Category Archives: MED

High Risk Pregnancy Overseas: State/MED’s SOP Took Precedence Over the FAM? No Shit, Sherlock!

– Domani Spero

 

The Foreign Affairs Manual says that it is the general policy of the Department of State “to  provide all medical program participants with the best medical care possible at post. In a situation where local medical facilities are inadequate to provide required services, travel to locations where such services can be obtained may be authorized.” (see 16 FAM 311).  Elsewhere on the same regs, the FAM says  that “a pregnant patient who is abroad under U.S. Government authorization is strongly encouraged to have her delivery in the United States. The patient may depart from post approximately 45 days prior to the expected date of delivery and is expected to return to post within 45 days after delivery, subject to medical clearance or approval.” (see 16 FAM 315.2 Travel for Obstetrical Care).

A grievance case involving a high risk pregnancy of a Foreign Service spouse was recently decided by the Foreign Service Grievance Board (FSGB).  This is one case where you kind of want to bang your head on the wall. The FAM gets the last word in the Foreign Service, but in this case (and we don’t know how many more), the State Department  ditched the relevant citation on the Foreign Affairs Manual in favor of a longstanding practice on its Standard Operating Procedure (SOP). Specifically, the Department’s Office of Medical Services (MED)  SOP. So basically, MED relied on its interpretation of the regulations contained on its SOP instead of the clear language included in the FAM.

No shit, Sherlock!

Excerpt below from FSGB Case No. 2014-007.

SUMMARY: During grievant’s tour in his spouse became pregnant. She had had five previous pregnancies, none of which resulted in a viable birth. The post medical team (FSMP) and the State Department Office of Medical Services (MED) both agreed that this was a very high-risk pregnancy and that the preferred option was that the spouse return to the U.S. as soon as possible for a special procedure and stay under the care of a single obstetrician specializing in high-risk care for the remainder of her pregnancy. Although MED authorized a 14-day medical evacuation for the procedure, it advised grievant that, under its longstanding practice, it could not authorize further medical evacuation per diem under 16 FAM 317.1(c) prior to the 24th week of gestation. MED instead directed grievant to seek the much lower Separate Maintenance Allowance (SMA).

Grievant claimed that the regulation itself stated only that per diem for complicated obstetrical care could be provided for up to 180 days, and therefore permitted his spouse to receive such per diem beginning in approximately the 10th week of pregnancy, when she returned to the U.S. for treatment. He also claimed that he was entitled to have his airline ticket paid for by the agency as a non-medical attendant when he accompanied his wife back to the U.S., since her condition precluded her from carrying her own bags.

The Board concluded that the agency’s regulation was not ambiguous, and that any clarification meant to be provided by the agency’s longstanding practice was both plainly erroneous and inconsistent with the agency’s own regulations, and arbitrary and capricious. We, therefore, did not accord any deference to the agency’s interpretation of its regulations by virtue of this practice, and relied instead on the language of the regulation itself.

Here is the FAM section on Complicated obstetrical care:

16 FAM 317.1(c):  If the Medical Director or designee or the FSMP [Foreign Service Medical Provider] at post determines that there are medical complications necessitating early departure from post or delayed return to post, per diem at the rates described in 16 FAM 316.1, may be extended, as necessary, from 90 days for up to a total of 180 days.  

More from the Record of Proceeding:

When FSMP contacted MED in Washington, DC, they were given the response that MED does not medevac for obstetrical care until after the 24th week of gestation. The 24th week of gestation is when the medical world deems a fetus viable outside of the womb. Grievant claims both FSMP and the post’s Human Resources (HR) reviewed the FAM and other MED documents to determine how MED handles high risk pregnancies at a hardship post and could not find any reference that limited a high risk pregnancy to the 24 weeks claimed by MED.

Grievant claims he contacted the head of MED and asked for an explanation as to why MED was not following 16 FAM 317.1(c), which allowed for medevac for high risk pregnancies. M/MED/FP responded with the following in an e-mail dated August 27, 2013:

This issue of how early a woman can be medevac’d for delivery comes up regularly. So does the situation of cervical cerclage – up to 80,000 procedures are done in the U.S. per year. While not in the FAM, MED has a long standing internal SOP that the earliest we will medevac a mother for obstetrical delivery is at 24 weeks gestation. 

Grievant claims that his spouse’s pregnancy was high-risk enough to qualify for medical evacuation prior to the 24 weeks’ gestation. Grievant also argues that every medical professional in and in Washington, including MED staff, agreed. Grievant argues that MED’s justification for how they choose which pregnancy to deem OB-medevac-worthy for high risk is ambiguous. Grievant takes issue with MED imposing internal rules that are not published in the FAM. Grievant claims that the alternatives offered by MED were not in accordance with 16 FAM 317.1(c).

What was the official State Department position?

The agency asserts that grievant’s wife was medevac’d to Washington, DC, to receive obstetrical care. MED did not believe there were medical complications necessitating early departure from post or delayed return to post. Thus, the agency claims, 16 FAM 317.1(c) does not apply to her situation.

Did it not matter that the FSO’s wife “had had five previous pregnancies, none of which resulted in a viable birth?”  The Department also made the following argument:

The agency further argues that, in any event, although not compelled by law, the Department’s Office of Medical Services (MED) has a longstanding internal Standard Operating Procedure (SOP) that the earliest MED will authorize a medevac of a pregnant woman for delivery, even in the case of complicated pregnancies, is 24 weeks’ gestational age. This SOP, MED asserts, is based on the medical community’s widely accepted recognition that the gestational age for fetal viability is 24 weeks. 

Ugh!

