II

107TH CONGRESS

1ST SESSION S. 1402

To amend title 10, United States Code, to fully integrate the beneficiaries

of the Individual Case Management Program into the TRICARE program, to provide long-term health care benefits under the TRICARE

program and otherwise to improve the benefits provided under the

TRICARE program, and for other purposes.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 4, 2001

Mr. KENNEDY introduced the following bill; which was read twice and referred

to the Committee on Armed Services

A BILL

To amend title 10, United States Code, to fully integrate

the beneficiaries of the Individual Case Management Program into the TRICARE program, to provide long-term

health care benefits under the TRICARE program and

otherwise to improve the benefits provided under the

TRICARE program, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘TRICARE Benefits

5 Modernization Act of 2001’’.
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1 TITLE I—INTEGRATION OF INDI2 VIDUAL CASE MANAGEMENT

3 PROGRAM BENEFITS AND

4 TRICARE BASIC BENEFITS

5 SEC. 101. REQUIREMENT FOR INTEGRATION OF BENEFITS.

6 (a) IN GENERAL.—The Secretary of Defense shall—

7 (1) terminate the Individual Case Management

8 Program carried out under section 1079(a)(17) of

9 title 10, United States Code (as in effect on the day

10 before the effective date specified in section 401);

11 and

12 (2) integrate the beneficiaries under that pro13 gram, and the furnishing of care to those bene14 ficiaries, into the TRICARE program as modified

15 pursuant to the amendments made by this title.

16 (b) REPEAL OF SEPARATE AUTHORITY.—Section

17 1079 of title 10, United States Code, is amended by strik18 ing paragraph (17).

19 (c) SAVINGS PROVISION.—Nothing in this Act title

20 or the amendments made by this Act shall be construed—

21 (1) to modify any eligibility requirement for any

22 person receiving benefits under the Individual Case

23 Management Program before the effective date spec24 ified in section 401; or
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1 (2) to terminate any benefits available under

2 that program before that date.

3 (d) CONSULTATION REQUIREMENT.—The Secretary

4 of Defense shall consult with the other administering Sec5 retaries referred to in section 1072(3) of title 10, United

6 States Code, in carrying out this subsection.

7 SEC. 102. DOMICILIARY AND CUSTODIAL CARE INCIDENT

8 TO MEDICAL CARE.

9 (a) AUTHORITY.—Section 1077 of title 10, United

10 States Code, is amended—

11 (1) in subsection (b)(1), by inserting before the

12 period end the following: ‘‘, except as provided in

13 subsection (e)’’; and

14 (2) by adding at the end the following new sub15 section:

16 ‘‘(e) The prohibition in subsection (b)(1) does not

17 apply to domiciliary care or custodial care that is provided

18 to a patient by a physician, nurse, paramedic, or other

19 health care provider incident to other health care author20 ized under subsection (a), whether or not—

21 ‘‘(1) the potential for the patient’s condition of

22 illness, injury, or bodily malfunction to improve

23 might be nonexistent or minimal; or

24 ‘‘(2) the care is provided for the purposes of

25 maintaining function and preventing deterioration.’’.
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1 (b) DOMICILIARY AND CUSTODIAL CARE DE2 FINED.—Section 1072 of title 10, United States Code, is

3 amended by adding at the end the following new para4 graphs:

5 ‘‘(8) The term ‘domiciliary care’ means treat6 ment or services involving assistance with the per7 formance of activities of daily living that is provided

8 to a patient in a home-like setting because—

9 ‘‘(A) the treatment or services are not

10 available, or are not suitable to be provided, to

11 the patient in the patient’s home; or

12 ‘‘(B) no member of the patient’s family is

13 willing to provide the treatment or services.

