[Federal Register Volume 73, Number 130 (Monday, July 7, 2008)]
[Proposed Rules]
[Pages 38348-38350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15350]



Office of the Secretary


32 CFR Part 199

RIN 0720-AB18

TRICARE: Civilian Health and Medical Program of the Uniformed 
Services (CHAMPUS) Changes Included in the John Warner National Defense 
Authorization Act for Fiscal Year 2007; Authorization of Forensic 

AGENCY: Department of Defense.

ACTION: Proposed rule.


SUMMARY: This proposed rule implements section 701 of the John Warner 
National Defense Authorization Act for Fiscal Year 2007, Public Law 
109-364. Section 701 amends Chapter 55 of title 10 section 1079(a) of 
the U.S.C. by authorizing coverage for forensic examinations following 
a sexual assault or domestic violence for eligible beneficiaries. This 
authorizes forensic examinations following sexual assault or domestic 
violence provided in civilian health care facilities (e.g., civilian 
rape crisis facilities), which is consistent with the services that are 
authorized in Military Medical Treatment Facilities for all 
beneficiaries who were victims of a sexual assault or domestic 

DATES: Written comments will be accepted until September 5, 2008.

ADDRESSES: You may submit comments, identified by docket number or 
Regulatory Information Number (RIN) and title, by any of the following 
     The Web site: http://www.regulations.gov. Follow the 
instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Washington, DC 20302-1160.

[[Page 38349]]

    Instructions: All submissions received must include the agency name 
and docket number or RIN for this Federal Register document. The 
general policy for comments and other submissions from members of the 
public is to make these submissions available for public viewing on the 
Internet at http://www.regulations.gov as they are received without 
change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Margaret A. Brown, Office of Medical 
Benefits and Reimbursement Systems, TRICARE Management Activity, 
telephone (303) 676-3581.


I. Background

    This proposed rule implements section 701 of the John Warner 
National Defense Authorization Act for Fiscal Year 2007, which 
establishes coverage of contracted medical care with respect to 
forensic examinations following a sexual assault or domestic violence. 
TRICARE currently pays for and will continue to pay for all emergency 
room services delivered to a victim. TRICARE does not reimburse for the 
forensic examination, which presented a problem for beneficiaries in 
the past. Although most States have laws that designate payment sources 
to cover the costs of forensic examinations for sexual assault victims 
(some States even prohibit billing victims), some beneficiaries who 
were victims of a sexual assault have received a bill for the forensic 
    Currently, forensic examinations are not covered for beneficiaries 
in civilian health care facilities through TRICARE medical plan 
contracts because TRICARE, under 10 U.S.C. 1079(a)(13), may cost share 
only medically or psychologically necessary services or supplies. 
Forensic examinations are not conducted for medical treatment purposes, 
but for preservation of evidence in any future criminal investigation 
and/or prosecution. However, there is a dual purpose of the examination 
process. One purpose is to address the needs of the individual 
disclosing sexual assault, which include evaluating and treating 
injuries; conducting prompt examinations; providing support, crisis 
intervention, and advocacy; providing prophylaxis against sexually 
transmitted diseases; assessing female patients for pregnancy risk and 
discussing treatment options, including reproductive health services; 
and providing follow-up care for medical and emotional needs. The other 
purpose is to address justice system needs. The needs for justice 
system are: obtaining a history of the assault, documenting exam 
findings, properly collecting, handling, and preserving evidence, and 
interpreting and analyzing findings (post exam) and subsequently, 
presenting findings and providing factual and expert opinion related to 
the exam and evidence collection.

Forensic Examination (Rape Kits)

    A rape kit is used to collect and preserve the evidence. Rape kits 
(also known as early evidence kits) typically include forms for 
documentation of what is observed, tubes for blood samples, a urine 
sample container (for detecting drugs that may have been used to 
facilitate a sexual assault), cotton swabs for biological evidence 
collection, sterile water, sterile saline, glass slides, unwaxed dental 
floss, a wooden stick for fingernail scrapings, envelopes or boxes for 
individual evidence samples, labels for each item and paper bags for 
clothing collection and a large sheet of paper for patient to undress 
over. The victim's clothing is collected for any external evidence and 
new clothes are provided. Forensic examinations can take up to 4 hours.
    Forensic examinations are currently paid for active duty members 
with supplemental care, which under 10 U.S.C. 1074(c)(1), does not have 
the same requirement for medical or psychological necessity. All 
beneficiaries are covered if they are examined in a military treatment 
facility. The forensic examination becomes an issue when services are 
provided in a civilian health care facility. Eighteen States have 
mechanisms in place that require civilian health care facilities to 
bill a State agency directly. Certain other States, to some degree, 
have mechanisms to minimize the possibility of invoicing the 
beneficiary. This proposed rule puts into place a mechanism that allows 
civilian health care facilities to invoice TRICARE for reimbursement of 
forensic examinations.
    We believe that a large portion of the costs for the examinations 
are probably already being paid by TRICARE as most services associated 
with a forensic exam are covered benefits under any circumstance; and 
if a claim from a health care facility is submitted with the 
appropriate procedure code the claim would be paid. What is not being 
cost-shared are the examinations to gather information for the justice 
system. In a civilian facility, the victim's private insurance should 
not be billed for the cost of the examination. This stipulation has 
been made pursuant to the Federal Victims of Crime Act (VOCA). A 
reimbursement request from a provider under the VOCA should only be 
submitted for a victim who is not covered by a Federal or federally 
funded program, such as Medicare, Medicaid, TRICARE or the Department 
of Veterans Affairs. This proposed rule amends the regulation to ensure 
that forensic examinations following sexual assault or domestic 
violence are specifically listed as a covered benefit.

II. Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review''

    It has been certified that 32 CFR 199.4(e)(27) does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribal governments or 
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

Sec. 202, Pub. L. 104-4, ``Unfunded Mandates Reform Act''

    It has been certified that 32 CFR 199.4(e)(27) does not contain a 
Federal mandate that may result in the expenditure by State, local and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that 32 CFR 199.4(e)(27) is not subject to 
the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR 199.4(e)(27) does not impose 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

Executive Order 13132, ``Federalism''

    It has been certified that 32 CFR 199.4(e)(27) does not have 
federalism implications, as set forth in Executive

[[Page 38350]]

Order 13132. This rule does not have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of Government.

List of Subjects in 32 CFR Part 199

    Claims, Health care, Health insurance, Military personnel.

    Accordingly, 32 CFR part 199 is proposed to be amended as follows:


    1. The authority citation for part 199 continues to read as 

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

    2. Section 199.4 is amended by adding paragraph (e)(27) to read as 

Sec.  199.4  Basic program benefit.

* * * * *
    (e) * * *
    (27) TRICARE will cost share forensic examinations following a 
sexual assault or domestic violence. The forensic examination includes 
a history of the event and a complete physical and collection of 
forensic evidence, and medical and psychological follow-up care. The 
examination for sexual assault also includes, but is not limited to, a 
test kit to retrieve forensic evidence, testing for pregnancy, testing 
for sexual transmitted disease and HIV, and medical services and 
supplies for prevention of sexually transmitted diseases, HIV, 
pregnancy, and counseling services.
* * * * *

    Dated: June 30, 2008.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
 [FR Doc. E8-15350 Filed 7-3-08; 8:45 am]