10 U.S.C. § 1089 — Defense of certain suits arising out of

Page 1124 TITLE 10—ARMED FORCES § 1088 (2) the amount of space that would be so pro- gramed for the facility based upon the most cost-effective provision of inpatient and out- patient care to persons covered by sections 1074(b) and 1076(b) of this title. (b)(1) In making determinations for the pur- poses of clauses (1) and (2) of subsection (a), the Secretary concerned shall take into consider- ation— (A) the amount of space that would be so programed for the facility based upon pro- jected inpatient and outpatient workloads at the facility for persons covered by sections 1074(b) and 1076(b) of this title; and (B) the anticipated capability of the medical and dental staff of the facility, determined in accordance with regulations prescribed by the Secretary of Defense and based upon realistic projections of the number of physicians and other health-care providers that it can reason- ably be expected will be assigned to or will otherwise be available to the facility. (2) In addition, a determination made for the purpose of clause (2) of subsection (a) shall be made in accordance with an economic analysis (including a life-cycle cost analysis) of the facil- ity and consideration of all reasonable and available medical care treatment alternatives (including treatment provided under a contract under section 1086 of this title or under part A of title XVIII of the Social Security Act (42 U.S.C. 1395c et seq.)). (Added Pub. L. 89–614, § 2(7), Sept. 30, 1966, 80 Stat. 866; amended Pub. L. 97–337, § 1, Oct. 15, 1982, 96 Stat. 1631; Pub. L. 98–525, title XIV, § 1405(24), Oct. 19, 1984, 98 Stat. 2623; Pub. L. 99–661, div. A, title XIII, § 1343(a)(4), Nov. 14, 1986, 100 Stat. 3992.) Editorial Notes REFERENCES IN TEXT The Social Security Act, referred to in subsec. (b)(2), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, which is classi- fied generally to chapter 7 (§ 301 et seq.) of Title 42, The Public Health and Welfare. Part A of title XVIII of the Social Security Act, is classified generally to Part A (§ 1395c et seq.) of subchapter XVIII of chapter 7 of Title 42. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables. AMENDMENTS 1986—Subsec. (b)(2). Pub. L. 99–661 substituted ‘‘Act (42 U.S.C. 1395c et seq.))’’ for ‘‘Act. (42 U.S.C. 1395c et seq.)’’. 1984—Subsec. (b)(2). Pub. L. 98–525 which directed that ‘‘(42 U.S.C. 1395c et seq.)’’ be inserted after ‘‘the Social Security Act.’’, was executed by inserting parenthet- ical after ‘‘the Social Security Act’’ to reflect the prob- able intent of Congress. See 1986 Amendment note above. 1982—Subsec. (a). Pub. L. 97–337, § 1(1), designated ex- isting provisions as subsec. (a). Pub. L. 97–337, § 1(2), substituted provisions limiting the maximum amount of space to be programed as the greater of the amounts of space described in par. (1) or (2) for provisions limiting the amount of space to be programed to that amount needed to support teaching and training requirements, except that space may be programed in areas having large concentrations of re- tired members where there is a critical shortage of fa- cilities. Subsec. (b). Pub. L. 97–337, § 1(2), added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1982 AMENDMENT Pub. L. 97–337, § 2, Oct. 15, 1982, 96 Stat. 1632, provided that: ‘‘The amendment made by paragraph (2) of the first section of this Act [amending this section] shall apply only with respect to a facility for which funds for construction (or a major alteration) are first appro- priated for a fiscal year after fiscal year 1983.’’ EFFECTIVE DATE For effective date of section, see section 3 of Pub. L. 89–614, set out as a note under section 1071 of this title. § 1088. Air evacuation patients: furnished subsist- ence Notwithstanding any other provision of law, and under regulations to be prescribed by the Secretary concerned, a person entitled to med- ical and dental care under this chapter may be furnished subsistence without charge while being evacuated as a patient by military air- craft of the United States. (Added Pub. L. 91–481, § 2(1), Oct. 21, 1970, 84 Stat. 1081.) § 1089. Defense of certain suits arising out of medical malpractice (a) The remedy against the United States pro- vided by sections 1346(b) and 2672 of title 28 for damages for personal injury, including death, caused by the negligent or wrongful act or omis- sion of any physician, dentist, nurse, phar- macist, or paramedical