Printer Friendly

Legal education for Army Medical Department leaders and soldiers.

A Proposal from a Lawyer Who Has Advised AMEDD Leaders and Soldiers for Nearly a Decade

I have been a legal advisor to Army Medical Department (AMEDD) commanders and staff at the levels of Army community hospital, ambulatory health clinic, medical center, regional medical command, and the Headquarters, US Army Medical Command (MEDCOM)/Office of The Surgeon General for over a decade. I have often been surprised at the inadequate knowledge and understanding of the law at each level, invariably due to a lack of experience and/or education about the legal obstacles, pitfalls, and "landmines" that AMEDD leaders and personnel face in today's highly complex federal healthcare environment.

As an assistant professor at the Academy of Health Sciences in the AMEDD Center and School (AMEDDC&S), I learned about the Joint Medical Executive Skills Institute's (https://jmesi.army.mil/) Executive Skills Program Competencies which are segregated into 7 major groups as shown in the Figure.

Some of the listed competencies have legal foundations or are specifically legally related. For example, by its title, the legal foundations within Emergency Management and Contingency Planning are not obvious, but public health law is an important, mandatory aspect of any such emergency planning effort. On the other hand, it is obvious that Public Law is specifically related to the study of law, whatever the area of concentration. In the final analysis, the law, or at least the application of law is fundamental to every medical competency and thus deserves to be thoroughly taught within the AMEDD, not only to leaders but to their supporting personnel as well.

THE PROPOSAL

Specifics

I propose a comprehensive plan and structure that focuses on 12 major areas of law:

* Discipline

* Standards of conduct (federal employee ethics)

* International law of armed conflict

* Health law

* Public health law

* Fiscal law

* Labor law

* Quality assurance

* Claims

* Contract law

* Administrative law

* Human subject research law

Each of the 12 areas would have more advanced and focused subparts that could be taught in courses either in the classroom setting or in the field by supporting legal counsel. Foundation courses would be taught in each area for officers, noncommissioned officers, and Soldiers in advanced individual training, followed by more focused courses on the most current legal issues prior to the assumption of higher level leadership positions.

Areas of Law

Discipline

Discipline covers several competencies such as Total Force Management, Change Management, Leadership, Human Resource Management, Labor-Management Relations, Personnel and Professional Ethics, Personal and Professional Individual Behavior, Group Dynamics, and Conflict Management. I encourage students to separate the concept of discipline between military personnel and civilian personnel. Discipline issues regarding civilian personnel fall under labor law. Discipline pertaining to military personnel is found under the Uniform Code of Military Justice * (punitive actions), regulations in place to implement military justice, and the many regulations that deal with nonpunitive actions (administrative actions). Discipline in the military is a command-driven effort. Unlike the civilian world where lawyers make decisions to prosecute, in the military, lawyers advise and commanders make decisions. Commanders can determine to take no action, initiate administrative action, dispose of offenses with nonjudicial punishment (NJP), ([dagger]) or dispose of offenses by court-martial. Whatever the decision, advice of legal counsel is certainly key, but AMEDD commanders and leaders must be knowledgeable of the basic concepts; in other words, they cannot depend on legal counsel to teach them the basics each time a discipline issue emerges.

There is really no equivalent of NJP in the civilian sector. It is a critical process which allows a commander to handle discipline at the lowest level in the military environment. A commander who knows how to use NJP can dispose of misconduct quickly, and can also send a message to the unit that he or she is a person of integrity and fairness. That ability is an incredible influence on the competencies Conflict Management, Group Dynamics, and Personal and Professional Individual Behavior as Soldiers realize that they will be treated fairly at the lowest level possible, and that there is no need to refuse that low level procedure and demand a court-martial.

From my experience, I have come to believe that NJP is not well understood among many AMEDD midlevel leaders. For example, a year ago I was addressing NJP while teaching a class. One of my students, a field grade officer, was listening to my description of NJP and was surprised that a Soldier could refuse NJP and demand a court-martial. Either the student was never taught the concept or it was not effectively presented. I quickly incorporated NJP basics into that class instruction.

