[Federal Register Volume 83, Number 160 (Friday, August 17, 2018)]
[Proposed Rules]
[Pages 41026-41029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17463]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[Docket ID DOD-2016-HA-0112]
RIN 0720-AB69


TRICARE; Extended Care Health Option (ECHO) Respite Care

AGENCY: Office of the Secretary, Department of Defense (DoD).

ACTION: Proposed rule.

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SUMMARY: This proposed rule requests public comment on a proposed 
revision to the TRICARE Extended Care Health Option (ECHO) respite care 
benefit. Under the current program, TRICARE beneficiaries enrolled in 
ECHO are eligible for 16 hours of respite care per month in any month 
during which the beneficiary receives another ECHO authorized benefit 
(other than the EHHC benefit). This proposed rule seeks to eliminate 
the concurrent ECHO benefit requirement and allow beneficiaries 
enrolled in ECHO to receive a maximum of 16 hours of respite care per 
month, regardless of whether another ECHO benefit is received in the 
same month.

DATES: Written comments received at the address indicated below by 
October 16, 2018 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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Mail: Department of Defense, Office of the Deputy Chief 
Management Officer, Directorate for Oversight and Compliance, 4800 Mark 
Center Drive, Mailbox #24, Alexandria, VA 22350-1700.
    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: Ms. Trish Reilly, Defense Health 
Agency, TRICARE Clinical Policy Division, telephone (619) 236-5332.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

A. Purpose of the Proposed Rule

    This proposed rule seeks to amend the TRICARE ECHO program 
regulation to expand beneficiary access to ECHO respite care services. 
This proposed rule, if implemented, would eliminate the concurrent ECHO 
benefit requirement and allow beneficiaries enrolled in ECHO to receive 
a maximum of 16 hours of respite care per month, regardless of whether 
another ECHO benefit is received in the same month.
    This regulation is proposed under the authority of 5 U.S.C. 301 
which allows

[[Page 41027]]

the Secretary of Defense to prescribe regulations for the government of 
DoD and 10 U.S.C. 1079(d) and (e), which directs the Secretary of 
Defense to establish a program to provide extended benefits for 
eligible active duty dependents, which may include the provision of 
comprehensive health care services, including case management services, 
to assist in the reduction of the disabling effects of a qualifying 
condition of an eligible dependent. The Department is authorized to 
provide ``respite care for the primary caregiver of the eligible 
dependent'' as one of the specifically enumerated extended benefits 
under the ECHO program pursuant to 10 U.S.C. 1079(e)(6). The ECHO 
program has been implemented through regulation at 32 CFR 199.5.

B. Summary of the Major Provisions of the Proposed Rule

    Per 32 CFR 199.5(c)(7), ECHO beneficiaries are eligible for a 
maximum of 16 hours of respite care per month in any month during which 
the beneficiary otherwise receives an ECHO benefit(s). This requirement 
for a concurrent ECHO benefit was originally implemented to ensure 
optimal medical management of the beneficiary's ECHO-qualifying 
condition. TRICARE proposes to eliminate the requirement for a 
beneficiary to receive a concurrent ECHO benefit in order to qualify 
for respite care. This change will expand access to respite care 
services (as recommended by the Military Compensation and Retirement 
Modernization Commission (MCRMC)), allowing families to access those 
hours without receiving another ECHO benefit during the same month the 
respite care is received.

C. Expected Costs

    The proposed rule is estimated to cost the Department of Defense 
$5.7 million annually (based on FY17 data). If the proposed rule is 
implemented, it is anticipated that 2,924 ECHO beneficiaries will 
participate in the respite care program at an average cost of $1,937 
per beneficiary (this number does not include homebound beneficiaries 
who receive respite care under the ECHO Home Health Care (EHHC) 
program). These beneficiaries are already in ECHO and, therefore, have 
completed all registration requirements. This expansion of the benefit 
requires nothing additional from the beneficiaries and will not result 
in an increased burden to the public. Currently, beneficiaries may not 
access ECHO respite care services if they are not utilizing another 
ECHO benefit during the same month, and this rulemaking action will 
eliminate this barrier to care.

