[Federal Register Volume 84, Number 67 (Monday, April 8, 2019)]
[Proposed Rules]
[Pages 13855-13857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06795]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[Docket ID: DOD-2017-HA-0058]
RIN 0720-AB71


TRICARE: Prescribing of Physical Therapy, Occupational Therapy, 
and Speech Therapy by Other Allied Health Professionals Acting Within 
the Scope of Their License

AGENCY: Office of the Secretary, Department of Defense.

ACTION: Proposed rule.

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SUMMARY: The Department of Defense (DoD) proposes an amendment to the 
TRICARE regulation. Specifically, this proposed rule will allow 
coverage of otherwise authorized physical therapy (PT), occupational 
therapy (OT), and speech therapy (ST) for TRICARE beneficiaries when 
such services are prescribed by an authorized TRICARE Allied Health 
Professional acting within the scope of their license.

DATES: Written comments received at the address indicated below by June 
7, 2019 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: Department of Defense, Office of the Chief 
Management Officer, Directorate for Oversight and Compliance, 
Regulatory and Advisory Committee Division, 4800 Mark Center Drive, 
Mailbox #24, Suite 08D09, Alexandria, VA 22350-1700.
    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: Amber Butterfield, Defense Health 
Agency, TRICARE Health Plan, Medical Benefits and Reimbursement 
Division, (303) 676-3565.

SUPPLEMENTARY INFORMATION:

I. Executive Summary and Overview

A. Purpose of the Regulatory Action

    This proposed rule will permit coverage of services prescribed by 
TRICARE-authorized individual allied health professionals for PT, OT, 
and ST. The current language of Title 32 Code of Federal Regulations 
(CFR), Sec.  199.4(c)(3)(x) states that PT, OT, and ST may be cost-
shared when services are prescribed and monitored by a physician, 
certified physician assistant, or certified nurse practitioner. In 
addition, 32 CFR 199.6(c)(3)(iii)(K)(2) currently states that the 
services of other individual paramedical providers, such as licensed 
registered PT, OT, and ST, can be considered for benefits on a fee-for-
service basis only if the beneficiary

[[Page 13856]]

is referred by a physician, certified physician assistant, or certified 
nurse practitioner and a physician, certified physician assistant, or 
certified nurse practitioner provides continuing and ongoing oversight 
and supervision of the program or episode of treatment provided by 
these individual paramedical providers. As a result, otherwise 
authorized PT, OT, and ST services for TRICARE beneficiaries are not 
covered benefits when other Allied Health Professionals, such as 
Doctors of Podiatry, even when acting within their scope of license, 
prescribe the services.
    State governments generally regulate the licensure and practice of 
health care professionals, and DoD limits TRICARE benefits coverage to 
services and supplies furnished by otherwise authorized TRICARE 
individual professional providers performing within the scope of their 
state licenses or certifications. State scope of practice laws vary 
with regard to the range of services, and some include the authority to 
prescribe PT, OT, and ST. After assessing the information available, 
DoD has determined that it is unnecessarily restrictive not to cover 
otherwise authorized PT, OT, and ST services for TRICARE beneficiaries 
merely because the services are ordered by a non-physician. Therefore, 
the regulation is being amended to allow TRICARE coverage of PT, OT, 
and ST services when ordered by other Allied Health Professionals who 
are TRICARE authorized providers and acting within the scope of their 
state license or certificate.

B. Summary of the Major Provisions of the Proposed Rule

    This rule allows TRICARE coverage of otherwise authorized PT, OT, 
and ST services when prescribed by TRICARE authorized allied health 
professionals when the allied health professional is acting within the 
scope of his/her license.