14 ‘‘(9) The term ‘custodial care’—

15 ‘‘(A) means treatment or services that—

16 ‘‘(i) could be provided safely and rea17 sonably by a person not trained as a physi18 cian, nurse, paramedic, or other health

19 care provider; or

20 ‘‘(ii) are provided principally to assist

21 the recipient of the treatment or services

22 with the performance of activities of daily

23 living; and
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1 ‘‘(B) includes any treatment or service de2 scribed in subparagraph (A) without regard

3 to—

4 ‘‘(i) the source of any recommenda5 tion to provide the treatment or service;

6 and

7 ‘‘(ii) the setting in which the treat8 ment or service is provided.’’.

9 SEC. 103. CONFORMING REPEALS.

10 The following provisions of law are repealed:

11 (1) Section 703 of the National Defense Au12 thorization Act for Fiscal Year 2000 (Public Law

13 106–65; 113 Stat. 682; 10 U.S.C. 1077 note).

14 (2) Section 8118 of the Department of Defense

15 Appropriation Act, 2000 (Public Law 106–79; 113

16 Stat. 1260).

17 (3) Section 8100 of the Department of Defense

18 Appropriation Act, 2001 (Public Law 106–259; 114

19 Stat. 696).

20 TITLE II—LONG TERM HEALTH

21 BENEFITS

22 SEC. 201. LONG TERM CARE.

23 (a) LIMITATION.—Chapter 55 of title 10, United

24 States Code, is amended by inserting after section 1074i

25 the following new section:
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1 ‘‘§ 1074j. Long term care benefits program

2 ‘‘(a) REQUIREMENT FOR PROGRAM.—The Secretary

3 of Defense shall provide long term health care benefits

4 under the TRICARE program in an effective and efficient

5 manner that integrates those benefits with the benefits

6 provided on a less than a long term basis under the

7 TRICARE program.

8 ‘‘(b) AUTHORIZED CARE.—The types of health care

9 authorized to be provided under this section shall include

10 the following:

11 ‘‘(1) The types of health care authorized to be

12 acquired by contract under section 1079 of this title.

13 ‘‘(2) Extended care services.

14 ‘‘(3) Post-hospital extended care services.

15 ‘‘(4) Comprehensive intermittent home health

16 services.

17 ‘‘(c) DURATION OF POST-HOSPITAL EXTENDED

18 CARE SERVICES.—The post-hospital extended care serv19 ices provided in a skilled nursing facility to a patient dur20 ing a spell of illness under subsection (b)(3) shall continue

21 for as long as is medically necessary and appropriate. The

22 limitation on the number of days of coverage under sub23 sections (a)(2) and (b)(2)(A) of section 1812 of the Social

24 Security Act (42 U.S.C. 1395d) shall not apply with re25 spect to the care provided that patient.
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1 ‘‘(d) REGULATIONS.—The Secretary of Defense shall,

2 after consultation with the other administering Secre3 taries, prescribe regulations to carry out this section.

4 ‘‘(e) DEFINITIONS.—In this section:

5 ‘‘(1) The term ‘extended care services’ has the

6 meaning given the term in subsection (h) of section

7 1861 of the Social Security Act (42 U.S.C. 1395x).

8 ‘‘(2) The term ‘post-hospital extended services’

9 has the meaning given the term in subsection (i) of

10 section 1861 of the Social Security Act (42 U.S.C.

11 1395x).

12 ‘‘(3) The term ‘home health services’ has the

13 meaning given the term in section 1861(m) of the

14 Social Security Act (42 U.S.C. 1395x(m)).

15 ‘‘(4) The term ‘skilled nursing facility’ has the

16 meaning given the term in section 1819(a) of the

17 Social Security Act (42 U.S.C. 1395i–3(a)).

18 ‘‘(5) The term ‘spell of illness’ has the meaning

19 given the term in section 1861(a) of the Social Secu20 rity Act (42 U.S.C. 1395x(a)).’’.

21 (b) CLERICAL AMENDMENT.—The table of sections

22 at the beginning of such chapter is amended by inserting

23 after the item relating to section 1074i the following new

24 item:

‘‘1074j. Long term care benefits program.’’.
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1 SEC. 202. EXTENDED BENEFITS FOR DISABLED BENE2 FICIARIES.

