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[Federal Register Volume 78, Number 153 (Thursday, August 8, 2013)]
[Proposed Rules]
[Pages 48367-48373]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-19153]

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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: Proposed rule.

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SUMMARY: The Department of Defense (DoD) proposes several amendments to 
the TRICARE regulation. Specifically, the proposed rule revises the 
definitions of durable equipment (DE) and durable medical equipment 
(DME) to better conform the language in the regulation to the statute 
and implementing the statutory requirements will not change current 
policies. This rule also adds a definition of assistive technology (AT) 
devices for purposes of benefit coverage under the TRICARE Extended 
Care Health Option (ECHO) Program and removes the restriction under the 
TRICARE Basic Program that limits ordering or prescribing of DME to 
only a physician, to allow certain other authorized individual 
professional providers acting within the scope of their licensure to 
order or prescribe DME.
    Finally, the proposed rule incorporates a policy clarification 
relating to luxury, deluxe, or immaterial features of equipment or 
devices. Namely, TRICARE cannot reimburse for the luxury, deluxe, or 
immaterial features of equipment or devices. However, the TRICARE 
Management Activity (TMA) can reimburse for the base or basic equipment 
or device that meet the beneficiary's needs. Beneficiaries may pay the 
provider for the luxury, deluxe, or immaterial features themselves, if 
they desire their equipment or device to have these ``extra features.''

DATES: Comments must be received on or before October 7, 2013. Do not 
submit

[[Page 48368]]

comments directly to the point of contact or mail your comments to any 
address other than what is shown below. Doing so will delay the posting 
of the submission.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) number and title, by any of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 4800 Mark 
Center Drive, 2nd floor, East Tower, Suite 02G09, Alexandria, VA 22350-
3100.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this Federal Register document. The 
general policy for comments and other submissions from members of the 
public is to make these submissions available for public viewing on the 
Internet at http://regulations.gov as they are received without change, 
including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Gail L. Jones (303) 676-3401.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

