1 So in original. Probably should be “ensuring”.
the member may request a referral pursuant to subparagraph (A) on any basis (including on the basis of a concern relating to fitness for duty, occupational requirements, safety issues, significant changes in performance, or behavioral changes that may be attributable to possible changes in mental status); and
References in Text
The Health Insurance Portability and Accountability Act of 1996, referred to in subsec. (e)(1)(C)(ii), is Puspan. L. 104–191, Aug. 21, 1996, 110 Stat. 1936. For complete classification of this Act to the Code, see Short Title of 1996 Amendments note set out under section 201 of Title 42, The Public Health and Welfare, and Tables.
2021—Puspan. L. 117–81, § 701(c)(1)(A), renumbered section 1090a of this title as this section.
Subsec. (c). Puspan. L. 117–81, § 704(1), inserted “or is required to make such a referral pursuant to the process described in subsection (e)(1)(A)” after “mental health evaluation” in introductory provisions.
Subsecs. (e) to (g). Puspan. L. 117–81, § 704(2), (3), added subsecs. (e) and (f) and redesignated former subsec. (e) as (g).
Statutory Notes and Related Subsidiaries
Effective Date of 2021 Amendment
Transfer of section by section 701(c)(1)(A) of Puspan. L. 117–81 effective Oct. 1, 2022, see section 701(d) of Puspan. L. 117–81, set out as a note under section 1079 of this title.
Confidentiality Requirements for Mental Health Care Services for Members of the Armed Forces
Puspan. L. 117–263, div. A, title VII, § 704, Dec. 23, 2022, 136 Stat. 2648, provided that:
“(a)In General.—In order to reinforce the policies of eliminating stigma in obtaining mental health care services and further encouraging help-seeking behavior by members of the Armed Forces, not later than July 1, 2023, the Secretary of Defense shall— “(1) update and reissue Department of Defense Instruction 6490.08, titled ‘Command Notification Requirements to Dispel Stigma in Providing Mental Health Care to Service Members’ and issued on August 17, 2011, taking into account—
“(A) experience implementing the Instruction; and
“(B) opportunities to more effectively dispel stigma in obtaining mental health care services and encourage help-seeking behavior; and
“(2) develop standards within the Department of Defense that—
“(A) ensure, except in a case in which there is an exigent circumstance, the confidentiality of mental health care services provided to members who voluntarily seek such services;
“(B) include a model for making determinations with respect to exigent circumstances that clarifies the responsibilities regarding the determination of the effect on military function and the prevention of self-harm by the individual; and
“(C) in a case in which there is an exigent circumstance, prevent health care providers from disclosing more than the minimum amount of information necessary to address the exigent circumstance.
“(span)Elements.—The standards required by subsection (a)(2) shall include the following elements:
“(1) Requirements for confidentiality regarding the request and receipt by a member of the Armed Forces of mental health care services under the self-initiated referral process under section 1090a(e) [probably should be “section 1090span(e)”] of title 10, United States Code.
“(2) Requirements for confidentiality regarding the results of any drug testing incident to such mental health care services.
“(3) Procedures that reflect best practices of the mental health profession with respect to suicide prevention.
“(4) A prohibition against retaliating against a member of the Armed Forces who requests mental health care services.
“(5) Such other elements as the Secretary determines will most effectively support the policies of—
“(A) eliminating stigma in obtaining mental health care services; and
“(B) encouraging help-seeking behavior by members of the Armed Forces.
“(c)Joint Policy With the Secretary of Veterans Affairs.—
“(1)In general.—Not later than July 1, 2023, the Secretary of Defense and the Secretary of Veterans Affairs shall issue a joint policy that provides, except in a case in which there is an exigent circumstance, for the confidentiality of mental health care services provided by the Secretary of Veterans Affairs to members of the Armed Forces, including the reserve components, under section 1712A, 1720F, 1720H, or 1789 of title 38, United States Code, or other applicable law.
“(2)Elements.—The joint policy issued under paragraph (1) shall, to the extent practicable, include standards comparable to the standards developed under subsection (a)(2).
“(d)Report.—Not later than July 1, 2023, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a copy of the standards developed under subsection (a)(2) and the joint policy issued under subsection (c).
“(e)Exigent Circumstance Defined.—In this section, the term ‘exigent circumstance’ means a circumstance in which the Secretary of Defense determines the need to prevent serious harm to an individual or essential military function clearly outweighs the need for confidentiality of information obtained by a health care provider incident to mental health care services voluntarily sought by a member of the Armed Forces.”