II. Discussion of the Proposed Rule

A. Background

    Military families face unique challenges in caring for family 
members with special medical or educational needs that are complicated 
by frequent moves and repeated deployments. Support for these families 
involves a multi-faceted system coordinated across numerous functional 
areas within the Department of Defense and Military Services to 
include: The Military Health System (MHS); military personnel support 
services; housing programs; dependents' education programs; child and 
youth services; morale, welfare, and recreation activities; and 
community support activities, among others.
    The Exceptional Family Member Program (EFMP) is designed to 
identify active duty military family members with special medical and/
or educational needs to ensure coordination of care and continuity of 
benefits throughout the military assignment and relocation process. 
EFMP provides additional support to these active duty military families 
to alleviate some of the challenges associated with frequent family 
relocations and deployments of their sponsoring service member as 
required by military duties. EFMP family support services have 
traditionally included respite care provided by certified day care 
providers in order to provide temporary relief to military family 
members who are responsible for the regular care of dependent family 
members with special needs. The Office of the Under Secretary of 
Defense for Personnel and Readiness published a proposed rule entitled 
``Exceptional Family Member Program (EFMP)'' in the Federal Register 
(80 FR 76881-76889) on December 11, 2015, that provides additional 
details. The Assistant Secretary of Defense for Health Affairs is 
tasked with advising on the availability of specialized medical 
services to families with special needs in the Military Health System 
and ensuring there is a medical case management program to support 
eligible beneficiaries' medical needs.
    Active Duty families enrolled in EFMP may be eligible, based on 
qualifying conditions, for TRICARE Extended Health Care Option (ECHO) 
expanded benefits. ECHO is a supplemental program to the TRICARE Basic 
Program that provides eligible Active Duty Family Members extended 
benefits to include comprehensive health care services (including 
services necessary to maintain, or minimize or prevent deterioration of 
function of the patient) and case management services with respect to 
the qualifying condition which include serious physical disabilities 
and extraordinary physical or psychological conditions as defined in 32 
CFR 199.2. The purpose of ECHO is to provide an additional financial 
resource for an integrated set of services and supplies designed to 
assist in the reduction of the disabling effects of the beneficiary's 
qualifying condition. The ECHO program provides coverage for medical, 
habilitative, and rehabilitative services and supplies not covered 
under the TRICARE Basic Program; durable medical equipment, including 
adaptation and maintenance; assistive technologies devices and training 
to use the devices; comprehensive home health care services (e.g., 
ventilator support, medication administration); and other services to 
support eligible family members.
    The final rule implementing the ECHO Program (which was previously 
called the Program for Persons with Disabilities (PFPWD) from 1997-
2004, and before that the Program for the Handicapped (PFTH) from 
origination in 1966-1997), amended the TRICARE regulations governing 
the PFPWD and was published in the Federal Register (69 FR 44947) on 
July 28, 2004.
    ECHO-registered beneficiaries who are not receiving ECHO Home 
Health Care (EHHC) services currently are eligible to receive a maximum 
of 16 hours of respite care in any calendar month in which they also 
receive any other ECHO authorized benefit other than the EHHC benefit. 
Respite care consists of providing skilled and non-skilled health care 
services for the covered beneficiary such that in the absence of the 
primary caregiver, management of the beneficiary's ECHO qualifying 
condition and safety are provided. In order to assure the quality of 
care for beneficiaries enrolled in ECHO, all ECHO respite care services 
must be provided by Medicare or Medicaid certified Home Health Agencies 
(HHAs) who have in effect at the time of services a valid agreement to 
participate in the TRICARE program. The ECHO respite care program 
(which provides health care services by a home health agency) should 
not be considered a substitute for EFMP respite care (which provides 
day care services by a certified day care provider), because not all 
EFMP family members qualify for ECHO or require specific health care 
services in the absence of the primary caregiver. The goal is to ensure 
that these families have access to the appropriate services to meet 
their specific needs while still ensuring

