This is the second part of an ongoing series devoted to exploring the minimal standards of medical fitness required for deployment or re-deployment to CENTCOM, as those standards apply to the Defense Base Act. Here, I address the psychological conditions which may preclude deployment. What is important for DBA claims is that these conditions also prevent re-deployment after an injured worker suffers a psychological injury as a result of his employment in a war theater.
Knowing the minimal standards of medical fitness is a necessity. When an injured DBA contractor cannot return to their usual work, then they are presumed to be totally disabled. An insurance carrier can rebut the presumption by showing that the claimant can either return to their overseas work or engage in suitable alternative employment.
Therein lies the reason why knowledge of the minimal standards is so important. If an injured worker cannot satisfy the minimal standards required to perform their war zone job, then they cannot return to overseas work. This rationale applies to psychological and physical injury claims.
Below, I address the list of psychological conditions which may preclude not just deployment, but also re-deployment. First, though, it is important to identify the employees subject to the medical fitness requirements.
The Code of Federal Regulations defines which employees must meet the minimum standards of medical fitness. Those employees are defined as “Contractors Authorized to Accompany the Force” or “CAAF.” Basically, if the employee needs a Letter of Authorization to work on a contract, then the employee must meet the physical, dental, and psychological requirements. The specific language used in the definition is available at 32 C.F.R. 158.3:
Contractors Authorized to Accompany the Force (CAAF). Contractor personnel, including all tiers of subcontractor personnel, who are authorized to accompany the force in applicable contingency operations and who have been afforded CAAF status through Letter of Authorization (LOA). CAAF generally include all U.S. citizen and Third Country National (TCN) employees not normally residing within the operational area whose area of performance is in the direct vicinity of U.S. forces and who routinely are co-located with U.S. forces (especially in non-permissive environments). Personnel co-located with U.S. forces shall be afforded CAAF status through LOA. In some cases, CCDR subordinate commanders may designate mission-essential Host Nation (HN) or Local national (LN) contractor employees (e.g., interpreters) as CAAF.
The same regulation also defines the term “Letter of Authorization:”
Letter of authorization (LOA). A document issued by a procuring contracting officer or designee that authorizes contractor personnel to accompany the force to travel to, from, and within an operational area, and outlines Government-furnished support authorizations within the operational area, as agreed to under the terms and conditions of the contract.
So, anyone who is not from the country where the contract is being performed must meet medical fitness requirements. For example, any U.S., U.K., or Kosovar citizen must meet the medical fitness requirements for working in Afghanistan. Further, in some situations, even local nationals must meet the medical fitness requirements.
Although the requirements for deployment address all sorts of medical conditions, below I focus only on the psychological conditions that could affect employability.
In an earlier post, I discussed some of the medications that preclude deployment and re-deployment. According to the most recently published deployment guidelines, benzodiazepines, stimulants, sedative hypnotics, antipsychotics, and anticonvulsants may disqualify an employment for deployment or re-deployment after a work injury.
Further the Amplification to MOD THIRTEEN is quite specific regarding the psychiatric conditions that preclude deployment or redeployment:
G. Psychiatric Conditions: Diagnostic criteria and treatment plans should adhere to Diagnostic and Statistical Manual of Mental Disorders, Fourth of Fifth edition (DSM-IV/5) and current professional standards of care. Waiver submission should include information on applicant condition, including history and baseline symptoms of known disorders, severity of symptoms with and without treatment, and likelihood to recur or deteriorate in theater if exposed to operational activity. See reference KK. Waiver required for all conditions listed below (list is not inclusive).
- Psychotic and bipolar-spectrum disorders are strictly disqualifying.
- Any DSM IV/5-diagnosed psychiatric disorder with residual symptoms, or medication side effects, which impair social and/or occupational performance.
- Any behavioral health condition that poses a substantial risk for deterioration and/or recurrence of impairing symptoms in the deployed environment.
- Any behavioral health condition which requires periodic (beyond quarterly) counseling or therapy.
