[Federal Register Volume 75, Number 186 (Monday, September 27, 2010)]
[Proposed Rules]
[Pages 59173-59176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24093]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[DOD-2009-HA-0175]
RIN 0720-AB38


TRICARE: Elimination of Copayments for Authorized Preventive 
Services for Certain TRICARE Standard Beneficiaries

AGENCY: Office of the Secretary, Department of Defense.

ACTION: Proposed rule.

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SUMMARY: This proposed rule implements Section 711 of the Duncan Hunter 
National Defense Authorization Act (NDAA) for Fiscal Year 2009 (FY 
2009). Section 711 eliminates copayments for authorized preventive 
services for TRICARE Standard beneficiaries other than Medicare-
eligible beneficiaries. This proposed rule also realigns the covered 
preventive services listed in the Exclusions section of the TRICARE 
regulation to the Special Benefits section in the regulation.

DATES: Written comments received at the address indicated below by 
November 26, 2010 will be accepted.

ADDRESSES: You may submit comments, identified by docket number or 
Regulatory Information Number (RIN) and title, by any of the following 
methods:
    Federal Rulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Mail: Federal Docket Management System Office, 1160 Defense 
Pentagon, Washington, District of Columbia 20301-1160.
    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://www.regulations.gov as they are received without 
change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Ms. Joy Saly, Medical Benefits and 
Reimbursement Branch, TRICARE Management Activity, telephone (303) 676-
3742.

SUPPLEMENTARY INFORMATION: 

I. Background

    TRICARE currently covers those preventive services authorized by 
statute for all TRICARE Standard beneficiaries. The NDAA for FY 1996 
(Pub. L. 104-106) and NDAA FY 1997 (Pub. L. 104-201) provided authority 
for such care. Although beneficiaries enrolled in TRICARE Prime receive 
preventive services with no copayment requirement, prior to enactment 
of Section 711 of the Duncan Hunter NDAA FY 2009 (Pub. L. 110-417), 
TRICARE Standard beneficiaries who received preventive care were 
required to pay a cost-share. For further information on TRICARE, to 
include preventive services covered under TRICARE Prime and TRICARE 
Standard, and cost-shares, please visit http://www.tricare.mil.

II. Section 711 of the Duncan Hunter NDAA for FY 2009

    This proposed rule implements section 711 of the Duncan Hunter NDAA 
for FY 2009. The language in Section 711 reads as follows:

SEC. 711. WAIVER OF CO-PAYMENTS FOR PREVENTIVE SERVICES FOR CERTAIN 
TRICARE BENEFICIARIES.

    (a) Waiver of Certain Co-payments--Subject to subsection (b) and 
under regulations prescribed by the Secretary of Defense, the Secretary 
shall--
    (1) Waive all co-payments under sections 1079(b) and 1086(b) of 
title 10, United States Code, for preventive services for all 
beneficiaries who would otherwise pay copayments; and
    (2) Ensure that a beneficiary pays nothing for preventive services 
during a year even if the beneficiary has not paid the amount necessary 
to cover the beneficiary's deductible for the year.
    (b) Exclusion for Medicare-Eligible Beneficiaries--Subsection (a) 
shall not apply to a medicare-eligible beneficiary.
    (c) Refund of Co-payments--
    (1) Authority--Under regulations prescribed by the Secretary of 
Defense, the Secretary may pay a refund to a medicare-eligible 
beneficiary excluded by subsection (b), subject to the availability of 
appropriations specifically for such refunds, consisting of an amount 
up to the difference between--
    (A) The amount the beneficiary pays for copayments for preventive 
services during Fiscal Year 2009; and
    (B) The amount the beneficiary would have paid during such fiscal 
year if the copayments for preventive services had been waived pursuant 
to subsection (a) during that year.
    (2) Co-payments Covered--The refunds under paragraph (1) are 
available only for copayments paid by medicare-eligible beneficiaries 
during Fiscal Year 2009.
    (d) Definitions--In this section:
    (1) Preventive Services--The term ``preventive services'' includes, 
taking into consideration the age and gender of the beneficiary:
    (A) Colorectal screening.
    (B) Breast screening.
    (C) Cervical screening.
    (D) Prostate screening.
    (E) Annual physical exam.
    (F) Vaccinations.
    (G) Other services as determined by the Secretary of Defense.
    (2) Medicare-Eligible--The term ``medicare-eligible'' has the 
meaning provided by section 1111(b) of Title 10, United States Code.

III. General

    This language requires all co-payments to be eliminated for 
authorized preventive services for certain TRICARE Standard 
beneficiaries who would otherwise pay co-payments 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.

