41636 Federal Register / Vol. 79, No. 137 / Thursday, July 17, 2014 / Rules and Regulations 

Issued in Renton, Washington, on June 19, 

2014. 

Michael Kaszycki, 

Acting Manager, Transport Airplane 

Directorate, Aircraft Certification Service. 

[FR Doc. 2014–16781 Filed 7–16–14; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[TD 9664] 

RIN 1545–BF80 

Section 67 Limitations on Estates or 

Trusts; Change of Effective Date 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Final regulations; amendment. 

SUMMARY: This document amends final 

regulations (TD 9664) that were 

published in the Federal Register on 

May 9, 2014. The final regulations 

provide guidance on which costs 

incurred by estates or trusts other than 

grantor trusts (non-grantor trusts) are 

subject to the 2-percent floor for 

miscellaneous itemized deductions 

under section 67(a) of the Internal 

Revenue Code. 

DATES: Effective Date: This amendment 

to the final regulations published on 

May 9, 2014 (79 FR 90), is effective on 

July 17, 2014. 

Applicability Date: For date of 

applicability, see § 1.67–4(d). 

FOR FURTHER INFORMATION CONTACT: 

Jennifer N. Keeney, (202) 317–6850 (not 

a toll-free number). 

SUPPLEMENTARY INFORMATION: 

Background 

The final regulations that are the 

subject of these amendments are under 

section 67 of the Internal Revenue Code. 

The final regulations (TD 9664) were 

published in the Federal Register on 

Friday, May 9, 2014 (79 FR 90). The 

final regulations applied to taxable years 

beginning on or after May 9, 2014. 

Need for Amendment 

The Treasury Department and the IRS 

received a comment raising concerns 

about the effective/applicability date of 

the regulations. As issued, the final 

regulations apply to taxable years 

beginning on or after May 9, 2014. 

Therefore, fiduciaries of existing trusts 

and calendar-year estates would 

implement the rules beginning January 

1, 2015. However, the rules would apply 

immediately to any non-grantor trust 

created after May 8, 2014, the estate of 

any decedent who dies after May 8, 

2014, and any existing fiscal-year estate 

with a taxable year beginning after May 

8, 2014. The commentator stated that 

the effective/applicability date in the 

regulations does not give fiduciaries of 

these trusts and estates sufficient time to 

implement the changes that are 

necessary to comply with the 

regulations. Specifically, the 

commentator is concerned about 

allowing fiduciaries sufficient time to 

design and implement the necessary 

program changes to determine the 

portion of a bundled fee that is 

attributable to costs that are subject to 

the 2-percent floor versus costs that are 

not subject to the 2-percent floor. In 

response to these comments, this 

document amends § 1.67–4(d) of the 

Final Regulations so that the regulations 

apply to taxable years beginning on or 

after January 1, 2015. 

List of Subjects in 26 CFR Part 1 

Income taxes, Reporting and 

recordkeeping requirements. 

Adoption of Amendments to the 

Regulations 

Accordingly, 26 CFR part 1 is 

amended as follows: 

PART 1—INCOME TAXES 

■ Paragraph 1. The authority citation 

for part 1 continues to read in part as 

follows: 

Authority: 26 U.S.C. 7805 * * * 

■ Par. 2. In § 1.67–4, paragraph (d) is 

revised read as follows: 

§ 1.67–4 Costs paid or incurred by estates 

or non-grantor trusts. 

* * * * * 

(d) Effective/applicability date. This 

section applies to taxable years 

beginning after December 31, 2014. 

Martin V. Franks, 

Branch Chief, Publications & Regulations 

Branch, Legal Processing Division, Associate 

Chief Counsel, (Procedure & Administration). 

[FR Doc. 2014–16834 Filed 7–16–14; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 199 

[DOD–2011–HA–0134] 

RIN 0720–AB55 

TRICARE Certified Mental Health 

Counselors 

AGENCY: Office of the Secretary, 

Department of Defense (DoD). 

ACTION: Final rule. 

SUMMARY: The Department of Defense is 

publishing this final rule to implement 

the TRICARE Certified Mental Health 

Counselor (TCMHC) provider type as a 

qualified mental health provider 

authorized to independently diagnose 

and treat TRICARE beneficiaries and 

receive reimbursement for services. 

Additionally, we are extending the time 

frame that was mentioned in the Interim 

Final Rule for meeting certain 

education, examination, and supervised 

clinical practice criteria to be 

considered for authorization as a 

TCMHC. The time frame has been 

changed from prior to January 1, 2015, 

to prior to January 1, 2017. One final set 

of criteria shall apply for the 

authorization of the TCMHC beginning 

January 1, 2017. The supervised mental 

health counselor (SMHC) provider type, 

while previously proposed to be 

terminated under TRICARE, is now 

continued indefinitely as an 

extramedical individual provider 

practicing mental health counseling 

under the supervision of a TRICAREauthorized physician. 

DATES: Effective Date: This rule is 

effective August 18, 2014. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Patricia Moseley, Defense Health 

Agency, Clinical Support Division, 

Behavioral Health Branch, 703–681– 

0064. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

A. Purpose of the Final Rule 

1. The Need for the Regulatory Action 

The purpose of this final rule is to 

prescribe regulations that will allow 

licensed or certified mental health 

counselors to be able to independently 

provide care to TRICARE beneficiaries 

and receive payment for those services. 

