[Federal Register Volume 84, Number 187 (Thursday, September 26, 2019)]
[Proposed Rules]
[Pages 50805-50809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20621]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 199
[Docket ID: DOD-2019-HA-0090]
RIN 0720-AB76
TRICARE; Reserve and Guard Family Member Benefits; Early
Eligibility TRICARE and Transitional Assistance Management Program for
Certain Reserve Component Members; Extended TRICARE Program Coverage
for Certain National Guard Members
ACTION: Proposed rule.
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SUMMARY: This rulemaking proposes changes to implement provisions of
the National Defense Authorization Act for Fiscal Year 2017 (NDAA-17)
to continue TRICARE program coverage for certain members of the
National Guard and their dependents during certain disaster response
duty. This applies discretionary authority broadened by NDAA-17 to
propose expansion of the TRICARE Reserve and Guard Family Benefits
program to all families of Reserve Component (RC) members on active
duty for more than 30 days, except for the families of RC members
performing active Guard and Reserve (AGR) duty for a period of 180
consecutive days or more. This rulemaking also proposes to expand both
early eligibility TRICARE coverage and Transitional Assistance
Management Program (TAMP) coverage to RC members on active duty for
some pre-planned missions.
DATES: Written comments received at the address indicated in the
ADDRESSES section by November 25, 2019 will be accepted.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulation Identifier Number (RIN) number and title, by any of the
following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Mail: Department of Defense, Office of the Chief Management
Officer, Directorate for Oversight and Compliance, 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 at
http://www.regulations.gov as they are received without change,
including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Brian Smith, Defense Health Agency,
TRICARE Health Plan, telephone (303) 676-3729.
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
Guardsmen on full-time National Guard duty under Sec. 502(f) of 32
U.S.C. 502(f) who were called to state active duty (SAD) for disaster
response duty, lost their premium-free TRICARE coverage. This rule
implements authority under 10 U.S.C. 1076f (added by Sec. 711 of NDAA-
17 (Pub. L. 114-328)) and proposes to continue TRICARE coverage to
these members of the National Guard (NG) and their eligible family
members, upon request of the state/territory on a fully reimbursable
basis. The TRICARE Guard and Reserve Family Benefits (TRGFB) program
has successfully eased the transition for RC families to and from
TRICARE since its inception under demonstration authority in September
2001. Section 748(b) of NDAA-17 extends TRGFB to eligible family
members of any RC member who is on active duty for more than 30 days,
amending prior legislation that required the active duty be in support
of a contingency operation. Transition has also been eased by early
[[Page 50806]]
eligibility TRICARE coverage that started in 2004, which is also when
the long-standing TAMP program had its period of coverage extended to
180 days. Section 511 of NDAA-18 expands eligibility for these programs
to more RC members and their families under recently amended statutes.
II. Continued TRICARE Program Coverage (Sec. 199.3)
Prior to Sec. 711 of NDAA-17, premium-free TRICARE coverage
terminated for members of the NG on full-time NG duty (FTNGD) under
502(f) of title 32, when they commenced state active duty (SAD)
including response to certain disasters upon a call to duty by the
state/territory. There is no federal statutory entitlement to premium-
free health care at Department of Defense (DoD) expense during SAD
since it is a state responsibility and not federal responsibility.
However, performing SAD does not disqualify them from TRICARE Reserve
Select 10 U.S.C. 1076f. Section 711 of NDAA-17 authorizes the state/
territory request TRICARE coverage to continue when NG members transfer
from FTNGD to SAD in response to certain disasters and reimburse the
DoD for all health care received by NG and their family members in
military treatment facilities or purchased from civilian providers.
III. Expansion of TRICARE Reserve and Guard Family Benefits Program
(Sec. 199.14)
Prior to Sec. 748(b) of NDAA-17, discretionary authority to pay
non-network, TRICARE authorized providers up to 115% of the CHAMPUS
Maximum Allowable Charge (CMAC) contained in 10 U.S.C.
