Federal Register, Volume 84 Issue 30 (Wednesday, February 13, 2019)

[Federal Register Volume 84, Number 30 (Wednesday, February 13, 2019)]
[Rules and Regulations]
[Pages 3681-3693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02107]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 75

[Docket ID: DOD-2011-OS-0127]
RIN 0790-AI82

Exceptional Family Member Program (EFMP)

AGENCY: Office of the Under Secretary of Defense for Personnel and
Readiness, DoD.

ACTION: Final rule.

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SUMMARY: This part discusses procedures for identifying a family member
with special needs and coordinating travel for family members of active
duty Service members who meet the Department of Defense (DoD) criteria
for the Exceptional Family Member Program (EFMP). It also describes
procedures for processing DoD civilian employees who have family
members with special needs for an overseas assignment and provides
family support services to military families with special needs.

DATES: This final rule is effective on March 15, 2019.

FOR FURTHER INFORMATION CONTACT: Rebecca Lombardi, 571-372-0862.

SUPPLEMENTARY INFORMATION:

Authority and Background

This rule implements 10 U.S.C. 1781c, which established the Office
of Community Support for Military Families with Special Needs (OSN)
within the Office of the Under Secretary of Defense for Personnel and
Readiness. The purpose of the program is to enhance and improve DoD
support around the world for military families with special needs
(whether medical or educational) through developing policies,
disseminating information, obtaining referrals for services and in
obtaining services. By statute, the OSN is responsible for developing
an EFMP policy that applies to members of the armed forces without
regard to their location and in a manner consistent with the needs of
the armed forces while being responsive to the career development needs
of members.
In addressing support for military families, the program provides
the following:
Procedures to identify members of the armed forces who are
members of military families with special needs.
Mechanisms to ensure timely and accurate evaluations of
members of such families who have special needs.
Procedures to facilitate the enrollment of such members of
the armed forces and their families in programs of the military
department for the support of military families with special needs.
Procedures to ensure the coordination of DoD health care
programs and support programs for military families with special needs,
and the coordination of such programs with other Federal, State, local,
and non-governmental health care programs and support programs intended
to serve such families.
Requirements for resources (including staffing) to ensure
the availability through the DoD of appropriate numbers of case
managers to provide individualized support for military families with
special needs.
Requirements regarding the development and continuous
updating of an individualized services plan (medical and educational)
for each military family with special needs.
Requirements for record keeping, reporting, and continuous
monitoring of available resources and family needs under individualized
services support plans for military families with special needs,
including the establishment and maintenance of a central or various
regional databases for such purposes.

Public Comments

Following the publication of the proposed rule in December 11, 2015
(80 FR 76881-76889), 99 public comments were received and are discussed
below. There has been some restructuring of the final rule as several
sections of the proposed rule were determined to be better suited to
internal DoD Guidance, which can be found in DoD Instruction 1315.19,
``Exceptional Family Member Program,'' available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/131519p.pdf.

Section 75.1 Purpose

Due to the restructuring of the rule, Sec. 75.1 of the final rule
includes new paragraphs (a) and (b). Other paragraphs in Sec. 75.1 of
the proposed rule were removed and now appear in DoD Instruction
1315.19.
Several commenters requested Guard and Reserve components be
eligible for enrollment in the EFMP automatically rather than allowing
each Service to determine the conditions under which their Guard and
Reserve members are eligible to enroll in the EFMP.
DoD declines to make this change because only active duty military
undergo the assignment coordination process. Therefore, the Department
does not require the Services to enroll their Guard and Reserve members
in the program, but also does not prohibit the Services from doing so,
in accordance with their respective missions and needs.
Many commenters requested changes to Service-specific EFMP policies
or assignment coordination procedures associated with the EFMP program.
Suggested changes included a request that Guard and Reserve components
be eligible for EFMP services regardless of duty status, a request that
a Service apply special codes to EFMP families in their data system, a
request to cease frequent contact from the EFMP program, a request to
mandate a uniform set of programming to be provided through each
Service's EFMP program or at each installation, and a request to limit
frequent changes to assigned EFMP coordinators.
Other suggestions included a request to allow people to examine
their own family member profiles during the assignment coordination
process, a request to allow families more of a voice in the assignment
coordination process, a request for changes to the process when an
assignment is denied, requests for information packets about the EFMP
program and local resources at the time of enrollment and permanent
change of station, requests for greater clarity on how health
information and outcomes from previous duty stations are or are not
considered during assignment coordination, a request that families be
given an official reason for assignment location denials, a request for
changes to the weight given to family needs during assignment
coordination, and requests for a system to appeal assignment
coordination decisions.
No changes were made to the final rule based on the above Service-
specific comments. All Service EFMP policies must conform to this final
rule and the associated DoD Instruction 1315.19. Beyond that, the
Department believes the Services must have the flexibility to tailor
their EFMP policies to meet the specific needs of their missions and
communities. To request changes to Service-specific EFMP policies or

[[Page 3682]]

assignment coordination procedures, please contact your local EFMP
office.

Section 75.3 Definitions

Several commenters submitted requests for clarification, change, or
inclusion of particular definitions. In addition, due to the
restructuring of the rule, in Sec. 75.3, the definitions of ``CONUS,''
``Medical case management,'' ``Non-clinical case management,''
``Pinpoint location,'' ``Respite Care Services,'' and ``Services Plan''
now appear only in DoD Instruction 1315.19. Four commenters requested
that we clarify the meaning of ``adverse'' and ``adversely.''
The Department does not believe it is necessary to clarify the
meaning of these terms as they are used in DoD Instruction 1315.19 in
the context of the factors that must be considered when stabilization
is requested and in the context of overseas assignments for active duty
Service members, as the Department interprets ``adverse'' and
``adversely'' to have the plain language meaning of the terms, which is
``unfavorable'' or ``harmful,'' and ``unfavorably'' or ``harmfully.''
For example, when used with respect to a stabilization decision under
DoD Instruction 1315.19, the proper analysis will be whether
stabilization will have an unfavorable or harmful effect on the mission
requirements of the Military Service.
One commenter stated the definition for ``assistive technology
device'' at Sec. 75.3 was inconsistent with the Individuals with
Disabilities Education Act (IDEA) definition of assistive technology in
chapter 33 of Title 20, U.S. Code. Four commenters requested that
changes to the definition be made to include information related to the
evaluation and selection of such devices. The Department partially
concurred with the comments. The definition of ``assistive technology
device'' at Sec. 75.3 is not limited to devices used by children who
receive IDEA services. Instead, in accordance with the conditions that
trigger EFMP enrollment, the term ``assistive technology device'' as
used in Sec. 75.5 in this final rule, is intended to cover all devices
used by children and adults when the use of such device is required
because of a chronic medical condition. To clarify the definition, we
have removed the sentence that excluded surgically implanted medical
devices, which was imported from the IDEA definition of assistive
technology in the earlier version of the regulation. We decline to
broaden the definition to incorporate evaluations and training in the
use of assistive technology because the need for those services does
not trigger EFMP enrollment. Instead, the presence of a device used in
connection with a chronic medical condition is the trigger for
enrollment in the EFMP.
The definition of ``assistive technology device'' at Sec. 75.3 now
reads: ``Any item, piece of equipment, or product system, whether
acquired commercially off the shelf, modified, or customized, that is
used to increase, maintain, or improve functional capabilities of
individuals with disabilities.''
Four commenters requested that DoD adopt an agency-wide definition
of ``child with special medical needs'' or adopt the National Institute
of Child Health and Human Development (NICHHD) definition of child and
youth with special health care needs (CYSHCN) to ensure accurate data
collection.
While we agree the use of standard definitions is important for the
collection of accurate data, DoD declines to make this change. The
NICHHD definition of CYSHCN: ``those who have or are at risk for a
chronic physical, developmental, behavioral, or emotional condition and
who also require health and related services of a type or amount beyond
that required by children generally'' is not, on its own, specific
enough to ensure appropriate assignment coordination. In addition,
since this rule sets policy only with respect to the EFMP program, the
establishment of a DoD-wide definition will require coordination with
all other DoD departments that interact with children with special
medical needs to ensure that all necessary elements of a working
definition are properly included. The development of a new definition
is an in-depth process, and must be tailored to each program to meet
the needs of their unique population, and coordination will not be
completed by the time this rule publishes.
Two commenters requested that we define the term ``CONUS.''
However, as this term is currently defined in DoD Instruction 1315.19
as ``the 48 contiguous states of the United States, excluding Alaska,
Hawaii, and U.S. territories,'' no change is made to the rule.
One respondent requested clarification of the term
``expeditiously'' as used in Sec. 75.6(b)(4)(i) and (ii). These
provisions require Department of Defense Education Activity (DoDEA) and
the Military Medical Departments to evaluate and provide services to
children eligible for enrollment in a DoDEA school on a space-required
basis and to provide them with any required IDEA services
``expeditiously and regardless of cost.'' The Department agrees that
additional clarification is required so all IDEA activities happen
within the specified timelines.
To that end, Sec. 75.6(b)(4)(i) now reads: ``The DoDEA and the
Military Medical Department responsible for the provision of related
services to support DoDEA at the duty station are required to evaluate
school-aged children (ages 3 through 21 years, inclusive) eligible for
enrollment in a DoDEA school on a space-required basis and provide them
with the special education and related services included in their IEPs
in accordance with 32 CFR part 57.'' Section 75.6(b)(4)(ii) now reads:
``The Military Departments are required to provide infants and toddlers
(from birth up to 3 years of age, inclusive) eligible for enrollment in
a DoDEA school on a space-required basis with the EIS identified in the
IFSPs in accordance with 32 CFR part 57.''
One respondent requested clarification of the definition of
``family care plan.'' Two commenters requested that distinctions
between Services Plans and family care plans be added.
The Department declines to add a definition of ``family care plan''
to this final rule as each Service defines such plans in accordance
with its own policies. Most military families have a family care plan,
which is not predicated on the presence of a disability in the family.
A family care plan may cover issues such as child care in the case of
parental deployment, parental wills and trusts, and any other
instructions or provisions for dependents in case of a Service member's
death. Services Plans are part of the family support services offered
through EFMP offices and are developed on an as-needed basis for
families who have a family member with a disability in accordance with
DoD Instruction 1315.19.
Four commenters requested additions to or clarifications of the
definitions of ``Individualized Education Program (IEP),''
``Individualized Family Services Plan (IFSP),'' and ``Special
education'' at Sec. 75.3. The requested additions were intended to
describe a child's rights under the IDEA, including the right to
receive instruction while suspended or expelled, the requirement to
provide specially designed instruction that meets the child's
educational needs that result from the disability, and other technical
requirements under the IDEA. Three commenters also requested that we
add a definition of ``specially designed instruction'' to clarify
educational rights arising under the IDEA.

