterintuitive and counterproductive status quo. It is now time for the DHHS and DoD to reach this same conclusion and close the gap in the current bifurcated system of disparate command access to Soldiers' PHI by mandating CHPs comply with the Military Command Exception.
1 All Army Activities Message, 282049Z
2 The
3 U.S. DEP'T OF ARMY, REG. 140-1, ARMY RESERVE MISSION, ORGANIZATION, AND TRAINING app. A, at 94 (
4 U.S. DEP'T OF ARMY, REG. 135-18, THE ACTIVE GUARD RESERVE (AGR) PROGRAM glossary, at 24 (
5 Battle assembly was historically known as drill. It is now the current term used to describe the AR weekend training assembly. See
6 For purposes of this article, civilian health care providers (CHPs) refer to the following persons/entities: (1) all licensed civilian medical doctors, including those who specialize in family medicine, internal medicine, general and specialized surgery, podiatry, anesthesiology, otolaryngology, neurology, pain management, and all other areas of physical specialization; (2) all licensed mental health care professionals to include psychologists, psychiatrists, therapists, and counselors; (3) all licensed physicians' assistants, registered nurses (emergency, operating, general, etc.), radiologists, physical therapists, pharmacists and laboratory technicians; (4) all civilian hospitals, medical clinics, and pharmacies; and (5) all dentists and dental assistants.
7 U.S. Dep't of Def., DD Form 2870, Authorization for Disclosure of Medical or Dental Information (
8 The term protected health information (PHI) is used throughout the article to refer to both civilian and military electronic and paper PHI See the definition provided in the Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. § 160.103 (2012). The Privacy Rule defines PHI as "health information," which includes "individually protected health information," that lists or describes an individual's past, present, and future mental and physical diagnosis, medication and treatment history and plan, demographic information, and any other information that provides a reasonable basis to identify an individual. Id. § 160.103.9 Although a reasonable reading of both U.S. DEP'T OF ARMY, REG. 40- 501, STANDARDS OF FITNESS (
10 Under current federal regulation, Soldiers are entitled to revoke civilian medical release forms at any time, for any reason, provided the revocation is in writing. Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. § 164.508(b)(5) (2012); see U.S. DEP'T OF HEALTH & HUMAN SERVS., Frequently Asked Questions, Authorization Use and Disclosure, http://www.hhs.gov/ocr/privacy/hipaa/faq/authorizations/474. html.
11 For purposes of this article, "DoD health care providers" refer to the following persons/entities: all DoD military physicians, physical therapists, physicians' assistants, dentists, dental assistants, pharmacies, nurses, laboratory and radiological technicians, and their supporting medical and dental staffs that provide or assist in providing physical or mental or dental health care services to members of the Armed Forces and/or their families within fifty miles of a medical treatment facility (MTF) or military medical or dental facility. It also includes all federal civilian employees or contract employees who work for the federal government on a full- or part-time basis and who provide physical, mental, or dental health care services to members of the Armed Forces and/or their families within fifty miles of an MTF or military or civilian medical or dental facility. It does not include civilian health care providers or their assistants, staffs, hospitals, clinics, and pharmacies that provide medical, mental, or dental services to active duty servicemembers and/or their family members more than fifty miles from a MTF or military medical or dental facility and who are neither federal civilian employees nor full- or part-time federal health care contractors.
12 Health Insurance Portability and Accountability Act, Pub. L. No. 104- 191, 110
13 Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. §§ 160, 164 (2012). The entire group of HIPAA PHI Privacy Regulations is collectively known as "the Privacy Rule." U.S. DEP'T OF HEALTH & HUMAN SERVS., OFFICE OF CIVIL RIGHTS, SUMMARY OF THE HIPAA PRIVACY RULE (2003) [hereinafter the DHHS PRIVACY RULE SUMMARY], available at http://www.hhs.gov/ocr/privacy/hipaa/under standing/summary/privacysummary.pdf.
