Federal Register / Vol. 77, No. 124 / Wednesday, June 27, 2012 / Rules and Regulations 38173 

§ 9301.11 Payment and waiver. 

* * * * * 

(b) Waiver. SIGAR may waive all or 

part of any fee provided for in §§ 9301.8 

through 9301.9 when the FOIA Officer 

deems that as a matter of administrative 

discretion or disclosure of the 

information is in the general public’s 

interest because it is likely to contribute 

significantly to public understanding of 

the operations or activities of the 

Government and is not primarily in the 

commercial interest of the requester. 

Requesters may request a waiver in their 

initial FOIA request letter. Requests for 

a fee waiver should explain how the 

information requested contributes to the 

public’s understanding of the operations 

or activities of the government. In 

determining whether a fee should be 

waived, the FOIA Officer may consider 

whether: 

(1) The subject matter specifically 

concerns identifiable operations or 

activities of the government; 

(2) The information is already in the 

public domain; 

(3) Disclosure of the information 

would contribute to the understanding 

of the public-at-large as opposed to a 

narrow segment of the population; 

(4) Disclosure of the information 

would significantly enhance the 

public’s understanding of the subject 

matter; 

(5) Disclosure of the information 

would further a commercial interest of 

the requester; and 

(6) The public’s interest is greater 

than any commercial interest of the 

requester. 

Dated: June 21, 2012. 

Steven J. Trent, 

Acting Inspector General, Special Inspector 

General for Afghanistan Reconstruction. 

[FR Doc. 2012–15665 Filed 6–26–12; 8:45 am] 

BILLING CODE 3710–L9–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 20 

[Docket No. FDA–2012–N–0205] 

Agreements and Memoranda of 

Understanding Between the Food and 

Drug Administration and Other 

Departments, Agencies, and 

Organizations; Withdrawal 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Direct final rule; withdrawal. 

SUMMARY: The Food and Drug 

Administration (FDA) published in the 

Federal Register of March 23, 2012 (77 

FR 16923), a direct final rule making 

technical changes to update a 

requirement that many of its written 

agreements and memoranda of 

understanding with other departments, 

Agencies, and organizations be 

published in the Federal Register. The 

comment period closed June 6, 2012. 

FDA is withdrawing the direct final rule 

because the Agency received significant 

adverse comment. 

DATES: The direct final rule published at 

77 FR 16923, March 23, 2012, is 

withdrawn, effective June 27, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Daniel W. Sigelman, Office of the 

Commissioner, Food and Drug 

Administration, 10903 New Hampshire 

Ave., Silver Spring, MD 20993–0002, 

301–796–4706, FAX: 301–847–8616, 

email: daniel.sigelman@fda.hhs.gov. 

Authority: Therefore, under the Federal 

Food, Drug, and Cosmetic Act and under 

authority delegated to the Commissioner of 

Food and Drugs, the direct final rule 

published in the Federal Register on March 

23, 2012 (77 FR 16923) is withdrawn. 

Dated: June 22, 2012. 

Leslie Kux, 

Assistant Commissioner for Policy. 

[FR Doc. 2012–15713 Filed 6–26–12; 8:45 am] 

BILLING CODE 4160–01–P 

DEPARTMENT OF LABOR 

Wage and Hour Division 

29 CFR Part 570 

Child Labor Regulations, Orders and 

Statements of Interpretation 

CFR Correction 

■ In Title 29 of the Code of Federal 

Regulations, Parts 500 to 899, revised as 

of July 1, 2011, on page 302, the section 

heading for § 570.65 is corrected to read 

as follows: 

§ 570.65 [CORRECTED] 

§ 570.65 Occupations involving the 

operation of circular saws, band saws, 

guillotine shears, chain saws, reciprocating 

saws, wood chippers, and abrasive cutting 

discs (Order 14). 

[FR Doc. 2012–15868 Filed 6–26–12; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 199 

[DOD–2011–HA–0007] 

RIN 0720–AB43 

TRICARE Reimbursement Revisions 

AGENCY: Office of the Secretary, 

Department of Defense. 

ACTION: Final rule. 

