[Federal Register Volume 89, Number 192 (Thursday, October 3, 2024)]
[Rules and Regulations]
[Pages 80390-80396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22795]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 49
[Docket ID: DoD-2024-OS-0054]
RIN 0790-AL61
Implementation of HAVANA Act of 2021
AGENCY: Office of the Under Secretary of Defense for Personnel and
Readiness (OUSD(P&R)), Department of Defense (DoD).
ACTION: Direct final rule with request for comments.
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SUMMARY: This rule implements within DoD (the Department) amendments
made by the Helping American Victims Afflicted by Neurological Attacks
(HAVANA) Act of 2021, which provide authority for the Secretary of
State and other agency heads to provide payments to certain individuals
who have incurred qualifying injuries to the brain. This rule covers
current and former DoD employees, and dependents of current or former
DoD employees and is vitally important to those who have experienced
such injuries.
DATES: This rule will be effective on November 18, 2024 unless comments
are received that would result in a contrary determination. If
significant adverse comments are received, the Department will publish
a timely withdrawal of the rule in the Federal Register. Comments will
be accepted on or before November 4, 2024.
ADDRESSES: Interested parties may submit comments, identified by docket
number and/or regulatory identifier number (RIN) and title, by one of
the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Department of Defense, Office of the Assistant to
the Secretary of Defense for Privacy, Civil Liberties, and
Transparency, Regulatory Directorate, 4800 Mark Center Drive, Attn:
Mailbox 24, Suite 08D09, Alexandria, VA 22350-1700.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal
[[Page 80391]]
Register document. The general policy for comments and other
submissions from members of the public is to make these submissions
available for public viewing at http://www.regulations.gov as they are
received without change, including any personal identifiers or contact
information.
FOR FURTHER INFORMATION CONTACT: Taiwanna Smith, Director Benefits Wage
and NAF Policy Line of Business, Defense Civilian Personnel Advisory
Services, Office of the Under Secretary of Defense for Personnel and
Readiness at (571) 372-1642.
SUPPLEMENTARY INFORMATION: This rule is being published as a direct
final rule and is effective 15 days after the comment period expires as
the Department for good cause finds it is unnecessary to provide for a
period of public comment in accordance with 5 U.S.C. 553(b)(B).
Alternatively, because this rule relates to the provision of a benefit,
it is exempt from the procedural requirements of the Administrative
Procedure Act. Id. 553(a)(2). However, the Department is seeking
comment from interested persons on the provisions of this rule and will
consider all relevant comments in any subsequent rulemaking. If such
comments are received, the direct final rule will be withdrawn, and a
proposed rule for comments will be published.
This rule implements section 901(i) of title IX of division J of
the Further Consolidated Appropriations Act, 2020 (22 U.S.C. 2680b(i)).
Purpose and Authority--Sec. 49.1
In 2016, Department of State employees stationed in Havana, Cuba,
began reporting a sudden onset of symptoms, including headaches, pain,
nausea, disequilibrium, and hearing loss, in conjunction with sensory
events. Federal agencies have called such incidents Anomalous Health
Incidents (``AHIs''). Since 2016, Federal employees in numerous
countries reported suspected AHIs.
Beginning on December 20, 2019, the Department of State was
authorized by statute to pay benefits to employees and their dependents
for injuries suffered in the Republic of Cuba, the People's Republic of
China, or other foreign countries designated by the Secretary of State
incurred after January 1, 2016, in connection with certain hostile or
other incidents designated by the Secretary of State (Pub. L. 116-94,
Division J, Title IX, section 901) (codified in 22 U.S.C. 2680b). These
benefits were limited to Department of State employees only (e.g., not
including other U.S. Government employees under Chief of Mission (COM)
authority).
On January 1, 2021, this law was amended, authorizing other Federal
Government agency heads (such as the Secretary of Defense) to provide
benefits to their own employees under COM authority who suffered
similar injuries. (Pub. L. 116-283, div. A, title XI, section 1110).