The experience discussed above is certainly not an indictment of our current teaching of discipline law within the AMEDD. For example, every Basic Officer Leadership Course (BOLC) and Captain's Career Course (CCC) contains a basic class on military justice in which we discuss such issues as NJP and the commander's role in discipline. In the last couple of years, the CCC has even conducted mock Article 15 hearings ([dagger]) in a small group setting wherein each student plays a role in the hearing. Most recently, the AMEDDC&S has initiated an Introduction to Basic Army Medicine (IBAM) course in which junior enlisted Soldiers are given classes on many issues including military justice. Additionally, I have both taught and supported pre-command courses where NJP has been reviewed. All told, these examples of efforts to teach military justice are noble and important as good order and discipline are critical in the operation of a military and fall squarely within the competencies of Military Mission and Leadership. However, the adequacy of this instruction should still be examined. For example, is sufficient time being allocated for teaching the subject within those venues? Also, are there other venues where the topic could be taught in more detail? When I asked the previously mentioned student about NJP and about instruction on the subject in a prior class, the student recounted a very short class on military justice years before in BOLC, but admitted no memory of anything from the class. But for that Military Medical Law elective course, the student may never have learned any details of the concept.

The above student example may be instructive regarding the direction the AMEDD should follow pertaining to teaching military justice. It is one thing to teach a military justice foundation course in BOLC, CCC, or IBAM. However, lesson planning and delivery for a class in a program for a particular department in the Academy of Health Sciences, or a noncommissioned officer professional development or officer professional development session at a military treatment facility or medical unit in the field should be from entirely different perspectives.

Creating a foundation in a class with students from all military occupational specialties is an absolute necessity, but what does a physician assistant, a social worker, a pathologist, a nutritionist, or an administrator need to know later in his or her specific occupational education?

Standards of Conduct

Within the AMEDD, frequent ethics issues face personnel in the form of gifts, conflicts of interest, use of government resources, postgovernment employment, unauthorized commitments, and political activity. From the perspective of almost 20 years teaching Standards of Conduct (SOC), I think we in the AMEDD do a good job training personnel on the basic rules. The SOC are implemented by Department of Defense 5500.7-R: Joint Ethics Regulation (2) The SOC apply directly to the competencies of Personal and Professional Ethics and Personal and Professional Individual Behavior. The SOC also impact Financial Management and even Information Management and Technology, especially considering the use of information technology systems, such as electronic mail, social media, and internet access. As I inform my students, these rules exist as guidelines to assure that our conduct is that which taxpayers would expect of their government's employees. If we cannot live up to those standards, the taxpayers will not have trust in our conduct and our leadership. In addition, the rules can also have punitive or administrative repercussions, which are usually highly motivating personal considerations.

In addition to my work teaching SOC at the AMEDDC&S either as a primary subject in a defined course or as part of orientations and annual training, the AMEDD has a number of excellent, highly experienced ethics counselors at MEDCOM commands throughout the country. My concerns are two-fold. First, I think that we do not have enough time to teach in more detail and focus for such groups as resource management personnel, contract personnel, personnel holding government purchasing cards, and clinicians. I know clinicians who are so busy that they simply do not have sufficient time to attend a class, or who do not understand that SOC is different from the biomedical ethics that they may have been taught in the past. Second, we do not always teach SOC in an effective manner such that the subject matter is easily absorbed into people's minds. Throughout my career, I have often encountered a class of people who were in attendance only because the class was mandatory. Their thoughts and concerns were obviously on their other responsibilities, and interest in my class material was not a priority. Since my goal was to inspire and teach the rules that would empower them to act in an appropriate manner as executive branch employees within the Department of Defense (DoD), I would incorporate experiences, cases, examples, humor, or anything to engage their interest and, most importantly, impart to them the knowledge they needed.

Adherence to the SOC or executive branch ethics is ultimately a personal responsibility. Ethics counselors cannot monitor the activities of every executive branch employee. Ethics counselors also cannot be expected to teach a person to understand ethical conduct in a one-hour class at an orientation or mandatory annual training. It must be a way of life that is inspired by teachers, articles, and programs designed accordingly. The inspiration of even the best of instructors or counselors within an organization is just an example for a limited group of students. Our goal should be an inspirational program to teach and encourage employees to conduct themselves with only the highest ethical standards within the AMEDD's unique medical environment.

