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[Federal Register Volume 79, Number 250 (Wednesday, December 31, 2014)]
[Rules and Regulations]
[Pages 78707-78714]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-30337]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[DOD-2013-HA-0053]
RIN 0720-AB59

TRICARE Program; Clarification of Benefit Coverage of Durable 
Equipment and Ordering or Prescribing Durable Equipment; Clarification 
of Benefit Coverage of Assistive Technology Devices Under the Extended 
Care Health Option Program

AGENCY: Office of the Secretary, DoD.

ACTION: Final rule.

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SUMMARY: This final rule modifies the TRICARE regulation to add a 
definition of assistive technology (AT) devices for purposes of benefit 
coverage under the TRICARE Extended Care Health Option (ECHO) Program 
and to amend the definitions of durable equipment (DE) and durable 
medical equipment (DME) to better conform the language in the 
regulation to the statute. The final rule amends the language that 
specifically limits ordering or prescribing of DME to only a physician 
under the Basic Program, as this amendment will allow certain other 
TRICARE authorized individual professional providers, acting within the 
scope of their licensure, to order or prescribe DME. This final rule 
also incorporates a policy clarification relating to luxury, deluxe, or 
immaterial features of equipment or devices. That is, TRICARE cannot 
reimburse for the luxury, deluxe, or immaterial features of equipment 
or devices, but can reimburse for the base or basic equipment or device 
that meet the beneficiary's needs. Beneficiaries may choose to pay the 
provider for the luxury, deluxe, or immaterial features if they desire 
their equipment or device to have these ``extra features.''

DATES: This rule is effective January 30, 2015.

[[Page 78708]]

FOR FURTHER INFORMATION CONTACT: Gail L. Jones, (303) 676-3401.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of the Final Rule

1. Coverage for DE, DME and AT Devices.
    The National Defense Authorization Act for Fiscal Year 2002 revised 
the coverage of DE under TRICARE. Those revisions resulted in final 
amendments to the TRICARE regulation regarding the TRICARE Basic 
Program, effective December 13, 2004, as published in the Federal 
Register on October 12, 2004 (69 FR 60547), and regarding the TRICARE 
Extended Health Care Option (ECHO) Program, effective September 20, 
2004, as published in the Federal Register on August 20, 2004 (69 FR 
51559). The original implementing regulations made a potentially 
confusing technical distinction between ``DE'' and ``DME''; that is, 
``DE'' was defined as an item that did not qualify as ``DME'' that 
otherwise might be available under the TRICARE ECHO Program. This final 
rule provides clarification by correcting the definitions and adding a 
definition of AT devices, which conforms to existing policy covering 
devices not otherwise qualifying as DE.
2. Ordering and Prescribing DE and DME
    The current regulation in Sec.  199.4(d)(3)(ii)(A)(1) does not 
allow coverage of DME ordered by a TRICARE-authorized individual 
professional provider of care, with the exception of a doctor of 
medicine (MD) or a doctor of osteopathy (DO), even though it is 
permitted by his or her licensure. Paragraph (d)(3)(ii)(A)(1) 
specifically states, ``Subject to the exceptions in paragraph 
(d)(3)(ii)(C) of this same section, only DME which is ordered by a 
physician for the specific use of the beneficiary shall be covered.'' 
Paragraph (d)(1) also states that only a physician can order DME. This 
restriction causes two problems:
     Certain other TRICARE authorized individual professional 
providers such as doctors of podiatric medicine (DPMs), doctors of 
optometry (ODs), doctors of dental surgery (DDSs), doctors of dental 
medicine (DMDs), certified nurse midwives (CNMs), certified nurse 
practitioners (CNPs), including certified clinical nurse specialists 
(CCNSs), certified registered nurse anesthetists (CRNAs), and certified 
psychiatric nurse specialists (CPNSs) cannot prescribe DME, even when 
acting within the scope of their licensure.
     Beneficiaries cannot fill a prescription for DME 
prescribed by other non-physician professional providers, even when 
they act as a primary care provider, such as a CNP.
    State governments generally regulate the licensure and practice of 
specific types of health care professionals, and DoD limits TRICARE 
benefit coverage to services and supplies furnished by otherwise 
authorized TRICARE individual professional providers performing within 
the scope of their state licenses or certifications. State scope of 
practice laws vary about the range of services and some include the 
authority to prescribe DME. DoD determines that it is unnecessarily 
restrictive to not cover DE (including DME) merely because it is 
ordered by an otherwise authorized non-physician allied health care 
professional and certain other authorized individual professional 
providers. Therefore, this final rule amends the regulation to allow 
TRICARE coverage of DE (except for cardiorespiratory monitor) when 
ordered by a physician, dentist, or any other TRICARE authorized non-
physician allied health care professional. This includes CNMs, CNPs/
CCNSs, CRNAs, CPNSs, and certified physician assistants (CPAs), and 
certain other TRICARE authorized individual professional providers, 
namely DPMs, ODs, DDSs, and DMDs, when acting within the scope of their 
state license or certificate.
    Following further review of the applicable regulation, in proposing 
to expand the category of TRICARE authorized providers allowed to 
prescribe DE, the proposed amendment was not specific enough to include 
only physicians, dentists and other allied health care professionals 
consistent with the stated purpose of the proposed rule. Therefore, 
this final rule amends Sec.  199.4(d)(3)(ii)(A)(1) to limit those 
individual professional providers allowed to order DE to those listed 
in Sec.  199.6(c)(3)(i), (ii), or (iii).
    In addition, DoD must clarify that when the proposed rule referred 
to clinical nurse specialists (CNSs) as being able to prescribe DE for 
TRICARE beneficiaries, the reference should have been to certified 
clinical nurse specialists (CCNSs) and only those CCNSs that are 
recognized by TRICARE either as CNPs, CPNSs, or CNMs. Further, the 
proposed rule did not mention certified physician assistants (CPAs) as 
allied health care professionals authorized to prescribe DE. The 
applicable regulation includes CPAs as TRICARE authorized allied health 
care professionals at Sec.  199.6(c)(3)(iii)(H), and this final rule 
clarifies that CPAs are authorized to order DE for TRICARE 
beneficiaries. See the Public Comments section for additional 
information on both CCNSs and CPAs.
    The legal authorities for this final rule are 10 U.S.C. 1073, 
1077(a)(12), 1077(f)(1) and (2), 1077, 1079, and 1086 respectively. 
Authority for the ECHO Program: 10 U.S.C. 1079(d) through (f); 
authority for TRICARE benefit coverage: 10 U.S.C. 1079(a)(13), 1079(o), 
and 32 CFR part 199; authority regarding specific categories of TRICARE 
authorized individual professional providers: Sec.  199.6(c)(1)(iii) 
and (2)(i); authority for other allied health professionals as TRICARE 
authorized providers: Sec.  199.6(c)(3)(iii).