or other supporting per- sonnel (including medical and dental techni- cians, nursing assistants, and therapists) of the armed forces, the National Guard while engaged in training or duty under section 316, 502, 503, 504, or 505 of title 32, the Department of Defense, the Armed Forces Retirement Home, or the Cen- tral Intelligence Agency in the performance of medical, dental, or related health care functions (including clinical studies and investigations) while acting within the scope of his duties or employment therein or therefor shall hereafter be exclusive of any other civil action or pro- ceeding by reason of the same subject matter against such physician, dentist, nurse, phar- macist, or paramedical or other supporting per- sonnel (or the estate of such person) whose act or omission gave rise to such action or pro- ceeding. This subsection shall also apply to such a physician, dentist, nurse, pharmacist, or para- medical or other supporting personnel (or the estate of such person) serving under a personal services contract entered into under section 1091 of this title or a subcontract at any tier under such a contract that is authorized in accordance with the requirements of such section 1091. (b) The Attorney General shall defend any civil action or proceeding brought in any court against any person referred to in subsection (a) of this section (or the estate of such person) for any such injury. Any such person against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the At- torney General, all process served upon such person or an attested true copy thereof to such person’s immediate superior or to whomever was designated by the head of the agency concerned Page 1125 TITLE 10—ARMED FORCES § 1089 to receive such papers and such person shall promptly furnish copies of the pleading and process therein to the United States attorney for the district embracing the place wherein the action or proceeding is brought, to the Attorney General and to the head of the agency con- cerned. (c) Upon a certification by the Attorney Gen- eral that any person described in subsection (a) was acting in the scope of such person’s duties or employment at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States of the district and division embracing the place wherein it is pending and the proceeding deemed a tort action brought against the United States under the provisions of title 28 and all references thereto. Should a United States district court determine on a hearing on a motion to remand held before a trial on the merits that the case so removed is one in which a remedy by suit within the mean- ing of subsection (a) of this section is not avail- able against the United States, the case shall be remanded to the State court. (d) The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in section 2677 of title 28, and with the same effect. (e) For purposes of this section, the provisions of section 2680(h) of title 28 shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations). (f)(1) The head of the agency concerned may, to the extent that the head of the agency con- cerned considers appropriate, hold harmless or provide liability insurance for any person de- scribed in subsection (a) for damages for per- sonal injury, including death, caused by such person’s negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations) while acting within the scope of such person’s duties if such person is as- signed to a foreign country or detailed for serv- ice with other than a Federal department, agen- cy, or instrumentality or if the circumstances are such as are likely to preclude the remedies of third persons against the United States de- scribed in section 1346(b) of title 28, for such damage or injury. (2) With respect to the Secretary of Defense and the Armed Forces Retirement Home Board, the authority provided by paragraph (1) also in- cludes the authority to provide for reasonable attorney’s fees for persons described in sub- section (a), as determined necessary pursuant to regulations prescribed by the head of the agency concerned. (g) In this section, the term ‘‘head of the agen- cy concerned’’ means— (1) the Director of the Central Intelligence Agency, in the case of an employee of the Cen- tral Intelligence Agency; (2) the Secretary of Homeland Security, in the case of a member or employee of the Coast Guard when it is not operating as a service in the Navy; (3) the Chief Operating Officer of the Armed Forces