On October 8, 2021, the President signed the ``Helping American
Victims Afflicted by Neurological Attacks'' (HAVANA) Act of 2021 (Pub.
L. 117-46). The HAVANA Act amended section 901 to authorize the heads
of Federal Government agencies to compensate affected employees, former
employees, and their dependents for qualifying injuries to the brain.
The HAVANA Act amendments did not require that the qualifying injury
occur in the Republic of Cuba, the People's Republic of China, or
another foreign country designated by the Secretary of State. Section
9216 of the James M. Inhofe National Defense Authorization Act for
Fiscal Year 2023, (Pub. L. 117-263) (codified at 22 U.S.C. 2680b(j)),
provided agencies with authority to designate incidents affecting
employees or dependents who are not under the security responsibility
of the Secretary of State. Section 7803 of the National Defense
Authorization Act for Fiscal Year 2024 (Pub. L. 118-31) (50 U.S.C.
3519b note) generally requires each head of an element of the
intelligence community to issue regulations and procedures, not later
than 180 days after the effective date of the National Defense
Authorization Act for Fiscal Year 2024, to implement the authorities in
section 901(i) of title IX of division J of the Further Consolidated
Appropriations Act, 2020 (22 U.S.C. 2680b(i)) to provide payments to
the degree that such authorities are applicable to the head of the
element.
This rule implements 22 U.S.C. 2680b(i) as it applies to the
Department of Defense. The rule only applies to current and former
employees of the DoD, and their dependents as defined in Sec. 49.2 of
this rule.
On June 30, 2022, the Department of State published an interim
final rule implementing 22 U.S.C. 2680b(i), with an effective date of
August 15, 2022. 87 FR 38981 (June 30, 2022) (codified at 22 CFR part
135). The Department of State subsequently published a final rule that
became effective on January 25, 2023. 88 FR 4722 (Jan. 25, 2023)
(codified at 22 CFR part 135). The Department of Defense has
independently reviewed the approach implemented by the Department of
State in these rules and has determined that its approach is reasonable
and well considered.
Therefore, the Department of Defense will not substantially deviate
from the definitions and process established by the Department of
State.
Definitions--Sec. 49.2
The rule defines those who are eligible to receive payments:
covered employees (including current and former employees) and covered
dependents who on or after January 1, 2016, experience a qualifying
brain injury. A ``covered employee'' includes Department employees who
have been appointed in the civil service in accordance with 5 U.S.C.
2105(a)(1), with the exception of employees paid from non-appropriated
funds of an instrumentality of the United States under the jurisdiction
of the armed forces who are not citizens or nationals of the United
States.
An employee's family member is a covered dependent if, on or after
January 1, 2016, the family member experiences a qualifying injury. The
rule defines the family members who are eligible as certain children,
parents residing with the employee sponsor, dependent siblings, and
spouses. For the purposes of this rule, the Department also adopts the
Department of State's definition of ``qualifying injury to the brain.''
22 CFR 135.2. The Department has determined that the Department of
State definition is reasonable and well considered. The Department of
State consulted with the chief medical officers at other Federal
agencies and experts at civilian medical centers of excellence. There
is no diagnostic code or criteria for AHIs in the International
Classification of Diseases, Tenth Revision, Clinical Modification (ICD-
10-CM). Because of the varied symptoms and still nascent understanding
of how to test or otherwise screen for AHI impacts, the standard
adopted is broadly inclusive of the types of injuries that have been
reported to date.
The definition of ``qualifying injury to the brain'' is based on
current medical practices related to brain injuries. The individual
must have: (1) an acute injury to the brain such as a concussion, a
penetrating injury, or an injury as the consequence of an event that
leads to permanent alterations in brain function as demonstrated by
confirming correlative findings on imaging studies or
electroencephalogram (``EEG''); (2) a medical diagnosis of a traumatic
brain injury that required active medical treatment for 12 months or
more; or (3) the acute onset of new, persistent, disabling neurologic
symptoms, as demonstrated by confirming correlative findings on imaging
studies, EEG, a
[[Page 80392]]
physical exam, or other appropriate testing, that required active
medical treatment for 12 months or more.
