Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Proposed Rules 81897 

(j) No Alternative Actions Intervals, and/or 

Critical Design Configuration Control 

Limitations (CDCCLs) 

After accomplishing the revisions required 

by paragraph (i) of this AD, no alternative 

actions (e.g., inspections), intervals, and/or 

CDCCLs may be used other than those 

specified in Part 2—Airworthiness Limitation 

Inspection (ALI)—Structures, of Appendix A, 

Airworthiness Limitations of the EMBRAER 

170 MRBR MRB–1621, Appendix A, Part 2, 

Airworthiness Limitations, Revision 7, dated 

November 11, 2010; and Temporary Revision 

(TR) 7–1, dated February 11, 2011, to Part 2— 

Airworthiness Limitation Inspection (ALI)— 

Structures, of Appendix A, Airworthiness 

Limitations of the EMBRAER 170 MRBR 

MRB–1621, Revision 7, dated November 11, 

2010, unless the actions, intervals, and/or 

CDCCLs are approved as an AMOC in 

accordance with the procedures specified in 

paragraph (k)(1) of this AD. 

(k) Other FAA AD Provisions 

The following provisions also apply to this 

AD: 

(1) Alternative Methods of Compliance 

(AMOCs): The Manager, International 

Branch, ANM–116, FAA, has the authority to 

approve AMOCs for this AD, if requested 

using the procedures found in 14 CFR 39.19. 

In accordance with 14 CFR 39.19, send your 

request to your principal inspector or local 

Flight Standards District Office, as 

appropriate. If sending information directly 

to the International Branch, send it to ATTN: 

Cindy Ashforth, Aerospace Engineer, 

International Branch, ANM–116, Transport 

Airplane Directorate, FAA, 1601 Lind 

Avenue SW., Renton, Washington 98057– 

3356; telephone (425) 227–2768; fax (425) 

227–1320. Information may be emailed to: 

9-ANM-116-AMOC-REQUESTS@faa.gov. 

Before using any approved AMOC, notify 

your appropriate principal inspector, or 

lacking a principal inspector, the manager of 

the local flight standards district office/ 

certificate holding district office. The AMOC 

approval letter must specifically reference 

this AD. 

(2) Airworthy Product: For any requirement 

in this AD to obtain corrective actions from 

a manufacturer or other source, use these 

actions if they are FAA-approved. Corrective 

actions are considered FAA-approved if they 

are approved by the State of Design Authority 

(or their delegated agent). You are required 

to assure the product is airworthy before it 

is returned to service. 

(l) Related Information 

Refer to MCAI Brazilian Airworthiness 

Directive 2011–04–01, dated May 5, 2011; 

and Part 2—Airworthiness Limitation 

Inspection (ALI)—Structures, of Appendix A, 

Airworthiness Limitations of the EMBRAER 

170 MRBR MRB–1621, Appendix A, Part 2, 

Airworthiness Limitations, Revision 7, dated 

November 11, 2010; and Temporary Revision 

(TR) 7–1, dated February 11, 2011, to Part 2— 

Airworthiness Limitation Inspection (ALI)— 

Structures, of Appendix A, Airworthiness 

Limitations of the EMBRAER 170 MRBR 

MRB–1621, Revision 7, dated November 11, 

2010; for related information. 

Issued in Renton, Washington, on 

December 19, 2011. 

Kalene C. Yanamura, 

Acting Manager, Transport Airplane 

Directorate, Aircraft Certification Service. 

[FR Doc. 2011–33279 Filed 12–28–11; 8:45 a.m.] 

BILLING CODE 4910–13–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 199 

[DOD–2011–HA–0076] 

RIN 0720–AB53 

TRICARE; Extended Care Health 

Option 

AGENCY: Office of the Secretary, 

Department of Defense. 

ACTION: Proposed rule. 

SUMMARY: The Department of Defense 

(DoD) is publishing this proposed rule 

to establish TRICARE coverage under 

the Extended Care Health Option 

(ECHO) of Applied Behavior Analysis 

(ABA) for Autism Spectrum Disorders 

(ASD). 

DATES: Written comments received at 

the address indicated below by February 

27, 2012 will be accepted. 

ADDRESSES: Comments may be 

submitted, identified by docket number 

and/or Regulatory Information Number 

(RIN) and title by either of the following 

methods: 

• Federal Rulemaking Portal: 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Federal Docket Management 

System Office, Room 3C843, 1160 

Defense Pentagon, Washington, DC 

20301–1160. 

