Federal Register / Vol. 79, No. 250 / Wednesday, December 31, 2014 / Rules and Regulations 78703 

monthly, except as otherwise provided 

through administrative implementation, 

pursuant to procedures established by 

the Director, Healthcare Operations in 

the Defense Health Agency. The 

monthly rate for each month of a 

calendar year is one-twelfth of the 

annual rate for that calendar year. 

(1) Annual establishment of rates.—(i) 

TRICARE Retired Reserve monthly 

premium rates shall be established and 

updated annually on a calendar year 

basis by the ASD(HA) for each of the 

two types of coverage, member-only 

coverage and member-and-family 

coverage as described in paragraph 

(d)(1) of this section. 

* * * * * 

(d) Procedures. The Director, 

Healthcare Operations in the Defense 

Health Agency, may establish 

procedures for the following. 

(1) Purchasing Coverage. Procedures 

may be established for a qualified 

member to purchase one of two types of 

coverage: Member-only coverage or 

member and family coverage. Immediate 

family members of the Retired Reserve 

member as specified in paragraph (g)(2) 

of this section may be included in such 

family coverage. To purchase either type 

of TRICARE Retired Reserve coverage 

for effective dates of coverage described 

below, Retired Reserve members and 

survivors qualified under either 

paragraph (b)(1) or (b)(2) of this section 

must submit a request in the appropriate 

format, along with an initial payment of 

the applicable premium required by 

paragraph (c) of this section in 

accordance with established procedures. 

* * * * * 

(3) Suspension and Termination. 

Suspension/termination of coverage for 

the TRR member/survivor will result in 

suspension/termination of coverage for 

the member’s/survivor’s family 

members in TRICARE Retired Reserve, 

except as described in paragraph 

(d)(1)(iv) of this section. Procedures may 

be established for coverage to be 

suspended and/or terminated as 

follows. 

* * * * * 

(iii) Coverage may be suspended and 

finally terminated for members/

survivors who fail to make premium 

payments in accordance with 

established procedures. 

(iv) Coverage may be suspended and 

finally terminated for members/

survivors upon request at any time by 

submitting a completed request in the 

appropriate format in accordance with 

established procedures. 

(v) Under paragraph (d)(3)(iii) or 

(d)(3)(iv) of this section, TRICARE 

Retired Reserve coverage may first be 

suspended for a period of up to one year 

followed by final termination. 

Procedures may be established for the 

suspension to be lifted upon request 

before final termination is applied. 

* * * * * 

(f) Administration. The Director, 

Healthcare Operations in the Defense 

Health Agency may establish other rules 

and procedures for the effective 

administration of TRICARE Retired 

Reserve, and may authorize exceptions 

to requirements of this section, if 

permitted by law. 

* * * * * 

Dated: December 22, 2014. 

Aaron Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2014–30282 Filed 12–30–14; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 199 

[DOD–2013–HA–0164] 

RIN 0720–AB61 

TRICARE; Coverage of Care Related to 

Non-Covered Initial Surgery or 

Treatment 

AGENCY: Office of the Secretary, 

Department of Defense. 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

limitations on certain TRICARE basic 

program benefits. More specifically, it 

allows coverage for otherwise covered 

services and supplies required in the 

treatment of complications (unfortunate 

sequelae), as well as medically 

necessary and appropriate follow-on 

care, resulting from a non-covered 

incident of treatment provided pursuant 

to a properly granted Supplemental 

Health Care Program waiver. This final 

rule amends two provisions of the 

TRICARE regulations which limits 

coverage for the treatment of 

complications resulting from a noncovered incident of treatment, and 

which expressly excludes from coverage 

in the Basic Program services and 

supplies related to a non-covered 

condition or treatment. 

