81368 Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 

Dated: December 21, 2011. 

Aaron Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2011–33175 Filed 12–27–11; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 199 

[DOD–2009–HA–0175] 

RIN 0720–AB38 

TRICARE; Elimination of Co-payments 

for Authorized Preventive Services for 

Certain TRICARE Standard 

Beneficiaries 

AGENCY: Office of the Secretary, 

Department of Defense. 

ACTION: Final rule. 

SUMMARY: The Department of Defense is 

publishing this final rule to implement 

section 711 of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year 2009 (FY 2009), Public Law 110– 

417. Section 711 eliminates copayments 

for authorized preventive services for 

TRICARE Standard beneficiaries other 

than Medicare-eligible beneficiaries. 

This rule also realigns the covered 

preventive services listed in the 

Exclusions section of the regulation to 

the Special Benefits section in the 

regulation. 

DATES: Effective Date: This final rule is 

effective January 27, 2012. Applicability 

Date: 32 CFR 199.4(f)(12) applies for 

dates of service on or after October 14, 

2008, for preventive services listed in 

paragraph (e) (28) of this section. 

FOR FURTHER INFORMATION CONTACT: Ann 

Fazzini, Medical Benefits and 

Reimbursement Branch, TRICARE 

Management Activity, telephone (303) 

676–3803. Questions regarding payment 

of specific claims should be addressed 

to the appropriate TRICARE contractor. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Sections 1079(b) and 1086(b) of Title 

10, United States Code (U.S.C.), as 

amended by Section 711 of the National 

Defense Authorization Act (NDAA) for 

Fiscal Year (FY) 2009 (Pub. L. 110–417), 

required the Department of Defense to 

eliminate copayments for those 

authorized preventive services named in 

the law for TRICARE Standard 

beneficiaries other than Medicareeligible beneficiaries. 

This language requires all copayments 

to be eliminated for authorized 

preventive services for certain TRICARE 

Standard beneficiaries who would 

otherwise pay copayments and that 

certain TRICARE Standard beneficiaries 

pay nothing for the preventive services 

during a year even if the beneficiary has 

not paid the amount necessary to cover 

the beneficiary’s deductible for the year. 

The language does not expand coverage 

of preventive services not otherwise 

authorized by law under the TRICARE 

preventive care benefit. 

The proposed rule published in the 

Federal Register on September 27, 2010, 

(75 FR 59173) clarified and realigned 

the preventive services currently listed 

in the Exclusions section of the 

TRICARE regulation to the Special 

Benefits section in the regulation. This 

realignment does not remove from 

coverage any preventive services 

currently covered under the program 

nor does it create a new entitlement to 

preventive or other services not 

otherwise authorized in title 10, Chapter 

55, United States Code. We performed 

this realignment because Title 32 Code 

of Federal Regulations (CFR) § 199.4(g), 

‘‘Exclusions and limitations,’’ states in 

subparagraph (37) that preventive care 

is excluded, and then lists those 

services that are not excluded. We 

believe including covered preventive 

services in the Exclusions section 

created confusion for those seeking 

information about preventive services 

under the TRICARE program. A person 

seeking information about what 

preventive services are covered would 

most likely not look for that information 

in a section labeled ‘‘Exclusions.’’ We 

remedied this confusion by removing 

the list of covered preventive services 

from this section and placing the list in 

the ‘‘Special Benefit Information’’ 

section of 32 CFR 199.4(e). We also 

realigned those services currently in the 

‘‘Exclusions’’ section that are not truly 

preventive but are more evaluative in 

nature in the ‘‘Special Benefit 

Information’’ section of 32 CFR 199.4(e) 

and added a definition of ‘‘evaluative’’ 

services in 32 CFR 199.2. However, 

based upon public comments received, 

we have removed the evaluative 

services definition and label from the 

Final Rule language, instead opting to 

simply list separately those covered 

benefits that while preventive in nature 

are authorized independently from the 

statutory lists of specifically authorized 

preventive services contained in 

Chapter 55 of title 10, United States 

Code. See Section III. Public Comments 

below. 

II. Section 711 of the Duncan Hunter 

NDAA for FY 2009 

Section 711 of the NDAA 2009 waives 

certain copayments for authorized 

preventive services for TRICARE 

Standard beneficiaries by amending 

subparagraphs 1079(b) and 1086(b) of 

Title 10, United States Code. 

