[Federal Register Volume 79, Number 249 (Tuesday, December 30, 2014)]
[Proposed Rules]
[Pages 78362-78365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-30322]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 199
[DOD-2014-HA-0133]
RIN 0720-AB62
TRICARE; Revision of Nonparticipating Providers Reimbursement
Rate; Removal of Cost Share for Dental Sealants; TRICARE Dental Program
AGENCY: Office of the Secretary, DoD.
ACTION: Proposed rule.
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SUMMARY: The Department of Defense (DoD) proposes several amendments to
the TRICARE Dental Program (TDP) regulation. Specifically, this
proposed rule revises the benefit payment provision for
nonparticipating providers to more closely mirror industry practices by
requiring TDP nonparticipating providers to be reimbursed (minus the
appropriate cost-share) at the lesser of billed charges: or the network
maximum allowable charge for similar services in that same locality
(region) or state. This rule also updates the regulatory provisions
regarding dental sealants to clearly categorize them as a preventive
service and, consequently, eliminate the current 20 percent cost-share
applicable to sealants to conform the language in the regulation to the
statute.
DATES: Written comments received at the address indicated below by
March 2, 2015 will be accepted.
ADDRESSES: You may submit comments, identified by docket number and or
Regulatory Information Number (RIN) number and title, by any of the
following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 4800 Mark
Center Drive, Suite 02G09, Alexandria, VA 22350-3100.
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: Col Gary C. Martin, Defense Health
Agency, telephone (703) 681-0039.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
1. Purpose of Regulatory Actions
a. Need for Regulatory Actions
(1) Revision of Nonparticipating Providers' Reimbursement Rate
Prior to 2006, TRICARE Dental Program (TDP) participating and
nonparticipating providers were reimbursed at the equivalent of not
less than the 50th percentile of prevailing charges made for similar
services in the same locality (region) or state, or the provider's
actual charge, whichever is lower, less any cost-share amount due for
authorized services. This provision was included in the regulation to
constitute a significant financial incentive for participation of
providers in the contractor's network and to ensure a network of
quality providers through use of a higher reimbursement rate. Over
time, the Department discovered that this provision placed an
unnecessary burden on contractors with already established, high
quality provider networks with reimbursement rates below the 50th
percentile that were of sufficient size to meet the access requirements
of the TDP. Consequently, the Department of Defense published a final
rule in the Federal Register on January 11, 2006 (71 FR 1695), revising
the participating provider's reimbursement rate for the TDP that has
resulted in significant cost savings to the TDP enrollees and the
Government. Since over 80 percent of all TDP care was provided by
network dentists, the need to also change the reimbursement rate for
nonparticipating dentists was overlooked and not included in the 2006
rule change. However, over the past eight years this has created an
incentive for some network providers to leave the TDP network and for
other providers not to become network providers. As the rule is
currently written, depending on the geographic location, some non-
network providers are actually reimbursed at a higher amount than they
would have been had they been a participating provider and receiving
the negotiated network rate. Specifically, the revision will require
TDP nonparticipating providers to be reimbursed (minus the appropriate
cost-share) at the lesser of (1) billed charges:
[[Page 78363]]
or (2) the network maximum allowable charge for similar services in
that same locality (region) or state. This revision will increase the
number of network providers and provide cost savings to enrollees and
the Government.
(2) Removal of Cost-Share for Dental Sealants
Sealants are currently separately defined in the TDP regulation at
Sec. 199.13(b)(24), and specifically identified as a covered non-
preventive service subject to a 20 percent cost-share. The cost share
for dental sealants was originally put in place when there was minimal
evidence as to the effectiveness of dental sealants preventing tooth
decay. The scientific evidence is now overwhelming that dental sealants
are effective in preventing tooth decay and the vast majority of
commercial dental insurance plans cover this procedure with no cost
shares. Further, the American Dental Association's Council on Dental
Care Programs Code on Dental Procedures and Nomenclature classifies
dental sealants as a preventive procedure. Additionally, the Department
currently recognizes sealants as a preventive service under the TRICARE
Retiree Dental Program per Sec. 199.22(f)(1)(ii)(C). The proposed
regulatory revisions regarding dental sealants will delete the separate
definition of dental sealants, specifically include sealants as a
category of preventive service under Sec. 199.13(e)(2)(i)(B), delete
any possible inconsistency in the definition of preventive service in
Sec. 199.13(b)(20) and (e)(2)(i), and update the cost-share table in
Sec. 199.13(e)(3)(i) to delete the specific line item reference to
sealants being subject to a 20 percent cost-share in order to conform
with the requirement in 10 U.S.C. 1076a(e)(1)(A) that TDP enrollees pay
no charge for preventive services.
b. Legal Authority for the Regulatory Action
This regulation is proposed under the authority of 10 U.S.C. 1076a
which authorizes the Secretary of Defense to establish a voluntary
enrollment dental plan for eligible dependents of members of the
uniformed services who are on active duty for a period of more than 30
days, members of the Selected Reserve of the Ready Reserve, members of
the Individual Ready Reserve, and eligible dependents of members of the
Ready Reserve of the reserve components who are not on active duty for
more than 30 days.