1079(h)(4)(C)(ii) applied only to families of RC sponsors who had been
activated for more than 30 days in support of a contingency operation
as defined in 10 U.S.C. 101(a)(13). In contrast, prior discretionary
authority to waive the TRICARE deductible (10 U.S.C. 1095d(a) added by
Sec. 714 of NDAA-99 (Pub. L. 106-65)) never contained the limitation
that the RC sponsor's activation to be ``in support of a contingency
operation.'' For consistency, during the demonstration and continuing
in the permanent program to the present, the Department aligned these
provisions by offering both features only to families of RC sponsors
who had been activated for more than 30 days in support of a
contingency operation.
Together, these two features comprise the TRICARE Reserve and Guard
Family Benefits program that help ensure timely access to healthcare
and maintain clinically appropriate continuity of healthcare to family
members of activated RC members, appropriately limit the out-of-pocket
expenses for those family members, and remove potential barriers to
healthcare access by families in order to improve the morale and
retention of RC members.
This proposed rule applies discretionary authority broadened by
Sec. 748(b) of NDAA-17 to expand both the increased payment to
providers feature and the waiver of deductible feature to all families
of RC members on active duty for more than 30 days, except for the
families of RC members performing AGR duty for a period of 180
consecutive days or more (as defined in 10 U.S.C. 101(d)(6)); including
full-time support (FTS) members of the U.S. Navy Reserve and U.S.
Marine Corps Reserve. While AGR members are in the Selected Reserve,
their current and future and medical benefits as well as their
retirement benefits compare to the full-time Active Components. Adding
these features to their current medical benefits would make their
medical benefit better than their Active Component colleagues.
Additionally, the career path of an AGR member has the potential for
twenty years of cumulative active service leading to a regular
retirement (10 U.S.C. chapter 367 [Army], chapter 571 [Navy and Marine
Corps], and chapter 867 [Air Force]) with medical eligibility
immediately upon retirement, rather the non-regular retirement common
to RC members (10 U.S.C. subtitle E, part II) that delays medical
eligibility until the RC sponsor reaches age 60. Because AGR members,
and their eligible family members, have benefits comparable to members
on active duty, and their eligible family members, the Department sees
the authority of Sec. 748(b) of NDAA-17 as inapplicable to their
circumstances.
A. Waiver of deductible (Sec. 199.4(f)(2)(i)(H)). Eligible family
members of RC sponsors called or ordered to active duty for more than
30 days and who are enrolled in TRICARE Select would not be responsible
for paying the annual deductible under TRICARE Select associated with
their sponsor's qualifying active duty. Considering that many may have
already paid annual deductibles under their health plan prior to
enrolling in TRICARE Select, waiving this annual deductible
appropriately limits out-of-pocket expenses for many RC family
households.
B. Increased payment to providers (Sec. 199.14(j)(1)(i)(E)). This
feature increases TRICARE payments up to 115 percent of the CMAC, for
TRICARE covered outpatient care received from a TRICARE authorized
provider who does not participate (accept assignment) under TRICARE.
This helps make it possible for RC family members to continue seeing
civilian providers with whom they might have established relationships
(i.e. access) while promoting clinically appropriate continuity of
care. Section 748(b) of NDAA-17 expanded the discretionary authority
for increased TRICARE payments to providers by removing the limitation
from the statute (10 U.S.C. 1079(h)(4)(C)(ii)) that had required the RC
sponsor's activation be ``in support of a contingency operation.''
IV. Expansion of Early Eligibility TRICARE and TAMP to Certain RC
Members
Section 511 of NDAA-18 amended 10 U.S.C. 1074(d)(2) to expand both
early eligibility TRICARE and TAMP coverage to RC members called or
ordered to active duty for pre-planned missions under 10 U.S.C. 12304b.
Previously, law provided these benefits to RC members (and their
eligible family members) only in conjunction with a call or order to
active duty for more than 30 days in support of a contingency operation
(10 U.S.C. 101(a)(13)(B)). Until enactment of Sec. 511, duty for pre-
planned missions had not been included in the discretionary authority
for early eligibility TRICARE and TAMP benefits.
The definition for contingency operation includes military duty
under 10 U.S.C. 101(a)(13)(A) and (B), but Sec. 511 amendment
specifies duty under subparagraph (B) in particular for both early
eligibility TRICARE and TAMP. In addition to a contingency operation
under subparagraph (B), this rule proposes to offer these benefits for
duty described under subparagraph (A) as well: Military duty designated
by the Secretary of Defense as an operation in which members of the
armed forces are or may become involved in military actions,
operations, or hostilities against an enemy of the United States or
against an opposing military force.
