[Federal Register Volume 86, Number 129 (Friday, July 9, 2021)]
[Rules and Regulations]
[Pages 36213-36217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14614]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[Docket ID: DOD-2016-HA-0112]
RIN 0720-AB69


TRICARE: Extended Care Health Option (ECHO) Respite Care

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

ACTION: Final rule.

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SUMMARY: The Department of Defense is amending the TRICARE regulation 
to allow an ECHO program beneficiary to receive, when authorized, up to 
sixteen (16) hours of respite care per month without a prerequisite to 
receive other authorized non-respite care during the same month. 
Currently, Active Duty Family Members who are eligible for the ECHO 
program can receive a maximum of 16 hours of respite care per month, in 
any calendar month in which the beneficiary receives other non-respite 
ECHO benefits (referred to as ``concurrent'' care). As the specific 
requirement for a concurrent ECHO benefit, which was originally 
implemented to ensure optimal medical management of the beneficiary's 
ECHO-qualifying condition, is no longer necessary and may serve as an 
inappropriate barrier to receipt of respite services for some families, 
this final rule will eliminate the concurrent ECHO benefit requirement 
and allow an ECHO beneficiary to receive up to a maximum of 16 hours of 
respite care per month, regardless of whether another ECHO benefit is 
received in the same month.

DATES: This rule is effective August 9, 2021.

FOR FURTHER INFORMATION CONTACT: Ms. Carmen DeLeon, Defense Health 
Agency, TRICARE Health Plan Division, Telephone 210-536-6004.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Regulatory History

    The Department published a proposed rule in the Federal Register on 
August 17, 2018 (83 FR 41026-41029) to eliminate the requirement for a 
beneficiary to receive a concurrent ECHO benefit in order to qualify 
for respite care. This change will expand access to respite care 
services (as recommended by the Military Compensation and Retirement 
Modernization Commission (MCRMC)), allowing families to access those 
hours

[[Page 36214]]

without receiving another ECHO benefit during the same month the 
respite care is received.

B. Summary of Major Provisions

    The Department of Defense (the Department) remains committed to 
supporting Service members and their family members with special needs. 
Together, the Office of Community Support for Military Families with 
Special Needs, the Services, and the Military Health System are working 
to enhance and improve support for these families, including everything 
from complex medical management to non-clinical case management and 
family support services. The Department is also committed to 
eliminating unnecessary requirements that act as barriers to care. The 
requirement to receive a concurrent ECHO benefit in order to be 
entitled to ECHO respite care was originally imposed as a medical 
management tool. We now conclude that this specific requirement is no 
longer necessary and may serve as an inappropriate barrier to receipt 
of respite services for some families. Respite services for ECHO-
eligible covered beneficiaries may still be appropriate and necessary 
even when no other ECHO services are provided (i.e., where all needed 
care is otherwise covered under the TRICARE Basic Program or under 
demonstration authority).
    The elimination of the requirement for a simultaneous ECHO benefit 
will provide maximum flexibility to families without sacrificing the 
goal of ensuring the safe and effective management of the beneficiary's 
ECHO qualifying condition. First, we note that TRICARE beneficiaries 
with complex medical needs may receive case management services 
including medical management, disease management and chronic care 
coordination, under the TRICARE Basic Program, regardless of whether 
the beneficiary is an ECHO eligible beneficiary. As the TRICARE program 
has evolved over time, continuing to require an ECHO eligible 
beneficiary to receive a concurrent ECHO benefit as a medical 
management tool is no longer necessary. Based on our current program 
structure, beneficiaries should already be receiving medical management 
services and the receipt of any ECHO benefit, including ECHO respite 
care, provides an additional opportunity to ensure the safe and 
effective management of the beneficiary's qualifying condition. 
Furthermore, in accordance with 32 CFR 199.5(h)(3), all ECHO benefits, 
including ECHO respite care, require authorization prior to receipt of 
such benefits. Paragraph 199.5(i) discusses required documentation as a 
prerequisite to authorizing ECHO benefits. As a practical matter, the 
Home Health Aide (HHA) providing the respite services must document the 
health care services needed by the ECHO beneficiary in the absence of 
the family caregiver and the schedule for the services during the 
provision of respite care in order to ensure an appropriately trained 
provider is sent and the beneficiary's needs are met. Additional 
details regarding required documentation to be provided to the Managed 
Care Support Contractor and HHA for authorization of ECHO respite 
services will be published in the TRICARE Policy Manual available at 
http://manuals.tricare.osd.mil. We believe that this approach will 
provide greater flexibility and eliminate unnecessary barriers for 
families to access ECHO respite care services while still ensuring the 
safe and effective medical management of the beneficiary's qualifying 
condition(s).

