[Federal Register Volume 85, Number 222 (Tuesday, November 17, 2020)]
[Rules and Regulations]
[Pages 73193-73197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25361]


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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: Referring of Physical Therapy and Occupational Therapy 
by Doctors of Podiatric Medicine Acting Within the Scope of Their 
License

AGENCY: Office of the Secretary, Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: The DoD is amending its TRICARE regulation. Specifically, this 
rule allows coverage of otherwise authorized physical therapy (PT) and 
occupational therapy (OT) for TRICARE beneficiaries when such services 
are referred by a TRICARE-authorized Doctor of Podiatric Medicine, also 
known as a Podiatrist, acting within the scope of his/her license.

DATES: This rule is effective December 17, 2020.

FOR FURTHER INFORMATION CONTACT: Amber Butterfield, Defense Health 
Agency, TRICARE Health Plan, Medical Benefits and Reimbursement 
Section, (303) 676-3565 or [email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of the Rule

    This rule permits coverage of services referred by TRICARE-
authorized Podiatrists for PT and OT. Prior to the issuance of this 
regulatory action, the language of Title 32 Code of Federal Regulations 
(CFR), Sec.  199.4(c)(3)(x) stated that PT and OT may be cost-shared 
when services are referred and monitored by a physician, certified 
physician assistant, or certified nurse practitioner. As a result, 
otherwise authorized PT and OT services for TRICARE beneficiaries were 
not covered benefits when Podiatrists (even when acting within their 
scope of license) referred the services. Podiatrists are included in 
the provider category of ``Other allied health professional'' listed

[[Page 73194]]

in 32 CFR 199.6(c)(3)(iii) and are recognized by TRICARE statute, 10 
U.S.C. 1079(a), as authorized to assess or diagnose illness, injury, or 
bodily malfunction as a prerequisite for TRICARE coverage of otherwise 
allowable treatment. According to the American Podiatric Medical 
Association, all United States jurisdictions recognize podiatrists as 
independent practitioners and do not limit Podiatrists' authority to 
refer their patients to PT and OT services. This rule makes it possible 
for that care to be cost-shared by the TRICARE program.
    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 license or certification; granted by the applicable state or 
jurisdiction. State scope of practice laws vary with regard to the 
range of services, and some include the authority to refer PT and OT. 
Title 32 CFR 199.6(c)(1) provides that licensing be interpreted as 
requiring a license to practice in the jurisdiction where services are 
being furnished; generally a state license in the United States, or for 
care and treatment provided outside the continental United States, 
whatever comparable jurisdictional requirements (including licensure or 
certification) may exist in the host nation. Title 32 CFR 199.1(b) 
states that the regulation applies in all foreign countries, unless 
specific exemptions are granted by the Director. After assessing the 
information available, DoD has determined that it is unnecessarily 
restrictive not to cover otherwise authorized PT and OT services for 
TRICARE beneficiaries merely because the services are referred by a 
Podiatrist. Therefore, the regulation is amended to allow TRICARE 
coverage of PT and OT services when referred by a Podiatrist who is a 
TRICARE-authorized provider and acting within the scope of their state 
licensure or certification.

B. Summary of Major Provisions

    This rule allows TRICARE coverage of otherwise authorized PT and OT 
services when referred by a TRICARE-authorized Podiatrist, acting 
within the scope of his/her state licensure or certification.

C. Legal Authority for This Program

    This rule is issued under 10 U.S.C. 1073 (a)(2) giving authority 
and responsibility to the Secretary of Defense to administer the 
TRICARE program. The text of 10 U.S.C. chapter 55 can be found at 
https://manuals.health.mil/pages/DisplayManual.aspx?SeriesId=MD.

II. Regulatory History

    The Department of Defense published a proposed rule in the Federal 
Register on April 8, 2019 (84 FR 13855). Comments were accepted for 60 
days, and the comment period closed on June 7, 2019. A total of 22 
comments were received. Those comments and the resulting changes to the 
rule text are described in the next section.

