[Federal Register Volume 76, Number 249 (Wednesday, December 28, 2011)]
[Rules and Regulations]
[Pages 81368-81370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33105]


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

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[DOD-2009-HA-0175]
RIN 0720-AB38


TRICARE; Elimination of Co-payments for Authorized Preventive 
Services for Certain TRICARE Standard Beneficiaries

AGENCY: Office of the Secretary, Department of Defense.

ACTION: Final rule.

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

SUMMARY: The Department of Defense is publishing this final rule to 
implement section 711 of the National Defense Authorization Act (NDAA) 
for Fiscal Year 2009 (FY 2009), Public Law 110-417. Section 711 
eliminates copayments for authorized preventive services for TRICARE 
Standard beneficiaries other than Medicare-eligible beneficiaries. This 
rule also realigns the covered preventive services listed in the 
Exclusions section of the regulation to the Special Benefits section in 
the regulation.

DATES: Effective Date: This final rule is effective January 27, 2012. 
Applicability Date: 32 CFR 199.4(f)(12) applies for dates of service on 
or after October 14, 2008, for preventive services listed in paragraph 
(e) (28) of this section.

FOR FURTHER INFORMATION CONTACT: Ann Fazzini, Medical Benefits and 
Reimbursement Branch, TRICARE Management Activity, telephone (303) 676-
3803. Questions regarding payment of specific claims should be 
addressed to the appropriate TRICARE contractor.

SUPPLEMENTARY INFORMATION: 

I. Background

    Sections 1079(b) and 1086(b) of Title 10, United States Code 
(U.S.C.), as amended by Section 711 of the National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2009 (Pub. L. 110-417), 
required the Department of Defense to eliminate copayments for those 
authorized preventive services named in the law for TRICARE Standard 
beneficiaries other than Medicare-eligible beneficiaries.
    This language requires all copayments to be eliminated for 
authorized preventive services for certain TRICARE Standard 
beneficiaries who would otherwise pay copayments and that certain 
TRICARE Standard beneficiaries pay nothing for the preventive services 
during a year even if the beneficiary has not paid the amount necessary 
to cover the beneficiary's deductible for the year. The language does 
not expand coverage of preventive services not otherwise authorized by 
law under the TRICARE preventive care benefit.
    The proposed rule published in the Federal Register on September 
27, 2010, (75 FR 59173) clarified and realigned the preventive services 
currently listed in the Exclusions section of the TRICARE regulation to 
the Special Benefits section in the regulation. This realignment does 
not remove from coverage any preventive services currently covered 
under the program nor does it create a new entitlement to preventive or 
other services not otherwise authorized in title 10, Chapter 55, United 
States Code. We performed this realignment because Title 32 Code of 
Federal Regulations (CFR) Sec.  199.4(g), ``Exclusions and 
limitations,'' states in subparagraph (37) that preventive care is 
excluded, and then lists those services that are not excluded. We 
believe including covered preventive services in the Exclusions section 
created confusion for those seeking information about preventive 
services under the TRICARE program. A person seeking information about 
what preventive services are covered would most likely not look for 
that information in a section labeled ``Exclusions.'' We remedied this 
confusion by removing the list of covered preventive services from this 
section and placing the list in the ``Special Benefit Information'' 
section of 32 CFR 199.4(e). We also realigned those services currently 
in the ``Exclusions'' section that are not truly preventive but are 
more evaluative in nature in the ``Special Benefit Information'' 
section of 32 CFR 199.4(e) and added a definition of ``evaluative'' 
services in 32 CFR 199.2. However, based upon public comments received, 
we have removed the evaluative services definition and label from the 
Final Rule language, instead opting to simply list separately those 
covered benefits that while preventive in nature are authorized 
independently from the statutory lists of specifically authorized 
preventive services contained in Chapter 55 of title 10, United States 
Code. See Section III. Public Comments below.