B. Summary of the Major Provisions of the Final Rule

    In this final rule, the regulatory language more appropriately 
conforms to that of the statutory language, which identifies ``DME'' as 
a subset of ``DE'' for purposes of the TRICARE Basic Program. 
Therefore, the final rule amends the TRICARE regulation on DE and 
clarifies that the policies applicable to DME (e.g., exclusion of 
luxury features and pricing methods) have been and are applicable to 
DE. DoD's interpretation of the statute and regulation has been, and 
continues to be, that all DE authorized under the TRICARE Basic Program 
must be determined to be medically necessary for the treatment of an 
illness, injury or bodily malfunction before the equipment can be cost 
shared by TRICARE. Consequently, this technical revision does not 
change current policies for coverage of DE.
    This final rule clarifies that the TRICARE ECHO Program includes 
coverage of AT devices that do not otherwise qualify as DE, and adds a 
definition and specific criteria for coverage of AT devices for 
individuals qualified to receive benefits under the ECHO Program.
    This final rule also provides further clarification that if a 
beneficiary wishes to obtain an item of DE that has deluxe, luxury, or 
immaterial features, the beneficiary shall be responsible for the 
difference between the price of the item and the TRICARE allowable cost 
for an otherwise authorized item of DE without such features.
    Finally, the final rule emphasizes that certain other TRICARE 
authorized individual professional providers who are listed in the 
regulation as physicians, dentists or allied health care professionals, 
who are legally

[[Page 78709]]

authorized to practice by the state, and when they are practicing 
within the scope of the license permitted by the state licensing 
authorities, may prescribe or order DE under the TRICARE Program.

C. Summary of Costs and Benefits

    This final rule is not anticipated to have an annual effect on the 
economy of $100 million or more, making it not economically significant 
and non-major under the Executive Order and the Congressional Review 
Act.
    The technical revisions for coverage of DE do not change current 
policies. DoD's interpretation of the statute and regulation has been, 
and will continue to be, that all equipment authorized under the 
TRICARE Basic Program must be determined to be medically necessary in 
the treatment of an illness, injury or bodily malfunction before the 
equipment can be cost shared by TRICARE. The amendment to remove the 
restriction that limits ordering or prescribing of DME to only an MD or 
DO is not expected to increase the amount of DE and DME prescribed 
because other providers are currently writing prescriptions--it only 
changes who prescribes it. However, DoD anticipates that there may be a 
marginal increase in administrative cost to accommodate changes to 
definitions. More importantly, this change will have no impact on 
beneficiaries eligible for DE.