The ROP states that MED personnel communicating with both grievant and the post FSMP repeatedly relied on the SOP that no medevac would be provided prior to the 24th week of pregnancy as the basis for their guidance. They did not cite grievant’s wife’s particular medical circumstances as the rationale for denying an earlier continuous medevac.

You might remember that the last time MED failed to use common sense, the State Department ended up as a target of a class action lawsuit.

Here is the Board’s view:

It is the Board’s view that 16 FAM 317.1(c) is not ambiguous. It provides for the Medical Director or designee or the FSMP at post to determine if there is a complication requiring early departure or a delayed return, and authorizes up to 180 days’ per diem when such a determination is made. The entire context of the provision is to define what benefits are provided when based upon medical needs, and the provision appears to reflect the individualized medical decision making required in the case of complicated obstetrical care. Although the preceding provision, 16 FAM 317.1(b),8 places a set 45-day limit for per diem both before and after an uncomplicated pregnancy and birth, that limit is also, by all appearances, based on medical analysis of normal pregnancies and deliveries, which lend themselves to such generalizations. Airlines do not allow pregnant women to travel less than 45 days before birth, because of the risks involved. 16 FAM 317.1(b) recognizes and incorporates that medical evaluation under the circumstances of a normal pregnancy. Although not stated explicitly in the record, we assume that the 45 days of per diem permitted after delivery also reflects a medical assessment of recovery times under normal circumstances, which, because they are normal, can be generalized.
[…]
In the Board’s view, the longstanding practice is also arbitrary and capricious and an abuse of discretion. As stated by MED, the rationale for the 24-week practice is that a fetus is generally not considered viable before the 24th week of pregnancy. It is not based on, and does not take into consideration, whether the mother’s need for medical care can be provided safely at post prior to the 24th week, or whether the medical care needed by any fetus of less than 24 weeks to come to full term as a healthy baby can safely be provided at post. It is difficult to see any link at all between the rationale offered by State/MED with the recognition of medical needs established in the regulations.

It is the Board’s conclusion that 16 FAM 317.1(c) is not ambiguous, and that any clarification meant to be provided by the Department’s longstanding practice of requiring the 24-week waiting period in cases of complicated pregnancies is both plainly erroneous and inconsistent with the Department’s own regulations, and arbitrary and capricious. We, therefore, do not accord any deference to the Department’s interpretation of its regulations by virtue of this practice, and rely instead on the regulation itself.

To the extent that the agency is arguing that the SOP is freestanding and applies by its own terms, apart from 16 FAM 317.1(c), again, we conclude that the agency is in error. By the same analysis as outlined above, the SOP conflicts with the provision of the published regulations of the agency. An SOP may not take precedence over a regulation with which it is in conflict.

The Board’s conclusion, based on the record, is that this was a high-risk pregnancy, with risks to both the mother and the fetus, and that the necessary obstetrical care was in the U.S. Under these circumstances, medical evacuation per diem should have been authorized beginning upon the return of grievant’s wife to the U.S., and continuing for 180 days.

Doesn’t it makes you wonder how many high risk pregnant women on USG orders overseas were affected by this longstanding internal Standard Operating Procedure (SOP)?  If planning on getting pregnant overseas, read the redacted ROP below:

 

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Poor MidLevel Official Writes #Ebola Memo That Never Went Anywhere — Oy!

– Domani Spero

 

In September, we blogged that the State Dept Awarded $4.9 Million Contract to Phoenix Air for Air Ambulance Evacuation #Ebola.  Apparently, the last couple of days there was a flap over a State Department memo on a plan to bring non-Americans with Ebola to U.S. soil for treatment. The memo labeled Sensitive But Unclassified – Predesicional is available to read here and notes USG obligation to non-U.S. citizen employees and contractors of U.S. agencies (USAID, CDC, etc.) and programs as well as NGOs and private firms based in the United States.

The  Washington Times identified the memo’s author as Robert Sorenson, deputy director of the Office of International Health and Biodefense (OES/IHB). The Office of International Health and Biodefense is the primary State Department policy office responsible for a variety of international health issues. It takes part in U.S. Government policymaking on infectious disease, environmental health, noncommunicable disease issues, global health security, antimicrobial resistance, and counterfeit and substandard medications.  A clearance sheet attached to the memo reportedly says it was cleared by offices of the deputy secretary, the deputy secretary for management, the office of Central African affairs and the medical services office.

The memo did make it to the Daily Press Briefing at the State Department. Excerpt below:

QUESTION: And then the last one on this is: There was a report last night and again this morning about this memo that was – the State Department memo –

MS. PSAKI: Sure, let me address that.

QUESTION: — about bringing –

MS. PSAKI: Mm-hmm. One, just factually, the document referenced was drafted by a midlevel official but not cleared by senior leaders. It never came to senior officials for approval. And any assertion that the memo was cleared by decision-makers is inaccurate. There are no plans to medevac non-Americans who become ill with Ebola to the United States. We have discussed allowing other countries to use our medevac capabilities to evacuate their own citizens to their home countries or third countries subject to reimbursement and availability. But we’re not contemplating bringing them back to the United States for treatment.

QUESTION: So the – but essentially, what you’re saying is that one guy somewhere in this building came up with this idea and put it on paper, but it never went anywhere? Is that what you’re saying?

MS. PSAKI: Correct. It’s also weeks old and the memo isn’t current because European – our European partners –

QUESTION: All right. Okay.

MS. PSAKI: — have addressed this matter by providing their own guarantees, but go ahead.