The final rule incorporates the 

recommendations of the Institute of 

Medicine (IOM) 2010 report for the 

independent practice of mental health 

counselors (MHCs) under TRICARE, 

including specific education, licensure, 


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examination, and supervised clinical 

practice experience requirements in 

order to become a TRICARE authorized 

independent provider. This final rule 

also provides for the continued 

authorization of Supervised Mental 

Health Counselors (SMHCs) as 

TRICARE authorized providers when 

practicing under physician referral and 

supervision. This important change to 

the interim final rule, will maintain 

continuity of care for those beneficiaries 

who are receiving services from SMHCs 

under the current system and will help 

to ensure a continued robust, quality 

provider pool for TRICARE beneficiaries 

to access when seeking medically 

necessary and appropriate mental health 

counseling services. Authorization of 

TCMHCs and SMHCs is part of a 

comprehensive quality-management 

system implemented by TRICARE for all 

mental health professionals. 

2. Legal Authority for the Regulatory 

Action 

The legal authority for this Final Rule 

is Section 724 of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year 2011, Public Law 111–383, which 

required the Department of Defense to 

prescribe regulations to establish the 

criteria that would allow licensed or 

certified mental health counselors to be 

able to independently provide care to 

TRICARE beneficiaries and receive 

payment for those services. 

B. Summary of the Major Provisions of 

the Final Rule 

1. Designation of ‘‘TRICARE Certified 

Mental Health Counselor (TCMHC)’’ as 

an Allied Health Professional Under 

TRICARE 

This final rule establishes a new 

category of individual professional 

providers of medical care under the 

TRICARE program entitled TRICARE 

Certified Mental Health Counselors 

(TCMHC). 

2. Under Basic Program Benefits, 

Services of TCMHCs and SMHCs Are 

Extended to Beneficiaries 

Under this final rule, beneficiaries are 

able to choose the services of a either a 

TCMHC who independently provides 

diagnostic and therapeutic services or a 

Supervised Mental Health Counselor 

(SMHC) who is authorized to provide 

mental health counseling pursuant to 

physician referral and ongoing 

supervision of the beneficiary’s care. 

This final rule rescinds the expiration 

date published in the IFR for phase-out 

the SMHC provider type. The rule also 

adds appropriate definitions in 32 CFR 

199.2 for SMHCs and TCMHCs. 

3. The Transition Period Is Extended to 

December 31, 2016, for a MHC To Meet 

the Currently Recognized Quality 

Standards Required for Independent 

Practice 

The date of the transition period 

established in the IFR is extended in the 

final rule and is changed accordingly 

throughout this rule. TCMHCs who are 

authorized during the transition period 

are not required to be reauthorized 

under the new criteria after January 1, 

2017. Additionally, MHCs who meet all 

certification requirements prior to the 

end of the transition period can apply 

for TRICARE authorization at any time 

after the transition period. Such 

authorization will be based on the 

certification requirements met prior to 

the end of the transition period. 

Providers who do not meet all of the 

certification requirements prior to the 

expiration of the transition period will 

be required to meet the quality 

standards recommended by the IOM 

and adopted by TRICARE, including 

possession of a master’s or higher-level 

degree from a Council for Accreditation 

of Counseling and Related Educational 

Programs (CACREP) accredited mental 

health counseling program of education 

and training as well as having passed 

the National Clinical Mental Health 

Counseling Examination (NCMHCE). 

4. Expansion of Providers Authorized 

To Supervise the Post-Master’s Clinical 

Practice for Authorization as a TCMHC 

This final rule modifies the criteria in 

the IFR to permit supervision of a 

prospective TCMHC’s post-master’s 

clinical practice experience. 

Supervision is no longer restricted to a 

mental health counselor licensed for 

independent practice in mental health 

counseling in the jurisdiction where 

practicing but may be gained from 

multiple, licensed independent mental 

health professionals, similar to industry 

standards. 

C. Costs and Benefits 

This rule is not anticipated to have an 

annual effect on the economy of $100 

million or more; therefore, it is not an 

economically significant rule under 

Executive Order 12866 and 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 have a marginal increase in cost 

associated with increased access to 

authorized mental health counselors 

within the TRICARE basic program. 

II. Discussion of Final Rule 

A. Background 

1. The Conference Report (House 

Report 109–360) to the National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2006, requested the 

Department of Defense to report on 

actions taken to improve the efficiency 

and effectiveness of procedures to 

facilitate physician referral and 

supervision of MHCs. The report 

included a description of ‘‘best 

practices’’ employed throughout the 

military health system (MHS) to ensure 

access to services provided by MHCs 

under the TRICARE program. The report 

concluded that there remained 

significant variability among the states 

in training programs and requirements 

for licensure as a MHC. The report 

stated that while there is evidence that 

the extent of training variability 

decreased over time, it continued to be 

evident that professional counselors 

licensed to practice had quite varying 

exposure to classroom education and 

supervised clinical experiences in the 

assessment and treatment of persons 

with mental disorders. 