1. Purpose of Regulatory Actions

a. Need for Regulatory Actions
    (1) Benefit Coverage for DE, DME and Assistive Technology (AT) 
Devices. The National Defense Authorization Act for Fiscal Year 2002 
revised the coverage of DE under TRICARE. Those revisions resulted in 
final amendments to the TRICARE regulation regarding the TRICARE Basic 
Program, effective December 13, 2004, as published in the Federal 
Register on October 12, 2004 (69 FR 60547), and regarding the TRICARE 
Extended Health Care Option (ECHO) Program, effective September 20, 
2004, as published in the Federal Register on August 20, 2004 (69 FR 
51559). The original implementing regulations made a potentially 
confusing technical distinction between ``DE'' and ``DME''; that is, 
``DE'' was defined as an item that did not qualify as ``DME'' that 
otherwise might be available under the TRICARE ECHO Program. This 
proposed rule provides clarification by correcting the definitions and 
adding a definition of assistive technology (AT) devices, which 
conforms to existing policy covering devices not otherwise qualifying 
as durable equipment.
    (2) Ordering and Prescribing DE and DME. The current regulation in 
Sec.  199.4 (d)(3)(ii)(A)(1) does not allow coverage of DME ordered by 
a TRICARE-authorized individual professional provider of care, with the 
exception of a doctor of medicine (MD) or a doctor of osteopathy (DO), 
even though it is permitted by his or her licensure. Specifically, 
paragraph (d)(3)(ii)(A)(1) states, ``Subject to the exceptions in 
paragraph (d)(3)(ii)(C) of this same section, only DME which is ordered 
by a physician for the specific use of the beneficiary shall be 
covered.'' Paragraph (d)(1) also states that only a physician can order 
DME. This restriction causes two problems:
     Certain other TRICARE authorized individual professional 
providers such as doctors of podiatric medicine (DPMs), doctors of 
optometry (ODs), doctors of dental surgery (DDSs) and doctors of dental 
medicine (DMDs), certified nurse midwives (CNMs), certified nurse 
practitioners (CNPs), certified registered nurse anesthetists (CRNAs), 
and clinical nurse specialists (CNSs) cannot prescribe DME, even when 
acting within the scope of their licensure.
     Beneficiaries cannot fill a prescription for DME 
prescribed by other non-physician professional providers, even when 
they act as a primary care provider, such as a certified nurse 
practitioner.
    State governments generally regulate the licensure and practice of 
specific types of health care professionals, and DoD limits TRICARE 
benefit coverage to services and supplies furnished by otherwise 
authorized TRICARE individual professional providers performing within 
the scope of their state licenses or certifications. State scope of 
practice laws vary with regard to the range of services, and some 
include the authority to prescribe DME. After assessing the information 
available, DoD has determined that it is unnecessarily restrictive not 
to cover DE (including DME) merely because it is ordered by a non-
physician. Therefore, the regulation is being amended to allow TRICARE 
coverage of DE, except for cardiorespiratory monitors, when ordered by 
a physician or when ordered by any otherwise authorized non-physician 
allied health care professional, namely, CNMs, CNPs, CRNAs, and CNSs, 
and certain other authorized individual professional providers, namely 
DPMs, ODs, DDSs, and DMDs, when acting within the scope of their state 
license or certificate.
b. Legal Authority for the Regulatory Action
    This regulation is proposed under the authorities of 10 U.S.C. 
1073, which authorizes the Secretary of Defense to administer the 
medical and dental benefits provided in chapter 55 of title 10, United 
States Code.
    The DoD is authorized to provide DE under 10 U.S.C. 1077(a)(12), 
which benefit is further defined in 10 U.S.C 1077(f)(1) and (2). 
Although section 1077 defines benefits to be provided in the military 
treatment facilities (MTFs), these benefits are incorporated by 
reference for the benefits provided by healthcare providers in the 
private sector to active duty family members and retirees and their 
dependents through sections 1079 and 1086 respectively. DoD is also 
authorized to provide a program, generally referred to as ECHO, for 
dependents of active duty members, who have a qualifying condition 
under section 1079(d) through (f). The ECHO Program may include DE not 
otherwise available under the TRICARE Basic Program and AT devices to 
assist in the reduction of the disabling effects of a qualifying 
condition.
    The DoD is also authorized to cost share, under section 1079 
(a)(13) and the 32 CFR part 199, any service or supply that is 
medically or psychologically necessary to prevent, diagnose or treat a 
mental or physical illness, injury, or bodily malfunction. The statute 
identifies specific categories of individual professional providers who 
may make the diagnosis and recommend the treatment. Section 199.6 
(c)(1)(iii) requires TRICARE-authorized individual professional 
providers to provide medical service and care within the scope of their 
licensure and training consistent with the state practice act, or 
within the scope of the test, which was the basis for the individual's 
certification by the state where the individual renders the service. 
Paragraph (2)(i) of this same section specifies that an individual must 
be currently licensed to render professional health care services in 
each state in which the individual renders services to CHAMPUS 
beneficiaries. Such license is required when a specific state provides, 
but does not require, license for a specific category of individual 
professional providers. Under section 199.2(b) of this part, other 
allied health professionals are also defined as ``individual 
professional providers of care other than physicians, dentists, or 
extramedical individual providers.''
    Section 199.2(b) requires, as part of the definition of 
``appropriate medical care'' that a TRICARE authorized individual 
professional provider rendering medical care be qualified to perform 
such medical services because of his or her training and education and 
is licensed or certified by the state

[[Page 48369]]

where the service is rendered or by an appropriate national 
organization, or otherwise meets CHAMPUS standards.