[[Page 41028]]

fiscally prudent expenditures of appropriated funds.
    In addition to EFMP respite care and ECHO respite care, there is a 
third type of respite care, EHHC respite care. The EHHC benefit 
provides coverage of home health care services and respite care 
services for ECHO eligible beneficiaries who require more than 
intermittent or part-time home health services covered under the 
TRICARE Basic Program. This would include ventilator-dependent 
beneficiaries and others with extraordinary physical conditions. EHHC 
beneficiaries whose plan of care includes frequent interventions by the 
primary caregiver(s) (e.g., frequent suctioning, tube feeding, 
medication administration etc.) are eligible for respite services under 
EHHC in lieu of the ECHO general respite benefit. EHHC respite care may 
include a maximum of 8 hours per day, 5 days per week, by a TRICARE-
authorized home health agency. The Department is not proposing any 
changes to the robust EHHC respite care benefit as part of this 
proposed rule, but includes a description of the program in order to 
clarify the full spectrum of respite care programs available to active 
duty military families with special needs.

B. Proposed Change to the ECHO Respite Care Benefit

    The Department of Defense remains committed to supporting Service 
members and their family members with special needs. Together, the 
Office of Community Support for Military Families with Special Needs, 
the Services, and the MHS, are working to enhance and improve support 
for these families, including everything from complex medical 
management to non-clinical case management and family support services. 
The Department is also committed to eliminating unnecessary 
requirements that act as barriers to care. Consistent with these 
principles, the Department is proposing this specific amendment to the 
existing regulations governing the ECHO program.
    The requirement to receive a concurrent ECHO benefit in order to be 
entitled to ECHO respite care was originally imposed as a medical 
management tool. We now conclude that this specific requirement is no 
longer necessary and may serve as an inappropriate barrier to receipt 
of respite services for some families. Even in those months where no 
other ECHO services are provided (where all needed care may already be 
covered under the Basic Program or under demonstration authority), 
there may still be some health care services rendered to the 
beneficiary enrolled in ECHO by the primary caregiver for which respite 
care provided by a home health agency is warranted.
    We note that the January 2015 Report of the MCRMC cited a need to 
improve support for military members with special needs dependents and 
made a number of recommendations. We have already implemented or are 
taking steps to implement several of their specific recommendations, 
including the recommendation to allow families to access ECHO respite 
care without receiving another ECHO benefit during the same month that 
respite care is received which is proposed in this rule. The Department 
is still studying some of the other recommendations that were made in 
order to identify and implement, as appropriate, ECHO enhancements that 
will be of greatest benefit to our beneficiaries. Finally, we believe 
some of the recommendations fall outside the purview of the ECHO 
program specifically, and the Military Health System in general, and 
are more appropriately directed to the Office of Community Support for 
Military Families with Special Needs, including the provision of 
respite care that does not involve health care services (i.e., EFMP 
respite).
    We propose that elimination of the requirement for a simultaneous 
ECHO benefit will provide maximum flexibility to families without 
sacrificing the goal of ensuring the safe and effective management of 
the beneficiary's ECHO qualifying condition. First, we note that 
TRICARE beneficiaries with complex medical needs may receive case 
management services including medical management, disease management 
and chronic care coordination, under the TRICARE Basic Program, 
regardless of whether the beneficiary is an ECHO eligible beneficiary. 
As the TRICARE program has evolved over time, continuing to require an 
ECHO eligible beneficiary to receive a concurrent ECHO benefit as a 
medical management tool is no longer necessary. Based on our current 
program structure, beneficiaries should already be receiving medical 
management services and the receipt of any ECHO benefit, including ECHO 
respite care, provides an additional opportunity to ensure the safe and 
effective management of the beneficiary's qualifying condition. 
Furthermore, in accordance with 32 CFR 199.5(h)(3), all ECHO benefits, 
including ECHO respite care, require authorization prior to receipt of 
such benefits. Paragraph (i) discusses required documentation as a 
prerequisite to authorizing ECHO benefits. As a practical matter, the 
home health agency providing the respite services must document the 
health care services needed by the ECHO beneficiary in the absence of 
the family caregiver and the schedule for the services during the 
provision of respite care in order to ensure an appropriately trained 
provider is sent and the beneficiary's needs are met. If this 
regulatory change is enacted, after public comment, additional details 
regarding required documentation to be provided to the Managed Care 
Support Contractor and home health agency for authorization of ECHO 
respite services will be published in the TRICARE Policy Manual 
available at http://manuals.tricare.osd.mil. We believe that this 
approach will provide greater flexibility and eliminate unnecessary 
barriers for families to access to ECHO respite care services while 
still ensuring the safe and effective medical management of the 
beneficiary's medical condition(s).

