[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Proposed Rules]
[Pages 44800-44802]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-20685]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 199
[DoD-2009-HA-0095]
RIN 0720-AB33
TRICARE; Extended Care Health Option
AGENCY: Office of the Secretary, Department of Defense.
ACTION: Proposed rule.
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SUMMARY: The Department of Defense is publishing this proposed rule to
implement the requirements enacted by Congress in Section 732 of the
Duncan Hunter National Defense Authorization Act for Fiscal Year 2009
which changes the limit of the Government's share of providing certain
benefits under the Extended Care Health Option (ECHO) from $2,500 per
month to $36,000 per year, and for other non-legislated changes to the
ECHO.
DATES: Comments received at the address indicated below by October 30,
2009 will be accepted.
ADDRESSES: You may submit comments, identified by docket number and or
Regulatory Information Number (RIN) number and title, by either of the
following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, Room 3C843
Pentagon, 1160 Defense Pentagon, Washington, DC 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: Michael Kottyan, TRICARE Management
Activity, Medical Benefits and Reimbursement Branch, telephone (303)
676-3520.
SUPPLEMENTARY INFORMATION:
I. Background
Section 1079 of title 10, United States Code (U.S.C.), as amended
by Section 701(b) of the National Defense Authorization Act for Fiscal
Year 2002 [Pub. L. 107-107], required the Department of Defense to
establish a program of extended benefits for eligible dependents. That
program, known as the Extended Care Heath Option (ECHO), replaced the
Program for Persons with Disabilities (PFPWD) and was implemented on
September 1, 2005. The primary purpose of the ECHO is to provide
eligible beneficiaries with benefits that are not available through the
TRICARE Basic Program. The term ``eligible beneficiary'' means an
individual who is a dependent of an Active Duty Service Member (ADSM)
or is a Transitional Survivor of a deceased ADSM and who has a
qualifying condition. Qualifying conditions include moderate or severe
mental retardation, serious physical disability, or an extraordinary
physical or psychological condition. The benefits available through the
ECHO are intended to assist in the reduction of the disabling effects
of an ECHO qualifying condition.
Section 1079(e)(3) and (4) authorized benefits, including training,
rehabilitation, special education, assistive technology devices,
institutional care in private, nonprofit, public, and State
institutions and facilities and, if appropriate, transportation to and
from such institutions and facilities in which the beneficiary is
receiving institutional care.
Section 1079(f)(2) limited the Government's liability for benefits
authorized by Section 1079(e) and (4) to $2,500 per month and required
that the beneficiary's sponsor be liable for any amount of the monthly
total cost for those benefits that exceeded the Government's limit.
Section 1079(e) also authorized the extended benefits program to
provide additional benefits including diagnostic services, inpatient
and outpatient care, comprehensive home health care, respite care, and
other services and supplies as determined appropriate by the Secretary.
However, Section 1079(f) did not limit the Government's liability for
those additional benefits. By Final Rule published in the Federal
Register on August 20, 2004, (69 FR 51559) the Department established
that those additional benefits accrued to the $2,500 per month limit.
Section 732 of the Duncan Hunter National Defense Authorization Act
for Fiscal Year 2009 [Public Law 110-417] (NDAA 2009) changed the limit
of the Government's liability for benefits authorized under Section
1079(e)(3) and (4) from $2,500 per month to $36,000 per year, prorated
as determined by the Secretary. This rule does not prorate the annual
limit of Government liability. Section 732 does not affect other
benefits authorized under Section 1079(e).
This proposed rule changes the Government's share of providing all
benefits available through the Extended Care Health Option from $2,500
per month to $36,000 per fiscal year. This rule does not change the
Government's liability for benefits provided by the ECHO Home Health
Care (EHHC) benefit or the EHHC Respite Care benefit.
Additionally, Section 732 changed the sponsor's liability for costs
exceeding the limit of the Government's liability from a per-month
basis to a per-year basis; this rule includes that change.
The following additional changes contained in this rule are further
discussed below: deletes references to the PFPWD, eliminates allocating
the allowable cost of durable equipment authorized for purchase through
the ECHO, clarifies the monthly reimbursement for benefits received
through the ECHO Home Health Care (EHHC), and allows a waiver of the
requirement to enroll in the sponsor's branch of Service Exceptional
Family Member Program (EFMP) in order to register in the ECHO.
Active Duty Family Members who have a qualifying condition are
eligible to receive benefits through the ECHO. Qualifying conditions
include moderate or severe mental retardation, a serious physical
disability, or an extraordinary physical or psychological condition
such that the beneficiary is homebound. Serious physical disabilities
include those conditions that preclude an individual from the unaided
performance of at least one major life activity such as breathing,
cognition, hearing, seeing, and age appropriate ability essential to
bathing, dressing, eating, grooming, speaking, stair use, toilet use,
transferring, and walking.
The ECHO, as the replacement for the PFPWD, has been fully
implemented for several years; it is therefore appropriate to delete
references in the regulations to the transition of the PFPWD to the
ECHO.
Durable equipment, which is defined as a device or apparatus which
does not qualify as ``Durable Medical Equipment'' under the TRICARE
Basic Program but which is essential to the efficient arrest or
reduction of the functional loss resulting from, or the
[[Page 44801]]
disabling effects of an ECHO-qualifying condition, is eligible for
TRICARE coverage through the ECHO. Paragraph (g)(2) within Sec. 199.5
provides for prorating the allowable amount for durable equipment over
a calculated period of time. The method of proration resulted in the
monthly benefit limit of $2,500 being divided, at the ECHO-registered
beneficiary's sponsor's discretion, at least equally between the
allowable cost of purchasing ECHO-authorized durable equipment and the
cost of other authorized ECHO benefits. As a result of Section 732 and
the changes made in this rule, the allowable expense for durable
equipment accrues to the maximum fiscal year Government limit of
$36,000. Therefore, proration of allowable durable equipment expense is
no longer an appropriate option. As a result, the ECHO beneficiary's
sponsor will have only one cost share liability for each authorized
item of durable equipment purchased through the ECHO.