QUESTION: One problem that – I mean, that I see is that a week ago, the Pentagon and the White House was insisting that, no, no, no, there is no overall quarantine order and it’s just this one commander, or these guys who are in Italy. And now all of a sudden, today we have Secretary Hagel saying no, it’s going to be – it’s Pentagon-wide and it’s going to go to all of the troops that are there. What is there to prevent this memo from coming back to life, as it were –

MS. PSAKI: Well, I think with this –

QUESTION: — and becoming policy? Has it been flat out rejected or is it just kind of sitting on a shelf someplace and maybe could be implemented at some point?

MS. PSAKI: It’s sitting on a shelf or on a computer – since we use computers nowadays – by the individual who wrote it, I suppose. I think the important point here is that our European partners, since several weeks ago when that was written, have addressed this by providing a guarantee to international health workers that they would either be flown to Europe or receive high-quality treatment on the spot. So it’s not applicable at this point.

QUESTION: Okay. Well, in general, why was this never approved? I mean, it seems – I mean, you could make the argument that the U.S. has great healthcare facilities, that no one who has contracted the disease in the United States has actually died. So I think there might be some who could make the argument that why not bring people?

MS. PSAKI: Sure, but many countries have decided to make that decision to deal with it themselves, and we’ve certainly been discussing with them how to do that.

QUESTION: So this has been discarded as unnecessary rather that rejected –

MS. PSAKI: It was never discussed at any levels, in any serious level with decision-makers. So I don’t – wouldn’t say it was discarded, but –

QUESTION: Okay.

QUESTION: Along the lines of what Matt was saying, on page 5 of the memo, it says that it was approved by Nancy Powell, the head of the Ebola Coordination Unit. Doesn’t that suggest it was fairly further along in the process?

MS. PSAKI: I’m happy to look at the approval memo. As I understand, and just so you know, sometimes there are people listed. It doesn’t mean they cleared it. It just means there are people who need to clear a memo. So I will check and see if there was anybody who actually cleared it.

“One guy somewhere in this building came up with this idea and put it on paper, but it never went anywhere?” And the official spokesperson, without blinking said, “correct.”

Don’t you just hate it when they say things like that and throw some midlevel official under the medevac plane?

In fact, the justification for the air ambulance evacuation contract awarded to Phoenix Air on August 18, 2014 appears clear enough as to why this was necessary:

The USG is left with only two options in supporting a CDC scientist that has a high risk exposure to an EVD patient — use the PAG capability to fly the person back to the US for observation and optimum care should disease develop, or leave the person in place where no care is available if the disease develops. The question, then, is not how many EVD patients will be moved, but rather how many contacts and EVD patients will be moved across the entire international response population (as many as three per month). Finally, from a pragmatic stand point, given the limited options for movement of even asymptomatic contacts, it has become clear that an international response to this crisis will not proceed if a reliable mechanism for patient movement cannot be established and centrally managed.

That leaked memo is not saying we’re moving Liberia’s entire infected population for treatment in U.S. hospitals, is it?  An argument can be made that the USG has an obligation to assist in the treatment of those infected in the course of their work fighting the ebola outbreak on behalf of the international community.  The State Department is not/not making that argument, of course.  The only official argument it is making is that — that memo, that never went anywhere beyond the midlevel officer’s desk.

Nothing to do with an election coming up? Sure, okay.

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Photo of the Day: Ambassador Power Visits Monrovia Medical Unit, Liberia

via state.gov

U.S. Ambassador to the United Nations Samantha Power, second from right, receives a briefing from Rear Admiral Scott Giberson, far right, who is the Acting Deputy Surgeon General and Director of the Commissioned Corps of the U.S. Public Health Service, about the Monrovia Medical Unit (MMU), a 25-bed field hospital that will be used to treat Ebola-infected health care workers, on October 28, 2014. The MMU is expected to open soon, and will be staffed by members of the U.S. Public Health Service Commissioned Corps. Also pictured, from left to right, are: Liberia’s Foreign Minister Augustine Ngafuan, USAID/OFDA Director Jeremy Konyndyk, U.S. Ambassador to Liberia Deborah Malac, and Disaster Assistance Response Team (DART) Leader Bill Berger. USUN Ambassador Power is in Liberia to see firsthand the impact of the Ebola epidemic and to press for a more robust response from the international community. [State Department photo/ Public Domain]

U.S. Ambassador to the United Nations Samantha Power, second from right, receives a briefing from Rear Admiral Scott Giberson, far right, who is the Acting Deputy Surgeon General and Director of the Commissioned Corps of the U.S. Public Health Service, about the Monrovia Medical Unit (MMU), a 25-bed field hospital that will be used to treat Ebola-infected health care workers, on October 28, 2014. The MMU is expected to open soon, and will be staffed by members of the U.S. Public Health Service Commissioned Corps. Also pictured, from left to right, are: Liberia’s Foreign Minister Augustine Ngafuan, USAID/OFDA Director Jeremy Konyndyk, U.S. Ambassador to Liberia Deborah Malac, and Disaster Assistance Response Team (DART) Leader Bill Berger. USUN Ambassador Power is in Liberia to see firsthand the impact of the Ebola epidemic and to press for a more robust response from the international community. [State Department photo/ Public Domain]

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CRS: Ebola Outbreak – Quarantine v. Isolation, Travel Restrictions, Select Legal Issues

– Domani Spero

 

On October 25, WaPo reported that the governors of New York Andrew Cuomo and New Jersey Gov. Chris Christie ordered on Friday the imposition of a mandatory 21-day quarantine for medical workers returning from the countries hit hardest by the ebola epidemic. Illinois later in the day imposed similar restrictions. Today, NYT reported that the Obama administration has expressed deep concerns to the governors and is consulting with them to modify their orders to quarantine medical volunteers returning from West Africa.