[[Page 3683]]

The Department does not agree that detailed descriptions of a
child's rights under the IDEA or additional definitions related to the
special education process are necessary or appropriately placed in this
final rule. A child's services under the IDEA intersect with this final
rule because the receipt of IDEA services is a trigger for EFMP
enrollment under Sec. 75.5(b). Children of active duty Service members
and civilian employees appointed to an overseas location who are
eligible for enrollment in a DoD school on a space-required basis will
be identified as having special educational needs if they have, or are
found eligible for, either an IFSP or an IEP under 32 CFR part 57 which
is the DoD's implementing regulation for the IDEA. DoD has clarified
the definitions of special education, IEP, and IFSP so that all IDEA
definitions and terms used in the final rule refer to the DoD's IDEA
regulation (identical to or refer to the definitions in 32 CFR part
57).
Therefore, the definitions of Early Intervention Services,
Individualized Education Program, Individualized Family Service Plan,
Related Services, and Special Education were revised in both the final
rule and DoD Instruction 1315.19. These definitions now mirror
definitions in 32 CFR part 57.
Four commenters requested that the term ``non-clinical case
management'' be expanded to include coordination of medical services.
Two commenters stated that if the definition of non-clinical case
management is not expanded to include coordination of medical services,
then the definition should be changed to exclude reference to medical
services.
We do not believe that non-clinical case management includes
medical services coordination. Medical case management is defined in
DoD Instruction 1315.19, and it refers readers to the TRICARE Medical
Management Guide for more information regarding medical case
management. However, in response, this definition, contained only in
DoD Instruction 1315.19, has been changed to read: ``The provision of
information and referral to families and individuals that assist them
in making informed decisions and navigating resources to improve their
quality of life such as educational, social, community, housing, legal,
and financial services. This does not involve coordination and follow-
up of medical treatments.''
Five commenters suggested that the definition of ``related
services'' at Sec. 75.3 should be expanded to include interpreting
services for children who are deaf and interpreting services for
children who are English language learners. We do not agree that this
definition of related services should include interpreting services for
children who are English language learners. The related services
referred to in the rule arise in the IDEA. Eligibility for services
under the IDEA is predicated on the presence of a disability and is not
affected by a child's proficiency with English. Services provided under
the IDEA are designed to address educational needs that arise from a
disability. Children who receive educational services from the DoD and
require both special education services and services for English
language learners are protected by various Department of Defense
Education Activity policies. The term ``related services'' refers to
transportation and such developmental, corrective, and other supportive
services required to assist a child with a disability to benefit from
special education under the child's individualized education program.
Special education services are provided by the Department pursuant to
32 CFR part 57, which explicitly includes interpreting services for
children who are deaf or hard of hearing in its definition of related
services. To ensure uniform understanding and application of
definitions related to special education, as indicated above, we have
changed the definition of ``related services'' so that it refers to the
definition in 32 CFR part 57. Thus, the definition of ``related
services'' at Sec. 75.3 of the final rule has been revised to mirror
the definition that is in 32 CFR part 57 in both the final rule and in
DoD Instruction 1315.19.
Six commenters discussed the use of terms such as ``special needs''
versus ``handicapped'' or ``disability.'' One commenter requested that
we clarify that the term ``person with special needs'' may, but does
not have to, refer to a person with a disability. Two commenters
requested that we adopt the definition of disability used in Section
504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. 705. One
commenter stated that, if there is no distinction between the terms
``disability'' and ``special needs'' for purposes of this rule, we
should use only one term throughout.
The Department has made no changes to the rule or the instruction
based on these comments because DoD has received no evidence indicating
this clarification of such matters is necessary. The final rule
includes a number of specific conditions falling within the umbrella of
``special needs'' at Sec. 75.5 related to medical diagnosis, medical
history, medications, specialty care requirements, chronic need for
adaptive equipment, assistive technology or certain environmental
considerations, and educational needs. Should any of the listed
conditions be met, then enrollment in EFMP is triggered. The enumerated
conditions are those that, in the Department's experience, require
careful coordination during the assignment coordination process. While
distinguishing disability from medical or other conditions is important
in certain contexts, for EFMP purposes, it is not relevant whether a
condition is or is not considered to be a disability. We decline to use
only the term ``disability '' or ``special needs'' because one
enrollment trigger for children, the receipt of IDEA special education
services on an IEP, is predicated on the presence of a disability that
impacts a student's ability to benefit from his or her education.
Therefore, in the case of enrollment of a child who receives IDEA
services, ``special needs'' would be an inaccurate term. We decline to
use the term ``disability'' exclusively because the statute that
authorizes this final rule, 10 U.S.C. 1781c, uses the term ``special
needs,'' and we believe that this term is necessary to capture
Congress' full intent.

Section 75.4 Policy

Due to the restructuring of the rule, certain paragraphs of Sec.
75.4 (Policy) in the final rule have been removed from the final rule
and now appear only in DoD Instruction 1315.19.
One commenter recommended we incorporate language from 10 U.S.C.
1781c(e)(3), regarding the assignment of Service members into the rule.
The Department agrees the requested language clarifies the relationship
between assignment or stabilization requests, the needs of the armed
forces, and the career development of active duty Service members, and
have added the requested language.
Change: Changes were made to DoD Instruction 1315.19, which now
reads: ``the assignment or stabilization requests of members of the
armed forces who are members of military families with special needs,
shall be addressed in a manner consistent with the needs of the armed
forces and responsive to the career development of members of the armed
forces on active duty.''
Several commenters discussed the issue of homesteading, or
stabilization of duty stations. Comments included a request to make
EFMP status a priority when negotiating orders, prioritizing
stabilization requests of families in which a member is diagnosed with
autism, and a request that all Services implement stabilization in the
same way.

