[Federal Register Volume 69, Number 177 (Tuesday, September 14, 2004)]
[Rules and Regulations]
[Pages 55358-55360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20366]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

RIN 0720-AA85


TRICARE; Changes Included in the National Defense Authorization 
Act for Fiscal Year 2003 (NDAA-03)

AGENCY: Office of the Secretary, DoD.

ACTION: Final rule.

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SUMMARY: This final addresses eliminating the requirement for TRICARE 
preauthorization of inpatient mental health care for TRICARE/Medicare 
eligible beneficiaries where Medicare is primary payer and has already 
authorized the care; approving a physician or other health care 
practitioner who is eligible to receive reimbursement for services 
provided under Medicare as a TRICARE provider if the provider is also a 
TRICARE authorized provider; and, expanding the TRICARE Dental Program 
(TDP) eligibility for dependents of deceased members.

DATES: This rule is effective September 14, 2004 except that the 
effective date for the amendment to 32 CFR 199.4(a)(12)(ii)(E)(2) is 
October 1, 2004, and the effective date for the amendment to 32 CFR 
199.13(c)(13)(ii)(E)(2) is December 2, 2002. The applicability date for 
the amendment to 32 CFR 199.6(c)(2)(v) is for any TRICARE contract 
entered into on or after December 2, 2002.

FOR FURTHER INFORMATION CONTACT: Ann N. Fazzini, (303) 676-3803 (The 
sections of this rule regarding elimination of mental health 
preauthorization and Medicare providers as TRICARE providers) or Major 
Shannon Lynch, (303) 676-3496 (The section of this rule regarding the 
TRICARE Dental Program). Questions regarding payment of specific claims 
should be addressed to the appropriate TRICARE contractor.

SUPPLEMENTARY INFORMATION: In the Federal Register of November 19, 
2003, (68 FR 65172), the Office of the Secretary of Defense published 
for public comment an interim final rule regarding the following three 
changes found in the the Bob Stump NDAA 03 (Pub. L. 107-314). We 
received no public comments.

I. Elimination of Mental Health Pre-Authorization

    Section 701 of the Bob Stump NDAA-03 states that:

    (B) Preadmission authorization for inpatient mental health 
services is not required under subparagraph (A) in the following 
cases:
    (i) In the case of an emergency.
    (ii) In a case in which any benefits are payable for such 
services under Part A of title XVIII of the Social Security act (42 
U.S.C. 1395c et seq.) subject ot subparagraph (C).
    (C) In a case of inpatient mental health services to which 
subparagraph (B)(ii) applies, the Secretary shall require advance 
authorization for a continuation of the provision of such benefits 
after benefits cease to be payable for such services under such part 
A.

    This language eliminates the preauthorization requirement for 
inpatient mental health care where Medicare is primary payer. 
Currently, in situations where a Medicare beneficiary, who is also 
TRICARE eligible, receives inpatient mental health care, TRICARE 
applies its rules for preauthorization even though TRICARE is not the 
primary payer. The language found in Section 701 of the Bob Stump NDAA-
03 changes the way we currently operate. Once this change is 
implemented, Medicare beneficiaries who are also TRICARE eligible, will 
follow Medicare's rules until their Medicare benefit is exhausted. Once 
the Medicare benefit is exhausted, TRICARE's rules regarding 
preauthorization will apply.
    Section 701 of the Bob Stump NDAA-03 also continues our current 
policy that pre-authorization is not required in the case of an 
emergency.

II. Medicare Provider Certification Applicable to TRICARE Individual 
Professional Providers

    Section 705 of the Bob Stump NDAA-03 states that:

    Subject to subsection (a), a physician or other health care 
practitioner who is eligible to receive reimbursement for services 
provided under Medicare (as defined in section 1086(d)(3)(C) of this 
title) shall be considered approved to provide medical care 
authorized under this section and section 1086 of this title unless 
the administering Secretaries have information indicating Medicare, 
TRICARE, or other Federal health care program integrity violations 
by the physician or other health care practitioner.

