[Federal Register Volume 83, Number 244 (Thursday, December 20, 2018)]
[Proposed Rules]
[Pages 65323-65326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27508]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[DOD-2018-HA-0028]
RIN 0720-AB72


TRICARE; Addition of Physical Therapy Assistants and Occupational 
Therapy Assistants as TRICARE-Authorized Providers

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

ACTION: Proposed rule.

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SUMMARY: The Department of Defense is publishing this proposed rule to 
add certified or licensed physical therapy assistants (PTAs) and 
occupational therapy assistants (OTAs) as TRICARE-authorized providers 
to engage in physical therapy or occupational therapy under the 
supervision of a TRICARE-authorized physical therapist or occupational 
therapist in accordance with Medicare's rules for supervision and 
qualification when billed by under the supervising therapist's national 
provider identification number. This rule will align TRICARE with 
Medicare's policy, which permits PTAs or OTAs to provide physical or 
occupational therapy when supervised by and billed under a licensed or 
certified physical therapist or occupational therapist.

DATES: Written comments received at the address indicated in the 
ADDRESSES section by February 19, 2019 will be accepted.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) number and title, by either of the 
following methods:
    <bullet> Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Mail: Department of Defense, Office of the Chief 
Management Officer, Directorate for Oversight and Compliance, 
Regulatory and Advisory Committee Division, 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 on the 
internet at http://www.regulations.gov as they are received without 
change, including any

[[Page 65324]]

personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Erica Ferron, Defense Health Agency, 
Medical Benefits and Reimbursement Division, 303-676-3626 or 
<a href="/cdn-cgi/l/email-protection#6e0b1c070d0f400d40080b1c1c0100400d07182e030f070240030702"><span class="__cf_email__" data-cfemail="6702150e040649044901021515080949040e11270a060e0b490a0e0b">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary and Overview

A. Purpose of the Proposed Rule

    This proposed rule implements section 721 of the National Defense 
Authorization Act for Fiscal Year 2018 (NDAA-18), and advances two of 
the components of the Military Health System's quadruple aim of 
improved readiness and better health. The TRICARE Basic benefit 
currently includes physical therapy (PT) and occupational therapy (OT) 
services rendered by TRICARE-authorized providers within the scope of 
their license when prescribed and monitored by a physician, certified 
physician assistant, or certified nurse practitioner. Allowing 
authorized physical therapists and occupational therapists to include 
as covered services those services of qualified assistants performing 
under their supervision may increase access to PT and OT services, and 
increase beneficiary choice in provider selection. Physical therapists 
and occupational therapists will be available to attend to more complex 
tasks for TRICARE beneficiaries, delegating to assistants simpler tasks 
for which they are licensed or certified to carry out. Adding coverage 
of services by authorized therapy assistants increases access at the 
same time the Agency anticipates that an active and aging beneficiary 
population will increasingly use these services.

B. Summary of the Major Provisions of the Proposed Rule

    The major provisions of the proposed rule are:
    [rtarr8] The addition of licensed or certified PTAs as TRICARE-
authorized providers, operating under the same qualifications 
established by Medicare (42 Code of Federal Regulations (CFR) 484.4). 
Services must be furnished under the supervision of and billed by a 
licensed or certified TRICARE-authorized physical therapist.
    [rtarr8] The addition of licensed or certified OTAs as TRICARE-
authorized providers, operating under the same qualifications 
established by Medicare (42 CFR 484.4). Services must be furnished 
under the supervision of and billed by a licensed or certified TRICARE-
authorized occupational therapist.

C. Costs and Benefits

    PT and OT services are covered benefits of the TRICARE program, 
authorized at 32 CFR 199.4. We estimate that as a result of this rule, 
there will be a one-percent increase in the use of PT and OT services. 
The cost of increased utilization, along with first-year implementation 
costs of $350,000, is estimated at $20 million over five years.
    The financial effect of this rule is not in the nature of economic 
costs or imposition of private expenditures to comply with Federal 
regulations. Rather, the rule involves fairly modest changes in federal 
health benefits payments. Consistent with OMB Circular A-4, such 
economic effects are considered ``transfer payments'' caused by Federal 
budget action, rather than regulatory benefits or costs that require 
additional analysis.

