[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Proposed Rules]
[Pages 44800-44802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20685]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[DoD-2009-HA-0095]
RIN 0720-AB33


TRICARE; Extended Care Health Option

AGENCY: Office of the Secretary, Department of Defense.

ACTION: Proposed rule.

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SUMMARY: The Department of Defense is publishing this proposed rule to 
implement the requirements enacted by Congress in Section 732 of the 
Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 
which changes the limit of the Government's share of providing certain 
benefits under the Extended Care Health Option (ECHO) from $2,500 per 
month to $36,000 per year, and for other non-legislated changes to the 
ECHO.

DATES: Comments received at the address indicated below by October 30, 
2009 will be accepted.

ADDRESSES: You may submit comments, identified by docket number and or 
Regulatory Information Number (RIN) number and title, by either of the 
following methods:
    <bullet> Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> 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: Michael Kottyan, TRICARE Management 
Activity, Medical Benefits and Reimbursement Branch, telephone (303) 
676-3520.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 1079 of title 10, United States Code (U.S.C.), as amended 
by Section 701(b) of the National Defense Authorization Act for Fiscal 
Year 2002 [Pub. L. 107-107], required the Department of Defense to 
establish a program of extended benefits for eligible dependents. That 
program, known as the Extended Care Heath Option (ECHO), replaced the 
Program for Persons with Disabilities (PFPWD) and was implemented on 
September 1, 2005. The primary purpose of the ECHO is to provide 
eligible beneficiaries with benefits that are not available through the 
TRICARE Basic Program. The term ``eligible beneficiary'' means an 
individual who is a dependent of an Active Duty Service Member (ADSM) 
or is a Transitional Survivor of a deceased ADSM and who has a 
qualifying condition. Qualifying conditions include moderate or severe 
mental retardation, serious physical disability, or an extraordinary 
physical or psychological condition. The benefits available through the 
ECHO are intended to assist in the reduction of the disabling effects 
of an ECHO qualifying condition.
    Section 1079(e)(3) and (4) authorized benefits, including training, 
rehabilitation, special education, assistive technology devices, 
institutional care in private, nonprofit, public, and State 
institutions and facilities and, if appropriate, transportation to and 
from such institutions and facilities in which the beneficiary is 
receiving institutional care.
    Section 1079(f)(2) limited the Government's liability for benefits 
authorized by Section 1079(e) and (4) to $2,500 per month and required 
that the beneficiary's sponsor be liable for any amount of the monthly 
total cost for those benefits that exceeded the Government's limit. 
Section 1079(e) also authorized the extended benefits program to 
provide additional benefits including diagnostic services, inpatient 
and outpatient care, comprehensive home health care, respite care, and 
other services and supplies as determined appropriate by the Secretary. 
However, Section 1079(f) did not limit the Government's liability for 
those additional benefits. By Final Rule published in the Federal 
Register on August 20, 2004, (69 FR 51559) the Department established 
that those additional benefits accrued to the $2,500 per month limit.
    Section 732 of the Duncan Hunter National Defense Authorization Act 
for Fiscal Year 2009 [Public Law 110-417] (NDAA 2009) changed the limit 
of the Government's liability for benefits authorized under Section 
1079(e)(3) and (4) from $2,500 per month to $36,000 per year, prorated 
as determined by the Secretary. This rule does not prorate the annual 
limit of Government liability. Section 732 does not affect other 
benefits authorized under Section 1079(e).
    This proposed rule changes the Government's share of providing all 
benefits available through the Extended Care Health Option from $2,500 
per month to $36,000 per fiscal year. This rule does not change the 
Government's liability for benefits provided by the ECHO Home Health 
Care (EHHC) benefit or the EHHC Respite Care benefit.
    Additionally, Section 732 changed the sponsor's liability for costs 
exceeding the limit of the Government's liability from a per-month 
basis to a per-year basis; this rule includes that change.
    The following additional changes contained in this rule are further 
discussed below: deletes references to the PFPWD, eliminates allocating 
the allowable cost of durable equipment authorized for purchase through 
the ECHO, clarifies the monthly reimbursement for benefits received 
through the ECHO Home Health Care (EHHC), and allows a waiver of the 
requirement to enroll in the sponsor's branch of Service Exceptional 
Family Member Program (EFMP) in order to register in the ECHO.
    Active Duty Family Members who have a qualifying condition are 
eligible to receive benefits through the ECHO. Qualifying conditions 
include moderate or severe mental retardation, a serious physical 
disability, or an extraordinary physical or psychological condition 
such that the beneficiary is homebound. Serious physical disabilities 
include those conditions that preclude an individual from the unaided 
performance of at least one major life activity such as breathing, 
cognition, hearing, seeing, and age appropriate ability essential to 
bathing, dressing, eating, grooming, speaking, stair use, toilet use, 
transferring, and walking.
    The ECHO, as the replacement for the PFPWD, has been fully 
implemented for several years; it is therefore appropriate to delete 
references in the regulations to the transition of the PFPWD to the 
ECHO.
    Durable equipment, which is defined as a device or apparatus which 
does not qualify as ``Durable Medical Equipment'' under the TRICARE 
Basic Program but which is essential to the efficient arrest or 
reduction of the functional loss resulting from, or the