2. Summary of Major Provisions of the Regulatory Action
In this rule, the proposed regulatory language changes
nonparticipating provider (e.g. non-network or out-of-network)
reimbursement at Sec. 199.13(g)(2)(i) to be on an equivalent basis
with network reimbursement, in order to serve as an incentive for both
providers to participate in the network and for beneficiaries to
utilize network providers in order to avoid additional out-of-pocket
costs for balance billing. The proposed rule includes several technical
revisions for clarification and consistency sake in defining
beneficiary liability, nonparticipating provider and participating
provider in the context of the TDP. The proposed rule also amends
several provisions within Sec. 199.13 to eliminate the separate
definition of sealants, specifically include sealants as a covered
preventive service, and remove beneficiary cost sharing by covering
sealants at 100 percent of allowable charge as authorized by law.
3. Summary of the Costs and Benefits
This proposed rule is not anticipated to have an annual effect on
the economy of $100 million or more, making it not economically
significant and non-major under the Executive Order and the
Congressional Review Act. The proposed amendment to transition
nonparticipating provider reimbursement to be on an equivalent basis
with network reimbursement, will result in (1) a lower allowed-to-
billed ratio and a decrease in TDP claim payments, (2) premium
decreases for beneficiaries; (3) a corresponding increase in enrollment
by eligible beneficiaries as a result of these premium changes; (4)
resultant cost savings to the government through reduced premium
subsidies; and (5) increased out-of-pocket costs for beneficiaries who
opt to use a nonparticipating provider who may balance bill for the
difference in contractor payment at the current rates and the new,
lower network agreement rates. While the requirements for sealant
coverage will not change, the removal of beneficiary cost sharing for
sealants will result in (1) a marginal increase in sealant utilization,
as we anticipate most beneficiaries requiring sealants are currently
receiving these services since they remain a relatively inexpensive
procedure and are typically viewed as beneficial; (2) a minimal premium
increase for beneficiaries; and (3) an increase in government costs as
a result of both the direct effect of the waived cost sharing on
current sealant services and the full cost of the additional
utilization. We estimate that the net effects of the TDP provisions
that would be implemented by this rule would result in a net premium
decrease for TDP beneficiaries and corresponding cost savings to the
government that do not reach the $100 million threshold to be deemed
economically significant.
II. Background
The TRICARE Dental Program (TDP) allows the Secretary of Defense to
offer comprehensive premium based indemnity dental insurance coverage
to qualified individuals. The funds used by the TDP are appropriated
funds furnished by Congress through annual appropriation acts and funds
collected as premium shares from beneficiaries. TDP is delivered
through a competitively procured contract awarded by the Director,
Defense Health Agency, or designee. TDP enrollees are required to pay
all or a portion of the premium cost depending on their status. For
those eligible for premium sharing, including active duty dependents
and certain Selected Reserve and Individual Reserve members, the
portion of premium share to be paid by them is no more than forty (40)
percent of the total premium. For those entitled to premium sharing,
the Government pays the remaining sixty (60) percent of the premium.
Additional information regarding the TDP is available at
www.tricare.mil/tdp.
The amendments to Sec. 199.13 are being proposed with the
understanding that the changes are being considered for incorporation
into the next TDP contract. As such, the implementation date for any
changes adopted through this rulemaking process is expected to be
effective with the start health care delivery date (on or after
February 1, 2017) of the next awarded TDP contract.
