[Federal Register Volume 89, Number 102 (Friday, May 24, 2024)]
[Rules and Regulations]
[Pages 45765-45767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11219]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[Docket ID: DOD-2023-HA-0049]
RIN 0720-AB89


TRICARE; Removal of Certain Temporary Regulation Changes Made in 
Response to COVID-19

AGENCY: Office of the Assistant Secretary of Defense for Health Affairs 
(ASD(HA)), Department of Defense (DoD).

ACTION: Direct final rule.

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SUMMARY: The ASD(HA) is issuing this direct final rule to remove 
certain temporary regulation changes put in place in response to the 
coronavirus disease 2019 (COVID-19) pandemic that were automatically 
terminated by the end of the President's national emergency and the 
associated Health and Human Services (HHS) Public Health Emergency 
(PHE). This rule is being published as a direct final rule as the 
Department does not expect to receive any adverse comments. If such 
comments are received, and are significant, this direct final rule will 
be withdrawn and a proposed rule for comments will be published.

DATES: The rule is effective on August 2, 2024 unless comments are 
received that would result in a contrary determination. Comments will 
be accepted on or before July 23, 2024. If adverse comment is received, 
the DoD will publish a timely withdrawal of the rule in the Federal 
Register.

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: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Department of Defense, Office of the Assistant to 
the Secretary of Defense for Privacy, Civil Liberties, and 
Transparency, Regulatory Directorate, 4800 Mark Center Drive, Attn: 
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 https://www.regulations.gov as they are received without 
change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Erica Ferron, 303-676-3626, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

A. Statement of Need for This Rule

    The ASD(HA) approved temporary modifications to TRICARE regulations 
in response to the COVID-19 pandemic and the President's national 
emergency for the COVID-19 outbreak (Proclamation 9994, 85 FR 15337). 
Two interim final rules (IFRs) implementing temporary changes to the 
TRICARE regulation were published on May 12, 2020 (85 FR 27921) and 
September 3, 2020 (85 FR 54914). These rules were finalized with 
changes in a final rule published June 1, 2022 (87 FR 33001), with one 
exception, which was the temporary coverage of the investigational 
drugs authorized by the Food and Drug Administration for treatment use 
for COVID-19 under expanded access programs. The temporary provisions 
in the IFRs, as modified by the final rule where applicable, were set 
to expire automatically, depending on the particular temporary 
provision, at: (1) the termination of the President's national 
emergency; (2) the termination of the associated HHS PHE; or (3) the 
termination of the Centers for Medicare and Medicaid Services' (CMS's) 
Hospitals Without Walls initiative. Public Law 118-3 was enacted on 
April 10, 2023, immediately terminating the President's national 
emergency \1\ and on May 11, 2023, the HHS Secretary

[[Page 45766]]

announced the termination of the PHE.\2\ When the PHE ended, the CMS 
Hospitals Without Walls initiative also terminated.\3\ The ASD(HA) 
followed these terminations with an announcement in the FR on June 12, 
2023, that the temporary provisions associated with the COVID-19 
pandemic as published in the two discussed IFRs and two other IFRs had 
terminated in both the U.S. and in overseas locations (88 FR 38038). 
Because the provisions in the first IFR and all but one provision in 
the second IFR were finalized in a previous final rule, this direct 
final rule is necessary to remove from the TRICARE regulation the 
temporary provisions that were not made permanent in the final rule. 
This change is being published as a direct final rule as the public 
already had opportunity to provide comments on each IFR with neither 
generating significant comments (all comments were responded to in the 
final rule) and because all provisions being removed from the TRICARE 
regulation have already been terminated. Removing from the TRICARE 
regulation language which is no longer in effect is not expected to be 
controversial; as such, it is appropriate to publish this rule as a 
direct final rule.
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    \1\ https://www.govinfo.gov/content/pkg/PLAW-118publ3/pdf/PLAW-118publ3.pdf.
    \2\ https://www.hhs.gov/about/news/2023/05/11/hhs-secretary-xavier-becerra-statement-on-end-of-the-covid-19-public-health-emergency.html.
    \3\ https://www.cms.gov/files/document/hospitals-and-cahs-ascs-and-cmhcs-cms-flexibilities-fight-covid-19.pdf.
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    This rule is being published as a direct final rule as the 
Department does not expect to receive any significant adverse comments 
concerning the removal of these temporary TRICARE provisions. If such 
comments are received, this direct final rule will be withdrawn and a 
proposed rule for comments will be published. If no such comments are 
received, this direct final rule will become effective 10 days after 
the public comment period expires.
    For purposes of this rulemaking, a significant adverse comment is 
one that explains (1) why the rule is inappropriate, including 
challenges to the rule's underlying premise or approach; or (2) why the 
direct final rule will be ineffective or unacceptable without a change. 
In determining whether a significant adverse comment necessitates 
withdrawal of this direct final rule, the Department will consider 
whether the comment raises an issue serious enough to warrant a 
substantive response had it been submitted in a standard notice-and-
comment process. A comment recommending an addition to the rule will 
not be considered significant and adverse unless the comment explains 
how this direct final rule would be ineffective without the addition.