International Law of Armed Conflict

During the last decade, the subject of Law of War (also called International Law of Armed Conflict) has been increasingly important for personnel deploying to combat theatres. Over my many years of teaching this subject, invariably students have expressed the opinion that the term "Law of War" is seemingly contradictory in and of itself. My reaction has always been to address the importance of the subject and the true intent behind the training. It is a DoD requirement to train in the subject, but more importantly, I have always noted that an understanding of the Law of War is critical to the competencies of Medical Doctrine, Military Mission, Medical Readiness Training, Strategic Planning, Public Law, Personal and Professional Ethics, and even Bioethics. I am concerned when students indicate that they have gone through many Law of War classes but demonstrate little grasp of the concepts. Are we not teaching this subject correctly? Do we not have the right focus? Are we not conveying the basic concepts that will enable them to follow what is in fact either law or DoD policy?

I believe that many times we train to time and not to standard, and consequently we often do not focus on the issues that can really impact medical personnel in a combat environment. While I think our foundational classes at the BOLC and CCC levels are sufficient, they are only the basics. Future leaders and more experienced medical personnel really should explore the laws and policies that are in place and apply the lessons that have been learned over the years through our experiences with those laws and policies in an operational setting. For example, in my classes I often address examples from the Vietnam war era, or from Operations Enduring Freedom or Iraqi Freedom, but I can never go into the detail that I feel is necessary; I simply do not have the time. With the right amount of time, the right mix of students with various experiences, and the right examples or case studies, students could explore many of the issues addressed by the Law of War and use their experiences and understanding to learn more about how they apply to the competencies noted above, competencies that must be used on the battlefield. During the last decade, AMEDD personnel have been in harm's way and have experienced a great deal. The legal medical aspects of those experiences should not be minimized. Our challenge will be to incorporate those lessons learned related to the Law of War and apply them to educational programs in the future.

Health Law

The Army has no formalized training in health law except advanced civil schooling every few years for one military lawyer to receive an advance law degree in health law. It is important to establish a more expansive form of training in health law within the AMEDD to prepare personnel in all the competencies of Health Law and Policy-Public Law, Medical Liability, Medical Staff By-Laws, Regulations, and Accreditation and Inspections. Although the area of Health Law and Policy is considered essential within the Joint Medical Executive Skills Program, in my opinion, we really do not have sufficient faculty to teach this area. Further, and perhaps more importantly, we may not have the sufficient legal counsel in the field trained in this area. In the civilian sector, health law is a topic that appears with regularity in the press and has become a growing practice over the last 10 years. Unfortunately, military health law advice and education, while valued, is in short supply.

After I arrived at the Academy of Health Sciences, I did not expect to be regularly invited to give a class on informed consent, the Health Insurance Portability and Accountability Act (HIPAA), advanced directives, and quality assurance, to name a few. Also unexpected was the small number of structured legal medical classes imbedded in many of the medical education programs. Recently, one of my former students asked why a course I taught did not have more classes on legal medical issues. He explained that my short block of instruction left him and other class members curious and feeling a bit unprepared. In response, I could only offer him some on-line resources and provide him with some articles I had collected that could be helpful. The health law industry in the civilian sector is expanding, health regulations are on the rise, and healthcare legal issues abound. I foresee that military medicine will not be immune to the coming tide of health law legal issues.

Public Health Law

In both military and civilian sectors, most people do not have a clear understanding of public health law, because they really do not have a clear understanding of public health. Public health has different concerns from medical care, encompassing the prevention of disease, prolonging life, and promoting health. It is preventive in nature and public health law is oriented to that perspective.

Fairly early in my experience with the AMEDD, I was requested by the installation medical and dental activity (MEDDAC) to provide legal advice on establishing and advising the new position of Public Health Emergency Officer (PHEO). Only later did I realize that I had begun my education in public health law. After a great deal of research, I understood the critical nature of a PHEO and the necessity for a PHEO to have legal counsel who understood all the federal and local state laws about such issues as quarantine, isolation, presidential declarations, and public health emergency declarations. Most PHEOs were leaders in preventive medicine so I began to spend more time dealing with preventive medicine personnel. Before long, I realized that public health and public health law went well beyond the competency of Emergency Management and Contingency Planning. It addressed issues such as chronic diseases, infectious diseases, safety, nutrition, food safety, healthcare-associated infections, human immunodeficiency virus (HIV), language and access to care, obesity, and prescription drug shortages, just to name a few. These issues affect the military and must be addressed. For example, I have been asked numerous times about HIV notification procedures under Army Regulation 600-100 (3) which may involve the possibility of contacting local public health officials for notification and testing of contacts. This can be a very sensitive procedure not only involving DoD guidance pursuant to HIPAA and state or local laws or policies. Another example involved providing reasonable break time to allow a civilian employee to express breast milk after her return to work following the birth of a child. While some argued this fell under labor law, it also was an issue covered under public health law.

