Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Proposed Rules 48367 

pay grades of E–4 and below; active 

duty dependents of sponsors in pay 

grades E–5 and above; and retirees and 

their dependents.’’ There is no 

enrollment fee for active duty 

dependents. The annual enrollment fee 

for retirees and their dependents since 

the program began was $230 per person 

or $460 per family until FY 2012. In FY 

2012, the Department of Defense 

implemented a modest increase ($2.50 

per person or $5.00 per family per 

month) in the enrollment fees for 

retirees and their dependents to $260 

per person or $520 per family, followed 

by annual indexing. For FY 2013, the 

fee was increased per the National 

Defense Authorization Act for FY 2012 

using the same Cost of Living 

Adjustment (COLA) percentage (3.6%) 

used to increase military retired pay. 

This increased the fees for FY 2013 to 

$269.38 per person or $538.56 per 

family. 

Although the increases have been 

modest, TRICARE intends to exempt 

from this increase Survivors of Active 

Duty Deceased Sponsors and Medically 

Retired Uniformed Services Members 

and their Dependents enrolled in Prime. 

The enrollment fees for the current 

beneficiaries in these categories would 

remain at their current rate. The 

beneficiaries added to these categories 

on or after 10/1/2013 would have their 

fee frozen at the rate in effect at the time 

they are classified in either category and 

enroll in Prime or, if not enrolling, at 

the rate in effect at the time of 

enrollment. The fee remains frozen as 

long as at least one family member 

remains enrolled in TRICARE Prime and 

there is not a break in enrollment. To 

allow this exemption to be 

implemented, a change to the regulation 

is needed to authorize an exception to 

the general rule that the enrollment fees 

‘‘shall be uniform’’ for the group of 

retirees and their dependents. 

(Survivors and medically retired 

members are part of the retiree group 

under TRICARE rules.) This proposed 

rule articulates that change. It provides 

that as an exception to the requirement 

for uniformity within the group of 

retirees and their dependents, the 

Assistant Secretary of Defense (Health 

Affairs) may exempt Survivors of Active 

Duty Deceased Sponsors and Medically 

Retired Uniformed Services Members 

and their dependents from increases in 

enrollment fees that occur on or after 

October 1, 2013. 

It is the Department’s intent that the 

exemption will apply only to the 

beneficiaries in the two categories 

specified above and only if they enroll 

in TRICARE Prime. If a beneficiary in 

one of the categories does not enroll in 

Prime, but later elects to enroll, their 

rate would be frozen at the rate in effect 

at the time of enrollment. If a 

beneficiary dis-enrolls from Prime and 

later re-enrolls, their rate would be 

frozen at the rate in effect at reenrollment. The fee charged for a 

dependent of a Medically Retired 

Uniformed Services Member would not 

change if the dependent was later reclassified a Survivor and remained 

enrolled in Prime. 

Regulatory Procedures 

Executive Orders 12866 and 13563 

require certain regulatory assessments 

for any significant regulatory action that 

would result in an annual effect on the 

economy of $100 million or more, or 

have other substantial impacts. The 

Congressional Review Act establishes 

certain procedures for major rules, 

defined as those with similar major 

impacts. The Regulatory Flexibility Act 

(RFA) requires that each Federal agency 

prepare, and make available for public 

comment, a regulatory flexibility 

analysis when the agency issues a 

regulation that would have significant 

impact on a substantial number of small 

entities. This proposed rule will have 

none of those effects. Nor does it 

establish information collection 

requirements under the Paperwork 

Reduction Act. Nor for purposes of 

Executive Order 13132 does it have 

federalism implications affecting States. 

List of Subjects in 32 CFR Part 199 

Claims, Handicapped, Health 

insurance, and Military personnel. 

Accordingly, 32 CFR part 199 is to be 

amended as follows: 

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 199.18 is amended by 

adding at the end of paragraph (c)(1) a 

new sentence, as follows: 

§ 199.18 Uniform HMO Benefit. 

* * * * * 

(c) * * * . (1) * * * As an exception 

to the requirement for uniformity within 

the group of retirees and their 

dependents, the Assistant Secretary of 

Defense (Health Affairs) may exempt 

Survivors of Active Duty Deceased 

Sponsors and Medically Retired 

Uniformed Services Members and their 

Dependents from increases in 

enrollment fees that occur on or after 

October 1, 2013. 

