E8-11738. TRICARE; Certain Survivors of Deceased Active Duty Members; and Adoption Intermediaries

AGENCY:

Office of the Secretary, DoD.

ACTION:

Final rule.

SUMMARY:

This rule confirms as final a January 2007 interim final rule which implements two provisions of the National Defense Authorization Act for Fiscal Year 2006 (NDAA FY06). First, Section 715 of the NDAA FY06 extends the time frame certain dependents of active duty service members (ADSM) who die while on active duty for more than 30 days shall receive TRICARE medical benefits at active duty dependent payment rates. Second, Section 592 of the NDAA FY06 modifies the requirement for those intermediaries who provide adoption placements. Additionally, this final rule makes an administrative clarification to the following two eligibility provisions: those placed in the legal custody of a member or former member; and those placed in the home of a member or former member in anticipation of adoption. This clarification makes a distinction between the two groups and specifies that for placement into legal custody by court order, the court order must be for a period of 12 consecutive months.

DATES:

Effective Date: This rule is effective June 27, 2008.

FOR FURTHER INFORMATION CONTACT:

Ms. Ann N. Fazzini, [phone] for questions regarding Section 715 as it relates to the TRICARE Basic Program; and also questions regarding Section 592. Mr. Michael Kottyan, [phone] for questions regarding Section 715 as it relates to the Extended Health Care Option (ECHO). Mr. John Leininger, [phone], for questions regarding TRICARE Prime Remote. Questions regarding payment of specific claims should be addressed to the appropriate TRICARE contractor.

SUPPLEMENTARY INFORMATION:

Background

I. In the Federal Register of January 19, 2007 (72 FR 2444), the Department of Defense published for public comment an interim final rule regarding: (1) Payment rates for dependents of deceased active duty service members; (2) Modification of requirement for certain intermediaries under certain authorities relating to adoptions; and, (3) Administrative change—court order/adoption placement. An overview of these three provision follows.

II. Payment Rates for Dependents of Deceased Active Duty Service Members. Dependents of active-duty members who died while on active duty have been always eligible for TRICARE; however, their payment rates/cost-sharing provisions have changed over time. Section 715 of the NDAA FY06 modified the cost-sharing provision for certain dependents of deceased active duty members. The reader is referred to the interim final rule published on January 19, 2007 (72 FR 2444), for detailed information regarding this provision.

III. Modification of Requirement for Certain Intermediaries Under Certain Authorities Relating to Adoptions. Section 592 of the NDAA FY06 expands those intermediaries who perform adoption placement to include placement by any source authorized by State or local law to provide adoption placement. This expanded language mirrors the language found in Title 10, United States Code, Section 1052, reimbursement for adoption expenses, and provides consistency between personnel benefit policies in chapter 53 of Title 10, United States Code, and eligibility for TRICARE under chapter 55 of Title 10, United States Code. Effective date of the NDAA FY06 (and this provision) is January 6, 2006. The reader is referred to the interim final rule published on January 19, 2007 (72 FR 2444), for detailed information regarding this provision.

IV. Administrative Change—Court Order/Adoption Placement. This final rule clarifies the eligibility provisions for an unmarried person who is placed in the legal custody of the member or former member as a result of an order of a court of competent jurisdiction in the United States (or possession of the United States) by stating that the court order must be for a period of at least 12 consecutive months. We currently address a child who is placed in legal custody of a member or former member, but the language unintentionally omitted the 12 consecutive month period required by 10 U.S.C. 1072(2)(I)(i). This rule also clarifies that an unmarried person placed in legal custody of a member or former member is a category that is separate and distinct from those placed for adoption. We accomplish this by providing separate regulatory paragraphs for each group. The reader is referred to the interim final rule published on January 19, 2007 (72 FR 2444), for detailed information regarding this provision. Additionally, for historical information on these two groups, we refer the reader to the final rule that established these groups (64 FR 46133, August 24, 1999).

Review of Public Comments

Comment: One commenter applauded the enhanced benefit, but recommended further direction that this benefit only be extended upon the initiation and/or completion of an appropriate Line of Duty (LOD) determination. Generally, LOD determinations do not apply for battle injuries or battle-related deaths. This commenter requested that clarification be directed toward ADSM deaths that occur under in-garrison, non-combat operations.

Response: We appreciate the comment and note that the statutory language provides the benefit “when a member dies while on active duty for a period of more than 30 days.” There are no qualifiers or limitation on this provision; consequently, there is no statutory authority to apply LOD determinations.

Comment: A second commenter asked about the effective date of the provisions.

Response: For the payment rates for dependents of deceased active duty family members, the provision is effective with respect to those active duty service members whose death occurred on or after October 7, 2001. The modification of adoption intermediaries is effective January 6, 2006.

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.

This is not a major rule under 5 U.S.C. 801. It is a significant regulatory action but not economically significant and 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 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 a significant impact on a substantial number of small entities. In addition, we certify that this final rule will not significantly affect a substantial number of small entities.

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

This final rule will not impose additional information collection requirements on the public under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 55).

Executive Order 13132, “Federalism”

We have examined the impact of the rule under E.O. 13132 and it does not have 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

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

Accordingly, the interim final rule published January 19, 2007 (72 FR 2444), is confirmed as final without change.

Dated: May 19, 2008.

Patricia L. Toppings,

OSD Federal Register Liaison Officer, Department of Defense.