SUMMARY: This final rule provides 

several necessary revisions to the 

regulation in order for TRICARE to be 

consistent with Medicare. These 

revisions affect: Hospice periods of care; 

reimbursement of physician assistants 

and assistant-at-surgery claims; and 

diagnosis-related group values, 

removing references to specific numeric 

diagnosis-related group values and 

replacing them with their narrative 

description. 

DATES: Effective Date: This rule is 

effective July 27, 2012. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Ann N. Fazzini, TRICARE Management 

Activity, Medical Benefits and 

Reimbursement Systems, telephone 

(303) 676–3803. 

SUPPLEMENTARY INFORMATION: 

Background 

I. Hospice 

This final rule revises the regulation 

for hospice periods of care. The Defense 

Authorization Act for FY 1992–1993, 

Public Law 102–190, directed TRICARE 

to provide hospice care in the manner 

and under the conditions provided in 

section 1861(dd) of the Social Security 

Act (42 U.S.C. 1395x(dd)). Congress’ 

intent was for TRICARE to establish a 

benefit in the same manner as Medicare. 

TRICARE originally had the same 

periods of hospice care used by 

Medicare; however, over time the 

Medicare benefit changed, but 

TRICARE’s regulation has not. The 

TRICARE regulation currently provides 

for an initial period of 90 days, a 

subsequent period of 90 days, a second 

subsequent period of 30 days, and a 

final period of unlimited duration. 

Rather than maintaining this level of 

specificity in the regulation and to 

ensure that TRICARE and Medicare’s 

benefit periods are equal, we are 

revising the regulation to state that the 

distinct periods of care available under 

the hospice benefit shall be the same as 

those offered under Medicare’s hospice 

program. Currently under Medicare, 

patients are entitled to two 90-day 


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38174 Federal Register / Vol. 77, No. 124 / Wednesday, June 27, 2012 / Rules and Regulations 

election periods, followed by an 

unlimited number of 60-day periods. 

The level of specific benefits shall be 

included in the TRICARE 

Reimbursement Manual, and may be 

accessed at www.tricare.mil. 

II. Physician Assistants and Assistantat-Surgery 

The current regulatory language 

references specific reimbursement 

percentages for assistant-at-surgery 

reimbursement. Rather than including 

these specific percentage amounts, 

which would require a regulatory 

change any time the percentage amounts 

change, we are making a general 

statement referring to the current 

percentages used by Medicare. Our 

authority for this is 10 U.S.C. 1079(h) 

which states: Except as provided in 

paragraphs (2) and (3), payment for a 

charge for services by an individual 

health care professional (or other 

noninstitutional health care provider) 

for which a claim is submitted under a 

plan contracted for under subsection (a) 

shall be equal to an amount determined 

to be appropriate, to the extent 

practicable, in accordance with the 

same reimbursement rules as apply to 

payments for similar services under title 

XVIII of the Social Security Act (42 

U.S.C. 1395 et seq.). The Secretary of 

Defense shall determine the appropriate 

payment amount under this paragraph 

in consultation with the other 

administering Secretaries. The specific 

percentages are more appropriately 

included in the TRICARE 

Reimbursement Manual, and may be 

accessed at www.tricare.mil. 

III. DRG 

10 U.S.C. 1079(j)(2) provides that the 

amount to be paid to a provider of 

services for services provided under a 

plan covered by this section shall be 

determined under joint regulations to be 

prescribed by the administering 

Secretaries which provide that the 

amount of such payments shall be 

determined to the extent practicable in 

accordance with the same 

reimbursement rules as apply to 

payments to providers of services of the 

same type under title XVIII of the Social 

Security Act (42 U.S.C. 1395 et seq.). 

In accordance with the above statute, 

the TRICARE/CHAMPUS DRG-based 

payment system transitioned to 

adopting the Medicare Severity-DRG 

based payment system on October 1, 

2008. When TRICARE transitioned to 

the severity-based system, it was 

necessary to renumber the existing 

DRGs, and to assign different narrative 

descriptions to the DRG numbers. As a 

result, the existing regulatory reference 

to specific DRG numbers and 

descriptions became obsolete, so we are 

removing the numeric references in the 

regulation and utilizing only the 

descriptive terminology. 