IV. Medicare-Eligible Beneficiaries

    Section 711 specifically states that elimination of the co-payment 
shall not

[[Page 59174]]

apply to any TRICARE beneficiary who is Medicare-eligible. For the 
purposes of this section, the term ``Medicare-eligible'' is defined in 
10 U.S.C., Section 1111(b) and means a person entitled to benefits 
under Medicare Part A.
    Section 711 also states that the Secretary of Defense may prescribe 
regulations to refund co-payments paid by Medicare-eligible 
beneficiaries during fiscal year 2009 when the following conditions are 
met: (1) When appropriations specifically for such refunds are 
appropriated; and (2) the amount of the refund is the difference 
between the amount of co-payments the beneficiary paid during fiscal 
year 2009 and the amount the beneficiary would have paid if the co-
payments for preventive services had been waived during that year. 
However, no funds have been appropriated specifically for this purpose; 
as a result, subsection (c), Refund of Co-Payments, of Section 711 will 
not be implemented.

V. Clarification of Preventive Service Benefit for Purposes of 
Elimination of Co-Payments

    Although beneficiaries enrolled in TRICARE Prime receive preventive 
services with no co-payment requirement, prior to enactment of Section 
711 of the Duncan Hunter NDAA FY09 (Pub. L.110-417), TRICARE Standard 
beneficiaries, including TRICARE Standard beneficiaries who elected to 
utilize the TRICARE Extra plan, were required to pay the appropriate 
cost-share for preventive care.
    It is important to note the proposed rule does not expand the 
preventive care benefit for TRICARE Standard beneficiaries, but rather 
eliminates the co-payment requirements for those specific preventive 
services otherwise authorized in title 10, Chapter 55, United States 
Code. Therefore, although the language in Section 711 defines 
preventive services for which a cost share is not applicable as 
including an ``annual physical exam,'' routine annual examinations are 
not authorized preventive services under TRICARE Standard. By law, 
however, physical examinations conducted as part of health promotion 
and disease prevention visits are covered when provided in connection 
with otherwise authorized immunizations and well-child visits or cancer 
screenings, resulting in elimination of cost-shares for these specific 
physical examinations for TRICARE Standard beneficiaries. See Title 10, 
U.S.C. Section 1079(a)(2).

VI. Realignment of Preventive Services Listed in the TRICARE Regulation

    Finally, this proposed rule clarifies and realigns 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. We are performing 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 creates 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 intend to remedy 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 intend to realign 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 
add a definition of ``evaluative'' services in 32 CFR 199.2.

VII. Summary of Regulatory Revisions

    Section 199.2 addresses definitions used in the program.
    Section 199.2(b) is revised to add a definition for evaluative 
services. The purpose of this is to make a distinction between an 
evaluative service and a preventive service.
    Section 199.4 provides Basic Program benefits.
    Section 199.4(e)(28) is added as special benefit information 
pertaining to covered preventive services under TRICARE Standard for 
which co-payments will be eliminated.
    Section 199.4(e)(29) is added as special benefit information 
pertaining to evaluative services under TRICARE Standard for which co-
payments and deductibles apply.
    These two sections are necessary to distinguish those services 
TRICARE has determined eligible for a elimination of co-payment from 
those services that are not truly preventive, and therefore continue to 
require a beneficiary copayment.
    Section 199.4(f)(12) is added to eliminate cost sharing for certain 
preventive services authorized by paragraph (e)(28) of this section.
    Section 199.4(g)(37) is revised to delete the list of preventive 
and other evaluative services benefits not excluded from coverage. 
Again, while such services are deleted from paragraph (g)(37), the 
intent is to move them to the special benefits section of the 
regulation to be clear that such services are covered by TRICARE.
    Section 199.17 contains information about the TRICARE program.
    Section 199.17(m)(1) and (2) are revised to eliminate cost sharing 
for certain preventive services provided by network and non-network 
providers, and by application to preventive services provided by non-
military providers under external resource sharing agreements under 
Sec.  199.17(m)(4).

VIII. Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review''

    Section 801 of Title 5, United States Code, and Executive Order 
12866 require certain regulatory assessments and procedures for any 
major rule or significant regulatory action, defined as one that would 
result in an annual effect of $100 million or more on the national 
economy or which would have other substantial impacts. It has been 
certified that this rule is not economically significant, and has been 
reviewed by the Office of Management and Budget as required under the 
provisions of E. O. 12866.

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 proposed 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 
proposed 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).

[[Page 59175]]

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 1 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 proposed rule is 
not subject to this requirement.