The subject of public health law extends beyond the scope of this article, but it cannot be denied that legal issues in the public health arena are ever increasing in the lexicon of today's society. We talk about energy drinks and how their ingredients could affect the health of young people, in and out of the military, beginning to show effects within the competency Medical Readiness Training. We talk about sugary sodas and their size restriction in places like New York City as a means to combat chronic diseases and obesity, a concern within the competency Population Health Improvement. Childhood obesity and its impact on recruiting and chronic diseases affects Strategic Planning. Past experiences with public health emergencies always involve determination of who has jurisdiction over the matter-municipal, county, state, or federal, part of Emergency Management and Contingency Planning. We should ensure that AMEDD personnel are taught the basics of public health and public health law so that they are prepared to understand the issues facing the local communities near the military treatment facility (MTF) in which they work. Leaders should be conversant with laws governing federal, state, and local cooperation that is critical in dealing with any public health matter. Most importantly, legal aspects of the difference in perspectives of public health (the population) and medical care (the patient) must be clearly understood. In light of The Surgeon General's Performance Triad (4) (activity, nutrition, and sleep) initiative for a system for health, it appears that public health will become an even more prominent consideration for the AMEDD, and public health law will become a more important concern for its leaders and personnel.

Fiscal Law

Literally every unit or organization in the AMEDD is involved with the competency of Financial Management-the management of the obligation and expenditure of funds appropriated by Congress and allocated for AMEDD use. Money is the blood of the AMEDD body, having an effect on all the competencies of the Health Resource Allocation group of competencies as shown in the Figure.

Fiscal law is an area of the law that has no counterpart in the civilian sector, because it is founded ultimately on what Congress says we can and cannot do based on its constitutional power to fund the federal government. Government funds come in various "colors" and various periods of "availability" for new obligations based on the guidance given by Congress. Depending on the activity undertaken, the funds required to do so may vary depending on the nature and structure of the activity, the authority for the activity, the magnitude of the activity, the timing of the activity, and the actions previously taken by others with regard to the activity. Only one color can be correct by law. Some funding actions raise little or no issue, while color, timing, and availability of funds may make others problematic, which is when the understanding of fiscal law becomes important.

I have been queried for guidance on fiscal law issues many times. The basic rules of Purpose (funds may be obligated and expended only for the purposes authorized in an appropriation acts or law), Time (the period of time during which budgetary resources may be used to incur new obligations is different from the period of time during which the budgetary resources may be used to incur expenses), and Amount (obligations and expenditures may not exceed the amounts established by law) are straightforward. However, unlike other areas of the law where the absence of some prohibition is a potential gateway for action, fiscal law restricts the use of funds unless specifically authorized by Congress.

Issues under the subject of fiscal law continually appear within the AMEDD, such as purchasing from unauthorized sources, exceeding purchase thresholds, making split purchases, using government funds for personal expenses, using funds in the wrong fiscal year, purchasing more than needed, and using the wrong appropriation for a purchase. Such problems fall directly under the competencies of Financial Management and Personnel and Professional Ethics in that they are inappropriate actions on the part of employees and/or organizations in violation of law, policy, or rules. Such actions can also result in a violation of the Antideficiency Act (31 USC [section] 1341-1342 and [section] 1517) and require an investigation, with possible administrative or punitive sanctions, and may even require a report to Congress and the President resulting in embarrassment to the AMEDD.