DATES: This final rule is effective 

January 30, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Thomas Doss (703) 681–7512. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

A. Purpose of Regulatory Action 

Need for the Regulatory Action 

This final rule is necessary for 

consistency with existing regulatory 

provisions and to protect TRICARE 

beneficiaries from incurring 

unnecessary financial hardships arising 

from the current regulatory restrictions 

that prohibit TRICARE coverage of the 

treatment of complications resulting 

from certain non-covered medical 

procedures. On occasion, an authorized 

official of a uniformed service may 

request from the Director, Defense 

Health Agency (DHA) a waiver of 

TRICARE regulatory restrictions or 

limitations, when the waiver is 

necessary to assure adequate availability 

of health care services to the active duty 

member. In those cases when a waiver 

has been properly granted under 

§ 199.16(f), this rule grants benefits 

coverage for otherwise covered services 

and supplies required for treating 

complications arising from the noncovered incident of treatment provided 

in the private sector pursuant to the 

waiver. Additionally, with respect to 

care that is related to a non-covered 

initial surgery or treatment, the final 

rule seeks to eliminate any confusion 

regarding what services and supplies 

will be covered by TRICARE and under 

what circumstances they will be 

covered. 

Legal Authority for the Regulatory 

Action 

This regulation is finalized under the 

authorities of 10 U.S.C. 1073, which 

authorizes the Secretary of Defense to 

administer the medical and dental 

benefits provided in 10 U.S.C. chapter 

55. The Department is authorized to 

provide medically necessary and 

appropriate treatment for mental and 

physical illnesses, injuries and bodily 

malfunctions, including hospitalization, 

outpatient care, drugs, treatment of 

medical and surgical conditions and 

other types of health care outlined in 10 

U.S.C. 1077(a). Although section 1077 

defines benefits to be provided in the 

Military Treatment Facilities (MTFs), 

these benefits are incorporated by 

reference into the benefits provided in 

the civilian health care sector to active 

duty family members and retirees and 

their dependents through sections 1079 

and 1086 respectively. 

B. Summary of the Final Rule 

The final rule amends the existing 

special benefit provision regarding 

complications (unfortunate sequelae) 

resulting from non-covered initial 


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surgery or treatment, to more clearly 

address what services and supplies will 

be covered by TRICARE and under what 

circumstances they will be covered. The 

provision itself is relabeled ‘‘Care 

related to non-covered initial surgery or 

treatment’’ to eliminate any confusion 

regarding what constitutes a 

complication or unfortunate sequelae 

and how broadly or narrowly the 

exclusion and exceptions to the 

exclusion should be applied. As 

amended, the regulatory section will 

specifically address coverage of 

otherwise covered medically necessary 

treatment, to include coverage of (i) 

treatment of complications that 

represent a separate medical condition; 

(ii) treatment of complications and 

necessary follow-on care resulting from 

a non-covered incident of treatment 

provided in an MTF; and (iii) treatment 

of complications and necessary followon care resulting from a non-covered 

incident of treatment provided pursuant 

to an approved Supplemental Health 

Care Program (SHCP) waiver. 

Additionally, the regulatory exclusion at 

§ 199.4(g)(63) is amended to state clearly 

that all services and supplies related to 

a non-covered condition or treatment, 

including any necessary follow-on care 

and treatment of complications, are 

excluded from coverage except as 

provided in § 199.4(e)(9). 

C. Costs and Benefits 

This final rule is not anticipated to 

have an annual effect on the economy 

of $100 million or more, making it a 

non-economically significant rule under 

Executive Order 12866 and non-major 

rule under the Congressional Review 

Act. All services and supplies 

authorized under the TRICARE Basic 

Program must be determined to be 

medically necessary in the treatment of 

an illness, injury or bodily malfunction 

before the care can be cost shared by 

TRICARE. For this reason, DoD 

anticipates that TRICARE will incur 

only a marginal increase in cost 

associated with the inclusion of 

coverage for treatment of complications 

and necessary follow-on care for 

TRICARE beneficiaries who received 

previously authorized non-covered 

treatment pursuant to a SHCP waiver 

while on active duty. 

