### 12953 Federal Register / Vol. 78, No. 38 / Tuesday, February 26, 2013 / Rules and Regulations

affected MTF or MTFs to ensure the proficiency levels of the practitioners at the MTF or MTFs; or

(C) Determines that the lack of NAS data would significantly interfere with TRICARE contract administration; and

(D) Provides notification of the ASD(HA)’s intent to require an NAS under this authority to covered beneficiaries who receive care at the MTF or MTFs that will be affected by the decision to require an NAS under this authority; and

(E) Provides at least 60-day notification to the Committees on Armed Services of the House of Representatives and the Senate of the ASD(HA)’s intent to require an NAS under this authority, the reason for the NAS requirement, and the date that an NAS will be required.

(ii) Rules in effect at the time civilian medical care is provided apply. The applicable rules and regulations regarding Nonavailability Statements in effect at the time the civilian care is rendered apply in determining whether a NAS is required.

(iii) The Director, TMA is responsible for issuing the procedural rules and regulations regarding Nonavailability Statements. Such rules and regulations should address:

(A) When and for what services a NAS is required. However, a NAS may not be required for services otherwise available at an MTF located within a 40- mile radius of the beneficiary’s residence when another insurance plan or program provides the beneficiary’s primary coverage for the services. This requirement for an NAS does not apply to beneficiaries enrolled in TRICARE Prime, even when those beneficiaries use the point-of-service option under § 199.17(n)(3) of this part; and

(B) When and how notifications will be made to a beneficiary who is not enrolled in TRICARE Prime as to whether or not he or she resides in a geographic area that requires obtaining a NAS; and

(C) What information relating to claims submissions, including the documentation, if any, that is required to document that a valid NAS was issued. However, when documentation of a NAS is required, then that documentation shall be valid for the adjudication of CHAMPUS claims for all related care otherwise authorized by this part which is received from a civilian source while the beneficiary resided within the Uniformed Service facility catchment area which issued the NAS.

(iv) In the case of any service subject to a NAS requirement under this paragraph (a)(9) and also subject to a preadmission (or other pre-service) authorization requirement under § 199.4 or § 199.15 of this part, the administrative processes for the NAS and pre-service authorization may be combined.

* * * * *

Dated: February 1, 2013. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2013–03418 Filed 2–25–13; 8:45 am]

**BILLING CODE 5001–06–P**

**DEPARTMENT OF DEFENSE**

**Office of the Secretary**

**32 CFR Part 199**

**[Docket ID: DOD–2011–HA–0035]**

**RIN 0720–AB49**

**TRICARE; TRICARE Sanction Authority for Third-Party Billing Agents** 

**AGENCY :**  Office of the Secretary, Department of Defense.

**ACTION :**  Final rule.

**SUMMARY :**  This final rule will provide the Director, TRICARE Management Activity (TMA), or designee, with the authority to sanction third-party billing agents by invoking the administrative remedy of exclusion or suspension from the TRICARE program. Such sanctions may be invoked in situations involving fraud or abuse on the part of third-party billing agents that prepare or submit claims presented to TRICARE for payment.

**DATES :**  Effective date: This rule is effective March 28, 2013.

**FOR FURTHER INFORMATION CONTACT :**  Ms. Ann N. Fazzini, Medical Benefits and Reimbursement Branch, TMA, telephone, (303) 676–3803.

**SUPPLEMENTARY INFORMATION :**  I. Executive Summary and Overview A. Purpose of the Regulatory Action

As stated in the proposed rule, TRICARE has regulatory authority under 32 Code of Federal Regulations (CFR) 199.9 to invoke sanctions in situations involving fraud or abuse on the part of providers of TRICARE services. A provider is defined in 32 CFR 199.2 as, ‘‘A hospital or other institutional provider, a physician, or other individual professional provider, or other provider of services or supplies asspecified in § 199.6 of this part.’’ Thirdparty billing agents do not meet the definition of a provider as stated in 32 CFR 199.2, nor do TRICARE regulations currently define third-party billing agents.

