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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations
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including Servicemembers Group Life Insurance; Traumatic Servicemembers Group Life Insurance; Social Security disability benefits; Social Security survivor benefits; prior Government contributions to a Thrift Savings Plan that are inherited by a beneficiary; and commissary, exchange, and morale, welfare, and recreation facility access;
the value of legal assistance and other services provided by DoD. Medical care provided while in active service or in an active status prior to death, retirement, or separation is also not offset.
To illustrate what benefits are available under the existing comprehensive compensation system, both those that are offset and those that are not, and the value of these benefits, tables below in the section titled, Impact to the Government, provide notional examples of benefits available under the existing comprehensive compensation system during Fiscal Year 2020.
DoD will estimate the present value of future payments and benefits. Many of such payments and benefits in cases of death and disability are lifetime benefits for members or survivors. With respect to future compensation and benefits that would change if a surviving spouse remarries, DoD will not assume remarriage.
Section 45.12 Initial and Final Determinations Section 45.12 provides rules for provision to claimants of an Initial Determination regarding the claim. The Initial Determination may take the form of a grant of a claim and an offer of settlement or denial of the claim.
If a claim does not contain the information required by 45.4b, DoD
will issue an Initial Determination stating that DoD will issue a Final Determination denying the claim unless the deficiency is cured. DoD will provide the claimant 30 calendar days following receipt of the Initial Determination to cure the deficiency, unless an extension of time is granted for good cause. 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 45.12a may not be appealed.
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.
An Initial Determination on these grounds may be appealed under the procedures in 45.13.
If the claimant initially does not submit an expert report in support of his
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or her claim, where applicable, 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. 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. If the claimant does not timely submit an expert report, DoD will issue a Final Determination denying the claim, which may not be appealed, and will provide a brief explanation of the basis for the denial of the claim to the extent practicable.
Except as provided above, DoD will endeavor to provide a brief explanation of the basis for an Initial Determination to the extent practicable. However, as required by 10 U.S.C. 1102, medical quality assurance records may not be disclosed to anyone outside DoD, to include the claimant, other Federal agencies, or the judiciary. This prohibition applies to any information derived from a peer review obtained under DoDs Clinical Quality Management CQM Program to assess the quality of medical care provided by a DoD health care provider. DoD has a very extensive CQM Program under DoD Instruction 6025.13 5 and Defense Health Agency Procedural Manual 6025.13 6 to assess the quality of health care services, identify areas where improvements can be made, and ensure appropriate accountability. The CQM
Program includes a peer review of every potentially compensable event. DoD
considers records of these reviews in determining whether there was a negligent or wrongful act or omission by a DoD health care provider in relation to the claim but may not lawfully disclose this information. Therefore, while DoD will attempt to explain the basis for the Initial Determination, DoD
cannot disclose any information covered by 10 U.S.C. 1102.
The Initial Determination will include information on the claimants right to file an administrative appeal. The claimant may request reconsideration of the damages contained in an Initial Determination if, within the time otherwise allowed to file an administrative appeal, the claimant identifies an alleged clear error in the damages calculation. DoD will review 5 DoDI 6025.13, Medical Quality Assurance MQA and Clinical Quality Management in the Military Health System MHS, February 17, 2011;
Incorporating Change 2 on April 1, 2020 whs.mil.
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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.
Section 45.13 Appeals The issue of appeals from Initial Determinations is addressed in 45.13.
In any case, other than a claim that is denied for failure to provide an expert report, in which the claimant disagrees with the Initial Determination, the claimant has a right to file an administrative appeal. A 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 filed within 60
calendar days of the date of the Initial Determination, unless an extension of time is granted for good cause. If no timely appeal is filed, DoD will issue a Final Determination.
Under the new rule, appeals will be decided by an Appeals Board administratively supported by the Defense Health Agency. The Appeals Board will consist of not fewer than three and no more than five DoD
officials designated by the Defense Health Agency from the Defense Health 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 under appeal. Appeals are decided on the written record and decisions will be approved by a majority of the members. There is no adversarial proceeding and no hearing. The Appeals Board may obtain or request information or assessments from appropriate sources, including from the claimant, to assist in deciding appeals. The claimant has the burden of proof by a preponderance of evidence that the claim is substantiated in the written record considered as a whole. Every claimant will be provided a written Final Determination on the claimants appeal, which 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.
Appeals Board decisions are final and conclusive. The Appeals Board may reverse the Initial Determination to
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