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###### Department of Defense

###### Office of the Secretary

          - 32 CFR Part 199
          - [DOD-2007-HA-0127; RIN 0720-AB18]

# AGENCY:

Office of the Secretary, Department of Defense.

# ACTION:

Final rule.

# SUMMARY:

                        This final rule implements section 701 of the John Warner National Defense Authorization Act for FY 2007, Public Law 109-364. Section 701 amends Title 10 of the United States Code (U.S.C.), Chapter 55, Section 1079(a) by authorizing coverage for                               ( print page 34695)                            forensic examinations following a sexual assault or domestic violence for eligible beneficiaries. This authorizes forensic examinations provided in civilian health care facilities (e.g., civilian rape crisis facilities) following sexual assault or domestic violence, which is consistent with the services that are authorized in Military Medical Treatment Facilities for all beneficiaries who are victims of sexual assault or domestic violence.                    

# DATES:

*Effective Dates:*                         This rule is effective August 17, 2009.                    

*Applicability date:*                         This amendment applies to services provided on or after October 17, 2006.                    

# FOR FURTHER INFORMATION CONTACT:

Joy Saly, Office of Medical Benefits and Reimbursement Branch, TRICARE Management Activity, telephone (303) 676-3742.  Questions regarding payment of specific claims should be addressed to the appropriate TRICARE contractor.

# SUPPLEMENTARY INFORMATION:

## I. Summary of Final Rule Provisions

This final rule implements section 701 of the John Warner National Defense Authorization Act for Fiscal Year 2007, which establishes coverage of contracted medical care with respect to forensic examinations following a sexual assault or domestic violence. TRICARE pays for and will continue to pay for all emergency room services delivered to a victim.

Prior to section 701, forensic examinations were not covered for beneficiaries in civilian health care facilities through TRICARE medical plan contracts because TRICARE, under 10 U.S.C. 1079(a)(13), may cost share only medically or psychologically necessary services or supplies. Forensic examinations are conducted primarily for preservation of evidence for use in any future criminal investigation and/or prosecution. However, there is a dual purpose for the examination process. One purpose is to address the needs of the justice system, which include: Obtaining a history of the assault; documenting examination findings; properly collecting, handling, and preserving evidence; interpreting and analyzing findings (post examination), and subsequently, presenting findings; and providing factual and expert opinion related to the examination and evidence collection. The other purpose is to address the medical needs of the individual disclosing the sexual assault or domestic violence, which include: Evaluating and treating injuries; conducting prompt examinations; providing support, crisis intervention, and advocacy; providing prophylaxis against sexually transmitted diseases; assessing female patients for pregnancy risk and discussing treatment options, including reproductive health services; and providing follow-up care for medical and emotional needs.

Forensic examinations are paid for Active Duty members by using supplemental health care funds, which, under 10 U.S.C. 1074(c)(1), does not have the same requirement for medical or psychological necessity. All beneficiaries are covered if they are examined in a military treatment facility. The forensic examination became an issue when services were provided in a civilian health care facility. Although most States have laws that designate payment sources to cover the costs of forensic examinations for sexual assault victims (some States even prohibit billing victims), some beneficiaries who were victims of a sexual assault received a bill for the forensic examination. Many States have mechanisms in place that require civilian health care facilities to bill a State agency directly. Certain other States, to some degree, have mechanisms to minimize the possibility of invoicing the beneficiary. This final rule puts into place a mechanism that allows civilian health care facilities to invoice TRICARE for reimbursement of forensic examinations.

### Forensic Examination (Early Evidence Kits)

A forensic examination uses an early evidence kit to collect and preserve the evidence. Early evidence kits (also known as rape kits) typically include: Forms for documentation of what is observed; tubes for blood samples; a urine sample container (for detecting drugs that may have been used to facilitate a sexual assault); cotton swabs for biological evidence collection; sterile water; sterile saline; glass slides; unwaxed dental floss; a wooden stick for fingernail scrapings; envelopes or boxes for individual evidence samples; labels for each item and paper bags for clothing collection; and a large sheet of paper for patient to undress over. The victim's clothing is collected for any external evidence and new clothes are provided. Forensic examinations can take up to 4 hours.

We believe that a large portion of the costs for forensic examinations are probably already being paid by TRICARE, as most services associated with the examination are covered under any circumstance; and if a claim from a health care facility is submitted with the appropriate procedure code, then the claim would then be paid. What was not being cost-shared were the examinations to gather information for the justice system. In a civilian facility, the victim's private insurance should not be billed for the cost of the examination. Pursuant to the Federal Victims of Crime Act (VOCA), the primary payer is a Federal or federally funded program (such as Medicare, Medicaid, TRICARE or the Department of Veterans Affairs). A reimbursement request from a provider, under the VOCA, should only be submitted for a victim who is not covered by a Federal or federally funded program. This final rule amends the regulation to ensure that forensic examinations following sexual assault or domestic violence are specifically listed as a covered benefit under TRICARE. This rule applies to services provided on or after October 17, 2006, the effective date of the NDAA for FY 2007.

## II. Review of Public Comments

                    We provided a 60-day comment period on the proposed rule which was published in the                     **Federal Register**                     on July 7, 2008 (73 FR 38348-38350). No comments were received.                

## III. Regulatory Procedures

### Executive Order 12866, “Regulatory Planning and Review”

Executive Order 12866 requires a comprehensive regulatory impact analysis be performed on any economically 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. This final rule is not an economically significant regulatory action, and it has been certified that it will not have a significant impact on the national economy.

### 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 each Federal agency to prepare a regulatory flexibility analysis when the agency issues a regulation which would have a significant impact on a substantial number of small entities. This final rule is not an economically significant regulatory action, and it has been certified that it will not have a significant impact on a substantial number of small entities. Therefore, this final rule is not subject to the requirements of the RFA.

### Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

                    This rule does not contain a “collection of information” requirement, and will not impose                           ( print page 34696)                        additional information collection requirements on the public under Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35).                

### Public Law 104-4, Section 202, “Unfunded Mandates Reform Act”

Section 202 of Public Law 104-4, “Unfunded Mandates Reform Act,” requires 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 final 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. Therefore, this final rule is not subject to this requirement.

### Executive Order 13132, “Federalism”

Executive Order 13132, “Federalism,” requires an impact analysis be performed to determine whether the rule has federalism implications that would have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. It has been certified that this final rule does not have federalism implications, as set forth in 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 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 paragraph (e)(27) to read as follows: 

§ 199.4

* * * * *

(e) * * *

(27) TRICARE will cost share forensic examinations following a sexual assault or domestic violence. The forensic examination includes a history of the event and a complete physical and collection of forensic evidence, and medical and psychological follow-up care. The examination for sexual assault also includes, but is not limited to, a test kit to retrieve forensic evidence, testing for pregnancy, testing for sexually transmitted disease and HIV, and medical services and supplies for prevention of sexually transmitted diseases, HIV, pregnancy, and counseling services.

* * * * *

Dated: July 14, 2009.

Patricia L. Toppings,

OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. E9-17060 Filed 7-16-09; 8:45 am]

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