C. Expected Impact and Costs

    The primary impact of this rule will result in less time and 
expense spent by beneficiaries and referring providers to obtain 
necessary medical services and supplies. Almost 10,000 beneficiaries 
visited a primary care provider after seeking care from a podiatrist, 
but prior to PT services, in 2017. With an average copay/cost-share of 
$24 across networks and TRICARE programs, this rule will conservatively 
save beneficiaries up to $230,000 per year in cost-sharing and will 
conservatively save TRICARE $1.1 million per year as a result of 
reduced visits to referring providers.
    Once beneficiaries initiate an episode of care with an Other Allied 
Health Professional for a covered disease or condition, they need not 
return to their Primary Care Manager for an office visit to obtain an 
examination and referral for PT, OT, or ST services. Assuming two hours 
by appointment (appointment, travel, waiting room, exam room), 
beneficiaries will save approximately 20,000 hours each year by not 
having to visit their referring provider prior to seeking PT, OT, or ST 
services. Referring providers will also save time, approximately 2,200 
hours (15 minutes for a podiatrist to consult with a referring provider 
regarding a PT prescription) each year, as a result of reduced 
coordination and paperwork.
    The proposed amendment to cover PT, OT, and ST services, when 
prescribed by a TRICARE-authorized Allied Health Professionals acting 
within the scope of their license, is not expected to increase the 
amount of otherwise covered PT, OT, and ST services. This is because 
prescriptions for such services are currently being written by those 
providers authorized to do so under the TRICARE program or those 
providers are countersigning prescriptions from Allied Health 
Professionals, such as a podiatrist. The DoD does anticipate, however, 
that there may be a marginal increase in administrative costs to 
accommodate changes to our contractors' systems, although the overall 
result of this change will create an efficiency in the process.
    This proposed rule does not create new costs to the government, 
because it falls under the Transfer Payment clause in accordance with 
OMB Circular A-4. As this rule proposes, TRICARE payments for physical, 
occupational or speech therapy services provided to military 
beneficiaries and prescribed by Other Allied Health Professionals, 
represents an ``Insurance Payment'' as described in OMB Circular A-4.

II. Regulatory Procedures

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

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This proposed rule has been designated a ``significant 
regulatory action,'' although not economically significant, under 
section 3(f) of Executive Order 12866. This proposed rule is not 
anticipated to have an annual effect on the economy of $100M or more.
    Accordingly, this rule has been reviewed by the Office of 
Management and Budget.

Executive Order (E.O.) 13771, ``Reducing Regulation and Controlling 
Regulatory Costs''

    E.O. 13771 seeks to control costs associated with the government 
imposition of private expenditures required to comply with Federal 
regulations and to reduce regulations that impose such costs. 
Consistent with the analysis of transfer payments under OMB Circular A-
4, this proposed rule does not involve regulatory costs subject to E.O. 
13771.

Congressional Review Act, 5 U.S.C. 804(2)

    Under the Congressional Review Act, a major rule may not take 
effect until at least 60 days after submission to Congress of a report 
regarding the rule. A major rule is one that would have an annual 
effect on the economy of $100M or more or have certain other impacts.
    This proposed rule is not a major rule under the Congressional 
Review Act.

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

    The Regulatory Flexibility Act (RFA) requires that each Federal 
agency analyze options for regulatory relief of small businesses if a 
rule has a significant impact on a substantial number of small 
entities. For purposes of the RFA, small entities include small 
businesses, nonprofit organizations, and small governmental 
jurisdictions. This proposed rule is not an economically significant 
regulatory action, and it will not have a significant impact on a 
substantial number of small entities. Therefore, it is certified that 
this rule is not subject to the requirements of the RFA.

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

    Section 202 of the Unfunded Mandates Reform Act of 1995, requires 
that agencies assess anticipated costs and benefits before issuing any 
rule whose mandates require spending in, any one year of $100M, as of 
1995 exchange rate, updated annually for inflation. That threshold 
level is

[[Page 13857]]

currently approximately $140M. This proposed rule will not mandate any 
requirements for state, local, or tribal governments or the private 
sector.

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

    This rulemaking 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''

    This proposed rule has been examined for its impact under Executive 
Order 13132, and it 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 powers 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 proposed to be 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)(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 or 
other TRICARE authorized allied health professional acting within the 
scope of their license.
* * * * *
0
3. Section 199.6 is amended by revising paragraph (c)(3)(iii)(K)(2) to 
read as follows:


Sec.  199.6   TRICARE-authorized providers.

* * * * *
    (c) * * *
    (3) * * *
    (iii) * * *
    (K) * * *
    (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 or other 
TRICARE authorized Allied Health Professional acting within the scope 
of their license and a physician or other TRICARE authorized Allied 
Health Professional acting within the scope of their license must also 
provide continuing and ongoing oversight and supervision of the program 
or episode of treatment provided by these individual paramedical 
providers.
* * * * *

    Dated: April 2, 2019.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2019-06795 Filed 4-5-19; 8:45 am]
 BILLING CODE 5001-06-P