[Federal Register: July 31, 2003 (Volume 68, Number 147)]
[Rules and Regulations]
[Page 44878-44882]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31jy03-9]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 199
RIN 0720-AA79
TRICARE; Elimination of Nonavailability Statement and Referral
Authorization Requirements and Elimination of Specialized Treatment
Services Program
AGENCY: Office of the Secretary, DoD
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: This rule implements Section 735 of the National Defense
Authorization Act for Fiscal Year 2002 (NDAA-02) (Public Law 107-107).
It also implements Section 728 of the National Defense Authorization
Act for Fiscal Year 2001 (NDAA-01) (Public Law 106-398). Section 735 of
NDAA-02
[[Page 44879]]
eliminates the requirement for TRICARE Standard beneficiaries who live
within a 40-mile radius of a military medical treatment facility (MTF)
to obtain a nonavailability statement (NAS) or preauthorization from an
MTF before receiving inpatient care (other than mental health services)
or maternity care from a civilian provider in order that TRICARE will
cost-share for such services. Further, this section eliminates the NAS
requirement for specialized treatment services (STSs) for TRICARE
Standard beneficiaries who live outside the 200-mile radius of a
designated STS facility. This rule portrays the Department's decision
to eliminate the STS program entirely. Finally, Section 728 of NDAA-01
requires that prior authorization before referral to a speciality care
provider that is part of the contractor network be eliminated under any
new TRICARE contract. The Department is publishing this rule as an
interim final rule with comment period as an exception to our standard
practice of soliciting public comments prior to issuance in order to
implement the statutory requirements. Public comments, however, are
invited and will be considered for possible revisions to this rule.
DATES: This rule is effective: December 28, 2003.
Comment Date: Written comments will be accepted until September 29,
2003.
ADDRESSES: Forward comments to Medical Benefits and Reimbursement
Systems, TRICARE Management Activity, 16401 East Centretech Parkway,
Aurora, CO 80011-9066.
FOR FURTHER INFORMATION CONTACT: Tariq Shahid, TRICARE Management
Activity, telephone (303) 676-3801.
SUPPLEMENTARY INFORMATION:
I. Elimination of Nonavailability Statement Requirement and Specialized
Treatment Service Program
The National Defense Authorization Act for Fiscal Year 2002 (NDAA-
02) was signed into law on December 28, 2001. Section 735 of NDAA-02
amends Section 721 of the NDAA-01 with respect to the nonavailability
statement (NAS) elimination requirements and eliminates the requirement
for non-enrolled TRICARE beneficiaries who live within a 40-mile radius
of a military medical treatment facility (MTF) to obtain an NAS or
preauthorization from an MTF before receiving nonemergent inpatient or
obstetrical (inpatient or outpatient) services from a civilian provider
in order that TRICARE will cost-share for such services. A non-enrolled
TRICARE beneficiary is a beneficiary who has not enrolled in TRICARE
Prime, but who has chosen to use the TRICARE Standard and TRICARE Extra
options. Section 735 retains MTF NAS authority for inpatient mental
health services within the usual 40-mile catchment area. The section
establishes that the NAS elimination requirements are to take effect on
the earlier of the date the health care services are provided under new
TRICARE contracts or the date that is two years after the date of the
enactment of NDAA-02. As the health care services under new TRICARE
contracts will not be available until after March 2004, the NAS
requirements will be eliminated for admissions occurring on or after
December 28, 2003, which is the date that is two years after the date
of enactment of NDAA-02. For obstetrical care, the NAS requirement will
be eliminated for maternity episodes wherein the first prenatal visit
occurs on or after December 28, 2003. An NAS is required when the first
prenatal visit occurs before December 28, 2003, by 10 U.S.C. 1080(b).
The NAS for inpatient mental health care will continue to be required.
With the exception of maternity care, Section 735 of NDAA-02 gives
the Secretary of DoD the authority to waive the NAS elimination
requirements if: (a) Significant costs would be avoided by performing
specific procedures at the affected military treatment facility (MTF);
(b) a specific procedure must be provided at the affected MTF to ensure
the proficiency levels of the practitioners at the facility; or (c) the
lack of NAS data would significantly interfere with TRICARE contract
administration. When this waiver authority will be exercised, the
Department will notify the affected beneficiaries by publishing a
notice in the Federal Register and notify the Congress.