Public Comments 

A proposed rule was published on 

January 13, 2011 (76 FR 2291). Two sets 

of comments were received on the 

proposed rule. One commenter 

supported the proposed rule and urged 

the DoD to make it final. The other 

commenter concurred with the 

reimbursement changes in the proposed 

rule, but expressed concern that current 

TRICARE policy does not cover mental 

and behavioral services when delivered 

by a physician assistant (PA). They 

stated that PAs are qualified health care 

professionals who are authorized by 

state law to provide a wide range of 

behavioral health services to patients in 

all settings. 

We appreciate the commenter’s 

interest in TRICARE’s behavioral health 

care services. TRICARE offers a robust 

behavioral health care program and 

allows care by qualified mental health 

providers, as listed in 32 CFR 199.4 as 

follows: Psychiatrists or other 

physicians; clinical psychologists, 

certified psychiatric nurse specialists, 

clinical social workers, and certified 

marriage and family therapists; and 

pastoral and mental health counselors 

under a physician’s supervision. 

TRICARE views these professionals as 

qualified behavioral health services 

providers with the specialized training 

to ensure quality of care to our 

beneficiaries. Consequently, we have no 

plans to expand coverage to allow 

behavioral health services by PAs. 

Regulatory Procedures 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review’’ 

Section 801 of title 5, United States 

Code, and Executive Orders (E.O.) 

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 or which would have other 

substantial impacts. It has been certified 

that this rule is not economically 

significant. It has been reviewed by the 

Office of Management and Budget as 

required under the provisions of E.O. 

12866 and 13563. 

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 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 final 

rule is not subject to this requirement. 

Public Law 96–354, ‘‘Regulatory 

Flexibility Act’’ (RFA) (5 U.S.C. 601) 

Public Law 96–354, ‘‘Regulatory 

Flexibility Act’’ (RFA) (5 U.S.C. 601), 

requires that each Federal agency 

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 the RFA. 

Public Law 96–511, ‘‘Paperwork 

Reduction Act’’ (44 U.S.C. Chapters 35) 

This final rule does not contain a 

‘‘collection of information’’ 

requirement, and will not impose 

additional information collection 

requirements 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, 32 CFR Part 199 is 

amended as follows: 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 77, No. 124 / Wednesday, June 27, 2012 / Rules and Regulations 38175 

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 199.4 is amended by 

revising paragraph (e)(19)(v) to read as 

follows: 

§ 199.4 Basic program benefits. 

* * * * * 

(e) * * * 

(19) * * * 

(v) Periods of care. Hospice care is 

divided into distinct periods of care. 

The periods of care that may be elected 

by the terminally ill CHAMPUS 

beneficiary shall be as the Director, 

TRICARE determines to be appropriate, 

but shall not be less than those offered 

under Medicare’s Hospice Program. 

* * * * * 

■ 3. Section 199.14 is amended by 

revising paragraphs (a)(1)(ii)(C)(3), 

(a)(1)(iii)(A)(2), and (j)(1)(ix) to read as 

follows: 

§ 199.14 Provider reimbursement 

methods. 

* * * * * 

(a) * * * 

(1) * * * 

(ii) * * * 

(C) * * * 

(3) All services related to heart and 

liver transplantation for admissions 

prior to October 1, 1998, which would 

otherwise be paid under the respective 

DRG. 

* * * * * 

(iii) * * * 

(A) * * * 

(2) Remove DRGs. Those DRGs that 

represent discharges with invalid data 

or diagnoses insufficient for DRG 

assignment purposes are removed from 

the database. 

* * * * * 

(j) * * * 

(1) * * * 

(ix) The allowable charge for 

physician assistant services other than 

assistant-at-surgery shall be at the same 

percentage, used by Medicare, of the 

allowable charge for a comparable 

service rendered by a physician 

performing the service in a similar 

location. For cases in which the 

physician assistant and the physician 

perform component services of a 

procedure other than assistant-atsurgery (e.g., home, office, or hospital 

visit), the combined allowable charge 

for the procedure may not exceed the 

allowable charge for the procedure 

rendered by a physician alone. The 

allowable charge for physician assistant 

services performed as an assistant-atsurgery shall be at the same percentage, 

used by Medicare, of the allowable 

charge for a physician serving as an 

assistant surgeon when authorized as 

CHAMPUS benefits in accordance with 

the provisions of § 199.4(c)(3)(iii). 