It is important to note that the 

language in Section 711 includes in the 

list of preventive services for which a 

cost share is not applicable an ‘‘annual 

physical exam.’’ By law, only well-child 

visits for beneficiaries under 6 years of 

age are covered, as are physical 

examinations for beneficiaries 6 years of 

age or older if conducted as part of 

health promotion and disease 

prevention visits when provided in 

connection with otherwise authorized 

immunizations and or cancer 

screenings, resulting in elimination of 

copayments for these specific physical 

examinations for TRICARE Standard 

beneficiaries. See Title 10, U.S.C. 

1079(a)(2). Routine annual 

examinations, other than as described 

above, are not covered by the TRICARE 

program. 

III. Public Comments 

The proposed rule was published in 

the Federal Register (75 FR 59173) on 

September 27, 2010 for a 60-day public 

comment period. We received seven 

comments from six respondents on the 

proposed rule. 

Five respondents expressed support 

of this rule change because it will 

provide better overall coverage for 

beneficiaries, will increase awareness of 

disease states and prevention, is a step 

toward healthier lifestyles and better 

health choices, and in the long run will 

save the government money. We agree, 

and are pleased to promulgate this rule. 

One respondent stated agreement that 

a military beneficiary seeking 

information about what preventive 

services are covered would most likely 

not look for that information in a section 

labeled ‘‘Exclusions.’’ We agree and are 

pleased we are able to remedy this 

confusion. 

Two respondents requested minimal 

changes to make the regulation better 

understood and to eliminate confusing 

verbiage. We appreciate the comments 

and believe that the new evaluative 

services category may have been 

misleading. Adding the new evaluative 

services language in 32 CFR 199.4, the 

‘‘Special Benefit Information’’ section, 

may have had the unintended result of 

implying that we were expanding 

benefit coverage of preventive services 

beyond what was otherwise authorized 

by law or otherwise creating a new type 

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Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 81369 

of benefit that did not previously exist. 

We have carefully reviewed the 

preventive services provision from a 

historical perspective. In general, the 

TRICARE program has been and 

continues to be a benefit program based 

upon medical necessity. At the time the 

current regulation at 32 CFR 

199.4(g)(37) was written, certain 

services, when not medically necessary 

and not designed to treat a specific 

illness or injury, were commonly 

referred to as preventive in nature. The 

term ‘‘preventive care’’ was used rather 

broadly and not limited to those 

preventive services specifically 

authorized in statute. The regulation at 

32 CFR 199.4(g)(37) was thus written to 

exclude from coverage care which fell 

under this broad type of definition and 

was not deemed to be medically 

necessary. A number of exceptions were 

then listed under the exemption to 

indicate situations when the services 

were no longer considered preventive in 

nature but rather covered as medically 

necessary (e.g., tetanus shots following 

an accidental injury) or otherwise 

authorized by statute (e.g., physical 

examinations for beneficiaries ages 5–11 

that are required in connection with 

school enrollment). The TRICARE 

program has evolved over time as has 

the practice of medicine. Certain 

preventive health care services are now 

specifically authorized by statute. As a 

result, we believe it is necessary to 

distinguish the statutorily authorized 

preventive health care services from the 

broader category of services, which are 

based upon a medical necessity 

determination or are otherwise 

authorized by statute. Continuing to 

utilize the term ‘‘preventive care’’ in the 

historically broad sense as well as to 

refer to specific statutorily covered 

preventive services is certain to lead to 

confusion. As a result, this rule realigns 

statutorily authorized preventive care as 

well as care otherwise authorized by 

statute from the Exclusions section to 

the Special Benefits section. We have 

eliminated reference to the specific 

examples of medically necessary care 

that were highlighted under the 

exceptions to the general preventive 

care exclusion in 32 CFR 

199.4(g)(37)(iii)–(vi) as realigning these 

specific routine types of medically 

necessary care to the special benefits 

section is confusing and unnecessary. 

Eliminating the individual reference to 

these medically necessary services in no 

way conveys a change in TRICARE 

benefit coverage. We are modifying the 

remaining regulatory text in 32 CFR 

199.4 (e) (28) to include preventive 

services and in paragraph (e)(29) 

including those other special services 

that are otherwise authorized by law. 

We believe these changes will clarify 

our intent regarding preventive and 

other special benefits, which will be 

further clarified in the TRICARE Policy 

Manual. 