2. Section 717 of the National Defense 

Authorization Act for Fiscal Year 2008, 

Public Law 111–181, directed the 

Secretary of Defense to conduct an 

independent study of the credentials, 

preparation, and training of individuals 

practicing as licensed MHCs and to 

make recommendations for permitting 

licensed MHCs to practice 

independently under the TRICARE 

program. In this study, the Institute of 

Medicine (IOM) of the National 

Academies of Science recommended 

allowing licensed MHCs who meet 

certain requirements for training, 

education, experience, certification, and 

licensure to practice independently 

under the TRICARE program. This final 

rule implements changes to 32 CFR Part 

199 largely based on those 

recommendations. 

3. Section 724 of the National Defense 

Authorization Act for Fiscal Year 2011, 

Public Law 111–383, required the 

Department of Defense to prescribe 

regulations that establish the criteria for 

the independent practice of mental 

health counselors, as previously studied 

by the IOM in accordance with Section 

717 of FY 2008 NDAA. As a result, the 

published Interim Final Rule— 

TRICARE: Certified Mental Health 

Counselors (76 Federal Register 80741– 

80744) requested 60 days of public 

comment from December 27, 2011 until 

February 27, 2012. In this final rule, 


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these criteria allow licensed or certified 

TCMHCs to independently provide care 

to TRICARE beneficiaries and receive 

payment for those services as do other 

allied health professionals listed in 32 

CFR 199.6(c)(3)(iii). 

B. Certification Criteria for TRICARE 

Certified Mental Health Counselor 

(TCMHC) Independent Practice Under 

TRICARE 

This final rule establishes certification 

criteria largely consistent with the 

recommendations of the Institute of 

Medicine (IOM) 2010 study, ‘‘Provision 

of Mental Health Counseling Services 

under TRICARE,’’ (http://www.iom.edu/ 

Reports/2010/Provision-of-MentalHealth-Counseling-Services-UnderTRICARE.aspx). The IOM 

recommendations specify that the 

independent practice of MHCs in 

TRICARE should occur under certain 

circumstances, to include: 

A master’s or higher level degree in 

counseling from a program in mental health 

counseling or clinical mental health 

counseling that is accredited by the Council 

for Accreditation of Counseling and Related 

Educational Programs (CACREP); a state 

license in mental health counseling at the 

‘clinical’ or the higher or highest level 

available in states that have tiered licensing 

schemes; the passage of the National Clinical 

Mental Health Counseling Examination; and 

a well-defined scope of practice for 

practitioners (p. 10). 

TRICARE adopts the quality standards 

recommended by the IOM. We 

understand the availability of CACREP 

accredited clinical mental health 

counseling training programs and the 

use of the NCMHCE examination as 

quality standards are not yet widespread 

in the field. To support this health care 

provider transition, the new quality 

standards for the independent practice 

of TCMHCs will not fully replace 

existing criteria, including regional 

accreditation of institution programs 

and passage of the National Counselor 

Exam (NCE), until January 1, 2017. 

While the IFR set an expiration date for 

authorization of SMHCs to coincide 

with the end of the transition period, 

this final rule specifies that TRICARE 

will continue authorization of SMHCs 

indefinitely to preserve access to care 

for our beneficiaries during and after the 

transition period. This will preserve 

patient access to an experienced and 

well-trained mental health professional 

provider group. At the same time, this 

final rule is designed to encourage 

greater participation of qualified MHCs 

to become independent TCMHCs and 

thus improve access to quality mental 

health treatment for our beneficiaries. 

C. Additional Revisions to the 

Regulations 

In reviewing the interim final rule, we 

realized that we inadvertently failed to 

update several other provisions of the 

regulation that reference ‘‘mental health 

counselors’’ to account for the 

expansion of provider types in this field 

and the different rules that apply to 

each. Consequently, in this final rule, 

we have deleted the definition of 

‘‘mental health counselor’’ from 32 CFR 

199.2 and replaced it with definitions of 

‘‘Supervised Mental Health Counselor’’ 

and ‘‘TRICARE Certified Mental Health 

Counselor.’’ We have also revised 32 

CFR 199.7(e)(3) to clearly indicate that 

claims for reimbursement for services of 

supervised mental health counselors 

must include certification to the effect 

that a written communication has been 

made or will be made to the referring 

physician at the end of treatment, or 

more frequently, as required by the 

referring physician. There is no similar 

requirement for TCMHCs as they are 

authorized to practice independently 

III. Public Comments 

The Interim Final Rule: TRICARE— 

Certified Mental Health Counselors was 

published in the Federal Register (76 

FR 80741–80744) on December 27, 

2011, for a 60-day public comment 

period. We received 404 public 

comments. Following is a summary of 

the public comments and our responses. 

Comment: A few commenters 

suggested a change from the title of 

Certified Mental Health Counselor 

(CMHC) as was the proposed title 

published in the Interim Final Rule, 

because the acronym, CMHC, is very 

similar to the National Board for 

Certified Counselor’s (NBCC) title for 

Certified Clinical Mental Health 

Counselor (CCMHC). 