2. Summary of Major Provisions of the Regulatory Action

    In this rule, the proposed regulatory language more appropriately 
conforms to that of the statutory language, which identifies ``DME'' as 
a subset of ``DE'' for purposes of the TRICARE Basic Program. Further, 
the proposed rule amends the TRICARE regulation on DE to better conform 
the language in the regulation to the TRICARE statute and clarifies 
that the policies applicable to DME (e.g., exclusion of luxury features 
and pricing methods) have been and are applicable to DE.
    DoD's interpretation of the statute and regulation has been, and 
continues to be, that all DE 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 equipment can be cost 
shared by TRICARE. Therefore, this technical revision does not change 
current policies for coverage of DE.
    To clarify that the TRICARE ECHO Program includes coverage of AT 
devices, which do not otherwise qualify as DE, this proposed rule 
contains a definition and specific criteria for coverage of AT devices 
for individuals qualified to receive benefits under the ECHO Program.
    The proposed rule provides that if a beneficiary wishes to obtain 
an item of DE that has deluxe, luxury, or immaterial features, the 
beneficiary shall be responsible for the difference between the price 
of the item and the TRICARE allowable cost for an otherwise authorized 
item of DE without such features.
    Finally, this proposed rule emphasizes that certain other 
authorized individual professional providers who are listed in this 
rule, who are legally authorized to practice by a state, and when they 
are practicing within the scope of the license permitted by the state 
licensing authorities, may prescribe or order DE under the TRICARE 
Program.

3. Summary of Costs and Benefits

    This proposed rule is not anticipated to have an annual effect on 
the economy of $100 million or more, making it a substantive, non-
significant rule under the Executive Order and the Congressional Review 
Act.
    The technical revisions for coverage of DE do not change current 
policies. DoD's interpretation of the statute and regulation has been, 
and will continue to be, that all equipment 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 
equipment can be cost shared by TRICARE. The proposed amendment to 
remove the restriction that limits ordering or prescribing of DME to 
only a MD or DO is not expected to increase the amount of DE and DME 
prescribed because other providers are currently writing 
prescriptions--it only changes who prescribes it. However, DoD 
anticipates that there may be a marginal increase in administrative 
cost to accommodate changes to definitions. More importantly, this 
change will have no impact on beneficiaries eligible for DE.

II. Explanation for Proposed Provisions

Overview

    DoD is amending 32 CFR part 199 to specify the following:

Sec.  199.2 (Definitions)

     ``Duplicate Equipment.'' AT devices are subject to the 
definition of duplicate equipment.
     ``Durable Equipment (DE).'' To clarify that DE may be a 
covered benefit under the TRICARE Basic Program, consistent with 10 
U.S.C. 1079 (a) (5) and 10 U.S.C. 1077(a)(12) and (f), DoD is revising 
the definition of DE as ``(1) a medically necessary item, which can 
withstand repeated use; (2) is primarily and customarily used to serve 
a medical purpose; and, (3) is generally not useful to an individual in 
the absence of an illness or injury.'' It includes DME, wheelchairs, 
iron lungs, and hospital beds.
     ``Durable Medical Equipment (DME).'' Consistent with 10 
U.S.C. 1079(a)(5) and 10 U.S.C. 1077 (a)(12) and (f), DoD is revising 
the definition of DME as ``DE, which is medically appropriate to (1) 
improve, restore, or maintain the function of a malformed, diseased, or 
injured body part, or can otherwise minimize or prevent the 
deterioration of the beneficiary's function or condition; or, (2) 
maximize the beneficiary's function consistent with the beneficiary's 
physiological or medical needs.''
     ``Assistive Technology (AT) Devices.'' AT devices do not 
treat an underlying injury, illness or disease, or their symptoms. 
However, to clarify that the TRICARE ECHO Program includes coverage of 
AT devices, which do not otherwise qualify as DE, DoD is adding a 
definition of AT devices as ``equipment that generally helps overcome 
or remove a disability and is used to increase, maintain, or improve 
the functional capabilities of an individual. AT devices may include 
non-medical devices but do not include any structural alterations 
(e.g., wheelchair ramps or alterations to street curbs) or service 
animals (e.g., Seeing Eye dogs, hearing/handicapped assistance animals, 
etc.). AT devices are authorized only under coverage criteria to assist 
in the reduction of the disabling effects of a qualifying condition for 
individuals eligible to receive benefits under the ECHO program as 
provided in Section 199.5.''