The first component of the definition of ``qualifying injury to the
brain'' set forth in Sec. 49.2 accounts for a variety of observable
impacts to an individual, including a concussion or a penetrating
injury or, absent either of those, permanent alterations in brain
function as confirmed by a board-certified physician's review of a
variety of forms of medical imaging evidence. The goal with this
standard is to ensure there is some documented evidence of impact to
the brain, while minimally circumscribing what that impact entails. The
second and third components of the definition in Sec. 49.2 are
intended to provide alternative avenues for demonstrating sustained,
long-term impact to the individual. This benefit is intended for
individuals who experience long-term consequences, potentially
including an inability to gainfully work, as a result of a suspected
AHI.
The standard is consistent with that employed by other agencies,
including the Department of State. A 12-month threshold of active
medical treatment is indicative of a long-term injury. For example, the
Centers for Disease Control and Prevention (``CDC'') broadly defines
chronic diseases ``as conditions that last 1 year or more and require
ongoing medical attention or limit activities of daily living or
both.'' CDC, About Chronic Diseases, https://www.cdc.gov/chronic-disease/about/index.html (last reviewed July 11, 2024). The Department
notes that applicants who have suffered kinetic or external, physically
caused injuries to the brain such as the head striking an object, the
brain undergoing an acceleration or deceleration movement, or brain
injuries from events such as a blast or explosion, including
penetrating injuries, may be eligible if the injuries satisfy the other
requirements of this rule.
To be compensable, the injury must have occurred ``in connection
with war, insurgency, hostile act, terrorist activity, or other
incidents designated by the Secretary of State,'' and cannot have been
``the result of the willful misconduct'' of the covered individual. 22
U.S.C. 2680b(e)(4)(A)(ii)-(iii), (e)(4)(B)(ii)-(iii), (i)(1)(D). The
Department will work with an applicant upon the applicant's submission
of the Department of Defense (DD) Form 3220, ``Eligibility
Questionnaire for HAVANA Act Payments,'' to determine whether the
reported incident qualifies.
The definition of ``other incident'' is a new onset of physical
manifestations that cannot otherwise be readily explained and that is
designated under 22 U.S.C. 2680b. The Department will review available
information on the reported incident. If a physician does not indicate
that there is a credible alternative explanation for the individual's
symptoms, and if the information the Department has regarding the
incident does not provide a credible alternative explanation for the
incident, that incident will be recommended for designation. Incidents
for which an alternative explanation has been identified will not be
recommended for designation. For incidents affecting employees or
dependents who are not under the security responsibility of the
Secretary of State, the Secretary of Defense will determine whether to
designate such incidents.
Eligibility for Payments by the Department of Defense--Sec. 49.3
The Department will make available to its workforce information
concerning the regulations, and the process to apply for compensation
pursuant to 22 U.S.C. 2680b, or ``HAVANA Act payments.'' Current
employees, former employees, and dependents (as defined in this rule)
can apply for consideration. Applicants will be required to provide the
necessary documentation so the Department may determine whether they
qualify for payment. The DD Form 3220, ``Eligibility Questionnaire for
HAVANA Act Payments,'' is the form associated with collecting the
necessary evidence to submit a claim, and it will be available upon
request with instructions on how to apply for a HAVANA Act payment. A
portion of the form must be filled out by a qualified physician; the
rule specifies certain board certification requirements for physicians
who can evaluate a qualifying injury to the brain. This information
will also be publicly available on the Defense Civilian Personnel
Advisory Service website, https://www.dcpas.osd.mil/havana-act-benefits-program, which includes methods of contacting the Department
for additional information.