Title 42 of the CFR subpart C— Exclusions at 42 CFR 402.200(b)(1) provides for the imposition of an exclusion from the Medicare and Medicaid programs (and, where applicable, other Federal health care programs) against persons that violate the provisions provided in § 402.1(e) (and further described in § 402.1(c)). However, TRICARE had no independent regulatory authority to sanction or exclude third-party billing agents. This final rule provides that authority.
B. Summary of Major Provisions

This final rule establishes that such entities, when acting on behalf of a provider, are held to an equal standard in regard to accuracy and honesty when filing claims for services and supplies under the TRICARE program. As such, these entities should be subject to the same administrative controls applied to providers in ensuring that funds are disbursed appropriately. This rule will allow TRICARE to sanction third-party billing agents to prevent the payment of false or improper billings.
C. Summary of Costs and Benefits

By expanding the scope ofsanctioning authority to include thirdparty billing agents, TRICARE costs are not anticipated to increase in this area. Rather, by expanding the sanctioning authority to include third-party billing agents in situations of fraud or abuse, the program is safeguarding benefit dollars from being expended for fraudulent or abusive charges. The anticipated result of this final rule is a savings benefit to the program.
II. Department of Defense Inspector General Report on TRICARE Controls Over Claims Prepared by Third-Party Billing Agents

The Department of Defense, Office of Inspector General (DoD IG) initiated an audit in February 2008 to review TRICARE controls over claims submitted by third-party billing agents (Department of Defense Inspector General Report No. D–2009–037— ‘‘TRICARE Controls Over Claims Prepared by Third-Party Billing Agencies’’). The DoD IG published a report on December 31, 2008. The report included a recommendation that the Director, TMA strengthen internal controls by initiating action to obtain statutory or regulatory authority to sanction billing agencies or any entities that prepare or submit improper health care claims to TRICARE contractors.


### 12954 Federal Register / Vol. 78, No. 38 / Tuesday, February 26, 2013 / Rules and Regulations

III. Review of Public Comments

In the Federal Register of September 20, 2011, (76 FR 58202), the Office of the Secretary of Defense published for public comment a Proposed Ruleregarding sanction authority for thirdparty billing agents.

We received one comment on the proposed rule. The commenter recommended that the Code of Federal Regulations (CFR) rule be expanded to prohibit sanctioned providers or third party billing agents from pursing collection activities against patients in the event that sanctions are implemented. We appreciate this comment and note that there is presently policy and regulations that address this issue. By their very nature, third-party billing agents have a contractual relationship with the health care provider that requires them to file claims on behalf of the provider. Thisshould normally require that the thirdparty billing agreement meet the claims filing requirements of the entity or agency that would be paying the claim. In the case of a DoD beneficiary, claims must be filed in accordance with the Code of Federal Regulations, including the requirements relating to the maximum allowable payments and any balance billing limitations. Additionally, TRICARE benefit payments are payable directly to the provider, not the third-party billing agent, as federal regulations prohibit the general assignment of claims. The agent has no independent right to payment from either TRICARE or the beneficiary.

Per 32 CFR 199.9(h)(4)(i)(c), participating providers are considered to have forfeited or waived any right or entitlement to bill TRICARE beneficiaries for care involved in claims for services furnished on or after the effective date of the provider’s exclusionor suspension. As a result, any thirdparty billing agent purporting to act on behalf of a sanctioned provider would also be prohibited from billing TRICARE beneficiaries on behalf of that provider. Additionally, if the proposed authority to sanction third-party billing agents isinvoked, a suspended or excluded thirdparty billing agent would also be prohibited from submitting a claim to TRICARE on behalf of any authorized provider or to bill any TRICARE beneficiary directly. Any claim received from an excluded third-party billing agent would be returned to the provider with instructions to resubmit the claim directly or through another third-party billing agent. As long as the provider of services has not been sanctioned and remains an authorized TRICARE provider pursuant to the requirements in 32 CFR 199.6, the provider remains entitled to reimbursement for covered services. Under either of these scenarios, TRICARE beneficiaries should not be subject to collection actions.

