[Federal Register: April 13, 2005 (Volume 70, Number 70)]
[Rules and Regulations]
[Page 19263-19266]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13ap05-8]
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DEPARTMENT OF DEFENSE
Office of the Secretary of Defense
32 CFR Part 199
RIN 0720-AA79
TRICARE; Elimination of Non-Availability Statement and Referral
Authorization Requirements and Elimination of Specialized Treatment
Services Program
AGENCY: Office of the Secretary, DoD.
ACTION: Final rule.
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SUMMARY: This rule implements Section 735 of the National Defense
Authorization Act for Fiscal Year 2002 (NDAA-02) (Pub. L. 107-107). It
also implements Section 728 of the Floyd D. Spence National Defense
Authorization Act for Fiscal Year 2001 (NDAA-01) (Pub. L. 106-398).
Section 735 of NDAA-02 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. Section 735 of
NDAA-02, however, authorizes the Department of Defense to make
exceptions to the elimination of the requirement for a NAS through the
exercise of a waiver process under certain specified conditions. This
section also 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 specialty care provider that is part of the contractor
network be eliminated under any new TRICARE contract.
DATES: Effective Date: December 28, 2003.
ADDRESSES: 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 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 were to be available after
March 2004, the NAS requirements are eliminated for admissions
occurring on or after December 28, 2003, which is the date that is two
years after the date of the enactment of NDAA-02. For obstetrical care,
the NAS requirement is 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. The TRICARE
policy requires
[[Page 19264]]
MTFs, TRICARE Regions, and the contractors to publicize any NAS
requirements to the affected beneficiaries with respect to any use of
the waiver authority. In addition, outreach efforts will include
posting Web site announcements on the TRICARE Web site directing
affected beneficiaries to their local MTF Web sites with regard to any
use of the waiver authority.
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 were those designated facilities with
regional, multi-regional or national catchment areas which provided
complex medical and surgical services pursuant to 32 CFR 199.4(a)(10).
Since the Department decided to terminate the STS program no later than
June 1, 2003, all regional, multi-regional, and national NAS
requirements under TRICARE Standard and authorization requirements
under TRICARE Prime for STSs were eliminated before that date. The
rationale behind the termination of the STS program was 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 placed an
unreasonable burden on our beneficiaries who had to travel extended
distances to the STS facilities. This provided for enhanced continuity
of care for TRICARE Standard beneficiaries who generally receive most
medical and surgical services from civilian providers of their choice.
The interim final rule gave 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 implements Section 728 of 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 required 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 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 preauthorizations based on a determination of best business
practices.
III. Public Comments
We published the interim final rule on July 31, 2003, and provided
a 60-day comment period. We received comments from one national
association and two other commenters. These comments and the
Department's responses are summarized below.
Comment: Essentially, the commenter raised concerns regarding the
stated means of communicating to beneficiaries and providers the intent
to exercise the waiver authority to require a nonavailability statement
(NAS). The interim final rule stated that if the waiver authority is
exercised, the Department will notify the affected beneficiaries by
publishing a notice in the Federal Register.
Response: While these are used to announce the program changes and
requirements to the public, the Federal Register notices are not the
only means of communication upon which the Department relies. The
Department is sensitive to streamlining administrative processes and
recognizes the importance of communicating with the beneficiaries and
providers with regard to any use of the waiver authority and any new
NAS requirements. It is for this reason that we have included a
provision in the TRICARE Policy Manual that requires military treatment
facilities (MTFs), TRICARE Regions, and the contractors to publicize
any NAS requirements to the affected beneficiaries with respect to any
use of the waiver authority. We have included this clarification in
this final rule. Normally, the TRICARE policy changes and new
requirements are announced in the routine provider bulletins and
beneficiary newsletters by TRICARE contractors. In addition, outreach
efforts will include posting Web site announcements on the TRICARE Web
site directing affected beneficiaries to their local MTF Web sites;
sharing information with military and civilian media and beneficiary
association publications; and partnering with network and non-network
providers through the contractors and local American Medical
Association organizations.
Comment: One commenter argued that the DoD should totally eliminate
the NAS for TRICARE Standard beneficiaries and made several comments.
With regard to the legislative provision that requires elimination of
NAS or preauthorization from an MTF, this commenter stated that the law
has eliminated preauthorization for TRICARE Standard, yet DoD rules do
not comply. With regard to the title of this rule, the commenter argued
that to title this rule ``Elimination of the nonavailability
statement'' is deceiving to TRICARE Standard beneficiaries, since it
has not been eliminated except for maternity care, and DoD should
reveal the facts. The commenter stated that the beneficiary could have
no rights under this rule to use TRICARE Standard rather than the MTF,
and the rule grants authority to DoD to continue use of the NAS. With
reference to the regulatory language in the rule, the commenter
requested clarification regarding the use and impact of the term MTFs.
Regarding the structure of the rule, the commenter stated that the
entire document is confusing in applicability to TRICARE Prime vs.