III. Discussion of Comments & Changes

    The majority of comments received supported the proposed rule as a 
time and cost-saving measure for TRICARE beneficiaries as well as the 
TRICARE program. Included were comments received from organizations 
representing various medical fields regarding specific aspects of the 
rule. These comments provided feedback that in part, resulted in 
several changes to the rule text. The changes include: Refocusing to 
solely address referrals by Podiatrists instead of all ``Other allied 
health professionals'' to refer for PT and OT; revising the 
nomenclature for Podiatrists from Doctors of Podiatry or Surgical 
Chiropody to Doctors of Podiatric Medicine, or Podiatry; adding 
Podiatrists to the list of providers who can refer and provide ongoing 
oversight in order for the services of physical therapists and 
occupational therapists to be considered for benefits on a fee-for 
service basis; and removing the option in the proposed rule for 
Podiatrists to refer patients to speech therapy (ST) services based on 
the lack of direct relationship between such a referral and podiatric 
practice. A discussion of the more significant comments concerning 
DoD's proposed rule, and our responses to these comments, are set forth 
below.
    A commenter asked why TRICARE doesn't support the use of Physical 
Therapist Assistants (PTAs) and Certified Occupational Therapy 
Assistants (COTAs) in the care of its beneficiaries. The commenter also 
stated that TRICARE was the only payer source to have that restriction. 
The Department published a final rule on March 17, 2020, (85 FR 15061) 
which added certified or licensed PTAs and OTAs as TRICARE-authorized 
providers when supervised by a TRICARE-authorized physical therapist or 
occupational therapist in accordance with Medicare's rules for 
supervision and qualification.
    Another commenter asserted that athletic trainers, if recognized by 
TRICARE as paramedical providers, would support the DoD in providing 
greater efficiencies through care coordination. The addition of 
athletic trainers as TRICARE-authorized providers is outside the scope 
of this rule.
    Several commenters requested clarification regarding PTs, OTs, and 
STs' ability to self-refer where allowed by state law under the 
proposed rule. The commenters assert that as PTs, OTs and STs are 
recognized as ``Other allied health professionals'' under 32 CFR 
199.6(c)(3)(iii), the proposed rule includes the ability for PTs, OTs, 
and STs to self-refer as well as refer beneficiaries to another therapy 
practitioner where allowed by state law. The commenters reason that 
when state law is silent, no referral from another health care 
professional is required, whereas when state law imposes a referral 
requirement, TRICARE coverage will hinge on the PTs, OTs, and STs 
securing a referral in accordance with state law. This rule is revised 
to only allow Podiatrists to refer for PT and OT services, therefore, 
the commenters' issue is moot. However, to respond to this comment 
generally, self-referral by TRICARE providers is prohibited under 32 
CFR 199.6(a)(13)(xi), which directs providers to ``refer CHAMPUS 
beneficiaries only to providers with which the referring provider does 
not have an economic interest, as defined in Sec.  199.2.'' Title 32 
CFR 199.2 defines economic interest as ``(1) Any right, title, or share 
in the income, remuneration, payment, or profit of a CHAMPUS-authorized 
provider, or of an individual or entity eligible to be a CHAMPUS-
authorized provider, resulting, directly or indirectly, from a referral 
relationship; [. . .] (2) A referral relationship exists when a CHAMPUS 
beneficiary is sent, directed, assigned or influenced to use a specific 
CHAMPUS-authorized provider, or a specific individual or entity 
eligible to be a CHAMPUS-authorized provider.'' Under these provisions, 
TRICARE-authorized providers are barred from self-referral, even if 
self-referral is acceptable under the state or jurisdiction's licensure 
or certification requirements.
    A commenter also requested clarification as to whether and how the 
``ongoing oversight and supervision'' of the program of treatment would 
apply to ``Other allied health professionals'' who would refer TRICARE 
beneficiaries for therapy services. As an example, the commenter asked 
if a social worker [referring] occupational therapy for a TRICARE 
beneficiary, would have to sign the OT plan of care and would that same 
social worker have to monitor and sign off on any changes to the plan 
of care if there is a significant change in

