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Final rule.
CFR Part: “32 CFR Part 199″
RIN Number: “RIN 0720-AB38″
Citation: “76 FR 81368″
Document Number: “DOD-2009-HA-0175″
Page Number: “81368″
“Rules and Regulations”
SUMMARY:The Department of Defenseis publishing this final rule to implement section 711 of the National Defense Authorization Act (NDAA) for Fiscal Year 2009 (FY 2009), Public Law 110-417. Section 711 eliminates copayments for authorized preventive services for TRICARE Standard beneficiaries other thanMedicare-eligible beneficiaries. This rule also realigns the covered preventive services listed in the Exclusions section of the regulation to the Special Benefits section in the regulation.
EFFECTIVE DATE: Effective Date: This final rule is effectiveJanuary 27, 2012. Applicability Date: 32 CFR 199.4(f)(12) applies for dates of service on or afterOctober 14, 2008, for preventive services listed in paragraph (e) (28) of this section.
FOR FURTHER INFORMATION CONTACT:Ann Fazzini, Medical Benefits and Reimbursement Branch,TRICARE Management Activity, telephone (303) 676-3803. Questions regarding payment of specific claims should be addressed to the appropriateTRICAREcontractor.
SUPPLEMENTARY INFORMATION:
I. Background
Sections 1079(b) and 1086(b) of Title 10, United States Code (U.S.C.), as amended by Section 711 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2009 (Pub. L. 110-417), required theDepartment of Defenseto eliminate copayments for those authorized preventive services named in the law for TRICARE Standard beneficiaries other thanMedicare-eligible beneficiaries.
This language requires all copayments to be eliminated for authorized preventive services for certain TRICARE Standard beneficiaries who would otherwise pay copayments and that certain TRICARE Standard beneficiaries pay nothing for the preventive services during a year even if the beneficiary has not paid the amount necessary to cover the beneficiary’s deductible for the year. The language does not expand coverage of preventive services not otherwise authorized by law under theTRICAREpreventive care benefit.
The proposed rule published in the Federal Registeron September 27, 2010, (75 FR 59173) clarified and realigned the preventive services currently listed in the Exclusions section of the TRICAREregulation to the Special Benefits section in the regulation. This realignment does not remove from coverage any preventive services currently covered under the program nor does it create a new entitlement to preventive or other services not otherwise authorized in title 10, Chapter 55, United States Code. We performed this realignment because Title 32 Code of Federal Regulations (CFR) SEC199.4(g), “Exclusions and limitations,” states in subparagraph (37) that preventive care is excluded, and then lists those services that are not excluded. We believe including covered preventive services in the Exclusions section created confusion for those seeking information about preventive services under the TRICAREprogram. A person seeking information about what preventive services are covered would most likely not look for that information in a section labeled “Exclusions.” We remedied this confusion by removing the list of covered preventive services from this section and placing the list in the “Special Benefit Information” section of 32 CFR 199.4(e). We also realigned those services currently in the “Exclusions” section that are not truly preventive but are more evaluative in nature in the “Special Benefit Information” section of 32 CFR 199.4(e) and added a definition of “evaluative” services in 32 CFR 199.2. However, based upon public comments received, we have removed the evaluative services definition and label from the Final Rule language, instead opting to simply list separately those covered benefits that while preventive in nature are authorized independently from the statutory lists of specifically authorized preventive services contained in Chapter 55 of title 10, United States Code. See Section III.Public Comments below.
II. Section 711 of the Duncan Hunter NDAA for FY 2009
Section 711 of the NDAA 2009 waives certain copayments for authorized preventive services for TRICARE Standard beneficiaries by amending subparagraphs 1079(b) and 1086(b) of Title 10, United States Code.
It is important to note that the language in Section 711 includes in the list of preventive services for which a cost share is not applicable an “annual physical exam.” By law, only well-child visits for beneficiaries under 6 years of age are covered, as are physical examinations for beneficiaries 6 years of age or older if conducted as part of health promotion and disease prevention visits when provided in connection with otherwise authorized immunizations and or cancer screenings, resulting in elimination of copayments for these specific physical examinations for TRICARE Standard beneficiaries.See Title10, U.S.C. 1079(a)(2). Routine annual examinations, other than as described above, are not covered by theTRICAREprogram.
III. Public Comments
The proposed rule was published in theFederal Register(75 FR 59173) onSeptember 27, 2010for a 60-day public comment period. We received seven comments from six respondents on the proposed rule.
Five respondents expressed support of this rule change because it will provide better overall coverage for beneficiaries, will increase awareness of disease states and prevention, is a step toward healthier lifestyles and better health choices, and in the long run will save the government money. We agree, and are pleased to promulgate this rule.
One respondent stated agreement that a military beneficiary seeking information about what preventive services are covered would most likely not look for that information in a section labeled “Exclusions.” We agree and are pleased we are able to remedy this confusion.
Two respondents requested minimal changes to make the regulation better understood and to eliminate confusing verbiage. We appreciate the comments and believe that the new evaluative services category may have been misleading. Adding the new evaluative services language in 32 CFR 199.4, the “Special Benefit Information” section, may have had the unintended result of implying that we were expanding benefit coverage of preventive services beyond what was otherwise authorized by law or otherwise creating a new type of benefit that did not previously exist. We have carefully reviewed the preventive services provision from a historical perspective. In general, the TRICAREprogram has been and continues to be a benefit program based upon medical necessity. At the time the current regulation at 32 CFR 199.4(g)(37) was written, certain services, when not medically necessary and not designed to treat a specific illness or injury, were commonly referred to as preventive in nature. The term “preventive care” was used rather broadly and not limited to those preventive services specifically authorized in statute. The regulation at 32 CFR 199.4(g)(37) was thus written to exclude from coverage care which fell under this broad type of definition and was not deemed to be medically necessary. A number of exceptions were then listed under the exemption to indicate situations when the services were no longer considered preventive in nature but rather covered as medically necessary (e.g., tetanus shots following an accidental injury) or otherwise authorized by statute (e.g., physical examinations for beneficiaries ages 5-11 that are required in connection with school enrollment). The TRICAREprogram has evolved over time as has the practice of medicine. Certain preventive health care services are now specifically authorized by statute. As a result, we believe it is necessary to distinguish the statutorily authorized preventive health care services from the broader category of services, which are based upon a medical necessity determination or are otherwise authorized by statute. Continuing to utilize the term “preventive care” in the historically broad sense as well as to refer to specific statutorily covered preventive services is certain to lead to confusion. As a result, this rule realigns statutorily authorized preventive care as well as care otherwise authorized by statute from the Exclusions section to the Special Benefits section. We have eliminated reference to the specific examples of medically necessary care that were highlighted under the exceptions to the general preventive care exclusion in 32 CFR 199.4(g)(37)(iii)-(vi) as realigning these specific routine types of medically necessary care to the special benefits section is confusing and unnecessary. Eliminating the individual reference to these medically necessary services in no way conveys a change in TRICAREbenefit coverage. We are modifying the remaining regulatory text in 32 CFR 199.4 (e) (28) to include preventive services and in paragraph (e)(29) including those other special services that are otherwise authorized by law. We believe these changes will clarify our intent regarding preventive and other special benefits, which will be further clarified in the TRICARE Policy Manual.