C. Legal Authority for This Program

    The ECHO program is authorized by 10 United States Code (U.S.C.) 
1079(d)-(f), and has been implemented through regulation at 32 CFR 
199.5 (available at https://www.govregs.com/regulations/title32_chapterI_part199_section199.5). Per 32 CFR 199.5(c)(7), ECHO 
beneficiaries are eligible for a maximum of 16 hours of respite care 
per month in any month during which the beneficiary otherwise receives 
an ECHO (other than the ECHO Home Health Care (EHHC)) benefit(s). This 
regulation is finalized under the authority of 5 U.S.C. 301 (available 
at https://www.govregs.com/uscode/title5_partI_chapter3_subchapterI), 
which allows the Secretary of Defense to prescribe regulations for the 
government; and 10 U.S.C. 1079(d) and (e) (available at https://www.govregs.com/uscode/title10_subtitleA_partII_chapter55), which 
directs the Secretary of Defense to establish a program to provide 
extended benefits for eligible active duty dependents, which may 
include the provision of comprehensive health care services, including 
case management services, to assist in the reduction of the disabling 
effects of a qualifying condition of an eligible dependent. The 
Department is authorized to provide ``respite care for the primary 
caregiver of the eligible dependent'' as one of the specifically 
enumerated extended benefits under the ECHO program pursuant to 10 
U.S.C. 1079(e)(6).

II. Public Comments

    Comments were received from thirty-one individuals, medical 
affiliated organizations, and military and veterans associations via 
www.regulations.gov. We have carefully considered all public comments, 
and specific matters raised by those comments are summarized below. We 
reaffirm the policies and procedures contained in the proposed rule and 
maintain the rationale presented in the preamble of the proposed rule.

A. Analysis of Public Comments

    The government received many comments that were in favor of the 
elimination of the concurrent ECHO benefit requirement. Many comments 
also noted that a minimum increase of four hours to the current sixteen 
hours (total of twenty hours per month) was reasonable.
    Response: Increasing the number of respite hours per month from 16 
to 20 is a major change and under the law we must give the public 
notice and an opportunity for comment. Therefore, an increase in 
respite hours will not be incorporated under this final rule. A 
separate rule will be considered by the Department when further 
analysis of the appropriate number of hours of respite is conducted.
    Two of these comments recommended consideration that the respite 
program be open to more providers than just HHAs as some beneficiaries 
do not require a home health nurse or aide to provide respite care to 
children with autism.
    Response: Respite care consists of providing skilled and non-
skilled services to a beneficiary such that in the absence of the 
primary caregiver, management of the beneficiary's ECHO qualifying 
condition and safety are provided. Therefore, 32 CFR part 1079 requires 
a TRICARE-authorized HHA provide the services under the ECHO program. 
This is critical to ensure the safety of our beneficiaries.
    Twenty-four comments were received in which commenters requested 
that the ECHO respite benefit be aligned with the Medicaid Home and 
Community waiver per the 2015 MCRMC which asked that a transitional 
benefit be made available to cover families that are separating or 
retiring from active duty (AD) service.
    Response: By law, ECHO is available only to ADFMs and therefore a 
transitional benefit to cover families that are separating or retiring 
from AD service would require legislation.
    We received two comments indicating that there are several 
geographic areas