I. Background 

A. Statutory and Regulatory Background 

Members of the uniformed services on 

active duty are entitled to medical and 

dental care pursuant to 10 U.S.C. 1074, 

including the provision of such care in 

private facilities. With respect to the 

purchase of private sector health care 

services for Active Duty Service 

Members (ADSMs) under the SHCP, 

§ 199.16 implements the statutory 

provision at 10 U.S.C. 1074(c). 

Generally, the same rules that govern 

payment and administration of private 

sector health care claims under 

TRICARE apply to the SHCP and the 

care that members receive in private 

facilities is comparable to coverage for 

medical care under the TRICARE Prime 

program. Section 199.16(f) provides the 

Director of DHA discretionary authority 

to waive requirements of TRICARE 

regulations, including any restrictions 

or limitations under the TRICARE Basic 

Program benefits, except those 

specifically set forth in statute, based on 

‘‘a determination that such waiver is 

necessary to assure adequate availability 

of health care to Active Duty members.’’ 

ADSMs have access to non-covered care 

including experimental or unproven 

medical care and treatments in the 

purchased care sector on a case-by-case 

basis using the SHCP waiver process. 

The Director, DHA, or designee 

specifically approves these case-by-case 

treatment decisions, resulting in a 

number of ADSMs receiving otherwise 

non-covered private sector care while 

serving. 

If an ADSM is granted a waiver under 

the SHCP to receive an otherwise noncovered incident of treatment by a 

private sector provider, rather than in an 

MTF, and suffers complications from 

the care, SHCP funds can be used to 

cover necessary follow-on care and 

treatment of complications in the 

purchased care system as long as the 

member remains on active duty. Once 

the member retires, however, SHCP 

coverage no longer exists and TRICARE 

does not cover unfortunate sequelae of 

non-covered care provided in the 

purchased care sector, except in limited 

circumstances (e.g. later complications 

that represent a separate medical 

condition separate from the condition 

that the non-covered treatment or 

surgery was directed toward, and the 

treatment of the complication is not 

essentially similar to the covered 

procedures. This may include a 

systemic infection, cardiac arrest, or 

acute drug reaction). Additionally, once 

the service member has retired, existing 

regulations would not allow the 

continuation of any needed follow-on 

care such as rehabilitative care or drug 

therapy. When these beneficiaries 

require such treatment, they are 

responsible for the payment for this 

necessary treatment, which may result 

in significant financial hardship. 

This rule resolves that unfortunate 

situation by allowing coverage of 

treatment for necessary follow-on care, 

including complications, resulting from 

non-covered treatment provided to 

beneficiaries pursuant to a SHCP 

waiver. The specific procedures for 

approval of this treatment will be 

addressed in the TRICARE Policy 

Manual to ensure that this information 

is current and easily accessible. 

TRICARE manuals may be accessed at 

http://www.tricare.mil. 

B. Summary of the Proposed Rule 

We proposed to amend the existing 

special benefit provision regarding 

complications (unfortunate sequelae) 

resulting from non-covered initial 

surgery, to more clearly address what 

services and supplies will be covered by 

TRICARE and under what 

circumstances they will be covered. We 

also proposed to re-label the regulatory 

provision to read: ‘‘Care related to noncovered initial surgery or treatment’’ to 

eliminate any confusion regarding what 

constitutes a complication or 

unfortunate sequelae and how broadly 

or narrowly the exclusion and 

exceptions to the exclusion would be 

applied. As amended, the regulatory 

section would specifically address 

coverage of otherwise covered medically 

necessary treatment, to include (i) 

coverage of complications that represent 

a separate medical condition; (ii) 

