[Federal Register Volume 76, Number 248 (Tuesday, December 27, 2011)]
[Rules and Regulations]
[Pages 80741-80744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33109]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[DOD-2011-HA-0134; RIN 0720-AB55]


TRICARE: Certified Mental Health Counselors

AGENCY: Office of the Secretary, Department of Defense.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: This rule is submitted as an interim final rule (IFR) in order 
to meet the Congressional requirement set forth in the National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2011, Section 724, which 
required the Department of Defense to prescribe regulations by June 20, 
2011, to establish the criteria, as had previously been studied in 
accordance with Section 717 of the NDAA 2008, that would allow licensed 
or certified mental health counselors to be able to independently 
provide care to TRICARE beneficiaries and receive payment for those 
services. Under current TRICARE requirements, mental health counselors 
(MHCs) are authorized to practice only with physician referral and 
supervision. This interim final rule establishes a transition period to 
phase out the requirement for physician referral and supervision for 
MHCs and to create a new category of allied health professionals, to be 
known as certified mental health counselors (CMHCs), who will be 
authorized to practice independently under TRICARE.
    During this transition period the MHCs who do not meet the 
requirements for independent practice as established in this rule, may 
continue to provide services to TRICARE beneficiaries under the 
requirements of physician referral and ongoing supervision. This 
transition period, ending December 31, 2014, will allow time for those 
MHCs who seek to continue providing services under the TRICARE program 
to meet the independent practice requirements as outlined in this 
notice. After December 31, 2014, the Department of Defense will no 
longer recognize those mental health counselors who do not meet the 
criteria for a CMHC and will no longer allow them to provide services 
even upon the referral and supervision of a physician.

DATES: This rule is effective on December 27, 2011. Written comments 
received at the address indicated below by February 27, 2012 will be 
accepted.

ADDRESSES: You may submit comments, identified by docket number and or 
Regulatory Information Number (RIN) number and title, by either of the 
following methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 4800 Mark 
Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350-
3100.
    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: Dr. Patricia Moseley, TRICARE 
Management Activity, Office of the Chief Medical Officer, telephone 
(703) 681-0064.

SUPPLEMENTARY INFORMATION: TRICARE serves over 9.6 million 
beneficiaries comprised of active duty service members, retirees, and 
their families, among others. The nature of the conflicts in Iraq and 
Afghanistan, their duration, and the Department of Defense's 
appreciation and sensitivity to the impact of combat on a service 
member's mental health have driven strong efforts to ensure that 
quality mental health care is available and accessible to TRICARE 
beneficiaries. One element of these efforts is ongoing attention to 
increasing the number of quality providers that can assess and treat 
TRICARE beneficiaries.
    The National Defense Authorization Act for Fiscal Year 2006 
Conference Report, No. 109-360, p. 753-4, requested from DoD a report 
to Congress on actions taken to improve the efficiency and 
effectiveness of procedures to facilitate physician referral and 
supervision of licensed professional counselors (LPCs), including a 
description of ``best practices'' employed throughout the military 
health system to ensure access to services provided by mental health 
counselors under the TRICARE Program. That report concluded that there 
remained significant variability among the States in training programs 
and requirements for licensure as a mental health counselor and that 
while there was evidence that the extent of training variability had 
decreased over time, it continued to be evident that professional 
counselors licensed to practice had quite varying exposure to classroom 
education and supervised clinical experiences in the assessment and 
treatment of persons with mental disorders. In conclusion the report 
noted: ``Given the practical obstacles to physician supervision of LPCs 
and the perceived impediment to accessing services caused by the 
physician referral requirement, it would be prudent to explore issues 
of supervision, referral, provider credentialing, and scope of practice 
to develop options that would preserve quality of care, safeguard the 
health and well-being of Service members and maximize access to mental 
health care for all beneficiaries. An examination of these issues would 
certainly support other activities having the goal of improving mental 
health care to veterans, active duty service members and their 
families, including the recent creation of the DoD Task Force on Mental 
Health.''
    Section 717 of the National Defense Authorization Act of Fiscal 
Year 2008 directed the Secretary of Defense to study the credentials, 
preparation, and training of individuals practicing as licensed mental 
health counselors and to make recommendations for permitting licensed 
mental health counselors to practice independently