Ebola CRS report via Secrecy News (pdf):

On August 8th, the World Health Organization declared the outbreak of the Ebola Virus Disease in West Africa a Public Health Emergency of International Concern. The recent arrival in the United States of several health care workers who contracted the disease, combined with the first diagnosis of a case in the U.S. at a hospital in Dallas, has sparked discussion about the appropriate government response. Aside from the various policy considerations at issue, the outbreak has generated several legal questions about the federal government’s authority to restrict specific passengers’ travel and/or contain the outbreak of an infectious disease. These questions include, inter alia, whether the federal government may: (1) restrict which countries U.S. nationals may travel to in the event of a public health crisis; (2) bar the entry into the United States of people who may have been infected by a disease; and (3) impose isolation or quarantine measures in order to control infectious diseases.

Passport restrictions on which countries U.S. citizens may visit can be imposed by the Secretary of State. Pursuant to the Passport Act, the Secretary of State may “grant and issue passports” according to rules designated by the President, and may impose restrictions on the use of passports to travel to countries “where there is imminent danger to the public health or the physical safety of United States travellers” (sic). The Supreme Court has recognized that the authority to “grant and issue” passports includes the power to impose “area restrictions” – limits on travel to specific countries (restrictions must comply with the Due Process Clause of the Constitution). Although passport restrictions are not criminally enforceable, they may prevent travelers from boarding a flight to a restricted area.

Restrictions may also be imposed on who may enter the United States, though the range of applicable restrictions may differ depending upon whether a person seeking entry into the country is a U.S. national. The government enjoys authority under federal immigration law to bar the entry of a foreign national on specific health-related grounds, including when a particular foreign national is determined to have a “communicable disease of public health significance.” More broadly, section 212(f) of the Immigration and Nationality Act authorizes the President, pursuant to proclamation, to direct the denial of entry to any alien or class of aliens whose entry into the country “would be detrimental to the interests of the United States.”

These restrictions do not apply to U.S. citizens, who may enjoy a constitutional right to reenter the country. Nonetheless, certain travel restrictions may impede the ability of any person – regardless of citizenship – from traveling to the United States in a manner that potentially exposes others to a communicable disease. For example, airlines flying to the U.S. are permitted under Department of Transportation regulations to refuse transportation to passengers with infectious diseases who have been determined to pose a “direct threat” to the health and safety of others. In making this determination, airlines may rely on directives from the CDC and other government agencies. Pilots of flights to the United States are also required to report certain illnesses they encounter during flight before arrival into the U.S.

In addition, the Department of Homeland Security and Centers for Disease Control and Prevention (CDC) maintain a public health “Do Not Board” (DNB) list, which contains the names of people who are likely to be contagious with a communicable disease, may not adhere to public health recommendations, and are likely to board an aircraft. Airlines are not permitted to issue a boarding pass to people on the DNB list for flights departing from or arriving into the United States. People placed on the DNB list are also “assigned a public health lookout record,” which will alert Customs and Border Protection officers in the event the person attempts to enter the country through a port of entry. The CDC’s Division of Global Migration and Quarantine (DGMQ) can conduct exit screening at foreign airports to identify travelers with communicable diseases and alert the relevant local authorities.

Finally, both federal and state governments have authority to impose isolation and quarantine measures to help prevent the spread of infectious diseases. While the terms are often used interchangeably, quarantine and isolation are actually two distinct concepts. Quarantine typically refers to separating or restricting the movement of individuals who have been exposed to a contagious disease but are not yet sick. Isolation refers to separating infected individuals from those who are not sick. Historically, the primary authority for quarantine and isolation exists at the state level as an exercise of the state’s police power in accordance with its particular laws and policies.

However, the CDC is also authorized to take measures “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” In order to do so, the implementing regulations “authorize the detention, isolation, quarantine, or conditional release of individuals.” This authority is limited to diseases identified by an Executive Order of the President, a list which currently includes Ebola. Whether an isolation or quarantine order originates with the federal or state government, such orders will presumably be subject to habeas corpus challenges, and must also comport with the Due Process Clause of the Constitution.

View the original CRS Legal Sidebar here (pdf) includes active links.

And that legal challenge may soon be upon us. On October 26, Kaci Hickox, a nurse placed under mandatory quarantine in New Jersey, went on CNN on Sunday and criticized the “knee-jerk reaction by politicians” to Ebola.  According to CNN, Hickox, an epidemiologist who was working to help treat Ebola patients in Sierra Leone, has tested negative twice for Ebola and does not have symptoms.  Norman Siegel, Hickox’s attorney, and a former director of the New York Civil Liberties Union told CNN that he will be filing papers in court for Hickox to have a hearing no later than five days from the start of her confinement. Siegel told CNN that Hickox’s quarantine is based on fear.

Here is the link to the Executive Order 13295 of April 4, 2003 cited above by the CRS brief via:

[T]he following communicable diseases are hereby specified pursuant to section 361(b) of the Public Health Service Act:

(a) Cholera; Diphtheria; infectious Tuberculosis; Plague; Smallpox; Yellow Fever; and Viral Hemorrhagic Fevers (Lassa, Marburg, Ebola, Crimean-Congo, South American, and others not yet isolated or named).

July 31, 2014 Update

“(b) Severe acute respiratory syndromes, which are diseases that are associated with fever and signs and symptoms of pneumonia or other respiratory illness, are capable of being transmitted from person to person, and that either are causing, or have the potential to cause, a pandemic, or, upon infection, are highly likely to cause mortality or serious morbidity if not properly controlled. This subsection does not apply to influenza.”