Executive Order 13132, ``Federalism''

    Executive Order 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 proposed rule 
does not have federalism implications, as set forth in Executive Order 
13132.

List of Subjects in 32 CFR Part 199

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

    Accordingly, 32 CFR part 199 is 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(b) is amended by adding the definition of 
``evaluative services'' in its appropriate alphabetical order to read 
as follows:


Sec.  199.2  Definitions.

* * * * *
    (b) * * *
    Evaluative services. Diagnostic and other medical procedures that 
may not be related directly to a specific illness, injury or definitive 
set of symptoms, but are performed as health promotion or disease 
detection services.
* * * * *
    3. Section 199.4 is amended by adding paragraphs (e)(28), (e)(29) 
and (f)(12), and revising (g)(37) to read as follows.


Sec.  199.4  Basic program benefits.

* * * * *
    (e) * * *
    (28) Preventive care. Coverage is provided for the following 
preventive services:
    (i) Cervical, breast, colon and prostate cancer screenings in 
accordance with standards issued by the Director, TRICARE Management 
Activity, based on guidelines from the U.S. Department of Health and 
Human Services. Such standards may establish a specific schedule, 
including 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 six (6) years of age as 
set forth in paragraph (c)(3)(xi) of this section.
    (iv) Health promotion and disease prevention visits may be provided 
in connection with immunizations and cancer screening examinations 
authorized by this section.
    (29) Evaluative services. Coverage is provided for the following 
evaluative health promotion and disease detection services:
    (i) Well-child care, except for well-child visits and immunizations 
which are covered under preventive services as described in paragraph 
(e)(28) of this section.
    (ii) Rabies shots.
    (iii) Tetanus shot following an accidental injury.
    (iv) Rh immune globulin.
    (v) Genetic tests as specified in paragraph (e)(3)(ii) of this 
section.
    (vi) Physical examinations provided when required in the case of 
dependents of active duty military personnel who are traveling outside 
the United States as a result of an active duty member's assignment and 
such 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 not considered an 
evaluative health promotion and disease detection service, but is 
covered as a preventive service under paragraph (e)(28) of this 
section.
    (vii) Health promotion and disease detection visits may be provided 
in connection with the evaluative services authorized by this section.
    (viii) Physical examinations for beneficiaries ages 5 through 11 
that are required in connection with school enrollment, and that are 
provided on or after October 30, 2000.
    (f) * * *
    (12) Cost-sharing for preventive services. (i) Effective for dates 
of service on or after October 14, 2008, beneficiaries, other than 
Medicare-eligible beneficiaries, shall not pay any cost-share for 
preventive services listed in paragraph (e)(28) of this section. Such 
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) This elimination of cost-sharing for preventive services does 
not apply to any beneficiary who is a Medicare-eligible beneficiary. 
For purposes of this section, the term ``Medicare-eligible'' 
beneficiary is defined in Title 10 United States Code Section 1111(b) 
and refers to a person eligible for Medicare Part A.
    (iii) Requests for reimbursement of copayments paid by 
beneficiaries for preventive services on or after October 14, 2008, may 
be made up to [DATE ONE YEAR FROM EFFECTIVE DATE IN FINAL RULE 
PUBLICATION] in accordance with procedures established by the Director, 
TRICARE Management Activity.
    (iv) Appropriate copayments and deductibles will apply for all 
other preventive services not listed in paragraph (e)(28) of this 
section and all evaluative services.
    (g) * * *
    (37) Preventive care. Except as specified in paragraphs (e)(28) and 
(29) of this section, preventive care or other evaluative services, 
such as routine, annual, or employment-requested physical examinations; 
routine screening procedures.
* * * * *
    4. Section 199.17 is amended by adding paragraphs (m)(1)(ii)(D) and 
(m)(2)(iii) to read as follows:


Sec.  199.17  TRICARE program.

* * * * *
    (m) * * *
    (1) * * *
    (ii) * * *
    (D) In accordance with Sec.  199.4(f)(12), TRICARE Standard 
beneficiaries, other than Medicare-eligible beneficiaries, shall have 
no cost sharing requirements for preventive care listed under Sec.  
199.4 (e)(28).
* * * * *
    (2) * * *
    (iii) In accordance with Sec.  199.4(f)(12), TRICARE Standard 
beneficiaries, other than Medicare-eligible beneficiaries, shall have 
no cost sharing requirements for preventive care listed under Sec.  
199.4 (e)(28).
* * * * *


[[Page 59176]]


    Dated: September 21, 2010.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2010-24093 Filed 9-24-10; 8:45 am]
BILLING CODE 5001-06-P