E9-26049. TRICARE: Non-Physician Referrals for Physical Therapy, Occupational Therapy, and Speech Therapy

AGENCY:

Office of the Secretary, Department of Defense.

ACTION:

Proposed rule.

SUMMARY:

The Department of Defense is publishing this proposed rule to authorize certified physician assistants and certified nurse practitioners (non-physicians) to engage in referrals of beneficiaries to the managed care support system for physical therapy, occupational therapy, and speech therapy.

DATES:

Comments received at the address indicated below by December 28, 2009 will be accepted.

ADDRESSES:

You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) and title, by either of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Federal Docket Management System Office, Room 3C843 Pentagon, 1160 Defense Pentagon, Washington, DC 20301-1160.

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:

Glenn Corn, Medical Benefits and Reimbursement Branch, TRICARE Management Activity, telephone [phone].

SUPPLEMENTARY INFORMATION:

This proposed rule will permit services of an otherwise TRICARE-authorized individual paramedical provider, Physical Therapists (PT), Occupational Therapists (OT), and Speech Therapists (ST) to be paid on a fee-for-service basis if based on a referral from a certified physician assistant or certified nurse practitioner. This change will also align TRICARE with Medicare's allowance of “non-physician providers” to provide, certify, or supervise therapy services. The language of 32 CFR 199.4(c)(3)(x) states that PT and OT may be cost shared when services are prescribed and monitored by a physician and 32 CFR 199.6(c)(3)(iii)(K) states that the services of PT, OT, and ST can be paid on a fee-for-service basis if the beneficiary is referred by a physician for the treatment of a medically diagnosed condition and a physician provides continuing oversight. In the Military Treatment Facility (MTF) setting, certified physician assistants work under the supervision of a physician. Until recently, the mechanical process of entering referrals into the electronic system allowed the MTF to reflect which physician was overseeing these referrals. However, with the implementation of the National Provider Identifier Standard as required by the Health Insurance Portability and Accountability Act, and the changes to the electronic system, the responsible physician is no longer allowed to be annotated on the referral. Additionally, a review of the processes used by Medicare found that Medicare no longer restricts the referral for PT, OT, and ST to only physicians, but now allows non-physician providers to make these referrals. After consideration, the Department of Defense has determined that this model should be proposed within the Military Health System so that a certified physician assistant or certified nurse practitioner may be allowed to issue such referrals.

Regulatory Procedures

Executive Order 12866, “Regulatory Planning and Review”

Section 801 of title 5, United States Code, 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 economically significant, and has been reviewed by the Office of Management and Budget as required under the provisions of E.O. 12866.

Public Law 104-4, Section 202, “Unfunded Mandates Reform Act”

Section 202 of Public Law 104-4, “Unfunded Mandates Reform Act,” requires that an analysis be performed to determine whether any federal mandate may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector of $100 million in any one year. It has been certified 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, and thus this proposed rule is not subject to this requirement.

Public Law 96-354, “Regulatory Flexibility Act” (RFA) (5 U.S.C. 601)

Public Law 96-354, “Regulatory Flexibility Act” (RFA) (5 U.S.C. 601), requires that each Federal agency prepare a regulatory flexibility analysis when the agency issues a regulation which would have a significant impact on a substantial number of small entities. This proposed rule is not an economically significant regulatory action, and it has been certified that it will not have a significant impact on a substantial number of small entities. Therefore, this proposed rule is not subject to the requirements of the RFA.

Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

This rule does not contain a “collection of information” requirement, and will not impose additional information collection requirements on the public under Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35).

Executive Order 13132, “Federalism”

E.O. 13132, “Federalism,” requires that an impact analysis be performed to determine whether the rule has 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. It has been certified that this proposed rule does not have federalism implications, as set forth in E.O. 13132.

List of Subjects in 32 CFR Part 199

• Claims
• Dental health
• Health care
• Health insurance
• Individuals with disabilities
• Military personnel

Accordingly, 32 CFR part 199 is proposed to be amended as follows:

PART 199—[AMENDED]

1. The authority citation for part 199 continues to read as follows:

Authority: 5 U.S.C. 301; 10 U.S.C. Chapter 55.

2. Section 199.4 is amended by revising paragraph (c)(3)(x)(A) to read as follows:

§ 199.4

Basic program benefits.

* * * * *

(c) * * *

(3) * * *

(x) * * *

(A) The services are prescribed and monitored by a physician, certified physician assistant or certified nurse practitioner.

* * * * *

3. Section 199.6 is amended by revising paragraph (c)(3)(iii)(K) to read as follows:

§ 199.6

TRICARE-authorized providers.

* * * * *

(c) * * *

(3) * * *

(iii) * * *

(K) Other individual paramedical providers.

(1) The services of the following individual professional providers of care to be considered for benefits on a fee-for-service basis may be provided only if the beneficiary is referred by a physician for the treatment of a medically diagnosed condition and a physician must also provide continuing and ongoing oversight and supervision of the program or episode of treatment provided by these individual paramedical providers.

(i) Licensed registered nurses.

(ii) Audiologists.

(2) The services of the following individual professional providers of care to be considered for benefits on a fee-for-service basis may be provided only if the beneficiary is referred by a physician, a certified physician assistant or certified nurse practitioner and a physician, a certified physician assistant or certified nurse practitioner must also provide continuing and ongoing oversight and supervision of the program or episode of treatment provided by these individual paramedical providers.

(i) Licensed registered physical therapist and occupational therapist.

(ii) Licensed registered speech therapists (speech pathologists).

* * * * *

Dated: October 23, 2009.

Patricia L. Toppings,

OSD Federal Register Liaison Officer, Department of Defense.