III. Regulatory Procedures

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

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. A 
regulatory impact analysis must be prepared for major rules with 
economically significant effects ($100 million or more in any one 
year). This rulemaking is neither ``economically significant'' as 
measured by the $100 million threshold, nor is it otherwise 
significant.

Executive Order 13771, ``Reducing Regulation and Controlling Regulatory 
Costs''

    This proposed rule is not expected to be an E.O. 13771 regulatory 
action because it is not significant under E.O. 12866.

Congressional Review Act, 5 U.S.C. 804(2)

    Under the Congressional Review Act, a major rule may not take 
effect until at least 60 days after submission to Congress of a report 
regarding the rule.

[[Page 41029]]

A major rule is one that would have an annual effect on the economy of 
$100 million or more or have certain other impacts. This proposed rule 
is not a major rule under the Congressional Review Act.

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

    The Regulatory Flexibility Act requires that each Federal agency 
analyze options for regulatory relief of small businesses if a rule has 
a significant impact on a substantial number of small entities. For 
purposes of the RFA, small entities include small businesses, nonprofit 
organizations, and small governmental jurisdictions. This proposed rule 
is not an economically significant regulatory action, and it will not 
have a significant impact on a substantial number of small entities. 
Therefore, this rule is not subject to the requirements of the RFA.

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

    Section 202 of the Unfunded Mandates Reform Act of 1995 also 
requires that agencies assess anticipated costs and benefits before 
issuing any rule whose mandates require spending in any one year of 
$100 million in 1995 dollars, updated annually for inflation. That 
threshold level is currently approximately $140 million. This final 
rule will not mandate any requirements for state, local, or tribal 
governments or the private sector.

Public Law 96-511, ``Paperwork Reduction Act'' (Title 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. 3502-3511). Existing information collection 
requirements of the TRICARE and Medicare programs will be utilized. 
TRICARE ECHO respite care providers will be coding and filing claims in 
the same manner as they currently are with TRICARE.

Executive Order 13132, ``Federalism''

    This 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 powers 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 proposed to be amended as follows:

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

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. Revise Sec.  199.5(c)(7) introductory text to read as follows:


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

* * * * *
    (c) * * *
    (7) Respite care. TRICARE beneficiaries enrolled in ECHO are 
eligible for a maximum of 16 hours of respite care per month. Respite 
care in defined is Sec.  199.2. Respite care services will be provided 
by a TRICARE-authorized home health agency and will be designed to 
provide health care services for the covered beneficiary, and not baby-
sitting or child-care services for other members of the family. The 
benefit will not be cumulative, that is, any respite hours not used in 
one month will not be carried over or banked for use on another 
occasion.
* * * * *

    Dated: August 9, 2018.
Shelly E. Finke,
Alternate OSD Federal Register, Liaison Officer, Department of Defense.
[FR Doc. 2018-17463 Filed 8-16-18; 8:45 am]
 BILLING CODE 5001-06-P