Section 735 of NDAA-02 furthermore eliminates the multi-regional
and national NAS requirement for specialized treatment services (STSs)
for TRICARE Standard beneficiaries who live outside the 200-mile radius
of a STS facility STS facilities are those designated facilities with
regional, multi-regional or national catchment areas which provide
complex medical and surgical services as currently provided in 32 CFR
199.4(a)(10). Since the Department has decided to terminate the STS
program no later than June 1, 2003, all regional, multi-regional, and
national NAS requirements for STSs will be eliminated before that date.
The rationale behind the termination of the STS program is that this
program was not based upon nationally developed consensus or evidenced-
based criteria for clinical quality (there were none at the inception
of this program) and had not consistently demonstrated cost-benefit to
the government. In addition, the NAS requirement for STSs has placed an
unreasonable burden on our beneficiaries who have had to travel
extended distances to the STS facilities. This would provide for
enhanced continuity of care for TRICARE Standard beneficiaries who
generally receive most medical and surgical services from civilian
providers of their choice. This rule gives notice of the Department's
decision to terminate the STS program entirely no later than June 1,
2003.
II. Elimination of Prior Authorization Before Referrals to Specialty
Care Providers
This rule will implement Section 728 of the National Defense
Authorization Act for Fiscal Year 2001 (NDAA-01) (Pub. L. 106-398)
which was enacted on October 30, 2000. Section 728 requires that prior
authorization (or more precisely, preauthorization as defined in 32 CFR
199.2(b)) before referral to a specialty care provider that is part of
the network be eliminated as part of any new TRICARE contracts entered
into by the Department of Defense after the date of the enactment of
the Act. This means that medical necessity preauthorization will not be
required when primary care or specialty care providers refer TRICARE
Prime patients for consultation appointment services, which are
provided within the contractors' network of providers. Only TRICARE
Prime patients require preauthorization for obtaining consultation
appointment services. TRICARE Prime beneficiaries are required to use
network providers if available. This rule removes the requirement to
obtain a medical necessity determination when the consultation services
are provided within the contractor's network. Section 728 of NDAA-01
does not eliminate the requirement for medical necessity
preauthorizations for specific procedures or other health care services
which specialty providers may recommend for beneficiaries as a result
of the original consultation appointment or the need for
preauthorization referral to non-network providers. For example, a
consultation might result in a recommendation for a high cost surgical
procedure on a nonemergent basis. The specialist's intent to perform
this procedure may still be subjected to medical necessity
preauthorization based upon utilization review criteria as
[[Page 44880]]
has been TRICARE policy for years in conformance with the peer review
organization program in section 199.15.
In summary, under new TRICARE contracts, requests for consultation
appointment services will not be subjected to medical necessity
preauthorization though other health care services may continue to
require preauthorization. TRICARE contractors may determine which other
categories of health care services (procedures, nonemergent admissions)
will require medical necessity preauthorization in accordance with
their best business practices.
Regulatory Procedure
Executive Order 12866 requires certain regulatory assessments for
any significant regulatory action, defined as one which would result in
an annual effect on the economy of $100 million or more, or have other
substantial impacts. The Regulatory Flexibility Act (RFA) requires that
each Federal agency prepare, and make available for public comment, a
regulatory flexibility analysis when the agency issues a regulation
which would have significant impact on a substantial number of small
entities.
This rule is not a significant regulatory action under E.O. 12866
that could potentially add more than $100 million in estimated annual
costs for DoD. This rule does not require a regulatory flexibility
analysis as the policy action was taken by Congress and the rule merely
puts it into effect. The policy of the Regulatory Flexibility Act that
agencies adequately evaluate all potential options for an action does
not apply when Congress has already dictated the action.
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).
This rule is being issued as an interim final rule, with comment
period, as an exception to our standard practice of soliciting public
comments prior to issuance. This is because there is no discretion
being exercised. The NDAA-02 (Pub. L. 107-107) mandated elimination of
the NAS for maternity care entirely, and for inpatient care unless it
met very restrictive criteria, and there is no discretion on the
effective data. The Assistant Secretary of Defense (Health Affairs) has
determined that following the standard practice in this case would be
unnecessary, impractical, and contrary to the public interest.
Public comments are invited. All comments will be carefully
considered. A discussion of the major issues received by public
comments will be included with the issuance of the final rule.
List of Subjects in 32 CFR Part 199
Claims, Dental health, Health care, Health insurance, Individuals
with disabilities, Military personnel.
0
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; and 10 U.S.C. Chapter 55.
0
2. Section 199.2(b) is amended by revising the definition for
``Preauthorization,'' by removing the definition for ``Specialized
Treatment Service Facility,'' and by adding the definitions for
``Consultation appointment'' and ``Medically or psychologically
necessary preauthorization'' and placing them in alphabetical order to
read as follows:
Sec. 199.2 Definitions.