[[Page 73195]]

function for the TRICARE beneficiary 6 months after they initiated the 
plan of care. This rule is revised to only allow Podiatrists to refer 
PT and OT services; therefore the commenter's issue is moot. However to 
address the commenter, consider a Podiatrist rather than a social 
worker referring OT for a TRICARE beneficiary. The Podiatrist will 
provide ongoing and continual supervision by signing the OT plan of 
care, monitoring treatment and signing off on any changes to the plan 
of care if there is a significant change in function for the TRICARE 
beneficiary six months after they initiated the plan of care. 
Requirements for referral and supervision are defined at Sec.  
199.6(c)(2)(iv).

IV. Summary of Changes From NPRM

    We adopt the proposed rule with changes as described in the comment 
responses.

V. Regulatory Analysis

A. Regulatory Planning and Review

a. Executive Orders
Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''
    Executive Orders (E.O.s) 12866 and 13563 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). E.O. 13563 
emphasizes the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. It 
has been determined that this rule is not a significant regulatory 
action. The rule 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.
Executive Order 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 rule does not involve regulatory costs subject to E.O. 13771.
b. Summary
    This rule allows TRICARE coverage of otherwise authorized PT and OT 
services when referred by a TRICARE-authorized Podiatrist acting within 
the scope of his/her license.
c. Affected Population
    This rule impacts all TRICARE beneficiaries, TRICARE-authorized 
providers, the TRICARE program and its Managed Care Support Contractors 
(MCSC). Beneficiaries will spend less time and expense obtaining 
referrals from their TRICARE-authorized primary care provider for PT 
and OT services related to foot and ankle conditions. Beneficiaries' 
courses of treatment will not be unnecessarily delayed by the need to 
obtain a referral from their primary care provider. TRICARE-authorized 
primary care providers and specialists will not need to spend 
unnecessary time seeing patients requiring PT or OT referrals for foot 
and ankle conditions, resulting in savings to the TRICARE program. 
TRICARE-authorized Podiatrists will be able to prescribe and oversee 
their patients' PT and OT courses of treatment. MCSCs will also be 
minimally impacted as this rule will require them to update their 
systems to accommodate the change.
d. Costs
    Once beneficiaries initiate an episode of care with a Podiatrist 
for a covered disease or condition, they need not return to their 
primary care provider or specialist for an office visit to obtain an 
examination and a referral for PT and OT 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 or OT 
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 amendment covers PT and OT services, when referred by a 
TRICARE-authorized Podiatrist acting within the scope of their license, 
and is not expected to increase the amount of otherwise covered PT and 
OT services. This is because referrals for such services are currently 
being written by those providers authorized to do so under the TRICARE 
program or those providers are countersigning prescriptions or 
referrals from 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 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 states, TRICARE payments for PT and OT services 
provided to military beneficiaries and prescribed by TRICARE-authorized 
Podiatrists, represents an ``Insurance Payment'' as described in OMB 
Circular A-4.
e. Benefits
    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.
f. Alternatives
    DoD considered several alternatives to this rulemaking. The first 
alternative involved taking no action. Although this alternative would 
be the most cost neutral for DoD, it was rejected as not benefitting 
TRICARE beneficiaries in need of PT and OT services during the regular 
course of foot and ankle treatment. For example, and according to 
``American Podiatric Medical Association,'' plantar fasciitis is 
treated with conservative efforts such as PT and OT services before 
turning to surgery. Additionally following foot or ankle surgery PT and 
OT services are necessary as a part of the post-operative treatment. 
This alternative also placed TRICARE at odds with common practice by 
other health care entities.
    The second alternative DoD considered, and the regulatory change