A side note, the U.S. Ambassador to the United Nations, Samantha Power is currently traveling to the countries in West Africa hardest hit with the ebola outbreak:

 

 

Now, since Ambassador Power is not a medical worker, she probably will not be subjected to the NJ/NY mandatory quarantine when she gets back. However, on October 22, the Centers for Disease Control and Prevention (CDC) announced that public health authorities will begin active post-arrival monitoring of travelers whose travel originates in Liberia, Sierra Leone, or Guinea.  Active post-arrival monitoring, according to the CDC  means that travelers without febrile illness or symptoms consistent with Ebola will be followed up daily by state and local health departments for 21 days from the date of their departure from West Africa. Except that Ambassador Power’s return trip will not be originating from West Africa but from Belgium, the last stop on this West Africa-Europe trip before returning to the U.S.

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State Department on PTSD Workers’ Comp Claims: How Well Is This Working?

– Domani Spero

 

We received a note recently from a reader who is deeply concerned about his/her State Department friend diagnosed with PTSD from an assignment in a war-torncountry. The condition is allegedly aggravated by the lack of understanding on the part of the officer’s superiors who “pressured” the employee to return to another “very stressful/high pressure work duties.”

“My friend was not shot, raped, tortured or maimed by explosive devices. No single, well-defined, event happened. That said, s/he/it now lives a life far more constrained by physiological barriers due to time spent in dangerous climes.”

That got us looking at what resources are available to State Department employees suffering from PTSD.  We found the following information on state.gov.

Employees working in high threat environments such as Afghanistan, Iraq, Pakistan, Libya and Yemen may develop symptoms of Post Traumatic Stress Disorder (PTSD) as a result of their performance of duty.

PTSD may be basis for a workers’ compensation claim under the Federal Employees’ Compensation Act (FECA). The FECA is administered by the U.S. Department of Labor, Office of Workers’ Compensation Programs (OWCP). If an OWCP claim is accepted, benefits may include payment of medical expenses and disability compensation for wage loss.

When an employee develops any mental health symptoms, including symptoms of PTSD, he/she is encouraged to make a confidential appointment with a counselor in the Office of Medical Services (MED)’s Employee Consultation Services (ECS) office. If the initial evaluation indicates symptoms suggestive of PTSD, ECS will refer the employee to MED’s Deployment Stress Management Program (DSMP) for further evaluation. A psychiatrist designated by DSMP will document the initial symptoms for the OWCP claim form (CA-2) and CA-20 (Attending Physician’s Statement). If the employee requires assistance in completing the OWCP claims package, HR’s Office of Casualty Assistance (OCA) will help the employee gather the required documentation, complete the necessary paperwork, and submit the claims package.

OWCP has advised the Department that PTSD claims will be handled expeditiously. PTSD claims from Department employees have been successfully adjudicated by OWCP in the past. The Office of Employee Relations (HR/ER) will remain the point of contact with OWCP. HR/ER will provide consultation, advice and guidance on the OWCP process and on issues regarding the employee’s use of leave (annual, sick, and use of FMLA), disability accommodation options, and benefits. HR/ER will manage the employee’s claim after OWCP receives it and continue in its liaison role with OWCP to meet the employee’s needs.

Some PTSD patients may require treatment by a specialist outside of the Department of State. For such cases, MED/DSMP may refer the employee to an outside provider. MED will cover the initial cost of treatment until OWCP accepts the claim, submitted by the employee through HR, and OWCP will reimburse MED once the claim is accepted. If OWCP does not accept the case as work-related, the employee should submit the medical bills to his/her insurance carrier to reimburse MED for the initial treatment costs. Subsequent treatment costs will be the responsibility of the employee’s health insurance provider.

Throughout this process, the Office of Casualty Assistance (OCA) will assist the employee and his/her family as they adjust to the employee’s medical condition and explore various options affecting their career with the Department. OCA’s role is to assist the employee with paperwork and coordinate with other Department offices as appropriate.

Workers’ Comp Resources: (* = Intranet Website)

DoL Workers’ Compensation Program Website
OWCP Forms: CA-2 CA-2a CA-20 (pdf)
DoL’s Publication CA-801

DoS Office of Casualty Assistance (OCA)* Tel: 202-736-4302
DoS Office of Employee Relations (HR/ER)*

Email: HRWorkersCompensation@state.gov

 

Frankly, the Office of Casualty Assistance (OCA) has not been terribly impressive. So we’d like to know how responsive is OCA at State when it comes to offering assistance to employees with PTSD who had to deal with worker’s comp?

And how well is DOL’s Workers’ Comp program working if you have PTSD?

We must add that while PTSD is typically associated with assignments to high threat environments such as Afghanistan, Iraq, Pakistan, Libya and Yemen, Foreign Service employees and family members are assigned to over 280 posts around the world.  Some of these assignment are to war-torn countries in Africa that are not priority staffing posts like AIP or are in critical crime posts such as some cities in Mexico, the DRC, and several posts in the Western Hemisphere (looking at Honduras, Guate and El Salvador). Studies show that crime events are also associated with high rates of PTSD.   The focus on PTSD and employees in high threat environments in the state.gov information above excludes a long list of critical crime posts and appears to discount, by omission, crime-related PTSD and post-traumatic experience in posts not located in Afghanistan, Iraq, Pakistan, Libya and Yemen.

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EEOC Affirms Class Action Certification For Disabled Applicants to the U.S. Foreign Service

– Domani Spero

 

In October 2010, we blogged that the Equal Employment Opportunity Commission (EEOC) has certified a class action brought on behalf of all disabled Foreign Service applicants against the U.S. State Department.  (see  EEOC certifies class action against State Dept on behalf of disabled Foreign Service applicants).