II. Discussion of Proposed Rule

A. Introduction and Background

    Title 32 CFR 199.4(c)(3)(x) states that assessment and treatment 
services of a TRICARE authorized physical therapist or occupational 
therapist may be cost-shared under certain conditions when prescribed 
and monitored by a physician, certified physician assistant, or 
certified nurse practitioner. In addition, 32 CFR 
199.6(c)(3)(iii)(K)(2) recognizes licensed registered physical 
therapists and licensed registered occupational therapists as TRICARE 
authorized providers when PT and OT services meet the conditions and 
are prescribed and monitored as described in the previous sentence. 
This rule proposes to extend coverage of PT and OT services, as 
required by NDAA-18, to include services provided by licensed or 
certified physical or occupational therapy assistants operating under 
the supervision of a TRICARE-authorized physical therapist or 
occupational therapist.
    PTAs--Qualifications
    PTAs typically hold an associate's degree in physical therapy and 
provide therapeutic interventions such as posture stabilization and 
therapeutic massage, but may not evaluate patients or create or alter 
treatment plans. This rule proposes to tie the qualifications of PTAs 
under the TRICARE program to Medicare's requirements as codified at 42 
CFR 484.4.
PTAs--Supervision Requirements
    Under this rule, TRICARE's supervision requirements match 
Medicare's. The DHA intends, in implementing instructions, to follow 
Medicare's requirements as found within Medicare's Benefit Policy 
Chapter 15.6 Part C and other issuances regarding supervision of PTAs. 
Direct supervision (i.e., the supervising physical therapist is in the 
room with the PTA) will be required in a private practice setting, 
whereas general supervision (i.e., the supervising physical therapist 
is not present but is available and remains responsible for the course 
of treatment) will be required in most other instances. In cases of 
general supervision, the supervising physical therapist will be 
required to make an onsite supervisory visit at least once every 30 
days. In cases where state or local supervision laws are more 
stringent, the DHA will require physical therapists and the PTAs they 
supervise to follow state or local laws. Services provided by physical 
therapy aides or other personnel, even if under the supervision of a 
qualified physical therapist or physical therapy assistant, are not 
covered. Services provided by PTAs incident to services provided by 
physicians or other licensed or qualified providers other than physical 
therapists are not covered, as only physical therapists can supervise 
PTAs. If Medicare makes changes to its supervision requirements, the 
DHA will evaluate the changes and determine whether to make similar 
changes; any changes deemed appropriate shall be added to the 
implementing instructions.
PTAs--Reimbursement Requirements
    This rule proposes to require services provided by the TRICARE-
authorized PTA to be billed under the TRICARE-authorized supervising 
physical therapist's provider identification (ID). The DHA intends, in 
implementing instructions, to follow Medicare's requirements as found 
within Medicare's Benefit Policy Chapter 15.6 Part C and other 
issuances regarding reimbursement of services provided by PTAs. 
Services provided by a PTA above the skill-level of a PTA shall not be 
reimbursed. This includes, but is not limited to, evaluations and re-
evaluations. Services provided by a PTA beyond the scope permitted by 
state or local law shall not be reimbursed.
OTAs--Qualifications
    Occupational therapy assistants (OTAs) typically hold an 
associate's degree in occupational therapy and provide therapeutic 
interventions such as assisting in the development of motor skills in 
children with developmental disabilities or aiding adults in overcoming 
work-related injuries. OTAs may not evaluate patients or create or 
alter treatment plans. This rule proposes to tie the qualifications of 
OTAs under the TRICARE program to Medicare's

[[Page 65325]]

requirements as codified at 42 CFR 484.4.
OTAs--Supervision Requirements
    Under this proposed rule, TRICARE's supervision requirements match 
Medicare's. The DHA intends, in implementing instructions, to follow 
Medicare's requirements as found within Medicare's Benefit Policy 
Chapter 15.6 Part C and other issuances regarding supervision of OTAs. 
Direct supervision (i.e., the supervising occupational therapist is in 
the room with the OTA) will be required in a private practice setting, 
whereas general supervision (i.e., the supervising occupational 
therapist is not present but is available and remains responsible for 
the course of treatment) will be required in most other instances. In 
cases of general supervision, the supervising occupational therapist 
will be required to make an onsite supervisory visit at least once 
every 30 days. In cases where state or local supervision laws are more 
stringent, the DHA will require occupational therapists and the OTAs 
they supervise to follow state or local laws. Services provided by 
occupational therapy aides or other personnel, even if under the 
supervision of a qualified occupational therapist or occupational 
therapy assistant, are not covered. Services provided by OTAs incident 
to services provided by physicians or other licensed or qualified 
providers other than occupational therapists are not covered, as only 
occupational therapists can supervise OTAs. If Medicare makes changes 
to its supervision requirements, the DHA will evaluate the changes and 
determine whether to make similar changes; any changes deemed 
appropriate shall be added to the implementing instructions.
OTAs--Reimbursement Requirements
    This rule proposes to require services provided by a TRICARE-
authorized OTA to be billed under the TRICARE-authorized supervising 
occupational therapist's provider ID. The DHA intends, in implementing 
instructions, to follow Medicare's requirements as found within 
Medicare's Benefit Policy Chapter 15.6 Part C and other issuances 
regarding reimbursement of services provided by OTAs. Services provided 
by an OTA above the skill-level of an OTA shall not be reimbursed. This 
includes, but is not limited to, evaluations and re-evaluations. 
Services provided by an OTA beyond the scope permitted by state or 
local law shall not be reimbursed.
Updated Referral Definition
    In order to fully implement section 721 of the NDAA for 2018, DHA 
is updating the definition of referrals to remove the limitation that 
only physicians can make referrals and to distinguish between necessary 
referrals for general benefit coverage and referrals required under 
TRICARE Prime for Prime enrollee care. All referral requirements are 
provided in the regulations and in the implementing instructions.

III. Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    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, of reducing costs, 
of harmonizing rules, and of promoting flexibility. A regulatory impact 
analysis (RIA) must be prepared for major rules with economically 
significant effects ($100 million or more in any one year).
    We estimate that the effects of the provisions that would be 
implemented by this proposed rule would have an impact of approximately 
$20 million over five years. As a result, this rule is not significant 
and is not a major rule under the Congressional Review Act.

Executive Order (E.O.) 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 proposed rule does not involve regulatory costs subject to E.O. 
13771.

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

    Section 202 of Public Law 104-4, ``Unfunded Mandates Reform Act,'' 
requires that an analysis be performed to determine whether any federal 
mandate may result in the expenditure by State, local and tribal 
governments, in the aggregate, or by the private sector of $100 million 
or more (adjusted annually for inflation) in any one year. The current 
threshold is approximately $140 million. We do not expect this proposed 
rule to result in any one-year expenditure that would meet or exceed 
this amount.

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

    Public Law 96-354, ``Regulatory Flexibility Act'' (RFA) (5 U.S.C. 
601), requires that each Federal agency prepare a regulatory 
flexibility analysis when the agency issues a regulation which would 
have a significant impact on a substantial number of small entities. 
This proposed rule is not an economically significant regulatory 
action, and it has been certified that it will not have a significant 
impact on a substantial number of small entities. Therefore, this 
proposed rule is not subject to the requirements of the RFA.

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

    This proposed rule does not contain a ``collection of information'' 
requirement, and does not impose additional information collection 
requirements on the public under Public Law 96-511, ``Paperwork 
Reduction Act'' (44 U.S.C. Chapter 35).

Executive Order 13132, ``Federalism''

    E.O. 13132, ``Federalism,'' requires that an impact analysis be 
performed to determine whether the rule has 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 power and responsibilities among the various levels of 
government. It has been certified that this proposed rule does not have 
federalism implications, as set forth in E.O. 13132.

List of Subjects in 32 CFR Part 199

    Administrative practice and procedure, Claims, Dental health, 
Fraud, 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 199.2 is amended by revising the definition of ``referral.''


Sec.  199.2   Definitions.

* * * * *
    Referral. The act or an instance of referring a TRICARE beneficiary 
to

[[Page 65326]]

another authorized provider to obtain necessary medical treatment. 
Generally, when a referral is required to qualify health care as a 
covered benefit, only a TRICARE-authorized physician may make such a 
referral unless this regulation specifically allows another category of 
TRICARE-authorized provider to make a referral as allowed within the 
scope of the provider's license. In addition to referrals which may be 
required for certain health care to be a covered TRICARE benefit, the 
TRICARE Prime program under Sec.  199.17 generally requires Prime 
enrollees to obtain a referral for care through a primary care manager 
(PCM) or other authorized care coordinator to avoid paying higher 
deductible and cost-sharing for otherwise covered TRICARE benefits.
* * * * *
0
3. Section 199.6 is amended by redesignating paragraph 
(c)(3)(iii)(K)(2)(ii) as paragraph (c)(3)(iii)(K)(2)(iii); revising 
paragraph (c)(3)(iii)(K)(2)(i); and adding a new paragraph 
(c)(3)(iii)(K)(2)(ii) to read as follows:


Sec.  199.6   TRICARE-authorized providers.

* * * * *
    (c) * * *
    (3) * * *
    (iii) * * *
    (K) * * *
    (2) * * *
    (i) Licensed registered physical therapist (PT), including a 
licensed or certified physical therapy assistant (PTA) performing under 
the supervision of a TRICARE-authorized PT. Services provided by a PTA 
shall be included in the fee of the supervising PT. PTAs shall meet the 
qualifications specified by Medicare (42 CFR 484.4) and the Director, 
DHA, shall issue policy adopting, to the extent practicable, Medicare's 
requirements for PTA supervision.
    (ii) Licensed registered occupational therapist (OT), including a 
licensed or certified occupational therapy assistant (OTA) performing 
under the supervision of a TRICARE authorized OT. Services provided by 
an OTA shall be included in the fee of the supervising OT. OTAs shall 
meet the qualifications specified by Medicare (42 CFR 484.4) and the 
Director, DHA, shall issue policy adopting, to the extent practicable, 
Medicare's requirements for OTA supervision.
* * * * *

    Dated: December 14, 2018.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2018-27508 Filed 12-19-18; 8:45 am]
 BILLING CODE 5001-06-P


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