[Federal Register Volume 76, Number 250 (Thursday, December 29, 2011)]
[Proposed Rules]
[Pages 81897-81899]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33384]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[DOD-2011-HA-0076]
RIN 0720-AB53


TRICARE; Extended Care Health Option

AGENCY: Office of the Secretary, Department of Defense.

ACTION: Proposed rule.

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SUMMARY: The Department of Defense (DoD) is publishing this proposed 
rule to establish TRICARE coverage under the Extended Care Health 
Option (ECHO) of Applied Behavior Analysis (ABA) for Autism Spectrum 
Disorders (ASD).

DATES: Written comments received at the address indicated below by 
February 27, 2012 will be accepted.

ADDRESSES: Comments may be submitted, identified by docket number and/
or Regulatory Information Number (RIN) and title by either of the 
following methods:
     Federal Rulemaking Portal: www.regulations.gov. Follow the 
instructions for submitting comments.
     Mail: Federal Docket Management System Office, Room 3C843, 
1160 Defense Pentagon, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for 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: Mr. Michael Kottyan, TRICARE 
Management Activity, Medical Benefits and Reimbursement Branch, 
telephone (303) 676-3520.

SUPPLEMENTARY INFORMATION:

I. Background

    In response to Section 717 of the John Warner National Defense 
Authorization Act for Fiscal Year 2007 (NDAA FY 2007) [Pub. L. 109-364, 
October 17, 2006], DoD submitted to Congress in July 2007 the 
``Department of Defense Report and Plan on Services to Military 
Dependent Children with Autism.'' The plan included a proposal to use 
the authority under 10 U.S.C. 1092 to conduct a Demonstration within 
the ECHO with a view to improving the quality, efficiency, convenience 
and cost effectiveness of providing services to eligible Active Duty 
Family Members (ADFM) diagnosed with one of the Autism Spectrum 
Disorders (ASD). Central to the Demonstration was the authority under 
10 U.S.C. 1092 to provide reimbursement for the one-on-one Applied 
Behavior Analysis (ABA) services rendered by an individual who is not a 
TRICARE-authorized provider. Such non-certified individual, referred to 
in the Demonstration as a ``Tutor,'' is referred to in this proposed 
rule as an ``ABA Tutor.'' This rule requires that ABA Tutors meet the 
minimum requirements set forth in the current demonstration or, at the 
discretion of the Director, TRICARE Management Activity (TMA), the DoD 
may either adopt standards established in the future by a qualified 
accreditation organization as defined in title 32, Code of Federal 
Regulations (CFR), 199.2 (32 CFR 199.2) or, after review and analysis 
of the effectiveness of ABA Tutors with various levels of training, 
establish additional education, training or certification requirements 
for ABA Tutors. Although it is common practice to use ABA Tutors to 
render direct ``hands-on'' contact with those diagnosed with an ASD, 
currently there is no national certification process or governance body 
that sets uniform education, experience, oversight and disciplinary 
standards for Tutors.
    The purpose of the Demonstation was to test whether a tiered 
delivery and reimbursement methodology for ABA services would (1) 
provide increased access to ABA services, (2) provide ABA services to 
those most likely to benefit from them, (3) ensure the quality of ABA 
services by utilizing a professional community of providers including 
providers certified by the Behavior Analyst Certification Board (BACB), 
and 4) determine whether requirements are being met for State licensure 
or certification where such exists.
    Following publication of the ``Notice'' in the Federal Register on 
December 4, 2007 (72 FR 68130) the Department of Defense Enhanced 
Access to Autism Services Demonstration [the ``Demonstration''] was 
implemented on March 15, 2008 for a two-year period.

[[Page 81898]]