treatment of complications and 

necessary follow-on care resulting from 

a non-covered incident of treatment 

provided in an MTF; and (iii) treatment 

of complications and necessary followon care resulting from a non-covered 

incident of treatment provided pursuant 

to an approved SHCP waiver. Inclusion 

of the third prong would support the 

provision of care necessary to allow 

members to return to full duty and/or 

reach their maximum rehabilitative 

potential without requiring the member 

to bear the sole financial risk for 

unfortunate sequelae once they are no 

longer on active duty. This amendment 

would also provide consistent treatment 

of unfortunate sequelae and necessary 

follow-on care when an original episode 

of non-covered care is provided for a 

valid governmental purpose, whether to 

support Graduate Medical Education 

(GME) and maintain provider skill 

levels within an MTF or an ADSM’s 

fitness for duty through authorization of 

the purchase of otherwise non-covered 

care via an SHCP waiver. Additionally, 

we proposed to amend the regulatory 

exclusion at § 199.4(g)(63) to clearly 

state that all services and supplies 

related to a non-covered condition or 

treatment, including any necessary 

follow-on care and treatment of 

complications, would be excluded from 


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coverage except as provided in 

§ 199.4(e)(9). 

C. Summary of the Final Rulemaking 

Modifications to the TRICARE Basic 

Program Benefits 

Under the TRICARE private sector 

health care program, certain conditions 

and treatments are excluded from 

coverage. For example, any drug, 

device, medical treatment, or procedure 

whose safety and efficacy has not been 

established by reliable evidence is 

considered unproven and excluded 

from coverage. This exclusion includes 

all services directly related to the 

unproven drug, device, medical 

treatment or procedure. Specifically, 

benefits for otherwise covered services 

and supplies that are required in the 

treatment of complications (unfortunate 

sequelae) resulting from a non-covered 

incident of treatment, are generally 

excluded from TRICARE coverage 

pursuant to § 199.4(e)(9), unless the 

complication represents a separate 

medical condition such as a systemic 

infection, cardiac arrest, and acute drug 

reaction. TRICARE also excludes any 

needed follow-on care resulting from a 

non-covered condition or initial surgery 

or treatment pursuant to § 199.4(g)(63). 

There is currently one exception to 

this general exclusion, found at 

§ 199.4(e)(9)(ii), which allows coverage 

of otherwise covered services and 

supplies required in the treatment of 

complications (unfortunate sequelae) 

resulting from a non-covered incident of 

treatment provided in a MTF, when the 

initial non-covered service has been 

authorized by the MTF Commander and 

the MTF is unable to provide the 

necessary treatment of the 

complications. This current exception 

recognizes that in order to support GME 

and maintain provider skill levels, MTF 

providers are required to perform 

medical procedures that may be 

excluded from coverage under the 

TRICARE private sector program. This 

coverage provision was viewed as 

necessary to protect TRICARE 

beneficiaries from incurring financial 

hardships in such cases. 

Currently, Active Duty Service 

Members (ADSMs) may receive noncovered TRICARE private sector health 

care services under the SHCP if a waiver 

is submitted through the Service and 

approved by the Director, DHA, or 

designee, in accordance with § 199.6(f). 

While the Department wants to ensure 

that Service members have access to the 

latest, promising medical technologies 

and procedures, there must be assurance 

that the care is safe and effective, and 

that members are not subjected to undue 

risk, or rendered unfit for continued 

service, due to complications suffered 

because of unproven medical care. 

Consequently, requests for non-covered 

procedures and treatments, including 

unproven care, are carefully reviewed in 

conjunction with other available, 

proven treatments, if any exist, to 

determine whether approval of the 

requested care is necessary to assure the 

adequate availability of health care to 

the member. Currently, Service 

members are counseled that the 

treatment remains a non-covered 

TRICARE benefit, and that any followon care, including care for 

complications, will not be covered by 

TRICARE once the member separates or 

retires. Members are left to make a 

difficult choice between pursuing a 

SHCP waiver in an effort to remain fit 

for full duty while assuming the 

financial risk of any necessary follow-on 

care after discharge, or, electing not to 

receive the care and risk separation from 

the Service. 