3 Section 1079 of title 10, United States Code, is

4 amended by striking subsections (d), (e), and (f) and in5 serting the following:

6 ‘‘(d)(1) The health care benefits contracted for under

7 this section shall include extended benefits for dependents

8 referred to in the first sentence of subsection (a) who have

9 any of the following qualifying conditions:

10 ‘‘(A) Moderate or severe mental retardation.

11 ‘‘(B) A serious physical disability.

12 ‘‘(C) Any extraordinary physical or psycho13 logical condition.

14 ‘‘(2) The extended benefits shall include comprehen15 sive health care and case management services, to the ex16 tent not otherwise provided under this chapter with re17 spect to a qualifying condition, as follows:

18 ‘‘(A) Diagnosis.

19 ‘‘(B) Inpatient, outpatient, and comprehensive

20 home health supplies and services.

21 ‘‘(C) Training and rehabilitation, including spe22 cial education and assistive technology devices.

23 ‘‘(D) Institutional care in private nonprofit,

24 public, and State institutions and facilities and,

25 when appropriate, transportation to and from such

26 institutions and facilities.
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1 ‘‘(E) Any other services and supplies deter2 mined appropriate under regulations prescribed

3 under paragraph (6).

4 ‘‘(3) The extended benefits shall also include respite

5 care for the primary caregiver of a dependent eligible for

6 extended benefits under this subsection.

7 ‘‘(4) Home health supplies and services may be pro8 vided to a dependent under paragraph (2)(B) as other

9 than part-time or intermittent services (as determined in

10 accordance with the second sentence of section 1861(m)

11 of the Social Security Act (42 U.S.C. 1395x(m)) only if—

12 ‘‘(A) the provision of such supplies and services

13 in the home of the dependent is medically appro14 priate; and

15 ‘‘(B) the cost of the provision of such supplies

16 and services to the dependent is equal to or less

17 than the cost of the provision of similar supplies and

18 services to the dependent in a skilled nursing facil19 ity.

20 ‘‘(5) Subsection (a)(13) shall not apply to the provi21 sion of care and services determined appropriate to be pro22 vided as extended benefits under this subsection.

23 ‘‘(6) A member of the uniformed services shall pay

24 a share of the cost of any care and services provided as
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1 extended benefits to any of the dependents of the member

2 under this subsection as follows:

3 ‘‘(A) In the case of a member in the lowest en4 listed pay grade, the first $25 of the cumulative

5 costs of all care furnished to one or more dependents

6 of the member in a month.

7 ‘‘(B) In the case of a member in the highest

8 commissioned pay grade, the first $250 of the cumu9 lative costs of all care furnished to one or more de10 pendents of the member in a month.

11 ‘‘(C) In the case of a member in any other pay

12 grade, a fixed amount of the cumulative costs of all

13 care furnished to one or more dependents of the

14 member in a month, as prescribed for that pay

15 grade in regulations prescribed under paragraph (6).

16 ‘‘(7) The Secretary of Defense, in consultation with

17 the other administering Secretaries, shall prescribe regula18 tions to carry out this subsection.’’.

19 SEC. 203. REPORT TO CONGRESS ON RELATIONSHIP

20 AMONG FEDERAL LONG-TERM CARE INITIA21 TIVES.

22 Not later than April 1, 2002, the Secretary of De23 fense shall submit to Congress a report on the relationship

24 and compatibility of the long term care insurance program

25 under chapter 90 of title 5, United States Code (as added
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1 by the Federal Long-Term Care Security Act), and other

2 initiatives of the Federal Government to provide long term

3 care benefits for which members of the uniformed services

4 and their dependents are or would be eligible.