Sec.  199.4 (Basic Program Benefits)

    DoD clarifies the following for purposes of benefit coverage of DE 
under the TRICARE Basic Program:
     DE is an authorized benefit when medically necessary for 
the treatment of a covered illness or injury.
     Authorized DE is a benefit when ordered by certain 
authorized individual professional providers listed in 199.6(c) of this 
Part for the specific use of the beneficiary and the equipment provides 
the medically appropriate level of performance and quality for the 
beneficiary's condition.
     Unless otherwise excluded under the regulation, items 
authorized coverage as DE include (1) DME (including a 
cardiorespiratory monitor under certain conditions), (2) wheelchairs 
when medically appropriate to provide basic mobility, (3) iron lungs, 
and (4) hospital beds. An electric wheelchair or a TRICARE-approved 
alternative to an electric wheelchair may be used in lieu of a manual 
wheelchair when it is medically indicated and appropriate for the 
individual patient.
     An item that provides a medically appropriate level of 
performance or quality for the beneficiary's condition does not include 
luxury, deluxe, or immaterial items. Only the base or basic model of 
equipment shall be covered, unless any customization of the equipment 
owned by the beneficiary, or an accessory or item of supply for any DE 
is essential for (1) Achieving therapeutic benefit for the beneficiary; 
(2) making the equipment serviceable; or (3) otherwise assuring the 
proper functioning of the equipment. If a beneficiary wishes to obtain 
an item of DE that has deluxe, luxury, or immaterial features, the 
beneficiary shall be responsible for the difference between the price 
of the item and the TRICARE allowable cost for an otherwise authorized 
item of DE without such features.
     DE, which otherwise qualifies as a benefit, is excluded 
from coverage if (1)

[[Page 48370]]

the beneficiary is a patient in a type of facility that ordinarily 
provides the same type of DE item to its patients at no additional 
charge in the usual course of providing its services; or (2) DE is 
available to the beneficiary from a Uniformed Services Medical 
Treatment Facility.
     DE may be provided on a rental or purchase basis and 
coverage will be based on the price most advantageous to the government 
under established procedures.
     Repairs of DE damaged while using the equipment in a 
manner inconsistent with its common use, and replacement of lost or 
stolen DE, are excluded from Basic Program benefits.
     Repairs of deluxe, luxury or immaterial features of DE are 
excluded from Basic Program benefits.

Sec.  199.5 (TRICARE Extended Care Health Option (ECHO)).

    DoD clarifies the following for purposes of benefit coverage of DE 
and AT devices under the ECHO Program:
     An AT device is authorized under certain coverage criteria 
when necessary to assist in the reduction of the disabling effects of a 
qualifying condition of the ECHO eligible beneficiary. For 
beneficiaries eligible for an individual education plan (IEP), AT 
devices that are recommended as part of the IEP may be covered.
     For those beneficiaries who cease to meet the eligibility 
requirements for an IEP, AT devices under TRICARE ECHO Program must:

--Be preauthorized;
--Be prescribed by a TRICARE authorized provider;
--Assist in the reduction of the disabling effects of the qualifying 
ECHO condition; and
--Be an item or educational learning device normally included in an 
IEP.

    Further, the item must not be otherwise covered as a prosthetic, 
augmentative communication device, or a benefit under the TRICARE Basic 
Program. The implementing instructions for this provision will be 
outlined in the TRICARE Policy Manual. As with all aspects of this 
proposed rule, DoD invites the public's comments on our approach 
regarding AT devices for those beneficiaries who cease to be eligible 
for an IEP.
     Repairs of DE or AT devices damaged while using the 
equipment in a manner inconsistent with its common use, and replacement 
of lost or stolen DE or AT devices, are excluded from ECHO coverage.
     Repairs of deluxe, luxury or immaterial features of DE or 
AT devices are excluded from ECHO coverage.
     Wheelchairs may exceed the basic mobility limitation when 
needed to mitigate the effects of the ECHO qualifying condition of the 
beneficiary.
     DE may be provided on a rental or purchase basis and 
coverage will be based on the price most advantageous to the government 
under the same procedures established for pricing DE under the TRICARE 
Basic Program.
    This amendment is published for proposed rulemaking at the same 
time it is coordinated within the DoD, with the Department of Health 
and Human Services, and with other interested agencies so consideration 
of both internal and external comments and publication of the final 
rulemaking document can be expedited.