14 45 C.F.R § 164.512 (k)(1)(i) (2012) (Standard: Uses and Disclosure for Specialized Government Functions-Military and Veterans Activities- Armed Forces Personnel).
15 Although the Privacy Rule uses the term "appropriate military command authorities," it does not define the term. Id. § 164.512(k)(1)(i) (emphasis added). The DoD defines the term as follows: "All Commanders who exercise authority over an individual who is a member of the Armed Forces, or other person designated by such a commander to receive protected health information in order to carry out an activity under the authority of the Commander." U.S. DEP'T OF DEF., REG. 6025.18-R, DOD HEALTH INFORMATION PRIVACY REGULATION para. C7.11.1.2.1 (
16 The TOM appendix defines the catchment area as those "[g]eographic areas determined by the Assistant Secretary of Defense (Health Affairs) (ASD(HA)) that are defined by a set of five digit zip codes, usually within an approximate 40 mile radius of military inpatient treatment facility." TOM, supra note 9, app. B, at 8. However, the TRICARE Prime Remote (TPR) eligibility provisions of the TOM state that for AD Soldiers to receive health care benefits under TPR, they must have "a permanent duty assignment [and reside at a location] that is greater than 50 miles . . . or approximately [a] one-hour drive from a military medical treatment facility (MTF) or military clinic . . . . " Id. ch. 17, sec. 1, para. 2.2.1-2.2.2.
17 The term "unrestricted" is not synonymous with "unfettered." The VCSA Sends Message recognizes two levels of access to Soldiers' PHI- unrestricted and "excluded" (the author's term-not used in the VCSA Sends Message). VCSA Sends Message, supra note 1, para. 4; see discussion infra Part II.D and accompanying notes.
18
19 45 C.F.R § 164.512(k)(1)(i) (2012).
20 This policy is embodied in a combination of three documents: (1) the VCSA Sends Message, supra note 1; (2) MEDCOM PHI Policy Memorandum 12-062, supra note 15; and (3) U.S. DEP'T OF DEF., INSTR. 6490.08, COMMAND NOTIFICATION REQUIREMENTS TO DISPEL STIGMA IN PROVIDING MENTAL HEALTH CARE SERVICE TO SERVICE MEMBERS (
21 See discussion infra Part III.A.5 and accompanying notes.
22 E-mail from
23 E-mail from
24 Elliott e-mail, supra note 2.
25 Griffin e-mail, supra note 23.
26 AR 40-501, supra note 9; see discussion infra Part III.A.2 and accompanying notes.
27 E-mail from
28
29 DODI 6940.08, supra note 20.
30 The USD(P&R) is the principal staffassistant and advisor to the Secretary of Defense for Health Affairs and develops policies, plans, and programs for health and medical affairs to provide and maintain medical readiness. U.S. DEP'T OF DEF., DIR. 5124.02, UNDER SECRETARY OF DEFENSE FOR PERSONNEL AND READINESS (USD(P&R)) (
31 The TRICARE Management Activity (TMA) was originally established by DoDD on
32 DODI 6490.08, supra note 20, para. 4b; see infra notes 77-79 and accompanying text (listing the nine circumstances for disclosure).
33 E-mail from
34 As used in this article, the term "medically non-compliant" refers to Soldiers who intentionally or negligently fail to cooperate in providing full and complete access to PHI to military command authorities. Medical noncompliance includes failure to provide copies of PHI relating to medical readiness, duty status, deployability, and mission capability to military command authorities; failure to execute medical release forms in favor of military command authorities when necessary to determine a Soldier's medical readiness, mission capability, deployability or duty status; and initially providing military command authorities with access to relevant portions of PHI, but subsequently intentionally or negligently impairing, impeding, delaying, or obstructing supplemental access to this information.
