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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations
be presumed to be five calendar days after the date the Initial Determination was mailed or emailed, unless there is evidence to the contrary.
2 If the claimant does not timely cure the deficiency, DoD will issue a Final Determination denying the claim for failure to cure the deficiency. A
Final Determination issued under paragraph a of this section may not be appealed.
b Denial of claimfailure to state a claim. If a claim does not, based upon the information provided, state a claim cognizable under 10 U.S.C. 2733a or this interim final rule, DoD will issue an Initial Determination denying the claim.
Such an Initial Determination may be appealed under the procedures in 45.13.
c Denial of claimabsence of an expert report. Where applicable, if the claimant initially does not submit an expert report in support of his or her claim and DoD intends to deny the claim, DoD will issue an Initial Determination stating, without more, that DoD will issue a Final Determination denying the claim in the absence of an expert report or manifest negligence.
1 DoD will provide the claimant 90
calendar days following receipt of the Initial Determination to submit an expert report, unless an extension of time is granted for good cause. The date of receipt of the Initial Determination will be presumed to be five calendar days after the date the Initial Determination was mailed or emailed, unless there is evidence to the contrary.
2 If the claimant does not timely submit an expert report, DoD will issue a Final Determination denying the claim and will provide a brief explanation of the basis for the denial to the extent practicable. A Final Determination issued under this paragraph c may not be appealed.
d Initial Determination. 1 Upon consideration of the information provided by the claimant and relevant information available to DoD, DoD will issue the claimant a written Initial Determination.
2 The Initial Determination may be in the form of a certified letter and/or an email. The Initial Determination may take the form of a grant of a claim and an offer of a settlement or a denial of the claim. Subject to applicable confidentiality requirements, such as 10
U.S.C. 1102, privileged information, and paragraph a of this section, DoD will provide a brief explanation of the basis for the Initial Determination to the extent practicable.
3 The Initial Determination will include information on the claimants
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right to appeal if the claimant does not agree with the Initial Determination.
4 The claimant may request reconsideration of the damages calculation contained in an Initial Determination if, within the time otherwise allowed to file an administrative appeal, the claimant identifies an alleged clear errora definite and firm conviction that a mistake has been committedin the damages calculation. DoD will review the alleged clear error and will issue an Initial Determination on Reconsideration either granting or denying reconsideration of the Initial Determination and adjusting the damages calculation, if appropriate. The Initial Determination on Reconsideration will include information on the claimants right to appeal under the procedures in 45.13.
45.13

Appeals.

a In general. This section describes the appeals process applicable to Initial Determinations under this part, which include Initial Determinations on Reconsideration. With the exception of Initial Determinations issued under 45.12a, in any case in which the claimant disagrees with an Initial Determination, the claimant has a right to file an administrative appeal. The claimant should explain why he or she disagrees with the Initial Determination, but may not submit additional information in support of the claim unless requested to do so by DoD. An appeal must be received within 60
calendar days of the date of receipt by the claimant/counsel of the Initial Determination, unless an extension of time is granted for good cause. The date of receipt of the Initial Determination will be presumed to be five calendar days after the date the Initial Determination was mailed or emailed, unless there is evidence to the contrary.
If no timely appeal is received, DoD will issue a Final Determination.
b Appeals Board. Appeals will be decided by an Appeals Board administratively supported by the Defense Health Agency. Although there may be, in DoDs discretion, multiple offices that initially adjudicate claims under this part such as offices in the Military Departments, there is a single DoD Appeals Board. The Appeals Board will consist of not fewer than three and no more than five DoD officials designated by the Defense Health Agency from that agency and/or the Military Departments who are experienced in medical malpractice claims adjudication. Appeals Board members must not have had any previous role in the claims adjudication
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under appeal. Appeals are decided on a written record and decisions will be approved by a majority of the members.
There is no adversarial proceeding and no hearing. There is no opposing party.
The Appeals Board may obtain information or assessments from appropriate sources, including from the claimant, to assist in deciding the appeal. The Appeals Board is bound by the provisions of this Part and will not consider challenges to them.
c Burden of proof. The claimant on appeal has the burden of proof by a preponderance of evidence that the claim is substantiated in the written record considered as a whole.
d Appeals Board decisions. 1 Every claimant will be provided a written Final Determination on the claimants appeal. The Final Determination may adopt by reference the Initial Determination or revise the Initial Determination, as appropriate. If the Final Determination revises the Initial Determination, DoD will provide a brief explanation of the basis for the revisions to the extent practicable.
2 An Appeals Board decision is final and conclusive. 10 U.S.C. 2735.
3 The Appeals Board may reverse the Initial Determination to grant or deny a claim and may adjust the settlement amount contained in the Initial Determination either upwards or downwards as appropriate.
45.14

Final and conclusive resolution.

a Administrative adjudication final.
As provided in 10 U.S.C. 2735, the adjudication and settlement of a claim under this part is final and conclusive and not subject to review in any court.
Unlike the FTCA, the Military Claims Act, 10 U.S.C. chapter 163, which provides the authority for this part, does not give Federal courts jurisdiction over claims. Further, no claim under this Part may be paid unless the amount tendered is accepted by the claimant in full satisfaction.
b Additional terms of settlement agreement. 1 Settlement agreements under this part will incorporate the requirement of section 2733ag1 that no attorney may charge, demand, receive, or collect for services rendered, fees in excess of 20 percent of any claim payment amount under this part.
2 Because settlement and payment of a claim under this part is under section 2733ab5 conditional on the claim not being allowed to be settled and paid under any other provision of law, a settlement agreement under this part will include a provision that it bars any other claim against the United States or DoD health care providers arising from the same set of facts.

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