[Federal Register Volume 86, Number 227 (Tuesday, November 30, 2021)]
[Rules and Regulations]
[Pages 67860-67862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25720]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[Docket ID: DOD-2020-HA-0073]
RIN 0720-AB79


TRICARE Program: TRICARE Reserve Select Coverage for Members of 
the Selected Reserve

AGENCY:  Department of Defense.

ACTION:  Final rule.

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SUMMARY: This final rule implements the National Defense Authorization 
Act for Fiscal Year 2020 (NDAA-2020), which removes the permanent 
eligible exclusion for TRICARE Reserve Select (TRS) coverage for a 
member of the Selected Reserve of the Ready Reserve who is enrolled or 
eligible to enroll in a Federal Employees Health Benefits (FEHB) 
Program health insurance plan. The law now excludes TRS coverage for 
such members only during the period preceding January 1, 2030. The law 
was effective upon enactment of NDAA-2020 on December 20, 2019. In 
implementing the statutory changes, this final rule will improve 
TRICARE by increasing options for access to care for Federal employees.

DATES: This final rule is effective December 30, 2021.

FOR FURTHER INFORMATION CONTACT: Mr. Jeremy Schneider, Defense Health 
Agency, TRICARE Health Plan, TRICARE Policy and Programs Section, 
[email protected], (703) 275-6208.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of the Rule

    This rule is required to implement section 701 of NDAA-2020. As a 
``housekeeping'' matter, this rule includes necessary changes to the 
TRICARE regulation to conform it to the new statutory requirements 
enacted in the NDAA-2020, over which the Department has no 
administrative discretion. In implementing section 701 of NDAA-2020, 
this rule advances the better care component of the Military Health 
System's aims by expanding the options available to Federal employees.

B. Exception to Notice and Comment

    Agency informal rule-making is governed by section 553 of the 
Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. Section 553(b) 
requires that, unless the rule falls within one of the enumerated 
exemptions, an agency must publish a notice of proposed rulemaking in 
the Federal Register that provides interested persons an opportunity to 
submit written data, views, or arguments, prior to finalization of 
regulatory requirements. Section 553(b)(B) of the APA authorizes an 
agency to dispense with the prior notice and opportunity for public 
comment requirement when the agency, for ``good cause,'' finds that 
notice and public comment thereon are impracticable, unnecessary, or 
contrary to the public interest. Section 553 also requires an agency to 
include an explanation of such good cause with the publication of the 
rule. As noted in the preamble, the change in law was effective upon 
enactment on December 20, 2019. The change in law is self-executing and 
Department of Defense (DoD) has no discretion for implementing the law, 
including amending the TRICARE regulation to conform it to the 
statutory requirements. Because DoD cannot change the law, it is 
impracticable and unnecessary to delay amending the TRICARE regulation 
to conform it to the law until a full public notice-and-comment process 
is completed. In addition, it would be contrary to public interest to 
retain in existence a TRICARE regulation relied upon by the public 
which contains an eligibility requirement which is legally inconsistent 
with the controlling legislation for TRS coverage pending completion of 
a full public notice-and-comment process. Pursuant to 5 U.S.C. 
553(b)(B), and for reasons stated in this preamble, the Assistant 
Secretary of Defense for Health Affairs (ASD(HA)), therefore, concludes 
that there is good cause to dispense with prior public notice and the 
opportunity to comment on this rule before finalizing this rule.

C. Summary of Major Provisions

    The rule amends the TRICARE regulation to conform it to the current 
law that defines eligibility for TRICARE Reserve Select, specifying 
that Selected Reserve members eligible for or enrolled in a Federal 
Employee Health Benefits (FEHB) plan (5 U.S.C. Chapter 89, ``Health 
Insurance'') are eligible to enroll in TRS beginning January 1, 2030.

D. Legal Authority for This Program

    The statutory authority for this final rule is 10 U.S.C. 1076d, as 
amended by Public Law 116-92, NDAA-2020, Section 701, ``Modification of 
Eligibility for TRICARE Reserve Select for Certain Members of the 
Selected Reserve.'' This final rule amends title 32, Code of Federal 
Regulations (CFR), Sec.  199.24, ``TRICARE Reserve Select,'' which 
offers the TRICARE Select self-managed, preferred-provider network 
option and can be found at https://www.ecfr.gov/cgi-bin/textidx?SID=2e53e1af44c38aa7d9076c076a2acd02&mc=true&node=se32.2.199_124&rgn=div8. The TRICARE Reserve Select program is established under 10 
U.S.C. 1076d, ``TRICARE program: TRICARE Reserve Select coverage for 
members of the Selected Reserve.''

II. Regulatory History

    This final rule is the only regulatory action relating to 
implementation of section 701 of NDAA-2020.