35 HIPAA, supra note 12. For an overview of the relevant portions of HIPAA related to PHI and additional guidance regarding HIPAA's application within the DoD and the
36 Pursuant to its mandate, the DHHS promulgated a comprehensive set of regulatory standards addressing three primary issues: (1) the privacy rights each individual should have in PHI; (2) the procedures for exercising these privacy rights; and (3) "the uses and disclosures of such information that should be authorized or required." Standards for Privacy of Individual Health Information; Final Rule, 67 Fed. Reg. 53,182 (
37 Stephen K. Phillips, A Legal Research Guide to HIPAA, 3 J. HEALTH & LIFE SCI. L. 134, 144 (2010).
38 HIPAA Administrative Simplification, 45 C.F.R. §§ 160, 162, 164 (2012).
39 45 C.F.R. §§ 164.302-164.318 (2012); see OFFICE OF CIVIL RIGHTS, U.S. DEP'T OF HEALTH & HUMAN SERVS., HEALTH INFORMATION PRIVACY, The Security Rule, available at http://www.hhs.gov/ocr/privacy/ hipaa/administrative/securityrule/ (last visited
40 45 C.F.R. §§ 164, 162 (2012); DHHS PRIVACY RULE SUMMARY, supra note 13, at 1.
41 DHHS PRIVACY RULE SUMMARY, supra note 13, at 1.
42 See supra note 8 (defining PHI).
43 DHHS PRIVACY RULE SUMMARY, supra note 13, at 1.
44 Id. The Privacy Rule applies to covered entities, i.e., health plans, healthcare clearinghouses and health care providers "who transmit any health information in electronic form in connection with a transaction covered by this subchapter . . . ." 45 C.F.R. § 160.103 (2012).
45 The Privacy Rule authorizes disclosure of individual PHI under four circumstances: (1) When mandated by the Privacy Rule. Disclosure is mandated when an individual or their personal representative requests access to their own PHI or an accounting of PHI disclosure to another person or entity, and when the DHHS conducts a compliance investigation to determine whether a covered entity complied with the Privacy Rule. (2) Pursuant to an identified exception and individual authorization and the opportunity to agree or object is not required. Disclosure is permitted, but not required, without an individual's authorization and opportunity to agree or object pursuant to one of the twelve "national priority purposes" (exceptions) listed in the Privacy Rule. Id. § 164.502(a)(2)(i)-(ii); DHHS PRIVACY RULE SUMMARY, supra note 13, at 6; see infra note 49 and accompanying text. (3) When permitted pursuant to an exception and the individual is provided the right to consent, acquiesce, or object. A covered entity must obtain a person's written authorization to disclose PHI for any purpose other than "treatment, payment or health care operations otherwise permitted or required by the Privacy Rule," such as, before disclosing psychotherapy notes. Id. at 6, 9; 45 C.F.R. §§ 164.508, 164.512(i)(A) (2012). The rule relating to the disclosure of psychotherapy notes is subject to eight exceptions, one of which is to "prevent or lessen a serious and imminent threat to the health or safety of a person or the public." Id. (4) When permitted, but only with authorization. DHHS PRIVACY RULE SUMMARY, supra note 13, at 9. A covered entity must maintain a patient's written authorization on file to disclose PHI pursuant to the Privacy Rule's authorization provision, and the patient maintains the right to revoke their authorization at any time. 45 C.F.R § 164.508, 164.508(b)(5) (2012).
46 45 C.F.R §§ 164.502(b), 164.514(d).
47 Id. § 164.502(b)(1).
48 Id.
49 U.S. DEP'T OF HEALTH & HUMAN SERVS., OFFICE OF CIVIL RIGHTS, HEALTH INFORMATION PRIVACY: Health Information Privacy, Minimum Necessary Requirements, http://www.hhs.gov/ocr/privacy/hipaa/under standing/coveredentities/minimumnecessary.html (last visited
50 The twelve exceptions are: when required by law; for public health activities; for health oversight activities; for judicial and administrative proceedings; for law enforcement purposes; for decedents (funeral directors, coroners, or medical examiners); for cadaveric organ, eye, or tissue donations; for research purposes; regarding victims of abuse, neglect, or domestic violence; to avert serious threat to health or safety; regarding workers' compensation (or similar) laws; and for specialized (essential) government functions, including military, intelligence and national security functions. DHHS PRIVACY RULE SUMMARY, supra note 13, at 6.