Related items:

Meyer, et al. v. Clinton (Department of State), EEOC Case No. 570-2008-00018X (September 30, 2010) (certifying class action based upon disability discrimination in State Department’s Foreign Service Officer hiring)

This past June, the EEOC affirmed the class certification for applicants to the Foreign Service denied or delayed in hiring because of their disabilities, based upon the “worldwide availability” policy.  (see Meyer v. Kerry (Dept. of State), EEOC Appeal No. 0720110007 (June 6, 2014)).

The State Department Disability Class Action now has its own website here.  Bryan Schwartz in San Francisco and Passman & Kaplan in Washington represented the class. The State Department’s Office of Legal Advisor and Office of Civil Rights represented the department.

Below is an excerpt from the class action website:

The EEOC decision found that the Class Agent in the matter, Doering Meyer, has had multiple sclerosis (MS) in remission for decades, without need for treatment, but was initially rejected outright for State Department employment anywhere in the world because the Department’s Office of Medical Services perceived that her MS might cause her problems in “a tropical environment.” This was notwithstanding a Board Certified Neurologist’s report approving her to work overseas without limitation.
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The Department challenged the judge’s initial certification decision because, among other reasons, Meyer eventually received a rare “waiver” of the worldwide availability requirement, with her attorney’s assistance, and obtained a Foreign Service post. She is now a tenured Foreign Service Officer, most recently in Croatia, and being posted to Lithuania. Meyer’s attorney argued to the EEOC that she was still delayed in her career growth by the initial denial in 2006, and missed several posting opportunities over the course of an extended period, losing substantial income and seniority. The EEOC agreed with Meyer – modifying the class definition slightly to include not only those denied Foreign Service Posts, but those “whose employment was delayed pending application for and receipt of a waiver, because the State Department deemed them not ‘worldwide available’ due to their disability.”

Schwartz indicated that the case may ultimately have major implications not only for Foreign Service applicants, and not only in the State Department, but for all employees of the federal government abroad who have disabilities, records of disabilities, and perceived disabilities, and who must receive medical clearance through the Department’s Office of Medical Services. He noted that he has already filed other alleged class cases, also pending at the EEOC – one on behalf of applicants for limited term appointments (who need “post-specific” clearance, but are also denied individualized consideration), and another on behalf of employees associated with people with disabilities, who are denied the opportunity to be hired because of their family members who might need reasonable accommodations (or be perceived as disabled).

The Commission had also received an “Amicus Letter” from a consortium of more than 100 disability-related organizations urging the Commission to certify the class.

Read the full ruling at (pdf) Meyer v. Kerry (Dept. of State), EEOC Appeal No. 0720110007 from June 6, 2014 where the State Department contends that since this complaint was filed, the Office of Medical Services has changed many of its procedures in assessing “worldwide availability.”It also suggested that “many of those individuals who were found not worldwide available in 2006 maybe currently worldwide available under new definitions and procedures.”

The Commission, however, says that it “is not finding that changes made to the Medical Clearance process subsequent to the filing of the instant complaint have remedied any alleged discriminatory policy.”  

The order states (pdf): “It is the decision of the Commission to certify the class comprised of “all qualified applicants to the Foreign Service beginning on October 7, 2006, who were denied employment, or whose employment was delayed pending application for and receipt of a waiver, because the State Department deemed them not “world-wide available” due to their disability.”

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State Dept Awards $4.9 Million Contract to Phoenix Air for Air Ambulance Evacuation #Ebola

Domani Spero

 

Yahoo News reported on September 9 that “an undisclosed number of people who’ve been exposed to the Ebola virus — not just the four patients publicly identified with diagnosed cases — have been evacuated to the U.S. by an air ambulance company contracted by the State Department.”  The report identified Phoenix Air Group as the provider of the air ambulance services. The VP of the company said medical privacy laws and his company’s contract with the State Department prevented him from revealing how many exposed patients have been flown from West Africa to the U.S.  He did tell the reported that Phoenix Air has flown 10 Ebola-related missions in the past six weeks. The report also says that the State Department confirmed the four known Ebola patient transports but couldn’t provide details on any exposure evacuations to the United States.  An unnamed State Department official told Yahoo News that “every precaution is taken to move the patient safely and securely, to provide critical care en route, and to maintain strict isolation upon arrival in the United States.”(See Ebola evacuations to US greater than previously known).

Public records indicate that the State Department awarded the air ambulance contract on August 18, 2014.  The sole source contract was awarded to Phoenix Air for a period of six (6) months at an estimated cost of $4,900,000.00 under FAR 6.302-2  for “unusual and compelling urgency.” The services include among others, air ambulance evacuation, a dedicated on-call aircraft and flight crew, an aero-biological containment system, and emergency recall and mission preparedness:

This requirement is in response to Department of State’s diplomatic mission overseas to provide movement of emergency response personnel into and out of hazardous/non-permissive environments and medical evacuation of critically ill/injured patients, including those infected with unique and high contagious pathogens. This is an immediate response to the Ebola Virus Crisis.

The contract justification says that the movement of patients infected with highly contagious pathogens, as with the current Ebola Virus epidemic, requires the use of an air-transportable biocontainment unit. A unit was designed and built by the Center for Disease Control in 2006 in collaboration with the Phoenix Air Group in Cartersville, GA. The Aeromedical Biological Containment Shelter (ABCS) is the only contagious patient airborne transportation system in the world which allows attending medical personnel to enter the containment vessel in-flight to attend to the patient, thus allowing emergency medical intervention such as new IV lines, intubation, etc.

