```

[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Rules and Regulations]
[Pages 38173-38175]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15509]

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

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

[[Page 38174]]

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 Assistant-at-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:

[[Page 38175]]

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 (e)(19)(v) to read as 
follows:

Sec.  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.
* * * * *

0
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:

Sec.  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-at-surgery (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-at-surgery 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 Sec.  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
```