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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations
Determination will either state that your claim is granted and offer you an amount of money in settlement of your claim or will state that your claim is denied.
A settlement does not entitle you to any new benefits from DoD or the VA.
A settlement will not cause you to lose any DoD or VA benefits, whether at the time of the settlement or in the future.
f. Reconsideration. If DoD has made a clear error in the calculation of the amount of money you are offered to settle your claim, you may request reconsideration. A clear error is an obvious or typographical error, such as a reference to $10 when it is clear $100
was intended. The reconsideration process was intended to fix minor issues without requiring you to file an appeal.
You must file your request for reconsideration within 60 days of receipt of an Initial Determination. DoD
will assume that you received the Initial Determination within five calendar days after the date the Initial Determination was mailed or emailed.
g. Appeals. If you disagree with an Initial Determination, you generally may file an administrative appeal. Your appeal should explain why you disagree with the Initial Determination. You must file your appeal within 60 days of receipt of an Initial Determination. DoD
will assume that you received the Initial Determination within five calendar days after the date the Initial Determination was mailed or emailed.
You may not appeal a Final Determination issued because of deficiencies in your claim filing such as a missing affidavit or because DoD has determined you need to submit an expert report. You will have been given an opportunity to fix deficiencies or submit an expert report before the Final Determination is issued.
Your appeal will be decided by an Appeals Board of three to five DoD
officials who have experience with medical malpractice claims and have no prior connection to your claim.
You may not submit additional information in support of your claim on appeal. DoD will ask you for additional information if it is needed.
The Appeals Board will issue a Final Determination on your claim. The Appeals Board may reverse the Initial Determination to grant or deny a claim.
The Appeals Board may adjust the damages amount in the Initial Determination either upwards or downwards. A Final Determination is not subject to review in any court.
If you do not file an appeal, DoD will issue a Final Determination.
h. Settlement Agreement. You will be paid the damages amount offered in a
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Final Determination after you sign a settlement agreement provided to you by DoD.
i. Claims Process is Final. This claims process is the only process for Service members to bring medical malpractice claims related to their service. You may not challenge a Final Determination or the amount of any damages calculation contained in a Final Determination in court.
j. Attorneys. You may have an attorney assist you with your claim. If you have an attorney, DoD will communicate with your attorney instead of with you regarding your claim. Your attorney may not charge you attorney fees of more than 20 percent of the amount paid to you under this process.
V. Regulatory Analysis a. Executive Order 12866, Regulatory Planning and Review and Executive Order 13563, Improving Regulation and Regulatory Review Executive Orders 13556 and 12866
direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distribution of impacts, and equity. Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
Accordingly, this interim final rule has been reviewed by the Office of Management and Budget under the requirements of these Executive Orders.
It has been determined to be a significant regulatory action, although not economically significant.
Accordingly, this regulatory impact analysis presents the costs and benefits of the rulemaking.
b. Summary This interim final rule implements requirements of the National Defense Authorization Act NDAA for Fiscal Year 2020 permitting members of the uniformed services or their authorized representatives to file claims for personal injury or death caused by a Department of Defense DoD health care providers in certain military medical treatment facilities. Because Federal courts do not have jurisdiction to consider these claims, DoD is issuing this rule to provide uniform standards and procedures for considering and processing these actions administratively.

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c. Affected Population 10
At the end of Fiscal Year 2019, there were approximately 1,400,000 Active Duty, 390,000 Reserve and National Guard, and 250,000 other uniformed Service members eligible for DoD
healthcare benefits.11 or around 19% of the total eligible beneficiary population.
These uniformed Service members will be able to file claims with DoD alleging malpractice. There were approximately 8,140,000 other eligible beneficiaries to include retirees, retiree family members, and family members of Active Duty Service members. These other eligible beneficiaries currently may file claims with DoD alleging malpractice.
d. Costs As a result of the rule, individuals who believe they were subjected to malpractice may consider filing a claim.
In determining whether to file a claim, individuals may consult with medical professionals and attorneys and we assume that most claimants will have attorneys. We estimate that this will require 5 hours for individuals to locate an attorney, view and download pertinent medical records, and discuss the case with an attorney or a medical professional for claimants without attorneys. At a mean hourly rate of $27.07 based on data from the Bureau of Labor Statistics BLS,12 the cost of this activity is $135.
The cost for a consultation with a medical professional, whether directly by the claimant or through an attorney varies by the type of professional. Based upon information available from consultations and reports obtained in malpractice claims against the government and estimates of time spent by DoD in similar activity when handling those claims, we estimate a typical review of records would take about 3 to 5 hours and include reviewing journals in support of the professionals opinion, with an additional 2 to 4 hours to write a report if such a report is submitted with a 10 Data are from the Evaluation of the TRICARE
Program: Fiscal Year 2020 Report to Congress Access, Cost and Quality Data through Fiscal Year 2019. which can be found at https health.mil/
Reference-Center/Reports/2020/06/29/Evaluationof-the-TRICARE-Program-Fiscal-Year-2020-Reportto-Congress.
11 Active Duty include members of the Army, Navy, Air Force, Marines. The other uniformed services are the Coast Guard, Public Health Service, and the National Oceanic and Atmospheric Administration. The Space Force was established December 20, 2019, and was not included in this Fiscal Year 2019 data.
12 According to the Bureau of Labor Statistics, the median weekly earnings for full-time wage and salary workers in 2020 was $984.00, for an hourly rate based on a 40-hour workweek of $24.60. See https www/bls.gov/cps/cpsaat39.htm.

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