10 U.S.C. § 1087 — Programing facilities for certain mem-

Page 1123 TITLE 10—ARMED FORCES § 1087 (B) for which care is not provided under the policy solely on the grounds that the condi- tion is a preexisting condition. (c) EFFECT OF UNAVAILABILITY OF POLICIES.— (1) If the Secretary of Defense is unable, within a reasonable time, to enter into a contract with a private insurer to offer conversion health poli- cies under subsection (a) at a rate not to exceed the payment required under section 8905a(d)(1)(A) of title 5 for comparable coverage, the Secretary shall provide the coverage re- quired under such a policy through the Civilian Health and Medical Program of the Uniformed Services. Subject to paragraph (2), a person re- ceiving coverage under this subsection shall be required to pay into the Military Health Care Account or other appropriate account an amount equal to the sum of— (A) the individual and Government contribu- tions which would be required in the case of a person enrolled in a health benefits plan con- tracted for under section 1079 of this title; and (B) an amount necessary for administrative expenses, but not to exceed two percent of the amount under subparagraph (A). (2) The amount paid by a person who pur- chases a conversion health policy from the Sec- retary of Defense under paragraph (1) may not exceed the payment required under section 8905a(d)(1)(A) of title 5 for comparable coverage. (3) In order to reduce premiums required under paragraph (1), the Secretary of Defense may offer a program of coverage that, with respect to mental health services, offers reduced coverage and increased cost-sharing by the purchaser. (d) CONVERSION HEALTH POLICY DEFINED.—In this section, the term ‘‘conversion health pol- icy’’ means a health insurance policy with a pri- vate insurer, developed through negotiations be- tween the Secretary of Defense and the private insurer, that is available for purchase by or for the use of a person who is a dependent for a one- year period under section 1072(2)(H) of this title. (Added Pub. L. 101–189, div. A, title VII, § 731(b)(1), Nov. 29, 1989, 103 Stat. 1482; amended Pub. L. 102–484, div. D, title XLIV, § 4407(b), Oct. 23, 1992, 106 Stat. 2707; Pub. L. 103–35, title II, § 202(a)(16), May 31, 1993, 107 Stat. 102.) Editorial Notes AMENDMENTS 1993—Subsec. (b)(1). Pub. L. 103–35 made technical amendment to directory language of Pub. L. 102–484, § 4407(b)(2). See 1992 Amendment note below. 1992—Subsec. (a). Pub. L. 102–484, § 4407(b)(1), inserted at end ‘‘A conversion health policy offered under this subsection shall provide coverage for not less than a 24- month period.’’ Subsec. (b)(1). Pub. L. 102–484, § 4407(b)(2), as amended by Pub. L. 103–35, substituted ‘‘24-month period’’ for ‘‘one-year period’’ the second place appearing in the in- troductory provisions of par. (1). Subsecs. (c), (d). Pub. L. 102–484, § 4407(b)(3), (4), added subsec. (c) and redesignated former subsec. (c) as (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1993 AMENDMENT Amendment by Pub. L. 103–35 applicable as if in- cluded in the enactment of Pub. L. 102–484, see section 202(b) of Pub. L. 103–35, set out as a note under section 155 of this title. EFFECTIVE DATE Section applicable to a person referred to in 10 U.S.C. 1072(2)(H) whose decree of divorce, dissolution, or an- nulment becomes final on or after Nov. 29, 1989, and to a person so referred to whose decree became final dur- ing the period from Sept. 29, 1988 to Nov. 28, 1989, as if section had become effective on Sept. 29, 1988, see sec- tion 731(d) of Pub. L. 101–189, set out as an Effective Date of 1989 Amendment note under section 1072 of this title. APPLICATION OF AMENDMENTS BY PUB. L. 102–484 TO EXISTING CONTRACTS Pub. L. 102–484, div. D, title XLIV, § 4407(c), Oct. 23, 1992, 106 Stat. 2708, provided that: ‘‘In the case of con- version health policies provided under section 1145(b) or 1086a(a) of title 10, United States Code, and in effect on the date of the enactment of this Act [Oct. 23, 1992], the Secretary of Defense shall— ‘‘(1) arrange with the private insurer providing these policies to extend the term of the policies (and coverage of preexisting conditions) as provided by the amendments made by this section [amending this section and section 1145 of this title]; or ‘‘(2) make other arrangements to implement the amendments made by this section with respect to these policies.’’ TERMINATION OF APPLICABILITY OF OTHER CONVERSION HEALTH POLICIES Pub. L. 102–484, div. D, title XLIV, § 4408(c), Oct. 23, 1992, 106 Stat. 2712, provided that: ‘‘(1) No person may purchase a conversion health pol- icy under section 1145(b) or 1086a of title 10, United States Code, on or after October 1, 1994. A person cov- ered by such a conversion health policy on that date may cancel that policy and enroll in a health benefits plan under section 1078a of such title. ‘‘(2) No person may be covered concurrently by a con- version health policy under section 1145(b) or 1086a of such title and a health benefits plan under section 1078a of such title.’’ § 1086b. Prohibition against requiring retired members to receive health care solely through the Department of Defense The Secretary of Defense may not take any action that would require, or have the effect of requiring, a member or former member of the armed forces who is entitled to retired or re- tainer pay to enroll to receive health care from the Federal Government only through the De- partment of Defense. (Added Pub. L. 107–107, div. A, title VII, § 731(a), Dec. 28, 2001, 115 Stat. 1169.) § 1087. Programing facilities for certain mem- bers, former members, and their dependents in construction projects of the uniformed services (a) Space for inpatient and outpatient care may be programed in facilities of the uniformed services for persons covered by sections 1074(b) and 1076(b) of this title. The maximum amount of space that may be so programed for a facility is the greater of— (1) the amount of space that would be so pro- gramed for the facility in order to meet the re- quirements to be placed on the facility for support of the teaching and training of health- care professionals; and 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