Response: We agree and believe it is 

necessary to distinguish the titles to 

prevent confusion. Consequently, the 

final rule will use the title, TRICARE 

Certified Mental Health Counselor 

(TCMHC). 

Comment: Many commenters 

recommended independent provider 

status for qualified MHCs. Some 

commenters requested continuation of 

physician referral and supervision as a 

condition of authorization. 

Response: TRICARE appreciates the 

skills and professional experience of the 

MHCs seeking independent status and 

recognizes the depth of expertise 

represented by the current SMHC 

provider pool. With this final rule, 

TRICARE maintains a robust selection 

of extramedical provider types for 

beneficiaries, plus beneficiaries may 

now choose to receive medically 

necessary and appropriate care from a 

TCMHC without physician referral and 

supervision. Under the final rule, the 

criteria provider category of an SMHC 

will remain indefinitely. 

Comment: Multiple national 

organizations and individuals expressed 

concern about the time required to 

obtain counseling degrees, licensure, 

and supervised clinical practice hours 

and to prepare for the NCMHCE. These 

commenters requested additional time 

for current counseling graduate students 

to complete their degrees, gain 

supervised clinical practice hours, and 

pass national examinations in order to 

become authorized for independent 

practice under TRICARE. 

Response: We recognize that the 

combined education and examination 

criteria for authorization as a TCMHC 

may present a higher bar to the field of 

mental health counseling in some states. 

Consequently, the transition period has 

been extended until January 1, 2017, 

and this date is modified throughout the 

final rule. The final rule balances the 

implementation of quality standards for 

MHCs with beneficiary access to their 

services. This four year period allows 

completion of counseling degrees, 

supervised clinical practice hours, and 

licensure under the existing quality 

standards. MHCs who meet all of the 

criteria for TCMHCs prior to end of the 

transition period may apply for 

certification after the transition period, 

and this certification will be based on 

the criteria (c)(3)(iii)(N)(2). This 

extension also allows time for 

experienced MHCs and currently 

practicing SMHCs to pass the National 

Clinical Mental Health Counseling 

Examination (NCMHCE). This change 

aims to ensure the availability of wellqualified, independent providers for our 

beneficiaries. 

Comment: Some commenters 

suggested that any professional mental 

health discipline or state licensed 

professional counselors should be able 

to supervise the clinical practice of the 

MHC for TRICARE authorization as a 

TCMHC. A few commenters recommend 

supervisors use standards other than 

those of the American Mental Health 

Counselor Association (AMHCA) 

standards. 

Response: We appreciate these 

suggestions and have amended the Final 

Rule at 32 CFR 199.6(c)(3)(iii)(N)(1)(iii) 

and (2)(iii) to expand the types of 

providers authorized to supervise the 

post-master’s clinical practice for 

certification as a TCMHC. Supervision 

is no longer restricted to mental health 

counselors licensed for independent 

practice but may be gained from 


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multiple, licensed independent mental 

health professionals, including 

psychiatrists, clinical psychologists, 

certified clinical social workers, and 

certified psychiatric nurse specialists 

who are licensed for independent 

practice in the jurisdiction where 

practicing and who are practicing 

within the scope of their licenses. 

SMHCs and pastoral counselors, who 

require physician referral and 

supervision, as well as marriage and 

family therapists, do not meet the 

qualification criteria as supervisors for 

MHCs seeking authorization as 

TCMHCs. The final rule addresses 

supervised clinical practice that is 

provided in a manner consistent with 

the AMHCA guidelines specific to the 

knowledge, skills, and practice of 

mental health counseling. The 

Department of Defense has elected to 

adopt these standards, consistent with 

the IOM’s recommendation, as the 

AMHCA is the recognized national or 

professional association that sets the 

standards for the profession. 

Comment: Many commenters request 

that the licensed professional 

counselors (LPCs) be allowed to practice 

independently under TRICARE, for 

example, psychotherapists; school, 

career, substance abuse, and 

rehabilitation counselors; expressive 

arts therapists; and counseling 

psychologists and licensed 

psychological associates. 

Response: We appreciate these 

comments from individuals and 

professional organizations. We are 

aware that states allow specialty 

counseling areas to practice under the 

title of ‘‘licensed professional 

counselor’’ or similar titles and that 

educational requirements vary from 

state to state. The 2006 MHS Report to 

Congress and the 2010 IOM report noted 

that the great majority of the states do 

not require that a LPC graduate from a 

mental health specialty counseling 

program in order to be licensed to assess 

and treat persons with mental disorders. 

This final rule responds to the statutory 

requirement for the Department to 

prescribe criteria for the independent 

practice of licensed and certified mental 

health counselors. Thus, in the final 

rule TCMHCs are required to have 

specified education and training in 

order to diagnose and treat mental 

health conditions as individual 

professional providers of care. This final 

rule, however, also maintains SMHCs as 

a category of authorized TRICARE 

providers. Consequently, individuals, 

including some of those specifically 

identified by the commenters, who 

possess either a master’s degree in 

mental health counseling or an allied 

mental health field and meet all other 

SMHC criteria, may also serve as 

TRICARE authorized providers with 

physician referral and ongoing 

supervision. 