[[Page 3684]]

The Department agrees stabilization can be important for families.
DoD Instruction 1315.19 permits the Services to stabilize families in
Alaska, Hawaii, or a CONUS location for a minimum of four years so long
as stabilization does not have an adverse effect on the mission of the
Military Service or the career development of the Service member.
However, we decline to list specific disabilities or medical conditions
that automatically require stabilization or require specific
prioritization of EFMP status because many disabilities and medical
conditions manifest in a range of severity or intensity of need, which
means that individual analysis of the family member's needs and
circumstances is always necessary. The Military Services are best
positioned to perform the necessary analysis in conjunction with an
understanding of their current and future missions, populations, and
resources; therefore, each Military Service is the most appropriate
arbiter of its own stabilization process.
One respondent stated stabilization should not adversely impact
career advancement or promotion. Two commenters stated that Service
members are erroneously told that they may not reenlist if they request
stabilization.
While no changes were made to the final rule, the Department agrees
stabilization or requests for stabilization to accommodate a family
member with special needs must not adversely impact the career of the
Service member who has requested it. DoD Instruction 1315.19 allows for
stabilization in cases where the Service member initiates the request,
the family member has a documented need for stabilization per Service-
specific guidance, stabilization does not have an adverse impact to the
mission requirements of the Military Service, and the career of the
Service member has been considered and is not affected adversely. We
believe that stabilization that is granted under these conditions will
not adversely impact the career of the requesting Service member.
Two commenters requested that we add language to the rule so EFMP
programs can be utilized by a member of any of the Services whether
assigned to an installation run by his or her own Service or another
Service. No changes were made to the final rule as the final rule
already includes a statement describing the duty of the EFMP to provide
family support services regardless of Service affiliation. In addition,
DoD Instruction 1315.19 states it is DoD policy that the EFMP provides
family support services, including non-clinical case management, to
military families with special needs regardless of the sponsor's
Service affiliation or enrollment status in the EFMP.

Section 75.5 Responsibilities

Due to the restructuring of the rule, what was Sec. 75.5
(Responsibilities) in the proposed rule has been removed from the final
rule and now appears in DoD Instruction 1315.19. What was Sec. 75.6
(DoD Criteria for Identifying Family Members with Special Needs) in the
proposed rule has been renumbered to Sec. 75.5 in the final rule.
Two commenters erroneously claimed that the proposed rule did not
comply with 10 U.S.C. 1781c because certain statutory duties of the OSN
were given to the Under Secretary of Defense for Personnel and
Readiness (USD(P&R)) and the Assistant Secretary of Defense for
Manpower and Reserve Affairs (ASD(M&RA)). No change was made to the
final rule as 10 U.S.C. 1781c(a) establishes the OSN as an office in
the Office of Military Family Readiness Policy, which is within the
Office of the USD(P&R). Furthermore, DoD Instruction 1315.19 states the
USD(P&R) provides for the OSN, pursuant to 10 U.S.C. 1781c, and submits
an annual report to Congress on the activities of the OSN on behalf of
the Secretary of Defense in accordance with 10 U.S.C. 1781c (g).
Contrary to the commenter's claim that this does not comply with the
statute, the duties assigned to the USD(P&R) under DoD Instruction
1315.19 directly reflect statutory duties assigned to the USD(P&R) and/
or the Secretary of Defense and are appropriately assigned to the
USD(P&R).
The commenters also claimed that responsibilities assigned to the
ASD(M&RA) in DoD Instruction 1315.19 are not in compliance with the
statute. The Department disagrees. DoD Instruction 1315.19 requires the
ASD(M&RA) to consult with the Secretaries of the Military Departments,
as appropriate, to ensure the development, implementation, and
monitoring of an effective EFMP across DoD. DoD Instruction 1315.19
also requires the ASD(M&RA) to resolve disputes among the DoD
Components regarding the implementation of procedures in Sec. 75.5
through Sec. 75.6 of the final rule. These responsibilities are
assigned to the ASD(M&RA) because, given the current organizational
structure of the DoD, such assignment provides for the most efficient
means of ensuring the effective operation of the EFMP within the DoD.
Two commenters requested that the annual data reports from the
Military Services to the ASD(M&RA) required at what was Sec.
75.5(e)(18) of the proposed rule, now DoD Instruction 1315.19, be made
public reports. No change was made to the rule as aggregate data
received through the reports required by DoD Instruction 1315.19 is
made public through the Annual Report to the Congressional Defense
Committees on the Activities of the Office of Special Needs.
Two commenters requested a revision of what was Sec.
75.5(d)(4)(iii) of the proposed rule now in DoD Instruction 1315.19,
which allows the Director, DoDEA, to request reimbursement from the
sending Military Department when there is a failure to coordinate an
overseas assignment with DoDEA that results in the assignment of the
Service member to a location where DoDEA incurs expenses (e.g. by
hiring additional staff) beyond normal operations to provide special
education pursuant to the child's IEP because, as written, it could be
interpreted to mean that command sponsorship should be denied if
educational services are not available.
The Department does not agree that the language could be
interpreted to allow denial of command sponsorship and has made no
change to the final rule. The language in DoD Instruction 1315.19
describes DoDEA's authority to seek reimbursement where it incurs
additional expenses resulting from a Service's failure to coordinate a
Service member's overseas move. This is an internal check in the system
that ensures coordination procedures are observed. Three commenters
requested clarification on what was in Sec. 75.5(d)(2) of the proposed
rule, now in DoD Instruction 1315.19, regarding the responsibility of
the Director, DoDEA, to make recommendations to the Military Services
and other DoD components on the availability of special education
services. The commenters suggested adding language to clarify several
items, including the nature of the Director's recommendations, whether
the Director's responsibilities included making recommendations on all
public schools and charter schools, and whether the recommendations
referred to are for both CONUS and OCONUS locations.
No change was made to the final rule as the Department does not
believe that the Director, DoDEA, requires additional regulatory
clarification on the scope of this duty at this time. The Director is
only able to make recommendations regarding educational services in
locations where DoDEA is responsible for the provision of educational
services. For example, if a DoDEA school closes, DoDEA must inform the

[[Page 3685]]