Dated: July 29, 2013. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2013–19152 Filed 8–7–13; 8:45 am] 

BILLING CODE 5001–06–P 

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: Proposed rule. 

SUMMARY: The Department of Defense 

(DoD) proposes several amendments to 

the TRICARE regulation. Specifically, 

the proposed rule revises the definitions 

of durable equipment (DE) and durable 

medical equipment (DME) to better 

conform the language in the regulation 

to the statute and implementing the 

statutory requirements will not change 

current policies. This rule also adds a 

definition of assistive technology (AT) 

devices for purposes of benefit coverage 

under the TRICARE Extended Care 

Health Option (ECHO) Program and 

removes the restriction under the 

TRICARE Basic Program that limits 

ordering or prescribing of DME to only 

a physician, to allow certain other 

authorized individual professional 

providers acting within the scope of 

their licensure to order or prescribe 

DME. 

Finally, the proposed rule 

incorporates a policy clarification 

relating to luxury, deluxe, or immaterial 

features of equipment or devices. 

Namely, TRICARE cannot reimburse for 

the luxury, deluxe, or immaterial 

features of equipment or devices. 

However, the TRICARE Management 

Activity (TMA) can reimburse for the 

base or basic equipment or device that 

meet the beneficiary’s needs. 

Beneficiaries may pay the provider for 

the luxury, deluxe, or immaterial 

features themselves, if they desire their 

equipment or device to have these 

‘‘extra features.’’ 

DATES: Comments must be received on 

or before October 7, 2013. Do not submit 

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48368 Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Proposed Rules 

comments directly to the point of 

contact or mail your comments to any 

address other than what is shown 

below. Doing so will delay the posting 

of the submission. 

ADDRESSES: You may submit comments, 

identified by docket number and/or 

Regulatory Information Number (RIN) 

number and title, by any of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Federal Docket Management 

System Office, 4800 Mark Center Drive, 

2nd floor, East Tower, Suite 02G09, 

Alexandria, VA 22350–3100. 

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:// 

regulations.gov as they are received 

without change, including any personal 

identifiers or contact information. 

FOR FURTHER INFORMATION CONTACT: Gail 

L. Jones (303) 676–3401. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

1. Purpose of Regulatory Actions 

a. Need for Regulatory Actions 

(1) Benefit Coverage for DE, DME and 

Assistive Technology (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 proposed rule provides 

clarification by correcting the 

definitions and adding a definition of 

assistive technology (AT) devices, 

which conforms to existing policy 

covering devices not otherwise 

qualifying as durable equipment. 

(2) Ordering and Prescribing DE and 

DME. The current regulation in § 199.4 

(d)(3)(ii)(A)(1) does not allow coverage 

of DME ordered by a TRICAREauthorized 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. 

Specifically, paragraph (d)(3)(ii)(A)(1) 

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) and 

doctors of dental medicine (DMDs), 

certified nurse midwives (CNMs), 

certified nurse practitioners (CNPs), 

certified registered nurse anesthetists 

(CRNAs), and clinical nurse specialists 

(CNSs) 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 

certified nurse practitioner. 

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 with regard 

to the range of services, and some 

include the authority to prescribe DME. 

After assessing the information 

available, DoD has determined that it is 

unnecessarily restrictive not to cover DE 

(including DME) merely because it is 

ordered by a non-physician. Therefore, 

the regulation is being amended to 

allow TRICARE coverage of DE, except 

for cardiorespiratory monitors, when 

ordered by a physician or when ordered 

by any otherwise authorized nonphysician allied health care 

professional, namely, CNMs, CNPs, 

CRNAs, and CNSs, and certain other 

authorized individual professional 

providers, namely DPMs, ODs, DDSs, 

and DMDs, when acting within the 

scope of their state license or certificate. 

b. Legal Authority for the Regulatory 

Action 

This regulation is proposed under the 

authorities of 10 U.S.C. 1073, which 

authorizes the Secretary of Defense to 

administer the medical and dental 

benefits provided in chapter 55 of title 

10, United States Code. 

The DoD is 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 also 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 is also authorized to cost 

share, under section 1079 (a)(13) and 

the 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. 