Like the existing exception at 

§ 199.4(e)(9)(ii) for non-covered care 

provided in a MTF, this exception is 

narrowly tailored to serve a similar 

government interest; namely, protecting 

former active duty members who have 

received private sector care pursuant to 

a SHCP waiver in an effort to ensure 

their fitness for duty and continued 

service. 

Additionally, some confusion has 

arisen regarding the terms 

‘‘complication’’ and ‘‘unfortunate 

sequelae’’ as these terms are not 

currently defined in regulation. 

Questions have arisen with respect to 

whether necessary follow-on care 

resulting from a non-covered procedure 

or treatment in an MTF is covered in 

situations where the MTF is unable to 

provide the necessary treatment. The 

intent of the prior September 16, 2011, 

final rule, as well as this final rule, is 

to protect TRICARE beneficiaries from 

incurring financial hardships in limited 

circumstances, which serve valid 

governmental purposes. Absent an 

exception to the general exclusion from 

coverage, treatment of adverse 

outcomes, both expected and 

unexpected, as well as any necessary 

follow-on care that is a direct result of 

the initial non-covered treatment, are 

excluded and could result in less than 

optimal care (e.g., not receiving 

necessary physical therapy following 

surgery) and/or a significant financial 

hardship for the beneficiary. The 

Agency did not intend to prevent 

coverage of necessary follow-on private 

sector care in situations where an MTF 

is unable to provide that care but the 

current regulatory language is subject to 

such a narrow interpretation absent 

additional clarification. This final rule 

permits coverage of necessary continued 

treatment, such as physical therapy 

following a non-covered surgical 

procedure in an MTF. It also covers 

medically necessary follow-on care, 

including, for example, anti-rejection 

medications for former members who 

have received face and hand 

transplants. This rule eliminates the 

need to try to determine whether the 

medically necessary and appropriate 

care the patient is seeking from the 

private sector is considered treatment of 

an expected complication, an 

unexpected complication or routine 

follow-on care, because it will be clearly 

covered. 

II. Summary of and Responses to Public 

Comments 

The proposed rule was published in 

the Federal Register (78 FR 62506) 

October 22, 2013, for a 60-day comment 

period. We received comments on the 

proposed rule from three commenters. 

Comments: Two commenters 

expressed general support for TRICARE 

expressly covering otherwise medically 

necessary treatment resulting from a 

non-covered incident of treatment 

provided pursuant to an approved SHCP 

waiver. They supported the policy 

objective of reducing financial risk for 

unfortunate sequelae once service 

members are no longer on active duty. 

One commenter stated further that 

TRICARE should cover all of the 

medical procedures that beneficiaries 

need. The second commenter, in 

addition to expressing support for the 

proposed change, emphasized the need 

for a properly approved SHCP waiver. 

Response: We appreciate the 

commenters’ support of this regulatory 

proposal. We would note that the 

comment pertaining to coverage of all 

medical procedures that beneficiaries 

need exceeds the scope of this Final 

Rule. Moreover, current TRICARE 

regulations already address those 

circumstances under which TRICARE is 

statutorily authorized to provide 

coverage. We also point out that the 

Defense Health Agency issues waivers 

infrequently and with careful 

consideration to ensure that the member 

has access to medically necessary 

treatment. In these circumstances, SHCP 

waivers are only issued when necessary 

to ensure that health care services are 

adequately available to active duty 

service members. 

Comment: One commenter observed 

that the Proposed Rule deleted the 

reference to ‘‘transsexual surgery’’ and 

‘‘repair of a prolapsed vagina in a 

biological male who had undergone 


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transsexual surgery’’ in the regulation 

text for § 199.4(e)(9)(i). The commenter 

queried whether we were proposing a 

change in policy regarding transsexual 

procedures. 

Response: The proposed deletions in 

the regulation text of the proposed rule 

were intended to be strictly stylistic and 

not intended to reflect any change in 

policy regarding transsexual procedures. 

TRICARE continues not to cover 

transsexual surgery and consequently 

would not cover complications similar 

to the initial episode of non-covered 

care, such as the repair of a prolapsed 

vagina in a biological male who had 

undergone transsexual surgery. The 

statutory prohibition at 10 U.S.C. 