Yes, the Pentagon has a transport tube but –

“The U.S. Department of Defense has a transport “tube” which a patient is placed into, but once sealed inside the patient is isolated from medical care. It is admittedly (by the DOD) more designed for battlefield causalities than live human transport, especially over long distances. It is also only certified for DOD aircraft and not by the FAA for commercial aircraft which makes this capability not feasible in meeting the Department’s urgent need for the capability to transport contagious patients world-wide.”

Why is this a sole-sourced contract?

Below is part of the justification statement extracted from publicly available documents:

As a matter of standard business practice, Phoenix Air Group does not provide chartered transport of highly contagious patients outside of a standing government contract. As the only vendor with this unique capability, Phoenix Air Group has never offered this service on a one-off basis to private of government entities. The capability was developed on a multi-year contract with the CDC (2006-2011). When the CDC could no longer to afford to maintain the stand-by capability, the equipment was warehoused. While it is technically true that the movement of two American citizens in late July, 2014, was a private transaction, those missions were conducted after the Department requested that PAG consider a break in their standard business practice on a humanitarian basis, with the assurance that the USG would make all necessary arrangements for landing clearances, public health integration, decontamination, and provide press guidance. Simply put, the transportation of this type of patient requires too much international and inter-agency coordination, and incurs too much corporate risk, for PAG to provide the service outside the protection of a federal contract to do so.

The U.S. Department of State has always been responsible for the medical evacuation of official Americans overseas, regardless of their USG agency affiliation. Because of the unique severity and scope of the current Ebola outbreak, and the complete lack of host nation infrastructure to support victims of EVD infection, the international community is finding recruitment of professional staff very difficult without being able to articulate a sound medical evacuation plan. To that end, the Governments of Mexico, Japan, the United Kingdom, Canada, and the United Arab Emirates, as well as the World Health Organization and the United Nations, have separately approached PAG to establish exclusive contracts for this limited resource. Had the Department not moved very quickly to establish its own exclusive use contract, our negotiating position would have shifted, placing USG personnel and private citizens at significant risk.

The availability of the PAG resource is thus a foreign policy issue, placing the U.S. Department of State as the logical arbiter of international agreements to assure equitable coverage while protecting U.S. national interests. The Department is moving to establish Title 607 agreements with these and other eligible entities, allowing coordinated sharing of the resource on a cost-reimbursable basis under 22 U SC 2357 authorities.

Private American citizens responding to this crisis would lack the resources to privately contract for this service, even if it were available on the open market. By establishing the contract through the Department, additional options are provided to American Citizen Services, allowing them to structure the funding as a form of repatriation loan. This would be very difficult to do if not for a Department-level contract; by bringing the resource in-house, the money flow remains within the Department, spreading the financial risk across a much larger budgeting pool. Foreign governments are being encouraged to take similar steps with their own private citizens through high level dialogue that is only possible when the Department is in the lead on this issue.

Given recent CDC guidelines for the movement of asymptomatic contacts, an unprecedented level of control and coordination is necessary to move these individuals that, despite not being contagious or even clearly infected, are nonetheless quarantined. The USG is left with only two options in supporting a CDC scientist that has a high risk exposure to an EVD patient — use the PAG capability to fly the person back to the US for observation and optimum care should disease develop, or leave the person in place where no care is available if the disease develops. The question, then, is not how many EVD patients will be moved, but rather how many contacts and EVD patients will be moved across the entire international response population (as many as three per month). Finally, from a pragmatic stand point, given the limited options for movement of even asymptomatic contacts, it has become clear that an international response to this crisis will not proceed if a reliable mechanism for patient movement cannot be established and centrally managed.

The “special missions” G-111 aircraft, what is it?

 The ABCS was certified by the Federal Air Administration (FAA) under a Supplemental Type Certification (STC) for use in an aircraft. The STC further lists only two (2) air- craft by serial number as approved for the installation and operation of the ABCS. Both aircraft are owned and operated by Phoenix Air.

The two aircraft listed by serial number in the STC are “special missions” Gulfstream G-III jets owned and operated by Phoenix Air. There are only three “special missions” G-111 aircraft in the world and Phoenix Air owns and operates all three. These are unique aircraft converted in the Gulfstream Aerospace factory during the original manufacturing assembly line from standard “executive” aircraft to “special missions” aircraft which includes a large cargo door forward of the wing measuring 81.5” wide X 61” high thus allowing the large components of the ABCS to be installed in the aircraft and post-flight decontamination to be performed, each aircraft has a heavy duty cargo floor allowing the ABCS floor attachment system to be installed, and each aircraft is certified at the factory for passenger, cargo or air ambulance operations.

Phoenix Air holds various DOD Civil Aircraft Landing Permits (CALP’s) from all U.S DOD service branches allowing its aircraft to land at all U.S. military bases and facilities worldwide. For security reasons, all medical evacuations of patients with highly contagious pathogens must land at military airfields. Recent experience reinforces the importance of using military airfields, especially OCONUS where the host nation governments have refused to allow the aircraft access to civil airports in the Azores, but have conceded to allow the aircraft to refuel on USMIL airfields in their country.

All Phoenix Air flight and medical personnel have the Commission on Accreditation of Medical Transport Systems (CAMTS) required accreditation and CDC recommended inoculations for air ambulance missions as well as missions into disease~prone areas around the world providing DOS a unique capability that may not be available with other aviation vendors.

 

Unlike the outbreak of the highly pathogenic avian influenza (H5N1) virus and fears of a pandemic in 2007, one thing we haven’t heard this time is  “shelter-in-place.” Back then, Americans abroad were advised to identify local sources of healthcare and prepare to “shelter-in-place” if necessary. “In those areas with potentially limited water and food availability, Americans living abroad are encouraged to maintain supplies of food and water to last at least two and as long as 12 weeks.” We remember thinking then about the embassy swimming pool and wondering how long it would last if city water runs out. Or what happens if a mob comes into the compound in search of food and water.