III. Response to Comments

    Because of the large number of public comments generally received 
on Federal Register documents, we are not able to acknowledge or 
respond to them individually. We will consider all comments we receive 
by the date and time specified in the DATES specified section of this 
preamble, and when we proceed with a subsequent document, we will 
respond to the major comments in the preamble to that document. We will 
make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
entirety.

IV. Regulatory Procedure

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

    It has been determined that this proposed 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 
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 
this Executive Order.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    It has been certified that this proposed 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 proposed 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 proposed 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 certified that this proposed rule does not impose 
reporting or recordkeeping requirements under the Paperwork Act of 
1995.

Executive Order 13132, Federalism

    It has been certified that this proposed 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 proposed to be amended as follows:

PART 199--[AMENDED]

0
1. The authority citation for part 199 continues to read as follows:

    Authority: 5 U.S.C. 301; 10 U.S.C. chapter 55.

0
2. Section 199.2, paragraph (b) is amended by adding the definition of 
``Assistive Technology Devices'' and revising the definitions of 
``Duplicate Equipment,'' ``Durable Equipment,'' and ``Durable Medical 
Equipment'' to read as follows:

Sec.  199.2  Definitions.

* * * * *
    (b) * * *
    Assistive technology devices. Equipment that generally does not 
treat

[[Page 48371]]

an underlying injury, illness, disease or their symptoms. Assistive 
technology devices are authorized only under the Extended Care Health 
Option (ECHO). Assistive technology devices help an ECHO beneficiary 
overcome or remove a disability and are used to increase, maintain, or 
improve the functional capabilities of an individual. Assistive 
technology devices may include non-medical devices but do not include 
any structural alterations (e.g., permanent structure of wheelchair 
ramps or alterations to street curbs) service animals (e.g., Seeing Eye 
dogs, hearing/handicapped assistance animals, etc.) or specialized 
equipment and devices whose primary purpose is to enable the individual 
to engage in sports or recreational events. Assistive technology 
devices are authorized only under coverage criteria determined by the 
Director, TRICARE Management Activity to assist in the reduction of the 
disabling effects of a qualifying condition for individuals eligible to 
receive benefits under the ECHO program, as provided in section 199.5.
* * * * *
    Duplicate equipment. An item of durable equipment, durable medical 
equipment, or assistive technology items, as defined in this section 
that serves the same purpose that is served by an item of durable 
equipment, durable medical equipment, or assistive technology item 
previously cost-shared by TRICARE. For example, various models of 
stationary oxygen concentrators with no essential functional 
differences are considered duplicate equipment, whereas stationary and 
portable oxygen concentrators are not considered duplicates of each 
other because the latter is intended to provide the user with mobility 
not afforded by the former. Also, a manual wheelchair and an electric 
wheelchair, both of which otherwise meet the definition of durable 
equipment or durable medical equipment, would not be considered 
duplicates of each other if each is found to provide an appropriate 
level of mobility. For the purpose of this Part, durable equipment, 
durable medical equipment, or assistive technology items that are 
essential to provide a fail-safe in-home life support system or that 
replaces in like kind an item of equipment that is not serviceable due 
to normal wear, accidental damage, a change in the beneficiary's 
condition, or has been declared adulterated by the U.S. FDA, or is 
being or has been recalled by the manufacturer is not considered 
duplicate equipment.
    Durable equipment. Equipment that--
    (1) Is a medically necessary item, which can withstand repeated 
use;
    (2) Is primarily and customarily used to serve a medical purpose; 
and
    (3) Is generally not useful to an individual in the absence of an 
illness or injury.

It includes durable medical equipment as defined in 199.2 of this part, 
wheelchairs, iron lungs, and hospital beds. It does not include 
equipment (including wheel chairs) used or designed primarily for use 
in sports or recreational activities.
    Durable medical equipment. Durable equipment that is medically 
appropriate to--
    (1) Improve, restore, or maintain the function of a malformed, 
diseased, or injured body part or can otherwise minimize or prevent the 
deterioration of the beneficiary's function or condition; or
    (2) Maximize the beneficiary's function consistent with the 
beneficiary's physiological or medical needs.
* * * * *
0
3. Section 199.4 is amended by revising paragraphs (a)(1)(i), (d)(1), 
(d)(3)(ii), and (g)(43) to read as follows:

Sec.  199.4  Basic program benefits.