III. Explanation for Proposed Provisions
A. Revision of Nonparticipating Providers Reimbursement Rate
Currently, Sec. 199.13(g)(2)(i) requires the TRICARE Dental
Program (TDP) contractor to reimburse nonparticipating providers at the
equivalent of not less than the 50th percentile of prevailing charges
made for similar services in the same locality (region) or state, or
the provider's actual charge, whichever is lower, less any cost-share
amount due for authorized services. The Department of Defense published
a final rule in the Federal Register on January 11, 2006 (71 FR 1695),
revising the participating provider's reimbursement rate for the TDP
that has resulted in significant cost savings to the TDP enrollees and
the
[[Page 78364]]
Government. The reimbursement rates that have been negotiated over the
life of the dental contract represent the general market rates for
dental insurance reimbursement. Since over 80 percent of all TDP care
was provided by network dentists, the need to also change the
reimbursement rate for nonparticipating dentists was overlooked at that
time and not included in the 2006 rule change. However, over the past
eight years this has created an incentive for some network providers to
leave the TDP network and for other providers not to become network
providers. While the contractor's negotiated rates for network
providers are proprietary in nature and vary quite a bit based on
geographic location, an examination of the allowed to billed ratio for
network versus non-network care demonstrates that the TDP contractor's
network delivers considerably lower rates for network care. The
revision will require TDP nonparticipating providers to be reimbursed
(minus the appropriate cost-share) at the lesser of (1) billed charges:
or (2) network maximum allowable charge for similar services in that
same locality (region) or state. The network maximum allowable charge
is the maximum negotiated fee between the dental contractor and any TDP
participating provider for similar services covered by the dental plan
in that same locality (region) or state. This reimbursement change
would only apply to areas where the network is compliant; there is no
proposed change to the exception in Sec. 199.13(g)(2)(i) for non-
compliant areas subject to the requirements in Sec. 199.13(e)(3)(ii).
We believe this revision is consistent with current industry practice
and will bring DoD's TDP reimbursement provisions into line with the
broader insurance market, but invite comments on any alternative
approaches to better aligning TDP nonparticipating provider
reimbursement rates with network negotiated rates and current industry
practice. Elimination of the 50th percentile of prevailing charges
requirement affords the Government and enrollees significant cost
savings through lower provider reimbursement costs by the contractor.
These cost savings are passed on in the form of lower premiums for all
enrolled beneficiaries. The Department also anticipates the proposed
change will increase the number of network providers.
Under this proposed rule, enrollees maintain freedom of choice to
see either a participating or nonparticipating provider. Cost shares
are established by statute and do not vary between network and non-
network care. Beneficiaries will, however, be incentivized to seek care
from a participating provider who has agreed to not balance bill the
beneficiary any amount in excess of the maximum payment allowed by the
dental plan contractor for covered services. For those beneficiaries
that elect to seek care from a nonparticipating provider, they may be
balance-billed amounts in excess of the dental plan contractor's
network maximum allowable charge. As with other commercial dental
plans, TDP enrollees and nonparticipating dentists can call the TDP
contractor's toll free customer service to inquire as to what the
network maximum allowable charge is for their service in a specific
locality (region) or state.
This proposed rule also makes several technical amendments to Sec.
199.13(b) and (f) for clarification and consistency sake in defining
and discussing beneficiary liability, nonparticipating provider and
participating provider in the context of the TDP. With the proposed
revision to nonparticipating providers' reimbursement rate, the
definition of beneficiary liability that discusses the prevailing fee
determination must be revised to reference the network maximum
allowable charge. Additionally, revisions are required to clarify that
participating providers are participating in the contractor's network
as a network provider and are reimbursed in accordance with the
contractor's network agreements. Nonparticipating providers are
considered non-network, or out-of-network, providers.
B. Removal of Cost-Share for Dental Sealants
The cost share for dental sealants was originally put in place when
there was minimal evidence as to the effectiveness of dental sealants
preventing tooth decay. The scientific evidence is now overwhelming
that dental sealants are effective in preventing tooth decay and the
vast majority of commercial dental insurance plans cover this procedure
with no cost shares. Further, the American Dental Association's Council
on Dental Care Programs Code on Dental Procedures and Nomenclature,
recognizes dental sealants as a preventive service. Consequently, the
Department believes dental sealants should be reclassified as a
preventive service under the TDP. In order to do so, this rule proposes
to eliminate the separate definition of sealants found at Sec.
199.13(b)(24) in favor of including it as a category of preventive
service under Sec. 199.13(e)(2)(i)(B). Finally, as a result of clearly
classifying dental sealants as a preventive service, the proposed rule
eliminates the current 20 percent cost-share to conform with the
requirement in 10 U.S.C. 1076a(e)(1)(A) that TDP enrollees pay no
charge for preventive services. As the cost share has prevented some
beneficiaries from receiving this needed treatment, we also anticipate
the oral health of TDP beneficiaries will improve with the elimination
of this cost-share.
IV. Regulatory Procedures
Executive Order 12866, ``Regulatory Planning and Review'' and E.O.
13563, ``Improving Regulation and Regulatory Review''
It has been determined that his proposed rule is not a significant
regulatory action. This rule does not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; completion; jobs; the environment; public health
or safety; or State, local, or tribunal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Orders.
Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)
It has been determined 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.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that this proposed rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities. Set forth in this proposed rule are minor revisions
to the existing regulation. The DoD does not anticipate a significant
impact on the Program.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been determined that this proposed rule does not impose
reporting
[[Page 78365]]
or recordkeeping requirements under the Paperwork Act of 1995.