B. Temporary Provisions Being Removed

    The temporary provisions being removed by this rule are:
     32 CFR 199.4(b)(3)(xiv): A temporary waiver of the 
requirement for a three-day prior hospital stay before admission to a 
skilled nursing facility.
     32 CFR 199.6(b)(4)(i)(I): A temporary waiver of certain 
acute care hospital requirements for temporary hospitals and 
freestanding ambulatory surgery centers during the COVID-19 pandemic.
     32 CFR 199.6(c)(2)(i): A temporary waiver of certain 
interstate and international licensing requirements for individual 
professional providers.
     32 CFR 199.14(a)(1)(iii)(E)(2): Temporary adjustments to 
the diagnosis related group-based reimbursement amounts for patients 
diagnosed with COVID-19.
     32 CFR 199.14(a)(9)(i): Temporary reimbursement of all 
long-term care hospitals (LTCHs) at the LTCH prospective payment system 
standard Federal rate.
     32 CFR 199.17(l)(3)(iii): A temporary waiver of cost-
shares and copayments associated with the use of telehealth services. 
This provision was ended by the final rule, but the language was not 
removed.

C. Legal Authority

    The legal authority for this direct final rule is title 10, United 
States Code (U.S.C.), chapter 55. Within chapter 55, section 1071 
creates the uniform program of medical benefits and dental care for 
uniformed Service members, former members and for their dependents, and 
section 1073 authorizes the Secretary of Defense to administer the 
TRICARE Program and to make decisions implementing the benefits. All 
referenced sections can be found in 10 U.S.C. chapter 55, available at: 
https://uscode.house.gov/view.xhtml?path=/prelim@title10/subtitleA/part2/chapter55&edition=prelim.

D. Applicability

    This rule will have a positive, if minor, impact on TRICARE's 
beneficiaries, providers, and health care contractors as removing 
temporary provisions from the TRICARE regulation that are no longer in 
effect will reduce confusion surrounding the applicability of those 
provisions.

E. Regulatory History

    Each of the sections under which TRICARE is administered are 
revised every few years to ensure requirements continue to align with 
the evolving health care field. The specific provisions of Sec. Sec.  
199.4, 199.6, 199.14, and 199.17 were most recently amended in the 
final rule that finalized the IFRs impacted by this direct final rule. 
The rule finalized without change several temporary COVID-19-related 
provisions that are being removed by this direct final rule, but also 
made permanent TRICARE coverage of telephonic office visits, modified 
the temporary waiver of certain acute care hospital requirements for 
the duration of the President's national emergency for COVID-19, 
terminated the temporary waiver of telehealth cost-sharing, and 
permanently adopted Medicare's Hospital Value Based Purchasing program 
and New Technology Add-on Payments (with TRICARE-specific 
modifications).

II. Impact of This Regulation

    The ASD(HA) approved numerous temporary regulation changes in 
response to the COVID-19 pandemic. The purpose of these changes was to 
ensure access to care during the national emergency and associated PHE, 
and that providers were adequately reimbursed for services during the 
emergency. Both the President's national emergency and the HHS PHE have 
ended, actions which automatically ended each temporary COVID-19 
flexibility not made permanent in the final rule.
    Because each of the temporary provisions automatically ended at 
either the end of the President's national emergency for COVID-19 or 
the HHS PHE, all costs associated with the temporary provisions have 
already ended. As such, there is no monetary impact to removing the 
now-outdated language for these temporary provisions from the TRICARE 
regulation.

III. Regulatory Compliance Analysis

A. Executive Order 12866, ``Regulatory Planning and Review,'' as 
Amended by Executive Order 14094, ``Modernizing Regulatory Review'' and 
Executive Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Order 12866, as amended by 14094 (88 FR 21879, April 11, 
2023), and Executive Order 13563 direct agencies to assess all costs, 
benefits and available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health,

[[Page 45767]]

safety effects, distributive impacts, and equity). These Executive 
orders emphasize the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This rule has been designated not significant, under section 3(f) of 
Executive Order 12866, as amended by Executive Order 14094.

B. Congressional Review Act (5 U.S.C. 801 et seq.)

    Pursuant to the Congressional Review Act, this rule has not been 
designated a major rule, as defined by 5 U.S.C. 804(2).

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

    The ASD(HA) certified that this 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.

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

    Section 202 of the Unfunded Mandates Reform Act of 1995 (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 rule will 
not mandate any requirements for State, local, or Tribal governments, 
and will not affect private sector costs.

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

    It has been determined that this direct final rule does not impose 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

F. Executive Order 13132, ``Federalism''

    Executive Order 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 rule will not have 
a substantial effect on State and local governments.

G. Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments''

    Executive Order 13175 establishes certain requirements that an 
agency must meet when it promulgates a rule that imposes substantial 
direct compliance costs on one or more Indian tribes, preempts Tribal 
law, or effects the distribution of power and responsibilities between 
the Federal Government and Indian tribes. This rule will not have a 
substantial effect on Indian Tribal governments.

List of Subjects in 32 CFR Part 199

    Administrative practice and procedure, Claims, Dental health, 
Fraud, Health care, Health insurance, Individuals with disabilities, 
Mental health programs, and Military personnel.

    For the reasons stated in the preamble, the Department of Defense 
amends 32 CFR part 199 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.


Sec.  199.4  [Amended]

0
2. Amend Sec.  199.4 by removing the parenthetical sentence after the 
third sentence of paragraph (b)(3)(xiv).


Sec.  199.6  [Amended]

0
3. Amend Sec.  199.6 by removing the note to paragraph (b)(4)(i)(I) and 
the last two sentences of paragraph (c)(2)(i).


Sec.  199.14  [Amended]

0
4. Amend Sec.  199.14 by removing the last sentence of paragraph 
(a)(1)(iii)(E)(2) and the note to paragraph (a)(9)(i).


Sec.  199.17  [Amended]

0
5. Amend Sec.  199.17 by removing paragraph (l)(3)(iii).

    Dated: May 17, 2024.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2024-11219 Filed 5-23-24; 8:45 am]
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