10 U.S.C. § 1090b — Commanding officer and supervisor referrals of members for mental health evaluations

(a) Regulations. The Secretary of Defense must create and maintain rules about commanding officers and supervisors referring service members for mental-health evaluations. The rules must include the requirements in (b), (c), and (d), plus other matters the Secretary considers appropriate.

(b) Reduction of perceived stigma. To the greatest extent possible, the rules must—(1) seek to remove the perceived stigma connected with seeking or receiving mental-health services and promote using those services in much the same way as other medical and health services; and (2) explain what commanders and supervisors should do when they honestly believe a subordinate may need a mental-health evaluation.

(c) Procedures for inpatient evaluations. When a commander or supervisor decides that a service member should be referred, or must be referred through the self-referral process in (e)(1)(A)—(1) the evaluation may occur only in the most appropriate clinical setting, following the “least restrictive alternative principle”; and (2) only a psychiatrist may admit the member for an inpatient evaluation. If no psychiatrist is available, another “mental health professional” or a physician may do so.

(d) Prohibition on using referrals to retaliate against whistleblowers. The rules must say that no person may refer a service member for a mental-health evaluation as retaliation for making or preparing a lawful communication described in 10 U.S.C. § 1034(c)(2) and applicable rules. For this subsection, that communication also includes a communication to an appropriate authority in the member’s chain of command.

(e) Self-initiated referral process. (1) For a member described in paragraph (3), the rules must—(A) create a process allowing the member to start a referral by asking a commanding officer^* or supervisor above grade^* E-5 for one; (B) make that process work by—(i) requiring the commanding officer or supervisor to refer the member to a mental-health provider as soon as practicable after the request, including giving the provider the member’s name and contact information and giving the member the date, time, and place of the scheduled evaluation; and (ii) allowing the member to request a referral for any reason, including concerns about fitness for duty, job requirements, safety, major performance changes, or behavior changes that may result from a possible change in mental status; and (C) ensure that the process—(i) reduces stigma under (b), including, as far as practicable, treating these referrals like referrals for other medical services; and (ii) protects the member’s confidentiality as far as practicable under the Health Insurance Portability and Accountability Act of 1996 (Public Law 104–191) and applicable privacy laws.

(2) If a member asks for a referral because the member may be or may soon be a danger to the member or others, the commanding officer or supervisor must follow these principles: (A) Safety. If the commander or supervisor decides the member is showing dangerous behavior, the first priority is to take precautions protecting the member and others before the member reaches the evaluation site. (B) Communication. Before the member arrives, the commander or supervisor must tell the provider, in a way and to an extent consistent with paragraph (1)(C)(ii), the circumstances and observations that led to (i) the member’s request and (ii) the commander or supervisor’s referral based on that request.

(3) A member covered by this paragraph is—(A) a member on active duty^* for more than 30 days; or (B) a member of the Selected Reserve who is in a duty status.

(f) Annual training requirement. Every year, each Secretary concerned^* must train the Armed Forces^* members under that Secretary’s authority to recognize people who may need mental-health evaluations because their behavior or apparent mental state shows that they may be an imminent danger to themselves or others.

(g) Definitions. This section does not define other terms it uses. It defines these terms: (1) “Mental health professional” means a psychiatrist, clinical psychologist, person with a doctorate in clinical social work, or psychiatric clinical nurse specialist. (2) “Mental health evaluation” means a psychiatric or psychological examination or evaluation, an examination of psychiatric or psychological fitness for duty, or any other way of assessing a service member’s mental-health condition. (3) “Least restrictive alternative principle” means a rule that a member committed for hospitalization and treatment must be placed in the most appropriate and therapeutic available setting—(A) no more restrictive than what permits the most effective treatment; and (B) where treatment is available and the risks of physical injury or property damage are justified by the proposed treatment plan.