    This language provides that a physician or other health care 
practitioner who is eligible to receive reimbursement for services 
provided under Medicare (as defined in section 1086(d)(3)(C) of title 
U.S.C., chapter 55) shall be considered approved to provide medical 
care authorized under section 1079 and section 1086 of title 10, 
U.S.C., chapter 55 unless the administering Secretaries have 
information indicating Medicare, TRICARE, or other Federal health care 
program integrity violations by the physician or other health care 
practitioner. Approval is limited to those providers who are currently 
considered TRICARE authorized providers as outlined in 32 CFR 199.6. 
Services and supplies rendered by those providers not currently 
considered authorized providers shall be denied.
    Our contractors are currently in compliance with this provision, 
but this final rule is necessary to add the statutory language to our 
regulation.
    Section 705 continues the current TRICARE policy of excluding 
providers who are sanctioned or who have program integrity violations 
under

[[Page 55359]]

Medicare, TRICARE, or other Federal health programs. Such providers are 
presently specifically excluded as TRICARE providers.

III. TRICARE Dental Program

    Section 703 of the Bob Stump NDAA 03 revises eligibility by 
stating:

    If, on the date of the death of the member, the dependent is 
enrolled in a dental benefits plan established under subsection (a) 
or is not enrolled in such a plan by reason of a discontinuance of a 
former enrollment under subsection (f).

    Currently, eligibility in the TDP includes any such dependent of a 
member who died while on active duty for a period of 31 days or more or 
a member of the Ready Reserve (i.e., Selected Reserve and Individual 
Ready Reserve) if the dependent was enrolled on the date of the death 
of the member. The exception to this is that the term does not include 
the dependent after the end of the three-year period beginning on the 
date of the member's death. This 3-year period of continued enrollment 
also applies to dependents of active duty members who died on or 
between the dates of 1 February 2000 and 31 January 2001 while the 
dependents were enrolled in the TRICARE Family Member Dental Program 
(TFMDP). Section 703 of the NDAA FY03 TRICARE changes eligibility in 
the TDP by including any such dependent of a member who dies while on 
active duty for a period of 31 days or more or a member of the Ready 
Reserve if, on the date of the death of the member, the dependent is 
enrolled in a dental benefits plan or is not enrolled in such a plan by 
reason of a discontinuance of a former enrollment due to transfer to a 
duty station where dental care is provided to the member's eligible 
dependents under a program other than that plan. The exception remains 
that the term does not include the dependent after the end of the 
three-year period beginning on the date of the member's death.

IV. Regulatory Procedures

    Section 801 of title 5, United States Code, and Executive Order 
12866 require certain regulatory assessments and procedures for any 
major rule or significant regulatory action, defined as one that would 
result in an annual effect of $100 million or more on the national 
economy or which would have other substantial impacts.
    The Regulatory Flexibility Act (RFA) requires that each Federal 
agency prepare, and make available for public comment, a regulatory 
flexibility analysis when the agency issues a regulation which would 
have a significant impact on a substantial number of small entities.
    This is not a major rule under 5 U.S.C. 801. It is a significant 
regulatory action but not economically significant, and has been 
reviewed by the Office of Management and Budget as required under the 
provisions of E.O. 12866. In addition, we certify that this proposed 
rule will not significantly affect a substantial number of small 
entities.

Paperwork Reduction Act

    This rule, as written, imposes no burden as defined by the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3511). If, however, any 
program implemented under this rule causes such a burden to be imposed, 
approval thereof will be sought from the Office of Management and 
Budget in accordance with the Act, prior to implementation.

List of Subjects in 32 CFR Part 199

    Claims, Dental health, Health care, Health insurance, Individuals 
with disabilities, Military personnel.


0
Accordingly, 32 CFR Part 199 is amended as follows:

PART 199--[AMENDED]

0
1. The authority citation for Part 199 continues to read as follows:

    Authority: 5 U.S.C. 301; 10 U.S.C. chapter 55.


