[Federal Register Volume 75, Number 152 (Monday, August 9, 2010)]
[Rules and Regulations]
[Pages 47710-47712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19312]
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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: Final rule.
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SUMMARY: The Department of Defense is publishing this final 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: Effective Date: This rule is effective August 9, 2010 and
applicable October 14, 2008. and all claims for ECHO benefits provided
on or after that date will be reprocessed retroactively to that date as
necessary.
FOR FURTHER INFORMATION CONTACT: Mr. 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 (NDAA) for
Fiscal Year (FY) 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) authorizes 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)(3) 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 (FR) 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 NDAA for FY 2009 [Pub. L. 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 rule changes the Government's share of providing all benefits
available through the Extended Care Health
[[Page 47711]]
Option from $2,500 per month to $36,000 per FY. 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 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 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 FY 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 FY 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.
II. Public Comments
We provided a 60-day public comment period following publication of
the proposed rule in the Federal Register (74 FR 44800) on August 30,
2009. No comments were received. However, following additional
Department review, Section 199.5(g)(2)(ii) was revised further to
clarify the sponsor's cost-share liability for benefits received under
this section.
III. Regulatory Procedures
Executive Order 12866, ``Regulatory Planning and Review''
Section 801 of Title 5, United States Code (U.S.C.), and Executive
Order (E.O.) 12866 require 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 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 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.
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; 10 U.S.C. Chapter 55.
0
2. Section 199.5 is amended by:
0
a. Removing paragraphs (b)(4), (g)(2)(ii) introductory text through
(g)(2)(ii)(C)(2), and (g)(2)(ii)(E);
[[Page 47712]]
0
b. Redesignating paragraph (g)(2)(ii)(D) as (g)(2)(ii); and
0
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 month in which equipment is
purchased under this section. However, in no month shall a sponsor be
required to pay more than one cost-share regardless of the number of
benefits the sponsor's dependents received under this section.
* * * * *
(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.
(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 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: July 26, 2010.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2010-19312 Filed 8-6-10; 8:45 am]
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