II. Discussion of Final Rule

A. Final Rule Authority

    The legal authority for this final rule is 10 U.S.C. 1073, which 
authorizes the Secretary of Defense to administer the medical and 
dental benefits provided in 10 U.S.C. chapter 55. The DoD is also 
authorized to provide DE under 10 U.S.C. 1077(a)(12), which benefit is 
further defined in 10 U.S.C. 1077(f)(1) and (2). Although section 1077 
defines benefits to be provided in the military treatment facilities 
(MTFs), these benefits are incorporated by reference for the benefits 
provided by healthcare providers in the private sector to active duty 
family members and retirees and their dependents through sections 1079 
and 1086 respectively. DoD is further authorized to provide a program, 
generally referred to as ECHO, for dependents of active duty members, 
who have a qualifying condition under section 1079(d) through (f). The 
ECHO Program may include DE not otherwise available under the TRICARE 
Basic Program and AT devices to assist in the reduction of the 
disabling effects of a qualifying condition.
    The DoD, in general, is only authorized to cover as TRICARE 
benefits, under section 1079(a)(13), section 1079(o), and 32 CFR part 
199, any service or supply that is medically or psychologically 
necessary to prevent, diagnose or treat a mental or physical illness, 
injury, or bodily malfunction. Section 1079(a)(13) identifies specific 
categories of individual professional providers who may make the 
diagnosis and recommend the treatment. Section 199.6(c)(1)(iii) 
requires TRICARE-authorized individual professional providers to 
provide medical service and care within the scope of their licensure 
and training consistent with the state practice act, or within the 
scope of the test, which is the basis for an individual's certification 
by the state where the individual renders the service. Paragraph (2)(i) 
of this same section specifies that an individual must be currently 
licensed to render professional health care services in each state in 
which the individual renders services to TRICARE beneficiaries. Such 
license is required when a specific state provides, but does not 
require, license for a specific category of individual professional 
providers. Under Sec.  199.6(c)(3)(iii) of this part, certain 
individual professional providers, other than physicians and dentists, 
are identified as allied health professionals and authorized as TRICARE 
providers of care for covered services or supplies otherwise authorized 
by the regulation.
    Section 199.4(a)(1)(i) specifies the scope of benefits authorized 
for TRICARE beneficiaries, including requirements that the care be 
medically necessary in the diagnosis and treatment of illness or injury 
and that the care be provided by either authorized institutional 
providers or authorized individual professional providers or non-
institutional providers. As defined in Sec.  199.2(b), ``medically 
necessary'' incorporates the concept of ``appropriate medical care,'' 
which is further defined, in part, as requiring that a TRICARE 
authorized individual professional provider rendering medical care be 
qualified to perform such medical services, by reason of his or her 
training and education, and the provider is licensed, or certified by 
the state where the service is rendered or by an appropriate national 
organization, or otherwise meets TRICARE standards.

B. Provisions of the Final Rule

    This final rule incorporates all the provisions set forth in the 
proposed rule, except that this final rule further amends Sec.  
199.4.(d)(3)(ii)(A)(1) to clarify that those individual professional 
providers allowed to order DE are limited to physicians, dentists and 
allied health care professionals listed in Sec.  199.6(c)((3)(i), (ii), 
or (iii). In addition, based on public comments received, and after 
further review of the applicable regulation, DoD clarifies that 
certified clinical nurse specialists (CCNSs) [when recognized by 
TRICARE as a CNP, CNM, or CPNS] and certified physician assistants 
(CPAs) are TRICARE authorized allied health care professionals who may 
order or prescribe DE under TRICARE when acting within the scope of 
their license or certification. See the Public Comments section for 
additional information.
    The provisions, which amend 32 CFR part 199, are specified as 
follows:
Sec.  199.2 (Definitions)
     ``Duplicate Equipment.'' AT devices are subject to the 
definition of duplicate equipment.
     ``Durable Equipment (DE).'' To clarify that DE may be a 
covered benefit under the TRICARE Basic Program, consistent with 10 
U.S.C. 1079(a)(5) and 10 U.S.C. 1077(a)(12) and (f), DoD is revising 
the definition of DE as ``(1) a medically necessary item, which can 
withstand repeated use; (2) is primarily and customarily used to serve 
a medical purpose; and, (3) is generally not useful to an individual in 
the absence of an illness or injury.'' It includes DME, wheelchairs, 
iron lungs, and hospital beds.
     ``Durable Medical Equipment (DME).'' Consistent with 10 
U.S.C. 1079(a)(5) and 10 U.S.C. 1077(a)(12) and (f), DoD is revising 
the definition of DME as ``DE, which is medically appropriate to (1) 
improve, restore, or maintain the function of a malformed, diseased, or 
injured body part, or can otherwise minimize or prevent the 
deterioration of the beneficiary's function or condition; or, (2) 
maximize the beneficiary's function consistent with the beneficiary's 
physiological or medical needs.''
     ``Assistive Technology (AT) Devices.'' AT devices do not 
treat an underlying injury, illness or disease, or their symptoms. 
However, to clarify that the TRICARE ECHO Program includes coverage of 
AT devices, which do not otherwise qualify as DE, DoD is adding a 
definition of AT devices as ``equipment that generally helps overcome 
or remove a disability and is used to increase, maintain, or improve 
the functional capabilities of an individual. AT devices may include 
non-medical devices but do not include any structural alterations 
(e.g., wheelchair ramps or alterations to street curbs) or service 
animals (e.g., Seeing