0
2. Section 199.4 is amended by revising paragraphs (a)(12)(ii)(A) and 
(a)(12)(ii)(E) and the first sentence in paragraph (b)(6)(iii)(A) to 
read as follows:


Sec.  199.4  Basic program benefits

    (a) * * *
    (12) * * *
    (ii) * * *
    (A) This section generally requires preadmission authorization for 
all non-emergency inpatient mental health services and prompt continued 
stay authorization after emergency admissions with the exception noted 
in paragraph (a)(12)(ii) of this section. It also requires preadmission 
authorization for all admissions to a partial hospitalization program, 
without exception, as the concept of an emergency admission does not 
pertain to a partial hospitalization level of care. Institutional 
services for which payment would otherwise be authorized, but which 
were provided without compliance with preadmission authorization 
requirements, do not qualify for the same payment that would be 
provided if the preadmission requirements had been met.
* * * * *
    (E) Preadmission authorization for inpatient mental health services 
is not required in the following cases:
    (1) In the case of an emergency.
    (2) In a case in which benefits are payable for such services under 
part A of title XVIII of the Social Security Act (42 U.S.C. 1395c et 
seq.) subject to paragraph (a)(12)(iii) of this section.
    (3) In a case of inpatient mental health services in which 
paragraph (a)(12)(ii) of this section applies, the Secretary shall 
require advance authorization for a continuation of the provision of 
such services after benefits cease to be payable for such services 
under such part A.
* * * * *
    (b) * * *
    (6) * * *
    (iii) * * *
    (A) With the exception noted in paragraph (a)(12)(ii)(E) of this 
section, all non-emergency admissions to an acute inpatient hospital 
level of care must be authorized prior to the admission. * * *
* * * * *

0
3. Section 199.6 is amended by revising paragraph (c)(2)(v) to read as 
follows:


Sec.  199.6  Authorized providers

* * * * *
    (c) * * *
    (2) * * *
    (v) Subject to section 1079(a) of title 10, U.S.C., chapter 55, a 
physician or other health care practitioner who is eligible to receive 
reimbursement for services provided under Medicare (as defined in 
section 1086(d)(3)(C) of title 10 U.S.C., chapter 55) shall be 
considered approved to provide medical care authorized under section 
1079 and section 1086 of title 10, U.S.C., chapter 55 unless the 
administering Secretaries have information indicating Medicare, 
TRICARE, or other Federal health care program integrity violations by 
the physician or other health care practitioner. Approval is limited to 
those classes of provider currently considered TRICARE authorized 
providers as outlined in 32 CFR 199.6. Services and supplies rendered 
by those providers who are not currently considered authorized 
providers shall be denied.
* * * * *

0
4. Section 199.13 is amended by revising paragraph (c)(3)(ii)(E)(2) to 
read as follows:


Sec.  199.13  TRICARE Dental Program.

    (c) * * *
    (3) * * *
    (ii) * * *

[[Page 55360]]

    (E) * * *
    (2) Continuation of eligibility for dependents of service members 
who die while on active duty or while a member of the Ready Reserve 
(i.e., Selected Reserve or Individual Ready Reserve). Eligible 
dependents of active duty members while on active duty for a period of 
thirty-one (31) days or more and eligible dependents of Ready Reserve 
(i.e., Selected Reserve or Individual Ready Reserve members), as 
specified in 10 U.S.C. 10143 and 10144(b) respectively, if on the date 
of the death of the member, the dependent is enrolled in the TDP, or if 
not enrolled by reason of a discontinuance of a former enrollment under 
paragraphs (c)(4)(ii) and (c)(4)(iii) of this section shall be eligible 
for continued enrollment in the TDP for up to three (3) years from the 
date of the member's death. This 3-year period of continued enrollment 
also applies to dependents of active duty members who died within the 
year prior to the beginning of the TDP while the dependents were 
enrolled in the TFMDP. This continued enrollment is not contingent on 
the Selected Reserve or Individual Ready Reserve member's own 
enrollment in the TDP. During the three-year period of continuous 
enrollment, the government will pay both the Government and the 
beneficiary's portion of the premium share.
* * * * *

    Dated: September 2, 2004.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 04-20366 Filed 9-13-04; 8:45 am]
BILLING CODE 5001-06-M