Currently, we do not have any standard program to teach fiscal law within the AMEDD except those online resources that are used to help in certifying government purchase card holders and contracting officer's representatives, or the occasional ad hoc class that is taught only at the request of a local resource management office or a course manager. Understanding fiscal law is not just for comptrollers and their personnel, it is an important topic that could conceivably impact Decision Making, Leadership, and Strategic Planning, in addition to those competencies already mentioned.

Labor Law

One of my former Staff Judge Advocates would often tell me that his former installation legal office used to provide 10% to 20% of its legal resources to the local MTF although that MTF only represented a very small component on the military installation his office served. A great deal of that support was labor law related. As a former labor attorney, I can attest to the fact that labor law support addresses competencies such as Labor-Management Relations, Human Resource Management, Public Law, Regulations, Total Force Management, Leadership, Organizational Design, and several more. Dealing with a civilian workforce covers a large horizon of legal areas including discrimination under the Equal Employment Opportunity program, harassment, civilian misconduct, Hatch

Act (5 USC [section] 7324) violations (unauthorized political activities), collective bargaining unit relations, and unfair labor practices, to name a few. While serving as a Command Judge Advocate at a major medical center, I became concerned that we had only a single supporting labor attorney, who also supported the entire installation at which the MTF was located. She was barely able to handle the workload, so I began to work some of the more rudimentary labor actions at the MTF in order to ease that workload. I was her "eyes and ears" in the MTF, but I also helped educate leaders and supervisors about the various aspects of dealing with civilian employees. I generally felt that with a little education, leaders and supervisory personnel could avoid the common pitfalls that were generating incredible legal workloads at other MTFs.

My opinion today regarding labor law has not changed. If anything, that opinion has become more established as the civilian labor population of the AMEDD has increased. We need more structured classes imbedded in courses for clinicians and nonclinicians alike who will have professional relationships, supervisory or otherwise, with civilian employees in the future. Reliance on that "one" supporting labor attorney, or the local Civilian Personnel Advisory Center, or the supporting human resource specialist(s) may not be enough to react to a crisis. More importantly, such a situation will not be conducive to the creation of an environment that is designed to prevent labor issues. My sense is that with the proper education, AMEDD leaders and/or managers can better understand the parameters of their authority. They can be empowered to take the necessary steps to create an employment environment where discrimination, inequity, and ignorance about civilian employee rights are absolutely minimal.

Quality Assurance

I generally try to address quality assurance (QA) in some of my classes because it is an important subject when dealing with documents and information produced by or pertaining to activities such as privileging, infection control, patient care assessment, medical records review, health resources management review, and identification and prevention of medical or dental incidents and risks (risk management, patient safety, and incident reports). Only The Surgeon General may authorize release of QA documents or information outside of DoD, so there is great sensitivity around these documents, the information generated in these documents, and the activities covered by the military quality assurance statute (10 USC [section]1102). From a legal standpoint, there is special sensitivity with regard to the procedures involving health provider misconduct and malpractice that affect the privileges of physicians, dentists, nurses, and other healthcare practitioners as this deals with the competencies Personal and Professional Individual Behavior, Patient Safety, and Quality Management and Performance Improvement.

When I address quality assurance in my classes, I try to always ask my students if they can tell me what QA really is and describe how Army Regulation 40-68 (5) implements QA within the Army. Some respond with empty stares. Others confuse it with HIPAA. Still others, normally clinicians, understand the basic concept but do not understand QA's impact on privileging. I explain how substandard care, clinical performance, or nonclinical misconduct can start a whole adverse action process that could ultimately impact their clinical careers, including licensure termination or reports to the National Practitioner Data Bank and/or the Healthcare Integrity and Protection Data Bank. The students' reaction is often one of surprise and disbelief. The ignorance was normal from class to class. Unfortunately, it is not uncommon in the legal profession. Years ago when I was asked to advise on my first Credentials Committee review of a clinician's privileges, I realized how very little I knew. I had a steep, accelerated learning curve.

I believe that all AMEDD personnel need some sense of QA and the QA Program within the AMEDD. It covers such a wide variety of topics in its own right, and protects the subject matter of those topics in a way that is often unique to the outside viewer, whether within or outside of the military. However, the QA program also deals with some of the most sensitive issues in terms of clinical conduct and its impact on the overall quality of Army healthcare.