Comment: Several commenters 

recommend that TRICARE use a state 

license for authorization as a TCMHC. 

One commenter recommended that a 

state license alone should be sufficient 

as Medicaid and private insurance 

companies consider them sufficient for 

the practice of MHCs. Another 

commenter raised concerns that the 

criteria for authorizing TCMHCs will 

result in ‘‘separate regulations for the 

credentialing of mental health 

counselors’’ for Medicaid, Medicare, 

and TRICARE. 

Response: We appreciate these 

comments, but have determined that the 

final rule will adhere to the IOM (2010) 

recommendations that incorporate a set 

of four criteria (licensure, education, 

certification via examination, and 

clinical supervision), not the state 

license alone, for the independent 

practice of MHCs under TRICARE. The 

IOM Report discusses at greater length 

both independent and supervised 

practice under other federal programs. 

We would note that Medicare does not 

recognize licensed professional 

counselors as independent providers, so 

they are not directly reimbursed through 

the program. 

Comment: Some commenters asked 

whether TRICARE requires professional 

certification of a MHC. 

Response: Yes. Reference to 

professional licensure and certification 

was unintentionally omitted from the 

interim final rule. We appreciate the 

comment and have corrected this 

inadvertent exclusion for the final rule 

by adding relevant provisions at 32 CFR 

199.6(c)(3)(iii)(N)(1)(iv) and (2)(iv). 

Consistent with TRICARE requirements, 

professional certification is required 

when a jurisdiction does not issue a 

professional license [32 CFR 

199.6(c)(2)(ii)]. Currently, all states (but 

not all territories) issue professional 

licensure for MHCs. In 1993, 

professional certification by the 

National Academy of Certified Mental 

Health Counselors of the American 

Mental Health Counselors Association 

was placed in the National Board for 

Certified Counselors’ credentialing 

process. Thus the professional 

certification of Certified Clinical Mental 

Health Counselor is now required for 

authorization as a TCMHC or SMHC in 

those jurisdictions that do not issue a 

professional license. 

Comment: Multiple commenters 

proposed the acceptance of their own 

states’ or territories’ licensing criteria for 

the number of hours of post-master’s 

supervised clinical practice experience 

for the TCMHC. 

Response: As recognized by the IOM, 

state requirements and practices can 

vary considerably. The requirements for 

all TRICARE authorized providers are 

set forth by federal regulation, 

specifically 32 CFR 199.6, including 

professional licensure, certification, and 

any specific education, training, and 

experience necessary to promote the 

delivery of services by fully qualified 

individuals. By establishing uniform 

standards, TRICARE seeks to provide 

high quality behavioral health care 

delivered by well-trained clinicians. No 

compelling comments were submitted 

to change the final rule requirement for 

TCMHCs related to the hours of 

supervised clinical practice. 

Comment: A few commenters ask 

whether a master’s degree from an 

accredited on-line mental health or 

clinical mental health program met the 

criteria for independent practice under 

TRICARE. 

Response: The final rule makes no 

distinction between how a degree is 

earned, whether via distance learning or 

otherwise, as long as the provider has 

obtained a master’s or higher-level 

degree from an appropriately accredited 

mental health counseling program of 

education and training. We would note, 

however, at the present time that 

CACREP and other regional accrediting 

bodies accredit very few institutions’ 

programs that provide distance learning 

for mental health counseling. 

Comment: A few commenters 

recommended that the National 

Counselor Examination (NCE) should be 

the ‘‘key to eligibility,’’ not program 

accreditation. A few commenters 

expressed that either the NCE or the 

NCMHCE should be the accepted 

criteria for certification. Other 

commenters expressed appreciation that 

passage of the NCMHCE with 

graduation from a non-CACREP 

accredited program in mental health 

counseling is part of the eligibility 

criteria. 

Response: We appreciate these 

comments. TRICARE accepted the 

specific recommendations of the IOM 

for the independent practice of MHCs, 

to include accredited education as well 

as examination criteria. To ensure the 

availability of TCMHCs who meet these 

quality standards during the transition 

period, this final rule pairs the 

examinations with the education 

criteria. After the transition period, only 

the more rigorous examination of 

clinical knowledge of patient care, the 

NCMHCE, is accepted for authorization 

as a TCMHC. 


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Comment: A few commenters suggest 

that TRICARE certify graduates from all 

universities that the federal government 

approves and allocates federal 

education funds. Other commenters ask 

whether graduates of the Rehabilitation 

Services of America (RSA) educational 

programs are allowed to practice 

independently under TRICARE, since 

their scholarship program provides 

federal funding for grants. 

Response: The final rule makes no 

distinction as to which universities and 

educational programs receive federal 

funding. Appropriately accredited 

programs of education and training for 

clinical mental health counselors, will 

satisfy the educational requirements 

applicable to TCMHCs and SMHCs 

regardless of whether or not federal 

funding has been provided. Conversely, 

federal funding of programs that do not 

meet the specified educational and 

accreditation criteria will not serve to 

waive the applicable requirements. 