military departments that educational services, including special
educational services, are no longer available at that school.
Two commenters discussed what was in Sec. 75.5(e)(4) of the
proposed rule, now in DoD Instruction 1315.19, regarding the
responsibility of the Secretaries of the Military Departments to ensure
family members of active duty Service members who are identified with a
medical condition meeting the criteria at what was Sec. 75.6 of the
proposed rule (now Sec. 75.5 of the final rule) be referred to
Service-specific points of contact for enrollment in the EFMP, and
stated that the requirement to have the Service-specific EFMP point of
contact enroll the Service member compounds the problems with access to
services for families on joint bases or on installations managed by
Services other than that to which a member belongs.
No change is made to the final rule as enrollment in the EFMP is
currently a Service-specific function connected to each Service's
assignment coordination process. The Services currently conduct
independent assignment coordination activities in keeping with the
needs of their missions and communities.
Four commenters discussed the need for better communication among
EFMP staff and better communication and coordination between medical
staff at Military Treatment Facilities (MTFs) and EFMP staff. One
respondent suggested making all bases aware of the EFMP. Three
commenters requested more effective public communication about EFMP
programming.
While no change is made to the final rule, the Department does
agree that communication about the EFMP and between MTFs and EFMP
Family Support Programs is important to ensure families' special
medical and educational needs are fully considered through the
assignment coordination process and to help families access needed
services in a timely manner. We believe the rule adequately addresses
this need, as DoD Instruction 1315.19 includes provisions that are
intended to increase communication and coordination among the three
components of each EFMP program, as well as between MTFs and EFMP
Family Support Programs.
Specifically, DoD Instruction 1315.19 requires the Secretaries of
the Military Departments to promote collaboration among the components
of their respective EFMP programs, ensure MTFs contact Service-specific
EFMP points-of-contact at the point that a family member of an active
duty Service member is identified with a medical condition that meets
the EFMP enrollment criteria (located at Sec. 75.5 in the final rule),
and ensure Military Treatment Facility personnel are trained on EFMP
policies and procedures. In addition, DoD Instruction 1315.19 requires
the Secretaries of the Military Departments to provide information on
the EFMP to all active duty Service members and their families,
regardless of location, and civilian employees or selectees who have
applied for government employment in overseas locations.
Seven commenters submitted suggestions about EFMP family support
staff qualifications, suggesting that specialized staff should be hired
to address specific disabilities or medical conditions, and stating
that staff training on disability topics, DoD resources, the disability
community, local services, and respite care was needed and should
include family members with special needs in order to aid staff in
providing effective help to families. While no change is made to the
final rule, the Department agrees that, to provide effective support,
EFMP staff must have knowledge of areas of importance to families with
special needs. However, the Military Departments' hiring practices are
beyond the scope of this final rule, so we decline to create rules
requiring that specialized EFMP family support staff be hired to
address specific disabilities or medical conditions. To ensure ongoing
training and development of expertise, DoD Instruction 1315.19 requires
the Secretaries of the Military Departments to ensure annual training
is conducted on EFMP policies and procedures as well as topics such as
Medicaid, Supplemental Security Income, and TRICARE benefits.
One commenter requested we add additional language at what was
Sec. 75.5(e) of the proposed rule, now in DoD Instruction 1315.19, to
strengthen the requirements for the Military Departments to provide
guidance, develop programs, and establish services relating to the
EFMP. The Department does not have evidence that additional language is
necessary at this time, so no change has been made to the final rule.
It should be noted that DoD Instruction 1315.19 explicitly assigns
responsibility for several EFMP-related responsibilities, including the
requirements to provide guidance on implementation and to establish
EFMP services, to the Secretaries of the Military Departments. We will
evaluate the necessity for additional language based on implementation
of the final rule by the Military Departments and their Services. Seven
commenters were concerned with the paperwork involved with enrollment
in EFMP. Commenters recommended enrollment in EFMP be standardized,
either requiring physicians at MTFs to submit the paperwork to initiate
EFMP enrollment, or allowing school-provided paperwork to serve as
adequate documentation of disability for enrollment purposes.
The Department appreciates the commenters' attention to the demands
placed on Service members, but makes no changes to the final rule
because enrollment paperwork is already standardized across the DoD
through completion of DD Forms 2792,\1\ documenting special medical
needs and DD Form 2792-1,\2\ documenting special educational needs.
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\1\ Available online at http://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2792.pdf.
\2\ Available online at http://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2792-1.pdf.
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In an effort to decrease the paperwork burden on families,
enrollment in EFMP is initiated and substantially completed by the MTF
and the Service-specific EFMP point of contact. When a family member of
an active duty Service member is identified within an MTF with a
medical condition that meets the EFMP enrollment criteria at Sec. 75.5
of the final rule, the MTF must initiate the EFMP enrollment process by
referring the Service member to the Service-specific EFMP point of
contact who ensures the DD Form 2792, ``Family Member Medical Summary''
is completed.
For families who receive medical care outside of the Military
Treatment Facility, DoD Instruction 1315.19 requires that, under the
authority of the ASD(HA), all medical care providers are made aware of
the mandatory enrollment requirements of the EFMP when a family member
is identified with a medical condition meeting the criteria at Sec.
75.5 in the final rule. Physicians are part of the EFMP enrollment
process in so far as they determine that a medical condition exists
that requires enrollment, contact the Service-specific EFMP point of
contact to initiate enrollment procedures, and complete the DD Form
2792, ``Family Member Medical Summary.'' We are not able to dictate how
physicians outside of the MTFs manage non-medical paperwork, and
therefore believe that Service-specific EFMP points of contact are the
most appropriate personnel to manage the EFMP enrollment process.
Also, the Department is not able to accept school paperwork as sole
documentation of eligibility for EFMP because the information collected
and recorded by schools varies by state and

[[Page 3686]]

within each state. To ensure that all required information is collected
for each family, a standard DoD form is necessary.

Section 75.6 DoD Criteria for Identifying Family Members With Special
Needs

Due to the restructuring of the rule, what was Sec. 75.6 (DoD
Criteria for Identifying Family Members with Special Needs) in the
proposed rule has been renumbered to Sec. 75.5 in the final rule.
Several commenters suggested that the criteria for enrollment in
the EFMP be changed so that fewer conditions would trigger enrollment,
that enrollment for adults or any individual with a well-controlled
medical condition or positive health prognosis be made optional, or
that parents be able to determine whether their children need to be
enrolled in the program. One commenter erroneously stated that EFMP
enrollment is supposed to be voluntary. One commenter requested that
families be given the opportunity to make their own decisions about
whether to go to a duty station or not, and asked that they be allowed
to waive their access to a compassionate reassignment should the duty
station not have adequate services and support for the family member
with special needs. No changes were made to the final rule. DoD
Instruction 1315.19 states enrollment for EFMP is mandatory for active
duty Service members whose families include a member with special
needs. Also, we do not agree that changes to the enrollment criteria or
mandatory enrollment requirement for the EFMP are feasible. The
criteria at Sec. 75.5 that automatically trigger enrollment in EFMP
capture those conditions that, whether well-controlled or untreated,
and whether manifested by a child or an adult, must be considered when
assignments are coordinated because they may require medication that is
not legally available or importable in every overseas location, may
require specialized care that is not available in certain locations, or
may be adversely impacted by the environmental conditions at particular
locations. We do not agree that allowing families to waive their access
to a compassionate reassignment is sound policy because it could put
family members who need reassignment in danger of having to stay in a
location without adequate or necessary medical resources.

Section 75.7 Coordinating Assignments of Active Duty Service Members
Who Have a Family Member With Special Needs

Due to the restructuring of the rule, what was Sec. 75.7
(Coordinating Assignments of Active Duty Service Members Who Have A
Family Member with Special Needs) in the proposed rule has been removed
and now appears in DoD Instruction 1315.19.
One commenter stated that Service members were denied critical
assignments due to common medical needs of family members. Three
commenters stated that active duty careers were hurt by having a family
member enrolled in EFMP. While no changes were made to the final rule,
DoD Instruction 1315.19 was modified to now read: ``active duty Service
members may not be denied consideration for an essential (as defined by
the military personnel assignment system) duty assignment overseas
solely because of the special needs of a family member.''
DoD Instruction 1315.19 also states active duty Service members may
not be denied consideration for an essential (as defined by the
military personnel assignment system) duty assignment overseas solely
because they have children who are or may be eligible for EIS or
special education services in accordance with 32 CFR part 57. We agree,
however, that this extends to cover the Service person in the event
that they have an adult family member with special medical needs, and
therefore have clarified the language in DoD Instruction 1315.19 to
state that active duty Service members may not be denied consideration
for an essential (as defined by the military personnel assignment
system) duty assignment overseas solely because they have a family
member with special needs.
One respondent requested that we add a process for disenrollment
from the EFMP program. No changes were made to the final rule based on
this comment because the Department does not believe this is necessary.
DoD Instruction 1315.19 requires the Military Services to establish
procedures to update the status of family member(s) with special needs
when conditions occur, change, or no longer exist, and when Service-
specific policy requires. This should be sufficient to ensure
disenrollment of individuals who no longer meet the enrollment criteria
at Sec. 75.5 in the final rule.
Two commenters requested changes to what was Sec. 75.7(c)(1)(iii)
of the proposed rule, now in DoD Instruction 1315.19, which states that
the Military Personnel Activities will remove active duty Service
members who have family members with special medical and educational
needs from overseas orders if no suitable overseas assignment location
can be found and there is no adverse impact on the military mission or
on the active duty Service member's career. The commenters requested
that this requirement only apply to medical needs, not educational
needs when considering a Service member for overseas orders.
No changes were made to the final rule given that DoD Instruction
1315.19 states that, in cases where both the special medical and
special educational needs of family members cannot be met, the Military
Personnel Activities will remove the Service member from overseas
orders, barring any adverse impact on the military mission or service
person's career.
Two commenters discussed the language which appeared at what was
Sec. 75.7(e) of the proposed rule, now in DoD Instruction 1315.19,
requiring active duty Service members to complete DD Forms 2792 and
2792-1 when they become aware that a family member may meet the
criteria at what was Sec. 75.6 in the proposed rule, now Sec. 75.5 in
the final rule. The commenters recommended informing Service members
that removing their children from special education in order to get a
targeted assignment and then referring the child for special education
services once the new duty station is reached is punishable under the
UCMJ. No change was made to the final rule and the Department does not
agree that additional clarification is required. DoD Instruction
1315.19 states that a Service member who fails or refuses to provide
the required information for a family member or who knowingly provides
false information about any dependent may be subject to disciplinary
actions in accordance with Article 92 or Article 107, in violation of
10 U.S.C. chapter 47, also known as The Uniform Code of Military
Justice. We believe that this sufficiently covers the situation
described by the commenters.