    (a) * * *
    (1)(i) Scope of benefits. Subject to all applicable definitions, 
conditions, limitations, or exclusions specified in this part, the 
CHAMPUS Basic Program will cost share medically necessary services and 
supplies required in the diagnosis and treatment of illness or injury, 
including maternity care and well-baby care. Benefits include specified 
medical services and supplies provided to eligible beneficiaries from 
authorized civilian sources such as hospitals, other authorized 
institutional providers, physicians, other authorized individual 
professional providers, and professional ambulance services, 
prescription drugs, authorized medical supplies, and rental or purchase 
of durable equipment.
* * * * *
    (d) Other benefits--(1) General. Benefits may be extended for the 
allowable charge of those other covered services and supplies described 
in paragraph (d) of this section, which are provided in accordance with 
good medical practice and established standards of quality by those 
other authorized providers described in Sec. 199.6 of this Regulation. 
Such benefits are subject to all applicable definitions, conditions, 
limitations, or exclusions as otherwise may be set forth in this or 
other chapters of this Regulation. To be considered for benefits under 
paragraph (d) of this section, the described services or supplies must 
be prescribed and ordered by a physician. Other authorized individual 
professional providers acting within their scope of licensure may also 
prescribe and order these services and supplies unless otherwise 
specified in paragraph (d) of this section.
* * * * *
    (3) * * *
    (ii) Durable equipment--(A) Scope of benefit. (1) Durable 
equipment, which is for the specific use of the beneficiary and is 
ordered by an authorized individual professional provider listed in 
199.6 (c) of this Part, acting within his or her scope of licensure 
shall be covered if the durable equipment meets the definition in 
section 199.2 and--
    (i) Provides the medically appropriate level of performance and 
quality for the medical condition present and
    (ii) Is not otherwise excluded by this Regulation.
    (2) Items that may be provided to a beneficiary as durable 
equipment include:
    (i) Durable medical equipment as defined in section 199.2;
    (ii) Wheelchairs. A wheelchair, which is medically appropriate to 
provide basic mobility, including reasonable additional costs for 
medically appropriate modifications to accommodate a particular 
physiological or medical need, may be covered as durable equipment. An 
electric wheelchair, or TRICARE approved alternative to an electric 
wheelchair (e.g., scooter) may be provided in lieu of a manual 
wheelchair when it is medically indicated and appropriate to provide 
basic mobility. Luxury or deluxe wheelchairs, as described in paragraph 
(3) below, include features beyond those required for basic mobility of 
a particular beneficiary are not authorized.
    (iii) Iron lungs.
    (iv) Hospital beds.
    (v) Cardiorespiratory monitors under conditions specified in 
paragraph (d)(3)(ii)(B) of this section.
    (3) Whether a prescribed item of durable equipment provides the 
medically appropriate level of performance and quality for the 
beneficiary's condition must be supported by adequate documentation. 
Luxury, deluxe, immaterial, or non-essential features, which increase 
the cost of the item relative to a similar item without those features, 
based on industry standards for a particular item at the time the 
equipment is prescribed or replaced for a beneficiary, are not

[[Page 48372]]