It is also important to note that the authority sought under the proposed rule to sanction third-party billing agents by invoking administrative remedies under 32 CFR 199.9 is in addition to, and not in lieu of, any other remedies or sanctions authorized by law or regulation, including potential criminal convictions and civil judgments for fraud and abuse. IV. Regulatory Procedures Executive Order 12866, ‘‘Regulatory Planning and Review’’ and Executive Order 13563, ‘‘Improving Regulation and Regulatory Review’’

Sec. 801 of Title 5, United States Code (U.S.C.), and Executive Orders 12866 and 13563 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 of which would have other substantial impacts. This final rule is not a significant regulatory action.
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 final 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 rule is not subject to this requirement. Public Law 96–354, ‘‘Regulatory Flexibility Act’’ (RFA) (5 U.S.C. 601)

Public Law 96–351, ‘‘Regulatory Flexibility Act’’ (RFA) (5 U.S.C. 601), requires each Federal agency to 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 final 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 final rule is not subject to the requirements of RFA. Public Law 96–511, ‘‘Paperwork Reduction Act’’ (44 U.S.C. Chapter 35)

This final rule does not contain a ‘‘collection of information’’ requirement, and will not impose additional information collection requirement on the public under Public Law 96–511, ‘‘Paperwork Reduction Act’’ (44 U.S.C. Chapter 35).
Executive Order 13132, ‘‘Federalism’’

E.O. 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 final rule does not have federalism implications, as set forth in E.O. 13132. List of Subjects in 32 CFR Part 199

Claims, Dental health, Health care, Health insurance, Individuals with disabilities, Military personnel.

Accordingly, DoD amends 32 CFR part 199 as follows:

**PART 199—CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE**  **UNIFORMED SERVICES (CHAMPUS)**

■ 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 199.2 is amended by adding in alphabetical order to paragraph (b), a definition of ‘‘Third-party billing agent’’ to read as follows:

**§ 199.2 Definitions**
* * * * *

(b) * * * Third-party billing agent. Any entity that acts on behalf of a provider to prepare, submit and monitor claims, excluding those entities that act solely as a collection agency.

* * * * *

■ 3. Section 199.9 is amended by adding paragraph (n) to read as follows:

**§ 199.9 Administrative remedies for fraud, abuse, and conflict of interest** 
* * * * *

(n) Third-party billing agents as defined in § 199.2(b) of this part, while not considered providers, are subject to the provisions of this section to the same extent as such provisions apply to providers.


### 12955 Federal Register / Vol. 78, No. 38 / Tuesday, February 26, 2013 / Rules and Regulations

Dated: February 1, 2013. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2013–03416 Filed 2–25–13; 8:45 am]

**BILLING CODE 5001–06–P**

**DEPARTMENT OF EDUCATION**

**34 CFR Chapter IV**

**[Docket ID ED–2012–OVAE–0053]**

**Final Requirements, Definitions, and Selection Criteria—Native American**  **Career and Technical Education Program (NACTEP)** 

[Catalog of Federal Domestic Assistance

(CFDA) Number: 84.101A.]

**AGENCY :**  Office of Vocational and Adult Education, Department of Education.

**ACTION :**  Final requirements, definitions, and selection criteria.

**SUMMARY :**  The Assistant Secretary for Vocational and Adult Education announces requirements, definitions, and selection criteria under the Native American Career and Technical Education Program (NACTEP). The Assistant Secretary may use these requirements, definitions, and selection criteria for a competition in fiscal year (FY) 2013 and possibly in later years. We take this action to notify all interested parties and eligible applicants in particular, of the requirements, definitions, and selection criteria that we may use in upcoming competitions under section 116 of the Carl D. Perkins Career and Technical Education Act of 2006 (the Act).

**DATES :**  Effective Date: March 28, 2013.

**FOR FURTHER INFORMATION CONTACT :**  Gwen Washington, by telephone: (202) 245–7790, or by email: gwen.washingon@ed.gov; or Linda Mayo, by telephone: (202) 245–7792, or by email: linda.mayo@ed.gov

.

