2010-20392. TRICARE; Changes Included in the National Defense Authorization Act for Fiscal Year 2010; Expansion of Survivor Eligibility Under the TRICARE Dental Program

AGENCY:

Office of the Secretary, DoD.

ACTION:

Proposed rule.

SUMMARY:

The Department is publishing this proposed rule to implement section 704 of the National Defense Authorization Act for Fiscal Year 2010 (NDAA for FY10). Specifically, that legislation expands the survivor eligibility under the TRICARE Dental Program (TDP). The legislation entitles a child or unmarried person placed in legal custody of a member or former member continuation of eligibility for the TDP. The period of continued eligibility for these dependents shall be the longer of the following periods beginning on the date of the member's death: Three years; the period ending on the date on which such dependent attains 21 years of age; or in the case of such dependent who, at 21 years of age, is enrolled in a full-time course of study in a secondary school or in a full-time course of study in an institution of higher education approved by the administering Secretary and was, at the time of the member's death, in fact dependent on the member for over one-half of such dependent's support, the period ending on the earlier of the following dates: The date on which such dependent ceases to pursue such a course of study, as determined by the administering Secretary; or the date on which such dependent attains 23 years of age. This proposed rule does not expand the TDP eligibility of other eligible survivors.

Survivors, who meet the new eligibility requirements, will regain TDP eligibility as of the publishing of the final rule in the Federal Register. Retroactive payment of premiums or claims paid for dental treatment during the time of loss of TDP eligibility will not be reimbursed to surviving dependents.

DATES:

Written comments received at the address indicated below by October 18, 2010 will be accepted.

ADDRESSES:

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

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

CAPT Robert H. Mitton, Office of the Assistant Secretary of Defense (Health Affairs), TRICARE Management Activity, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Background

This proposed rule expands the survivor eligibility under the TRICARE Dental Program (TDP). The legislation entitles a child or unmarried person placed in legal custody of a member or former member, as defined in 10 U.S.C. 1072(2), subparagraph (D) or (I), continuation of eligibility for the TDP. The period of continued eligibility for these dependents shall be the longer of the following periods beginning on the date of the member's death: (1) Three years; (2) the period ending on the date on which such dependent attains 21 years of age; or (3) in the case of such dependent who, at 21 years of age, is enrolled in a full-time course of study in a secondary school or in a full-time course of study in an institution of higher education approved by the administering Secretary and was, at the time of the member's death, in fact dependent on the member for over one-half of such dependent's support, the period ending on the earlier of the following dates: (a) The date on which such dependent ceases to pursue such a course of study, as determined by the administering Secretary; or (b) the date on which such dependent attains 23 years of age.

This proposed rule does not expand the TDP eligibility of other eligible survivors. Currently, all eligible survivors are entitled to continued TDP enrollment for up to three years from the date of the member's death. The proposed rule will maintain the government's payment of both the government and dependent's portion of the premium share during the period of continuous enrollment.

This proposed rule will amend the Code of Federal Regulations to allow the TDP to conform to the new statutory authority. Public comments are invited. All comments will be carefully considered. A discussion of the major issues received by public comments will be included with the issuance of the final rule.

II. Regulatory Procedures

Executive Order 12866 and Regulatory Flexibility Act

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 proposed rule is not subject to any of these requirements.

Unfunded Mandates Reform Act

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.

Paperwork Reduction Act

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).

Federalism

We have examined the impact(s) of the proposed 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 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 199.13 is amended by revising paragraph (c)(3)(ii)(E)(2) to read as follows:

§ 199.13

TRICARE dental program.

* * * * *

(c) * * *

(3) * * *

(ii) * * *

(E) * * *

(2) Continuation of eligibility. Eligible dependents of active duty members while on active duty for a period of more than 30 days and eligible dependents of members of the Ready Reserve (i.e., Selected Reserve or Individual Ready Reserve, as specified in 10 U.S.C. 10143 and 10144(b) respectively), shall be eligible for continued enrollment in the TDP, if, on the date of the death of the member, the dependent is enrolled in the TDP, or is not enrolled by reason of discontinuance of a former enrollment under paragraphs (c)(3)(ii)(E)(4)(ii) and (c)(3)(ii)(E)(4)(iii) of this section, or is not enrolled because the dependent was under the minimum age for enrollment at the time of the member's death, or is not qualified for enrollment because the dependent is a spouse who is a member of the armed forces on active duty for a period of more than 30 days but subsequently separates or is discharged from active duty. This continued enrollment is not contingent on the Selected Reserve or Individual Ready Reserve member's own enrollment in the TDP. During the period of continuous enrollment, the government will pay both the government and the beneficiary's portion of the premium share. This continued enrollment shall be up to (3) three years from the date of the member's death, except that, in the case of a dependent of the deceased who is described in 10 U.S.C. section 1072(2) by subparagraph (D) or (I), the period of continued enrollment shall be the longer of the following periods beginning on the date of the member's death:

(i) Three years.

(ii) The period ending on the date on which such dependent attains 21 years of age.

(iii) In the case of such dependent who, at 21 years of age, is enrolled in a full-time course of study in a secondary school or in a full-time course of study in an institution of higher education approved by the administering Secretary and was, at the time of the member's death, in fact dependent on the member for over one-half of such dependent's support, the period ending on the earlier of the following dates: The date on which such dependent ceases to pursue such a course of study, as determined by the administering Secretary; or the date on which such dependent attains 23 years of age.

* * * * *

Dated: August 10, 2010.

Patricia L. Toppings,

OSD Federal Register Liaison Officer, Department of Defense.