authorized. Only the ``base'' or ``basic'' model of equipment (or more 
cost-effective alternative equipment) shall be covered, unless 
customization of the equipment, or any accessory or item of supply for 
any durable equipment, is essential, as determined by the Director (or 
designee), for--
    (i) Achieving therapeutic benefit for the patient;
    (ii) Making the equipment serviceable; or
    (iii) Otherwise assuring the proper functioning of the equipment.
* * * * *
    (B) * * *
    (C) Exclusions. Durable equipment, which is otherwise qualified as 
a benefit is excluded from coverage under the following circumstances:
    (1) Durable equipment for a beneficiary who is a patient in a type 
of facility that ordinarily provides the same type of durable equipment 
item to its patients at no additional charge in the usual course of 
providing its services.
    (2) Durable equipment, which is available to the beneficiary from a 
Uniformed Services Medical Treatment Facility.
    (D) Basis for Reimbursement. (1) Durable equipment may be provided 
on a rental or purchase basis. Coverage of durable equipment will be 
based on the price most advantageous to the government taking into 
consideration the anticipated duration of the medically necessary need 
for the equipment and current price information for the type of item. 
The cost analysis must include comparison of the total price of the 
item as a monthly rental charge, a lease-purchase price, and a lump-sum 
purchase price and a provision for the time value of money at the rate 
determined by the U.S. Department of Treasury. If a beneficiary wishes 
to obtain an item of durable equipment with deluxe, luxury, immaterial 
or non-essential features, the beneficiary may agree to accept TRICARE 
coverage limited to the allowable amount that would have otherwise been 
authorized for a similar item without those features. In that case, the 
TRICARE coverage is based upon the allowable amount for the kind of 
durable equipment normally used to meet the intended purpose (i.e., the 
standard item least costly). The provider shall not hold the 
beneficiary liable for deluxe, luxury, immaterial, or non-essential 
features that cannot be considered in determining the TRICARE allowable 
costs. However, the beneficiary shall be held liable if the provider 
has a specific agreement in writing from the beneficiary (or his or her 
representative) accepting liability for the itemized difference in 
costs of the durable equipment with deluxe, luxury, or immaterial 
features and the TRICARE allowable costs for an otherwise authorized 
item without such features.
    (2) In general, repairs of beneficiary owned durable equipment are 
covered when necessary to make the equipment serviceable and 
replacement of durable equipment is allowed when the durable equipment 
is not serviceable because of normal wear, accidental damage or when 
necessitated by a change in the beneficiary's condition. However, 
repairs of durable equipment damaged while using the equipment in a 
manner inconsistent with its common use, and replacement of lost or 
stolen durable equipment, are excluded from coverage. In addition, 
repairs of deluxe, luxury, or immaterial features of durable equipment 
are excluded from coverage.
* * * * *
    (g) * * *
    (43) Exercise/relaxation/comfort/sporting items or sporting 
devices. Exercise equipment, to include items primarily and customarily 
designed for use in sports or recreational activities, spas, 
whirlpools, hot tubs, swimming pools health club memberships or other 
such charges or items.
* * * * *
0
4. Section 199.5 is amended by revising paragraphs (c)(2), (c)(3), 
(c)(8)(ii), and (c)(8)(iii), (d)(3), (d)(7), (d)(7)(i), (d)(7)(iv), and 
(d)(8), (g)(2)(i), (g)(2)(ii), and adding new paragraphs (d)(7)(v) and 
(h)(4) to read as follows:

Sec.  199.5  TRICARE extended care health option (ECHO).

* * * * *
    (c) * * *
    (2) Medical, habilitative, rehabilitative services and supplies, 
durable equipment and assistive technology (AT) devices that assist in 
the reduction of the disabling effects of a qualifying condition. 
Benefits shall be provided in the beneficiary's home or other 
environment, as appropriate. An AT device may be covered only if it is 
recommended in a beneficiary's Individual Educational Program (IEP) or, 
if the beneficiary is not eligible for an IEP, the AT device is an item 
or educational learning device normally included in an IEP and is 
preauthorized under ECHO as an integral component of the beneficiary's 
individual comprehensive health care services plan (including 
rehabilitation) as prescribed by a TRICARE authorized provider.
    (i) An AT device may be covered under ECHO only if it is not 
otherwise covered by TRICARE as durable equipment, a prosthetic, 
augmentation communication device, or other benefit under section 199.4 
of this title.
    (ii) An AT device may include an educational learning device 
directly related to the beneficiary's qualifying condition when 
recommended by an IEP and not otherwise provided by State or local 
government programs. If an individual is not eligible for an IEP, an 
educational learning device normally included in an IEP may be 
authorized as if directly related to the beneficiary's qualifying 
condition and prescribed by a TRICARE authorized provider as part of 
the beneficiary's individual comprehensive health care services plan.
    (iii) Electronic learning devices may include the hardware and 
software as appropriate. The Director, TMA shall determine the types 
and (or) platforms of electronic devices and the replacement lifecycle 
of the hardware and its supporting software. All upgrades or 
replacements shall require a recommendation from the individual's IEP 
or the individual's comprehensive health care services plan.
    (iv) Duplicative or redundant hardware platforms are not 
authorized.