[[Page 78710]]

Eye dogs, hearing/handicapped assistance animals, etc.). AT devices are 
authorized only under coverage criteria to assist in the reduction of 
the disabling effects of a qualifying condition for individuals 
eligible to receive benefits under the ECHO program as provided in 
Sec.  199.5.''
Sec.  199.4 (Basic Program Benefits)
    DoD clarifies the following for purposes of benefit coverage of DE 
under the TRICARE Basic Program:
     DE is an authorized benefit when medically necessary for 
the treatment of a covered illness or injury.
     Authorized DE is a benefit when ordered by certain 
authorized individual professional providers listed in Sec.  
199.6(c)(3)(i), (ii), or (iii) of this part for the specific use of the 
beneficiary and the equipment provides the medically appropriate level 
of performance and quality for the beneficiary's condition.
     Unless otherwise excluded under the regulation, items 
authorized coverage as DE include (1) DME (including a 
cardiorespiratory monitor under certain conditions), (2) wheelchairs 
when medically appropriate to provide basic mobility, (3) iron lungs, 
and (4) hospital beds. An electric wheelchair or a TRICARE-approved 
alternative to an electric wheelchair may be used in lieu of a manual 
wheelchair when it is medically indicated and appropriate for the 
individual patient.
     An item that provides a medically appropriate level of 
performance or quality for the beneficiary's condition does not include 
luxury, deluxe, or immaterial items. Only the base or basic model of 
equipment shall be covered, unless any customization of the equipment 
owned by the beneficiary, or an accessory or item of supply for any DE 
is essential for (1) achieving therapeutic benefit for the beneficiary; 
(2) making the equipment serviceable; or (3) otherwise assuring the 
proper functioning of the equipment. If a beneficiary wishes to obtain 
an item of DE that has deluxe, luxury, or immaterial features, the 
beneficiary shall be responsible for the difference between the price 
of the item and the TRICARE allowable cost for an otherwise authorized 
item of DE without such features.
     DE, which otherwise qualifies as a benefit, is excluded 
from coverage if (1) the beneficiary is a patient in a type of facility 
that ordinarily provides the same type of DE item to its patients at no 
additional charge in the usual course of providing its services; or (2) 
DE is available to the beneficiary from a Uniformed Services Medical 
Treatment Facility.
     DE may be provided on a rental or purchase basis and 
coverage will be based on the price most advantageous to the government 
under established procedures.
     Repairs of DE damaged while using the equipment in a 
manner inconsistent with its common use, and replacement of lost or 
stolen DE are excluded from Basic Program benefits.
     Repairs of deluxe, luxury or immaterial features of DE are 
excluded from Basic Program benefits.
Sec.  199.5 (TRICARE Extended Care Health Option (ECHO))
    DoD clarifies the following for purposes of benefit coverage of DE 
and AT devices under the ECHO Program:
     An AT device is authorized under certain coverage criteria 
when necessary to assist in the reduction of the disabling effects of a 
qualifying condition of the ECHO eligible beneficiary. For 
beneficiaries eligible for an individual education plan (IEP), AT 
devices that are recommended as part of the IEP may be covered.
     For those beneficiaries who cease to meet the eligibility 
requirements for an IEP, AT devices under TRICARE ECHO Program must:

--Be preauthorized;
--Be prescribed by a TRICARE authorized provider;
--Assist in the reduction of the disabling effects of the qualifying 
ECHO condition; and
--Be an item or educational learning device normally included in an 
IEP.

    Further, the item must not be otherwise covered as a prosthetic, 
augmentative communication device, or a benefit under the TRICARE Basic 
Program. The implementing instructions for this provision will be 
outlined in the TRICARE Policy Manual. As with all aspects of this 
proposed rule, DoD invites the public's comments on our approach 
regarding AT devices for those beneficiaries who cease to be eligible 
for an IEP.
     Repairs of DE or AT devices damaged while using the 
equipment in a manner inconsistent with its common use, and replacement 
of lost or stolen DE or AT devices are excluded from ECHO coverage.
     Repairs of deluxe, luxury or immaterial features of DE or 
AT devices are excluded from ECHO coverage.
     Wheelchairs may exceed the basic mobility limitation when 
needed to mitigate the effects of the ECHO qualifying condition of the 
beneficiary.
     DE may be provided on a rental or purchase basis and 
coverage will be based on the price most advantageous to the government 
under the same procedures established for pricing DE under the TRICARE 
Basic Program.