51 45 C.F.R. § 164.512(k)(1)(i). These functions include "assuring proper execution of a military mission, conducting intelligence and national security activities that are authorized by law, providing protective services to the President, [and] making medical suitability determinations for
52 Information Paper, TMA Privacy and Civil Liberties Office, Military Command Exception and Disclosing PHI of Armed Forces Personnel (
53 The DHHS's commentary succinctly articulates the MCE's national security rationale.
This provision's primary intent is to ensure that proper military command authorities can obtain needed medical information held by covered entities so that they can make appropriate determinations regarding the individual's medical fitness or suitability for military service . . . . Such actions are necessary in order for the Armed Forces to have medically qualified personnel, ready to perform assigned duties. Medically unqualified personnel not only jeopardize the possible success of a mission, but also pose an unacceptable risk or danger to others. We have allowed such uses and disclosures for military activities because it is in the Nation's interest.
Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82,462, 82,705 (
54 DODD 6025. 18-R, supra note 15.
55 Id. para. C7.11.1.1.
56 Id. para. C7.11.1.3.1; see, e.g., U.S. DEP'T OF DEF., DIR. 1308.1, DOD PHYSICAL FITNESS AND BODY FAT PROGRAM (
57 DODD 6025. 18-R, supra note 15, para. C7.11.1.3.2.
58 Id. para. C7.11.1.3.3.
59 Id. para. C7.11.1.3.4.
60 Id. para. C7.11.1.3.5.
61 AR 40-66, supra note 15.
62 Id. para. 2-4a(1).
63 Id. para. 2-4a(1)(a)1-19. Some of the grounds for disclosure include "to coordinate sick call, routine and emergency care, quarters, hospitalization, and care from civilian providers . . . , " as well as to "report the results of physical examinations and profiling according to AR 40-501," line of duty investigations, accident investigations, the Army Weight Control Program, the Family Advocacy Program, the identification and surveillance of HIV, MEB/PEBs, to conduct "Soldier Readiness Program and mobilization processing requirements according to AR 600-8-101," and when a Soldier is taking medications that "could impair the Soldier's duty performance." Id.
64 Id. para. 2-4a(2), 2-4a(2)(a).
65 VCSA Sends Message, supra note 1.
66 Id. para. 1.
67 Id.
68 Id. para. 5.
69 Id. para. 7A.
70 Id. paras. 3-4; see supra note 17 (concerning the author's use of the term "excluded").
71 Id. para. 3.
72 Id. paras. 3A-3G.
73 Id.
74 Id. paras. 4A-4C.
75 Id. para. 4B.
76 Id. para. 4C.
77 DODI 6490.08, supra note 20.
78 Id. para. 3b.
79 The eight exceptions are: (1) pursuant to a command-directed mental health evaluation; (2) when a provider believes a Soldier poses a serious risk of harm to himself; or (3) a serious risk of harm to others; or (4) a serious risk of harm to a specific military mission; (5) the Soldier is admitted or discharged from any inpatient mental health or substance abuse treatment facility; (6) the Soldier has an acute mental health condition or is undergoing an acute mental health care treatment regimen that impairs his ability to perform his duties; (7) the Soldier has entered into a formal outpatient or inpatient treatment program for the treatment of substance abuse or dependence; (8) the Soldier is in the Personnel Reliability Program or has been identified as having responsibilities so sensitive or critical that such notification is necessitated. Memorandum from
80 DODI 6490.08, supra note 20, encl. 2, para. 1b(1)(2).
81 Id. para. 4b (emphasis added); see supra note 31 (discussing the disestablishment of the TMA and DHA's assumption of TMA's functions and responsibilities).