Executive Order 13132, Federalism
It has been determined that this proposed rule does not have
federalism implications, as set forth in Executive Order 13132. This
rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among the
various levels of Government.
List of Subjects in 32 CFR Part 199
Claims, Dental health, Health care, Health insurance, Dental
sealants, Military personnel.
Accordingly, 32 CFR part 199 is proposed to be 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 199.13 is proposed to be amended by:
0
a. Revising paragraphs (b)(4), (14), (17) and (20).
0
b. Removing paragraph (b)(24).
0
c. Revising paragraph (e)(2)(i).
0
d. Adding new paragraph (e)(2)(i)(B)(5).
0
e. Revising the table following paragraph (e)(3)(i) to delete the
fourth line item entry entitled ``Sealants.''
0
f. Revising paragraphs (f)(5) and (g)(2)(i).
The revisions and additions read as follows:
Sec. 199.13 TRICARE Dental Program.
* * * * *
(b) * * *
(4) Beneficiary liability. The legal obligation of the beneficiary,
his or her estate, or responsible family member to pay for the costs of
dental care or treatment received. Specifically, for the purposes of
services and supplies covered by the TDP, beneficiary liability
including cost-sharing amounts or any amount above the network maximum
allowable charge where the provider selected by the beneficiary is not
a participating provider or a provider within an approved alternative
delivery system. In cases where a nonparticipating provider does not
accept assignment of benefits,
* * * * *
(14) Nonparticipating provider. A dentist or dental hygienist that
furnished dental services to a TDP beneficiary, but who has not agreed
to participate in the contractor's network and accept reimbursement in
accordance with the contractor's network agreement. A nonparticipating
provider looks to the beneficiary or active duty, Selected Reserve or
Individual Ready Reserve member for final responsibility for payment of
his or her charge, but may accept payment (assignment of benefits)
directly from the insurer or assist the beneficiary in filing the claim
for reimbursement by the dental plan contractor. Where the
nonparticipating provider does not accept payment directly from the
insurer, the insurer pays the beneficiary or active duty, Selected
Reserve or Individual Ready Reserve member, not the provider.
* * * * *
(17) Participating provider. A dentist or dental hygienist who has
agreed to participate in the contractor's network and accept
reimbursement in accordance with the contractor's network agreement as
the total charge (even though less than the actual billed amount),
including provision for payment to the provider by the beneficiary (or
active duty, Selected Reserve or Individual Ready Reserve member) or
any cost-share for covered services.
* * * * *
(20) Preventive services. Traditional prophylaxis including scaling
deposits from teeth, polishing teeth, and topical application of
fluoride to teeth, as well as other dental services authorized in
paragraph (e) of this section.
* * * * *
(e) * * *
(2) * * *
(i) Diagnostic and preventive services. Benefits may be extended
for those dental services described as oral examination, diagnostic,
and preventive services when performed directly by dentists and dental
hygienists as authorized under paragraph (f) of this section. These
include the following categories of service:
* * * * *
(B) * * *
(5) Sealants.
* * * * *
(f) * * *
(5) Participating provider. An authorized provider may elect to
participate as a network provider in the dental plan contractor's
network and any such election will apply to all TDP beneficiaries. The
authorized provider may not participate on a claim-by-claim basis. The
participating provider must agree to accept, within one (1) day of a
request for appointment, beneficiaries in need of emergency palliative
treatment. Payment to the participating provider is based on the
methodology specified in paragraph (g)(2)(ii) of this section. The fee
or charge determinations are binding upon the provider in accordance
with the dental plan contractor's procedures for participation in the
network. Payment is made directly to the participating provider, and
the participating provider may only charge the beneficiary the
applicable percent cost-share of the dental plan contractor's allowable
charge for those benefit categories as specified in paragraph (e) of
this section, in addition to the full charges for any services not
authorized as benefits.
* * * * *
(g) * * *
(2) * * *
(i) Nonparticipating providers (or the Beneficiaries or active
duty, Selected Reserve or Individual Ready Reserve members for
unassigned claims) shall be reimbursed at the lesser of (1) the
provider's actual charge: or (2) the network maximum allowable charge
for similar services for that same locality (region) or state,
whichever is lower, subject to the exception listed in paragraph
(e)(3)(ii) of this section, less any cost-share amount due for
authorized services. The network maximum allowable charge is the
maximum negotiated fee between the dental contractor and any TDP
participating provider for similar services covered by the dental plan
in that same locality (region) or state.
* * * * *
Dated: December 22, 2014.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2014-30322 Filed 12-29-14; 8:45 am]
BILLING CODE 5001-06-P