Exceptional Family Member Program (EFMP), 3681-3693 [2019-02107]

Agencies

• DEPARTMENT OF DEFENSE
• Office of the Secretary

[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 https://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.
---------------------------------------------------------------------------

    \1\ Available online at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2792.pdf.
    \2\ Available online at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd2792-1.pdf.
---------------------------------------------------------------------------

    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 (https://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 https://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: https://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 https://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]]

https://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 https://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 https://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 https://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 https://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 https://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 https://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 https://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 https://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

[[Page 3691]]

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

[[Page 3692]]

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 https://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.

[[Page 3693]]

    (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