A. Early Eligibility TRICARE (Sec. 199.3(b)(5)(i)). Certain RC
members who are issued delayed-effective-date orders for active duty of
more than 30 days for a preplanned mission or in support of a
contingency operation, would receive up to 180 days of early
eligibility TRICARE coverage for themselves and their eligible family
members beginning on the later of the date of the issuance of such
order or 180 days before the date on which the period of active duty is
to commence under such order. In addition to member readiness, this
early eligibility TRICARE contributes to family
[[Page 50807]]
readiness by providing a period of time for the family to adjust in
advance to TRICARE coverage before the RC member's reporting date for
activation.
B. Transitional Assistance Management Program (Sec. 199.3(e)(ii)).
TAMP extends TRICARE eligibility for 180 days after separation from
active duty so individuals have a generous amount of time to make
arrangements for other health coverage for themselves and their
families. In addition to RC members activated for more than 30 days in
support of a contingency operation, RC members separating from active
duty for a preplanned mission under 10 U.S.C. 12304b would gain TAMP
coverage for themselves and their eligible family members.
V. Regulatory Analysis
We developed this rule after considering numerous statutes and
Executive Orders (E.O.s) related to rulemaking. Below we summarize our
analyses based on these statutes or E.O.s.
A. Regulatory Planning and Review
Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the 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, distributive 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 rule has been designated as a ``not significant''
regulatory action, and not economically significant, under section 3(f)
of Executive Order 12866. Accordingly, the rule has not been reviewed
by the Office of Management and Budget (OMB) under the requirements of
these Executive Orders.
Executive Order 13771 (Reducing Regulation and Controlling
Regulatory Costs) directs agencies to reduce regulation and control
regulatory costs and provides that ``for every one new regulation
issued, at least two prior regulations be identified for elimination,
and that the cost of planned regulations be prudently managed and
controlled through a budgeting process.'' This proposed rule is not
expected to be subject to the requirements of this Executive Order
because it is not significant under Executive Order 12866.
1. Costs
By removing the requirement that the disaster response duty be
federal in order for Guardsmen to be eligible for TRICARE coverage, the
States may see an increase of costs to be reimbursed to DoD. These
additional costs, however, are expected to be de minimis because this
expansion of eligibility to State disaster response duty will only
impact a very small portion of the Guard population. These minimal
additional costs are incurred at the request of the State for TRICARE
coverage of Guardsmen, and upon the agreement that those costs be
reimbursed to DoD. For this reason, States allocate health care funding
and programs for Guardsmen and their families during State disaster
response duty. Because States would fully reimburse the DoD for the
cost of TRICARE coverage under Sec. 711 of NDAA-17, there is an
assumption of zero net cost impact to DoD.
Estimated costs to the Department with providing early eligibility
TRICARE and TAMP coverage, as well as extending the existing deductible
waiver and balance billing protection for all families of reservists
utilizing TRICARE Select coverage to the entitled populations
identified, is a total of $146 million from calendar years 2019 through
2023 (an average of $29.2 million a year); $73.3 million associated
with Sec. 748(b) of NDAA-17 and $72.7 million associated with Sec.
511 of NDAA-18.
We anticipate costs to the Government for administrative start-up
fees from the managed care support contractors to be $230,290. These
start-up costs will be incorporated in contracts and absorbed by DoD.
This estimate was based on the contract modifications regarding impact
assessment and requirements developments ($47,880), Information
Technology systems updates ($26,085), and administrative services the
Managed Care Support Contractors ($156,325) would need to conduct to
support these enhanced benefits. The calculations are below.
Under the third generation of TRICARE contracts (T3) for the
TRICARE Overseas Program Managed Care Support Contractor (MCSC), the
estimated cost regarding assessment and requirements development for
the subcontractor were derived from an hourly rate of $56 at the level
of effort (LOE) of 80 hours equals $4,480 ($56 hourly wage *80 hours),
and for the primary MCSC, an hourly rate of $124 at 80 hours equals
$9,920 ($124 hourly wage * 80 hours). Additionally for the
subcontractor, estimated costs with adjusted administrative services
were LOE of 270 hours at $124 an hour equals $33,480 ($124 hourly wage
* 270 hours), and for IT start-up to support the additional benefit and
population, the estimate was allocated at 50% of 235 hours at $111 an
hour equals $26,085 ($111 hourly wage * 235 hours).
