[Federal Register Volume 75, Number 159 (Wednesday, August 18, 2010)]
[Rules and Regulations]
[Pages 50880-50882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20390]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[Docket ID: 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: Final rule.

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SUMMARY: The Department of Defense is publishing this final rule to 
provide

[[Page 50881]]

TRICARE approval for authorizing certified physician assistants and 
certified nurse practitioners (non-physicians) to engage in referrals 
of beneficiaries to the Military Health System for physical therapy, 
occupational therapy, and speech therapy. Upon implementation of this 
provision, certified physician assistants, or certified nurse 
practitioners will be allowed to issue referrals to patients for 
physical therapy, occupational therapy, and speech therapy without 
having the patient see a physician. This rule will align TRICARE with 
Medicare's allowance of ``non-physician providers'' to provide, 
certify, or supervise therapy services.

DATES: Effective Date: This rule is effective September 17, 2010.

FOR FURTHER INFORMATION CONTACT: Mr. Glenn J. Corn, TRICARE Management 
Activity, Medical Benefits and Reimbursement Branch, telephone (303) 
676-3566. Questions regarding payment of specific claims should be 
addressed to the appropriate TRICARE contractor.

SUPPLEMENTARY INFORMATION: 

I. Background

    In the Federal Register of October 29, 2009, (74 FR 55794), the 
Office of the Secretary of Defense published for public comment a 
proposed rule that will permit services of an otherwise TRICARE-
authorized individual paramedical provider, physical therapist (PT), 
occupational therapist (OT), and speech therapist (ST) to be paid on a 
fee-for-service basis if based on a referral from a certified physician 
assistant or certified nurse practitioner.

II. Public Comments

    We provided a 60-day public comment period following publication of 
the Proposed Rule in the Federal Register (74 FR 55794) on October 29, 
2009. We received three comments on the proposed rule.
    One commenter expressed concern that allowing referrals directly 
from nurse practitioners or physician assistants will keep patients--or 
at least their records--from being seen by a physician, and by doing 
so, it could result in the misdiagnosis of an injury or illness 
resulting in the wrong treatment action being taken. We appreciate the 
comment. This rule allows referral from TRICARE-authorized certified 
nurse practitioners and certified physician assistants to TRICARE-
authorized physical therapists, occupational therapists, and speech 
therapists. All providers are required to practice within the scope of 
their licensure and, should treatment require referral to a higher 
level of professional medical provider, such referrals or consultations 
are expected.
    A second commenter wanted to speak against the provision that a 
Doctor of Medicine and especially a Nurse Practitioner or Physician 
Assistant are qualified to provide oversight to a Doctor of Physical 
Therapy. The commenter further stated that physical therapists are 
certified under their respective states and their educational 
qualifications are equivalent to a graduate of a professional medicine 
degree program and exceed the education of both the nurse practitioner 
and physician assistant, who are health professionals and are qualified 
to provide referral, but not oversight of a physical therapy plan of 
care. We appreciate the comment and recognize the education and 
training of those who obtain a Doctor of Physical Therapy degree. 
However, at this time the Department is only expanding the categories 
of persons who can make referral to a physical therapist and is not 
contemplating a revocation of the requirement for oversight of these 
providers. The Department of Defense's position on this issue is 
consistent with Medicare's and its allowance of ``non-physician 
providers'' to provide, certify, or supervise therapy services.
    The third commenter requests that TRICARE policy also allow for the 
referral of beneficiaries for licensed registered nurse services and 
audiology services by non-physician practitioners. We appreciate the 
comment. The proposed rule only proposed expanding referrals by 
certified nurse practitioners or certified physician assistants to 
TRICARE-authorized physical therapists, occupational therapists, and 
speech therapists. Under current TRICARE rules, referrals for licensed 
registered nurse services and audiologist services can only be made by 
a physician. At this time the Department of Defense is limiting the 
certified nurse practitioner and certified physician assistant referral 
services to physical therapy, occupational therapy, and speech therapy 
as outlined in the proposed rule. At this time the Department does not 
intend to expand this rule to include a referral for registered nurse 
services or audiology. At this time the Department feels the need for 
these services are best assessed by a physician.

III. Regulatory Procedures

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

    Section 801 of Title 5, United States Code (U.S.C.), 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 an economically significant 
rule, however, it is a regulatory action which has been reviewed by the 
Office of Management and Budget as required under the provisions of 
E.O. 12866.

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

    It has been certified that this 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 1 year.

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

    The Regulatory Flexibility Act (RFA) requires each Federal agency 
to 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 rule will not significantly affect a substantial number of small 
entities for purposes of the RFA.

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

    This rule will not impose significant additional information 
collection requirements on the public under the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501-3511). Existing information collection 
requirements of the TRICARE and Medicare programs will be utilized.

Executive Order 13132, ``Federalism''

    This rule has been examined for its impact under E.O. 13132 and 
does not contain policies that have 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; 
therefore, consultation with State and local officials is not required.

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:

[[Page 50882]]

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 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.
* * * * *

0
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: August 10, 2010.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2010-20390 Filed 8-17-10; 8:45 am]
BILLING CODE 5001-06-P