82 See
83 General
84 DHHS Commentary on the Public Comments to the Privacy Rule, supra note 53, at 82,705.
85 VCSA Sends Message, supra note 1;
86 DODI 6490.08, supra note 20, encl. 2, para. c1; see supra notes 77-79 and accompanying text (listing the nine circumstances warranting disclosure).
87 Although RC military command authorities can try to circumvent this problem by ordering Soldiers to provide them with copies of their PHI and/or execute civilian medical release forms in their favor, as discussed above, supra note 9, these orders can be contested. According to AR physician Dr. (Lieutenant Colonel) (LTC) Bedemi Alaniyi-Leyimu, RC military command authorities routinely encounter problems getting medically non-compliant AGR Soldiers to comply with their orders to provide full and complete initial and supplemental access to their PHI outside the catchment area. Lieutenant Colonel Alaniyi-Leyimu has routinely seen AR and AD Soldiers impair and impede commanders' full and complete access to their PHI when undergoing medical or administrative separation board processing in order to extend their military service as long as possible and stave offpotential separation, or when feigning illness. Lieutenant Colonel Alaniyi-Leyimu has served as an AD DoD military health care provider at
88 While AR 40-501's medical readiness requirements apply to all Soldiers in the AR, including AD Soldiers assigned or attached to multicomponent units, this article focuses on the problem as it relates to AGRs since they are the AR's principle full-time military support. Knapp e-mail, supra note 22, at 6.
89 See Memorandum from Assistant Sec'y of Def,. to Sec'ys of the Military Dep'ts et al., subject: Policy Guidance for Deployment-Limiting Psychiatric Conditions and Medications, attach. 1, para. 3 (7 Nov. 2006).
90 AR 40-501, supra note 9, para. 8-3c.
91 Id. para. 8-3b.
92 See id. at i (noting the regulation's applicability to both the AD and AR), para. 8-3b, c.
93 Id. para. 8-3a.
94 Id.
95 Id. para. 9-3b.
96 Id. paras. 8-3 and 9-3.
97 Id. para. 9-3b.
98 Alaniyi-Leyimu Telephone Interview, supra note 87; Butts Telephone Interview, supra note 87.
99 Alaniyi-Leyimu Telephone Interview, supra note 87; Butts Telephone Interview, supra note 87. Battalion and brigade headquarters typically only have one to ten full-time civilian and/or military personnel, depending on the level of command, to carry out the day-to-day operational and administrative functions for the entire unit. Professional Experience, supra note 87.
100 Telephone interviews with Major
101 See discussion, infra, Part III.A. 6 (regarding non-deployable AGRs).
102 Delk Telephone Interviews, supra note 100; see discussion supra note 34 (concerning the author's definition of medical non-compliance in the context of the release of Soldiers' PHI). While the AR has routinely compiled statistics on the number of medically non-deployable AGRs each year (see discussion infra Part III.A.6), the author's research disclosed no analogous AR statistics documenting the number of medically noncompliant AGRs, i.e., Soldiers who intentionally or negligently fail to cooperate with medical command authorities in providing full and complete access to their PHI outside the catchment area. While anecdotal evidence from discussions with AGR JAG officers suggests the problem is pervasive and ongoing, the absence of easily accessible/widely available statistics concerning the number of medically non-compliant AGR Soldiers in the AR is, in this author's opinion, attributable largely to the fact that AR units typically do not capture these metrics, and if they do, they are usually compiled under the rubric of medical non-deployability (for whatever reason), and/or adverse administrative and/or non-judicial action. Professional Experience, supra note 87.
103 Delk Telephone Interviews, supra note 100; Professional Experience, supra note 87.
104 As of 2013,
pdf.
105
The . . . AGR . . . program . . . provides the bulk of full-time support at the unit level. They provide dayto- day operational support needed to ensure
CHIEF, ARMY RESERVE AND COMMANDING GEN., USARC AND COMMAND SERGEANT MAJOR, USARC, THE
106 Alaniyi-Leyimu Telephone Interview, supra note 87; Butts Telephone Interview, supra note 87; Professional Experience, supra note 87.