Section 75.9 Provision of Family Support Services

Due to the restructuring of the rule, what was Sec. 75.9
(Provision of Family Support Services) in the proposed rule has been
removed and now appears in DoD Instruction 1315.19.
Two commenters discussed Sec. 75.9 in the proposed rule, which now
appears in DoD Instruction 1315.19. The commenters emphasized the
importance of case management and requested that the rule include more
detail on case

[[Page 3687]]

management resource requirements and responsibilities, including case
management access standards and requirements for development and
updating of Services Plans. No change was made to the final rule, and
we do not agree more detail is required.
DoD Instruction 1315.19 currently requires Services Plans to
include identification of the family's current needs, the services they
receive, the support they require, and documentation of the support
provided to the family and follow-on contacts, including case notes. We
believe that these requirements establish an appropriate baseline for
Services Plans.
In the realm of respite care services, several commenters
questioned the differences in respite care hours provided by each
Service, suggested that all respite care contracts be locally based,
commented on difficulties enrolling in specific respite care programs
and difficulties locating quality care providers, and requested that
families be given the option to select their own respite care providers
and utilize respite care services in the home or at activities/
appointments, that respite care providers provide transportation and
homemaking services, and that respite care services be established at
youth centers or other locations outside of the home.
While no changes were made to the final rule, DoD has modified DoD
Instruction 1315.19 to read: ``family support services may include
respite care for family members who meet the eligibility criteria,
regardless of age, according to Service-specific eligibility and
guidance.'' We believe the definition of respite care services is
internal to the Department, and decisions on whether to offer respite
care programs, as well as specifics as to who may be a respite care
provider, hours of service provided, and location of service provision,
are matters of policy to be determined by each Service. Questions or
comments regarding specific respite care programming or benefits should
be directed to the local EFMP Family Support Office.

Section 75.10 OSN

Due to the restructuring of the rule, what was Sec. 75.10 (Office
of Community Support for Military Families with Special Needs), now
appears in DoD Instruction 1315.19.
One respondent requested that we add a section to the rule
reflecting the description of the Director of the OSN at 10 U.S.C.
1781c(c). No change was made to the final rule as we do not agree that
this level of specificity is required, given that statutory
requirements guide the Department's implementation of the duties of the
OSN.
Six commenters recommended the rule explicitly reference the
responsibilities of the OSN under 10 U.S.C. 1781c. Two commenters
recommended adding language from the statute delineating the OSN's
responsibility to monitor programs of the military departments for the
assignment and support of members of the armed forces who are members
of military families with special needs. One commenter recommended
adding language from the statute delineating the OSN's responsibility
to monitor the availability and accessibility of programs provided by
other Federal, State, local, and non-governmental agencies to military
families with special needs. Four commenters recommended adding
language from the statute delineating OSN's responsibility to conduct
periodic reviews of best practices in the provision of medical and
educational services for children with special needs.
While no change has been made to the final rule, DoD Instruction
1315.19 now explicitly states that the OSN ``conducts periodic reviews
of best practices in the provision of services for military families
with special needs,'' and ``collaborates with the Military Departments
to standardize EFMP components as appropriate.'' In addition, we
believe that, by monitoring the implementation of DoD Instruction
1315.19, the OSN will ensure the issuance is implemented with fidelity
by all of the Services and will ensure compliance with the issuance.
Relevant language has been added to DoD Instruction 1315.19, which now
states that OSN has the responsibility for ``implementation of this
part through data review and program monitoring.''
Six commenters requested that the rule establish uniform benchmarks
and performance goals for the identification, enrollment, and
assignment coordination components of the EFMP, and implement a process
for ensuring the compliance of each Service with the final rule. OSN
and the Military Departments are working to standardize various aspects
of the EFMP across DoD, particularly in the areas of identification/
enrollment and assignment coordination, as well as the provision of
family support. Wording about the standardization process has been
added to DoD Instruction 1315.19 but not the final rule. In addition,
we believe OSN's monitoring of the implementation of DoD Instruction
1315.19 as required by language added to DoD Instruction 1315.19 will
ensure compliance with the issuance.
Five commenters requested that the Advisory Panel on Community
Support for Military Families with Special Needs be included in the
rule. While no changes were made to the final rule, relevant language
has been added to DoD Instruction 1315.19, which now indicates that the
OSN ``convenes the Advisory Panel on Community Support for Military
Families with Special Needs in accordance with 10 U.S.C. 1781c.''
Six commenters requested the development of data systems to
evaluate the outcomes of DoD programs for children and establish a
common set of EFMP data evaluation systems across the DoD. While no
change was made to the final rule, the Department agrees with the
necessity to establish an EFMP data system to implement and record a
set of standardized EFMP-related metrics across the Department. To that
end, DoD Instruction 1315.19 was modified to direct the OSN to develop
and implement a web-based data management system to support the EFMP
with the Military Departments and directs the ASD(HA) to participate in
the development and deployment of the system.
Many commenters submitted comments noting differences and
inconsistencies in their experiences with EFMP policies, procedures,
and programs between different installations, and across the Services.
Commenters requested that paperwork, services, and programming be made
consistent, and that families at joint bases and sister-Service
locations have the same level of access to EFMP that they would at
installations operated by their own Service. While the Services have
flexibility to implement EFMP programs in the manner they deem most
supportive to their unique missions and most effective for meeting
their families' needs, we agree that, to the extent practicable,
consistency in EFMP policies, procedures, and programs are of benefit
to enrolled families. While no changes were made to the final rule,
changes were made to DoD Instruction 1315.19 which now indicates that
the OSN ``collaborates with the Military Departments to standardize
EFMP components as appropriate.'' We have also added language to DoD
Instruction 1315.19 clarifying that, in addition to discovering gaps in
available services for families with special needs, the OSN is
responsible for coordinating with the Military Departments and other
DoD entities to ensure standardization of EFMP policies and procedures
as appropriate.

[[Page 3688]]