One respondent suggested that we 

expand this service/coverage to include 

other health insurance providers and 

Medicare-eligible patients. We 

appreciate this comment and want to 

assure the respondent the changes we 

are implementing do not add to or 

subtract from the covered preventive 

services beneficiaries are now receiving, 

but are primarily to address the 

elimination of copayments for certain 

preventive services. We are not certain 

what the respondent means by ‘‘other 

health insurance providers,’’ but we 

believe this refers to other payers. This 

law is specific to the Department of 

Defense TRICARE Program and has no 

effect on other payers. TRICARE 

beneficiaries who are also eligible for 

Medicare are specifically excluded from 

the elimination of copayments under 

this provision. In these situations, 

Medicare is the primary payer and 

TRICARE is the secondary payer for 

services, and in most cases, TRICARE 

pays the Medicare copayments or costshares so that the beneficiary has no 

out-of-pocket expenses for these 

services. We would also note that to the 

extent our Medicare-eligible 

beneficiaries have no copayments or 

cost-shares for covered preventive 

services under Medicare, there are no 

out-of-pocket expenses for TRICARE to 

reimburse. We will ensure this is 

clarified in the TRICARE Policy Manual. 

Two respondents recommended 

waiving any co-pays for preventive 

office visits. We appreciate this 

comment and the opportunity to clarify 

that the regulation lists health 

promotion and disease prevention visits 

as a covered preventive care benefit (32 

CFR 199.4(e) (28) (iv)), for which there 

is no copayment, when a beneficiary 

receives at least one of the preventive 

services listed (e.g., immunizations or 

cancer screening examinations) during 

the office visit. We will ensure this is 

clarified in the TRICARE Policy Manual. 

One respondent stated support for the 

elimination of cost-sharing for TRICARE 

beneficiaries for secondary prevention, 

such as eye examinations for those with 

diabetes, as this would be an important 

extension of the health enhancement 

and cost containment goals of the 

FY2009 NDAA. The respondent stated 

that FY2009 was retroactive, meaning 

that beneficiaries did not necessarily 

know that their co-pays would be 

eliminated when they received a 

qualifying preventive service, and that it 

should be done prospectively, ideally 

for more than one fiscal year at a time. 

We appreciate the respondent’s support 

to expand this benefit to secondary 

prevention. However, we cannot 

address this as it is outside the scope of 

the law. Benefits may not be 

implemented until granted by Congress. 

We have attempted to alleviate the 

financial burden for those services 

already received by including a 

provision in the regulation that allows 

requests for reimbursement of 

copayments paid by beneficiaries on or 

after the applicability date of October 

14, 2008. The elimination of 

copayments for these preventive 

services is effective October 14, 2008, 

and will continue for successive years 

until it is revised or eliminated by law. 

One respondent stated this rule 

provides an important opportunity to 

review TRICARE’s coverage policies for 

pediatric health promotion and disease 

prevention services to ensure that costsharing is not imposed for any of these 

vital services. While we appreciate the 

respondent’s suggestion regarding 

review of our coverage policies for 

pediatric preventive services, we cannot 

address this as it is outside the scope of 

the law. As to the comment relating to 

the reimbursement to providers of these 

preventive services, they will be eligible 

to be paid 100% of the TRICARE 

allowed amount, and will see no 

reduction in their payment levels for 

these services. 

IV. Regulatory Procedures 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review’’ 

It has been certified that this 

amendment to 32 CFR part 199 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 tribal 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. 

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81370 Federal Register / Vol. 76, No. 249 / Wednesday, December 28, 2011 / Rules and Regulations 

It has been certified that this rule is 

not economically significant, and has 

been reviewed by the Office of 

Management and Budget as required 

under the provisions of E.O. 12866. 

Section 202, Public Law 104–4, 

‘‘Unfunded Mandates Reform Act’’ 

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. 

Public Law 96–354, ‘‘Regulatory 

Flexibility Act’’ (5 U.S.C. 601) 

The Regulatory Flexibility Act (RFA) 

requires each Federal agency to prepare, 

and make available for public comment, 

a regulatory flexibility analysis when 

the agency issues a regulation which 

would have a significant impact on a 

substantial number of small entities. 

This rule will not significantly affect a 

substantial number of small entities for 

purposes of the RFA. 

Public Law 96–511, ‘‘Paperwork 

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

This rule will not impose significant 

additional information collection 

requirements on the public under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3511). Existing information 

collection requirements of the TRICARE 

and Medicare programs will be utilized. 

Executive Order 13132, ‘‘Federalism’’ 

This rule has been examined for its 

impact under E.O. 13132, and does not 

contain policies that have federalism 

implications that would have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government; therefore, 

consultation with State and local 

officials is not required. 

List of Subjects in 32 CFR Part 199 

Claims, Dental health, Health care, 

Health insurance, Individuals with 

disabilities, Military personnel. 