Under the fourth generation of TRICARE Contracts (T17) for MCSCs,
the estimated cost regarding assessment and requirements development
for the subcontractor in each of the East and West Regions were derived
from an hourly rate of $56 at the LOE of 80 hours and for the primary
MCSCs, an hourly rate of $74 at 80 hours equals $5,920 ($124 hourly
wage * 80 hours) for the East Region and an hourly rate of $124 at 80
hours equals $9,920 ($124 hourly wage * 80 hours) for the West Region.
Additionally for the subcontractors, estimated costs with adjusted
administrative services were at a LOE of 270 hours at $56 an hour
equals $15,120 ($56 hourly wage * 270 hours) for the East Region and
270 hours at $124 an hour equals $33,480 ($124 hourly wage * 270 hours)
for the West Region. For IT start-up to support the additional benefit
and population in each Region, the estimate was allocated at 50% of 470
hours at $111 an hour equals $26,085 [($111 hourly wage * 470 hours)/2]
for the East Region and allocated at 100% of 470 hours at $140 an hour
equals $65,800 ($140 hourly wage * 470 hours) for the West Region.
2. Benefits
This rule proposes revisions to the requirements and procedures for
all eligible family members of Reserve Component (RC) members activated
more than 30 days who utilize the TRICARE Select program, proposes to
expand Early TRICARE eligibility and TAMP to those RC members, and
their eligible family members, who receive delay-effective-date active
duty orders for more than 30 days in support of a contingency operation
or a preplanned mission, and proposes to provide TRICARE program
benefits to those Guardsmen, and their eligible family members, who
were on Title 32, 502f Active Guard/Reserve orders and receive state
active duty orders in support of a natural disaster.
3. Alternatives
In proposing this rule, we have considered two alternatives:
a. Alternative 1: No Action. Failure to implement this rule will
mean that TRICARE regulations are not in compliance with the changes
mandated by TRICARE statutory provisions.
[[Page 50808]]
b. Alternative 2: Next Best Action. The next best alternative is to
waive the annual deductible within the first CY of an activation only,
for family members of RC members activated more than 30 days while in a
continuous period of active duty who utilize TRICARE Select coverage,
and not waive the annual deductible for subsequent CY years; per
activation lasting more than 12 months or less than 12 months that
carries into a second calendar year. While this would provide an
estimated cost savings to the Department of $6.6 million from the
proposed costing, the potential of exposing this beneficiary population
to other annual deductibles under similar coverage with private
insurance is likely. This course of action is not preferred.
B. Congressional Review Act (5 U.S.C. 801, et seq.)
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 $100 million or more or have certain other
impacts. This rule is not a major rule under the Congressional Review
Act.
C. Impact on Small Entities
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. This rule will not impose any impacts on any small entities.
This means that there will be no economic impacts on any small
entities. Therefore, the Department of Defense under 5 U.S.C. 601-612
certifies that this rule will not have a significant economic impact on
a substantial number of small entities.
D. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, we want to assist small
entities in understanding this rule so that they can better evaluate
its effects on them and participate in the rulemaking. If the rule
would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please contact the person in the FOR FURTHER
INFORMATION CONTACT section of this rule.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business.
E. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538,
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100 million in 1995
(adjusted for inflation) or more in any 1 year. Although this rule will
not result in such an expenditure, we do discuss the effects of this
rule elsewhere in this preamble.
F. Collection of Information
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3520) applies to
collections of information using identical questions posed to, or
reporting or recordkeeping requirements imposed on, ten or more members
of the public. This rule does not impose requirements under the PRA.
G. Federalism
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. This proposed rule does not have federalism implications
that warrant the preparation of a federalism assessment in accordance
with Executive Order 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 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. Amend Sec. 199.2(b) by adding the definition of ``Disaster response
duty'' in alphabetical order to read as follows:
Sec. 199.2 Definitions.