107 Professional Experience, supra note 87.
108 Alaniyi-Leyimu Telephone Interview, supra note 87; Butts Telephone Interview, supra note 87. As discussed earlier, the contestability of these orders is another reason some AR commanders have chosen not to fight medically non-compliant AGR Soldiers for direct access to their civilian PHI. Professional Experience, supra note 87; see also supra note 9 (discussing the legality of an order to provide direct access to civilian PHI).
109 Alaniyi-Leyimu Telephone Interview, supra note 87; Butts Telephone Interview, supra note 87; Professional Experience, supra note 87.
110 Alaniyi-Leyimu Telephone Interview, supra note 87; Butts Telephone Interview, supra note 87. Both LTC Alaniyi-Leyimu and LTC(P) Butts have unique and insightful perspectives on this issue because they have extensive experience in both the civilian and military medical communities. Both physicians expressed the professional opinion that it is rare to find a CHP who is aware of the MCE, and both stated that most of their professional colleagues who are familiar with the MCE are uncomfortable complying with it and often decline to honor it. This has also been the author's professional experience. Professional Experience, supra note 87.
111 Alaniyi-Leyimu Telephone Interview, supra note 87; Butts Telephone Interview, supra note 87; Professional Experience, supra note 87.
112 Alaniyi-Leyimu Telephone Interview, supra note 87; Butts Telephone Interview, supra note 87. The author has also routinely encountered resistance to the MCE from CHP and their legal counsel over the past twelve years while serving as an active duty judge advocate officer in the AR. Professional Experience, supra note 87.
113 Delk Telephone Interviews, supra note 100; see also
114 Delk Telephone Interviews, supra note 100.
115 In recognition of this fact, the former chief of the AR, Lieutenant General
116 Delk Telephone Interviews, supra note 100; see supra note 102 (discussing statistics (or lack thereof) for medically non-compliant AGRs in the AR).
117 Delk Telephone Interviews, supra note 100.
118 Although progress has been made, overall medical readiness targets have consistently gone unmet. According to the AR Posture Statement 2012, over one-third of AR Soldiers (approximately thirty-seven percent) were classified as not medically ready in 2012. Chief,
119 Stephen J. Glenz & Colonel (Retired)
120 Id.
121 AR POSTURE STATEMENT 2011, supra note 104, at 11.
122 Brauner et al., supra note 113, at 25.
123 Kim e-mail, supra note 27.
124 Baldor, supra note 82; Clifton, supra note 82; McCloskey, supra note 82.
125 See supra note 31 (explaining how the DHA assumed the responsibilities of the TMA when the latter was disestablished).
126 DODI 6940.08, supra note 20, para. 4b.
127 Bley e-mail, supra note 33; Telephone Conversation with
128 See supra note 83.
129 Brauner et al., supra note 113, at iv.
130 See discussion supra Part III.C.1.-5.
131 See supra note 87; see also discussion supra Part.III.A.5 and accompanying notes.
132 See supra note 117; see also discussion supra Part III.A.6.
133 See supra notes 46-50 and accompanying text (discussing the Minimally Necessary Rule).
134 See
135 Telephone Conversation with
136 U.S. CONST. art. 1, § 8; art. 3. Although the author believes the DHHS and DoD have the constitutional and regulatory authority to compel CHP to comply with the Military Command Exception outside the catchment area, the issue as to whether the DHHS and
137 Ass'n of Am.
138 Thorpe v. Hous. Auth. of
139 Ass'n of Am. Physicians & Surgeons, 224 F. Supp. 2d at 1127 (quoting Thorpe v. Hous. Auth. of
140 Id.
141
142 Id. at 14.
143 The DHHS mandates Covered Entities disclose PHI under the Privacy Rule when the DHHS conducts an investigation to determine if a Covered Entity violated the provisions of the Privacy Rule. 45 C.F.R. § 164.502(a)(2)(ii).
