07-4655. TRICARE; Changes Included in the John Warner National Defense Authorization Act for Fiscal Year 2007; Authorization of Anesthesia and Other Costs for Dental Care for Children and Certain Other Patients

AGENCY:

Office of the Secretary, Department of Defense.

ACTION:

Final rule.

SUMMARY:

This final rule implements section 702 of the John Warner National Defense Authorization Act for Fiscal Year 2007, Public Law 109-364. The rule provides coverage of contracted medical care with respect to dental care beyond that care required as a necessary adjunct to medical or surgical treatment. The entitlement of institutional and anesthesia services is authorized in conjunction with non-covered dental treatment for patients with developmental, mental, or physical disabilities or for pediatric patients age 5 or under. This final rule does not eliminate any contracted medical care that is currently covered for spouses and children. The entitlement of anesthesia services includes general anesthesia services only. Institutional services include institutional benefits associated with both hospital and in-out surgery settings. Patients with developmental, mental, or physical disabilities are those patients with conditions that prohibit dental treatment in a safe and effective manner. Therefore, it is medically or psychologically necessary for these patients to require general anesthesia for dental treatment.

EFFECTIVE DATE:

This is rule is effective September 25, 2007.

ADDRESSES:

TRICARE Management Activity, Skyline 5, Suite 810, 5111 Leesburg Pike, Falls Church, VA 22041.

FOR FURTHER INFORMATION CONTACT:

Col. Gary C. Martin, Office of the Assistant Secretary of Defense (Health Affairs), TRICARE Management Activity, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Summary of Final Rule Provisions

This final rule amends the coverage of contracted medical care with respect to dental care beyond that care required as a necessary adjunct to medical or surgical treatment. The entitlement of institutional and anesthesia services is authorized in conjunction with non-covered dental treatment for patients with developmental, mental, or physical disabilities or for pediatric patients age 5 or under. This final rule does not eliminate any contracted medical care that is currently covered for spouses and children. The entitlement of anesthesia services includes general anesthesia services only. Institutional services includes institutional benefits associated with both hospital and in-out surgery settings. Patients with developmental, mental, or physical disabilities are those patients with conditions that prohibit dental treatment in a safe and effective manner. Therefore, it is medically or psychologically necessary for these patients to require general anesthesia for dental treatment.

Prior to section 702 of the John Warner National Defense Authorization Act for Fiscal Year 2007, general anesthesia and institutional services were not covered in conjunction with dental treatment for patients with developmental, mental, or physical disabilities or for pediatric patients of any age through TRICARE medical plan contracts unless it qualified as adjunctive dental care. For military families who have children that require extensive dental treatment under general anesthesia, the two options available were to have the care provided locally at a Department of Defense (DoD) facility or a civilian facility. If the care was provided in a DoD facility, the total costs to the family are minimal.This option remains available. There are, however, locations where this care is not available from a DoD facility due to facility constraints (no operating room) and/or lack of dental specialists. For dental care provided in a civilian facility, families currently enrolled in the TRICARE Dental Program (TDP) or TRICARE Retiree Dental Program (TRDP) are provided with coverage for dental care with applicable cost-shares. These include a 40-percent cost-share for general anesthesia and varying cost-shares for dental procedures (fillings, crowns, root canals) completed in the operating room setting. There is an annual maximum benefit for the TDP and TRDP of $1,200 per enrollee. This means that the total payments covered services for each enrolled member will not exceed $1,200 in any contract year. In addition, the TRDP has a deductible of $50 per patient per year, not to exceed $150 per family per year. Frequently, the annual maximum is reached for those pediatric patients who require extensive dental treatment under general anesthesia. Once the annual maximum is reached, the remainder of the billed charges is the enrollee's responsibility. The hospital costs (institutional services) are covered by neither the TDP nor the TRDP. For families with dental insurance other the TDP or TRDP, their plan structure may have defrayed some costs but out-of-pocket costs remained significant. Families without any dental insurance incurred the total costs of dental, anesthesia, and institutional services.

II. Review of Public Comments

We provided a 60-day comment period on the proposed rule which was published in the Federal Register on March 23, 2007 (72 FR 13721). We received one document with joint comments from the American Dental Association (ADA) and the American Academy of Pediatric Dentists (AAPD). All comments were in support of the proposed rule. The ADA and AAPD concurred that the proposed rule accurately interpreted section 702 of the John Warner National Defense Authorization Act for Fiscal Year 2007, Public Law 109-364. They also concurred with the definitions and requirements as stated in the proposed rule. A waiver of the preauthorization requirement will be provided for beneficiaries receiving care in the transition period between October 17, 2006, the effective date of the change in the law upon which this final rule is based, and the implementation date, by applying the same criteria in a post-authorization. The ADA and AAPD recommended that post-authorization reviews utilize the same criteria as preauthorization reviews, and that this transition plan be referenced in the final rule. Post authorization review procedures will utilize the same criteria as preauthorization reviews; however, post authorization procedures will be addressed and outlined in detail in the TRICARE Manuals and are not included in this final rule.

III. Regulatory Procedures

Executive Order 12866 requires that a comprehensive regulatory impact analysis be performed on any economically 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. 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 a significant impact on a substantial number of small entities. This rule is not an economically significant regulatory action and will not have a significant impact on a substantial number of small entities for purposes of the RFA, thus this final rule is not subject to any of these requirements.

This rule will not impose additional information collection requirements on the public under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3511). We have examined the impact(s) of the final rule under Executive Order 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, 32 CFR part 199 is amended as follows:

PART 199—CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED SERVICES (CHAMPUS)

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 removing the first sentence of paragraph (e)(10) introductory text and adding two sentences in its place; revising the first sentence of paragraph (e)(10)(iii); and adding paragraph (e)(10)(vi) to read as follows:

§ 199.4

Basic Program Benefits.

* * * * *

(e)* * *

(10) Dental. TRICARE/CHAMPUS does not include a dental benefit. However, in connection with dental treatment for patients with developmental, mental, or physical disabilities or for pediatric patients age 5 or under, only institutional and anesthesia services may be provided as a benefit.* * *

* * * * *

(iii) Preauthorization required. In order to be covered, adjunctive dental care requires preauthorization from the Director, TRICARE Management Activity, or a designee, in accordance with paragraph (a)(12) of this section.* * *

* * * * *

(vi) Anesthesia and institutional costs for dental care for children and certain other patients. Institutional benefits specified in paragraph (b) of this section may be extended for hospital and in-out surgery settings related to noncovered, nonadjunctive dental care when such outpatient care or inpatient stay is in conjunction with dental treatment for patients with developmental, mental, or physical disabilities or for pediatric patients age 5 or under. For these patients, anesthesia services will be limited to the administration of general anesthesia only. Patients with developmental, mental, or physical disabilities are those patients with conditions that prohibit dental treatment in a safe and effective manner. Therefore, it is medically or psychologically necessary for these patients to require general anesthesia for dental treatment. Patients with physical disabilities include those patients having disabilities as defined in § 199.2 as a serious physical disability. Preauthorization by the Director, TRICARE Management Activity, or a designee, is required for such outpatient care or inpatient stays to be covered in the same manner as required for adjunctive dental care described in paragraph (e)(10)(iii) of this section. Regardless of whether or not the preauthorization request for outpatient care or hospital admission is approved and thus qualifies for institutional benefits, the professional service related to the nonadjunctive dental care is not covered, with the exception of coverage for anesthesia services.

* * * * *

Dated: September 13, 2007.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, Department of Defense.