E8-15350. TRICARE: Civilian Health and Medical Program of the Uniformed Services (CHAMPUS) Changes Included in the John Warner National Defense Authorization Act for Fiscal Year 2007; Authorization of Forensic Examinations

AGENCY:

Department of Defense.

ACTION:

Proposed rule.

SUMMARY:

This proposed rule implements section 701 of the John Warner National Defense Authorization Act for Fiscal Year 2007, Public Law 109-364. Section 701 amends Chapter 55 of title 10 section 1079(a) of the U.S.C. by authorizing coverage for forensic examinations following a sexual assault or domestic violence for eligible beneficiaries. This authorizes forensic examinations following sexual assault or domestic violence provided in civilian health care facilities (e.g., civilian rape crisis facilities), which is consistent with the services that are authorized in Military Medical Treatment Facilities for all beneficiaries who were victims of a sexual assault or domestic violence.

DATES:

Written comments will be accepted until September 5, 2008.

ADDRESSES:

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

• The Web site: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20302-1160.

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:

Margaret A. Brown, Office of Medical Benefits and Reimbursement Systems, TRICARE Management Activity, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Background

This proposed rule implements section 701 of the John Warner National Defense Authorization Act for Fiscal Year 2007, which establishes coverage of contracted medical care with respect to forensic examinations following a sexual assault or domestic violence. TRICARE currently pays for and will continue to pay for all emergency room services delivered to a victim. TRICARE does not reimburse for the forensic examination, which presented a problem for beneficiaries in the past. Although most States have laws that designate payment sources to cover the costs of forensic examinations for sexual assault victims (some States even prohibit billing victims), some beneficiaries who were victims of a sexual assault have received a bill for the forensic examination.

Currently, forensic examinations are not covered for beneficiaries in civilian health care facilities through TRICARE medical plan contracts because TRICARE, under 10 U.S.C. 1079(a)(13), may cost share only medically or psychologically necessary services or supplies. Forensic examinations are not conducted for medical treatment purposes, but for preservation of evidence in any future criminal investigation and/or prosecution. However, there is a dual purpose of the examination process. One purpose is to address the needs of the individual disclosing sexual assault, which include evaluating and treating injuries; conducting prompt examinations; providing support, crisis intervention, and advocacy; providing prophylaxis against sexually transmitted diseases; assessing female patients for pregnancy risk and discussing treatment options, including reproductive health services; and providing follow-up care for medical and emotional needs. The other purpose is to address justice system needs. The needs for justice system are: obtaining a history of the assault, documenting exam findings, properly collecting, handling, and preserving evidence, and interpreting and analyzing findings (post exam) and subsequently, presenting findings and providing factual and expert opinion related to the exam and evidence collection.

Forensic Examination (Rape Kits)

A rape kit is used to collect and preserve the evidence. Rape kits (also known as early evidence kits) typically include forms for documentation of what is observed, tubes for blood samples, a urine sample container (for detecting drugs that may have been used to facilitate a sexual assault), cotton swabs for biological evidence collection, sterile water, sterile saline, glass slides, unwaxed dental floss, a wooden stick for fingernail scrapings, envelopes or boxes for individual evidence samples, labels for each item and paper bags for clothing collection and a large sheet of paper for patient to undress over. The victim's clothing is collected for any external evidence and new clothes are provided. Forensic examinations can take up to 4 hours.

Forensic examinations are currently paid for active duty members with supplemental care, which under 10 U.S.C. 1074(c)(1), does not have the same requirement for medical or psychological necessity. All beneficiaries are covered if they are examined in a military treatment facility. The forensic examination becomes an issue when services are provided in a civilian health care facility. Eighteen States have mechanisms in place that require civilian health care facilities to bill a State agency directly. Certain other States, to some degree, have mechanisms to minimize the possibility of invoicing the beneficiary. This proposed rule puts into place a mechanism that allows civilian health care facilities to invoice TRICARE for reimbursement of forensic examinations.

We believe that a large portion of the costs for the examinations are probably already being paid by TRICARE as most services associated with a forensic exam are covered benefits under any circumstance; and if a claim from a health care facility is submitted with the appropriate procedure code the claim would be paid. What is not being cost-shared are the examinations to gather information for the justice system. In a civilian facility, the victim's private insurance should not be billed for the cost of the examination. This stipulation has been made pursuant to the Federal Victims of Crime Act (VOCA). A reimbursement request from a provider under the VOCA should only be submitted for a victim who is not covered by a Federal or federally funded program, such as Medicare, Medicaid, TRICARE or the Department of Veterans Affairs. This proposed rule amends the regulation to ensure that forensic examinations following sexual assault or domestic violence are specifically listed as a covered benefit.

II. Regulatory Procedures

Executive Order 12866, “Regulatory Planning and Review”

It has been certified that 32 CFR 199.4(e)(27) does not:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.

Sec. 202, Pub. L. 104-4, “Unfunded Mandates Reform Act”

It has been certified that 32 CFR 199.4(e)(27) 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)

It has been certified that 32 CFR 199.4(e)(27) is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.

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

It has been certified that 32 CFR 199.4(e)(27) does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

Executive Order 13132, “Federalism”

It has been certified that 32 CFR 199.4(e)(27) does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of Government.

List of Subjects in 32 CFR Part 199

• Claims
• Health care
• Health insurance
• 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 adding paragraph (e)(27) to read as follows:

§ 199.4

Basic program benefit.

* * * * *

(e) * * *

(27) TRICARE will cost share forensic examinations following a sexual assault or domestic violence. The forensic examination includes a history of the event and a complete physical and collection of forensic evidence, and medical and psychological follow-up care. The examination for sexual assault also includes, but is not limited to, a test kit to retrieve forensic evidence, testing for pregnancy, testing for sexual transmitted disease and HIV, and medical services and supplies for prevention of sexually transmitted diseases, HIV, pregnancy, and counseling services.

* * * * *

Dated: June 30, 2008.

Patricia L. Toppings,

OSD Federal Register Liaison Officer, Department of Defense.