* * * * *
(b) * * *
Disaster response duty. Duty performed by a member of the National
Guard in State status pursuant to an emergency declaration by the
Governor of the State (or, with respect to the District of Columbia,
the mayor of the District of Columbia) in response to a disaster or in
preparation for an imminent disaster.
* * * * *
0
3. Amend Sec. 199.3 by:
0
a. Revising paragraphs (b)(5)(i) and (b)(5)(iii)(A) introductory text;
0
b. Adding paragraph (b)(6); and
0
c. Revising paragraph (e)(1)(ii).
The revisions and additions read as follows:
Sec. 199.3 Eligibility.
* * * * *
(b) * * *
(5) * * *
(i) Member. A member who is issued a delayed-effective-date active-
duty order for a period of more than 30 consecutive days that provides
for active-duty service to begin under such order on a date after the
date of the issuance of the order who is either:
(A) A member of a Reserve Component of the armed forces who is
ordered to active duty in support of a contingency operation under 10
U.S.C. 101(a)(13); or
(B) A member of the Selected Reserve who is ordered to active duty
for a preplanned mission under 10 U.S.C. 12304b.
* * * * *
(iii) * * *
(A) The eligibility established by paragraphs (b)(5)(i)(A) of this
section shall begin on or after November 6, 2003 and the eligibility
established by paragraphs (b)(5)(i)(B) of this section shall begin on
or after December 12, 2017, and shall be effective on the later of the
date that is:
* * * * *
(6) Certain members of the National Guard during certain disaster
response duty. (i) Member. A member of the National Guard performing
disaster response duty immediately following a period in which the
member served on full-time National Guard duty under 32 U.S.C. 502(f).
(ii) Dependents. CHAMPUS eligible dependents under this paragraph
(b)(6) are those identified in paragraphs (b)(2)(i) (except former
spouses) and (b)(2)(ii) of this section.
(iii) Effective date. The authority established by paragraphs
(b)(6)(i) and (ii) of this section shall begin on or after December 23,
2016.
[[Page 50809]]
(iv) Termination date. The eligibility established by paragraphs
(b)(6)(i) and (ii) of this section terminates upon the date the state
active duty for disaster response duty terminates, or any date prior,
as determined by the State.
(v) In this part, the term ``disaster response duty'' is defined in
Sec. 199.2(b).
* * * * *
(e) * * *
(1) * * *
(ii) A member of a Reserve Component who is separated from active
duty served more than 30 consecutive days to which called or ordered
either in support of a contingency operation under 10 U.S.C. 101(a)(13)
or for a preplanned mission under 10 U.S.C. 10304b.
* * * * *
0
4. Amend Sec. 199.4 by revising paragraph (f)(2)(i)(H) to read as
follows:
Sec. 199.4 Basic program benefits.
* * * * *
(f) * * *
(2) * * *
(i) * * *
(H) The Director, Defense Health Agency, may waive the annual
individual or family calendar year deductible for dependents of a
Reserve Component member who is called or ordered to active duty for a
period of more than 30 days, except for a Reserve Component member who
is called or ordered to active Guard and Reserve duty for a period of
more than 180 days as defined by 10 U.S.C. 101(d)(6).
* * * * *
0
5. Amend Sec. 199.14 by revising paragraph (j)(1)(i)(E) to read as
follows:
Sec. 199.14 Provider reimbursement methods.
* * * * *
(j) * * *
(1) * * *
(i) * * *
(E) Special rule for certain TRICARE Select enrollees. In the case
of TRICARE Select enrolled-dependent spouse or child, as defined in
Sec. 199.3(b)(2)(ii)(A) through (F) and (b)(2)(ii)(H)(1), (2), and
(4), of a Reserve Component member serving on active duty pursuant to a
call or order to active duty for a period of more than 30 days, except
for a RC member who is called or ordered to active Guard and Reserve
duty for a period of more than 180 days under 10 U.S.C. 101(d)(6), the
Director, Defense Health Agency, may authorize non participating
providers the allowable charge to be the CMAC level as established in
paragraph (j)(l)(i)(B) of this section plus any balance billing amount
up to the balance billing limit as referred to in paragraph
(j)(l)(i)(C) of this section.
* * * * *
Dated: September 19, 2019.
Shelly E. Finke,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2019-20621 Filed 9-25-19; 8:45 am]
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