57642 Federal Register / Vol. 76, No. 180 / Friday, September 16, 2011 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 199 

[DOD–2010–HA–0033] 

RIN 0720–AB44 

TRICARE: Unfortunate Sequelae From 

Noncovered Services in a Military 

Treatment Facility 

AGENCY: Office of the Secretary, 

Department of Defense. 

ACTION: Final rule. 

SUMMARY: The Department of Defense is 

publishing this final rule to allow 

coverage for otherwise covered services 

and supplies required in the treatment 

of complications (unfortunate sequelae) 

resulting from a noncovered incident of 

treatment provided in a Military 

Treatment Facility (MTF), when the 

initial noncovered service has been 

authorized by the MTF Commander and 

the MTF is unable to provide the 

necessary treatment of the 

complications. This final rule is 

necessary to protect TRICARE 

beneficiaries from incurring financial 

hardships due to the current regulatory 

restrictions that prohibit TRICARE 

coverage of treatment of the 

complications resulting from 

noncovered procedures, even when 

those procedures were conducted in a 

Department of Defense facility. 

DATES: Effective Date: This rule is 

effective October 17, 2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Rene ́ Morrell, TRICARE Management 

Activity, Medical Benefits and 

Reimbursement Branch, telephone (303) 

676–3618. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In the Federal Register of August 6, 

2010, (75 FR 47519–47520), the Office 

of the Secretary of Defense published for 

public comment a proposed rule to 

allow coverage for otherwise covered 

services and supplies required in the 

treatment of complications (unfortunate 

sequelae) resulting from a noncovered 

incident of treatment provided in a 

Military Treatment Facility (MTF), 

when the initial noncovered service has 

been authorized by the MTF 

Commander and the MTF is unable to 

provide the necessary treatment of the 

complications. 

In order to support Graduate Medical 

Education and maintain provider skill 

levels, MTF providers are frequently 

required to perform medical procedures 

that may be excluded from coverage 

under TRICARE. Unexpected 

complications (unfortunate sequelae) 

from these procedures may result and, 

in those instances where the MTFs are 

unable to provide the appropriate level 

of care necessary for the proper 

treatment of these complications, the 

MTF Commander must refer 

beneficiaries for treatment outside the 

MTF. Under current regulatory 

provisions, TRICARE is unable to cover 

treatment of the complications resulting 

from noncovered procedures. When 

beneficiaries require treatment outside 

the MTF for these complications, arising 

from noncovered procedures, they are 

responsible for payment for this 

necessary treatment resulting in 

significant financial hardship. This final 

rule will address that unfortunate 

situation by allowing coverage of 

treatment for the complications 

resulting from noncovered treatment 

provided in an MTF when the original 

procedure was authorized by the MTF 

Commander. The specific procedures 

for approval of this treatment will be 

addressed in the TRICARE Policy 

Manual rather than in the regulation to 

ensure that this information is current 

and easily accessible. TRICARE manuals 

may be accessed at http:// 

www.tricare.mil. 

II. Public Comments 

We provided a 60-day public 

comment period following publication 

of the Proposed Rule in the Federal 

Register (75 FR 47519–47520) on 

August 6, 2010. One comment was 

received in full support of the rule. 

III. Regulatory Procedures 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review’’ 

Section 801 of title 5, United States 

Code, and Executive Order 12866 

require certain regulatory assessments 

and procedures for any major rule or 

significant regulatory action, defined as 

one that would result in an annual effect 

of $100 million or more on the national 

economy or which would have other 

substantial impacts. It has been certified 

that this rule is not an economically 

significant rule, however, it is a 

regulatory action which has been 

reviewed by the Office of Management 

and Budget as required under the 

provisions of E.O. 12866. 

Section 202, Public Law 104–4, 

‘‘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 in any one year. It has 

been certified that this 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) 

The ‘‘Regulatory Flexibility Act’’ 

(RFA) requires each Federal agency to 

prepare and make available for public 

comment, a regulatory flexibility 

analysis when the agency issues a 

regulation which would have a 

significant impact on a substantial 

number of small entities. This rule will 

not significantly impact a substantial 

number of small entities for purposes of 

the RFA. 

Public Law 96–511, ‘‘Paperwork 

Reduction Act’’ (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. 3501–3511). 

Executive Order 13132, ‘‘Federalism’’ 

This rule has been examined for its 

impact under E.O. 13132 and 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 in the 

distribution of power and 

responsibilities among the various 

levels of government; therefore, 

consultation with the 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: 

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: 

■ a. Redesignating paragraph (e)(9) as 

paragraph (e)(9)(i) 

■ b. Adding new paragraph (e)(9)(ii) 

§ 199.4 Basic program benefits. 

* * * * * 

(e) * * * 


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Federal Register / Vol. 76, No. 180 / Friday, September 16, 2011 / Rules and Regulations 57643 

(9) * * * 

(ii) Benefits are available for 

otherwise covered services and supplies 

required in the treatment of 

complications (unfortunate sequelae) 

resulting from a noncovered incident of 

treatment provided in an MTF, when 

the initial noncovered service has been 

authorized by the MTF Commander and 

the MTF is unable to provide the 

necessary treatment of the 

complications, according to the 

guidelines adopted by the Director, 

TMA, or a designee. 