* * * * *
(b) * * *
* * * * *
Consultation appointment. An appointment for evaluation of medical
symptoms resulting in a plan for management which may include elements
of further evaluation, treatment and follow-up evaluation. Such an
appointment does not include surgical intervention or other invasive
diagnostic or therapeutic procedures beyond the level of very simply
office procedures, or basic laboratory work but rather provides the
beneficiary with an authoritative opinion.
* * * * *
Medically or psychologically necessary preauthorization: A pre (or
prior) authorization for payment for medical/surgical or psychological
services based upon criteria that are generally accepted by qualified
professionals to be reasonable for diagnosis and treatment of an
illness, injury, pregnancy, and mental disorder.
* * * * *
Preauthorization. A decision issued in writing, or electronically
by the Director, TRICARE Management Activity, or a designee, that
TRICARE benefits are payable for certain services that a beneficiary
has not yet received. The term prior authorization is commonly
substituted for preauthorization and has the same meaning.
* * * * *
0
3. Section 199.4 is amended by revising paragraphs (a)(9) and
(a)(9)(i)(B), by removing paragraph (a)(9)(i)(C), by revising paragraph
(a)(9)(iv). by adding a new paragraph (a)(9)(vii), by removing and
reserving paragraph (a)(10), and by revising paragraphs (e)(16)(i) and
(e)(16)(ii) to read as follows:
Sec. 199.4 Basic program benefits.
(a) * * *
(9) Nonavailability Statements within a 40-mile catchment area. In
some geographic locations, it is necessary for CHAMPUS beneficiaries
not enrolled in TRICARE Prime to determine whether the required
inpatient mental health care can be provided through a Uniformed
Service facility. If the required care cannot be provided, the hospital
commander, or a designee, will issue a Nonavailability Statement (NAS)
(DD Form 1251). Except for emergencies, as NAS should be issued before
inpatient mental health care is obtained from a civilian source.
Failure to secure such a statement may waive the beneficiary's rights
to benefits under CHAMPUS/TRICARE.
(i) * * *
(B) For CHAMPUS beneficiaries who are not enrolled in TRICARE
Prime, an NAS is required for services in connection with nonemergency
hospital inpatient mental health care if such services are available at
a military treatment facility (MTF) located within a 40-mile radius of
the residence of the beneficiary, except that a NAS is not required for
services otherwise available at an MTF located within a 40-mile radius
of the beneficiary's residence when another insurance plan or program
provides the beneficiary's primary coverage for the services. This
requirement for an NAS does not apply to beneficiaries enrolled in
TRICARE Prime, even when those beneficiaries use the point-of-service
option under Sec. 199.17(n)(3).
* * * * *
(iv) Nonavailability Statement (DD Form 1251) must be filed with
applicable claim. When a claim is submitted for TRICARE benefits that
includes services for which an NAS was issued, a valid NAS
authorization must be on the DoD required system.
* * * * *
(vii) With the exception of maternity services, the Assistant
Secretary of Defense for Health Affairs (ASD(HA)) may require an NAS
prior to TRICARE cost-sharing for additional services from civilian
sources if such services are to be provided to a beneficiary who lives
within a 40-mile catchment area of an
[[Page 44881]]
MTF where such services are available and the ASD(HA):
(A) Demonstrates that significant costs would be avoided by
performing specific procedures at the affected MTF or MTFs; or
(B) Determines that a specific procedure must be provided at the
affected MTF or MTFs to ensure the proficiency levels of the
practitioners at the MTF or MTFs; or
(C) Determines that the lack of NAS data would significantly
interfere with TRICARE contract administration; and
(D) Provides notification of the ASD(HA)'s intent to require an NAS
under this authority to covered beneficiaries who receive care at the
MTF or MTFs that will be affected by the decision to require an NAS
under this authority; and
(E) Provides at least 60-day notification to the Committees on
Armed Services of the House of Representatives and the Senate of the
ASD(HA)'s intent to require an NAS under this authority, the reason for
the NAS requirement, and the date that an NAS will be required.
(10) [Reserved].
* * * * *
(e) * * *
(16) * * *
(i) Benefit. The CHAMPUS Basic Program may share the cost of
medically necessary services and supplies associated with maternity
care which are not otherwise excluded by this part.
