Recent legislation passed Congress and signed by the President last week mandates the phase-out burn pits used by the United States military. The law provides for medical monitoring and health assessments of military members who have been exposed to toxic chemicals or airborne contaminants from burn pits. This legislation follows the dismissal, almost a year ago, of litigation against third-party contractors by service members, and their dependents, who became ill after alleged exposure to the toxic fumes where burn pits were utilized in the Iraq and Afghanistan wars.
The legislation was incorporated in the massive Defense Appropriation Law, 1119 pages, enacted last week.
S. 1790—118
SEC. 333. PLAN TO PHASE OUT USE OF BURN PITS.
Not later than one year after the date of the enactment of
this Act, the Secretary of Defense shall submit to the congressional
defense committees a plan to phase out the use of the burn pits
identified in the Department of Defense Open Burn Pit Report
to Congress dated April 2019. https://fas.org/man/eprint/burnpit.pdf
SEC. 334. INFORMATION RELATING TO LOCATIONS OF BURN PIT USE.
The Secretary of Defense shall provide to the Secretary of
Veterans Affairs and to Congress a list of all locations where open air
burn pits have been used by the Secretary of Defense, for
the purposes of augmenting the research, healthcare delivery, disability
compensation, and other activities of the Secretary of Veterans
Affairs.
SEC. 704. EXPOSURE TO OPEN BURN PITS AND TOXIC AIRBORNE CHEMICALS OR OTHER AIRBORNE CONTAMINANTS AS PART OF PERIODIC HEALTH ASSESSMENTS AND OTHER PHYSICAL EXAMINATIONS.
(a) PERIODIC HEALTH ASSESSMENT.—The Secretary of Defense
shall ensure that any periodic health assessment provided to members
of the Armed Forces includes an evaluation of whether the
member has been—
(1) based or stationed at a location where an open burn
pit was used; or
(2) exposed to toxic airborne chemicals or other airborne
contaminants, including any information recorded as part of
the Airborne Hazards and Open Burn Pit Registry.
(b) SEPARATION HISTORY AND PHYSICAL EXAMINATIONS.—Section
1145(a)(5) of title 10, United States Code, is amended by
adding at the end the following new subparagraph:
‘‘(C) The Secretary concerned shall ensure that each physical
examination of a member under subparagraph (A) includes an
assessment of whether the member was—
‘‘(i) based or stationed at a location where an open burn
pit, as defined in subsection (c) of section 201 of the Dignified
Burial and Other Veterans’ Benefits Improvement Act of 2012
(Public Law 112–260; 38 U.S.C. 527 note), was used; or
‘‘(ii) exposed to toxic airborne chemicals or other airborne
contaminants, including any information recorded as part of
the registry established by the Secretary of Veterans Affairs
the registry established by the Secretary of Veterans Affairs
under such section 201.’’.
(c) DEPLOYMENT ASSESSMENTS.—Section 1074f(b)(2) of title 10,
United States Code, is amended by adding at the end the following
new subparagraph:
‘‘(D) An assessment of whether the member was—
n pit, as defined in subsection (c) of section 201 of
the Dignified Burial and Other Veterans’ Benefits Improvement
Act of 2012 (Public Law 112–260; 38 U.S.C. 527
note), was used; or
‘‘(ii) exposed to toxic airborne chemicals or other airborne
contaminants, including any information recorded
as part of the registry established by the Secretary of
Veterans Affairs under such section 201.’’.
(d) SHARING OF INFORMATION.—
(1) DOD–VA.—The Secretary of Defense and the Secretary
of Veterans Affairs shall jointly enter into a memorandum
of understanding providing for the sharing by the Department
of Defense with the Department of Veterans Affairs of the
results of covered evaluations regarding the exposure by a
member of the Armed Forces to toxic airborne chemicals or
other airborne contaminants.
(2) REGISTRY.—If a covered evaluation of a member of
the Armed Forces establishes that the member was based or
stationed at a location where an open burn pit was used or
that the member was exposed to toxic airborne chemicals or
other airborne contaminants, the member shall be enrolled
in the Airborne Hazards and Open Burn Pit Registry unless
the member elects to not so enroll.
(e) RULE OF CONSTRUCTION.—Nothing in this section may be
construed to preclude eligibility for benefits under the laws administered
by the Secretary of Veterans Affairs by reason of the open
burn pit exposure history of a veteran not being recorded in a
covered evaluation.
(f) DEFINITIONS.—In this section:
(1) The term ‘‘Airborne Hazards and Open Burn Pit Registry’’
means the registry established by the Secretary of Veterans
Affairs under section 201 of the Dignified Burial and
Other Veterans’ Benefits Improvement Act of 2012 (Public Law
112–260; 38 U.S.C. 527 note).
(2) The term ‘‘covered evaluation’’ means—
(A) a periodic health assessment conducted in accordance
with subsection (a);
(B) a separation history and physical examination conducted
under section 1145(a)(5) of title 10, United States
Code, as amended by this section; and
(C) a deployment assessment conducted under section
1074f(b)(2) of such title, as amended by this section.
(3) The term ‘‘open burn pit’’ has the meaning given that
term in section 201(c) of the Dignified Burial and Other Veterans’
Benefits Improvement Act of 2012 (Public Law 112–
260; 38 U.S.C. 527 note).