[[Page 36215]]

that cannot obtain service due to a lack of providers, or that 
providers have declined to accept a beneficiary when limited to 16 
hours per month.
    Response: As previously stated, in order to assure the quality of 
care for ECHO beneficiaries, all ECHO respite care services will be 
provided only by Medicare or Medicaid certified HHAs who have in effect 
at the time of services a valid agreement to participate in the TRICARE 
program. Consequently, ECHO respite services are available only in 
locations where there are Medicare or Medicaid certified HHAs.
    Four comments included requests for the benefit to allow sibling 
care from the same HHA that is providing ECHO respite care.
    Response: While this request is understandable, 32 CFR 199.5 
requires respite care services be provided by a TRICARE-authorized HHA 
and are designed to provide health care services for the covered 
beneficiary. Child-care services for other members of the family is not 
authorized medical care.
    One comment sought clarification on the amount of respite hours and 
impact on yearly cost, and specifically asked whether the respite hours 
would be incorporated into the yearly benefit limitations.
    Response: Yes, by law, the cost of respite care under ECHO will be 
calculated into the yearly benefit. The Government's share of the total 
cost of providing such benefits in any year shall not exceed $36,000.

B. Provisions of the Final Rule

    The final rule is consistent with the proposed rule. No changes 
were made to the rule text as a result of comments received; however, 
certain provisions discussed in the proposed rule have been deleted 
from the final rule (e.g., increasing authorized hours beyond 16 per 
month).