The Department of Defense has determined that the payment scheme
set forth in the Department of State's HAVANA Act regulations, 22 CFR
135.3, is well reasoned and provides an effective means of compensating
covered employees. Accordingly, the Department has adopted it for
purposes of this rulemaking. Pursuant to this direct final rule, the
Department, in its discretion, may authorize a one-time, non-taxable,
lump sum payment based on Level III of the Executive Schedule. See 5
U.S.C. 5311 et seq. Payment eligibility and the amount of the payment
will be at the Department's discretion. A Base payment will be 75
percent of Level III pay, and a Base+ payment will be 100 percent of
Level III pay. The specific use of Level III of the Executive Schedule
sets the compensation at the maximum annual salary potentially
available to most of the Federal workforce. The Department believes
this amount is the most it can reasonably compensate each applicant
while ensuring funds for the total number of applicants it believes
will likely receive payments. The payment is non-taxable pursuant to 22
U.S.C. 2680b(g) and will not count as Supplemental Security Income
(SSI) income in the month of receipt and from resources the month after
receipt, if retained. The maximum should only be awarded where a
condition has a consistent, sustained, and exceptionally severe impact
on a victim's quality of life or prevents a victim from successfully
performing their work-related duties. The purpose is to compensate
individuals only for qualifying brain injuries that meet the criteria
set forth in this rule. The following factors will be taken into
account to determine the amount of the payment to be authorized: (1)
the applicant's responses on the eligibility form; (2) whether the
Department of Labor (Office of Workers' Compensation Programs) has
determined that the applicant has no reemployment potential for an
indefinite future, the Social Security Administration (``SSA'') has
approved the applicant for Social Security Disability Insurance or SSI
benefits based on disability, or (3) the applicant's board-certified
physician has certified that the individual requires a full-time
caregiver for activities of daily living, as defined by the Katz Index
of Independence in Activities of Daily Living.
If the applicant meets any of the criteria for severe impacts, the
applicant will be eligible to receive a Base+ payment. Applicants whose
board-certified physician confirms that the definition of qualifying
injury to the brain has been met, but who have not met any of the
criteria for severe impacts, will be eligible to receive a Base
payment. The criteria established for severe impacts are reflective of
the Department's objective of ensuring that the individuals most
severely affected by AHIs (as indicated by a lack of reemployment
potential, an inability to engage in substantial gainful activity, or
the need for a full-time caregiver) receive a larger payment. The use
of the
[[Page 80393]]
Department of Labor's or the SSA's determination is to ensure that both
Federal employees as well as their dependents have access to a
mechanism for this determination.
The Department recognizes that the criteria the Department of Labor
and SSA use in their determinations are distinct, as well as the fact
that the procedural timelines for seeking and receiving approval may be
different between these agencies. The third factor, that a board-
certified physician certify that the individual requires a full-time
caregiver for activities of daily living, provides an alternative
mechanism for all individuals to meet the criteria. Finally, the
Department notes that if an applicant who received a Base payment later
meets any of the criteria listed for severe impacts, the applicant may
apply for an additional payment that will be the difference between the
Base and Base+ payment. As the payments are tied to the Executive
Schedule payment levels, the amounts will change over time based on
changes to the Federal salary schedule. Payments will be based on the
Executive Schedule in effect at the time the payment was approved.
While HAVANA Act payments may be in addition to other leave
benefits, disability benefits, or workers' compensation payments that
the applicant may be receiving or may be entitled to receive that also
help augment any loss of income, the Department believes this is an
appropriate additional payment. This payment scheme is also consistent
with what is being offered by other Federal agencies and will ensure
consistency of HAVANA Act benefits among affected individuals.
The Department notes that payments may only be made using amounts
appropriated in advance specifically for this purpose in the relevant
fiscal year. Therefore, payments are contingent on appropriated funds,
and all payments will be paid out on a first-come, first-serve basis.
Consultations With Department of State--Sec. 49.4
Under the rule, the Department's procedures for determining whether
an incident has been designated under 22 U.S.C. 2680b include, where
appropriate, consultation with the Secretary of State. See 22 U.S.C.