Additionally, we understand that the 

RSA oversees competitive grant 

programs designed to ensure that skilled 

personnel are available to service the 

rehabilitation needs of individuals with 

disabilities and that many discretionary 

grants are provided for master’s degrees 

in rehabilitation counseling (http://

www2.ed.gov/students/college/aid/

rehab/carcouns.html). Congress 

requested that the DoD prescribe criteria 

for the authorization of MHCs to 

practice independently under TRICARE. 

The Department does not intend to 

broaden the scope of this final rule to 

rehabilitation counselors who do not 

meet the criteria specified in the 

regulation for TCMHCs or SMHCs. 

Comment: Numerous commenters 

recommended a grandfathering clause to 

exempt a practicing MHC from meeting 

the criteria of the final rule. Others 

suggested the acceptance of each state’s 

license as the criteria for grandfathering. 

Some commenters specifically 

recommended grandfathering MHCs 

who have two to five years of 

supervised experience serving the 

military. 

Response: We believe the changes that 

have been made to the final rule to 

permit the continued practice of SMHCs 

under existing eligibility criteria, as well 

as the extension of the transition period 

for a MHC to meet the current quality 

standards, adequately address these 

comments while still ensuring the 

provision of high quality mental health 

care for beneficiaries, regardless of their 

location. Specifically, the transition 

period allows MHCs the time to meet 

the quality standards for independent 

practice and allows for the 

implementation of uniform criteria that 

are not gained by grandfathering. 

TRICARE recognizes that many mental 

health counselors and current SMHCs 

have graduated prior to the 

establishment of either the CACREP 

accreditation for mental health 

counseling programs or the National 

Board of Certified Counselor’s national 

examination for clinical mental health 

counselors. This final rule seeks to 

balance the implementation of quality 

standards for mental health counselors 

with beneficiary access to those 

services. 

IV. Regulatory Impact Analysis 

Overall Impact 

The Department has examined the 

impact of this final rule as required by 

Executive Orders (EOs) 12866 

(September 1993, Regulatory Planning 

and Review) and 13563 (January 18, 

2011, Improving Regulation and 

Regulatory Review), the Regulatory 

Flexibility Act (RFA) (September 19, 

1980, Pub. L. 96–354), the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4), and the Congressional Review 

Act [5 U.S.C. 804(2)]. 

1. 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, reducing costs, 

harmonizing rules, and 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 this rulemaking is not 

‘‘economically significant’’ as measured 

by the $100 million threshold and, 

hence, is not a major rule under the 

Congressional Review Act or the E.O.s. 

2. Congressional Review Act, 5 U.S.C. 

804(2) 

Under the Congressional Review Act, 

a major rule may not take effect until at 

least 60 days after submission to 

Congress of a report regarding the rule. 

A major rule is one that would have an 

annual effect on the economy of $100 

million or more or have certain other 

impacts. This Final rule is not a major 

rule under the Congressional Review 

Act. 

3. Public Law 96–354, ‘‘Regulatory 

Flexibility Act’’ (RFA), Title 5, U.S.C., 

Sec. 601 

The RFA requires agencies to analyze 

options for regulatory relief of small 

businesses if a rule has a significant 

impact on a substantial number of small 

entities. For purposes of the RFA, small 

entities include small businesses, 

nonprofit organizations, and small 

governmental jurisdictions. This 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 

rule is not subject to the requirements 

of the RFA. 

4. 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. 

5. 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 authorized and non-network 

providers will be coding and filing 

claims in the same manner as they 

currently are with TRICARE. 

6. 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. 

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: 


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Federal Register / Vol. 79, No. 137 / Thursday, July 17, 2014 / Rules and Regulations 41641 

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. In § 199.2, paragraph (b) is amended 

by removing the definition of ‘‘Mental 

health counselor’’ and adding the 

definitions of ‘‘Supervised mental 

health counselor’’ and ‘‘TRICARE 

certified mental health counselor’’ in 

alphabetical order to read as follows: 

§ 199.2 Definitions. 

* * * * * 

(b) * * * 

Supervised mental health counselor. 

An extramedical individual provider 

who meets the requirements outlined in 

§ 199.6. 

* * * * * 

TRICARE certified mental health 

counselor. An allied health professional 

who meets the requirements outlined in 

§ 199.6. 

* * * * * 

■ 3. Section 199.4 is amended by 

revising paragraph (c)(3)(ix)(A) to read 

as follows: 

§ 199.4 Basic program benefits. 

* * * * * 

(c) * * * 

(3) * * * 

(ix) * * * 

(A) Covered diagnostic and 

therapeutic services. Subject to the 

requirements and limitations stated, 

CHAMPUS benefits are payable for the 

following services when rendered in the 

diagnosis or treatment of a covered 

mental disorder by a CHAMPUSauthorized, qualified mental health 

provider practicing within the scope of 

his or her license. Qualified mental 

health providers are: Psychiatrists or 

other physicians; clinical psychologists, 

certified psychiatric nurse specialists, 

certified clinical social workers, 

certified marriage and family therapists, 

TRICARE certified mental health 

counselors, pastoral counselors under a 

physician’s supervision and supervised 

mental health counselors under a 

physician’s supervision. No payment 

will be made for any service listed in 

paragraph (c)(3)(ix)(A) of this section 

rendered by an individual who does not 

meet the criteria of § 199.6 for his or her 

respective profession, regardless of 

whether the provider is an independent 

professional provider or an employee of 

an authorized professional or 

institutional provider. 