III. Public Comments

    On August 8, 2013 (78 FR 48367-48373), the Office of the Secretary 
of Defense published a proposed rule and provided the public an 
opportunity to comment on implementing changes to the coverage of DE, 
ordering or prescribing DE and benefit coverage of AT devices under the 
ECHO Program. The comment period closed October 7, 2013.
    As a result of publication of the proposed rule, DoD received 57 
comments. All of the commenters supported the policies we proposed, 
although there were concerns about physician assistants, nurse 
practitioners, and clinical nurse specialists not being included on the 
list of providers authorized to prescribe or order DE under the TRICARE 
Program. We appreciate all expressions of support and approval for the 
proposed guidelines.

Response Regarding Physician Assistants

    Generally, the Program policy has been to recognize those 
authorized individual professional providers identified in 10 U.S.C. 
1079(a)(13) when acting within the scope of their licenses and to allow 
direct reimbursement for authorized services they provide. However, 
Sec.  199.14(j)(ix) allows an otherwise authorized physician to bill 
for the services of an authorized ``certified'' physician assistant 
(CPA) under Sec.  199.6(c)(3)(iii)(H), provided the CPA is acting 
within the scope of his or her license and is supervised by an 
employing physician. Therefore, the final rule will allow CPAs to 
prescribe or order DE under the supervision of the employing authorized 
physician who must bill under his or her National Provider Identifier 
(NPI) for services that a CPA furnishes incident to his or her 
professional services.

Response Regarding Nurse Practitioners

    Nurse practitioners (NPs), by TRICARE law and regulation, are only 
recognized as individual professional providers when they qualify as 
``certified'' nurse practitioners (CNPs). For that reason, DoD will 
authorize only CNPs to prescribe or order DE when acting within the 
scope of their state license or certificate.

[[Page 78711]]

Response Regarding Clinical Nurse Specialists

    ``Certified'' clinical nurse specialists (CCNSs) are recognized as 
advanced practice nurses. They meet the same state requirements and 
coursework as any other advanced practice nurse (such as a CPN) whose 
practice similarly extends into the medical field, or for that matter, 
into any other medical professional area, and may use advanced practice 
nurse practitioner (APNP) or advanced practice nurse (APN) title when 
practicing within a CCNS's scope of practice. Therefore, CCNSs when 
recognized by TRICARE under one of the existing categories of 
authorized allied health care professionals as found in Sec.  
199.6(c)(3)(iii) are authorized to prescribe DE when acting within the 
scope of their state license or certificate.
    In this final rule, DoD considered all comments received during the 
comment period and responses to those comments are included in the 
above section of this final rule.

IV. Regulatory Procedure

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

    It has been determined that this final rule is not a significant 
regulatory action. This rule does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribunal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
these Executive Orders.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    It has been determined 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.

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

    It has been certified that this final rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. Set forth in the final rule are minor revisions to 
the existing regulation. The DoD does not anticipate a significant 
impact on the Program.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been determined that this final rule does not impose 
reporting or recordkeeping requirements under the Paperwork Act of 
1995.

Executive Order 13132, Federalism

    It has been determined that this final rule does not have 
federalism implications, as set forth in Executive Order 13132. This 
rule does not have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of Government.

List of Subjects in 32 CFR Part 199

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

    Accordingly, 32 CFR part 199 is amended to read 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 199.2, paragraph (b) is amended by adding the definition of 
``Assistive technology devices'' in alphabetical order and revising the 
definitions of ``Duplicate equipment,'' ``Durable equipment,'' and 
``Durable medical equipment'' to read as follows:

Sec.  199.2  Definitions.