2680b(i)(1)(D) (cross-referencing subparagraph 2680b(e)(4)).
Procedures--Sec. 49.5
DoD is responsible for (1) processing applications by DoD employees
and their dependents for payments pursuant to 22 U.S.C. 2680b(i); (2)
determining or, as necessary, consulting with the Secretary of State to
determine, whether the incident causing the injury may be deemed a
designated incident under the statute, see 22 U.S.C. 2680b(j); id.
2680b(i)(1)(D) (cross-referencing subparagraph 2680b(e)(4)); (3)
determining eligibility for the benefit, determining the amount of the
benefit, and processing payment of the benefit; and (4) notifying
applicants upon receipt of their applications and when a decision has
been made whether to authorize payment.
The Director, Defense Civilian Personnel Advisory Service, is
authorized to approve HAVANA Act payments to DoD employees or their
dependents. If payment is denied, the applicant may direct an appeal to
the Deputy Assistant Secretary of Defense for Civilian Personnel Policy
within 60 days of the notification of denial, but decisions on the
amount of payment are not appealable.
Direct Final Rule
This rule is being published as a direct final rule as the
Department does not expect to receive any significant adverse comments.
If such comments are received, this direct final rule will be withdrawn
and a proposed rule for comments will be published. If no such comments
are received, this direct final rule will become effective 15 days
after the comment period expires.
For purposes of this rulemaking, a significant adverse comment is
one that explains (1) why the rule is inappropriate, including
challenges to the rule's underlying premise or approach; or (2) why the
rule will be ineffective or unacceptable without a change. In
determining whether a significant adverse comment necessitates
withdrawal of this direct final rule, the Department will consider
whether the comment raises an issue serious enough to warrant a
substantive response had it been submitted in a standard notice-and-
comment process. A comment recommending an addition to the rule will
not be considered significant and adverse unless the comment explains
how this direct final rule would be ineffective without the addition.
Regulatory Analysis
Administrative Procedure Act
Pursuant to section 2680b of title 22, United States Code, the DoD
may provide a monetary benefit to current and former DoD employees and
their dependents who have suffered a qualifying injury to the brain as
a result war, insurgency, hostile act, terrorist activity, or other
incidents designated by the Secretary of State or Secretary of Defense
(for designations related to employees or dependents who, at the time
of the incident, were not under the security responsibility of the
Secretary of State or when operational control of overseas security
responsibility for such employees or dependents had been delegated to
the Secretary of Defense). The policy promulgated by this rule is
vitally important to those who have experienced such injuries. This
rule is being published as a direct final rule and is effective 15 days
after the comment period expires as the Department for good cause finds
it is unnecessary to provide for a period of public comment. 5 U.S.C.
553(b)(B). Alternatively, because this rule relates to the provision of
a benefit, it is exempt from the procedural requirements of the
Administrative Procedure Act. Id. 553(a)(2). However, the Department is
seeking comment from interested persons on the provisions of this rule
and will consider all relevant comments in any subsequent rulemaking.
Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this rule does not meet the criteria set forth 5 U.S.C. 804(2) for
the purposes of Congressional review of agency rulemaking under the
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C.
801-808).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million in any year; and it will not significantly or uniquely affect
small governments. Therefore, no actions were deemed necessary under
the provisions of the Unfunded Mandates Reform Act of 1995.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department has determined that this rulemaking will not have
tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not pre-empt tribal law.
Accordingly, the requirements of Executive Order 13175 do not apply to
this rulemaking.
Regulatory Flexibility Act: Small Business
The Under Secretary of Defense for Personnel and Readiness
(USD(P&R)) certifies that this rulemaking will not
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have an impact on a substantial number of small entities. A regulatory
flexibility analysis is not required under the Regulatory Flexibility
Act (5 U.S.C. 601, et seq.).