144 10 U.S.C. §§ 1071-1110b (2006).
145
146 U.S. DEP'T OF DEF., DIR. 5136.01, ASSISTANT SEC'Y OF DEF. FOR HEALTH AFF. (ASD(HA)) para. 4.1.2 (
147 DODD 5124.02, supra note 30.
148 Id.
149 DODD 5136.12, supra note 31, para. 6.1.2.
150 Id. para. 6.2.7.
151 32 C.F.R. § 199.17(a)(7).
152 MHS Governance Reform Memorandum, supra note 31.
153 See 32 C.F.R. § 199.17(q)(1)-(5). TPH, supra note 18, at 6. The three Managed Healthcare Support Contractors are
154 32 C.F.R. §§ 199.6(a)(8)(ii)(B); 199.14(j); see also TRICARE REIMBURSEMENT MAN. 6010.55-M, ch. 3, sec. 1 (
155 Coal. for Common Sense in Gov't Procurement v.
156 See the DHHS Commentary on the Public Comments to the Privacy Rule, supra note 53. Many of the public comments to the proposed Privacy Rule expressed analogous concerns that the Rule's disclosure requirements would have a similarly dampening effect on the healthcare industry. Id. (discussing the public comments elicited in response to the Privacy Rule when first proposed).
157 Indeed, research has demonstrated the primary reasons CHPs decline to provide services to Soldiers is
158 Alaniyi-Leyimu Telephone interview, supra note 87; Butts Telephone Interview, supra note 87.
159 H.B. 3201, 77th Leg. Assemb., Reg. Sess. (Or. 2007); see JANET.
160 10 U.S.C. §§ 1071-1110b (2006).
161 32 C.F.R. §§ 199.1-199.26 (2012).
162 DODD 5124.02, supra note 30.
163 DODD 5136.01, supra note 146.
164 DODD 5124.02, supra note 30.
165 DODD 5136.01, supra note 146.
166 Id. para. 4.1.2.
167 Id. para 5.1.2.1.
168 DODD 5136.12, supra note 31, para. 6.2.3.
169 See generally
170 TPH, supra note 18, at 6; see supra note 153.
171 32 C.F.R. §§ 199.1-199.26 (2012).
172 TOM, supra note 9.
173 TPH, supra note 18.
174 See id. at 9 (providing a helpful diagram of provider types).
175 Id.
176 Id. at 9-10.
177 32 C.F.R. § 199.6.
178 TPH, supra note 18, at 9-10.
179 Id.
180 Id.
181 TOM, supra note 9, ch. 8, sec. 4, paras. 6.0-6.2. This is known as the "signature on file" (SOF) requirement. Civilian health care providers must comply with this requirement in order to submit and receive reimbursement for claims. Id. para. 6.0.
182 Id. ch. 8, sec. 4, paras. 6.6-10.3. The TOM provides an exception under some circumstances if the CHP is unable to provide proof of the Soldier's SOF. Id. para. 8.2.
183 45 C.F.R. § 164.512(k)(1)(i) (newly recommended language in italics).
184 Id. § 164.508 (b)(5).
185 Pursuant to the Administrative Procedures Act (APA), 5 U.S.C. §§ 551- 559 (2006).
186 See discussion supra note 12; see also TOM, supra note 9, ch. 19, sec. 3, para. 2.6.1-2.6.2.
187 10 U.S.C. §§ 1071, 1079 (2006).
188 32 C.F.R. § 199.6(a)(13)(i)-(xii) (2012).
189 Id.
190 TRICARE POL'Y MAN. 6017.57-M, ch. 11, sec. 12.3 (
191 32 C.F.R. §199.6(a)(13)(i)-(xii).
192 TPM, supra note 190.
193 Id. ch.11, sec. 12.3.
194 TRICARE Form CMS-1500, Health Insurance Claim Form (08/05); TRICARE Form CMS 1450, UB-04 (2007); see TRICARE Electronic Claims Filing (
Major
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