Claims

Based on my experience as a command judge advocate, a regional judge advocate, and the Deputy Staff Judge Advocate at MEDCOM, I think that most AMEDD personnel think about 2 things when they see the topic of claims. First, they think about a military move where their household goods have been stolen or damaged, and they make a claim under the Military Personnel and Civilian Employees' Claims Act (31 USC [section] 3721) at the local "JAG office." Second, they think about some personal injury, death, or property damage caused by the negligence of military personnel acting in the scope of employment or occurring incident to noncombat operations where the patient files a claim under the Federal Tort Claims Act (28 USC [section][section]1 346(b), 2671-2680). The subject of claims does indeed relate to both of these types of claims and the subject certainly falls under the competencies of Public Law and Medical Liability. But there are other types of claims worthy of note, especially those that affect Financial Management at all levels of the AMEDD.

Medical Affirmative Claims under the Federal Medical Care Recovery Act (42 USC [section] 2651-2653) can be a significant source of revenue for a MEDDAC or MTF that has rendered care to a DoD beneficiary as a result of injury caused by a third party (such as a motor vehicular accident). The identification of a claim involves a great deal of coordination and integration between the supporting legal office and the MEDDAC or MTF personnel. This is so that a patient encounter is properly reported at the time of the visit and the legal office can then take action to put patients on notice of the rights of the MEDDAC or MTF to subrogate any damages received by the DoD beneficiary. My experience is that those MEDDACs or MTFs which have a strong Medical Affirmative Claim recovery program are those facilities that understand the value that can be generated by the program. They have the dedicated staff and focus from the leadership to ensure that medical care provided is ultimately paid for by the outside parties that caused the injuries. The money collected can then be used by the facility for patient care, training, and equipment.

The Third Party Collection Program (TPCP) is a congressionally mandated program that allows a MEDDAC or MTF to recoup expenses for medical care provided to nonactive duty beneficiaries when they have other health insurance. This is very different from the MAC program and often confused with the MAC program. This program is just as important to MEDDACs and MTFs in that they can legally generate additional revenue that can go to support the medical organization. But very often, the confusion over the 2 programs is part of the reason that the TPCP does not get the same visibility as the MAC program, yet it could also generate a great deal of revenue for a medical facility.

I do not propose that we make students and all AMEDD personnel experts in federal claims law, but I do think it is important that we teach people the clear differences among tort claims, personnel claims, MAC claims, and TPCP claims. Personnel claims support the morale of military members and tort claims are a reaction to negligent conduct and its resulting injury. Medical Affirmative Claims and TPCP are efforts to recoup expenses incurred in the provision of medical care. In all probability, such financial recovery could be increased if leadership clearly understood how useful and important these last 2 claims processes could be, especially in times of fiscal limitations.

Contract Law

Several years ago, I was asked, over the telephone, to interpret the ramifications of some action a department or clinic was planning in regard to an existing contract that provided support to the organization. I explained that I had to see the contract in order to provide an answer. The initial response was silence. The caller then indicated that he had never seen the contract. Indeed, he was clearly surprised in that he expected that I would be able to provide some general advice without the contract in hand. Contract law does not work that way.

There is no doubt that our dependency on contracts in the AMEDD has grown over the years which places emphasis on the competencies Financial Management, Material Management, Facilities Management, Information Management and Technology, and Human Resource Management as the AMEDD contracts for a great deal of personal services. When I arrived as the Deputy Staff Judge Advocate at MEDCOM in 2008, there were 2.5 contract attorneys on staff. When I left in 2012, I had helped in the hiring of over 8 attorneys in the Contract and Fiscal Law Division, and the hiring of an attorney in each region who had a responsibility in advising on acquisition matters. The need for contract law advice was considerable, but with that need existed the requirement for better understanding of contracts within the organization for which the contract was required.

Contracting by federal government entities is governed by a myriad of laws, regulations, rules, and guidelines, beginning with the Federal Acquisition Regulation, and percolating down through the separate departments to those that guide the individual contracting officer. I am certainly not advocating that AMEDD personnel in general be schooled in the provisions and details of this regulatory matrix, but I do strongly support providing AMEDD personnel with knowledge of the basics of the acquisition process to cover certain concepts:

* There must be an understanding of the role of the contracting officer whose authority to legally bind the Army is distinct and unique. Such authority is limited to that designated person, but all too often commanders and leaders think that their leadership position gives them the inherent authority to enter into contracts. Such a misinformed notion could easily result in an unauthorized commitment, which is definitely not a good outcome.