III. Regulatory Analysis

A. Cost Estimate: No Concurrent Care Requirement and 16 Hours per Month 
Limit

    Current Policy Baseline Costs--Baseline (current policy) respite 
care costs incurred for those ECHO beneficiaries were estimated using 
respite care in FY18 (the latest full fiscal year data available). Out 
of a total of 1,267 ECHO users diagnosed with ASD, there were 66 
respite care users who incurred $48,022 in paid costs for respite care 
billing codes (S9122, S9123, and S9124). Of these 66 users, 17 incurred 
the maximum of 16 hours per month over an average of 1.7 months (total 
paid amount of $10,969) and 49 incurred an average of 11.3 hours per 
month over an average of 2.8 months (total paid amount of $37,053). Out 
of a total of 3,689 ECHO users with non-ASD diagnoses, there were 9 
respite care users who incurred $19,533 in paid costs for the three 
respite care billing codes. Of these 9 users, 4 incurred the maximum of 
16 hours per month over an average of 7.5 months (total paid amount of 
$12,262) and 5 incurred an average of 13.0 hours per month over an 
average of 4.4 months (total paid amount of $7,271). Because these 
users are not in the EHHC program, most of these expenditures were for 
respite-like services. As a result, FY18 baseline costs for ECHO 
respite care were $67,555 ($10,969 + $37,053 + $12,262 + $7,271; see 
Table 1).
    Cost of an Expanded Non-Concurrent Respite Benefit--Incremental 
respite costs were estimated under the proposed policy change that 
would not require concurrent care for two groups of ECHO beneficiaries: 
(1) Those who used ECHO respite care in FY18 and (2) those who only 
used non-respite ECHO care in FY18. The costs associated with ADFMs 
using the Autism Care Demonstration (ACD), who are not currently using 
the respite care benefit, were also estimated. All of these ADFM 
beneficiaries using the ACD are enrolled in ECHO and would be eligible 
to use respite care under the non-concurrent policy change.
    In estimating the potential costs of the policy change, 
beneficiaries who used ECHO respite care in FY18 were first examined. 
As discussed above, in FY18 there were a total of 75 respite care 
users: 66 diagnosed with ASD and 9 with non-ASD diagnoses. It was 
assumed that their average number of respite care hours per month and 
the paid amount per month would not change under the new benefit. 
However, it was also assumed that the average number of months that 
they would utilize respite care would increase because the number of 
respite care months after the change would now be unconstrained (up to 
a maximum of 12 months) due to the absence of concurrency. To estimate 
the average number of respite care months per user, FY18 data from the 
Comprehensive Autism Care Demonstration (ACD) was examined. It was 
determined that ADFM patients had an average (and median) of 8 months 
of care in the ACD during FY18. As a result, 8 months is a reasonable 
proxy for the number of months of respite care an average patient would 
use if the number of months were not constrained. Therefore, it was 
assumed that the average patient's family would use respite care 
services for 8 months on average. Baseline respite users were 
multiplied first by average months per year of respite care per user, 
then by average respite hours per month, and lastly by average paid 
amount per hour for respite care. This results in an estimated total of 
$182,235 in paid costs under the new benefit for baseline respite care 
users ($51,441 + $104,495 + $13,079 + $13,220).
    Then, added costs for those beneficiaries currently using only non-
respite ECHO care during FY18 were estimated. In order to estimate 
respite care user uptake rates under the expanded benefit, it is 
important to understand why current rates for non-EHHC ECHO users are 
so low (between 0.2 percent for patients not diagnosed with autism and 
5 percent for patients diagnosed with autism). The National Respite 
Coalition Task Force has surveyed families in the civilian world on the 
reasons why respite care uptake is low. Five reasons possibly apply to 
ECHO beneficiaries: Restrictive eligibility criteria, lack of 
information about respite program availability, inadequate supply of 
trained providers, inability to relate to or trust non-family 
caregivers, and guilt. The Department concludes that a revised policy 
for ECHO respite care would be largely influenced by the first two 
reasons: The extent to which restricted eligibility criteria will be 
reduced (in our case concurrency will no longer be required) and the 
extent to which the current lack of information about ECHO's respite 
benefit is reduced. Consequently, the Department concludes that 
utilization rates under the revised ECHO respite benefit will largely 
be dependent upon (1) the fact that the respite benefit will now be 
available in all 12 months of the year independent of non-respite care 
ECHO use, and (2) the extent to which the new respite benefit would be 
promoted by the MCSCs, the Exceptional Family Member Program (EFMP), 
DHA, and related advocacy groups.
    Some new beneficiaries may be drawn into the program because of the 
value of the new benefit (i.e., that it can be used in any month). 
Also, others could be drawn to use respite care because of promotion of 
the benefit through various media by interested parties. The MCSCs, 
EFMP, advocacy groups (e.g., Autism Speaks) and DHA will likely provide 
information by means of newsletters, web page postings, and other 
media. This information would then spread by word of mouth and on-line 
chat groups. While some studies have suggested respite care uptake 
rates of 15 to 20 percent, it is likely that these

[[Page 36216]]

rates are too high for the TRICARE ECHO population given its low level 
of use today. Given that current uptake rates are less than 1 percent 
for the ECHO population not diagnosed with autism and 5 percent for the 
autism-diagnosed population, it is believed that with the new 
information disseminated regarding the benefit, uptake rates of between 
1 and 5 percent (3 percent mid-point) and 5 and 10 percent (7.5 percent 
mid-point) for the two groups respectively are reasonable assumptions. 
These assumptions imply that, in FY18, 90 non-respite ECHO users 
diagnosed with ASD (0.075 * 1,201) and 110 non-respite ECHO users with 
non-ASD diagnoses (0.03 * 3,680) would have used respite care if the 
expanded benefit had been available. Assuming that these non-respite 
care ECHO users take on the same average respite care utilization and 
cost characteristics of their respite care user counterparts 
(separately for those diagnosed with ASD and those with other 
diagnoses) assumed under the new benefit, it is estimated that these 
new respite care ASD users would have had $212,753 in incremental costs 
and non-ASD users would have had $322,526 in respite care costs, for a 
total of $535,279, if the benefit had been available during FY18.
    Finally, the additional respite care costs for the 11,138 patients 
who used the ACD and who were eligible for (but did not use) the ECHO 
program during FY18 was estimated. Under the proposed change, these 
patients would be able to use ECHO during any month of the year, and 
for the sole purpose of receiving respite care. To estimate costs for 
this group, the same approach noted above was used for ECHO program 
participants diagnosed with ASD who did not use respite care. First, it 
was assumed that 7.5 percent of the 11,138 ACD patients, or 835 
patients, would use respite care services under the new policy. 
Assuming that these 835 ACD patients would have the same average 
respite care utilization and cost characteristics of their ECHO user 
counterparts diagnosed with ASD assumed under the new benefit, it was 
estimated that these ACD users would have had $1,973,055 in additional 
respite care costs, if the benefit had been available during FY18.
    In summary, it is estimated that total costs of the new benefit 
would have been $2,690,569 (or $182,235 + $535,279 + $1,973,055) if the 
benefit had been available during FY18. The incremental costs would be 
$2,623,014 in FY18 which are equal to total new respite program costs 
minus baseline costs.