    Note: When one or more electronic platforms such as a desktop 
computer, laptop, notebook or tablet can perform the same functions 
in relation to the teaching or educational objective directly 
related to the qualifying condition, it is the intent of this 
provision to allow only one electronic platform that may be chosen 
by the beneficiary. Duplicative or redundant platforms are not 
allowed; however, a second platform may be obtained, if the 
individual's IEP recommends one platform such as a computer for the 
majority of the learning objectives, but there exists another 
objective, which cannot be performed on that platform. In these 
limited circumstances, the beneficiary may submit a request with the 
above justification to the Director, TMA, who may authorize a second 
device.

    (v) AT devices damaged through improper use of the device as well 
as lost or stolen devices may not be replaced until the device would 
next be eligible for a lifecycle replacement.
    (vi) AT devices do not include equipment or devices whose primary 
purpose is to assist the individual to engage in sports or recreational 
activities.
* * * * *
    (8) * * *
    (ii) Equipment adaptation. The allowable equipment and an AT device 
purchase shall include such services and modifications to the equipment 
as necessary to make the equipment useable for a particular ECHO 
beneficiary.

[[Page 48373]]

    (iii) Equipment maintenance. Reasonable repairs and maintenance of 
beneficiary owned or rented DE or AT devices provided by this section 
shall be allowed while a beneficiary is registered in the ECHO Program. 
Repairs of DE and/or AT devices damaged while using the item in a 
manner inconsistent with its common use, and replacement of lost or 
stolen DE and/or AT devices, are not authorized coverage as an ECHO 
benefit. In addition, repairs and maintenance of deluxe, luxury, or 
immaterial features of DE or AT devices are not authorized coverage as 
an ECHO benefit.
    (d) * * *
    (3) Structural alterations. Alterations to living space and 
permanent fixtures attached thereto, including alterations necessary to 
accommodate installation of equipment or AT devices to facilitate 
entrance or exit, are excluded.
* * * * *
    (7) Equipment. Purchase or rental of DE and AT devices otherwise 
allowed by this section is excluded when:
    (i) The beneficiary is a patient in an institution or facility that 
ordinarily provides the same type of equipment or AT devices to its 
patients at no additional charge in the usual course of providing 
services; or
    (ii) * * *
    (iii) * * *
    (iv) The item is a duplicate DE or an AT device, as defined in 
section 199.2 of this title.
    (v) The item (or charge for access to such item through health club 
membership or other activity) is exercise equipment including an item 
primarily and customarily designed for use in sports or recreational 
activities, spa, whirlpool, hot tub, swimming pool, an electronic 
device used to locate or monitor the location of a beneficiary, or 
other similar item or charge.
    (8) Maintenance agreements. Maintenance agreements for beneficiary 
owned or rented equipment or AT device are excluded.
* * * * *
    (g) * * *
    (2) Equipment. (i) The TRICARE allowable amount for DE or AT 
devices shall be calculated in the same manner as DME allowable through 
section 199.4 of this title, and accrues to the fiscal year benefit 
limit specified in paragraph (f)(3) of this section.
    (ii) Cost-share. A cost-share, as provided by paragraph (f)(2) of 
this section, is required for each month in which equipment or an AT 
device is purchased under this section. However, in no month shall a 
sponsor be required to pay more than one cost-share regardless of the 
number of benefits the sponsor's dependents received under this 
section.
* * * * *
    (h) * * *
    (4) Repair or maintenance of DE owned by the beneficiary or an AT 
device is exempt from the public facility-use certification 
requirements.
* * * * *

    Dated: July 29, 2013.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2013-19153 Filed 8-7-13; 8:45 am]
BILLING CODE 5001-06-P
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