That does not seem to be the case here. At least, this time, there will be an air ambulance equipped to evacuate  Americans back home should it come to that. Note that the  justification statement does not include details of how much of the cost will be accounted for as part of the repatriation loan program (pdf) for private Americans.

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Freaking out over the disease that’s “coming for us”? Watch this!

 

 

 

 

 

 

 

 

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U.S. Embassy Dakar Issues Security Message on Ebola Virus Disease (EVD) in Senegal

– Domani Spero

 

Today, the U.S. Embassy in Dakar issued a security message to U.S. citizens in Senegal concerning the country’s first confirmed case of Ebola Virus Disease (EVD):

On August 29, the Senegalese Minister of Health and Social Action (MOH) announced the country’s first confirmed case of EVD.  At a press conference, the MOH reported that Guinean authorities reached out to Senegalese authorities to advise them about a young Guinean student who is confirmed to have the virus.  The student is currently placed in isolation at a local hospital and is in stable condition.  At this time, there are no other confirmed cases in Senegal. The Department of State is working with the government of Senegal, the World Health Organization (WHO), and the Centers for Disease Control and Prevention (CDC) to monitor the situation.

 

On August 21, the government of Senegal has closed its borders with Guinea. It has also closed air and sea borders for aircraft and ships from Guinea, Sierra Leone, and Liberia.

The State Department has previously issued travel warnings for two countries in the region - Liberia and Sierra Leone- and warned U.S. citizens against non-essential travel to these countries. Due to the lack of available medical resources in these countries and limited availability of medical evacuation options, the U.S. Department of State ordered the departure of family members residing with Embassy staff in Monrovia and in Freetown. (see U.S. Embassy Sierra Leone Now on Ordered Departure for Family Members #Ebola and U.S. Embassy Liberia Now on Ordered Departure For Family Members, New Travel Warning Issued).

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State Dept Issues Travel Alert on Ebola-Related Screening and Travel Restrictions in West Africa

– Domani Spero

 

On August 28, the State Department issued a Travel Alert for screening and restrictions related to the Ebola outbreak in parts of West Africa:

The Department of State alerts U.S. citizens to screening procedures, travel restrictions, and reduced aviation transportation options in response to the outbreak of Ebola Virus Disease in Guinea, Liberia, Nigeria, and Sierra Leone.   This Travel Alert will expire on February 27, 2015.

Due to an outbreak of Ebola Virus Disease (EVD) in the West African nations of Liberia, Guinea, and Sierra Leone, the Centers for Disease Control and Prevention (CDC) issued  Level 3 Travel Warnings for those three countries advising against non-essential travel and provided guidance to reduce the potential for spread of EVD.  The CDC also issued a Level 2 Travel Alert for Nigeria to notify travelers of the Ebola outbreak in that country.  The Bureau of Consular Affairs’ website prominently features an Ebola Fact Sheet and links to the CDC Health Travel Warnings, Travel Alert, and general guidance about Ebola.

The World Health Organization (WHO) and CDC have also published and provided interim guidance to public health authorities, airlines, and other partners in West Africa for evaluating risk of exposure of persons coming from countries affected by EVD.  Measures can include screening, medical evaluation, movement restrictions up to 21 days, and infection control precautions.  Travelers who exhibit symptoms indicative of possible Ebola infection may be prevented from boarding and restricted from traveling for the 21-day period.  Please note neither the Department of State’s Bureau of Consular Affairs nor the U.S. Embassy have authority over quarantine issues and cannot prevent a U.S. citizen from being quarantined should local health authorities require it.  For questions about quarantine, please visit the CDC website that addresses quarantine and isolation issues.

The cost for a medical evacuation is very expensive.  We encourage U.S. citizens travelling to Ebola-affected countries to purchase travel insurance that includes medical evacuation for Ebola Virus Disease (EVD).  Policy holders should confirm the availability of medical care and evacuation services at their travel destinations prior to travel.

Some local, regional, and international air carriers have curtailed or temporarily suspended service to or from Ebola-affected countries.  U.S. citizens planning travel to or from these countries, in accordance with the CDC Health Travel Warnings and Health Travel Alert, should contact their airline to verify seat availability, confirm departure schedules, inquire about screening procedures, and be aware of other airline options.

The Department is aware that some countries have put in place procedures relating to the travel of individuals from the affected countries, including complete travel bans.  Changes to existing procedures may occur with little or no notice.  Please consult your airline or the embassy of your destination country for additional information.

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According to the WHO’s Outbreak News, the total number of probable and confirmed cases in the current outbreak of Ebola virus disease (EVD) as reported by the respective Ministries of Health of Guinea, Liberia, Nigeria, and Sierra Leone is 3069, with 1552 deaths.  The World Health Organization reports that the outbreak continues to accelerate with more than 40% of the total number of cases occurring within the past 21 days.  The overall case fatality rate is 52%.

A separate outbreak of Ebola virus disease not related to the four-country outbreak was laboratory-confirmed on  August 26 by the Democratic Republic of Congo (DRC). The DRC’s index case was a pregnant woman from a village who butchered a bush animal that had been killed and given to her by her husband. From July 28- August 18, 2014, a total of 24 suspected cases of haemorrhagic fever, including 13 deaths, have been identified in that outbreak.

As of this writing, Senegal also confirmed its first case of Ebola related to the four-country outbreak in West Africa.

 

 

 

 

 

 

 

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