B. Benefits

    ADFM ECHO beneficiaries would be able to use an expanded respite 
benefit that would allow them to obtain the benefit in any month of the 
year regardless of the use of non-respite ECHO services. Under this 
rule, ECHO EHHC beneficiaries would continue to receive a more generous 
respite care benefit (a maximum of 8 hours per day, 5 days a week).

C. Alternatives

    Two alternatives, besides this rulemaking action, were considered.
    [ssquf] No action. This alternative would not allow TRICARE to 
expand access to respite care services (as recommended by the Military 
Compensation and Retirement Modernization Commission (MCRMC)), allowing 
families to access those hours without receiving another ECHO benefit 
during the same month the respite care is received. The results of this 
alternative are not preferred.
    [ssquf] Next Best Alternative. Expand the respite care benefit by 
increasing the Monthly Respite Maximum from 16 to 20 hours. Under this 
alternative, which assumes that both the concurrent care requirement is 
eliminated and the cap on monthly hours would be increased from 16 to 
20 hours, health care costs are estimated as nearly $3.2 million in 
FY20. This alternative is not preferred.
    [ssquf] The Preferred Alternative is the final rule action being 
taken.

IV. Regulatory Procedures

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, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. A 
regulatory impact analysis must be prepared for major rules with 
economically significant effects ($100 million or more in any one 
year). This rulemaking is neither ``economically significant'' as 
measured by the $100 million threshold, nor is it otherwise 
significant.

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

    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).

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

    The Assistant Secretary of Defense for Health Affairs certifies 
that this final rule is not subject to the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) 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.

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

    Section 202 of the Unfunded Mandates Reform Act of 1995 also 
requires that agencies assess anticipated costs and benefits before 
issuing any rule whose mandates require spending in any one year of 
$100 million in 1995 dollars, updated annually for inflation. That 
threshold level is currently approximately $140 million. This final 
rule will not mandate any requirements for state, local, or tribal 
governments or the private sector.

Public Law 96-511, ``Paperwork Reduction Act'' (Title 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. 3502-3511). Existing information collection 
requirements of the TRICARE and Medicare programs will be utilized. 
TRICARE ECHO respite care providers will be coding and filing claims in 
the same manner as they currently are with TRICARE.

Executive Order 13132, ``Federalism''

    This rule has been examined for its impact under E.O. 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.

[[Page 36217]]

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--CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED 
SERVICES CHAMPUS

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. In Sec.  199.5, revise paragraph (c)(7) introductory text to read as 
follows:


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

* * * * *
    (c) * * *
    (7) Respite care. TRICARE beneficiaries enrolled in ECHO are 
eligible for a maximum of 16 hours of respite care per month. Respite 
care is defined in Sec.  199.2. Respite care services will be provided 
by a TRICARE-authorized HHA and will be designed to provide health care 
services for the covered beneficiary. The benefit will not be 
cumulative, that is, any respite hours not used in one month will not 
be carried over or banked for use on another occasion.
* * * * *

    Dated: July 2, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-14614 Filed 7-8-21; 8:45 am]
BILLING CODE 5001-06-P