* * * * * 

Dated: August 24, 2011. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2011–23762 Filed 9–15–11; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 199 

[Docket ID: DOD–2010–HA–0071; RIN 0720– 

AB40] 

TRICARE; Changes Included in the 

National Defense Authorization Act for 

Fiscal Year 2010; Expansion of 

Survivor Eligibility Under the TRICARE 

Dental Program 

AGENCY: Office of the Secretary, DoD. 

ACTION: Final rule. 

SUMMARY: The Department is publishing 

this final rule to implement the National 

Defense Authorization Act for Fiscal 

Year 2010 (NDAA for FY10), as 

amended by the National Defense 

Authorization Act for Fiscal Year 2011 

(NDAA for FY11). Specifically, that 

legislation expands the survivor 

eligibility under the TRICARE Dental 

Program (TDP). The 2011 amendment to 

the legislation entitles the surviving 

spouse and child(ren) continuation of 

eligibility for the TDP regardless of 

whether they were previously enrolled 

in the TDP. Prior enrollment in the TDP 

had been a requirement of the 2010 

legislation for both the spouse and 

children. The period of continued 

eligibility for a spouse will be 3 years 

beginning on the date of the member’s 

death. The legislation entitles a child to 

continuation of eligibility for the TDP 

for the longer of three years or until age 

21 (or 23 for most full-time students). 

Survivors, who meet the new eligibility 

requirements, will obtain TDP eligibility 

as of the publishing of the final rule in 

the Federal Register. Retroactive 

payment of premiums or claims paid for 

dental treatment during the time of loss 

of TDP eligibility will not be reimbursed 

to surviving dependents. 

DATES: Effective Date: This rule is 

effective October 17, 2011. 

FOR FURTHER INFORMATION CONTACT: Col. 

Jeffrey Chaffin, TRICARE Management 

Activity, telephone (703) 681–0039. 

SUPPLEMENTARY INFORMATION: This final 

rule implements section 704 of the 

National Defense Authorization Act for 

Fiscal Year 2010 (NDAA for FY10), 

Public Law 111–84, as amended by 

Section 703 of the National Defense 

Authorization Act for Fiscal Year 2011 

(NDAA for FY11), Public Law 111–83. 

I. Background 

This final rule expands the survivor 

eligibility under the TRICARE Dental 

Program (TDP). The legislation entitles 

the surviving spouse and child(ren) 

continuation of eligibility for the TDP 

regardless of whether they were 

previously enrolled in the TDP. Prior 

enrollment in the TDP had been a 

requirement of the 2010 legislation for 

both the spouse and children. The 

period of continued eligibility for 

spouse will be 3 years beginning on the 

date of the member’s death. The period 

of continued eligibility for children will 

be 3 years beginning on the date of the 

member’s death or until age 21 (or age 

23 for most full-time students). 

The final rule will maintain the 

government’s payment of both the 

government and dependent’s portion of 

the premium share during the period of 

continuous enrollment. 

II. Public Comments 

The proposed rule was published in 

the Federal Register on August 18, 

2010, for a 60-day comment period. We 

received one comment expressing 

support of the extended eligibilities. 

III. Regulatory Procedures 

Executive Orders 12866 and 13563 and 

Regulatory Flexibility Act 

Executive Orders 12866 and 13563 

require that a comprehensive regulatory 

impact analysis be performed on any 

significant regulatory action, defined as 

one that would result in an annual effect 

of $100 million or more on the national 

economy or which would have other 

substantial impacts. The Regulatory 

Flexibility Act (RFA) requires that each 

Federal agency prepare, and make 

available for public comment, a 

regulatory flexibility analysis when the 

agency issues a regulation which would 

have a significant impact on a 

substantial number of small entities. 

This rule is not a significant regulatory 

action and will not have a significant 

impact on a substantial number of small 

entities for purposes of the RFA, thus 

this final rule is not subject to any of 

these requirements. 

Paperwork Reduction Act 

This rule will not impose additional 

information collection requirements on 

the public under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3511). 

EO 13132, ‘‘Federalism’’ 

We have examined the impact(s) of 

the final rule under Executive Order 

13132 and it does not have 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 power 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: 

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 199.13 is amended by 

revising paragraph (c)(3)(ii)(E)(2) to read 

as follows: 

§ 199.13 TRICARE Dental Program. 

* * * * * 

(c) * * * 

(3) * * * 

(ii) * * * 

(E) * * * 

(2) Continuation of eligibility. Eligible 

dependents of active duty members who 

die while on active duty for a period of 

more than 30 days and eligible 

dependents of members of the Ready 

Reserve (i.e., Selected Reserve or 

Individual Ready Reserve, as specified 

in 10 U.S.C. 10143 and 10144(b) 

respectively) who die, shall be eligible 

for continued enrollment in the TDP. 

This continued enrollment shall be up 

to (3) three years from the date of the 

member’s death, except that, in the case 

of a dependent of the deceased who is 

described in 10 U.S.C. section 1072(2) 

by subparagraph (D) or (I), the period of 

continued enrollment shall be the 

longer of the following periods 


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