Instructions: All submissions received 

must include the agency name and 

docket number or RIN for 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:// 

www.regulations.gov as they are 

received without change, including any 

personal identifiers or contact 

information. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael Kottyan, TRICARE 

Management Activity, Medical Benefits 

and Reimbursement Branch, telephone 

(303) 676–3520. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In response to Section 717 of the John 

Warner National Defense Authorization 

Act for Fiscal Year 2007 (NDAA FY 

2007) [Pub. L. 109–364, October 17, 

2006], DoD submitted to Congress in 

July 2007 the ‘‘Department of Defense 

Report and Plan on Services to Military 

Dependent Children with Autism.’’ The 

plan included a proposal to use the 

authority under 10 U.S.C. 1092 to 

conduct a Demonstration within the 

ECHO with a view to improving the 

quality, efficiency, convenience and 

cost effectiveness of providing services 

to eligible Active Duty Family Members 

(ADFM) diagnosed with one of the 

Autism Spectrum Disorders (ASD). 

Central to the Demonstration was the 

authority under 10 U.S.C. 1092 to 

provide reimbursement for the one-onone Applied Behavior Analysis (ABA) 

services rendered by an individual who 

is not a TRICARE-authorized provider. 

Such non-certified individual, referred 

to in the Demonstration as a ‘‘Tutor,’’ is 

referred to in this proposed rule as an 

‘‘ABA Tutor.’’ This rule requires that 

ABA Tutors meet the minimum 

requirements set forth in the current 

demonstration or, at the discretion of 

the Director, TRICARE Management 

Activity (TMA), the DoD may either 

adopt standards established in the 

future by a qualified accreditation 

organization as defined in title 32, Code 

of Federal Regulations (CFR), 199.2 (32 

CFR 199.2) or, after review and analysis 

of the effectiveness of ABA Tutors with 

various levels of training, establish 

additional education, training or 

certification requirements for ABA 

Tutors. Although it is common practice 

to use ABA Tutors to render direct 

‘‘hands-on’’ contact with those 

diagnosed with an ASD, currently there 

is no national certification process or 

governance body that sets uniform 

education, experience, oversight and 

disciplinary standards for Tutors. 

The purpose of the Demonstation was 

to test whether a tiered delivery and 

reimbursement methodology for ABA 

services would (1) provide increased 

access to ABA services, (2) provide ABA 

services to those most likely to benefit 

from them, (3) ensure the quality of 

ABA services by utilizing a professional 

community of providers including 

providers certified by the Behavior 

Analyst Certification Board (BACB), and 

4) determine whether requirements are 

being met for State licensure or 

certification where such exists. 

Following publication of the ‘‘Notice’’ 

in the Federal Register on December 4, 

2007 (72 FR 68130) the Department of 

Defense Enhanced Access to Autism 

Services Demonstration [the 

‘‘Demonstration’’] was implemented on 

March 15, 2008 for a two-year period. 


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81898 Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Proposed Rules 

To provide the DoD with information 

necessary to make sound judgments 

regarding payment for ABA services, it 

was determined that the Demonstration 

should be extended to collect sufficient 

comprehensive data. By ‘‘Notice’’ 

published in the Federal Register on 

February 26, 2010 (75 FR 8927) the 

Demonstration was extended until 

March 14, 2012, under the same terms 

and conditions in the original notice. 

As required by 10 U.S.C. 1092, the 

DoD’s evaluation of the results of the 

Demonstration concluded that it was 

successful and upon final 

implementation of this rule intends to 

adopt a tiered ABA services delivery 

and reimbursement methodology. 

Additionally, DoD found that the 

Demonstration: 

• Contributed to parental perception 

of positive outcomes for eligible 

dependents, as evidenced by parental 

responses to the DoD survey; 

• Increased the number of and access 

to the services of authorized ABA 

providers, as evidenced by the sustained 

three to five percent (3–5%) monthly 

growth in the number of Demonstration 

enrollees; and 

• Contributed to improved military 

family readiness and retention as 

evidenced by parents of children 

enrolled in the Demonstration were 

more likely to say they will stay in the 

military as a result of the ABA services 

received by their child. 

DoD believes the evaluation provides 

evidence supporting the position that 

the ABA services provided in the 

Demonstration may generally have had 

a positive impact on the lives of some 

of the children with autism and their 

families. The evaluation shows that the 

parents of dependent children with 

autism who responded to the DoD 

survey have a perception of positive 

impacts. 

Therefore, to increase access to ABA 

services for ECHO-registered 

dependents who are diagnosed with an 

ASD, DoD is promulgating this rule to 

adopt the provider model of the 

Demonstration under the authority of 10 

U.S.C. 1079(e) and to establish the 

requirements for ABA providers and 

reimbursement for ABA services. 

This rule also proposes to establish 

that certain individual professional 

providers, specifically, psychiatrists, 

clinical psychologists, certified 

psychiatric nurse specialists, and 

clinical social workers, and other 

individuals who maintain current 

certification by the Behavior Analyst 

Certification Board (BACB) or 

comparable certifying entity as may be 

approved by the Director, TMA, and, 

who maintain a current Participation 

Agreement with the Director, TMA, are 

eligible to be applied behavior analysis 

authorized providers. 