General Comments on the Proposed Rule

Three commenters asked about the inclusion of specialized programs
for adult family members with special needs. No changes were made to
the rule because it does not mandate separate services for adult and
child EFMP enrollees and incorporates adult and child dependent family
members with special needs in all aspects of the EFMP program, with one
exception. Specifically, in accordance with Sec. 75.5(b) of this final
rule, children with disabilities ages birth to 21 are eligible for
enrollment in the EFMP on the basis of having early intervention or
special educational needs if they have or are eligible to have an IFSP
or an IEP under 32 CFR part 57. Otherwise, both adults and children are
eligible for enrollment when meeting the criteria at Sec. 75.5(a)(1)
through (5) in this final rule. Also, nothing in the rule prohibits the
Services from offering specialized EFMP services for children or adults
as necessary to meet the needs of their families. Please contact your
local EFMP Family Support Office to determine what EFMP services are
available locally for adults, or to request services that address the
concerns of adults with special needs. Online resources for adults with
special needs are available at Military OneSource (http://www.militaryonesource.mil/).
Two commenters requested EFMP materials in multiple languages. As
language access requirements are outside the scope of this rule, no
change was made to the rule or DoD Instruction 1315.19. However, the
DoD does provide EFMP resources in multiple languages. There are
multiple online resources in eight languages on the Military OneSource
website at http://www.militaryonesource.mil/.
One commenter requested training videos on the EFMP and specific
EFMP topics, such as required medical and educational DD Forms, special
needs programs, case management, and medical travel. This comment did
not request a change to the regulation or DoD instruction, but we
provide the following information in response: We currently have
multiple informational and training videos on a variety of EFMP-related
topics including, but not limited to, online learning and videos
explaining the EFMP and providing an overview of early intervention
services (provided by the medical departments), as well as a number of
webinars. They are available at: http://www.militaryonesource.mil/.
Three commenters requested additional sections to the rule
regarding two programs: Military Department Support for Local Centers
to Assist Military Children with Special Needs, and the Foundation for
Support of Military Families with Special Needs. No change is being
made to the rule or DoD Instruction 1315.19 at this time. While the
Secretary of Defense was given the authority to establish these
programs in Section 563 of the National Defense Authorization Act for
Fiscal Year 2010, as amended (published as a note to 10 U.S.C. 1781c),
neither program has been established. Should the Secretary choose to
establish either or both of these programs, any necessary rule-making
associated with the programs will happen at that time.
One commenter requested that the Overarching Coordinating Committee
for Military Families with Special Needs be included in the rule. No
changes were made to the final rule. Changes were made, however, to DoD
Instruction 1315.19 to express that the OSN ``convenes an Overarching
Coordinating Committee meeting at least once a year to review the
implementation of this part.''
One commenter requested the EFMP program establish summer camps,
after school programs, social clubs, or sports teams to support
children with disabilities and their siblings. No change is made in the
rule or DoD Instruction 1315.19, as nothing prohibits the Services from
offering these services. Several installation EFMP family support
offices currently sponsor activities for children with disabilities and
their family members on a regular basis, including sports events,
social, educational, and cultural activities. Please contact your local
EFMP family support office to request or suggest events and activities.
One organization requested we add language to facilitate
collaboration between that organization and EFMP programs, and to give
families information on the organization's programs in their state. No
change is made to the rule or DoD Instruction 1315.19, as we decline to
regulate EFMP office relationships with non-DoD organizations or
require that families receive materials and services prepared by
outside organizations.
The Department received several comments that complimented or
thanked the Department for a range of issues including the provision of
services to family members with special needs, and the inclusion of
mental health issues. The Department appreciates the many comments
received in support of the EFMP.
One commenter requested we establish a process for receiving
complaints about EFMP services. No change is made to the rule, which
does not require a complaint process. The rule, however, does not
prohibit the Services from establishing complaint processes for their
EFMP programs. DoD Instruction 1315.19 gives the Secretaries of the
Military Departments and the Assistant Secretary of Defense for
Manpower and Reserve Affairs the responsibility for ensuring that each
EFMP program is effectively implemented and monitored. We believe the
ongoing review by the OSN of each Military Services' implementation of
the rule will determine if a DoD-level complaint process is needed. The
Department may reconsider this issue at a later date.
Several commenters recommended DoD centralize the EFMP rather than
allowing each Service to implement their own EFMP program. Commenters
cited uniformity of procedures and services provided by EFMP offices,
and equitable conditions and services for families as reasons for
requesting a centralized EFMP. No changes are made to the rule as it
sets baseline requirements for enrollment criteria for the EFMP,
assignment coordination, family support services, data systems, and
assigns responsibility for various aspects of the EFMP program. We
decline to make rules restricting the Services from developing their
own EFMP programs because the Services must have the flexibility to
design programs that meet the needs of their unique missions and
families.

Comments Beyond the Scope of This Rule

Many commenters had questions or submitted suggested changes about
medical services provided by the Military Departments and TRICARE
medical policy. Questions, concerns, and suggestions included a request
for an updated database for finding medical providers in new locations,
resources available in case of the death of an EFMP member, waiting
lists for specialty care providers, continuity of medical care,
customer service concerns, pre-enrollment and appointments with new
care providers when moving to a new region, TRICARE ECHO enrollment
procedures, the collection of data on the efficacy of TRICARE wellness
programs, lapses in medical services after moving, vaccination
schedules, and transfer of medical records.
This rule does not regulate TRICARE programs, policies, or
procedures. All TRICARE related inquiries should be directed to the
TRICARE website at http://www.tricare.mil/.

[[Page 3689]]

Also, this rule does not regulate the provision of medical services
by the Military Medical Departments, and all questions about medical
services provided by the Military Medical Departments should be
directed to the local installation MTF.
Four commenters submitted comments requesting specific services for
veterans, such as access to certain military medical facilities or EFMP
family support services for veterans and their families. One respondent
requested that DoD ensure public schools serving military children
provide a Free Appropriate Public Education. One respondent requested
that medical services for high-risk pregnancies, autism, asthma, and
mental health be made available at every location where family members
are able to accompany Service members. One respondent recommended that
DoD provide educational attorneys in every state to assist military
families with special education mediation and due process hearings. One
respondent requested that ABA therapists be placed in every school. Two
commenters discussed service-specific housing policies. One commenter
discussed the Army's compassionate reassignment procedures. One
commenter recommended designating staff or a help line to help families
navigate the forms and processes followed to establish dependency
status with the Defense Finance and Accounting Services.
It should be noted that the regulation of veterans affairs and the
regulation of educational services provided by non-DoD public schools
is not within the authority of the Secretary of Defense and individuals
should contact a local veterans' affairs office to discuss concerns.
While DoD regulates the provision of educational services by DoDEA, it
does not have the authority to regulate educational services provided
by State and local governments. To address concerns with non-DoD
schools, please contact the local school district administration. The
allocation of medical resources, legal staffing, and school staffing
within the DoD is beyond the scope of this regulation. Local Military
Treatment Facilities can discuss medical resourcing, and local DoDEA
schools can discuss school-based services in DoD schools.

Administrative Changes

After the proposed rule was published in the Federal Register and
the public comments were adjudicated, four administrative edits were
made. The edits pertained to the Definitions section (Sec. 75.3) of
the rule and were made in order to align with the definitions contained
in an associated rule, 32 CFR part 57. These edits were not made as a
result of public comments. Specifically, the administrative changes
updated the definitions of Early Intervention Services (EIS),
Individualized Education Program (IEP), Related Services, and Special
Education to be consistent with 32 CFR part 57.

Internal Comments

Section 75.4(b) of the proposed rule was amended to read
``assignment process'' in the final rule due to an internal DoD comment
received. This amendment was made because the special needs of the
family member must be taken into account during the assignment process.
If the Service Member is not identified as having a family member with
a special need, there is no need for coordination during the assignment
process.

Expected Impact of the Final Rule

The Department of Defense and the Military Services, which are
responsible for providing services to military families with special
needs, receive their funding for the Exceptional Family Member Program
from the defense-wide Operations and Maintenance (O&M) appropriation.
The approximate cost for the Exceptional Family Member Program for
FY2016 was $48,300,000. There is no change to program eligibility or
reporting requirements based on this final rule.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''

Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This final rule has been designated a ``significant
regulatory action,'' although not economically significant, under
section 3(f) of Executive Order 12866. Accordingly, the rule has been
reviewed by the Office of Management and Budget (OMB).

Executive Order 13771, ``Reducing Regulation and Controlling Regulatory
Costs''

This final rule is not subject to the requirements of E.O. 13771
(82 FR 9339, February 3, 2017) because this rule is related to agency
organization, management or personnel.

Executive Order 13132, ``Federalism''

Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. This rule will not have a substantial effect on State and
local governments.

Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
(Pub. L. 104-4) requires that agencies assess anticipated costs and
benefits before issuing any rule whose mandates require spending in any
one year of $100 million in 1995 dollars, updated annually for
inflation. In 2014, that threshold is approximately $141 million. This
rule will not mandate any requirements for State, local, or tribal
governments, nor will it affect private sector costs.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

The Department of Defense certifies that this rule is not subject
to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not,
if promulgated, have a significant economic impact on a substantial
number of small entities. Therefore, the Regulatory Flexibility Act, as
amended, does not require us to prepare a regulatory flexibility
analysis.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

It has been determined that 32 CFR part 75 does impose reporting or
recordkeeping requirements under the Paperwork Reduction Act of 1995.
These reporting requirements have been approved by the Office of
Management and Budget and assigned OMB Control Number 0704-0411, titled
Exceptional Family Member Program.