Accordingly, 32 CFR part 199 is 

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 199.4 is amended by adding 

paragraphs (e)(28), (e)(29), and (f)(12), 

and revising paragraph (g)(37) to read as 

follows. 

§ 199.4 Basic program benefits. 

* * * * * 

(e) * * * 

(28) Preventive care. The following 

preventive services are covered: 

(i) Cervical, breast, colon and prostate 

cancer screenings according to 

standards issued by the Director, 

TRICARE Management Activity, based 

on guidelines from the U.S. Department 

of Health and Human Services. The 

standards may establish a specific 

schedule that includes frequency, age 

specifications, and gender of the 

beneficiary, as appropriate. 

(ii) Immunizations as recommended 

by the Centers for Disease Control and 

Prevention (CDC). 

(iii) Well-child visits for children 

under 6 years of age as described in 

paragraph (c)(3)(xi) of this section. 

(iv) Health promotion and disease 

prevention visits (which may include all 

of the services provided pursuant to 

§ 199.18(b)(2)) for beneficiaries 6 years 

of age or older may be provided in 

connection with immunizations and 

cancer screening examinations 

authorized by paragraphs (e)(28)(i) and 

(ii) of this section. 

(29) Physical examinations. In 

addition to the health promotion and 

disease prevention visits authorized in 

paragraph (e)(28)(iv) of this section, the 

following physical examinations are 

specifically authorized: 

(i) Physical examinations for 

dependents of Active Duty military 

personnel who are traveling outside the 

United States. The examination must be 

required because of an Active Duty 

member’s assignment and the travel is 

being performed under orders issued by 

a Uniformed Service. Any 

immunizations required for a dependent 

of an Active Duty member to travel 

outside of the United States is covered 

as a preventive service under paragraph 

(e)(28) of this section. 

(ii) Physical examinations for 

beneficiaries ages 5–11 that are required 

for school enrollment and that are 

provided on or after October 30, 2000. 

(iii) Other types of physical 

examinations not listed above are 

excluded including routine, annual, or 

employment-requested physical 

examinations and routine screening 

procedures that are not part of 

medically necessary care or treatment or 

otherwise specifically authorized by 

statute. 

(f) * * * 

(12) Elimination of cost-sharing for 

certain preventive services. 

(i) Effective for dates of service on or 

after October 14, 2008, beneficiaries, 

subject to the limitation in paragraph 

(f)(12)(iii) of this section, shall not pay 

any cost-share for preventive services 

listed in paragraph (e)(28)(i) through (iv) 

of this section. The beneficiary shall not 

be required to pay any portion of the 

cost of these preventive services even if 

the beneficiary has not satisfied the 

deductible for that year. 

(ii) Beneficiaries who paid a costshare for preventive services listed in 

paragraph (e)(28)(i) through (iv) of this 

section on or after October 14, 2008, 

may request reimbursement until 

January 28, 2013 according to 

procedures established by the Director, 

TRICARE Management Activity. 

(iii) This elimination of cost-sharing 

for preventive services does not apply to 

any beneficiary who is a Medicareeligible beneficiary. For purposes of this 

section, the term ‘‘Medicare-eligible’’ 

beneficiary is defined in 10 U.S.C. 

1111(b) and refers to a person eligible 

for Medicare Part A. 

(iv) Appropriate copayments and 

deductibles will apply for all services 

not listed in paragraph (e)(28) of this 

section, whether considered preventive 

in nature or not. 

(g) * * * 

(37) Preventive care. Except as stated 

in paragraph (e)(28) of this section, 

preventive care, such as routine, annual, 

or employment-requested physical 

examinations and routine screening 

procedures. 

* * * * * 

■ 4. Section 199.17 is amended by 

adding paragraphs (m)(1)(ii)(D) and 

(m)(2)(iii) to read as follows: 

§ 199.17 TRICARE program. 

* * * * * 

(m) * * * 

(1) * * * 

(ii) * * * 

(D) As stated in § 199.4(f)(12), 

TRICARE Standard beneficiaries who 

are not Medicare-eligible beneficiaries, 

shall have no cost sharing requirements 

for preventive care listed under § 199.4 

(e)(28)(i) through (iv). 

* * * * * 

(2) * * * 

(iii) As stated in § 199.4(f)(12), 

TRICARE Standard beneficiaries who 

are not Medicare-eligible beneficiaries, 

shall have no cost sharing requirements 

for preventive care listed under § 199.4 

(e)(28)(i) through (iv). 

* * * * * 

Dated: December 21, 2011. 

Aaron Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2011–33105 Filed 12–27–11; 8:45 am] 

BILLING CODE 5001–06–P 

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