* * * * *
    (b) * * *
    Assistive technology devices. Equipment that generally does not 
treat an underlying injury, illness, disease or their symptoms. 
Assistive technology devices are authorized only under the Extended 
Care Health Option (ECHO). Assistive technology devices help an ECHO 
beneficiary overcome or remove a disability and are used to increase, 
maintain, or improve the functional capabilities of an individual. 
Assistive technology devices may include non-medical devices but do not 
include any structural alterations (e.g., permanent structure of 
wheelchair ramps or alterations to street curbs) service animals (e.g., 
Seeing Eye dogs, hearing/handicapped assistance animals, etc.) or 
specialized equipment and devices whose primary purpose is to enable 
the individual to engage in sports or recreational events. Assistive 
technology devices are authorized only under coverage criteria 
determined by the Director, TRICARE Management Activity to assist in 
the reduction of the disabling effects of a qualifying condition for 
individuals eligible to receive benefits under the ECHO program, as 
provided in Sec.  199.5.
* * * * *
    Duplicate equipment. An item of durable equipment, durable medical 
equipment, or assistive technology items, as defined in this section 
that serves the same purpose that is served by an item of durable 
equipment, durable medical equipment, or assistive technology item 
previously cost-shared by TRICARE. For example, various models of 
stationary oxygen concentrators with no essential functional 
differences are considered duplicate equipment, whereas stationary and 
portable oxygen concentrators are not considered duplicates of each 
other because the latter is intended to provide the user with mobility 
not afforded by the former. Also, a manual wheelchair and electric 
wheelchair, both of which otherwise meet the definition of durable 
equipment or durable medical equipment, would not be considered 
duplicates of each other if each is found to provide an appropriate 
level of mobility. For the purpose of this Part, durable equipment, 
durable medical equipment, or assistive technology items that are 
essential in providing a fail-safe in-home life support system or that 
replace in-like-kind an item of equipment that is not serviceable due 
to normal wear, accidental damage, a change in the beneficiary's 
condition, or has been declared adulterated by the U.S. FDA, or is 
being or has been recalled by the manufacturer is not considered 
duplicate equipment.
    Durable equipment. Equipment that--
    (1) Is a medically necessary item, which can withstand repeated 
use;
    (2) Is primarily and customarily used to serve a medical purpose; 
and
    (3) Is generally not useful to an individual in the absence of an 
illness or injury. It includes durable medical equipment as defined in 
Sec.  199.2, wheelchairs, iron lungs, and hospital

[[Page 78712]]

beds. It does not include equipment (including wheelchairs) used or 
designed primarily for use in sports or recreational activities.
    Durable medical equipment. Durable equipment that is medically 
appropriate to--
    (1) Improve, restore, or maintain the function of a malformed, 
diseased, or injured body part or can otherwise minimize or prevent the 
deterioration of the beneficiary's function or condition; or
    (2) Maximize the beneficiary's function consistent with the 
beneficiary's physiological or medical needs.
* * * * *

0
3. Section 199.4 is amended by revising paragraphs (a)(1)(i), (d)(1), 
(d)(3)(ii), and (g)(43) to read as follows:

Sec.  199.4  Basic program benefits.