* * * * * 

■ 4. Section 199.6 is amended by 

revising paragraphs (c)(3)(iii)(N) and 

(c)(3)(iv)(C) to read as follows: 

§ 199.6 TRICARE—authorized providers. 

* * * * * 

(c) * * * 

(3) * * * 

(iii) * * * 

(N) TRICARE certified mental health 

counselor. For the purposes of 

CHAMPUS, a TRICARE certified mental 

health counselor (TCMHC) must be 

licensed for independent practice in 

mental health counseling by the 

jurisdiction where practicing. In 

jurisdictions with two or more licenses 

allowing for differing scopes of 

independent practice, the licensed 

mental health counselor may only 

practice within the scope of the license 

he or she possesses. In addition, a 

TCMHC must meet the requirements of 

either paragraph (c)(3)(iii)(N)(1) or the 

requirements of paragraph 

(c)(3)(iii)(N)(2) of this section. 

(1) The requirements of this paragraph 

are that the TCMHC: 

(i) Must have passed the National 

Clinical Mental Health Counselor 

Examination (NCMHCE) or its successor 

as determined by the Director, TMA; 

and 

(ii) Must possess a master’s or higherlevel degree from a mental health 

counseling program of education and 

training accredited by the Council for 

Accreditation of Counseling and Related 

Educational Programs (CACREP); and 

(iii) Must have a minimum of two (2) 

years of post-master’s degree supervised 

mental health counseling practice 

which includes a minimum of 3,000 

hours of supervised clinical practice 

and 100 hours of face-to-face 

supervision. Supervision must be 

provided by mental health counselors at 

the highest level of state licensure, 

psychiatrists, clinical psychologists, 

certified clinical social workers, or 

certified psychiatric nurse specialists 

who are licensed for independent 

practice in the jurisdiction where 

practicing and who are practicing 

within the scope of their licenses. 

Supervised clinical practice must be 

received in a manner that is consistent 

with the guidelines regarding 

knowledge, skills, and practice 

standards for supervision of the 

American Mental Health Counselors 

Association; and 

(iv) Is licensed or certified for 

independent practice in mental health 

counseling by the jurisdiction where 

practicing (see paragraph (c)(2)(ii) of 

this section for more specific 

information). 

(2) The requirements of this paragraph 

are that the TCMHC, prior to January 1, 

2017: 

(i) Possess a master’s or higher-level 

degree from a mental health counseling 

program of education and training 

accredited by CACREP and must have 

passed the National Counselor 

Examination (NCE); or 

(ii) Possess a master’s or higher-level 

degree from a mental health counseling 

program of education and training from 

either a CACREP or regionally 

accredited institution and have passed 

the NCMHCE; and 

(iii) Must have a minimum of two (2) 

years of post-master’s degree supervised 

mental health counseling practice 

which includes a minimum of 3,000 

hours of supervised clinical practice 

and 100 hours of face-to-face 

supervision. Supervision must be 

provided by mental health counselors at 

the highest level of state licensure, 

psychiatrists, clinical psychologists, 

certified clinical social workers, or 

certified psychiatric nurse specialists 

who are licensed for independent 

practice in the jurisdiction where 

practicing and who are practicing 

within the scope of their licenses. 

Supervised clinical practice must be 

received in a manner that is consistent 

with the guidelines regarding 

knowledge, skills, and practice 

standards for supervision of the 

American Mental Health Counselors 

Association; and 

(iv) Is licensed or certified for 

independent practice in mental health 

counseling by the jurisdiction where 

practicing (see paragraph (c)(2)(ii) of 

this section for more specific 

information). 

(3) The Director, TRICARE 

Management Activity may amend or 

modify existing or specify additional 

certification requirements as needed to 

accommodate future practice and 

licensing standards and to ensure that 

all TCMHCs continue to meet 

educational, licensing, and clinical 

training requirements considered 

appropriate. 

(iv) * * * 

(C) Supervised mental health 

counselor. For the purposes of 

TRICARE, a supervised mental health 

counselor is an individual who does not 

meet the requirements of a TRICARE 

certified mental health counselor in 

paragraph (c)(3)(iii)(N) of this section, 

but meets all of the following 

requirements and conditions of practice: 

(1) Minimum of a master’s degree in 

mental health counseling or allied 

mental health field from a regionally 

accredited institution; and 


pmangrum on DSK3VPTVN1PROD with RULES
41642 Federal Register / Vol. 79, No. 137 / Thursday, July 17, 2014 / Rules and Regulations 

(2) Two years of post-masters 

experience which includes 3,000 hours 

of clinical work and 100 hours of faceto-face supervision; and 

(3) Is licensed or certified to practice 

as a mental health counselor by the 

jurisdiction where practicing (see 

paragraph (c)(3)(iv)(D) of this section for 

more specific information); and 

(4) May only be reimbursed when: 

(i) The TRICARE beneficiary is 

referred for therapy by a physician; and 

(ii) A physician is providing ongoing 

oversight and supervision of the therapy 

being provided; and 

(iii) The mental health counselor 

certifies on each claim for 

reimbursement that a written 

communication has been made or will 

be made to the referring physician of the 

results of the treatment. Such 

communication will be made at the end 

of the treatment, or more frequently, as 

required by the referring physician 

(refer to § 199.7). 