    To provide the DoD with information necessary to make sound 
judgments regarding payment for ABA services, it was determined that 
the Demonstration should be extended to collect sufficient 
comprehensive data. By ``Notice'' published in the Federal Register on 
February 26, 2010 (75 FR 8927) the Demonstration was extended until 
March 14, 2012, under the same terms and conditions in the original 
notice.
    As required by 10 U.S.C. 1092, the DoD's evaluation of the results 
of the Demonstration concluded that it was successful and upon final 
implementation of this rule intends to adopt a tiered ABA services 
delivery and reimbursement methodology.
    Additionally, DoD found that the Demonstration:
     Contributed to parental perception of positive outcomes 
for eligible dependents, as evidenced by parental responses to the DoD 
survey;
     Increased the number of and access to the services of 
authorized ABA providers, as evidenced by the sustained three to five 
percent (3-5%) monthly growth in the number of Demonstration enrollees; 
and
     Contributed to improved military family readiness and 
retention as evidenced by parents of children enrolled in the 
Demonstration were more likely to say they will stay in the military as 
a result of the ABA services received by their child.
    DoD believes the evaluation provides evidence supporting the 
position that the ABA services provided in the Demonstration may 
generally have had a positive impact on the lives of some of the 
children with autism and their families. The evaluation shows that the 
parents of dependent children with autism who responded to the DoD 
survey have a perception of positive impacts.
    Therefore, to increase access to ABA services for ECHO-registered 
dependents who are diagnosed with an ASD, DoD is promulgating this rule 
to adopt the provider model of the Demonstration under the authority of 
10 U.S.C. 1079(e) and to establish the requirements for ABA providers 
and reimbursement for ABA services.
    This rule also proposes to establish that certain individual 
professional providers, specifically, psychiatrists, clinical 
psychologists, certified psychiatric nurse specialists, and clinical 
social workers, and other individuals who maintain current 
certification by the Behavior Analyst Certification Board (BACB) or 
comparable certifying entity as may be approved by the Director, TMA, 
and, who maintain a current Participation Agreement with the Director, 
TMA, are eligible to be applied behavior analysis authorized providers.
    This rule indicates that TRICARE coverage of ABA services is 
subject to the requirement in 32 CFR 199.5(d)(10). That is, services or 
items paid for, or eligible for payment, directly or indirectly by a 
public facility, as defined in 32 CFR 199.2, or by the Federal 
government, other than the Department of Defense, are excluded except 
when such services or items are eligible for payment under a state plan 
for medical assistance under Title XIX of the Social Security Act 
(Medicaid).
    This rule also proposes to establish that the Director, TRICARE 
Management Activity will determine the requirements for ABA Authorized 
Providers and ABA Tutors, and the allowed amount of reimbursement for 
ABA services.

II. Summary of Regulatory Revisions

    32 CFR 199.5 addresses the DoD Extended Care Health Option (ECHO).
    Section 199.5 is proposed to be revised to establish that Applied 
Behavior Analysis provided to address the effects of Autism Spectrum 
Disorders is an ``Other service,'' as that term is used in 10 U.S.C. 
1079(e).

32 CFR 199.6 addresses TRICARE-authorized providers.
    Section 199.6 is proposed to be revised to establish the 
requirements for designation as an ``Applied Behavior Analysis (ABA) 
Authorized Provider'' of ABA services to ECHO-registered beneficiaries 
diagnosed with an Autism Spectrum Disorder.
    This rule also indicates that reimbursement may be made to an 
Applied Behavior Analysis Authorized Provider for ABA services rendered 
by ABA Tutors who work under the supervision and direction of an 
Applied Behavior Analysis (ABA) Supervisor.

III. 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, and Executive Orders 
(E.O.) 12866 and 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 a significant regulatory 
action.

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 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 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

    Extended benefits for family members of Active Duty Service 
members, Health care, Autism spectrum disorders, Applied behavior 
analysis, Military personnel.

    Accordingly, 32 CFR part 199 is amended as follows:

[[Page 81899]]

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 199.5 is amended by adding paragraph (c)(8)(iv) to read 
as follows:


Sec.  199.5  TRICARE Extended Care Health Option (ECHO).

