Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

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###### Department of Defense

###### Office of the Secretary

          - 32 CFR Part 199
          - [DoD-2009-HA-0094]
          - RIN 0720-AB32

# AGENCY:

Office of the Secretary, Department of Defense.

# ACTION:

Proposed rule.

# SUMMARY:

The Department of Defense is publishing this proposed rule to clarify TRICARE coverage for diabetic education. This rule introduces new definitions and addresses revisions or omissions in policy or procedure inadvertently missed in previous regulatory changes pertaining to diabetic education.

# DATES:

Written comments received at the address indicated below by October 30, 2009 will be accepted.

# ADDRESSES:

You may submit comments, identified by docket number or Regulatory Information Number (RIN) and title, by either of the following methods:

*The Web site:**http://www.regulations.gov.*                         Follow the instructions for submitting comments.                    

*Mail:*                         Federal Docket Management System Office, Room 3C843 Pentagon, 1160 Defense Pentagon, Washington, DC 20301-1160.                    

*Instructions:*                         All submissions received must include the agency name and docket number or RIN for this                         **Federal Register**                         document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at                         *http://www.regulations.gov*                         as they are received without change, including any personal identifiers or contact information.                    

# FOR FURTHER INFORMATION CONTACT:

Joy Saly, Medical Benefits and Reimbursement Branch, TRICARE Management Activity, telephone (303) 676-3742. Questions regarding payment of specific claims should be addressed to the appropriate TRICARE contractor.

# SUPPLEMENTARY INFORMATION:

This proposed rule introduces new definitions and addresses revisions or omissions in policy or procedure inadvertently missed in previous regulatory changes pertaining to diabetic education.

Diabetes self-management training is an interactive, collaborative process involving beneficiaries with diabetes, their physician(s) and their educators. The educational process should provide the beneficiary with the knowledge and skills needed to perform self-care, manage crises, and make lifestyle changes required to manage the diabetes successfully.

                    TRICARE had previously classified diabetes self-management training as a counseling service that was not medically necessary. Since all services provided under the TRICARE program must be medically necessary and appropriate, diabetes self-management training was excluded from coverage. In developing the TRICARE policy on self-management, however, it was determined that diabetes educational services are consistent with the medically necessary and appropriate provision and it was decided to conform with Medicare's policy on diabetes self-management training. As such, TRICARE removed “diabetic self-                          ( print page 44799)                        management training” programs as an excluded benefit effective July 1, 1998. Although the policy change conflicted with existing regulation language, TRICARE determined to move forward with the policy change because TRICARE was expanding and not restricting a benefit, and the change was in line with Medicare's benefit. This proposed rule corrects the failure to amend the language of the regulation and brings the regulation into conformance with the current policy.                

*Sec. 199.4 provides basic program benefits.*

*Sec.*                     199.4(d)(3)(xiv) Diabetic Self-Management Training (DSMT) is added as a benefit under other covered services and supplies. This addition brings the regulation into conformance with the current policy.                

*Sec.*                     199.4(g)(39) is revised to remove diabetic self-education programs as an exclusion.                

*Sec. 199.6 addresses authorized providers.*

*Sec.*                     199.6(c)(3)(iii)(L) adds Nutritionist to the list of individual professional providers of medical care authorized to provide services to CHAMPUS beneficiaries.                

*Sec.*                    199.6(c)(3)(iii)(M) adds Registered Dietitian to the list of individual professional providers of medical care authorized to provide services to CHAMPUS beneficiaries.                

*Regulatory Procedures*.                

## Executive Order 12866, “Regulatory Planning and 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 a significant regulatory action.

## Public Law 96-354, “Regulatory Flexibility Act” (RFA) (5 U.S.C. 601)

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

## Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

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

## Public Law 104-4, Section 202, “Unfunded Mandates Reform Act”

Section 202 of Public Law 104-4, “Unfunded Mandates Reform Act,” requires that an analysis be performed to determine whether any federal mandate may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector of $100 million in any one year. 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, and thus this proposed rule is not subject to this requirement.

## Executive Order 13132, “Federalism”

Executive Order 13132, “Federalism,” requires that an impact analysis be performed to determine whether the rule has federalism implications that would have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. It has been certified that this proposed rule does not have federalism implications, as set forth in Executive Order 13132.

# 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 proposed to be 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 adding paragraph (d)(3)(ix), and revising paragraph (g)(39) to read as follows:

§ 199.4 

* * * * *

(d) * * *

(3) * * *

(ix) Diabetes Self-Management Training (DSMT). A training service or program that educates diabetic patients about the successful self-management of diabetes. It includes the following criteria: education about self-monitoring of blood glucose, diet, and exercise; an insulin treatment plan developed specifically for the patient who is insulin-dependent; and motivates the patient to use the skills for self-management. The DSMT service or program must be accredited by the American Diabetes Association. Coverage limitations on the provision of this benefit will be as determined by the Director, TRICARE Management Activity, or designee.

* * * * *

(g) * * *

(39) Counseling. Counseling services that are not medically necessary in the treatment of a diagnosed medical condition: For example, educational counseling, vocational counseling, nutritional counseling, and counseling for socioeconomic purposes, stress management, lifestyle modification, etc. Services provided by a certified marriage and family therapist, pastoral or mental health counselor in the treatment of a mental disorder are covered only as specifically provided in § 199.6. Services provided by alcoholism rehabilitation counselors are covered only when rendered in a CHAMPUS-authorized treatment setting and only when the cost of those services is included in the facility's CHAMPUS-determined allowable cost rate.

* * * * *

3. Section 199.6 is amended by adding paragraphs (c)(3)(iii)(L) and (M).

§ 199.6 

* * * * *

(c) * * *

(3) * * *

(iii) * * *

(L) Nutritionist. A nutritionist may provide diabetes self-management training (DSMT) via an accredited DSMT program. The nutritionist must be licensed by the State in which the care is provided, and must be under the supervision of a physician who is overseeing the DSMT program.

(M) Registered Dietitian. A dietitian may provide diabetes self-management training (DSMT) via an accredited DSMT program. The dietitian must be licensed by the State in which the care is provided, and must be under the supervision of a physician who is overseeing the DSMT program.

* * * * *

      ( print page 44800)    
Dated: August 21, 2009.

Patricia L. Toppings,

OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. E9-20684 Filed 8-28-09; 8:45 am]

BILLING CODE 5001-06-P