    (a) * * *
    (1)(i) Scope of benefits. Subject to all applicable definitions, 
conditions, limitations, or exclusions specified in this part, the 
CHAMPUS Basic Program will cost share medically necessary services and 
supplies required in the diagnosis and treatment of illness or injury, 
including maternity care and well-baby care. Benefits include specified 
medical services and supplies provided to eligible beneficiaries from 
authorized civilian sources such as hospitals, other authorized 
institutional providers, physicians, other authorized individual 
professional providers, and professional ambulance services, 
prescription drugs, authorized medical supplies, and rental or purchase 
of durable equipment.
* * * * *
    (d) Other benefits--(1) General. Benefits may be extended for the 
allowable charge of those other covered services and supplies described 
in paragraph (d) of this section, which are provided in accordance with 
good medical practice and established standards of quality by those 
other authorized providers described in Sec.  199.6. Such benefits are 
subject to all applicable definitions, conditions, limitations, or 
exclusions as otherwise may be set forth in this or other chapters of 
this Regulation. To be considered for benefits under paragraph (d) of 
this section, the described services or supplies must be prescribed and 
ordered by a physician. Other authorized individual professional 
providers acting within their scope of licensure may also prescribe and 
order these services and supplies unless otherwise specified in 
paragraph (d) of this section.
* * * * *
    (3) * * *
    (ii) Durable equipment--(A) Scope of benefit. (1) Durable 
equipment, which is for the specific use of the beneficiary and is 
ordered by an authorized individual professional provider listed in 
Sec.  199.6(c)(3)(i), (ii) or (iii), acting within his or her scope of 
licensure shall be covered if the durable equipment meets the 
definition in Sec.  199.2 and--
    (i) Provides the medically appropriate level of performance and 
quality for the medical condition present and
    (ii) Is not otherwise excluded by this part.
    (2) Items that may be provided to a beneficiary as durable 
equipment include:
    (i) Durable medical equipment as defined in Sec.  199.2;
    (ii) Wheelchairs. A wheelchair, which is medically appropriate to 
provide basic mobility, including reasonable additional costs for 
medically appropriate modifications to accommodate a particular 
physiological or medical need, may be covered as durable equipment. An 
electric wheelchair, or TRICARE approved alternative to an electric 
wheelchair (e.g., scooter) may be provided in lieu of a manual 
wheelchair when it is medically indicated and appropriate to provide 
basic mobility. Luxury or deluxe wheelchairs, as described in paragraph 
(d)(3)(ii)(A)(3) of this section, include features beyond those 
required for basic mobility of a particular beneficiary are not 
authorized.
    (iii) Iron lungs.
    (iv) Hospital beds.
    (v) Cardiorespiratory monitors under conditions specified in 
paragraph (d)(3)(ii)(B) of this section.
    (3) Whether a prescribed item of durable equipment provides the 
medically appropriate level of performance and quality for the 
beneficiary's condition must be supported by adequate documentation. 
Luxury, deluxe, immaterial, or non-essential features, which increase 
the cost of the item relative to a similar item without those features, 
based on industry standards for a particular item at the time the 
equipment is prescribed or replaced for a beneficiary, are not 
authorized. Only the ``base'' or ``basic'' model of equipment (or more 
cost-effective alternative equipment) shall be covered, unless 
customization of the equipment, or any accessory or item of supply for 
any durable equipment, is essential, as determined by the Director (or 
designee), for--
    (i) Achieving therapeutic benefit for the patient;
    (ii) Making the equipment serviceable; or
    (iii) Otherwise assuring the proper functioning of the equipment.
* * * * *
    (B) * * *
    (C) Exclusions. Durable equipment, which is otherwise qualified as 
a benefit is excluded from coverage under the following circumstances:
    (1) Durable equipment for a beneficiary who is a patient in a type 
of facility that ordinarily provides the same type of durable equipment 
item to its patients at no additional charge in the usual course of 
providing its services.
    (2) Durable equipment, which is available to the beneficiary from a 
Uniformed Services Medical Treatment Facility.
    (D) Basis for reimbursement. (1) Durable equipment may be provided 
on a rental or purchase basis. Coverage of durable equipment will be 
based on the price most advantageous to the government taking into 
consideration the anticipated duration of the medically necessary need 
for the equipment and current price information for the type of item. 
The cost analysis must include a comparison of the total price of the 
item as a monthly rental charge, a lease-purchase price, and a lump-sum 
purchase price and a provision for the time value of money at the rate 
determined by the U.S. Department of Treasury. If a beneficiary wishes 
to obtain an item of durable equipment with deluxe, luxury, immaterial 
or non-essential features, the beneficiary may agree to accept TRICARE 
coverage limited to the allowable amount that would have otherwise been 
authorized for a similar item without those features. In that case, the 
TRICARE coverage is based upon the allowable amount for the kind of 
durable equipment normally used to meet the intended purpose (i.e., the 
standard item least costly). The provider shall not hold the 
beneficiary liable for deluxe, luxury, immaterial, or non-essential 
features that cannot be considered in determining the TRICARE allowable 
costs. However, the beneficiary shall be held liable if the provider 
has a specific agreement in writing from the beneficiary (or his or her 
representative) accepting liability for the itemized difference in 
costs of the durable equipment with deluxe, luxury, or immaterial 
features and the TRICARE allowable costs for an otherwise authorized 
item without such features.

[[Page 78713]]

    (2) In general, repairs of beneficiary owned durable equipment are 
covered when necessary to make the equipment serviceable and 
replacement of durable equipment is allowed when the durable equipment 
is not serviceable because of normal wear, accidental damage or when 
necessitated by a change in the beneficiary's condition. However, 
repairs of durable equipment damaged while using the equipment in a 
manner inconsistent with its common use, and replacement of lost or 
stolen durable equipment are excluded from coverage. In addition, 
repairs of deluxe, luxury, or immaterial features of durable equipment 
are excluded from coverage.
* * * * *
    (g) * * *
    (43) Exercise/relaxation/comfort/sporting items or sporting 
devices. Exercise equipment, to include items primarily and customarily 
designed for use in sports or recreational activities, spas, 
whirlpools, hot tubs, swimming pools health club memberships or other 
such charges or items.
* * * * *

0
4. Section 199.5 is amended by revising paragraphs (c)(2), (c)(8)(ii), 
and (c)(8)(iii), (d)(3), (d)(7) introductory text, (d)(7)(i), 
(d)(7)(iv), and (d)(8), (g)(2), and (h)(4), and adding new paragraph 
(d)(7)(v) to read as follows:

Sec.  199.5  TRICARE extended care health option (ECHO).

