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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations
Assuming 7 claims per year going forward exceeding $1.1 million, and average damages of $1.6 million the difference between the average amount of $2.7 million paid per claim in the non-Active Duty claims and the estimated $1.1 million in offsets per Service member claim, the additional payments made by the U.S. because of section 731are estimated to be $11.2
million per year. Of this, the first $100,000 for each claim would be paid by DoD and the remainder paid by the Treasury Department, for an estimated total of $0.7 million to be paid by DoD
based on 7 claims and $1.05 million to be paid by the Treasury Department.
As the tables above illustrate, Government paid benefits would not be a factor, as this claims process would have no impact on what the benefits Service member is already receiving, has received, or is entitled to receive in the future based on his or her injuries.
Total transfers from the U.S.
government to claimants are estimated to be $11.2 million per year.

DoD may issue the regulations the statute requires by prescribing an interim final rule. The law also requires DoD to consider public comments and issue a final rule within one year after issuing an interim final rule. The new law became effective January 1, 2020, and Congress desired expeditious adjudication of claims arising from alleged instances of medical malpractice dating back to 2017. For this reason, there is good cause for finding, consistent with 5
U.S.C. 553bB, that prior notice and public comment are impracticable, unnecessary, or contrary to the public interest.

f. Benefits Absent the claims process established by section 731, Service members would not have the opportunity for potential monetary payments above the amounts they currently receive through current DoD and VA benefits. In addition to providing an additional potential compensation remedy, the claims process reinforces DoD Clinical Quality Management Program procedures for appropriate accountability of DoD
health care providers. NPDB reporting includes cases where DoD
compensation is paid through the Disability Evaluation System or survivor benefits attributable to medical malpractice by a DoD health care provider and now, under this part, paid malpractice claims. Reports to the NPDB
are accompanied by reports to State licensing boards and certifying agencies of the health care providers involved.
The claims process further provides an opportunity for DoD to identify opportunities for improvement in in the delivery of healthcare, potentially preventing harm to others based upon measures taken by DoD as a result of a claim even if the claim does not result in the payment of monetary damages.
Finally, this process is only applicable in certain cases of medical malpractice.

This interim final rule does not impose requirements on small entities.

g. Interim Final Rule Justification This rule is being issued as an interim final rule based on explicit statutory authorization and clear Congressional intent. Specifically, 10 U.S.C.
2733af3 provides that in order to implement expeditiously the new law
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h. Public Law 96354, Regulatory Flexibility Act 5 U.S.C. 601
This interim final rule is not subject to the Regulatory Flexibility Act 5
U.S.C. 601 because it is not a notice of proposed rulemaking under 5 U.S.C.
6012.
i. Assistance for Small Entities
j. Congressional Review Act Pursuant to the Congressional Review Act 5 U.S.C. 801 et seq., the Office of Information and Regulatory Affairs designated this interim final rule as not a major rule, as defined by 5 U.S.C.
8042.
k. Sec. 202, Public Law 1044, Unfunded Mandates Reform Act Section 202 of the Unfunded Mandates Reform Act of 1995 UMRA
2 U.S.C. 1532 requires agencies to assess anticipated costs and benefits before issuing any rule whose mandates require non-Federal spending in any one year of $100 million in 1995 dollars, updated annually for inflation. This interim final rule will not mandate any requirements for State, local, or tribal governments, nor affect private sector costs.
l. Public Law 96511, Paperwork Reduction Act 44 U.S.C. Chapter 35
It has been determined that 32 CFR
part 45 does not impose new reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.
m. Executive Order 13132, Federalism Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule and subsequent final rule that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications.

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This interim final rule will not have a substantial effect on State and local governments.
List of Subjects in 32 CFR Part 45
Medical, Malpractice, Claims, Uniformed Services.
Accordingly 32 CFR part 45 is added to read as follows:
PART 45MEDICAL MALPRACTICE
CLAIMS BY MEMBERS OF THE
UNIFORMED SERVICES
Sec.
45.1
45.2

Purpose of this part.
Claims payable and not payable in general.
45.3 Authorized claimants.
45.4 Filing a claim.
45.5 Elements of payable claim: facilities and providers.
45.6 Element of payable claim: negligent or wrongful act or omission.
45.7 Element of payable claim: proximate cause.
45.8 Calculation of damages: disability rating.
45.9 Calculation of damages: economic damages.
45.10 Calculation of damages: noneconomic damages.
45.11 Calculation of damages: offsets for DoD and VA Government compensation.
45.12 Initial and Final Determinations.
45.13 Appeals.
45.14 Final and conclusive resolution.
45.15 Other claims procedures and administrative matters.
Authority: 10 U.S.C. 2733a.
45.1

Purpose of this part.

a In general. The purpose of this part is to establish the rules and procedures for members of the uniformed services or their representatives to file claims for compensation for personal injury or death caused by the medical malpractice of a Department of Defense DoD health care provider. Claims under this part may be settled and paid by DoD under the Military Claims Act, Title 10, United States Code, Chapter 163, specifically section 2733a of Title 10 hereinafter 10 U.S.C. 2733a, section 2733a, or the statute, as added to the Military Claims Act by section 731 of the National Defense Authorization Act for Fiscal Year 2020 Pub. L. 11692;
133 Stat. 1457. Claims are adjudicated under an administrative process. This administrative process follows a set of rules and procedures set forth in this part. These rules and procedures are based primarily on a number of detailed provisions in the statute.
b Relationship to military and veterans compensation programs.
Federal law provides a comprehensive system of compensation for military members and their families in cases of
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