* There must be an understanding of the foundational principles of contracting. There are 2 parties to a contract; one the legal buyer, the other the legal seller. The legal buyer must have the authority to enter into the contract.

* Federal contracting laws are different from those that pertain in the civilian sector.

* The acquisition process is not just about contracts but also the process that results in the contract, including acquisition planning, contract solicitation and award, and then contract administration. Bad acquisition planning results if the customer does not know what it wants but then realizes last minute that it needs something tomorrow. If the customer does not have its requirements defined, those requirements cannot be properly researched and addressed through solicitation. If the customer has no idea of how the contract is managed, the result is almost invariably bad contract administration.

Whatever the approach, the teaching of contract law should be in conjunction with the Health Care Acquisition Activity and its supporting legal counsel so that the students of today can be the sophisticated contract officers, contract officer's representatives, and contract customers of the future.

Administrative Law

Before my initial assignment into the AMEDD, I was already heavily involved in administrative law. Administrative law covers many of the areas we have already addressed such as contract law, labor law, standards of conduct, and fiscal law, but I have added it as one of the 12 areas of law that should be taught because it also covers other subtopics such as the Privacy Act (5 USC [section] 552a), the Freedom of Information Act (FOIA) (5 USC [section] 552), environment law, administrative investigations, installation management, and intellectual property, to name just a few. Each of these areas is important and is seen as issues at MEDDACs and MTFs around the Army. They are directly relevant to the competencies of Public Law, Regulations, Military Mission, and Leadership. Outsiders who want copies of internal, clinical procedures make requests under FOIA. A person who wants a copy of his nonmedical personnel records requests those records under the Privacy Act. There are environmental considerations pertaining to the disposal of hazardous substances or whether a new MTF building can be built on a particular piece of ground. Upon receipt of a complaint, a commander or supervisor normally investigates in order to determine the facts at hand before any decision is made.

Administrative law matters are simply not just the purview of the installation where the MTF is located. Military treatment facilities and MEDDACs are often virtually installations unto themselves with a wide variety of issues similar to those found at the installation level. They contain retail exchange facilities, work with outside agencies for space requirements, investigate nonpeer issues such as misconduct, and manage the flow of nonpersonal health information everyday. They deal with a host of legal subjects that do not fall within a particular class of law, but that does not detract from the fact that administrative law topics need to be taught; whether as a special study elective or a block of instruction as part of an overall course.

Human Subject Research

Human subject research law is a very specialized area of law. It deals with bioethics and clinical investigations and is highly regulated, therefore requiring a solid understanding of governing regulations. Legal issues abound at local institutional review boards which oversee research projects within regional medical commands and at medical centers. I am concerned about rights and consent forms that are difficult to understand by participants, and protocols which could possibly violate bioethical standards within the AMEDD. Further, I think that there may be an insufficient number of legal counsel experienced in this practice across MEDCOM facilities and medical centers. Much of the considerable knowledge and experience in this area is found at the US Army's Medical Research and Material Command (MRMC). Except for a solid class taught in the Army-Baylor Graduate Program in Health and Business Administration and some ad hoc classes taught by seasoned command judge advocates or MRMC legal counsel, there really is not a structured class or course on medical research within the AMEDD or the Army. The Army-Baylor class is a model that could be emulated and expanded, not only at the Academy of Health Sciences but throughout the AMEDD.

THE RESULTS

While there is no way to predict the result of a more comprehensive, coordinated, and nested approach to legal education for AMEDD personnel, the results would be an improvement over an assortment of classes that are merely reused from course to course and from basic to advance levels. There is no clear plan in effect to teach legal subject matter to prepare personnel based on the Joint Medical Executive Skill Institute's list of required competencies. Army medicine's personnel are facing ever increasing legal issues due to the nature of military healthcare, the increased civilian employee workforce, and the greater need for contracting within the military heath system. Such a plan is long overdue, and its supporting rationale, while mostly anecdotal, is based on the reality of experiences from practice. There is a finite level of legal support in the field. At the very least, AMEDD personnel should be able to identify potential legal issues early and not find it necessary to react to such issues only after they reach crisis proportions.