1079(a)(12) continue to apply. The one, 

very limited exception to this general 

exclusion is that TRICARE may cover 

surgery and related medically necessary 

services performed to correct sex gender 

confusion (that is, ambiguous genitalia) 

which has been documented to be 

present at birth. 

In the proposed rule, we 

acknowledged that some confusion had 

arisen in the industry regarding the 

terms ‘‘complication’’ and ‘‘unfortunate 

sequelae’’ because the terms were not 

defined in regulation. While not 

defining the terms in the regulation text, 

we did further explain and clarify the 

intended scope of excluded treatment of 

complications and unfortunate sequelae 

resulting from non-covered initial 

surgery or treatment, to include 

expected and unexpected 

complications, as well as any necessary 

follow-on care that is a direct result of 

the initial non-covered treatment, absent 

an exception to the exclusion. We 

explained that in § 199.4(e)(9)(ii), for 

instance, the Agency did not intend to 

prevent coverage of necessary follow-on 

private sector care in situations where 

an MTF was unable to provide that care 

but the MTF Commander had 

authorized the initial noncovered 

service. To clarify the intended scope of 

the excluded treatment of complications 

or unfortunate sequelae, this rule adds 

‘‘including any necessary follow-on care 

or the treatment of complications’’ in 

§ 199.4(g)(63), and ‘‘and any necessary 

follow-on care’’ in § 199.4(e)(9)(ii). 

Comment: We received one comment 

supporting our amendments to the 

regulations which clarify that the 

treatment of complications or 

unfortunate sequelae includes necessary 

follow-on care. The commenter felt that 

the Agency should withhold coverage of 

treatment for secondary complications 

when the initial procedure was purely 

elective and did not serve a legitimate 

national defense purpose. The 

commenter also recommended the 

adoption of a regulatory definition of 

‘‘complication,’’ relying perhaps on a 

definition of the term used by private 

health insurers. 

Response: We appreciate the 

commenter’s support of our clarifying 

amendments to the two regulatory 

provisions. While we will take under 

advisement proposing a regulatory 

definition of ‘‘complication’’ in the 

future, at this time we believe that the 

amendments in this rule will be 

adequate to clarify our intended 

meaning of the term and allow us to 

retain the necessary flexibility when 

implementing these regulations. The 

Agency is also reluctant to classify 

levels of ‘‘complications’’ as primary or 

secondary, or consider the purpose for 

which non-covered treatment was 

provided. These proposals would add 

an unnecessary degree of complexity to 

this regulatory structure, or 

alternatively, would require the Agency 

to exceed the bounds of its statutory 

authority. 

Comment: A commenter 

recommended that the Agency 

specifically exclude certain initial 

procedures from TRICARE coverage. 

Response: This comment exceeds the 

scope of this final rule, and we will 

therefore not exclude from TRICARE 

coverage any initial procedures 

specified in the comment. 