* * * * *
    (c) * * *
    (8) * * *
    (iv) Applied Behavior Analysis (ABA) for ECHO-registered 
beneficiaries with an Autism Spectrum Disorder. Applied Behavior 
Analysis (ABA) is an ``Other service'' as that term is used in 10 
U.S.C. 1079(e), that may be reimbursed to an applied behavior analysis 
authorized provider to address the effects of an Autism Spectrum 
Disorder. Reimbursement for ABA services will be as determined by the 
Director, TRICARE Management Activity.
    (A) Services provided by this paragraph are subject to the 
requirements of paragraph (d)(10) of this section.
    (B) Definition of specific terms used in this paragraph and Section 
199.6 of this part.
    (1) Applied Behavior Analysis (ABA) Authorized Provider. An 
individual, a corporation, a foundation, or a public entity meeting the 
requirements of Sec.  199.6(e)(2)(iv) of this part who or that provides 
ABA services to ECHO-registered beneficiaries diagnosed with an Autism 
Spectrum Disorder.
    (2) Applied Behavior Analysis (ABA) Services. Such non-medical 
services determined by the Director, TMA to be appropriate to reduce 
the disabling effects of ASD for ECHO-registered beneficiaries, which 
may include, but are not limited to: conducting the initial and ongoing 
Functional Behavioral Assessments and Analysis; developing and revising 
as necessary the Behavior Plan that details the ABA intervention 
services and methods to be used; supervising or directing ABA Tutor(s); 
training the beneficiary's primary caregivers to reinforce the 
interventions detailed in the Behavior Plan; and periodically reporting 
the beneficiary's progress to the primary caregivers.
    (3) Applied Behavior Analysis (ABA) Supervisor. An individual 
Applied Behavior Analysis (ABA) Authorized Provider who provides ABA 
Services through the supervision and direction of ABA Tutors. Only 
individuals who are Applied Behavior Analysis (ABA) Authorized 
Providers may act as Supervisors. Corporations, foundations or public 
entities may not act as ABA Supervisors.
    (4) Applied Behavior Analysis (ABA) Tutor. An individual who 
renders one-on-one ABA interventions to a TRICARE beneficiary diagnosed 
with an Autism Spectrum Disorder. ABA Tutors are not considered an 
``Authorized Provider'' (refer to Sec.  199.2 of this part) or an 
``Authorized Applied Behavior Analysis (ABA) Provider'' and are not 
eligible for direct reimbursement by TRICARE.
    (5) Autism Spectrum Disorders. The Pervasive Development Disorders 
listed in the Diagnostic and Statistical Manual of Mental Disorders, 
[DSM-IV-TR (fourth edition, text revision), 2000], or a superseding 
current edition of the DSM, specifically, ``Autistic Disorder'', 
``Rett's Disorder'', Childhood Disintegrative Disorder'', ``Asperger's 
Disorder'', and ``Pervasive Development Disorder Not Otherwise 
Specified (including Atypical Autism)''Applied Behavior Analysis (ABA) 
Authorized Provider.
* * * * *
    3. Section 199.6 is amended by adding paragraphs (e)(2)(iv) through 
(e)(2)(iv)(D) in to read as follows:


Sec.  199.6  TRICARE-Authorized Providers.

* * * * *
    (e) * * *
    (2) * * *
    (iv) ECHO Applied Behavior Analysis (ABA) Authorized Provider.
    (A) The following are authorized providers of Applied Behavior 
Analysis (ABA) services authorized by Sec.  199.5(c)(8)(iv) of this 
part to address the effects of a diagnosed Autism Spectrum Disorder 
(ASD):
    (1) Psychiatrists, clinical psychologists, certified psychiatric 
nurse specialists, and clinical social workers who provide ABA services 
within the scope of their license as an individual professional 
provider.
    (2) Individuals who meet all ABA-related applicable licensing or 
other regulatory requirements of the state, county, municipality, or 
other political jurisdiction in which ABA services are rendered.
    (3) Where such licensing or regulatory requirements referenced in 
paragraph (e)(2)(iv)(A)(2) of this section do not exist, an individual 
who maintains current certification by the Behavior Analyst 
Certification Board (BACB).
    (4) A corporation, foundation, or public entity that renders ABA 
services and that meets all applicable licensing or other regulatory 
requirements of the state, county, municipality, or other political 
jurisdiction in which ABA services are rendered.
    (B) All providers under paragraph (e)(2)(iv)(A) of this section 
shall maintain a current Participation Agreement with the Director, 
TRICARE Management Activity.
    (C) Reimbursement for ABA Services may be made to the following:
    (1) ABA Authorized Providers under paragraphs (e)(2)(iv)(A)(1) 
through (3) of this section for ABA Services provided by themselves 
directly to ECHO-registered beneficiaries or for the ABA Services 
rendered by ABA Tutors under their supervision and direction.
    (2) ABA Authorized Providers under paragraph (e)(2)(iv)(A)(4) of 
this section for ABA Services provided to ECHO-registered beneficiaries 
when rendered in accordance with the requirements of this Section by 
individuals employed by or under contract with an ABA Authorized 
Provider described in paragraph (e)(2)(iv)(A)(4) of this section.

    Note:  Tutors shall meet all requirements established by the 
Director, TRICARE Management Activity. Tutors are not ``ECHO Applied 
Behavior Analysis (ABA) Authorized Providers'' and are not eligible 
for direct TRICARE reimbursement for ABA services they render.

    (D) TRICARE reimbursement for ABA services shall be the TRICARE 
allowed amount as determined by the Director, TRICARE Management 
Activity.
* * * * *

    Dated: December 23, 2011.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-33384 Filed 12-28-11; 8:45 am]
BILLING CODE 5001-06-P