ACKNOWLEDGEMENT

Dr Karin Zucker, JD, has been teaching organizational ethics in the Army-Baylor MHA/MBA program for many years, as well as teaching health law and ethics in other courses at the AMEDDC&S. Her dedication and success has ensured the continuity of legal education within the AMEDD, and were inspirations for this article.

The proposal in this paper was represented in a poster presentation displayed at the 3rd Annual Academy of Health Sciences Graduate School Research Day on December 11, 2013. Electronic copies of the poster are available from the author upon request.

REFERENCES

(1.) Army Regulation 27-10: Military Justice. Washington, DC: US Dept of the Army; October 3, 2011.

(2.) Department of Defense 5500.7-R: Joint Ethics Regulation. Washington, DC: US Dept of Defense; 1993 w/change 7, November 17, 2011. Available at: http://www.dtic.mil/whs/directives/corres/pdf7550007r.pdf. Accessed December 10, 2013.

(3.) Army Regulation 600-100: Army Leadership. Washington, DC: US Dept of the Army; March 8, 2007.

(4.) Horoho PD. A system for health: essential element of national security. US Army Med Dep J. October December 2013;4.

(5.) Army Regulation 40-68: Clinical Quality Management. Washington, DC: US Dept of the Army; 2004 [revised 2009].

MAJ Joseph B. Topinka, JAGC, USA

* The Uniform Code of Military Justice (UCMJ), a federal law (64 Stat. 109, 10 USC, chap 47), is the judicial code which pertains to members of the United States military. Under the UCMJ, military personnel can be charged, tried, and convicted of a range of crimes, including both common-law crimes (eg, arson) and military-specific crimes (eg, desertion).

([dagger]) Nonjudicial punishment is outlined in Article 15 of the UCMJ. The legal process involving NJP is commonly referred to as simply "Article 15." The general rule is that Article 15s should be given for minor offenses under the UCMJ's punitive articles. Implementation of NJP in the Army is detailed in chapter 3 of Army Regulation 27-10. (1)

MAJ Topinka is an Assistant Professor in the US Military-Baylor University Graduate Program in Health and Business Administration, and is the Legal Instructor at the Army Medical Department Center and School Leader Training Center, JBSA Fort Sam Houston, Texas.

Joint Medical Executive Skills Institute Competency Model

Military Medical Competencies
  Medical Doctrine
  Military Mission
  Total Force Management
  Medical Readiness Training
  Emergency Management and Contingency Planning

Leadership and Organizational Management Competencies
  Strategic Planning
  Organizational Design
  Decision Making
  Change Management
  Leadership

Health Law and Policy Competencies
  Public Law
  Medical Liability
  Medical Staff By-Laws
  Regulations
  Accreditation and Inspections

Health Resources Allocation Competencies
  Financial Management
  Human Resource Management
  Labor-Management Relations
  Materiel Management
  Facilities Management
  Information Management and Technology

Ethics in the Health Care Environment Competencies
  Personal and Professional Ethics
  Bioethics
  Organizational Ethics

Individual and Organizational Behavior Competencies
  Personal and Professional Individual Behavior
  Group Dynamics
  Conflict Management
  Interpersonal Communication
  Public Speaking
  Strategic Communication

Performance Measurement and Improvement Competencies
  Population Health Improvement
  Clinical Investigation
  Integrated Health Care Delivery Systems
  Quality Management and Performance Improvement
  Patient Safety

Source: Joint Medical Executive Skills Institute website,
https://jmesi.army.mil/documents.asp
COPYRIGHT 2014 U.S. Army Medical Department Center & School
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2014 Gale, Cengage Learning. All rights reserved.

 
Article Details
Printer friendly Cite/link Email Feedback
Author:Topinka, Joseph B.
Publication:U.S. Army Medical Department Journal
Article Type:Report
Geographic Code:1USA
Date:Jan 1, 2014
Words:6807
Previous Article:Raising the educational standard for Army Nursing faculty.
Next Article:Innovating to integrate the intangibles into the learning Air Force.
Topics:

Terms of use | Privacy policy | Copyright © 2018 Farlex, Inc. | Feedback | For webmasters