This rule indicates that TRICARE 

coverage of ABA services is subject to 

the requirement in 32 CFR 199.5(d)(10). 

That is, services or items paid for, or 

eligible for payment, directly or 

indirectly by a public facility, as defined 

in 32 CFR 199.2, or by the Federal 

government, other than the Department 

of Defense, are excluded except when 

such services or items are eligible for 

payment under a state plan for medical 

assistance under Title XIX of the Social 

Security Act (Medicaid). 

This rule also proposes to establish 

that the Director, TRICARE Management 

Activity will determine the 

requirements for ABA Authorized 

Providers and ABA Tutors, and the 

allowed amount of reimbursement for 

ABA services. 

II. Summary of Regulatory Revisions 

32 CFR 199.5 addresses the DoD 

Extended Care Health Option (ECHO). 

Section 199.5 is proposed to be 

revised to establish that Applied 

Behavior Analysis provided to address 

the effects of Autism Spectrum 

Disorders is an ‘‘Other service,’’ as that 

term is used in 10 U.S.C. 1079(e). 

32 CFR 199.6 addresses TRICAREauthorized providers. 

Section 199.6 is proposed to be 

revised to establish the requirements for 

designation as an ‘‘Applied Behavior 

Analysis (ABA) Authorized Provider’’ of 

ABA services to ECHO-registered 

beneficiaries diagnosed with an Autism 

Spectrum Disorder. 

This rule also indicates that 

reimbursement may be made to an 

Applied Behavior Analysis Authorized 

Provider for ABA services rendered by 

ABA Tutors who work under the 

supervision and direction of an Applied 

Behavior Analysis (ABA) Supervisor. 

III. 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 a significant 

regulatory action. 

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 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, 

and thus this 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 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 rule is not subject to the 

requirements of the RFA. 

Public Law 96–511, ‘‘Paperwork 

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

This 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 rule does not have 

Federalism implications, as set forth in 

E.O. 13132. 

List of Subjects in 32 CFR Part 199 

Extended benefits for family members 

of Active Duty Service members, Health 

care, Autism spectrum disorders, 

Applied behavior analysis, Military 

personnel. 

Accordingly, 32 CFR part 199 is 

amended as follows: 


wreier-aviles on DSK3TPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Proposed Rules 81899 

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 199.5 is amended by 

adding paragraph (c)(8)(iv) to read as 

follows: 

§ 199.5 TRICARE Extended Care Health 

Option (ECHO). 

* * * * * 

(c) * * * 

(8) * * * 

(iv) Applied Behavior Analysis (ABA) 

for ECHO-registered beneficiaries with 

an Autism Spectrum Disorder. Applied 

Behavior Analysis (ABA) is an ‘‘Other 

service’’ as that term is used in 10 

U.S.C. 1079(e), that may be reimbursed 

to an applied behavior analysis 

authorized provider to address the 

effects of an Autism Spectrum Disorder. 

Reimbursement for ABA services will be 

as determined by the Director, TRICARE 

Management Activity. 

(A) Services provided by this 

paragraph are subject to the 

requirements of paragraph (d)(10) of this 

section. 

(B) Definition of specific terms used 

in this paragraph and Section 199.6 of 

this part. 

(1) Applied Behavior Analysis (ABA) 

Authorized Provider. An individual, a 

corporation, a foundation, or a public 

entity meeting the requirements of 

§ 199.6(e)(2)(iv) of this part who or that 

provides ABA services to ECHOregistered beneficiaries diagnosed with 

an Autism Spectrum Disorder. 

(2) Applied Behavior Analysis (ABA) 

Services. Such non-medical services 

determined by the Director, TMA to be 

appropriate to reduce the disabling 

effects of ASD for ECHO-registered 

beneficiaries, which may include, but 

are not limited to: conducting the initial 

and ongoing Functional Behavioral 

Assessments and Analysis; developing 

and revising as necessary the Behavior 

Plan that details the ABA intervention 

services and methods to be used; 

supervising or directing ABA Tutor(s); 

training the beneficiary’s primary 

caregivers to reinforce the interventions 

detailed in the Behavior Plan; and 

periodically reporting the beneficiary’s 

progress to the primary caregivers. 

(3) Applied Behavior Analysis (ABA) 

Supervisor. An individual Applied 

Behavior Analysis (ABA) Authorized 

Provider who provides ABA Services 

through the supervision and direction of 

ABA Tutors. Only individuals who are 

Applied Behavior Analysis (ABA) 

Authorized Providers may act as 

Supervisors. Corporations, foundations 

or public entities may not act as ABA 

Supervisors. 

