```

[Federal Register Volume 78, Number 38 (Tuesday, February 26, 2013)]
[Rules and Regulations]
[Pages 12951-12953]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03418]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[Docket ID: DOD-2011-HA-0059]
RIN 0720-AB52

TRICARE; Elimination of the Non-Availability Statement (NAS) 
Requirement for Non-Emergency Inpatient Mental Health Care

AGENCY: Office of the Secretary, Department of Defense.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule eliminates the requirement that states a NAS 
is needed for non-emergency inpatient mental health care in order for a 
TRICARE Standard beneficiary's claim to be paid. Currently, NAS are 
required for non-emergency inpatient mental health care for TRICARE 
Standard beneficiaries who live within a military treatment facility 
catchment area. At this time, the number of NASs issued is negligible 
as most mental health admissions are emergency admissions. Requiring a 
NAS for a relatively few non-emergency inpatient mental health 
admissions is disproportionate to the cost of maintaining the systems 
necessary to process and coordinate the NAS.

DATES: Effective March 28, 2013.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Hart, TRICARE Policy and 
Operations, TRICARE Management Activity, 5111 Leesburg Pike, Suite 810, 
Falls Church, VA 22041, 703-681-0047.

SUPPLEMENTARY INFORMATION:

Executive Summary

I. Purpose of This Regulatory Action

    a. Currently, NAS are required for non-emergency inpatient mental 
health care for TRICARE Standard beneficiaries who live within a 
military treatment facility catchment area. Pursuant to section 
1080(c)(2) of title 10, United States Code, the Secretary can waive the 
requirement to obtain NASs following an evaluation of the effectiveness 
of such statements in optimizing the use of

[[Page 12952]]

facilities of the uniformed services. At this time, the number of NASs 
issued is negligible as most mental health admissions are emergency 
admissions. Requiring a NAS for a relatively few non-emergency 
inpatient mental health admissions is disproportionate to the cost of 
maintaining the systems necessary to process and coordinate the NAS. 
This final rule eliminates the requirement for a NAS for non-emergency 
inpatient mental health care in order for the TRICARE Standard 
beneficiary's claim to be paid.
    b. Authority: 5 U.S.C. 301; 10 U.S.C. chapter 55.

II. Summary of the Major Provisions of This Regulatory Action

    This final rule eliminates the requirement for a NAS for non-
emergency inpatient mental health care in order for the TRICARE 
Standard beneficiary's claim to be paid.
    The elimination of the requirement for a NAS for non-emergency 
inpatient mental health care for TRICARE Standard beneficiaries is 
separate and distinct from the ongoing right of first refusal for 
specialty services requested by a civilian provider under TRICARE 
Prime, if the services are available at the MTF, or the ongoing 
statutory requirement for preadmission authorization before inpatient 
mental health services may be provided. This final rule does not 
eliminate the right of first refusal or requirement for preadmission 
authorization.
    In reviewing the proposed rule, we discovered that we had 
inadvertently deleted not only the requirement to obtain a NAS for non-
emergency inpatient mental health services for TRICARE Standard 
beneficiaries living within the 40-mile catchment area of a military 
treatment facility, but also the Department's general implementation of 
section 721 of Public Law 106-398, as amended by section 735 of Public 
Law 107-107, regarding the Secretary's statutory authority to require a 
NAS. We have remedied that oversight in this final rule, thereby 
preserving the option to impose the requirement to obtain NASs in the 
future, consistent with existing statutory authority, should 
circumstances change and a demonstration be made that, by performing 
specific procedures at affected military medical treatment facilities, 
use of such facilities would be optimized and significant costs 
avoided. Section 199.4(a)(9) is thereby amended to retain this general 
authority while still eliminating the current requirement to obtain a 
NAS for non-emergency inpatient mental health services.

III. Costs and Benefits of This Regulatory Action

    There are no anticipated budgetary health care cost increases. 
Requiring a NAS for a relatively few non-emergency inpatient mental 
health admissions is disproportionate to the cost of maintaining the 
systems necessary to process and coordinate the NAS.

Public Comments

    The proposed rule was published in the Federal Register on 
September 16, 2011 (76 FR 57690). No public comments were received.

Regulatory Procedures

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

    Executive Order 12866 requires that a comprehensive regulatory 
impact analysis be performed on any economically 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. This final rule is not economically significant 
nor a significant regulatory action as defined under these executives 
orders.

Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    This rule does not contain unfunded mandates. It 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 1 year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    The Regulatory Flexibility Act (RFA) requires that 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 final rule will not have a significant impact on a substantial 
number of small entities for purposes of the RFA. Thus this final rule 
is not subject to this requirement.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3511)

    This final rule will not impose additional reporting or 
recordkeeping requirements under the Paperwork Reduction Act of 1995.

Executive Order 13132, ``Federalism''

    We have examined the impacts of the rule under Executive Order 
13132 and it does not have 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

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

    Accordingly, 32 CFR part 199 is 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 199.4 is amended by revising paragraph (a)(9) to read as 
follows:

Sec.  199.4  Basic program benefits.

* * * * *
    (a) * * *
    (9) Nonavailability Statements within a 40-mile catchment area. 
Unless required by action of the Assistant Secretary of Defense for 
Health Affairs (ASD(HA)) under this paragraph (a)(9), nonavailability 
statements are not required. If they are required by ASD(HA) action, in 
some geographic locations, CHAMPUS beneficiaries not enrolled in 
TRICARE Prime may be required to obtain a nonavailability statement 
from a military medical treatment facility in order to receive 
specifically identified health care services from a civilian provider. 
If the required care cannot be provided through the Uniformed Service 
facility, the hospital commander, or a designee, will issue a 
Nonavailability Statement (NAS) (DD Form 1251). Failure to secure such 
a statement may waive the beneficiary's rights to benefits under 
CHAMPUS/TRICARE.
    (i) With the exception of maternity services, the ASD(HA) may 
require an NAS prior to TRICARE cost-sharing for additional services 
from civilian sources if such services are to be provided to a 
beneficiary who lives within a 40-mile catchment area of an MTF where 
such services are available and the ASD(HA):
    (A) Demonstrates that significant costs would be avoided by 
performing specific procedures at the affected MTF or MTFs; or
    (B) Determines that a specific procedure must be provided at the

[[Page 12953]]

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 Sec.  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 Sec.  199.4 or Sec.  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
```