III. 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

[[Page 67861]]

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. This rule has been designated a ``non-
significant regulatory action,'' although, not determined to be 
economically significant, under section 3(f) of E.O. 12866. 
Accordingly, the rule has not been reviewed by the Office of Management 
and Budget. This rule is not economically significant as its effect on 
the economy is less than $100 million, will not materially adversely 
affect the economy, a sector of the economy; productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities. Net benefit is supported by the 
Defense Health Agency's mission of complying with all NDAA constraints 
and providing the best health care options to beneficiaries.
b. Summary
    This rule amends the current TRICARE regulation which, consistent 
with 10 U.S.C. 1076d prior to NDAA-2020 amendment, excluded from TRS 
eligibility any Selected Reserve member who was also enrolled in, or 
eligible for a health benefit plan under the Federal Employee Health 
Benefits program under 5 U.S.C. chapter 89, section 8903. According to 
NDAA-2020, this exclusion will be repealed and these government 
employees will be eligible for coverage under TRS beginning January 1, 
2030, provided they meet all other TRS eligibility requirements.
c. Affected Population
    This rulemaking action will apply to an employee of the Federal 
Government who, under 5 U.S.C. chapter 89, is eligible for the Federal 
Employee Health Benefit Program and eligible for TRS as described by 32 
CFR 199.24(b), ``Qualifications for TRICARE Reserve Select coverage''. 
These specific beneficiaries will have the option to enroll in TRS 
beginning January 1, 2030. This enrollment will be voluntary, and will 
proceed through established enrollment procedures. The affected 
population will receive notification of this rule change via 
publication of this final rule and by TRS program literature published 
by the Defense Health Agency and distributed by TRICARE regional 
managed care support contractors.
d. Costs
    The Future Years Defense Program (FYDP) only projects five years 
into the future, thus, an accurate estimate of monetary cost to the 
government cannot be done. Projections templated over FY2020 through 
FY2025 project cost savings to the DoD in excess of $10 million per 
fiscal year (FY). This net takes into consideration the revenue lost 
through fewer Federal Employees Health FEHB Program plan premium 
contributions and assumes that approximately 33% of employees eligible 
to switch from their current FEHB Program plan to TRS will do so. 
Again, these projections are for FY2020-FY2025, and this rule is not to 
be implemented until calendar year 2030.
    The administrative costs of this rule are assessed as only 
including increased customer service queries and beneficiary education 
required to ensure beneficiaries have all the necessary information to 
make an informed decision. Administrative processes to manage plan 
changes triggered by this rule are already in place.
    There is no projected cost to the public. Should they decide to 
change health plans, employees affected by this rule may experience 
cost savings due to lower premiums, catastrophic cap, deductible, and 
other cost shares. However, these savings are subject to plan specifics 
at the time of rule implementation.
e. Benefits
    Extending TRS eligibility to Federal employees increases health 
care options for beneficiaries, especially through the preferred-
provider network (PPN). Depending on their health care needs, the PPN 
provided by TRS may increase access to care for eligible Federal 
employees who choose to enroll. The projected monetary cost saving to 
the government, still to be itemized, is the final important benefit; 
this rulemaking action frees up Government funds for appropriate 
reallocation.
f. Alternatives
    Alternative 1: No action. Not implementing this rule would be in 
direct violation of the law set forth in NDAA-2020 requiring TRS to be 
an option for eligible Federal employees who desire to enroll in TRS 
coverage beginning January 1, 2030. The result of taking no action 
would be continued cost to the government in the form of FEHB plans 
that could have been transferred to TRS beginning in CY2030. Cost to 
beneficiaries would be the loss of additional coverage options and 
likely increased health care out-of-pocket costs. There is no benefit 
to taking no action and the Department has no discretion to forgo 
compliance with the law requiring this rulemaking action.
    Alternative 2: Postponed action. Postponement of rulemaking would 
result in inconsistency between the TRICARE regulation and the 
controlling statute. The statute is self-executing and was effective 
upon enactment of NDAA-2020 on December 20, 2019. Delaying rulemaking 
to conform the regulation with the law will result in inaccurate 
information available to the public regarding statutory eligibility for 
TRS coverage.
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

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. DoD will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. This final rule is 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)

    It has been determined that 32 CFR 199.24 does not impose reporting 
or

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recordkeeping requirements under the Paperwork Reduction Act of 1995. 
Existing information collection requirements of the TRICARE program 
will be utilized, using a DD Form 2896-1, Reserve Component Health 
Coverage Request Form. This enrollment form, accessible through the 
Beneficiary Web Enrollment (BWE) website, does not meet information 
collection requirements and thus does not trigger requirements of the 
Paperwork Reduction Act.

F. Executive Order 13132, ``Federalism''

    E.O. 13132 establishes certain requirements that an agency must 
meet when it promulgates a 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

    Administrative practice and procedure, Claims, Fraud, Health care, 
Health insurance, Individuals with disabilities, Mental health 
programs, 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. Amend Sec.  199.24 by revising paragraph (b)(1) introductory text to 
read as follows:


Sec.  199.24  TRICARE Reserve Select.

* * * * *
    (b) * * *
    (1) Ready Reserve member. A Ready Reserve member qualifies to 
purchase TRICARE Reserve Select coverage prior to January 1, 2030, if 
the Service member meets the criteria listed in both paragraphs 
(b)(1)(i) and (ii) of this section. Beginning January 1, 2030, only the 
criteria in paragraph (b)(1)(i) of this section is necessary for 
qualification.
* * * * *

    Dated: November 19, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-25720 Filed 11-29-21; 8:45 am]
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