(4) Applied Behavior Analysis (ABA) 

Tutor. An individual who renders oneon-one ABA interventions to a TRICARE 

beneficiary diagnosed with an Autism 

Spectrum Disorder. ABA Tutors are not 

considered an ‘‘Authorized Provider’’ 

(refer to § 199.2 of this part) or an 

‘‘Authorized Applied Behavior Analysis 

(ABA) Provider’’ and are not eligible for 

direct reimbursement by TRICARE. 

(5) Autism Spectrum Disorders. The 

Pervasive Development Disorders listed 

in the Diagnostic and Statistical Manual 

of Mental Disorders, [DSM–IV–TR 

(fourth edition, text revision), 2000], or 

a superseding current edition of the 

DSM, specifically, ‘‘Autistic Disorder’’, 

‘‘Rett’s Disorder’’, Childhood 

Disintegrative Disorder’’, ‘‘Asperger’s 

Disorder’’, and ‘‘Pervasive Development 

Disorder Not Otherwise Specified 

(including Atypical Autism)’’Applied 

Behavior Analysis (ABA) Authorized 

Provider. 

* * * * * 

3. Section 199.6 is amended by 

adding paragraphs (e)(2)(iv) through 

(e)(2)(iv)(D) in to read as follows: 

§ 199.6 TRICARE-Authorized Providers. 

* * * * * 

(e) * * * 

(2) * * * 

(iv) ECHO Applied Behavior Analysis 

(ABA) Authorized Provider. 

(A) The following are authorized 

providers of Applied Behavior Analysis 

(ABA) services authorized by 

§ 199.5(c)(8)(iv) of this part to address 

the effects of a diagnosed Autism 

Spectrum Disorder (ASD): 

(1) Psychiatrists, clinical 

psychologists, certified psychiatric 

nurse specialists, and clinical social 

workers who provide ABA services 

within the scope of their license as an 

individual professional provider. 

(2) Individuals who meet all ABArelated applicable licensing or other 

regulatory requirements of the state, 

county, municipality, or other political 

jurisdiction in which ABA services are 

rendered. 

(3) Where such licensing or regulatory 

requirements referenced in paragraph 

(e)(2)(iv)(A)(2) of this section do not 

exist, an individual who maintains 

current certification by the Behavior 

Analyst Certification Board (BACB). 

(4) A corporation, foundation, or 

public entity that renders ABA services 

and that meets all applicable licensing 

or other regulatory requirements of the 

state, county, municipality, or other 

political jurisdiction in which ABA 

services are rendered. 

(B) All providers under paragraph 

(e)(2)(iv)(A) of this section shall 

maintain a current Participation 

Agreement with the Director, TRICARE 

Management Activity. 

(C) Reimbursement for ABA Services 

may be made to the following: 

(1) ABA Authorized Providers under 

paragraphs (e)(2)(iv)(A)(1) through (3) of 

this section for ABA Services provided 

by themselves directly to ECHOregistered beneficiaries or for the ABA 

Services rendered by ABA Tutors under 

their supervision and direction. 

(2) ABA Authorized Providers under 

paragraph (e)(2)(iv)(A)(4) of this section 

for ABA Services provided to ECHOregistered beneficiaries when rendered 

in accordance with the requirements of 

this Section by individuals employed by 

or under contract with an ABA 

Authorized Provider described in 

paragraph (e)(2)(iv)(A)(4) of this section. 

Note: Tutors shall meet all requirements 

established by the Director, TRICARE 

Management Activity. Tutors are not ‘‘ECHO 

Applied Behavior Analysis (ABA) 

Authorized Providers’’ and are not eligible 

for direct TRICARE reimbursement for ABA 

services they render. 

(D) TRICARE reimbursement for ABA 

services shall be the TRICARE allowed 

amount as determined by the Director, 

TRICARE Management Activity. 

* * * * * 

Dated: December 23, 2011. 

Aaron Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2011–33384 Filed 12–28–11; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

[DOD–2011–HA–0085] 

RIN 0720–AB54 

32 CFR Part 199 

TRICARE; Removal of the Prohibition 

to Use Addictive Drugs in the 

Maintenance Treatment of Substance 

Dependence in TRICARE Beneficiaries 

AGENCY: Office of the Secretary, 

Department of Defense. 

ACTION: Proposed rule. 

SUMMARY: This rule proposes revisions 

to remove the exclusion of drug abuse 

maintenance programs and allow as part 

of a comprehensive treatment plan for 

an individual with substance 

dependence, the substitution of a 

therapeutic drug with addictive 

potential for a drug of addiction (e.g. the 


wreier-aviles on DSK3TPTVN1PROD with PROPOSALS