The ECHO Home Health Care benefit is limited on a fiscal year basis
to the amount TRICARE would reimburse a Skilled Nursing Facility (SNF)
if the beneficiary were a patient in the SNF. Paragraph (g)(4)(iii) of
Sec. 199.5 limits the maximum monthly Government reimbursement for the
EHHC, including EHHC respite care, to no more than one-twelfth of the
annual maximum Government cost share. Because the actual number of days
in the month varies, the one-twelfth limit can be over or understated
for a given month. This rule revises that requirement by taking into
account the actual number of days in a month EHHC benefits are
received.
As required by Section 1079(d)(1), eligible beneficiaries must
register in the ECHO in order to receive ECHO benefits. Evidence of
enrollment in the sponsor's branch of Service's EFMP is required in
order to register in the ECHO. The Department recognizes there are
circumstances when that requirement is not appropriate. This rule
specifies when the EFMP enrollment requirement can be waived.
Except as specified herein, all other requirements of the ECHO
remain as currently published.
Regulatory Procedures
Executive Order 12866, ``Regulatory Planning and Review''
Section 801 of Title 5, U.S.C., and Executive Order (E.O.) 12866
requires 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 an economically significant rule, however, it is a
regulatory action which 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
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 proposed 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 proposed rule has been examined for its impact under E.O.
13132 and it 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
Extended benefits for disabled family members of Active Duty
Service members, health care, 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 199.5 is amended by:
a. Removing paragraphs (b)(4), (g)(2)(ii)(A) through
(g)(2)(ii)(C)(2), and (g)(2)(ii)(E);
b. Redesignating paragraph (g)(2)(ii)(D) as (g)(2)(ii); and
c. Revising paragraphs (c)(6), (c)(7)(iii), (f)(3)(i), (g)(2)(i),
newly redesignated paragraph (g)(2)(ii), (g)(4)(iii), (h)(2),
(h)(3)(v)(A), and (j) to read as follows:
Sec. 199.5 TRICARE Extended Care Health Option (ECHO).
* * * * *
(c) * * *
(6) Transportation of an ECHO beneficiary receiving benefits under
paragraph (c)(5), and a medical attendant when necessary to assure the
beneficiary's safety, to or from a facility or institution to receive
authorized ECHO services or items.
* * * * *
(7) * * *
(iii) The Government's cost-share incurred for these services
accrues to the fiscal year benefit limit of $36,000.
* * * * *
(f) * * *
(3) * * *
(i) ECHO. The total Government share of the cost of all ECHO
benefits, except ECHO Home Health Care (EHHC) and EHHC respite care,
provided in a given fiscal year to a beneficiary, may not exceed
$36,000 after application of the allowable payment methodology.
* * * * *
(g) * * *
(2) Equipment. (i) The TRICARE allowable amount for durable
equipment shall be calculated in the same manner as durable medical
equipment allowable through Section 199.4, and accrues to the fiscal
year benefit limit specified in paragraph (f)(3) of this section.
(ii) Cost-share. A cost-share, as provided by paragraph (f)(2) of
this section, is required for each item of durable equipment that is
authorized and purchased by the Director, TRICARE Management Activity
or designee.
* * * * *
(4) * * *
(iii) The maximum monthly Government reimbursement for EHHC,
including EHHC respite care, will be based on the actual number of
hours of EHHC services rendered in the month, but in no case will it
exceed one-twelfth of the annual maximum Government cost-share as
determined in this section and adjusted according to the actual number
of days in the month the services were provided.
[[Page 44802]]
(h) * * *
(2) Registration. Active Duty sponsors must register potential
ECHO-eligible beneficiaries through the Director, TRICARE Management
Activity, or designee prior to receiving ECHO benefits. The Director,
TRICARE Management Activity, or designee will determine ECHO
eligibility and update the Defense Enrollment Eligibility Reporting
System (DEERS) accordingly. Unless waived by the Director, TRICARE
Management Activity or designee, sponsors must provide evidence of
enrollment in the Exceptional Family Member Program provided by their
branch of Service at the time they register their family member(s) for
the ECHO.
(3) * * *
(v) Public facility use. (A) An ECHO beneficiary residing within a
state must demonstrate that a public facility is not available and
adequate to meet the needs of their qualifying condition. Such
requirements shall apply to beneficiaries who request authorization for
training, rehabilitation, special education, assistive technology, and
institutional care in private nonprofit, public, and state institutions
and facilities, and if appropriate for beneficiaries receiving
institutional care, transportation to and from such institutions and
facilities. The maximum Government cost-share for services that require
demonstration of public facility non-availability or inadequacy is
limited to $36,000 per fiscal year per beneficiary. State-administered
plans for medical assistance under Title XIX of the Social Security Act
(Medicaid) are not considered available and adequate facilities for the
purpose of this section.
* * * * *
(j) Effective date. All changes to this section are effective as of
October 14, 2008, and claims for ECHO benefits provided on or after
that date will be reprocessed retroactively to that date as necessary.
* * * * *
Dated: August 21, 2009.
Patricia Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E9-20685 Filed 8-28-09; 8:45 am]
BILLING CODE 5001-06-P