II. Section 711 of the Duncan Hunter NDAA for FY 2009

    Section 711 of the NDAA 2009 waives certain copayments for 
authorized preventive services for TRICARE Standard beneficiaries by 
amending subparagraphs 1079(b) and 1086(b) of Title 10, United States 
Code.
    It is important to note that the language in Section 711 includes 
in the list of preventive services for which a cost share is not 
applicable an ``annual physical exam.'' By law, only well-child visits 
for beneficiaries under 6 years of age are covered, as are physical 
examinations for beneficiaries 6 years of age or older if conducted as 
part of health promotion and disease prevention visits when provided in 
connection with otherwise authorized immunizations and or cancer 
screenings, resulting in elimination of copayments for these specific 
physical examinations for TRICARE Standard beneficiaries. See Title 10, 
U.S.C. 1079(a)(2). Routine annual examinations, other than as described 
above, are not covered by the TRICARE program.

III. Public Comments

    The proposed rule was published in the Federal Register (75 FR 
59173) on September 27, 2010 for a 60-day public comment period. We 
received seven comments from six respondents on the proposed rule.
    Five respondents expressed support of this rule change because it 
will provide better overall coverage for beneficiaries, will increase 
awareness of disease states and prevention, is a step toward healthier 
lifestyles and better health choices, and in the long run will save the 
government money. We agree, and are pleased to promulgate this rule.
    One respondent stated agreement that a military beneficiary seeking 
information about what preventive services are covered would most 
likely not look for that information in a section labeled 
``Exclusions.'' We agree and are pleased we are able to remedy this 
confusion.
    Two respondents requested minimal changes to make the regulation 
better understood and to eliminate confusing verbiage. We appreciate 
the comments and believe that the new evaluative services category may 
have been misleading. Adding the new evaluative services language in 32 
CFR 199.4, the ``Special Benefit Information'' section, may have had 
the unintended result of implying that we were expanding benefit 
coverage of preventive services beyond what was otherwise authorized by 
law or otherwise creating a new type

[[Page 81369]]