TRICARE Standard and suggested that at the beginning of each paragraph
it should be specified whether it applies to Standard or Prime, or
both. The commenter also raised concerns that the notification by a
Federal Register notice with regard to using the waiver authority to
require an NAS is inadequate and stated that unless a reasonable
mechanism can be
[[Page 19265]]
established to notify each beneficiary and provider of the need for the
NAS, the rule cannot be fairly implemented. In all cases when the
beneficiary is denied a request for NAS, the commenter suggested that
the beneficiary should be notified in writing within 24 hours giving
the specific reasons related to: (a) The significant costs that would
be avoided, (b) a specific procedure that must be provided at the
affected MTF to ensure the proficiency levels of the practitioners, or
(c) the lack of NAS data that would significantly interfere with
TRICARE contract administration. The commenter emphasized the
importance of detailed explanation for NAS denial and specific cost
data and stated that the waiver authority is so liberal that the
practical effect is to grant carte blanche authority to deny NAS
request when the MTF is underutilized. Finally, the commenter presented
a detailed argument in favor of total elimination of NAS.
Response: The rule eliminated the NAS requirements as provided by
the law. It is incorrect to say that the DoD rules do not comply with
respect to the elimination of MTF preauthorization. The fact is that
under TRICARE, no care is preauthorized by MTFs and it was NAS that was
administered by MTFs. The TRICARE contractors were required to
preauthorize those admissions that required an NAS and that
preauthorization was eliminated with the elimination of NAS. The title
of this rule is appropriate and it is not deceiving as the rule does
eliminate maternity and inpatient NAS with the exception of NAS for
mental health admissions, and all the relevant information is presented
in the rule. The fact that the rule provides information with regard to
the waiver authority to require an NAS does not mean that it does not
eliminate the inpatient NAS. It is incorrect to say that the
beneficiary could have no rights under this rule to use TRICARE
Standard other than the MTF. Use of an MTF is not required for
emergency care or when a beneficiary has other health insurance and an
NAS can never be required in such situations. The use of the term MTFs
in the regulatory language is consistent with the provisions in Section
735 of the National Defense Authorization Act for Fiscal Year 2002. It
is a plural of the term military treatment facility (MTF) and will be
applicable when more than one MTF are granted a waiver to require an
NAS. Regarding the structure of the rule, section I of the rule is
clear that the NAS requirements are eliminated for non-enrolled
beneficiaries and it has defined a non-enrolled beneficiaries as a
beneficiary who is not enrolled in TRICARE Prime and has chosen to use
TRICARE Standard and TRICARE Extra options. It should be noted that the
NAS applies to non-enrolled beneficiaries and it does not apply under
TRICARE Prime. With regard to termination of the specialized treatment
service (STS) program, we have added language in Section I of the rule
that clarifies that the STS program was terminated under both the
TRICARE Standard and Prime. Section II. of the rule is clear that the
elimination of prior authorization before referral to specialty care
providers applies under TRICARE Prime. With regard to the notification
concerning the waiver authority to require an NAS, see the response
under the first comment, above. It should be noted that whenever an NAS
is denied, the beneficiary is promptly notified and given the appeal
rights. The specific information pertaining to the significant costs,
procedures, etc., pertains to the waiver criteria for requiring an NAS
and will be required by the Department for review and consideration
from the MTF requesting the waiver. With the exception of maternity
care, the law gives DoD the waiver authority to require an NAS under
certain specified conditions. However, it should be noted that granting
a waiver to an MTF to require an NAS is a complicated process and it
involves notification to the Congress. Given the complexity of the
process and its impact on beneficiaries and providers, the Department
does not foresee any waivers at this time. However, should there be any
exceptions, the Department anticipates any waivers granted would be
implemented on a local basis, as needed, and the NAS requirements will
be announced well in advance of their implementation. Essentially, this
rule has followed the directions provided by the statute.
Comment: The commenter supported the rule and suggested that
TRICARE remove the requirement for prior authorization of outpatient
medical procedures under TRICARE Standard that are approved by the
beneficiary's other health insurance (OHI).
Response: With the exception of adjunctive dental care, Program for
Persons with Disabilities benefit, outpatient psychotherapy beyond the
eighth visit, and psychoanalysis, an earlier policy change removed the
preauthorization requirements for outpatient medical procedures for
those TRICARE beneficiaries who have OHI.
Regulatory Procedure
The rule has been reviewed by the Office of Management and Budget.
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 an unfunded mandate under the Unfunded Mandate
Reform Act and it is not a significant regulatory action under E.O.
12866 that could potentially add more than $100 million in estimated
annual costs for DoD, or state, local, tribal governments, and the
private sector. 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).
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 199.7 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.
Appropriate policy guidance may be issued as necessary to prescribe the
conditions for issuance and use of a Nonavailability Statement.
* * * * *
[[Page 19266]]
0
3. Section 199.15 is amended by revising paragraphs (b)(4)(i)(B) and
(b)(4)(ii)(D) to read as follows:
Sec. 199.15 Quality and utilization review peer review organization
program.
* * * * *
(b) * * *
(4) * * *
(i) * * *
(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 requested 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 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, the Director, TRICARE Management Activity, or
designee, may continue to require or waive medical necessity prior (or
pre) authorization for other categories of other health care services
based on best business practice.
* * * * *
0
4. Section 199.17 is amended by revising paragraph (n)(2)(ii)(B) to
read as follows:
Sec. 199.17 TRICARE program.
* * * * *
(n) * * *
(2) * * *
(ii) * * *
(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 (authorization numbers will be
assigned so as to facilitate claims processing) but medical necessity
preauthorization will not be required for 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 TRICARE Regional
Directors, 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.
* * * * *
Dated: April 7, 2005.
Jeannette Owings-Ballard,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 05-7361 Filed 4-12-05; 8:45 am]
BILLING CODE 5001-06-P