[[Page 80742]]

under the TRICARE program. The study, completed by the Institute of 
Medicine of the National Academies of Science, recommended allowing 
LMHCs who meet certain training, education, experience, certification, 
and licensure requirements to practice independently under the TRICARE 
program. This interim final rule implements changes to 32 CFR part 199 
based on those recommendations.
    The certification criteria established in this IFR are largely 
consistent with the recommendations found in ``Provision of Mental 
Health Counseling Services under TRICARE,'' a study funded by DoD and 
completed in 2010 by the Institute of Medicine (IOM) of the National 
Academies of Science http://www.iom.edu/Reports/2010/Provision-of-Mental-Health-Counseling-Services-Under-TRICARE.aspx.
    The IOM recommendations specify that independent practice of mental 
health counselors (MHCs) in TRICARE should occur under certain 
circumstances: ``A master's or higher-level degree in counseling from a 
program in mental health counseling or clinical mental health 
counseling that is accredited by Council for Accreditation of 
Counseling and Related Educational Programs (CACREP); a state license 
in mental health counseling at the ``clinical'' or the higher or 
highest level available in states that have tiered licensing schemes; 
the passage of the National Clinical Mental Health Counseling 
examination (NCMHCE); and a well-defined scope of practice for 
practitioners.'' The new rule will implement these standards over time 
while preserving the requirement for 3,000 hours of supervised clinical 
practice and 100 hours of face-to-face supervision. TRICARE is 
committed to ensuring that the quality standards recommended by the IOM 
are adopted by TRICARE, but understands that the availability of CACREP 
accredited mental health counseling training programs and the use of 
the NCMHCE as a quality standard are not yet widespread in the field. 
Therefore, with this rule, TRICARE will adopt new quality standards for 
the independent practices of mental health counselors as of January 1, 
2015, and in addition will recognize mental health counselors as 
independent providers who have met certain currently recognized quality 
standards on or before December 31, 2014. Specifically, in order to 
practice independently, those mental health counselors must have met, 
in part, one of the following two quality standards on or before 
December 31, 2014: (1) Possess a master's or higher-level degree from a 
mental health counseling program of education and training accredited 
by CACREP and must have passed the National Counselor Examination 
(NCE); or (2) possess a master's or higher-level degree from a mental 
health counseling program of education and training from either a 
CACREP or regionally accredited institution and have passed the NCMHCE. 
The many professional mental health counselors who meet these quality 
standards are a resource that TRICARE is anxious to make available to 
Service members, retirees and their families and their inclusion as 
independent practitioners under the TRICARE program will ensure that 
ready access to quality providers is preserved for TRICARE 
beneficiaries.
    Independent practice by mental health counselors would mean a 
change from working under the supervision and referral of a physician 
to autonomous practice and third party reimbursement. While access to 
care was not a direct focus of the IOM study, increasing the 
availability of fully qualified providers would benefit TRICARE 
beneficiaries.
    This interim final rule establishes a transition period to phase 
out the requirement for physician referral and supervision for mental 
health counselors and to create a new category of allied health 
professionals, to be known as certified mental health counselors 
(CMHCs), who will be authorized to practice independently under 
TRICARE.
    During this transition period the MHCs who do not meet the 
requirements for independent practice as established in this rule, may 
continue to provide services to TRICARE beneficiaries under the 
requirements of physician referral and ongoing supervision. This 
transition period, ending December 31, 2014, will allow time for those 
MHCs who seek to continue providing services under the TRICARE program 
to meet the independent practice requirements as outlined in this 
notice. After that date persons who do not meet the requirements for 
being a CMHC will no longer be recognized by TRICARE and payment for 
their services will no longer be allowed even if they work under the 
supervision of a physician.
    Lastly, although this rule sets forth the currently accepted and 
recommended criteria for an individual to be recognized as a CMHC, 
Section 199.6(c)(3)(iii)(N)(3) has been added to allow the Director, 
TRICARE Management Activity to amend or modify existing requirements or 
add other qualifications or criteria in the future to accommodate 
professional quality and licensing standards as they may change over 
time.
    The rule meets DoD's goal to balance the implementation of quality 
standards for mental health counselors with beneficiary access to their 
services. The implementation period of the provider requirements 
elaborated in this rule permits DoD to preserve patient access to 
experienced and well-trained mental health professionals while 
permitting other providers to meet those standards by January 1, 2015. 
This rule is expected to encourage greater participation of MHCs in the 
TRICARE network, result in improved access to quality mental health 
treatment for TRICARE beneficiaries, and sets provider quality 
standards typical of other mental health providers authorized under 
TRICARE.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Section 801 of Title 5, United States Code, Executive Order (E.O.) 
12866, and E.O. 13563 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 and E.O. 13563.

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 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 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

[[Page 80743]]

on a substantial number of small entities. This 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 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 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 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 paragraph (c)(3)(ix)(A) 
introductory text to read as follows:


Sec.  199.4  Basic program benefits.