of benefit that did not previously exist. We have carefully reviewed 
the preventive services provision from a historical perspective. In 
general, the TRICARE program has been and continues to be a benefit 
program based upon medical necessity. At the time the current 
regulation at 32 CFR 199.4(g)(37) was written, certain services, when 
not medically necessary and not designed to treat a specific illness or 
injury, were commonly referred to as preventive in nature. The term 
``preventive care'' was used rather broadly and not limited to those 
preventive services specifically authorized in statute. The regulation 
at 32 CFR 199.4(g)(37) was thus written to exclude from coverage care 
which fell under this broad type of definition and was not deemed to be 
medically necessary. A number of exceptions were then listed under the 
exemption to indicate situations when the services were no longer 
considered preventive in nature but rather covered as medically 
necessary (e.g., tetanus shots following an accidental injury) or 
otherwise authorized by statute (e.g., physical examinations for 
beneficiaries ages 5-11 that are required in connection with school 
enrollment). The TRICARE program has evolved over time as has the 
practice of medicine. Certain preventive health care services are now 
specifically authorized by statute. As a result, we believe it is 
necessary to distinguish the statutorily authorized preventive health 
care services from the broader category of services, which are based 
upon a medical necessity determination or are otherwise authorized by 
statute. Continuing to utilize the term ``preventive care'' in the 
historically broad sense as well as to refer to specific statutorily 
covered preventive services is certain to lead to confusion. As a 
result, this rule realigns statutorily authorized preventive care as 
well as care otherwise authorized by statute from the Exclusions 
section to the Special Benefits section. We have eliminated reference 
to the specific examples of medically necessary care that were 
highlighted under the exceptions to the general preventive care 
exclusion in 32 CFR 199.4(g)(37)(iii)-(vi) as realigning these specific 
routine types of medically necessary care to the special benefits 
section is confusing and unnecessary. Eliminating the individual 
reference to these medically necessary services in no way conveys a 
change in TRICARE benefit coverage. We are modifying the remaining 
regulatory text in 32 CFR 199.4 (e) (28) to include preventive services 
and in paragraph (e)(29) including those other special services that 
are otherwise authorized by law. We believe these changes will clarify 
our intent regarding preventive and other special benefits, which will 
be further clarified in the TRICARE Policy Manual.
    One respondent suggested that we expand this service/coverage to 
include other health insurance providers and Medicare-eligible 
patients. We appreciate this comment and want to assure the respondent 
the changes we are implementing do not add to or subtract from the 
covered preventive services beneficiaries are now receiving, but are 
primarily to address the elimination of copayments for certain 
preventive services. We are not certain what the respondent means by 
``other health insurance providers,'' but we believe this refers to 
other payers. This law is specific to the Department of Defense TRICARE 
Program and has no effect on other payers. TRICARE beneficiaries who 
are also eligible for Medicare are specifically excluded from the 
elimination of copayments under this provision. In these situations, 
Medicare is the primary payer and TRICARE is the secondary payer for 
services, and in most cases, TRICARE pays the Medicare copayments or 
cost-shares so that the beneficiary has no out-of-pocket expenses for 
these services. We would also note that to the extent our Medicare-
eligible beneficiaries have no copayments or cost-shares for covered 
preventive services under Medicare, there are no out-of-pocket expenses 
for TRICARE to reimburse. We will ensure this is clarified in the 
TRICARE Policy Manual.
    Two respondents recommended waiving any co-pays for preventive 
office visits. We appreciate this comment and the opportunity to 
clarify that the regulation lists health promotion and disease 
prevention visits as a covered preventive care benefit (32 CFR 199.4(e) 
(28) (iv)), for which there is no copayment, when a beneficiary 
receives at least one of the preventive services listed (e.g., 
immunizations or cancer screening examinations) during the office 
visit. We will ensure this is clarified in the TRICARE Policy Manual.
    One respondent stated support for the elimination of cost-sharing 
for TRICARE beneficiaries for secondary prevention, such as eye 
examinations for those with diabetes, as this would be an important 
extension of the health enhancement and cost containment goals of the 
FY2009 NDAA. The respondent stated that FY2009 was retroactive, meaning 
that beneficiaries did not necessarily know that their co-pays would be 
eliminated when they received a qualifying preventive service, and that 
it should be done prospectively, ideally for more than one fiscal year 
at a time. We appreciate the respondent's support to expand this 
benefit to secondary prevention. However, we cannot address this as it 
is outside the scope of the law. Benefits may not be implemented until 
granted by Congress. We have attempted to alleviate the financial 
burden for those services already received by including a provision in 
the regulation that allows requests for reimbursement of copayments 
paid by beneficiaries on or after the applicability date of October 14, 
2008. The elimination of copayments for these preventive services is 
effective October 14, 2008, and will continue for successive years 
until it is revised or eliminated by law.
    One respondent stated this rule provides an important opportunity 
to review TRICARE's coverage policies for pediatric health promotion 
and disease prevention services to ensure that cost-sharing is not 
imposed for any of these vital services. While we appreciate the 
respondent's suggestion regarding review of our coverage policies for 
pediatric preventive services, we cannot address this as it is outside 
the scope of the law. As to the comment relating to the reimbursement 
to providers of these preventive services, they will be eligible to be 
paid 100% of the TRICARE allowed amount, and will see no reduction in 
their payment levels for these services.

IV. Regulatory Procedures

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

    It has been certified that this amendment to 32 CFR part 199 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 
communities;
    (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 
these Executive Orders.

[[Page 81370]]

    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.

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 one 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.

    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 adding paragraphs (e)(28), (e)(29), and 
(f)(12), and revising paragraph (g)(37) to read as follows.


Sec.  199.4  Basic program benefits.