(ii) Cost-share. Maternity care cost-share shall be determined as
follows:
* * * * *
0
4. Section 199.7 is amended by revising paragraph (a)(7)(i) to read as
follows:
Sec. 199.7 Claims Submission, Review, and Payment
(a) * * *
(7) * * *
(i) Rules applicable to issuance of Nonavailability Statement. The
ASD(HA) may issue a DoD Instruction to prescribe rules for the issuance
of Nonavailability Statement.
* * * * *
0
5. Section 199.15 is amended by revising paragraph (b)(4)(i) and by
adding a new paragraph (b)(4)(ii)(D) to read as follows:
Sec. 199.15 Quality and Utilization Review Peer Review Organization
Program
* * * * *
(b) * * *
(4) * * *
(i) In general. all health care services for which payment is
sought under TRICARE are subject to review for appropriateness of
utilization as determined by the Director, TRICARE Management Activity,
or a designee.
(A) The procedures for this review may be prospective (before the
care is provided), concurrent (while the care is in process), or
retrospective (after the care has been provided). Regardless of the
procedures of this utilization review, the same generally accepted
standards, norms and criteria for evaluating the medical necessity,
appropriateness and reasonableness of the care involved shall apply.
The Director, TRICARE Management Activity, or a designee, shall
establish procedures for conducting reviews, including types of health
care services for which preauthorization or concurrent review shall be
required. Preauthorization or concurrent review may be required for
categories of health care services. Except where required by law, the
categories of health care services for which preauthorization or
concurrent review is required may vary in different geographical
locations or for different types of providers.
(B) For healthcare services provided under TRICARE contracts
entered into by the Department of Defense after October 30, 2000,
medical necessity preauthorization will not be required for referrals
for specialty consultation appointment services required by primary
care providers or specialty providers when referring TRICARE Prime
beneficiaries for specialty consultation appointment services within
the TRICARE contractor's network. However, the lack of medical
necessity preauthorization requirements for consultative appointment
services does not mean that non-emergent admissions or invasive
diagnostic or therapeutic procedures which in and of themselves
constitute categories of health care services related to, but beyond
the level of the consultation appointment service, are also not subject
to medical necessity prior authorization. In fact many such health care
services may continue to require medical necessity prior authorization
as determined by the Director, TRICARE Management Activity, or a
designee. TRICARE Prime beneficiaries are also required to obtain
preauthorization before seeking health care services from a non-network
provider.
(ii) * * *
(D) For healthcare services provided under TRICARE contracts
entered into by the Department of Defense after October 30, 2000,
medical necessity preauthorization for specialty consultation
appointment services within the TRICARE contractor's network will not
be required. However TRICARE contractors shall determine, based upon
best-business practice, utility and cost-savings, the categories of
other health care services which are best served by medical necessity
prior (or pre) authorization and may request a waiver from the
Director, TRICARE Management Activity, or designee, from compliance
with previously established requirements for medical necessity prior
(or pre) authorization.
* * * * *
0
6. Section 199.17 is amended by revising paragraph (n)(2)(ii) to read
as follows:
Sec. 199.17 TRICARE Program
* * * * *
(n) * * *
(2) * * * (ii) For any necessary specialty care and nonemergent
inpatient care, the primary care manager or the Health Care Finder will
assist in making an appropriate referral.
(A) For healthcare services provided under managed care support
contracts entered into by the Department of Defense before October 30,
2000, all such nonemergency specialty care and inpatient care must be
preauthorized by the primary care manager or the Health Care Finder.
(B) For healthcare services provided under TRICARE contracts
entered into by the Department of Defense on or after October 30, 2000,
referral requests (consultation requests) for specialty care
consultation appointment services for TRICARE Prime beneficiaries must
be submitted by primary care managers. Such referrals will be
authorized by Health Care Finders (authorizations numbers will be
assigned so as to facilitate claims processing) but medical necessity
preauthorization will not be required by referral consultation
appointment services within the TRICARE contractor's network. Some
health care services subsequent to consultation appointments (invasive
procedures, nonemergent admissions and other health care services as
determined by the Director, TRICARE Management Activity, or a designee)
will require medical necessity preauthorization. Though referrals for
specialty care are generally the responsibility of the primary care
managers, subject to discretion exercised by the regional Lead Agents,
and established in regional policy or memoranda of understanding,
specialist providers may be permitted to refer patients for additional
specialty consultation appointment services within the TRICARE
contractor's network without prior authorization by primary care
managers or subject to medical necessity preauthorization.
* * * * *
[[Page 44882]]
Dated: July 24, 2003.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-19452 Filed 7-30-03; 8:45 am]
BILLING CODE 5001-08-M