SEC. 705. ENHANCEMENT OF RECORDKEEPING WITH RESPECT TO EXPOSURE BY MEMBERS OF THE ARMED FORCES TO CERTAIN OCCUPATIONAL AND ENVIRONMENTAL HAZARDS WHILE DEPLOYED OVERSEAS.
(a) INCLUSION IN MEDICAL TRACKING SYSTEM OF OCCUPATIONAL
AND ENVIRONMENTAL HEALTH RISKS IN DEPLOYMENT AREA.
- ELEMENTS OF MEDICAL TRACKING SYSTEM.—Subsection
(b)(1)(A) of section 1074f of title 10, United States Code, is amended—
(A) in clause (ii), by striking ‘‘and’’ at the end;
(B) in clause (iii), by striking the period at the end and inserting ‘‘; and’’; and
(C) by adding at the end the following new clause:
‘‘(iv) accurately record any exposure to occupational and
environmental health risks during the course of their deployment.’’.
(2) RECORDKEEPING.—Subsection (c) of such section is
amended by inserting after ‘‘deployment area’’ the following:
‘‘(including the results of any assessment performed by the
Secretary of occupational and environmental health risks for
such area)’’.
(b) POSTDEPLOYMENT MEDICAL EXAMINATION AND REASSESSMENTS.—
Section 1074f of title 10, United States Code, as amended
by subsection (a), is further amended by adding at the end the
following new subsection:
‘‘(g) ADDITIONAL REQUIREMENTS FOR POSTDEPLOYMENT MEDICAL
EXAMINATIONS AND HEALTH REASSESSMENTS.—(1) The Secretary
of Defense shall standardize and make available to a provider
that conducts a postdeployment medical examination or reassessment
under the system described in subsection (a) questions relating
to occupational and environmental health exposure.
‘‘(2) The Secretary, to the extent practicable, shall ensure that
the medical record of a member includes information on the external
cause relating to a diagnosis of the member, including by associating
an external cause code (as issued under the International Statistical
Classification of Diseases and Related Health Problems, 10th Revision
(or any successor revision)).’’.
(c) ACCESS TO INFORMATION IN BURN PIT REGISTRY.—
(1) IN GENERAL.—The Secretary of Defense shall ensure
that all medical personnel of the Department of Defense have
access to the information contained in the burn pit registry.
(2) BURN PIT REGISTRY DEFINED.—In this subsection, the
term ‘‘burn pit registry’’ means the registry established under
section 201 of the Dignified Burial and Other Veterans’ Benefits
Improvement Act of 2012 (Public Law 112–260; 38 U.S.C. 527
note).
SEC. 706. MODIFICATIONS TO POST-DEPLOYMENT MENTAL HEALTH ASSESSMENTS FOR MEMBERS OF THE ARMED FORCES DEPLOYED IN SUPPORT OF A CONTINGENCY OPERATION.
(a) REQUIRED ASSESSMENTS.—Section 1074m(a)(1) of title 10,
United States Code, is amended by striking subparagraphs (C)
and (D) and inserting the following new subparagraphs:
‘‘(C) Subject to paragraph (3) and subsection (d), once
during the period beginning on the date of redeployment
from the contingency operation and ending on the date
that is 21 days after the date on which the post-deployment
leave of the member terminates.
‘‘(D) Subject to subsection (d), not less than once
annually—
‘‘(i) beginning 21 days after the date on which
the post-deployment leave of the member terminates;
or
‘‘(ii) if the assessment required by subparagraph
(C) is performed during the period specified in paragraph
(3), beginning 180 days after the date of
redeployment from the contingency operation.’’.
(b) EXCEPTIONS.—Section 1074m(a) of such title, as amended
by subsection (a), is further amended by striking paragraph (2)
and inserting the following new paragraphs:
‘‘(2) A mental health assessment is not required for a member
of the armed forces under subparagraphs (C) and (D) of paragraph
(1) (including an assessment performed pursuant to paragraph (3))
if the Secretary determines that providing such assessment to the
member during the time periods under such subparagraphs would
remove the member from forward deployment or put members
or operational objectives at risk.
‘‘(3) A mental health assessment required under subparagraph
(C) of paragraph (1) may be provided during the period beginning
90 days after the date of redeployment from the contingency operation
and ending 180 days after such redeployment date if the
Secretary determines that—
‘‘(A) an insufficient number of personnel are available to
perform the assessment during the time period under such
subparagraph; or
‘‘(B) an administrative processing issue exists upon the
return of the member to the home unit or duty station that
would prohibit the effective performance of the assessment
during such time period.’’.
(c) ELIMINATION OF SUNSET FOR ASSESSMENTS DURING DEPLOYMENT.—
Section 1074m(a)(1)(B) of such title is amended by striking
‘‘Until January 1, 2019, once’’ and inserting ‘‘Once’’.
(d) EFFECTIVE DATE.—The amendments made by subsections
(a) and (b) shall apply with respect to a date of redeployment
that is on or after January 1, 2020.
….
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.
Blog: Workers ' Compensation
Twitter: jongelman
LinkedIn: JonGelman
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Author: "Workers' Compensation Law" West-Thomson-Reuters