5 TITLE III—IMPROVEMENTS IN

6 TRICARE BASIC BENEFITS

7 AND ADMINISTRATION OF

8 BENEFITS

9 SEC. 301. SERVICES OR SUPPLIES DETERMINED NEC10 ESSARY.

11 (a) DETERMINATIONS OF NECESSITY.—Subsection

12 (a)(13) of section 1079 of title 10, United States Code,

13 is amended—

14 (1) by inserting ‘‘(A)’’ after ‘‘(13)’’;

15 (2) by designating the second sentence as sub16 paragraph (C), realigning that subparagraph flush

17 to the left margin, and striking ‘‘this paragraph’’ in

18 the text of such subparagraph (as so redesignated)

19 and inserting ‘‘subparagraph (A)’’; and

20 (3) by inserting after subparagraph (A), as des21 ignated by subparagraph (A), the following new sub22 paragraph:

23 ‘‘(B) For the purposes of subparagraph (A), the de24 termination that a service or supply is medically or psy25 chologically necessary to prevent, diagnose, or treat a
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1 mental or physical illness, injury, or bodily malfunction of

2 a patient, or to prevent deterioration of a patient, when

3 made by the physician treating the patient, shall be con4 clusive unless the physician’s determination is clearly erro5 neous, as determined by a higher authority or under the

6 CHAMPUS Peer Review Organization program.’’.

7 (b) DETERMINATIONS NOT SUBJECT TO PEER RE8 VIEW.—Subsection (o)(1) of such section is amended by

9 inserting ‘‘(subject to subsection (a)(13)(B))’’ after ‘‘de10 termined’’.

11 SEC. 302. PROSTHETICS, ORTHOTICS, AND HEARING AIDS.

12 Section 1077 of title 10 United States Code, as

13 amended by section 102, is further amended—

14 (1) in subsection (a), by striking paragraph

15 (15) and inserting the following:

16 ‘‘(15) A prosthetic or orthotic device, together

17 with related items and services as provided in sub18 section (e).

19 ‘‘(16) A hearing aid, but only for a dependent

20 of a member of the uniformed services on active

21 duty and only if the dependent has a profound hear22 ing loss, as determined under standards prescribed

23 in regulations by the Secretary of Defense in con24 sultation with the administering Secretaries.’’;
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1 (2) in subsection (b)(2), by striking ‘‘Hearing

2 aids, orthopedic footwear,’’ and inserting ‘‘Ortho3 pedic footwear’’; and

4 (3) by adding at the end the following new sub5 section:

6 ‘‘(f)(1) Authority to provide a prosthetic or orthotic

7 device under subsection (a)(15) includes authority to pro8 vide the following:

9 ‘‘(A) Any accessory or item of supply that is

10 used in conjunction with the device for the purpose

11 of achieving therapeutic benefit and proper func12 tioning.

13 ‘‘(B) Services necessary to train the recipient of

14 the device in the use of the device.

15 ‘‘(C) Repair of the device for normal wear and

16 tear or damage.

17 ‘‘(D) Replacement of the device if the device is

18 lost or irreparably damaged or the cost of repair

19 would exceed 60 percent of the cost of replacement.

20 ‘‘(E) Replacement of an orthotic device when

21 appropriate to accommodate the patient’s growth or

22 change of condition.

23 ‘‘(2) An augmentative communication device may be

24 provided as a voice prosthesis under subsection (a)(15).
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1 ‘‘(3) A prosthetic or orthotic device customized for

2 a patient may be provided under this section only by a

3 prosthetic or orthotic practitioner, respectively, who is

4 qualified to customize the device, as determined under reg5 ulations prescribed by the Secretary of Defense in con6 sultation with the administering Secretaries.’’.

7 SEC. 303. DURABLE MEDICAL EQUIPMENT.

8 (a) ITEMS AUTHORIZED.—Section 1077 of title 10,

9 United States Code, as amended by section 302, is further

10 amended—

11 (1) in subsection (a)(12), by striking ‘‘such as

12 wheelchairs, iron lungs, and hospital beds,’’ and in13 serting ‘‘which’’; and

14 (2) by adding at the end the following new sub15 section:

16 ‘‘(g)(1) Items that may be provided to a patient

17 under subsection (a)(12) include the following:

18 ‘‘(A) Any durable medical equipment that can

19 improve, restore, or maintain the function of a mal20 formed, diseased, or injured body part, or can other21 wise minimize or prevent the deterioration of the pa22 tient’s function or condition.