* * * * *
    (e) * * *
    (28) Preventive care. The following preventive services are 
covered:
    (i) Cervical, breast, colon and prostate cancer screenings 
according to standards issued by the Director, TRICARE Management 
Activity, based on guidelines from the U.S. Department of Health and 
Human Services. The standards may establish a specific schedule that 
includes frequency, age specifications, and gender of the beneficiary, 
as appropriate.
    (ii) Immunizations as recommended by the Centers for Disease 
Control and Prevention (CDC).
    (iii) Well-child visits for children under 6 years of age as 
described in paragraph (c)(3)(xi) of this section.
    (iv) Health promotion and disease prevention visits (which may 
include all of the services provided pursuant to Sec.  199.18(b)(2)) 
for beneficiaries 6 years of age or older may be provided in connection 
with immunizations and cancer screening examinations authorized by 
paragraphs (e)(28)(i) and (ii) of this section.
    (29) Physical examinations. In addition to the health promotion and 
disease prevention visits authorized in paragraph (e)(28)(iv) of this 
section, the following physical examinations are specifically 
authorized:
    (i) Physical examinations for dependents of Active Duty military 
personnel who are traveling outside the United States. The examination 
must be required because of an Active Duty member's assignment and the 
travel is being performed under orders issued by a Uniformed Service. 
Any immunizations required for a dependent of an Active Duty member to 
travel outside of the United States is covered as a preventive service 
under paragraph (e)(28) of this section.
    (ii) Physical examinations for beneficiaries ages 5-11 that are 
required for school enrollment and that are provided on or after 
October 30, 2000.
    (iii) Other types of physical examinations not listed above are 
excluded including routine, annual, or employment-requested physical 
examinations and routine screening procedures that are not part of 
medically necessary care or treatment or otherwise specifically 
authorized by statute.
    (f) * * *
    (12) Elimination of cost-sharing for certain preventive services.
    (i) Effective for dates of service on or after October 14, 2008, 
beneficiaries, subject to the limitation in paragraph (f)(12)(iii) of 
this section, shall not pay any cost-share for preventive services 
listed in paragraph (e)(28)(i) through (iv) of this section. The 
beneficiary shall not be required to pay any portion of the cost of 
these preventive services even if the beneficiary has not satisfied the 
deductible for that year.
    (ii) Beneficiaries who paid a cost-share for preventive services 
listed in paragraph (e)(28)(i) through (iv) of this section on or after 
October 14, 2008, may request reimbursement until January 28, 2013 
according to procedures established by the Director, TRICARE Management 
Activity.
    (iii) This elimination of cost-sharing for preventive services does 
not apply to any beneficiary who is a Medicare-eligible beneficiary. 
For purposes of this section, the term ``Medicare-eligible'' 
beneficiary is defined in 10 U.S.C. 1111(b) and refers to a person 
eligible for Medicare Part A.
    (iv) Appropriate copayments and deductibles will apply for all 
services not listed in paragraph (e)(28) of this section, whether 
considered preventive in nature or not.
    (g) * * *
    (37) Preventive care. Except as stated in paragraph (e)(28) of this 
section, preventive care, such as routine, annual, or employment-
requested physical examinations and routine screening procedures.
* * * * *

0
4. Section 199.17 is amended by adding paragraphs (m)(1)(ii)(D) and 
(m)(2)(iii) to read as follows:


Sec.  199.17  TRICARE program.

* * * * *
    (m) * * *
    (1) * * *
    (ii) * * *
    (D) As stated in Sec.  199.4(f)(12), TRICARE Standard beneficiaries 
who are not Medicare-eligible beneficiaries, shall have no cost sharing 
requirements for preventive care listed under Sec.  199.4 (e)(28)(i) 
through (iv).
* * * * *
    (2) * * *
    (iii) As stated in Sec.  199.4(f)(12), TRICARE Standard 
beneficiaries who are not Medicare-eligible beneficiaries, shall have 
no cost sharing requirements for preventive care listed under Sec.  
199.4 (e)(28)(i) through (iv).
* * * * *

    Dated: December 21, 2011.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-33105 Filed 12-27-11; 8:45 am]
BILLING CODE 5001-06-P