As a final matter, we are finalizing 

corrections in the regulatory text for 

§ 199.4(e)(9)(ii) and (iii), including 

substituting references to the Director, 

DHA, in lieu of the Director, TMA, and 

the change from ‘‘§ 199.6(f) of this 

chapter’’ to ‘‘§ 199.16(f)’’ in 

§ 199.4(e)(9)(iii). We are making the first 

non-substantive change for consistency 

with recent changes to the structure of 

the DoD. Section 731 of the National 

Defense Authorization Act for FY 2013 

directed the Secretary of Defense to 

develop a plan carry out the reforms of 

the governance of the military health 

system, previously outlined in a March 

2, 2012, Deputy Secretary of Defense 

memorandum. As described in a March 

11, 2013, Deputy Secretary of Defense 

memorandum, the centerpiece of the 

governance reform was the 

establishment of a Defense Health 

Agency (DHA) which would, among 

other responsibilities, assume the 

designated functions of the TMA, which 

was being disestablished. Subsequently, 

the Department of Defense published 

Directive 5136.13 (published September 

30, 2013), which provided that any 

reference in law, rule, regulation, or 

issuance to TMA will be deemed to be 

a reference to DHA, unless otherwise 

specified by the Secretary of Defense, 

and further, that the Director, DHA, will 

serve as the program manager for 

TRICARE health and medical resources, 

as directed by the ASD(HA) and within 

the established MHS governance 

process. The reference to Director, DHA, 

in these two regulatory sections will 

clarify the provisions and ensure 

consistency with the current meaning of 

the existing regulations. The second 

non-substantive change clarifies a cross 

reference to ‘‘§ 199.16(f).’’ The proposed 

rule inaccurately referred to ‘‘§ 199.16(f) 

of this chapter.’’ In our view, these 

textual corrections do not constitute a 

rulemaking that would be subject to the 

APA notice and comment or delayed 

effective date requirements. 

Provisions of the Final Rule 

Because all comments that were 

within the scope of this rulemaking 

supported the proposed regulation 

changes, we are finalizing the proposed 

rule, with the exception of the nonsubstantive text corrections discussed 

above. The final rule amends the 

existing special benefit provision 

regarding complications (unfortunate 

sequelae) resulting from non-covered 

initial surgery. It re-labels the regulatory 

provision to read: ‘‘Care related to noncovered initial surgery or treatment.’’ It 

amends § 199.4(e)(9) to provide 

coverage for otherwise covered services 

and supplies required in the treatment 

of complications resulting from a 

noncovered incident of treatment: (i) 

But only if the later complication 

represented a separate medical 

condition; or (ii) if the noncovered 

incident of treatment was provided in 

an MTF, had been authorized by the 

MTF Commander, and the MTF was 

unable to provide the necessary 

treatment of the complications; or (iii) if 

the noncovered incident of treatment 

was provided in the private sector 

pursuant to a properly granted waiver 

under § 199.16(f). This final rule also 

amends the regulatory exclusion at 

§ 199.4(g)(63) to state that all services 

and supplies related to a non-covered 

condition or treatment, including any 

necessary follow-on care and treatment 

of complications, will be excluded from 

coverage except as provided in 

§ 199.4(e)(9). 

III. Regulatory Procedure 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review’’ 

It has been determined that this final 

rule is not a significant regulatory 

action. This rule does not: 

(1) Have an annual effect on the 

economy of $100 million or more or 


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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 tribunal 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. 

Unfunded Mandates Reform Act (Sec. 

202, Pub. L. 104–4) 

It has been determined that this final 

rule does not contain a Federal mandate 

that may result in the expenditure by 

State, local and tribal governments, in 

aggregate, or by the private sector, of 

$100 million or more in any one year. 

Public Law 96–354, ‘‘Regulatory 

Flexibility Act’’ (5 U.S.C. 601) 

It has been certified 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. Set 

forth in the final rule are minor 

revisions to the existing regulation. The 

DoD does not anticipate a significant 

impact on the Program. 

Public Law 96–511, ‘‘Paperwork 

Reduction Act’’ (44 U.S.C. Chapter 35) 

It has been determined that this final 

rule does not impose reporting or 

recordkeeping requirements under the 

Paperwork Act of 1995. 

Executive Order 13132, Federalism 

It has been determined that this final 

rule does not have federalism 

implications, as set forth in Executive 

Order 13132. This rule does not have 

substantial direct effects on: 

(1) The States; 

(2) The relationship between the 

National Government and the States; or 

(3) The distribution of power and 

responsibilities among the various 

levels of Government. 

List of Subjects in 32 CFR Part 199 

Claims, Dental health, Health care, 

Health insurance, Individuals with 

disabilities, and Military personnel. 

Accordingly, 32 CFR part 199 is 

amended to read as follows: 

PART 199—[AMENDED] 

■ 1. The authority citation for part 199 

continues to read as follows: 

Authority: 5 U.S.C. 301; 10 U.S.C. chapter 

55. 