Executive Order 12866 (as Amended by Executive Order 14094) and
Executive Order 13563
The Department of Defense has provided this direct final rule to
the Office of Management and Budget (OMB) for its review. OMB has
designated this rule as a ``significant'' regulatory action under
Executive Order 12866, as amended. Potential causes of AHI are being
investigated but remain unknown. Given the nature of the incidents, it
is difficult to accurately estimate future incidents and number of
individuals affected. For fiscal year (FY) 2025, the Department
estimates it will pay up to $4 million in total. After FY 2025, the
Department estimates it will pay up to $3 million each fiscal year.
The Department has also reviewed the rule to ensure its consistency
with the regulatory philosophy and principles set forth in Executive
Order 12866, Executive Order 13563, and Executive Order 14094, and
finds that the benefits of the rule (in providing mechanisms for
individuals to obtain compensation for certain injuries) outweigh any
costs to the public, which are minimal.
Executive Order 12988
The Department of Defense has reviewed this rule in light of
Executive Order 12988 to eliminate ambiguity, minimize litigation,
establish clear legal standards, and reduce burden.
Executive Orders 12372 and 13132
This rule will not have substantial direct effect on the states, on
the relationships between the national government and the states, or on
the distribution of power and responsibilities among the various levels
of government. Therefore, in accordance with Executive Order 13132, it
is determined that this rule does not have sufficient federalism
implications to require consultations or warrant the preparation of a
federalism summary impact statement. Executive Order 12372, regarding
intergovernmental consultation on federal programs and activities does
not apply to this regulation.
Paperwork Reduction Act
This rule imposes reporting and/or recordkeeping requirements under
the Paperwork Reduction Act of 1995. DoD has submitted for OMB review
and approval the following information collection--Eligibility
Questionnaire for HAVANA Act Payments. To review this collection,
including all background materials, please visit https://www.reginfo.gov/public/do/PRAMain and use the search function to enter
the title of the collection.
List of Subjects in 32 CFR Part 49
Government employees; Federal retirees; Health care.
0
Accordingly, for the reasons stated in the preamble, the Department of
Defense adds 32 CFR part 49 to read as follows:
PART 49--IMPLEMENTATION OF THE HAVANA ACT OF 2021
Sec.
49.1 Purpose and authority.
49.2 Definitions.
49.3 Eligibility for payments by the Department of Defense.
49.4 Consultation with Department of State.
49.5 Procedures.
Authority: 5 U.S.C. 301; Pub. L. 117-46, 135 STAT. 391; 22
U.S.C. 2680b.
Sec. 49.1 Purpose and authority.
(a) Under 22 U.S.C. 2680b(i), the Secretary of Defense may provide
a payment for a qualifying injury to the brain to a covered employee or
covered dependent, as defined in this part, who incurred a qualifying
injury to the brain on or after January 1, 2016. The authority to
provide such payments is at the discretion of the Secretary of Defense
or the Secretary's designees.
(b) These regulations are issued in accordance with 22 U.S.C.
2680b(i)(4) and apply to covered employees of the Department of Defense
(current and former employees) and covered dependents.
Sec. 49.2 Definitions.
For purposes of this part, the following definitions apply:
Covered dependent. A family member, as defined in this section, of
a current or former employee of the Department of Defense who, on or
after January 1, 2016, accompanies the employee, while an employee of
the Department, to an assigned duty location and becomes injured by
reason of a qualifying injury to the brain.
Covered employee. A current or former employee of the Department of
Defense who, on or after January 1, 2016, becomes injured by reason of
a qualifying injury incurred while an employee of the Department of
Defense.
Employee. For purposes of this part, ``employee'' means an
individual who has been appointed to a position in the civil service in
accordance with 5 U.S.C. 2104(a)(1) or 5 U.S.C. 2105(a)(1), with the
exception of employees paid from non-appropriated funds of an
instrumentality of the United States under the jurisdiction of the
armed forces who are not a citizen or national of the United States.