Retirement Home, in the case of an employee of the Armed Forces Retirement Home; and (4) the Secretary of Defense, in all other cases. (Added Pub. L. 94–464, § 1(a), Oct. 8, 1976, 90 Stat. 1985; amended Pub. L. 97–124, § 2, Dec. 29, 1981, 95 Stat. 1666; Pub. L. 98–94, title IX, § 934(a)–(c), Sept. 24, 1983, 97 Stat. 651, 652; Pub. L. 100–180, div. A, title XII, § 1231(18)(A), Dec. 4, 1987, 101 Stat. 1161; Pub. L. 101–510, div. A, title XV, § 1533(a)(1), Nov. 5, 1990, 104 Stat. 1733; Pub. L. 105–85, div. A, title VII, § 736(b), Nov. 18, 1997, 111 Stat. 1814; Pub. L. 107–296, title XVII, § 1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 110–181, div. A, title IX, § 931(b)(3), Jan. 28, 2008, 122 Stat. 285; Pub. L. 112–81, div. A, title V, § 567(b)(2)(A), Dec. 31, 2011, 125 Stat. 1425; Pub. L. 112–239, div. A, title VII, § 713(a), Jan. 2, 2013, 126 Stat. 1803.) Editorial Notes AMENDMENTS 2013—Subsec. (a). Pub. L. 112–239 substituted ‘‘to such a physician, dentist, nurse, pharmacist, or para- medical’’ for ‘‘if the physician, dentist, nurse, phar- macist, or paramedical’’, struck out ‘‘involved is’’ be- fore ‘‘serving under’’, and inserted ‘‘or a subcontract at any tier under such a contract that is authorized in ac- cordance with the requirements of such section 1091’’ after ‘‘section 1091 of this title’’. 2011—Subsec. (g)(3). Pub. L. 112–81 substituted ‘‘Chief Operating Officer of the Armed Forces Retirement Home’’ for ‘‘Armed Forces Retirement Home Board’’. 2008—Subsec. (g)(1). Pub. L. 110–181 substituted ‘‘Di- rector of the Central Intelligence Agency’’ for ‘‘Direc- tor of Central Intelligence’’. 2002—Subsec. (g)(2). Pub. L. 107–296 substituted ‘‘of Homeland Security’’ for ‘‘of Transportation’’. 1997—Subsec. (a). Pub. L. 105–85, § 736(b)(1), inserted at end ‘‘This subsection shall also apply if the physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (or the estate of such person) in- volved is serving under a personal services contract en- tered into under section 1091 of this title.’’ Subsec. (f). Pub. L. 105–85, § 736(b)(2), designated exist- ing provisions as par. (1) and added par. (2). 1990—Subsec. (a). Pub. L. 101–510, § 1533(a)(1)(A), sub- stituted ‘‘Armed Forces Retirement Home’’ for ‘‘United States Soldiers’ and Airmen’s Home’’. Subsec. (g)(3). Pub. L. 101–510, § 1533(a)(1)(B), added par. (3) and struck out former par. (3) which read as fol- lows: ‘‘the Board of Commissioners of the United States Soldiers’ and Airmen’s home, in the case of an em- ployee of the United States Soldiers’ and Airmen’s Home; and’’. 1987—Subsec. (g). Pub. L. 100–180 inserted ‘‘the term’’ after ‘‘In this section,’’. 1983—Subsec. (a). Pub. L. 98–94, § 934(a), inserted ‘‘the United States Soldiers’ and Airmen’s Home,’’. Subsec. (f). Pub. L. 98–94, § 934(b), substituted ‘‘may, to the extent that the head of the agency concerned considers’’ for ‘‘or his designee may, to the extent that he or his designee deems’’. Subsec. (g)(3), (4). Pub. L. 98–94, § 934(c)(3), added par. (3) and redesignated former par. (3) as (4). 1981—Subsec. (a). Pub. L. 97–124 inserted ‘‘the Na- tional Guard while engaged in training or duty under section 316, 502, 503, 504, or 505 of title 32,’’ after ‘‘armed forces,’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Page 1126 TITLE 10—ARMED FORCES § 1090 Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–510 effective one year after Nov. 5, 1990, see section 1541 of Pub. L. 101–510, for- merly set out as an Effective Date note under section 401 of Title 24, Hospitals and Asylums. EFFECTIVE DATE OF 1983 AMENDMENT Pub. L. 98–94, title IX, § 934(d), Sept. 24, 1983, 97 Stat. 652, provided that: ‘‘The amendments made by this sec- tion [amending this section] shall apply only to claims accruing on or after the date of the enactment of this Act [Sept. 24, 1983].’’ EFFECTIVE DATE OF 1981 AMENDMENT Pub. L. 97–124, § 4, Dec. 29, 1981, 95 Stat. 1666, provided that: ‘‘The amendments made by this Act [amending this section and section 2671 of Title 28, Judiciary and Judicial Procedure] and the repeal made by section 3 of this Act [repealing section 334 of Title 32, National Guard] shall apply only with respect to claims arising on or after the date of enactment of this Act [Dec. 29, 1981].’’ EFFECTIVE DATE Pub. L. 94–464, § 4, Oct. 8, 1976, 90 Stat. 1989, provided that: ‘‘This Act [enacting this section, section 334 of Title 32, National Guard, section 2458a of Title 42, The Public Health and Welfare, and provisions set out as notes under this section and section 334 of Title 32] shall become effective on the date of its enactment [Oct. 8, 1976] and shall apply only to those claims accru- ing on or after such date of enactment.’’ CONGRESSIONAL FINDINGS Pub. L. 94–464, § 2(a), Oct. 8, 1976, 90 Stat. 1986, pro- vided that: ‘‘The Congress finds— ‘‘(1) that the Army National Guard and the Air Na- tional Guard are critical components of the defense posture of the United States; ‘‘(2) that a medical capability is essential to the performance of the mission of the National Guard when in Federal service; ‘‘(3) that the current medical malpractice crisis poses a serious threat to the availability of sufficient medical personnel for the National Guard; and ‘‘(4) that in order to insure that such medical per- sonnel will continue to be available to the National Guard, it is necessary for the Federal Government to assume responsibility for the payment of malpractice claims made against such personnel arising out of ac- tions or omissions on the part of such personnel while they are performing certain training exercises.’’ § 1090. Identifying and treating drug and alcohol dependence The Secretary of Defense, and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, shall prescribe regulations, imple- ment procedures using each practical and avail- able method, and provide necessary facilities to identify, treat, and rehabilitate members of the armed forces who are dependent on drugs or al- cohol. (Added Pub. L. 97–295, § 1(15)(A), Oct. 12, 1982, 96 Stat. 1290; amended Pub. L. 98–94, title XII, § 1268(7), Sept. 24, 1983, 97 Stat. 706; Pub. L. 101–510, div. A, title V, § 553, Nov. 5, 1990, 104 Stat. 1567; Pub. L. 107–296, title XVII, § 1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1090 ......... 10:1071 (note). Sept. 28, 1971, Pub. L. 92–129, § 501(a)(1), 85 Stat. 361. The word ‘‘regulations’’ is added for consistency. The word ‘‘persons’’ is omitted as surplus. Editorial Notes AMENDMENTS 2002—Pub. L. 107–296 substituted ‘‘of Homeland Secu- rity’’ for ‘‘of Transportation’’. 1990—Pub. L. 101–510 inserted ‘‘, and the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy,’’ after ‘‘Sec- retary of Defense’’. 1983—Pub. L. 98–94 struck out ‘‘(a)’’ before ‘‘The Sec- retary of Defense’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title. NALOXONE AND FENTANYL: REGULATIONS; BRIEFING Pub. L. 118–31, div. A, title VII, § 706, Dec. 22, 2023, 137 Stat. 301, provided that: ‘‘(a) REGULATIONS.—Not later than January 1, 2025, the Secretary of Defense, in coordination with the Sec- retaries of the military departments shall prescribe regulations regarding naloxone and fentanyl on mili- tary installations. Such regulations shall— ‘‘(1) ensure that naloxone is available for members of the Armed Forces— ‘‘(A) on all military installations; and ‘‘(B) in each operational environment; and ‘‘(2) establish a standardized tracking system— ‘‘(A) for naloxone distributed under paragraph (1); and ‘‘(B) of the illegal use of fentanyl and other con- trolled substances in the military departments. ‘‘(b) BRIEFING.—Not later than June 1, 2025, the Sec- retary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representa- tives a briefing regarding naloxone and fentanyl. Such briefing shall include the following elements: ‘‘(1) Progress in the implementation of regulations prescribed under subsection (a). ‘‘(2) The prevalence and incidence of the illegal use of fentanyl and other controlled substances in the military departments during the five years preceding the briefing. ‘‘(3) Processes of the military departments to miti- gate substance abuse, particularly with regards to fentanyl. ‘‘(c) NALOXONE DEFINED.—In this section, the term ‘naloxone’ means naloxone and any other medication used to reverse opioid overdose.’’ PILOT PROGRAM ON OPIOID MANAGEMENT IN THE MILITARY HEALTH SYSTEM Pub. L. 115–232, div. A, title VII, § 716, Aug. 13, 2018, 132 Stat. 1814, as amended by Pub. L. 117–263, div. A, title VII, § 719, Dec. 23, 2022, 136 Stat. 2662, provided that: ‘‘(a) PILOT PROGRAM.— ‘‘(1) IN GENERAL.—Except as provided in subsection (e), beginning not later than 180 days after the date of the enactment of this Act [Aug. 13, 2018], the Direc- tor of the Defense Health Agency shall implement a comprehensive pilot program to assess the feasability [sic] and advisability of mechanisms to minimize early exposure of beneficiaries under the TRICARE