■ 2. Section 199.4 is amended by 

revising paragraphs (e)(9) and (g)(63) to 

read as follows: 

§ 199.4 Basic program benefits. 

* * * * * 

(e) * * * 

(9) Care related to non-covered initial 

surgery or treatment. (i) Benefits are 

available for otherwise covered services 

and supplies required in the treatment 

of complications resulting from a noncovered incident of treatment (such as 

nonadjunctive dental care or cosmetic 

surgery) but only if the later 

complication represents a separate 

medical condition such as a systemic 

infection, cardiac arrest, and acute drug 

reaction. Benefits may not be extended 

for any later care or a procedure related 

to the complication that essentially is 

similar to the initial non-covered care. 

Examples of complications similar to 

the initial episode of care (and thus not 

covered) would be repair of facial 

scarring resulting from dermabrasion for 

acne. 

(ii) Benefits are available for 

otherwise covered services and supplies 

required in the treatment of 

complications (unfortunate sequelae) 

and any necessary follow-on care 

resulting from a non-covered incident of 

treatment provided in an MTF, when 

the initial non-covered service has been 

authorized by the MTF Commander and 

the MTF is unable to provide the 

necessary treatment of the 

complications or required follow-on 

care, according to the guidelines 

adopted by the Director, DHA, or a 

designee. 

(iii) Benefits are available for 

otherwise covered services and supplies 

required in the treatment of 

complications (unfortunate sequelae) 

and any necessary follow-on care 

resulting from a non-covered incident of 

treatment provided in the private sector 

pursuant to a properly granted waiver 

under § 199.16(f). The Director, DHA, or 

designee, shall issue guidelines for 

implementing this provision. 

* * * * * 

(g) * * * 

(63) Non-covered condition/

treatment, unauthorized provider. All 

services and supplies (including 

inpatient institutional costs) related to a 

non-covered condition or treatment, 

including any necessary follow-on care 

or the treatment of complications, are 

excluded from coverage except as 

provided under paragraph (e)(9) of this 

section. In addition, all services and 

supplies provided by an unauthorized 

provider are excluded. 

* * * * * 

Dated: December 22, 2014. 

Aaron Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2014–30307 Filed 12–30–14; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 199 

[DOD–2013–HA–0053] 

RIN 0720–AB59 

TRICARE Program; Clarification of 

Benefit Coverage of Durable 

Equipment and Ordering or 

Prescribing Durable Equipment; 

Clarification of Benefit Coverage of 

Assistive Technology Devices Under 

the Extended Care Health Option 

Program 

AGENCY: Office of the Secretary, DoD. 

ACTION: Final rule. 

SUMMARY: This final rule modifies the 

TRICARE regulation to add a definition 

of assistive technology (AT) devices for 

purposes of benefit coverage under the 

TRICARE Extended Care Health Option 

(ECHO) Program and to amend the 

definitions of durable equipment (DE) 

and durable medical equipment (DME) 

to better conform the language in the 

regulation to the statute. The final rule 

amends the language that specifically 

limits ordering or prescribing of DME to 

only a physician under the Basic 

Program, as this amendment will allow 

certain other TRICARE authorized 

individual professional providers, 

acting within the scope of their 

licensure, to order or prescribe DME. 

This final rule also incorporates a policy 

clarification relating to luxury, deluxe, 

or immaterial features of equipment or 

devices. That is, TRICARE cannot 

reimburse for the luxury, deluxe, or 

immaterial features of equipment or 

devices, but can reimburse for the base 

or basic equipment or device that meet 

the beneficiary’s needs. Beneficiaries 

may choose to pay the provider for the 

luxury, deluxe, or immaterial features if 

they desire their equipment or device to 

have these ‘‘extra features.’’ 

DATES: This rule is effective January 30, 

2015. 


tkelley on DSK3SPTVN1PROD with RULES