* * * * * 

■ 5. Section 199.7 is amended by 

revising paragraphs (e)(3) to read as 

follows: 

§ 199.7 Claims submission, review, and 

payment. 

* * * * * 

(e) * * * 

(3) Claims involving the services of 

marriage and family counselors, pastoral 

counselors, and supervised mental 

health counselors. CHAMPUS requires 

that marriage and family counselors, 

pastoral counselors, and supervised 

mental health counselors make a written 

report to the referring physician 

concerning the CHAMPUS beneficiary’s 

progress. Therefore, each claim for 

reimbursement for services of marriage 

and family counselors, pastoral 

counselors, and supervised mental 

health counselors must include 

certification to the effect that a written 

communication has been made or will 

be made to the referring physician at the 

end of treatment, or more frequently, as 

required by the referring physician. 

* * * * * 

Dated: July 11, 2014. 

Aaron Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2014–16702 Filed 7–16–14; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2013–0848] 

RIN 1625–AA09 

Drawbridge Operation Regulations; 

Gulf Intracoastal Waterway, Venice, FL 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: The Coast Guard is modifying 

the operating schedule that governs the 

Hatchett Creek (US–41) Twin Bridges, 

Gulf Intracoastal Waterway mile 56.9, 

Venice, FL. Changing the operational 

schedule of the Hatchett Creek (US–41) 

Twin Bridges will allow the 8 hour, 

Sarasota Iron Man Triathlon to occur 

annually without being interrupted. 

This event is anticipated to be 

scheduled annually on the second 

Sunday of November, from 9 a.m. to 5 

p.m. 

DATES: This rule is effective August 18, 

2014. 

ADDRESSES: Documents mentioned in 

this preamble are part of docket [USCG– 

2013–0848]. To view documents 

mentioned in this preamble as being 

available in the docket, go to http://

www.regulations.gov, type the docket 

number in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rulemaking. You may also visit the 

Docket Management Facility in Room 

W12–140 on the ground floor of the 

Department of Transportation West 

Building, 1200 New Jersey Avenue SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this rule, call 

or email Ms. Danielle Mauser, Seventh 

Coast Guard District, Bridge Branch, 

305–415–6946, email 

Danielle.L.Mauser2@uscg.mil. If you 

have questions about viewing the 

docket, call Cheryl Collins, Program 

Manager, Docket Operations, telephone 

202–366–9826. 

SUPPLEMENTARY INFORMATION: 

Table of Acronyms 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of Proposed Rulemaking 

§ Section Symbol 

U.S.C. United States Code 

A. Regulatory History and Information 

On November 21, 2013, we published 

a notice of proposed rulemaking 

(NPRM) entitled, ‘‘Drawbridge 

Operation Regulations; Gulf Intracoastal 

Waterway, Venice, FL’’ in the Federal 

Register (78 FR 69803). No comments 

on the proposed rule were received. No 

public meeting was requested or held. 

B. Basis and Purpose 

The changes will have a minor impact 

on vessels transiting the Gulf 

Intracoastal Waterway in the vicinity of 

Venice, Florida, but will still meet the 

reasonable needs to navigation. This 

action will accommodate the Sarasota 

Iron Man Triathlon held annually on the 

second Sunday of November. 

C. Discussion of Comments, Changes 

and the Final Rule 

No comments were received. This 

rule will allow the Hatchett Creek 

Bridge to remain closed to navigation 

for eight hours for an annual event. This 

rule will revise paragraph (b) in 33 CFR 

117.287 to include this eight hour 

closure for the second Sunday in 

November annually. The Hatchett Creek 

(US–41) Bridge provides a vertical 

clearance of 16 feet at mean high water 

in the closed position and a horizontal 

clearance of 90 feet. Vessels with a 

height of less than 16 feet may pass 

through the bridge at any time. The Gulf 

of Mexico is the only alternative route, 

and this route would be unacceptable 

for certain classes of vessels such as tugs 

and barges. 

D. Regulatory Analyses 

The rule was developed after 

considering numerous statutes and 

executive orders related to rulemaking. 

Below is a summary of the analysis 

based on the aforementioned statutes 

and executive orders. 

1. Regulatory Planning and Review 

This rule is not a significant 

regulatory action under section 3(f) of 

Executive Order 12866, Regulatory 

Planning and Review, as supplemented 

by Executive Order 13563, Improving 

Regulation and Regulatory Review. It 

does not require an assessment of 

potential costs and benefits under 

section 6(a)(3) of Order 12866 or under 

section 1 of Executive Order 13563. The 

Office of Management and Budget has 

not reviewed it under those Orders. 

This rule is not a significant 

regulatory action because it will only 

have a minor impact on vessels 

transiting the Gulf Intracoastal 

Waterway in the vicinity of Venice, 

Florida and it will still meet the 

reasonable needs of navigation. 


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