* * * * *
    (c) * * *
    (3) * * *
    (ix) * * *
    (A) Covered diagnostic and therapeutic services. Subject to the 
requirements and limitations stated, CHAMPUS benefits are payable for 
the following services when rendered in the diagnosis or treatment of a 
covered mental disorder by a CHAMPUS-authorized, qualified mental 
health provider practicing within the scope of his or her license. 
Qualified mental health providers are: psychiatrists or other 
physicians; clinical psychologists, certified psychiatric nurse 
specialists, certified clinical social workers, certified marriage and 
family therapists, certified mental health counselors, pastoral 
counselors under a physician's supervision, and until December 31, 
2014, mental health counselors under a physician's supervision. No 
payment will be made for any service listed in paragraph (c)(3)(ix)(A) 
of this section rendered by an individual who does not meet the 
criteria of Sec.  199.6 of this part for his or her respective 
profession, regardless of whether the provider is an independent 
professional provider or an employee of an authorized professional or 
institutional provider.
* * * * *

0
3. Section 199.6 is amended by adding paragraph (c)(3)(iii)(N) and 
revising (c)(3)(iv)(C) to read as follows:


Sec.  199.6  TRICARE--authorized providers.

* * * * *
    (c) * * *
    (3) * * *
    (iii) * * *
    (N) Certified mental health counselor. For the purposes of CHAMPUS, 
a certified mental health counselor (CMHC) must be licensed for 
independent practice in mental health counseling by the jurisdiction 
where practicing. In jurisdictions with two or more licenses allowing 
for differing scopes of independent practice, the licensed mental 
health counselor may only practice within the scope of the license he 
or she possesses. In addition, a CMHC must meet all of the requirements 
contained in this paragraph (c)(3)(iii)(N)(1) or the requirements of 
paragraph (c)(3)(iii)(N)(2) of this section.
    (1) The requirements of this paragraph are that the CMHC:
    (i) Must have passed the National Clinical Mental Health Counselor 
Examination (NCMHCE) or its successor as determined by the Director, 
TMA; and
    (ii) Must possess a master's or higher-level degree from a mental 
health counseling program of education and training accredited by the 
Council for Accreditation of Counseling and Related Educational 
Programs (CACREP); and
    (iii) Must have a minimum of two (2) years of post-master's degree 
supervised mental health counseling practice which includes a minimum 
of 3,000 hours of supervised clinical practice and 100 hours of face-
to-face supervision. This supervision must be provided by a mental 
health counselor who is licensed for independent practice in mental 
health counseling in the jurisdiction where practicing and must be 
conducted in a manner that is consistent with the guidelines for 
supervision of the American Mental Health Counselors Association.
    (2) The requirements of this paragraph are that the CMHC, prior to 
January 1, 2015:
    (i) Possess a master's or higher-level degree from a mental health 
counseling program of education and training accredited by CACREP and 
must have passed the National Counselor Examination (NCE); or
    (ii) Possess a master's or higher-level degree from a mental health 
counseling program of education and training from either a CACREP or 
regionally accredited institution and have passed the NCMHCE; and
    (iii) Must have a minimum of two (2) years of post-master's degree 
supervised mental health counseling practice which includes a minimum 
of 3,000 hours of supervised clinical practice and 100 hours of face-
to-face supervision. This supervision must be provided by a mental 
health counselor who is licensed for independent practice in mental 
health counseling in the jurisdiction where practicing and must be 
conducted in a manner that is consistent with the guidelines for 
supervision of the American Mental Health Counselors Association.
    (3) The Director, TRICARE Management Activity may amend or modify 
existing or specify additional certification requirements as needed to 
accommodate future practice and licensing standards and to ensure that 
all CMHCs continue to meet educational, licensing and clinical training 
requirements considered appropriate.
    (iv) * * *
    (C) Supervised mental health counselor. For the purposes of 
TRICARE, a supervised mental health counselor is an individual who does 
not meet the requirements of a certified mental health counselor in 
paragraph (c)(3)(iii)(N) of this section, but meets the requirements of 
this paragraph (c)(3)(iv)(C). After December 31, 2014, this category of 
provider will no longer be recognized by TRICARE and no reimbursement 
may be made to any person for services provided by this category of 
provider. However, prior to January 1, 2015, a supervised mental health 
counselor is one who meets all of the following requirements and 
conditions of practice:
    (1) Minimum of a master's degree in mental health counseling or 
allied mental health field from a regionally accredited institution; 
and
    (2) Two years of post-masters experience which includes 3,000 hours

[[Page 80744]]

of clinical work and 100 hours of face-to-face supervision; and
    (3) Is licensed or certified to practice as a mental health 
counselor by the jurisdiction where practicing (see paragraph 
(c)(3)(iv)(D) of this section for more specific information); and
    (4) May only be reimbursed when:
    (i) The TRICARE beneficiary is referred for therapy by a physician; 
and
    (ii) A physician is providing ongoing oversight and supervision of 
the therapy being provided; and
    (iii) The mental health counselor certifies on each claim for 
reimbursement that a written communication has been made or will be 
made to the referring physician of the results of the treatment. Such 
communication will be made at the end of the treatment, or more 
frequently, as required by the referring physician (refer to Sec.  
199.7 of this part); and
    (iv) The date of services provided is on or before December 31, 
2014.
* * * * *

    Dated: December 21, 2011.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-33109 Filed 12-23-11; 8:45 am]
BILLING CODE 5001-06-P