23 ‘‘(B) Any durable medical equipment that can

24 maximize the patient’s function and mobility con-
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1 sistent with the patient’s physiological or medical

2 needs.

3 ‘‘(C) Wheelchairs.

4 ‘‘(D) Iron lungs,

5 ‘‘(E) Hospital beds.

6 ‘‘(2) In addition to the authority to provide durable

7 medical equipment under subsection (a)(12), any

8 customization of equipment owned by the patient that is

9 durable medical equipment authorized to be provided to

10 the patient under this section or section 1079(a)(5) of this

11 title, and any accessory or item of supply for any such

12 equipment, may be provided to the patient if the

13 customization, accessory, or item of supply is essential

14 for—

15 ‘‘(A) achieving therapeutic benefit for the pa16 tient;

17 ‘‘(B) making the equipment serviceable; or

18 ‘‘(C) otherwise assuring the proper functioning

19 of the equipment.

20 ‘‘(3) The eligibility of a patient to receive durable

21 medical equipment and related services under this section

22 or section 1079(a)(5) of this title may not be limited on

23 the basis that a primary purpose of the use of the equip24 ment by the patient is transportation, comfort, or conven25 ience of the patient.’’.
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1 (b) PROVISION OF ITEMS ON RENTAL BASIS.—Para2 graph (5) of section 1079(a) of such title is amended to

3 read as follows:

4 ‘‘(5) Durable equipment provided under this

5 section shall be provided on a rental basis.’’.

6 SEC. 304. REHABILITATIVE THERAPY.

7 Section 1077(a) of title 10, United States Code, as

8 amended by section 302(1), is further amended by insert9 ing after paragraph (16) the following new paragraph:

10 ‘‘(17) Any rehabilitative therapy to improve, re11 store, or maintain function, or to minimize or pre12 vent deterioration of function, of a patient when pre13 scribed by a physician, including the following thera14 pies:

15 ‘‘(A) Physical or occupational therapy to

16 maintain range of motion in a paralyzed ex17 tremity of the patient, without regard to wheth18 er a purpose for providing the therapy is to re19 store a specific loss of function or is related to

20 the restoration of a specific loss of function.

21 ‘‘(B) Occupational therapy for an amputee

22 or a patient with an orthopedic impairment, in23 cluding gait analysis.
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1 ‘‘(C) Respiratory or recreation therapy

2 that is included as part of a treatment plan es3 tablished for the patient by the physician.’’.

4 SEC. 305. MENTAL HEALTH BENEFITS.

5 Section 1079(i) of title 10, United States Code, is

6 amended by adding at the end the following new para7 graphs:

8 ‘‘(4)(A) To receive outpatient mental health services

9 under a contract entered into under this section or section

10 1086 of this title for periods in excess of a limitation on

11 the availability of outpatient mental health benefit for a

12 year under the contract, a person may convert any unused

13 period of inpatient mental health benefit available to the

14 person for that year under the contract to one or more

15 additional periods of availability of outpatient mental

16 health benefit.

17 ‘‘(B) The total amount of inpatient mental health

18 benefit remaining available to a person for a year under

19 a contract referred to in subparagraph (A) shall be re20 duced to the extent of any conversion of the benefit for

21 the person for the year under that subparagraph.

22 ‘‘(C) For the purposes of this paragraph, one day of

23 inpatient mental health benefit converts to eight hours of

24 outpatient mental health benefit.
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1 ‘‘(5) Mental health services, including substance

2 abuse services, available to a patient under a contract en3 tered into under this section or section 1086 of this title

4 shall be furnished to the patient in the least restrictive

5 environment that is effective and appropriate for meeting

6 the treatment and rehabilitative needs of the patient.’’.

7 TITLE IV—EFFECTIVE DATE

8 SEC. 401. EFFECTIVE DATE.

9 This Act and the amendments made by this Act shall

10 take effect on October 1, 2001.

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