System of Record Notices (SORN) and Privacy Impact Assessments (PIA)

The applicable SORNs and PIAs for the Exceptional Family Member
Program are:
1. DMDC 02 DoD. The system name is the Defense Enrollment
Eligibility Reporting Systems (DEERS) (available at

[[Page 3690]]

http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/627618/dmdc-02-dod/).
The Privacy Impact Assessment (PIA) for this program is available
at https://www.dmdc.osd.mil/documents/PIA_DEERS.pdf.
This system collects demographic information on DoD beneficiaries,
including Service members and dependents, to provide a database for
determining eligibility for DoD entitlements and privileges and support
DoD health care management programs through the Defense Health Agency.
This demographic information is used to verify Service affiliation for
the EFMP.
2. EDHA 07 DoD. The system name is the Military Health Information
System (available at http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570672/edha-07/).
The Privacy Impact Assessment (PIA) for this program is available
at https://health.mil/Reference-Center/Forms/2016/06/23/MHSMDR.
The Military Health Information System collects information
regarding medical care at Military Treatment Facilities (MTFs),
including beneficiary eligibility and enrollment in health programs
within the DoD, medical records, and diagnosis procedures, to support
benefits determinations for DoD healthcare programs. This medical
information is used to determine the needs of military families during
the Identification/Enrollment and Assignment Coordination components of
the EFMP.
3. EDHA 16 DoD. The system name is the Special Needs Program
Management Information System (SNPMIS) Records (available at http://dpcld.defense.gov/Privacy/SORNsIndex/DODwideSORNArticleView/tabid/6797/Article/570679/edha-16-dod.aspx).
The Privacy Impact Assessment (PIA) for this program is available
at https://health.mil/Reference-Center/Forms/2015/12/01/PIA-Summary-for-Special-Needs-Program-Management-Information-System_SNPMIS.
The Special Needs Program Management Information System (SNPMIS)
provides access to a comprehensive program of therapy, medical support,
and social services for young Department of Defense (DoD) Military
Health System (MHS) beneficiaries with special needs. SNPMIS is the
Military Health System (MHS) automated information system designed to
ensure the DoD meets the unique information requirements associated
with implementation of the Individuals with Disabilities Education Act
(IDEA). SNPMIS captures records referral, evaluation, eligibility, and
service plan data for children with special needs who are eligible for
MHS services under IDEA. This system is a distributed data collection
application with database servers distributed at various Military
Treatment Facilities (MTFs) located within the Continental United
States (CONUS) and Outside the Continental United States (OCONUS).
SNPMIS is currently used in 45 EDIS clinics at Army, Navy, and Air
Force installations worldwide.
4. DPR 34 DoD. The system name is the Defense Civilian Personnel
Data System (available at http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570697/dpr-34-dod/.
The Privacy Impact Assessment (PIA) for this program is available
at http://www.dhra.mil/webfiles/docs/Privacy/PIA/DHRA.XX.DCPAS.DCPDS.4.12.2013.pdf.
The Defense Civilian Personnel Data System collects personnel
information on civilian employees to provide support to the DoD
civilian workforce. This personnel information is used to document
staff processing of EFMP paperwork.
5. DoDEA 26. The system name is the DoDEA Educational Records
system (available at http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570573/dodea-26/.
The Privacy Impact Assessment (PIA) for this program is available
at http://www.dodea.edu/upload/pia_SIRs_AIRs.pdf.
The DoDEA Educational Records system maintains student educational
records to inform the management, funding, and tracking of DoD schools.
This information is used to determine the educational needs of children
during the Identification/Enrollment and Assignment Coordination
components of the EFMP.
6. DoDEA 29. The system name is the DoDEA Non-DoD Schools Program
system (available at http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570576/dodea-29/).
The Privacy Impact Assessment (PIA) for this program is available
at http://www.dodea.edu/upload/pia_SIRs_AIRs.pdf.
The DoDEA Non-DoD Schools Program system maintains the educational
records for all students who receive non-DoD schooling funded by the
DoD to track obligations and invoices for transportation, tuition, and
tutoring payments and to determine eligibility and enrollment by grade.
This information is used to determine the educational needs of children
during the Identification/Enrollment and Assignment Coordination
components of the EFMP.

Executive Order 13132, ``Federalism''

Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. This proposed rule will not have a substantial effect on
State and local governments.

List of Subjects in 32 CFR Part 75

Children, Family health, Special needs.

0
Accordingly, 32 CFR part 75 is added to read as follows:

PART 75--EXCEPTIONAL FAMILY MEMBER PROGRAM (EFMP)

Subpart A--General
Sec.
75.1 Purpose.
75.2 Applicability.
75.3 Definitions.
Subpart B--Policy
75.4 Policy.
Subpart C--Procedures
75.5 DoD criteria for identifying family members with special needs.
75.6 Civilian employees on overseas assignment.

Authority: 10 U.S.C. 1781c.

Subpart A--General

Sec. 75.1 Purpose.

This part:
(a) Provides guidance and prescribes procedures for:
(1) Identifying a family member with special needs who is eligible
for services as defined in this part.
(2) Processing DoD civilian employees who have family members with
special needs for an overseas assignment.
(b) Does not create any rights or remedies in addition to those
already otherwise existing in law or regulation, and may not be relied
upon by any person, organization, or other entity to allege a denial of
such rights or remedies.

Sec. 75.2 Applicability.

This part applies to:
(a) Service members who have family members with special needs as
described in this part.
(b) All DoD civilian employees in overseas locations and selectees
for overseas positions who have family

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members with special needs as described in this part.

Sec. 75.3 Definitions.

Unless otherwise noted, these terms and their definitions are for
the purpose of this part.
Assistive technology device. Any item, piece of equipment, or
product system, whether acquired commercially off the shelf modified,
or customized, that is used to increase, maintain, or improve
functional capabilities of individuals with disabilities.
Assistive technology service. Any service that directly assists an
individual with a disability in the selection, acquisition, or use of
an assistive technology device.
CONUS. The 48 contiguous states of the United States, excluding
Alaska, Hawaii, and U.S. territories or other overseas insular areas of
the United States.
Early Intervention Services (EIS). Developmental services for
infants and toddlers with disabilities, as defined in 32 CFR part 57,
that are provided under the supervision of a Military Department,
including evaluation, IFSP development and revision, and service
coordination provided at no cost to the child's parents.
Evaluations. Medical, psychological, and educational assessments
required to define a medical or educational condition suspected after a
screening procedure.
Family member. A dependent as defined by 37 U.S.C. 401, to include
a spouse and certain children of a Service member, who is eligible to
receive a DoD identification card, medical care in a DoD Military
Treatment Facility, and command sponsorship or DoD-sponsored travel. To
the extent authorized by law and in accordance with Service
implementing guidance, the term may also include other nondependent
family members of a Service member. For the purposes of Sec. 75.6 of
this part only, this definition also includes the dependents of a
civilian employee on an overseas assignment, or being considered for an
overseas assignment, who are, or will be, eligible to receive a DoD
identification card during that overseas assignment. To the extent
authorized by law and in accordance with Service implementing guidance,
the term may also include other nondependent family members of a
civilian employee on an overseas assignment, or being considered for an
overseas assignment.
Family member travel. Refers to family member permanent change of
station authorization that is requested by a Service member or civilian
employee for the purposes of Sec. 75.6 of this part only.
Family support services. Encompasses the non-clinical case
management delivery of information and referral for families with
special needs, including the development and maintenance of an
individualized Services Plan (SP).
Individualized Education Program (IEP). A written document that is
developed, reviewed, and revised at a meeting of the Case Study
Committee, identifying the required components of the individualized
education program for a child with a disability.
Individualized Family Service Plan (IFSP). A written document
identifying the specially designed services for an infant or toddler
with a disability and the family of such infant or toddler.
Overseas. Any location outside of the 48 contiguous United States
including Alaska, Hawaii, and all U.S. Territories or other overseas
insular areas of the United States.
Related services. Transportation and such developmental,
corrective, and other supportive services required to assist a child
with a disability to benefit from special education under the child's
IEP. The term includes services or consults in the areas of speech-
language pathology, audiology services, interpreting services,
psychological services, physical and occupational therapy, recreation
(including therapeutic recreation), social work services, school nurse
services designed to enable a child with a disability to receive a Free
Appropriate Public Education (FAPE) as described in the child's IEP,
early identification and assessment of disabilities in children,
counseling services (including rehabilitation counseling), orientation
and mobility services, and medical services for diagnostic or
evaluative purposes.
Related services assigned to the military medical departments
overseas. Services provided by Educational and Developmental
Intervention Services to Department of Defense Dependent School
students for the development or implementation of an IEP, which are
necessary for the student to benefit from special education. Those
services may include medical services for diagnostic or evaluative
purposes, social work, community health nursing, nutrition,
occupational therapy, physical therapy, audiology, ophthalmology, and
psychological testing and therapy.
Responsible military department. The Military Department
responsible for providing EIS or related services in the geographic
areas assigned under 32 CFR part 57.
Special education. Specially designed instruction (including
instruction in physical education) provided at no cost to the parent to
meet the unique needs of a child with a disability, conducted in the
classroom, in the home, in hospitals and institutions, and in other
settings.
Special needs. Includes special medical and educational needs of
family members who meet the DoD criteria for enrollment in the EFMP as
found in Sec. 75.5 of this part.
Specialty care. Specialized health care required for health
maintenance and provided by a physician whose training focused
primarily in a specific field, such as neurology, cardiology,
rheumatology, dermatology, oncology, orthopedics, or ophthalmology.