- Chronic insomnia that requires regular or long-term use of sedative hypnotics / amnesties, benzodiazepines, and/or antipsychotics.
- Anxiety disorders requiring use of benzodiazepines for management, or featuring symptoms of panic or phobia.
- Post-Traumatic Stress Disorder, when not completely treated or when therapy includes use of benzodiazepines without additional anxiety diagnosis. Waiver submission should note if condition is combat-related and, if so, comment on impact that return to theater could have on applicant well-being and performance.
- Gender dysphoria, while not intrinsically disqualifying, does require underlying psychiatric, endocrine, and/or surgical issues (as applicable) to be stable and resolved, and all Service requirements must be met. Due to complex needs, those actively undergoing gender transition are generally disqualified until the process, including all necessary follow-up and stabilization, is completed.
- Bulimia and anorexia nervosa.
- Attention Deficit Disorder (ADD) / Attention Deficit Hyperactivity Disorder (ADHD). Evaluation and diagnosis should be appropriate per DSM IV/5 criteria, particularly if Class II stimulants are used for treatment. Specific clinical features or objective testing results should be included in waiver application for stimulant use. Dosages for medications should likewise be appropriate and justified by clinical presentation.
- Psychiatric hospitalization within the last 12 months.
- Suicidal Ideation or Suicide Attempt with[in] the last 12 months.
- Enrollment in a substance abuse program (inpatient, service specific substance abuse program or outpatient) within the last 12 months measured from time of discharge / completion of the program. . . .
- Use of antipsychotics or anticonvulsants for stabilization of DSM IV or DSM-5 diagnoses.
- Use of 3 or more psychotropics (e.g. antidepressants, anticonvulsants, antipsychotics, benzodiazepines) for stabilization, particularly if used to offset side-effects of other BH therapy.
- Psychiatric disorders with fewer than three months of demonstrated stability from the last change in treatment regimen, including discontinuation.
- Psychiatric disorders newly diagnosed during deployment do not immediately require a waiver or redeployment. Disorders that are deemed treatable, stable, and having no impairment of performance or safety by a credentialed mental health provider do not require a waiver to remain in theater.
- (a). Exceptions include diagnoses featuring bipolar, psychotic, or suicidal features. . . .
- (b). Diagnoses requiring the prescription of CSA-scheduled controlled substances will require an approved waiver to obtain routine refills of medication.
Employers and Carriers Are Aware of the Requirements:
None of this should come as a surprise. Psychological conditions have been disqualifying for years, both by the Department of Defense and the Code of Federal Regulations. Chances are high that this information exists–or is referenced to–in the employer’s contract with the government. The Office of the Under Secretary states that contractors must use clause 252.225-7995 in contracts requiring performance in the CENTCOM area of responsibility. Clause 252.225-7995 requires all contractors to be “psychologically fit for deployment” and able to “[m]eet the minimum medical screening requirements . . . .”
In fact, the list has become more inclusive over time, reflecting the growing understanding of psychological injuries and their affect on CENTCOM employment. A summary of changes published by the Department of Defense reveals some of the psychologically or mentally-focused changes that have recently occurred:
- Added standards for migraine headache.
- Emphasized that all psychiatric diagnoses and treatment should be appropriate by current DSM IV/5 criteria, particularly when controlled substances are used for treatment.
- Added standards for PTSD, particularly when combat-related or treated inappropriately.
- Added all CSA controlled substances to medications requiring waiver, with exemption for otherwise-nondisqualifying testosterone.
When discussing an injured DBA contractor’s ability to return to work, it is important to define the scope of the work that the injured worker can perform. If the insurance carrier suggests that the claimant could return to work in CENTCOM, the question must be asked whether the injured worker can satisfy the medical fitness requirements published by the Department of Defense–requirements which are also identified in the Code of Federal Regulations. In the event that the injured worker cannot satisfy the requirements for re-deployment to CENTCOM, then the insurance carrier should have to look elsewhere for suitable alternative employment.