Family member. for the purposes of determining ``covered
dependent'', a family member is defined as follows:
(1) Children who at the time of the injury are unmarried and under
21 years of age or, regardless of age, are unmarried and due to mental
and/or physical limitations are incapable of self-support. The term
``children'' includes natural offspring, step-children, adopted
children, and those under permanent legal guardianship, or comparable
permanent custody arrangement, of the employee, spouse or domestic
partner as defined in 5 CFR 875.101 when dependent upon and normally
residing with the guardian or custodial party, and U.S. citizen
children placed for adoption if a U.S. court grants temporary
guardianship of the child to the employee and specifically authorizes
the child to reside with the employee in the country of assignment
before the adoption is finalized;
(2) Siblings (including stepsiblings, or adoptive siblings) of the
employee, or the spouse when at the time of the injury such siblings
were at least 51 percent dependent on the employee for support,
unmarried and under 21 years of age, or regardless of age, were
physically and/or mentally incapable of self-support;
(3) Parents (including stepparents and legally adoptive parents) of
the employee or of the spouse or of the domestic partner as defined in
5 CFR 875.101, when normally residing with the employee at the time of
the injury; and
(4) Spouse or domestic partner (as defined in 5 CFR 875.01) at the
time of the injury.
Other incident. A new onset of physical manifestations that cannot
otherwise be readily explained and that is designated under 22 U.S.C.
2680b.
Qualifying injury to the brain. An injury to the brain that
occurred in connection with war, insurgency, hostile act, terrorist
activity, or other incidents designated under 22 U.S.C. 2680b, and that
was not the result of the willful misconduct of the covered employee or
covered dependent.
(1) The individual must have an acute injury to the brain such as,
but not limited to, a concussion, penetrating injury, or as a
consequence of an event that leads to permanent alterations in brain
function as demonstrated by confirming correlative findings on imaging
studies (to include computed
[[Page 80395]]
tomography scan (CT) or magnetic resonance imaging scan (MRI)) or
electroencephalogram (EEG); or
(2) A medical diagnosis of a traumatic brain injury (TBI) that
required active medical treatment for 12 months or more; or
(3) Acute onset of new persistent, disabling neurologic symptoms as
demonstrated by confirming correlative findings on imaging studies (to
include CT or MRI), or EEG, or physical exam, or other appropriate
testing, and that required active medical treatment for 12 months or
more.
Sec. 49.3 Eligibility for payments by the Department of Defense.
(a) The Department may provide a payment to covered employees as
defined in this part, if the qualifying injury to the brain was
assessed and diagnosed in person by a currently board-certified
physician from the American Board of Psychiatry and Neurology (ABPN),
the American Osteopathic Board of Neurology and Psychiatry (AOBNP), the
American Board of Physical Medicine and Rehabilitation (ABPMR), or the
American Osteopathic Board of Physical Medicine and Rehabilitation
(AOBPMR); occurred on or after January 1, 2016; and occurred while the
employee or former employee was a covered employee of the Department.
(b) The Department may provide a payment to a covered dependent, if
the qualifying injury to the brain was assessed and diagnosed in person
by a currently board-certified physician from the ABPN, AOBNP, ABPMR,
or AOBPMR; occurred on or after January 1, 2016; and occurred while the
covered dependent accompanied an employee of the Department at an
assigned duty location.
(c) Payment for a qualifying injury to the brain will be a non-
taxable, one-time lump sum payment unless a second payment is
authorized under paragraph (d)(4) of this section.
(d) The amount of payment is at the Department's discretion. The
Department will determine the amount paid to each eligible person based
on the following factors:
(1) The responses on; DD Form 3220, ``Eligibility Questionnaire for
HAVANA Act Payments''; and
(2) Whether the Department of Labor (Workers' Compensation) has
determined that the requester has no reemployment potential for an
indefinite future; or the Social Security Administration has approved
the requester for Social Security Disability Insurance or Supplemental
Security Income (SSI) for a disability; or a neurologist or physician
certified by the ABPN, AOBNP, ABPMR, or AOBPMR has certified that the
individual requires a full-time caregiver for activities of daily
living, as defined by the Katz Index of Independence of Daily Living.