[[Page 73196]]

offered in the proposed rule, was allowing all TRICARE-authorized 
``Other allied health professionals'' to refer PT, OT and ST services. 
After the proposed rule was published, the Department received input 
from internal and external stakeholders and ultimately determined that 
this alternative was problematic because more the half of the 18 types 
of TRICARE-authorized ``Other allied health professionals'' do not have 
the authority to diagnose and treat a mental or physical illness, 
injury or bodily malfunction in accordance with 10 U.S.C. 1079(a)(12). 
Commenters also raised concerns over self-referrals, causing the 
Department to re-evaluate this alternative. Moreover, in accordance 
with 32 CFR 199.6(c)(3)(iii), the majority of TRICARE-authorized 
``Other allied health professionals'' require the ongoing monitoring 
and supervision of a physician for a program or episode of treatment. 
Those TRICARE-authorized ``Other allied health professionals'' who may 
not provide covered care independent of a physician include: Certified 
Physician Assistant, Anesthesiologist Assistant, Licensed Registered 
Nurse, Audiologist, Licensed Registered Physical and Occupational 
Therapists, Licensed Registered Speech Therapist, Nutritionist, 
Registered Dietician, and TRICARE Certified Mental Health Counselor. 
While certified physician assistants require supervision of a 
physician, they were given authority to refer for therapy services 
under a rule published on August 10, 2018 (75 FR 50882) due to changes 
in the way billing occurred under the national provider identification 
system, and to align with Medicare's allowance for nonphysician 
providers to provider referrals for therapy services. DoD finds it is 
appropriate to continue to allow certified physician assistants to 
refer and oversee therapy services due to the direct relationship 
physician assistants have with physicians, and because they often serve 
as a patient's primary care provider, while not extending this 
privilege to other providers that may not provide independent care. 
Therefore DoD reconsidered this alternative and found it to be in 
conflict with current Program law. DoD considers the approach described 
in this final rule to be the most beneficial to both TRICARE 
beneficiaries and the TRICARE program. It offers time and cost savings 
and optimum continuity of care to beneficiaries, at no additional costs 
to the TRICARE program and affords the program the opportunity to 
expand health care delivery options.

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

    The Department of Defense certifies that this final rule is not 
subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it 
would not, if promulgated, have a significant economic impact on a 
substantial number of small entities. Therefore, the Regulatory 
Flexibility Act, as amended, does not require us to prepare a 
regulatory flexibility analysis.

C. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

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

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1532) requires agencies to assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. This 
final rule will not mandate any requirements for State, local, or 
tribal governments, nor will affect private sector costs.

E. 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).

F. Executive Order 13132, ``Federalism''

    E.O. 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 final rule will not have a substantial effect on 
State and local governments.

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)(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, 
certified physician assistant, certified nurse practitioner or Doctor 
of Podiatric Medicine (Podiatrist) acting within the scope of their 
license.
* * * * *

0
3. Section 199.6 is amended by:
0
a. Revising paragraph (c)(3)(iii)(C);
0
b. Revising paragraph (c)(3)(iii)(K)(2) introductory text;
0
c. Removing paragraph (c)(3)(iii)(K)(2)(iii); and
0
d. Adding paragraph (c)(3)(iii)(K)(3).
    The revisions and addition read as follows:


Sec.  199.6  TRICARE-authorized providers.

* * * * *
    (c) * * *
    (3) * * *
    (iii) * * *
    (C) Doctors of Podiatric Medicine or Podiatrists.
* * * * *
    (K) * * *
    (2) The services of the following individual paramedical 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, certified 
physician assistant, certified nurse practitioner, or podiatrist; and a 
physician, certified physician assistant, certified nurse practitioner, 
or podiatrist must also provide continuing and ongoing oversight and 
supervision of the program or episode of treatment provided by these 
individual paramedical providers.
* * * * *
    (3) Licensed registered speech therapists (speech pathologists). In 
order to be considered for benefits on a fee-for-service basis, the 
services of a licensed registered speech therapist as an individual 
paramedical provider of care may be provided only if: (1) The 
beneficiary is referred by a physician, a certified physician 
assistant, or a certified nurse practitioner; and (2) a physician, a 
certified physician assistant, or a certified nurse practitioner must 
also provide continuing and ongoing oversight and supervision of the 
program or episode of treatment provided by these individual 
paramedical providers.
* * * * *


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    Dated: November 12, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-25361 Filed 11-16-20; 8:45 am]
BILLING CODE 5001-06-P