Physician assistant services must be 

billed through the employing physician 

who must be an authorized CHAMPUS 

provider. 

* * * * * 

Dated: June 20, 2012. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2012–15509 Filed 6–26–12; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 199 

[DOD–2011–HA–0058] 

RIN 0720–AB51 

TRICARE; Constructive Eligibility for 

TRICARE Benefits of Certain Persons 

Otherwise Ineligible Under Retroactive 

Determination of Entitlement to 

Medicare Part A Hospital Insurance 

Benefits 

AGENCY: Office of the Secretary, 

Department of Defense. 

ACTION: Final rule. 

SUMMARY: The Department is publishing 

this final rule to implement section 706 

of the National Defense Authorization 

Act (NDAA) for Fiscal Year 2010, Public 

Law 111–84. Specifically, section 706 

exempts TRICARE beneficiaries under 

the age of 65 who become disabled from 

the requirement to enroll in Medicare 

Part B for the retroactive months of 

entitlement to Medicare Part A in order 

to maintain TRICARE coverage. This 

statutory amendment and final rule only 

impact eligibility for the period in 

which the beneficiary’s disability 

determination is pending before the 

Social Security Administration. Eligible 

beneficiaries are still required to enroll 

in Medicare Part B in order to maintain 

their TRICARE coverage for future 

months, but are considered to have 

coverage under the TRICARE program 

for the retroactive months of their 

entitlement to Medicare Part A. This 

final rule also amends the eligibility 

section of the TRICARE regulation to 

more clearly address reinstatement of 

TRICARE eligibility following a gap in 

coverage due to lack of enrollment in 

Medicare Part B. 

DATES: Effective Date: This final rule is 

effective July 27, 2012. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Anne Breslin, TRICARE Operations 

Branch, TRICARE Management Activity 

(TMA), 5111 Leesburg Pike, Suite 810, 

Falls Church, VA 22041, telephone 

(703) 681–0039. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Prior to the enactment of section 706 

of the National Defense Authorization 

Act for Fiscal Year 2010 (Pub. L. 111– 

84), 10 U.S.C. 1086(d) provided that a 

person who would otherwise receive 

benefits under section 1086 who is 

entitled to Medicare Part A hospital 

insurance is not eligible for TRICARE 

unless the individual is enrolled in 

Medicare Part B. When a TRICARE 

beneficiary becomes eligible for 

Medicare, Medicare becomes the 

primary payer and TRICARE is the 

secondary payer. Retroactive Medicare 

eligibility determinations therefore 

caused DoD and Medicare to reprocess 

claims. Section 706 of the Fiscal Year 

2010 National Defense Authorization 

Act amended 10 U.S.C. 1086(d) to 

exempt TRICARE beneficiaries under 

the age of 65 who became Medicare 

eligible due to a retroactive disability 

determination from the requirement to 

enroll in Medicare Part B for the 

retroactive months of entitlement to 

Medicare Part A in order to maintain 

TRICARE coverage. This statutory 

amendment became effective upon 

enactment of the Fiscal Year 2010 

National Defense Authorization Act on 

October 28, 2009. Prior to this 

amendment, beneficiaries who did not 

purchase Medicare Part B to cover the 

retroactive period lost their TRICARE 

eligibility during that period of time. As 

a result, beneficiaries and providers 

were then subject to TRICARE 

recoupment action for care provided 

during the period of retroactive 

disability. Pursuant to this amendment, 

TRICARE remains first payer for any 

claims filed during the retroactive 

months and disabled TRICARE 

beneficiaries are relieved of the 

financial burden of making retroactive 

payments to avoid a gap in coverage. 

This final rule amends the Code of 

Federal Regulations to conform to 

current statutory authority regarding 

TRICARE eligibility. 

Additionally, due to an earlier 

administrative omission, this final rule 

also amends 32 CFR 199.3 to more 

clearly address reinstatement of 

TRICARE eligibility following a gap in 

coverage due to lack of enrollment in 

Part B. While most TRICARE 


emcdonald on DSK67QTVN1PROD with RULES