(3) The award thresholds are based on Level III of the Senior
Executive Schedule of the year in which the request for payment is
approved: Base will be 75 percent of Level III pay, and Base Plus will
be 100 percent of Level III pay.
(4) If the requester meets any of the criteria listed in paragraph
(d)(2) of this section, the requester will be eligible to receive a
Base Plus payment. Requesters whose board-certified physicians confirm
that the definition of ``qualifying injury to the brain'' has been met
but has not met any of the criteria listed in paragraph (d)(2), will be
eligible to receive a Base payment. If a requester who received a Base
payment later meets any of the criteria listed in paragraph (d)(2), the
requester may apply for an additional payment that will be the
difference between the Base and Base Plus payment.
Sec. 49.4 Consultation with Department of State.
When a covered employee or covered dependent seeks payment for an
incident that occurred overseas under Secretary of State security
responsibility, the Department will coordinate with the Department of
State as appropriate in evaluating whether the incident is an ``other
incident'' for purposes of establishing a qualifying injury or should
be so designated.
Sec. 49.5 Procedures.
(a) Application. (1) A covered employee or covered dependent may
apply for a HAVANA Act payment if the covered individual has sustained
a qualifying injury to the brain on or after January 1, 2016. To apply
for the benefit, the applicant must submit the DD Form 3220,
``Eligibility Questionnaire for HAVANA Act Payments,'' claim form to
the appropriate email address set forth in paragraph (a)(2) of this
section. The claim form must be completed by a person eligible to file
a claim, or by that person's legal guardian, a family member, or
another individual authorized to act on behalf of the requestor and
must be signed by a currently certified physician as listed in Sec.
49.3(a).
(2) The claim form and any additional documentation must be emailed
to the following address: [email protected].
(3) The applicant must furnish additional documentation upon
request provided that the applicant has access to such additional
documentation.
(4) Copies of the claim form, as well as the regulations and other
information, may be obtained on the Defense Civilian Personnel Advisory
Service website, https://www.dcpas.osd.mil/havana-act-benefits-program.
(b) Other incident. The Department will determine whether a covered
employee or covered dependent has a qualifying injury to the brain as
set forth in Sec. 49.2(f)(2), and whether the incident causing the
injury was in connection with war, insurgency, hostile act, or
terrorist activity. The Department will, as appropriate or necessary,
designate ``other incidents'' under 22 U.S.C. 2680b(j) for employees
and dependents who were not, at the time of the incident, under the
security responsibility of the Secretary of State or when operational
control of overseas security responsibility for such employees or
dependents was delegated to the Secretary of Defense. The Department
will, as appropriate or necessary, make a recommendation to the
Secretary of State that the incident should be deemed an ``other
incident designated by the Secretary of State'' for purposes of 22
U.S.C. 2680b(i)(1)(D) (cross-referencing subparagraph 2680b(e)(4)) for
incidents affecting employees or dependents who were, at the time of
the incident, under the security responsibility of the Secretary of
State.
(c) Decisions. For covered employees and covered dependents, the
Director, Defense Civilian Personnel Advisory Service, in their
discretion may approve payments pursuant to 22 U.S.C. 2680b(i).
(d) Appeals. In the event of a decision to deny an application for
payment under the HAVANA Act, the Department will notify the applicant
in writing. Applicants may direct an appeal via the DoD HAVANA Act
mailbox, [email protected], to the
Deputy Assistant Secretary of Defense for Civilian Personnel Policy,
within 60 days of the date of the notification of the denial. However,
decisions concerning the amount paid are not subject to appeal. The
Department will notify the
[[Page 80396]]
applicant in writing of the decision on appeal.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2024-22795 Filed 10-2-24; 8:45 am]
BILLING CODE 6001-FR-P