Subpart B--Policy

Sec. 75.4 Policy.

It is DoD policy that:
(a) The EFMP identifies family members with special needs, enrolls
sponsors in the program, and participates in the coordination of
assignments for active duty Service members in order for the special
needs of family members to be considered during the assignment process.
(b) Active duty Service members whose families include a member
with special needs must enroll in the EFMP to ensure their family
member's special needs are considered during the assignment process.
(c) The special needs of a civilian employee's family member will
not be considered in the selection of a civilian for an overseas
position.

Subpart C--Procedures

Sec. 75.5 DoD criteria for identifying family members with special
needs.

(a) Special medical needs. Individuals who meet one or more of the
criteria in this section will be identified as a family member with
special medical needs:
(1) Potentially life-threatening conditions or chronic (duration of
6 months or longer) medical or physical conditions requiring follow-up
care from a primary care manager (to include pediatricians) more than
once a year or specialty care.
(2) Current and chronic (duration of 6 months or longer) mental
health conditions (such as bi-polar, conduct, major affective, thought,
or personality disorders); inpatient or intensive (greater than one
visit monthly for more than 6 months) outpatient mental health service
within the last 5 years; or intensive mental health services required
at the present time. This

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includes medical care from any provider, including a primary care
manager.
(3) A diagnosis of asthma or other respiratory-related diagnosis
with chronic recurring symptoms that involves one or more of the
following:
(i) Scheduled use of inhaled or oral anti-inflammatory agents or
bronchodilators.
(ii) History of emergency room use or clinic visits for acute
asthma exacerbations or other respiratory-related diagnosis within the
last year.
(iii) History of one or more hospitalizations for asthma, or other
respiratory-related diagnosis within the past 5 years.
(4) A diagnosis of attention deficit disorder or attention deficit
hyperactivity disorder that involves one or more of the following:
(i) Includes a co-morbid psychological diagnosis.
(ii) Requires multiple medications, psycho-pharmaceuticals (other
than stimulants) or does not respond to normal doses of medication.
(iii) Requires management and treatment by a mental health provider
(e.g., psychiatrist, psychologist, social worker or psychiatric nurse
practitioner).
(iv) Requires the involvement of a specialty consultant, other than
a primary care manager, more than twice a year on a chronic basis.
(v) Requires modifications of the educational curriculum or the use
of behavioral management staff.
(5) A chronic condition that requires:
(i) Adaptive equipment (such as an apnea home monitor, home
nebulizer, wheelchair, custom-fit splints/braces/orthotics (not over-
the-counter), hearing aids, home oxygen therapy, home ventilator,
etc.).
(ii) Assistive technology devices (such as communication devices)
or services.
(iii) Environmental or architectural considerations (such as
medically required limited numbers of steps, wheelchair accessibility,
or housing modifications and air conditioning).
(b) Special educational needs. Family members of active duty
Service members (regardless of location) and civilian employees
appointed to an overseas location eligible for enrollment in a DoDEA
school on a space-required basis will be identified as having special
educational needs if they have, or are found eligible for, either an
IFSP or an IEP under 32 CFR part 57.

Sec. 75.6 Civilian employees on overseas assignment.

(a) Vocabulary. Section 75.3 provides definitions of ``family
member'' that apply only to this section.
(b) Employee rights. (1) The DoD Components must select civilian
employees for specific positions based on job requirement and merit
factors in accordance with 5 U.S.C. 2302, and 29 U.S.C. 791 through
794d. Selection for an overseas position must not be influenced by the
special needs of a civilian employee's family member(s), or any other
prohibited factor.
(2) The civilian employee or selectee will be given comprehensive
medical, dental, and educational information about the overseas
community where the position is located to help the employee make an
informed choice about accepting the position.
(3) Refer to the Joint Travel Regulations (available at https://www.defensetravel.dod.mil/Docs/perdiem/JTR.pdf) for PCS travel and
transportation allowances for eligible civilian employees and their
family members.
(4) Civilian employees or selectees assigned to positions overseas
are generally responsible for obtaining medical and dental services and
paying for such services, except services provided pursuant to 32 CFR
part 57. Their family members may have access to the MHS on a space-
available, reimbursable basis only, except for services pursuant to 32
CFR part 57.
(i) DoDEA and the Military Medical Department responsible for the
provision of related services to support DoDEA at the duty station are
required to evaluate school-aged children (ages 3 through 21 years,
inclusive) eligible for enrollment in a DoDEA school on a space-
required basis and provide them with the special education and related
services included in their IEPs in accordance with 32 CFR part 57.
(ii) The Military Departments are required to provide infants and
toddlers (from birth up to 3 years of age, inclusive) eligible for
enrollment in a DoDEA school on a space-required basis with the EIS
identified in the IFSPs in accordance with 32 CFR part 57.
(c) Processing a civilian employee for an overseas position. (1)
When recruiting for an overseas position, DoD human resources
representatives will:
(i) Provide information on the requirements of this part related to
civilian employees or applicants for employment, including employee
rights provided in DoD Instruction 1315.19.
(ii) Provide information on the availability of medical and
educational services, including a point of contact for the applicant to
ask about specific special needs. This information must be contained in
any document used for recruitment for overseas positions.
(iii) Include the following statements in recruitment information:
(A) If an employee brings a child to an overseas location and that
child is entitled to attend a DoD school on a space-required basis in
accordance with DoDEA Regulation 1342.13 (available at http://www.dodea.edu/aboutDoDEA/upload/1342_13.pdf), DoDEA and the Military
Department responsible for providing related services will ensure that
the child, if eligible for special education, receives a free
appropriate public education, including special education and related
services pursuant to 32 CFR part 57.
(B) If an employee brings an infant or toddler (up to 3 years of
age) to an overseas location, and that infant or toddler, but for the
child's age, is entitled to attend the DoDEA on a space-required basis
in accordance with DoDEA Regulation 1342.13, then the Military
Department responsible for EIS will provide the infant or toddler with
the required EIS in accordance with the eligibility criteria consistent
with 32 CFR part 57.
(C) If an employee brings a family member to an overseas location
who requires medical or dental care, then the employee will be
responsible for obtaining and paying for such care. Access for civilian
employees and their families to military medical and dental treatment
facilities is on a space-available and reimbursable basis only.
(2) When the gaining human resources representatives process a
civilian for an overseas position where family member travel is
authorized at government expense, then they must ask the selectee to
determine whether a family member has special needs, using the criteria
provided in Sec. 75.5 of this part. All selectees must be asked only
after they have been notified of their selection in accordance with 29
U.S.C. 791 through 794d, and 29 CFR 1630.14. If the selectee indicates
that a family member has special needs:
(i) The DoD civilian human resources representatives may not coerce
or pressure the selectee to decline the job offer in light of that
information.
(ii) The selectee may voluntarily forward to the civilian human
resources representative completed DD Forms 2792 or 2792-1 for each
family member with special needs to provide information on the
availability of medical and educational services. DD Form 2792-1 must
be submitted if the selectee intends to enroll his or her child in a
school funded by the DoD or a school in which DoD is responsible for
paying the tuition for a space-required family member.

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(3) The gaining human resources activity will coordinate with the
appropriate military medical and educational personnel on availability
of services and inform the selectee in writing of the availability of
medical, educational, and early intervention resources and services to
allow the civilian employee to make an informed choice whether to
accept the position. The notice will include:
(i) Comprehensive medical, dental, and educational information on
the overseas community where the position is located.
(ii) A description of the local DoDEA facility and programs,
specifying the programs for children with special education needs.
(iii) A description of the local EIS available for infants and
toddlers with disabilities.
(iv) A statement indicating that the lack of EIS or special
education resources (including related services assigned to the
military medical departments) cannot serve as a basis for the denial of
family travel at government expense and required services will be
provided even if a local program is not currently established in
accordance with 32 CFR part 57.
(d) Use of EFMP Family Support Services. Civilian employees may
utilize EFMP family support services on a space-available basis.

Dated: February 7, 2019.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2019-02107 Filed 2-12-19; 8:45 am]
BILLING CODE 5001-06-P