The statute 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 was 

the basis for the 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 

CHAMPUS beneficiaries. Such license 

is required when a specific state 

provides, but does not require, license 

for a specific category of individual 

professional providers. Under section 

199.2(b) of this part, other allied health 

professionals are also defined as 

‘‘individual professional providers of 

care other than physicians, dentists, or 

extramedical individual providers.’’ 

Section 199.2(b) requires, as part of 

the definition of ‘‘appropriate medical 

care’’ that a TRICARE authorized 

individual professional provider 

rendering medical care be qualified to 

perform such medical services because 

of his or her training and education and 

is licensed or certified by the state 

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where the service is rendered or by an 

appropriate national organization, or 

otherwise meets CHAMPUS standards. 

2. Summary of Major Provisions of the 

Regulatory Action 

In this rule, the proposed 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. Further, the proposed rule 

amends the TRICARE regulation on DE 

to better conform the language in the 

regulation to the TRICARE statute 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 in 

the treatment of an illness, injury or 

bodily malfunction before the 

equipment can be cost shared by 

TRICARE. Therefore, this technical 

revision does not change current 

policies for coverage of DE. 

To clarify that the TRICARE ECHO 

Program includes coverage of AT 

devices, which do not otherwise qualify 

as DE, this proposed rule contains a 

definition and specific criteria for 

coverage of AT devices for individuals 

qualified to receive benefits under the 

ECHO Program. 

The proposed rule provides 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, this proposed rule 

emphasizes that certain other 

authorized individual professional 

providers who are listed in this rule, 

who are legally authorized to practice 

by a 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. 

3. Summary of Costs and Benefits 

This proposed rule is not anticipated 

to have an annual effect on the economy 

of $100 million or more, making it a 

substantive, non-significant rule 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 proposed amendment to 

remove the restriction that limits 

ordering or prescribing of DME to only 

a 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. Explanation for Proposed Provisions 

Overview 

DoD is amending 32 CFR part 199 to 

specify the following: 

§ 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 

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 Section 199.5.’’ 

§ 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 199.6(c) 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 TRICAREapproved 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) 

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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. 

§ 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. 

This amendment is published for 

proposed rulemaking at the same time it 

is coordinated within the DoD, with the 

Department of Health and Human 

Services, and with other interested 

agencies so consideration of both 

internal and external comments and 

publication of the final rulemaking 

document can be expedited. 

III. Response to Comments 

Because of the large number of public 

comments generally received on Federal 

Register documents, we are not able to 

acknowledge or respond to them 

individually. We will consider all 

comments we receive by the date and 

time specified in the DATES specified 

section of this preamble, and when we 

proceed with a subsequent document, 

we will respond to the major comments 

in the preamble to that document. We 

will make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

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 

proposed 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 this Executive Order. 

Unfunded Mandates Reform Act (Sec. 

202, Pub. L. 104–4) 

It has been certified that this proposed 

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 proposed 

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 proposed 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 certified that this proposed 

rule does not impose reporting or 

recordkeeping requirements under the 

Paperwork Act of 1995. 

Executive Order 13132, Federalism 

It has been certified that this proposed 

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 

proposed to be amended as follows: 

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 199.2, paragraph (b) is 

amended by adding the definition of 

‘‘Assistive Technology Devices’’ and 

revising the definitions of ‘‘Duplicate 

Equipment,’’ ‘‘Durable Equipment,’’ and 

‘‘Durable Medical Equipment’’ to read 

as follows: 

§ 199.2 Definitions. 

* * * * * 

(b) * * * 

Assistive technology devices. 

Equipment that generally does not treat 

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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 nonmedical 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 section 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 

an 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 to provide a failsafe in-home life support system or that 

replaces 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 199.2 of this part, 

wheelchairs, iron lungs, and hospital 

beds. It does not include equipment 

(including wheel chairs) 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. 

* * * * * 

■ 3. Section 199.4 is amended by 

revising paragraphs (a)(1)(i), (d)(1), 

(d)(3)(ii), and (g)(43) to read as follows: 

§ 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 of this Regulation. 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 199.6 (c) of this Part, acting within 

his or her scope of licensure shall be 

covered if the durable equipment meets 

the definition in section 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 

Regulation. 

(2) Items that may be provided to a 

beneficiary as durable equipment 

include: 

(i) Durable medical equipment as 

defined in section 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 (3) below, 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 nonessential 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 

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48372 Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Proposed Rules 

authorized. Only the ‘‘base’’ or ‘‘basic’’ 

model of equipment (or more costeffective 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 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 nonessential 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. 