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–
8339.

**SUPPLEMENTARY INFORMATION :** 

Purpose of Program: Under NACTEP, the Secretary provides grants, cooperative agreements, or enters into contracts with Indian tribes, tribal organizations, or Alaska Native entities to improve career and technical education programs that are consistent with the purposes of the Act and that benefit Native Americans and Alaska Natives.

Program Authority: 20 U.S.C. 2301 et seq., particularly 2326(a)–(g). We published a notice of proposed requirements, definitions, and selection criteria for this program in the Federal Register on November 20, 2012 (77 FR 69579) (November 20, 2012 Notice), which contained background information and our reasons for proposing our requirements, definitions, and selection criteria. Except for minor technical changes, there are no differences between the proposed requirements, definitions, and selection criteria and the final requirements, definitions and selection criteria.

Public Comment: In response to our invitation in the November 20, 2012 Notice, we received three comments in support of our proposals and one request for clarification of certain elements of our Notice. The following is a discussion of those comments with our responses. We made no changes in response to comments we received.

Analysis of Comments: Comment: Two comments we received were from current NACTEP grantees supporting our proposed requirements, definitions, and selection criteria. These commenters indicated that their current NACTEP grants had enabled them to serve the career and technical education needs of their Indian student populations in the face of high unemployment rates and great need for career and technical education. One of the commenters represented a reservation with an unemployment rate of 66 percent where most reservation inhabitants are living in poverty. This commenter indicated that its current NACTEP grant had had a considerable positive effect on the reservation and members of the commenters’ tribe by preparing the tribe’s students to fulfill expected local workforce needs during the period covered by the current grant. Both commenters agreed with the Department’s proposed approach of retaining programmatic elements developed for the first NACTEP competition following enactment of the Act for grant competitions funded with appropriations under this statute.

Discussion: We agree with the commenters, and in this notice we announce as final the NACTEP requirements, definitions, and selection criteria we proposed in our November 20, 2012 Notice.

Change: None. Comment: We received one comment saying that the approach of retaining current requirements developed following the 2006 reauthorization of the Act was one of consistency and strength and would provide for program continuity. This commenter expressed the view that the Department’s approach had worked well for NACTEP and that there was no need to make changes.

The commenter also requested that the Department not impose a page limit for applications in the next competition so as to allow applicants the greatest flexibility in their applications.

Discussion: With regard to the comment about our overall approach, we agree with the commenter, and in this notice we announce as final the NACTEP requirements, definitions, and selection criteria we proposed in our November 20, 2012 Notice.

The commenter requested that we not impose application page limitations. We do not do so through these requirements, definitions, or selection criteria.

Change: None. Comment: We received one comment requesting clarification of the November 20, 2012 Notice’s ‘‘Authorized Programs, Services, and Activities’’ section, (subsection II within the ‘‘Proposed Requirements’’ section), asking whether applicants would be required to meet all three elements under ‘‘Authorized programs’’ or any combination of those elements. Also with regard to ‘‘Authorized Programs, Services, and Activities,’’ the commenter asked for clarification on challenging academic standards in reading/language arts and in mathematics, stating that the November 20, 2012 Notice proposed the integration of academics with career and technical education only at the secondary level. This commenter also asked where the term ‘‘special population’’ is defined.

Discussion: Yes, applicants are required to meet all three elements under ‘‘Authorized programs.’’ To ensure consistency with the Act, in the ‘‘Authorized Programs, Services, and Activities’’ section of our November 20, 2012 Notice, we require alignment of NACTEP projects with other programs authorized under the Act, including requirements that recipients of Perkins funds provide individuals with coherent and rigorous content aligned with challenging academic standards and relevant technical knowledge and skills and improve career and technical education programs. Section 116(e) of the Act requires the Assistant Secretary to ensure that activities funded under NACTEP will improve career and technical education programs. And, section 3(5) of the Act defines the term ‘‘career and technical education’’ as requiring certain elements.

Therefore, we require that NACTEP programs meet all of the elements of the Act’s definition of ‘‘career and technical education.’’ In addition, we require