[[Page 44801]]

disabling effects of an ECHO-qualifying condition, is eligible for 
TRICARE coverage through the ECHO. Paragraph (g)(2) within Sec.  199.5 
provides for prorating the allowable amount for durable equipment over 
a calculated period of time. The method of proration resulted in the 
monthly benefit limit of $2,500 being divided, at the ECHO-registered 
beneficiary's sponsor's discretion, at least equally between the 
allowable cost of purchasing ECHO-authorized durable equipment and the 
cost of other authorized ECHO benefits. As a result of Section 732 and 
the changes made in this rule, the allowable expense for durable 
equipment accrues to the maximum fiscal year Government limit of 
$36,000. Therefore, proration of allowable durable equipment expense is 
no longer an appropriate option. As a result, the ECHO beneficiary's 
sponsor will have only one cost share liability for each authorized 
item of durable equipment purchased through the ECHO.
    The ECHO Home Health Care benefit is limited on a fiscal year basis 
to the amount TRICARE would reimburse a Skilled Nursing Facility (SNF) 
if the beneficiary were a patient in the SNF. Paragraph (g)(4)(iii) of 
Sec.  199.5 limits the maximum monthly Government reimbursement for the 
EHHC, including EHHC respite care, to no more than one-twelfth of the 
annual maximum Government cost share. Because the actual number of days 
in the month varies, the one-twelfth limit can be over or understated 
for a given month. This rule revises that requirement by taking into 
account the actual number of days in a month EHHC benefits are 
received.
    As required by Section 1079(d)(1), eligible beneficiaries must 
register in the ECHO in order to receive ECHO benefits. Evidence of 
enrollment in the sponsor's branch of Service's EFMP is required in 
order to register in the ECHO. The Department recognizes there are 
circumstances when that requirement is not appropriate. This rule 
specifies when the EFMP enrollment requirement can be waived.
    Except as specified herein, all other requirements of the ECHO 
remain as currently published.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review''

    Section 801 of Title 5, U.S.C., and Executive Order (E.O.) 12866 
requires 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''

    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 
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 proposed rule will not significantly affect 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). Existing information collection 
requirements of the TRICARE and Medicare programs will be utilized.

Executive Order 13132, ``Federalism''

    This proposed 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 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

    Extended benefits for disabled family members of Active Duty 
Service members, health care, 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 199.5 is amended by:
    a. Removing paragraphs (b)(4), (g)(2)(ii)(A) through 
(g)(2)(ii)(C)(2), and (g)(2)(ii)(E);
    b. Redesignating paragraph (g)(2)(ii)(D) as (g)(2)(ii); and
    c. Revising paragraphs (c)(6), (c)(7)(iii), (f)(3)(i), (g)(2)(i), 
newly redesignated paragraph (g)(2)(ii), (g)(4)(iii), (h)(2), 
(h)(3)(v)(A), and (j) to read as follows:


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

* * * * *
    (c) * * *
    (6) Transportation of an ECHO beneficiary receiving benefits under 
paragraph (c)(5), and a medical attendant when necessary to assure the 
beneficiary's safety, to or from a facility or institution to receive 
authorized ECHO services or items.
* * * * *
    (7) * * *
    (iii) The Government's cost-share incurred for these services 
accrues to the fiscal year benefit limit of $36,000.
* * * * *
    (f) * * *
    (3) * * *
    (i) ECHO. The total Government share of the cost of all ECHO 
benefits, except ECHO Home Health Care (EHHC) and EHHC respite care, 
provided in a given fiscal year to a beneficiary, may not exceed 
$36,000 after application of the allowable payment methodology.
* * * * *
    (g) * * *
    (2) Equipment. (i) The TRICARE allowable amount for durable 
equipment shall be calculated in the same manner as durable medical 
equipment allowable through Section 199.4, 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 item of durable equipment that is 
authorized and purchased by the Director, TRICARE Management Activity 
or designee.
* * * * *
    (4) * * *
    (iii) The maximum monthly Government reimbursement for EHHC, 
including EHHC respite care, will be based on the actual number of 
hours of EHHC services rendered in the month, but in no case will it 
exceed one-twelfth of the annual maximum Government cost-share as 
determined in this section and adjusted according to the actual number 
of days in the month the services were provided.

[[Page 44802]]

    (h) * * *
    (2) Registration. Active Duty sponsors must register potential 
ECHO-eligible beneficiaries through the Director, TRICARE Management 
Activity, or designee prior to receiving ECHO benefits. The Director, 
TRICARE Management Activity, or designee will determine ECHO 
eligibility and update the Defense Enrollment Eligibility Reporting 
System (DEERS) accordingly. Unless waived by the Director, TRICARE 
Management Activity or designee, sponsors must provide evidence of 
enrollment in the Exceptional Family Member Program provided by their 
branch of Service at the time they register their family member(s) for 
the ECHO.
    (3) * * *
    (v) Public facility use. (A) An ECHO beneficiary residing within a 
state must demonstrate that a public facility is not available and 
adequate to meet the needs of their qualifying condition. Such 
requirements shall apply to beneficiaries who request authorization for 
training, rehabilitation, special education, assistive technology, and 
institutional care in private nonprofit, public, and state institutions 
and facilities, and if appropriate for beneficiaries receiving 
institutional care, transportation to and from such institutions and 
facilities. The maximum Government cost-share for services that require 
demonstration of public facility non-availability or inadequacy is 
limited to $36,000 per fiscal year per beneficiary. State-administered 
plans for medical assistance under Title XIX of the Social Security Act 
(Medicaid) are not considered available and adequate facilities for the 
purpose of this section.
* * * * *
    (j) Effective date. All changes to this section are effective as of 
October 14, 2008, and claims for ECHO benefits provided on or after 
that date will be reprocessed retroactively to that date as necessary.
* * * * *

    Dated: August 21, 2009.
Patricia Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E9-20685 Filed 8-28-09; 8:45 am]
BILLING CODE 5001-06-P