[Federal Register Volume 74, Number 208 (Thursday, October 29, 2009)]
[Proposed Rules]
[Pages 55794-55795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26049]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[DoD-2009-HA-0098]
RIN 0720-AB36


TRICARE: Non-Physician Referrals for Physical Therapy, 
Occupational Therapy, and Speech Therapy

AGENCY: Office of the Secretary, Department of Defense.

ACTION: Proposed rule.

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SUMMARY: The Department of Defense is publishing this proposed rule to 
authorize certified physician assistants and certified nurse 
practitioners (non-physicians) to engage in referrals of beneficiaries 
to the managed care support system for physical therapy, occupational 
therapy, and speech therapy.

DATES: Comments received at the address indicated below by December 28, 
2009 will be accepted.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title, by either of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, Room 3C843 
Pentagon, 1160 Defense Pentagon, Washington, DC 20301-1160.
    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: Glenn Corn, Medical Benefits and 
Reimbursement Branch, TRICARE Management Activity, telephone (303) 676-
3566.

SUPPLEMENTARY INFORMATION: This proposed rule will permit services of 
an otherwise TRICARE-authorized individual paramedical provider, 
Physical Therapists (PT), Occupational Therapists (OT), and Speech 
Therapists (ST) to be paid on a fee-for-service basis if based on a 
referral from a certified physician assistant or certified nurse 
practitioner. This change will also align

[[Page 55795]]

TRICARE with Medicare's allowance of ``non-physician providers'' to 
provide, certify, or supervise therapy services. The language of 32 CFR 
199.4(c)(3)(x) states that PT and OT may be cost shared when services 
are prescribed and monitored by a physician and 32 CFR 
199.6(c)(3)(iii)(K) states that the services of PT, OT, and ST can be 
paid on a fee-for-service basis if the beneficiary is referred by a 
physician for the treatment of a medically diagnosed condition and a 
physician provides continuing oversight. In the Military Treatment 
Facility (MTF) setting, certified physician assistants work under the 
supervision of a physician. Until recently, the mechanical process of 
entering referrals into the electronic system allowed the MTF to 
reflect which physician was overseeing these referrals. However, with 
the implementation of the National Provider Identifier Standard as 
required by the Health Insurance Portability and Accountability Act, 
and the changes to the electronic system, the responsible physician is 
no longer allowed to be annotated on the referral. Additionally, a 
review of the processes used by Medicare found that Medicare no longer 
restricts the referral for PT, OT, and ST to only physicians, but now 
allows non-physician providers to make these referrals. After 
consideration, the Department of Defense has determined that this model 
should be proposed within the Military Health System so that a 
certified physician assistant or certified nurse practitioner may be 
allowed to issue such referrals.

Regulatory Procedures

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

    Section 801 of title 5, United States Code, and Executive Order 
(E.O.) 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. It has 
been certified that this rule is not economically significant, and has 
been reviewed by the Office of Management and Budget as required under 
the provisions of E.O. 12866.

Public Law 104-4, Section 202, ``Unfunded Mandates Reform Act''

    Section 202 of Public Law 104-4, ``Unfunded Mandates Reform Act,'' 
requires that an analysis be performed to determine whether any federal 
mandate may result in the expenditure by State, local and tribal 
governments, in the aggregate, or by the private sector of $100 million 
in any one year. It has been certified that this proposed rule 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, and thus this proposed rule is 
not subject to this requirement.

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

    Public Law 96-354, ``Regulatory Flexibility Act'' (RFA) (5 U.S.C. 
601), requires that each Federal agency prepare a regulatory 
flexibility analysis when the agency issues a regulation which would 
have a significant impact on a substantial number of small entities. 
This proposed rule is not an economically significant regulatory 
action, and it has been certified that it will not have a significant 
impact on a substantial number of small entities. Therefore, this 
proposed rule is not subject to the requirements of the RFA.

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

    This rule does not contain a ``collection of information'' 
requirement, and will not impose additional information collection 
requirements on the public under Public Law 96-511, ``Paperwork 
Reduction Act'' (44 U.S.C. Chapter 35).

Executive Order 13132, ``Federalism''

    E.O. 13132, ``Federalism,'' requires that an impact analysis be 
performed to determine whether the rule has federalism implications 
that would have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. It has been certified that this proposed rule does not have 
federalism implications, as set forth in E.O. 13132.

List of Subjects in 32 CFR Part 199

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

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

PART 199--[AMENDED]

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

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

    2. Section 199.4 is amended by revising paragraph (c)(3)(x)(A) to 
read as follows:


Sec.  199.4  Basic program benefits.

* * * * *
    (c) * * *
    (3) * * *
    (x) * * *
    (A) The services are prescribed and monitored by a physician, 
certified physician assistant or certified nurse practitioner.
* * * * *
    3. Section 199.6 is amended by revising paragraph (c)(3)(iii)(K) to 
read as follows:


Sec.  199.6  TRICARE-authorized providers.

* * * * *
    (c) * * *
    (3) * * *
    (iii) * * *
    (K) Other individual paramedical providers.
    (1) The services of the following individual professional providers 
of care to be considered for benefits on a fee-for-service basis may be 
provided only if the beneficiary is referred by a physician for the 
treatment of a medically diagnosed condition and a physician must also 
provide continuing and ongoing oversight and supervision of the program 
or episode of treatment provided by these individual paramedical 
providers.
    (i) Licensed registered nurses.
    (ii) Audiologists.
    (2) The services of the following individual professional providers 
of care to be considered for benefits on a fee-for-service basis may be 
provided only if the beneficiary is referred by a physician, a 
certified physician assistant or certified nurse practitioner and a 
physician, a certified physician assistant or certified nurse 
practitioner must also provide continuing and ongoing oversight and 
supervision of the program or episode of treatment provided by these 
individual paramedical providers.
    (i) Licensed registered physical therapist and occupational 
therapist.
    (ii) Licensed registered speech therapists (speech pathologists).
* * * * *

    Dated: October 23, 2009.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E9-26049 Filed 10-28-09; 8:45 am]
BILLING CODE 5001-06-P