(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. 

* * * * * 

■ 4. Section 199.5 is amended by 

revising paragraphs (c)(2), (c)(3), 

(c)(8)(ii), and (c)(8)(iii), (d)(3), (d)(7), 

(d)(7)(i), (d)(7)(iv), and (d)(8), (g)(2)(i), 

(g)(2)(ii), and adding new paragraphs 

(d)(7)(v) and (h)(4) to read as follows: 

§ 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 other 

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 benefit 

under section 199.4 of this title. 

(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 an 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, TMA 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: 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 

useable for a particular ECHO 

beneficiary. 

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Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Proposed Rules 48373 

(iii) Equipment maintenance. 

Reasonable repairs and maintenance of 

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 

(ii) * * * 

(iii) * * * 

(iv) The item is a duplicate DE or an 

AT device, as defined in section 199.2 

of this title. 

(v) The item (or charge for access to 

such item through health club 

membership or other activity) 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 a beneficiary, or 

other similar item or charge. 

(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) * * * 

(4) Repair or maintenance of DE 

owned by the beneficiary or an AT 

device is exempt from the public 

facility-use certification requirements. 

* * * * * 

Dated: July 29, 2013. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2013–19153 Filed 8–7–13; 8:45 am] 

BILLING CODE 5001–06–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2007–0356; FRL–9842–5] 

Approval and Promulgation of Air 

Quality Implementation Plans; Texas; 

Victoria County; 1997 8-Hour Ozone 

Section 110 (a)(1) Maintenance Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

revisions to the Texas State 

Implementation Plan (SIP). The revision 

consists of a maintenance plan for 

Victoria County developed to ensure 

continued attainment of the 1997 8-hour 

ozone National Ambient Air Quality 

Standard (NAAQS) for 10 years after the 

effective designation date of June 15, 

2004. The Maintenance Plan meets the 

requirements of Section 110(a)(1) of the 

Federal Clean Air Act (CAA), EPA’s 

rules, and is consistent with EPA’s 

guidance. EPA is approving the 

revisions pursuant to section 110 of the 

CAA. 

DATES: Written comments should be 

received on or before September 9, 

2013. 

ADDRESSES: Comments may be mailed to 

Mr. Guy Donaldson, Chief, Air Planning 

Section (6PD–L), Environmental 

Protection Agency, 1445 Ross Avenue, 

Suite 1200, Dallas, Texas, 75202–2733. 

Comments may also be submitted 

electronically or through hand delivery/ 

courier by following the detailed 

instructions in the ADDRESSES section of 

the direct final rule located in the rules 

section of this Federal Register. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth W. Boyce, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone (214) 665–7259; fax number 

214–665–7263; email address 

boyce.kenneth@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

final rules section of this Federal 

Register, EPA is approving the State’s 

SIP submittal as a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no adverse comments are 

received in response to this action rule, 

no further activity is contemplated. If 

EPA receives adverse comments, the 

direct final rule will be withdrawn and 

all public comments received will be 

addressed in a subsequent final rule 

based on this proposed rule. EPA will 

not institute a second comment period. 

Any parties interested in commenting 

on this action should do so at this time. 

Please note that if EPA receives adverse 

comment on an amendment, paragraph, 

or section of this rule and if that 

provision may be severed from the 

remainder of the rule, EPA may adopt 

as final those provisions of the rule that 

are not the subject of an adverse 

comment. 

For additional information, see the 

direct final rule which is located in the 

rules section of this Federal Register. 

Dated: July 19, 2013. 

Ron Curry, 

Regional Administrator, Region 6. 

[FR Doc. 2013–18883 Filed 8–7–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2013–0058; FRL–9841–7] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Pennsylvania; Update of the Motor 

Vehicle Emissions Budgets for the 

Lancaster 1997 8-Hour Ozone 

Maintenance Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

revisions to the Commonwealth of 

Pennsylvania’s (Pennsylvania) State 

Implementation Plan (SIP). One revision 

consists of an update to the SIPapproved Motor Vehicle Emissions 

Budgets (MVEBs) for nitrogen oxides 

(NOX) and volatile organic compounds 

(VOCs) for the 1997 8-Hour Ozone 

National Ambient Air Quality Standard 

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