[Federal Register Volume 74, Number 136 (Friday, July 17, 2009)]
[Rules and Regulations]
[Pages 34694-34696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17060]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 199

[DOD-2007-HA-0127; RIN 0720-AB18]


TRICARE: Civilian Health and Medical Program of the Uniformed 
Services (CHAMPUS) Changes Included in the John Warner National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2007; Authorization of 
Forensic Examinations

AGENCY: Office of the Secretary, Department of Defense.

ACTION: Final rule.

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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

[[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

[[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]

0
1. The authority citation for part 199 continues to read as follows:

    Authority:  5 U.S.C. 301; 10 U.S.C. Chapter 55.


0
2. Section 199.4 is amended by adding paragraph (e)(27) to read as 
follows:


Sec.  199.4  Basic program benefit.

* * * * *
    (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]
BILLING CODE 5001-06-P