* * * * *
    (c) * * *
    (2) Medical, habilitative, rehabilitative services and supplies, 
durable equipment and assistive technology (AT) devices that assist in 
the reduction of the disabling effects of a qualifying condition. 
Benefits shall be provided in the beneficiary's home or another 
environment, as appropriate. An AT device may be covered only if it is 
recommended in a beneficiary's Individual Educational Program (IEP) or, 
if the beneficiary is not eligible for an IEP, the AT device is an item 
or educational learning device normally included in an IEP and is 
preauthorized under ECHO as an integral component of the beneficiary's 
individual comprehensive health care services plan (including 
rehabilitation) as prescribed by a TRICARE authorized provider.
    (i) An AT device may be covered under ECHO only if it is not 
otherwise covered by TRICARE as durable equipment, a prosthetic, 
augmentation communication device, or other benefits under Sec.  199.4.
    (ii) An AT device may include an educational learning device 
directly related to the beneficiary's qualifying condition when 
recommended by an IEP and not otherwise provided by State or local 
government programs. If an individual is not eligible for an IEP, an 
educational learning device normally included in the IEP may be 
authorized as if directly related to the beneficiary's qualifying 
condition and prescribed by a TRICARE authorized provider as part of 
the beneficiary's individual comprehensive health care services plan.
    (iii) Electronic learning devices may include the hardware and 
software as appropriate. The Director, DHA, shall determine the types 
and (or) platforms of electronic devices and the replacement lifecycle 
of the hardware and its supporting software. All upgrades or 
replacements shall require a recommendation from the individual's IEP 
or the individual's comprehensive health care services plan.
    (iv) Duplicative or redundant hardware platforms are not 
authorized.
    Note to paragraph (c)(2)(iv): When one or more electronic platforms 
such as a desktop computer, laptop, notebook or tablet can perform the 
same functions in relation to the teaching or educational objective 
directly related to the qualifying condition, it is the intent of this 
provision to allow only one electronic platform that may be chosen by 
the beneficiary. Duplicative or redundant platforms are not allowed; 
however, a second platform may be obtained, if the individual's IEP 
recommends one platform such as a computer for the majority of the 
learning objectives, but there exists another objective, which cannot 
be performed on that platform. In these limited circumstances, the 
beneficiary may submit a request with the above justification to the 
Director, TMA, who may authorize a second device.
    (v) AT devices damaged through improper use of the device as well 
as lost or stolen devices may not be replaced until the device would 
next be eligible for a lifecycle replacement.
    (vi) AT devices do not include equipment or devices whose primary 
purpose is to assist the individual to engage in sports or recreational 
activities.
* * * * *
    (8) * * *
    (ii) Equipment adaptation. The allowable equipment and an AT device 
purchase shall include such services and modifications to the equipment 
as necessary to make the equipment usable for a particular ECHO 
beneficiary.
    (iii) Equipment maintenance. Reasonable repairs and maintenance of 
the beneficiary owned or rented DE or AT devices provided by this 
section shall be allowed while a beneficiary is registered in the ECHO 
Program. Repairs of DE and/or AT devices damaged while using the item 
in a manner inconsistent with its common use, and replacement of lost 
or stolen DE and/or AT devices are not authorized coverage as an ECHO 
benefit. In addition, repairs and maintenance of deluxe, luxury, or 
immaterial features of DE or AT devices are not authorized coverage as 
an ECHO benefit.
    (d) * * *
    (3) Structural alterations. Alterations to living space and 
permanent fixtures attached thereto, including alterations necessary to 
accommodate installation of equipment or AT devices to facilitate 
entrance or exit, are excluded.
* * * * *
    (7) Equipment. Purchase or rental of DE and AT devices otherwise 
allowed by this section is excluded when:
    (i) The beneficiary is a patient in an institution or facility that 
ordinarily provides the same type of equipment or AT devices to its 
patients at no additional charge in the usual course of providing 
services; or
* * * * *
    (iv) The item is a duplicate DE or an AT device, as defined in 
Sec.  199.2.
    (v) The item (or charge for access to such items through health 
club membership or other activities) is exercise equipment including an 
item primarily and customarily designed for use in sports or 
recreational activities, spa, whirlpool, hot tub, swimming pool, an 
electronic device used to locate or monitor the location of the 
beneficiary, or other similar items or charges.
    (8) Maintenance agreements. Maintenance agreements for beneficiary 
owned or rented equipment or AT device are excluded.
* * * * *
    (g) * * *
    (2) Equipment. (i) The TRICARE allowable amount for DE or AT 
devices shall be calculated in the same manner as DME allowable through 
section 199.4 of this title, and accrues to the fiscal year benefit 
limit specified in paragraph (f)(3) of this section.
    (ii) Cost-share. A cost-share, as provided by paragraph (f)(2) of 
this section, is required for each month in which equipment or an AT 
device is purchased under this section. However, in no month shall a 
sponsor be required to pay more than one cost-share regardless of the 
number of benefits the sponsor's dependents received under this 
section.
* * * * *
    (h) * * *

[[Page 78714]]

    (4) Repair or maintenance of DE owned by the beneficiary or an AT 
device is exempt from the public facility-use certification 
requirements.
* * * * *

    Dated: December 22, 2014.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2014-30337 Filed 12-30-14; 8:45 am]
BILLING CODE 5001-06-P
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